P. v. Hasting

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Filed 6/1/04 P. v. Hastings CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC HASTINGS,
Defendant and Appellant.
F042199
(Super. Ct. No. 11653)
O P I N I O N
APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
Mary G. Swift and William Arzbaecher, under appointments by the Court of
Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Jo Graves, Assistant Attorney General, Robert P. Whitlock, Janet Neeley, Kelly
C. Fincher and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
SEE CONCURRENCE OF DAWSON, J.

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Appellant Eric Hasting was convicted by the court, sitting without a jury, of two
counts of violating Penal Code section 290, subd. (f)(1).1 The crimes were alleged to
have occurred in January 1999 (count 1) and July 1999 (count 2). Because an allegation
that appellant was a triple recidivist offender under section 667, subdivisions (b)-(i), was
found true, and because the trial court declined to dismiss these priors under section 1385
to the extent the priors were appended to count 1, appellant received a “Three Strikes”
sentence of 25 years to life on count I and a determinate sentence on count 2.
I.
There was sufficient evidence (People v. Johnson (1980) 26 Cal.3d 557, 576) to
support a conclusion as to count 1 that appellant resided at the Madera motel, where he
had been placed by his parole officer, from December 27, 1998, through at least
January 3, 1999, when he left without notifying the Madera Police Department of his
move (§ 290, subd. (f)(1); count I).2 The motel manager testified in part that he recalled
that appellant had left the motel on the “Sunday” before the manager talked to appellant’s
parole officer. The parole officer testified he talked to the motel manager on January 6,
1999. The Sunday before January 6, 1999, was January 3, 1999. In addition, several
witnesses testified that appellant moved into their apartment in Van Nuys, California, in
July 1999, and lived there for a number of succeeding months before moving with one of
the witnesses to Seattle in October 1999 without notifying the Madera Police Department
of the move (count II). That witness also testified that, to her knowledge, appellant had
1 All further statutory references are to the Penal Code unless otherwise stated.
2 The dates are significant because, before January 1, 1999, section 290 required
notification only when the parolee moved within California and not when the parolee
moved out of California. (People v. Franklin (1999) 20 Cal.4th 249, 252.) After January
1, 1999, notification was and is required regardless of the parolee’s destination. (Stats.
1998, ch. 930, § 1.1.)

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never been to Seattle, Washington, before moving there with her, that the move was
instigated by her, and that appellant did not know Seattle and had no connections there.3
II.
There was sufficient evidence to support a finding as to count 2 that Madera
County was the law enforcement agency “with which [appellant] last registered” (§ 290,
subd. (f)(1)). The prosecution’s evidence established that appellant had registered in
Madera County on December 29, 1998, and there was no other evidence that he
registered anywhere else prior to his move from Van Nuys to Seattle in September 1999.
If appellant had registered elsewhere between January 1999 and September 1999,
it was incumbent upon him to present evidence of it under the “rule of convenience.”
(People v. Mower (2002) 28 Cal.4th 457, 477 [unless it is unduly harsh or unfair to a
defendant, the burden of proving an exonerating fact may be imposed on a defendant if
the existence of a fact is peculiarly within the defendant’s knowledge and proof of the
fact’s nonexistence by the prosecution would be relatively difficult or inconvenient].)
Appellant knew whether and where he last registered, if not in Madera County, and it
would have been a relatively simple matter for him to present proof of it at trial. On the
other hand, it would have been relatively inconvenient and difficult for the People to
prove that appellant did not register with any one of the hundreds, probably thousands, of
other law enforcement agencies in California during the approximate nine months
between December 1998 and September 1999. It is important to point out in this
connection that there was no evidence appellant moved to Van Nuys directly from
Madera. To the contrary, the evidence showed only that he left Madera in December
1998 or January 1999 and moved into the Van Nuys apartment in July 1999. His
3 Appellant’s own testimony that he left the motel on December 30th and drove to
Seattle did nothing more than create a conflict with the direct and circumstantial evidence
introduced by the prosecution, a conflict which the trial court obviously resolved against
appellant.

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whereabouts during the intervening nine months were undisclosed. Indeed, had the
prosecution proved that appellant had not registered with the proper Van Nuys
authorities, we have little doubt he would be contending now that the People still had not
proven their case because there was no prosecution evidence that appellant had not
registered somewhere other than Van Nuys between January and September 1999.
We do not view the burden on appellant in this respect to be any different than the
burden imposed upon a defendant to prove possession of a driver’s license if it would
establish a complete defense to the charge of driving without a license. (See In re
Shawnn F. (1995) 34 Cal.App.4th 184, 197.) Had appellant demonstrated that he had
registered elsewhere between January 1999 and September 1999, he would have
presented a complete defense to the crime charged in count 2 without also having to
prove that he had notified that agency of his move to Seattle, because the information
alleged specifically that the crime took place in Madera County. (See 4 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 47, p. 137
[conviction cannot stand if evidence does not support proper venue, which must be
alleged and proven by the prosecution].)
None of appellant’s objections to the application of the rule of convenience are
persuasive. First, it is beside the point whether application of the rule would create a
presumption that appellant did not register in Van Nuys. The question raised by count 2
was not where appellant in fact failed to last register but instead where appellant in fact
last registered. Proof, by tangible evidence or intellectual presumption, that he did not
last register in Van Nuys would have been irrelevant, because he could not have
committed the crime charged in count 2 by failing to notify an agency with which he did
not last register. Second, for the same reason, whether or not his failure to notify Madera
County of the move to Seattle constituted inadmissible propensity evidence that he also
did not notify the Van Nuys authorities would have been irrelevant to the issues raised by
count 2 because count 2 alleged a violation in Madera County not in Van Nuys. Third,

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application of the rule of convenience does not rewrite the statute any more than does
application of the rule of convenience rewrite the statute prohibiting driving an
automobile without a valid driver’s license (Veh. Code, § 12500). (See In re Shawnn F.,
supra, 34 Cal.App.4th at pp. 196-197.) The rule is procedural only, and simply identifies
the party with the duty to produce evidence on a certain issue; the rule has nothing to do
with the substantive elements of the particular crime charged. (People v. Mower, supra,
28 Cal.4th at pp. 477-478.)
III.
The trial court did not err in imposing separate punishments for both counts
because appellant’s failure to comply with section 290, subdivision (f)(1) when he left the
motel in January 1999 (count 1) and when he left Van Nuys in July 1999 (count 2) were
separate crimes. (See People v. Davis (2002) 102 Cal.App.4th 377, 380-381.)
Subdivision (f)(1) of section 290 mandates that every person with a registration
requirement who changes his or her residence must, within five days, notify the law
enforcement agency with which he or she last registered of the person’s new residence
address. The registration and notification requirements of section 290 insure generally
that the responsible law enforcement agency in the jurisdiction where the person
currently resides knows of the person’s presence so that the agency may keep the person
under surveillance. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Subdivision
(f)(1) of the statute insures specifically that the person’s change of residence will be
communicated to the California Department of Justice and to the law enforcement agency
in the new jurisdiction. (§ 290, subd. (f)(1).) These statutory purposes would be utterly
frustrated if the continuing nature (see Wright v. Superior Court, supra, 15 Cal.4th at
p. 525) of a violation of subdivision (f)(1) were deemed to subsume into a single
violation all subsequent violations of the same or a different duty imposed by the statute.
Once a person failed to perform one requirement he or she would have no reason or
incentive to perform any other regardless of the number of times the person changed

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residences, with the result that all interested law enforcement agencies would be in the
dark about the person’s location at any particular time.
Alternatively, appellant argues that the imposition of punishment for both counts
violated section 654. However, in this case, appellant’s two failures, several months
apart, to notify the “enforcement agency . . . with which he . . . last registered” (the
Madera Police Department) could legitimately have supported a conclusion by the trial
court that each violation had an independent objective (People v. Osband (1996) 13
Cal.4th 622, 730) -- in January 1999 to escape from the surveillance of the Madera Police
Department and in July 1999 to avoid criminal prosecution for having illegally escaped
from that initial surveillance.
III.
We have held that, absent a mistake by the trial court about the nature or extent of
its discretion, there is “no [appellate] review available to” a defendant of a trial court’s
decision not to exercise its power under section 1385 to dismiss a prior serious felony
conviction. (People v. Benevides (1998) 64 Cal.App.4th 728, 734-735.) Though we
acknowledge that the decision has not been uniformly followed in other appellate
districts, we stand by it in the absence of a disapproval by the Supreme Court, and we
decline to revisit the issue here. Here, the trial court was well aware of the nature and
extent of its section 1385 discretion. We therefore do not address appellant’s contention
that the trial court abused that discretion by failing to dismiss all of the “strike” prior
convictions (§ 667, subds. (b)-(i)) found true by the court.
IV.
The sentence imposed upon appellant was not cruel or unusual under the federal
Constitution or the state Constitution. (Ewing v. California (2003) 538 U.S. 11; Lockyer
v. Andrade (2003) 538 U.S. 63; In re Lynch (1972) 8 Cal.3d 410.)

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V.
Appellant submitted, without assistance of counsel, a separate “Supplemental
Brief” in which he argued that (1) his trial counsel was ineffective in connection with the
request to dismiss all the strike prior convictions because counsel neglected to object to
or correct certain inaccurate information in a “parole violation report” apparently
considered by the trial court at sentencing; and (2) the trial court abused its discretion in
denying the dismissal request because it was based upon the allegedly inaccurate
information.4
These questions are not before us because, as we have already held, appellant has
no right to appellate review of the trial court’s decision not to dismiss any of the strike
priors appended to count 1. (People v. Benevides, supra, 64 Cal.App.4th at pp. 734-735.)
DISPOSITION
The judgment is affirmed.
_________________________
Dibiaso, Acting P.J.
I CONCUR:
__________________________________
Vartabedian, J.
4 We disregard the fact that appellant’s supplemental brief is unauthorized and
should not be considered. (People v. Merkouris (1956) 46 Cal.2d 540, 554-555 [the
attorney of record has the exclusive right to appear for his or her client and neither the
party himself or herself nor another attorney should be recognized by the court in the
conduct or disposition of the case].)

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DAWSON, J.
I concur in the result in this matter, but differ with the majority’s view that
appellant is not entitled to appellate review of the trial court’s decision not to grant his
Romero1 motion. Other districts have disagreed with that view (see, e.g., People v.
Romero (2002) 99 Cal.App.4th 1418, 1434; People v. Zichwic (2001) 94 Cal.App.4th
944, 961; People v. Cluff (2001) 87 Cal.App.4th 991, 998; People v. Myers (1999) 69
Cal.App.4th 305, 309), and I find myself in agreement with them. I refrain from writing
at length because the issue is currently before, and will be decided by, the California
Supreme Court. (People v. Carmony, review granted May 21, 2003, S115090.)
I concur in the result because I find nothing in the record from which to conclude
that the trial court abused its discretion in denying appellant’s Romero motion.
Appellant’s prior offenses were horrendous. Though he has already been punished for
those offenses, the nature of the offenses imposes upon him the additional requirement
that he cooperate in society’s effort to help and to protect victims like his. This he has
not only failed to do but has deliberately and prolongedly refused to do. The crimes here
are not de minimis. Neither is this a Burgos2 situation. Though the prior offenses were
committed against a single victim, they had separate objectives.
On the other hand, appellant’s prior offenses—attempted murder, rape and oral
copulation by force, with findings that he used a firearm and inflicted great bodily injury
during the commission of those crimes—were committed when he was just 17 years old,
and there is reason to think that a combination of drugs and alcohol played some part in
their commission. Though appellant repeatedly violated the terms of his parole after his
first release from prison, and committed the first of the current offenses within weeks of
1People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2People v. Burgos (2004) 117 Cal.App. 4th 1209.

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his second release, he did manage to live free of any new arrests during the two years
between that second release and his apprehension. He apparently was working and
productive during that time. It is not within the purview of this court’s review of the trial
court’s action, however, to determine how this court, or any of its members, would have
judged these factors. The question is abuse of discretion, and none is shown.
As noted in the majority opinion, appellant contends by way of a supplemental
brief prepared without his attorney’s assistance that (1) his trial counsel was ineffective in
connection with the Romero motion because counsel neglected to object to or correct
inaccurate information contained in a parole violation report, and (2) the trial court
abused its discretion in connection with the Romero motion because it considered the
same allegedly inaccurate information. The majority does not decide this issue, based on
its view that appellate review of the denial of the Romero motion is not available. As I
do not join in that view, I have considered appellant’s point and reject it. The record of
the hearing on appellant’s Romero motion shows that the trial court considered
information indicating that appellant had absconded from parole before, not that he had
previously violated Penal Code section 290.
As to the Penal Code section 654 issue, I note that the two moves in question
occurred several months apart. Temporal proximity, or the lack of it, is an appropriate
factor to consider when applying section 654. (People v. Beamon (1973) 8 Cal.3d 625,
639, fn. 11; In re William S. (1989) 208 Cal.App.3d 313, 317.)
__________________________
DAWSON, J.

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