Filed 9/22/20 P. v. Dodge CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A158009
v.
CURTIS DEWAYNE DODGE, (Lake County
Defendant and Appellant. Super. Ct. No. CR945410)
Curtis Dewayne Dodge was required to register as a sex offender.
While regularly staying at his girlfriend’s house, Dodge registered as a
“transient” and a jury convicted him of failing to register as a sex offender
within five days of gaining residency (Pen. Code, § 290.011, subd. (b)).1
Dodge moved for a new trial, arguing trial counsel was ineffective for not
objecting to a prosecution witness’s testimony. The trial court denied the
motion and sentenced Dodge to state prison.
Dodge appeals. He claims insufficient evidence supports the conviction
and that the court erred by denying his new trial motion. We disagree and
affirm.
1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
We provide a brief overview of the statutory scheme for context. Under
the Sex Offender Registration Act (§§ 290–290.24), a sex offender must
register once a year within five working days of his or her birthday. (§§ 290,
subd. (a), 290.012, subd. (a).) A “transient” sex offender must register once
every 30 days in addition to the annual birthday registration. (§ 290.011,
subds. (a), (c).) A “person who has no residence” is defined as a “transient.”
(§ 290.011, subd. (g).) “A transient who moves to a residence shall have five
working days within which to reregister at that address.” (§ 290.011, subd.
(b).) “Residence” is defined as “one or more addresses at which a person
regularly resides, regardless of the number of days or nights spent there,
such as a . . . structure that can be located by a street address, including, but
not limited to, houses . . . .” (§ 290.011, subd. (g).) The purpose of the Sex
Offender Registration Act is “ ‘to promote the “ ‘state interest in controlling
crime and preventing recidivism in sex offenders’ ” ’ ” and “ ‘to notify
members of the public of the existence and location of sex offenders so they
can take protective measures.’ ” (Johnson v. Department of Justice (2015)
60 Cal.4th 871, 877.)
A.
Prosecution Evidence
Dodge was required to register as a sex offender pursuant to section
290. In February 2016, Dodge began dating Dorna K. and staying at her
home in Clearlake three nights a week. Dodge stored his belongings in
Dorna’s bedroom. In February, April, and May, Dodge registered as a
transient. He signed the registration forms and initialed the paragraphs
advising him that “[u]pon coming into, . . . [a] residence address . . . [he]
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must register or reregister . . . within five (5) working days, with the law
enforcement agency having jurisdiction over [his] residence. . . . ‘Residence’
means one or more addresses at which a person regularly resides, regardless
of the number of days or nights spent there . . . including, but not limited to,
houses.”
From June through September 2016, Dodge again registered as a
transient. On the registration forms, he listed Dorna’s address, with “studio
in back” or “back studio” under the unit or apartment number, as a “related
address.” The forms defined “related address” as an “[a]ddress of a relative
or other person who is likely to know how to contact me.” Dodge signed the
registration forms and initialed the paragraphs defining residence and
advising him of the obligation to register upon gaining an address. In
October, November, and December, Dodge registered as a transient. He did
not list an address or a related address. As before, Dodge signed the
registration forms and initialed the paragraphs defining residence and
related address and notifying Dodge of his obligation to register upon gaining
residency.
In December 2016, Clearlake Police Sergeant Elvis Cook and other
officers performed a probation search at Dorna’s house and found Dodge
wearing pajama-like clothes and slippers. Officers also found Dodge’s
belongings in the house. Dodge told Cook he was “registered as a transient”
but “was living [at Dorna’s] a few days a week.” Dodge also said he had
registered Dorna’s house as an “alternate residence.” Cook was concerned
that Dodge was registering as a transient, “saying he had no permanent place
to stay,” while he was “obviously living at [Dorna’s] residence.”
Several days later, on December 14, 2016, Cook asked Dodge why “he
was registering as a transient even though he had a residence[.]” Dodge
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explained that he registered as a transient because he did not want Dorna’s
address to be listed on the “ ‘Megan’s Law’ ” website2 and because her family
“ ‘did not like him.’ ”
B.
Defense Evidence
A police department volunteer helped Dodge fill out some of the
registration forms. The volunteer’s standard practice was to transfer
information from the previous registration form to the current form. He
instructed registrants, including Dodge, to review the information for
completeness and accuracy. Ultimately, it is the registrant’s obligation to
make sure the form is accurate. Registrants are “familiar with the form.”
C.
New Trial Motion
A jury convicted Dodge of failing to register as a sex offender within
five days of gaining residency (§ 290.011, subd. (b)). Dodge moved for a new
trial, arguing trial counsel was ineffective because Cook “ ‘lied’ ” about the
December 14, 2016 conversation and counsel did not expose the lie. At a
hearing on the motion, Dodge denied making the Megan’s Law comment to
Cook. Dodge testified he “wouldn’t make that statement” because he had
known for years that his “information is not listed on the Internet.” Cook’s
testimony about the Megan’s Law comment surprised Dodge. He asked trial
counsel to object but counsel responded that the statement was “on the other
CD.” Dodge denied telling Cook that he registered as a transient to avoid
issues with Dorna’s family.
2Megan’s Law requires the California Department of Justice to notify
the public about specified registered sex offenders. Megan’s Law also
authorizes local law enforcement agencies to notify the public about sex
offender registrants found to pose a risk to public safety. (§ 290.46.)
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In support of the new trial motion, Dodge offered a two-page
supplemental police report prepared by Cook. The supplemental report
described Cook’s two conversations with Dodge. According to the report,
Dodge said he registered as a transient to “avoid issues with Dorna’s family.”
Dodge also asked Cook “if he could list [Dorna’s] address as a secondary
location believing it would keep the address off Megan’s law.”
Trial counsel testified at the hearing. Counsel discussed the
supplemental police report with Dodge before trial. While Cook was
testifying, Dodge tried to get counsel’s attention; counsel, however, did not
understand what Dodge was saying, in part because counsel was focusing on
Cook. Counsel did not think Dodge asked him to object to Cook’s testimony.
He did not recall telling Dodge about a statement being on a CD.
The court denied the new trial motion, concluding trial counsel was not
ineffective for failing to challenge Cook’s testimony about the December 14,
2016 conversation. Without Dodge’s testimony, the court was “not sure
what . . . could have been done” to cross-examine Cook. The court noted that
“a repetitive and aggressive challenge” to Cook’s testimony might have
emphasized the testimony “in the minds of the jury.” Finally, the court
determined substantial evidence supported the jury’s conclusion that Dodge
willfully failed to register.
DISCUSSION
I.
Substantial Evidence Supports the Conviction
The elements of failing to register as a sex offender are the defendant:
(1) was required to register as a sex offender; (2) the defendant knew he had
a duty to register “ ‘every residence at which he regularly resides, regardless
of the number of days or nights spent there’ ”; and (3) the defendant “willfully
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failed to register . . . every residence at which he regularly resides.’ ” (People
v. Gonzales (2010) 183 Cal.App.4th 24, 32, italics omitted.) A willful violation
occurs when the offender “actually know[s] of the duty to act” and
“what act is required to be performed” (People v. Garcia (2001) 25 Cal.4th
744, 752) but the willfulness element is not negated by “just forgetting to
register.” (People v. Barker (2004) 34 Cal.4th 345, 350.)
We review the record in the light most favorable to the prosecution to
determine whether a rational jury could find the elements of the crime
beyond a reasonable doubt. (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
We accept all evidence supporting the judgment, disregard contrary evidence,
and draw reasonable inferences in favor of the verdict. A “verdict will not be
set aside unless the record clearly shows that there is not sufficient evidence
based upon any hypothesis whatsoever. [Citation.] [Dodge] bears an
‘enormous burden.’ ” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
Dodge has not satisfied his “ ‘enormous burden.’ ” (People v. Thomas,
supra, 15 Cal.App.5th at p. 1071.) The undisputed evidence established
Dodge failed to register Dorna’s address for six months while he stayed there
three nights per week. Dodge repeatedly acknowledged in writing that he
understood the registration requirements, i.e., that he was required to
register any address where he regularly resided, regardless of the number of
nights he spent there. The forms defined the term “residence.” Dodge
admitted not registering Dorna’s address and gave reasons for registering as
a transient.
Ample evidence supports the jury’s conclusion that Dodge’s failure to
register was knowing and willful. (In re Coley (2012) 55 Cal.4th 524, 561
[record supported finding that defendant failed to register]; People v.
Gonzales, supra, 183 Cal.App.4th at p. 33 [sufficient evidence defendant
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failed to register the home where he stayed]; People v. Williams (2009)
171 Cal.App.4th 1667, 1673 [sufficient circumstantial evidence supported
conclusion that defendant resided at a location and failed to timely register];
People v. McCleod (1997) 55 Cal.App.4th 1205, 1219 [substantial evidence
supported conviction for failing to register; jury could have reasonably
inferred defendant was residing with mother or girlfriend and willfully failed
to notify the police of their addresses].)
Dodge claims the registration requirements are “confusing” and
complains he did not receive “detailed guidance” on the definition of
“regular[]” or “related address.” He also attempts to cast blame on those who
helped him complete the registration forms. These arguments are
unavailing. They misapprehend the standard of review, which requires us to
view the evidence in the light most favorable to the verdict. In any event, no
specialized knowledge or detailed instructions are needed to understand that
a sex offender must list every address where he “regularly resides, regardless
of the number of days or nights spent there.” (§ 290.011, subd. (g).) Dodge
was not—as he claims— “random[ly] staying” at Dorna’s; he was staying
there regularly and storing his belongings there. (People v. Gonzales, supra,
183 Cal.App.4th at p. 39 [defendant required to register address where he
regularly spent “a significant amount of time”]; People v. Poslof (2005)
126 Cal.App.4th 92, 106 [defendant established a “residence” by staying at
a home three nights a week and storing personal belongings there].)
Dodge’s reliance on People v. Aragon (2012) 207 Cal.App.4th 504 is
misplaced. The issue in Aragon was whether the defendant had notice that a
travel trailer parked on the street constituted a “residence” within the
meaning of section 290.011, subdivision (g). (Aragon, at pp. 508–510.) Here,
it is undisputed Dorna’s house is a residence; Dodge does not contend he
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lacked knowledge of that fact. And unlike Aragon—where the prosecution
offered no reason for the defendant’s failure to register—Dodge told Cook why
he decided not to register Dorna’s address.
II.
The Court Did Not Err by Denying the New Trial Motion
A defendant claiming ineffective assistance of counsel must show
“counsel’s representation fell below an objective standard of reasonableness”
and that the deficient performance prejudiced him. (Strickland v.
Washington (1984) 466 U.S. 668, 688, 691–692; People v. Hoyt (2020)
8 Cal.5th 892, 958.) Prejudice means “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland, at p. 694.) Where, as here, a defendant moves for
a new trial premised on ineffective assistance, we uphold factual findings
supported by substantial evidence but independently review the ultimate
question of whether the facts demonstrate ineffective assistance. (People v.
Cervantes (2017) 9 Cal.App.5th 569, 590–591, disapproved on another ground
by People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 315.)
Dodge argues trial counsel was ineffective for failing to object to Cook’s
“incorrect” testimony about the December 14, 2016 conversation, and by
failing to “adequately cross-examine Cook” on the discrepancy between
Cook’s testimony and the supplemental police report. Even if we assume for
the sake of argument trial counsel’s representation was deficient, Dodge’s
claim fails because he cannot show prejudice, e.g., a reasonable probability
the result would have been different had trial counsel objected.
As recited above, the evidence amply supported the jury’s conclusion
that Dodge knowingly and willfully failed to register Dorna’s address while
he regularly stayed at her house and stored his belongings there. Dodge told
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Cook he registered as a transient in part because Dorna’s family “ ‘did not
like him.’ ” Even if trial counsel had successfully cross-examined Cook about
the Megan’s Law comment, there was more than enough evidence supporting
the conviction. As a result, there is no reasonable probability trial counsel’s
assumed ineffectiveness affected the verdict, and the court properly denied
Dodge’s new trial motion. (People v. Hoyt, supra, 8 Cal.5th at p. 960 [new
trial motion properly denied where admission of evidence was not likely to
have “changed the outcome of the trial”].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a
corrected abstract of judgment with the correct spelling of Dodge’s middle
name—Dewayne—and to forward the corrected abstract of judgment to the
California Department of Corrections and Rehabilitation.
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_________________________
Jones, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A158009
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