P. v. Porcayo

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Filed 12/18/06 P. v. Porcayo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(Sutter)
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THE PEOPLE,
Plaintiff and Respondent,
v.
MAXIMILIANO AYALA PORCAYO,
Defendant and Appellant.
C050770
(Super. Ct. No. CRF040156)
A jury convicted defendant Maximiliano Ayala Porcayo of
failure to register as a sex offender. (Pen. Code, § 290, subd.
(g)(2).)1 In a bifurcated proceeding, the jury found true a
strike allegation. (§§ 667, subds. (b)-(i), 1170.12.) The
court sentenced defendant to the upper term of three years
doubled for the strike for a total state prison term of six
years.
1 Hereafter, undesignated statutory references are to the Penal
Code.

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On appeal, defendant contends the trial court erred
prejudicially by (1) failing to instruct the jury sua sponte on
the element of knowledge of the duty to register, (2) failing to
hold an evidentiary hearing on the issue of juror misconduct,
and (3) imposing the upper term of imprisonment based on facts
that the jury never found to be true beyond a reasonable doubt.
We shall affirm the judgment.
FACTS
In 1990, defendant was convicted of a felony that required
him to register for life pursuant to section 290.
Upon his release from prison in the 1990’s, defendant was
given a form Notice of Registration Requirements (No. SS8047),
which advised him of requirements including (1) annual
registration within five days of his birthday; (2) updated
registration every 90 (later 60) days if he has “no residence
address;” (3) new registration within five days of coming into
any city, county, or city and county; and (4) upon moving,
notification within five days to the jurisdiction with which he
had last registered. Defendant registered annually as required
from 1995 through 2003.
On June 12, 2003, defendant went to the Yuba City Police
Department and completed an annual registration form. He
initialed a box on the form advising: “If I have no residence
address, in addition to the requirement to register annually
within 5 working days of my birthday, I must update my
registration information at least once every 60 days and

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register a change of location within 5 working days with the law
enforcement agency having jurisdiction over my location.” The
registration form showed defendant’s address as an apartment on
Franklin Avenue in Yuba City. According to the form, he was
residing with Michelle King.
King had been the manager of the apartment complex on
Franklin Avenue and had lived in the designated manager’s
apartment until some time prior to September 1, 2003, when a new
manager moved in. By that date, defendant was not living at the
manager’s apartment or anywhere else in the complex.
In November 2003, Leslie Carbah, a crime analysis clerk for
the Yuba City Police Department, began to “have concerns that
the defendant might not be at the residence or the address that
he last registered.” She relayed her concerns to Yuba City
Police Detective Dan Garbutt, who went to the Franklin Avenue
address on November 13, 2003, to see if defendant was living
there. He was not.
Four days later, on November 17, 2003, defendant and King
went to the Yuba City Police Department so that defendant could
register. Defendant told a detective that it had been “a few
months” since he had lived at the Franklin Avenue address.
Defendant added that for the last few months he had been
“homeless” and had been “living out of a car” on Cypress Road in
Dingville, Sutter County. Defendant intended to register with
the Yuba City Police Department, but the detective advised him
that he had to register with the Sutter County Sheriff’s

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Department because he was claiming to live outside city limits,
in an unincorporated portion of the county.
The detective “assist[ed]” defendant by taking him into
custody on an unrelated outstanding misdemeanor warrant and
having him transported to the Sutter County jail, which was in
the same building as the Sutter County Sheriff’s Department.
Inmates are not allowed to register until they are released from
jail. The present record does not reveal the date of
defendant’s release.
In January 2004, defendant gave the Department of Motor
Vehicles an address on Pease Road in Sutter County. On May 12,
2004, defendant registered with the Sutter County Sheriff
pursuant to section 290 using the address on Pease Road.
Defendant did not testify.
The prosecutor argued in summation that, although
defendant’s crime was complete by mid-November 2003 when he told
a detective that he was living out of his car in Sutter County,
the crime continued for several months thereafter. The
detective told defendant that he needed to go to the Sheriff’s
Office and update his registration, but defendant did not
register for several more months.
DISCUSSION
I
Defendant contends, and the People effectively concede, the
trial court erred by failing to instruct the jury sua sponte on
the element of actual knowledge of the duty to register.

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(People v. Garcia (2001) 25 Cal.4th 744, 752 (Garcia).) The
parties further agree that the Chapman standard of prejudice
applies, but they disagree as to whether the error is harmless
beyond a reasonable doubt. (Garcia, supra, at p. 755; Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]
(Chapman).) The People have the better argument.
In Garcia our Supreme Court held, “In a case like this,
involving a failure to act, we believe section 290 requires the
defendant to actually know of the duty to act. Both today and
under the version applicable to defendant, a sex offender is
guilty of a felony only if he ‘willfully violates’ the
registration or notification provisions of section 290. (§ 290,
former subd. (g)(3), as amended by Stats. 1994, ch. 867, § 2.7,
p. 4393; § 290, present subd. (g)(3).) The word ‘willfully’
implies a ‘purpose or willingness’ to make the omission. (§ 7.)
Logically one cannot purposefully fail to perform an act without
knowing what act is required to be performed. As stated in
People v. Honig (1996) 48 Cal.App.4th 289, 334, ‘the term
“willfully” . . . imports a requirement that “the person knows
what he is doing.” [Citation.] Consistent with that
requirement, and in appropriate cases, knowledge has been held
to be a concomitant of willfulness. [Fn. omitted.]’
Accordingly, a violation of section 290 requires actual
knowledge of the duty to register. A jury may infer knowledge
from notice, but notice alone does not necessarily satisfy the

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willfulness requirement.” (Id. at p. 752, original italics,
parallel citation omitted.)
The court in Garcia further explained, “This case involves
a legally imposed duty to act. Defendant’s guilt here turns not
on anything he did, but on what he did not do. Moreover, the
registration statute establishes a method of providing notice of
the registration requirement that can easily be documented, as
it was in this case. (§ 290, subd. (b).) Although notice alone
does not satisfy the willfulness requirement, a jury may infer
from proof of notice that the defendant did have actual
knowledge, which would satisfy the requirement.” (Garcia,
supra, 25 Cal.4th at p. 752, italics added.)
In this case, the jury was instructed with CALJIC Nos. 1.202
and 3.30,3 and with a special instruction on failure to
2 CALJIC No. 1.20 told the jury: “The word ‘willfully’ when
applied to the intent with which an act is done or omitted means
with a purpose or willingness to commit the act or to make the
omission in question. The word ‘willfully’ does not require any
intent to violate the law or to injure anyone or to acquire any
advantage.”
3 CALJIC No. 3.30 told the jury: “In the crime charged in
Count I, namely, failure to properly registered [sic] as a sex
offender, there must exist a union or joint operation of act or
conduct and general criminal intent. [¶] General criminal
intent does not require an intent to violate the law. When a
person intentionally does that which the law declares to be a
crime he is acting with general criminal intent even though he
may not know that his act or conduct is unlawful.”

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register.4 There is no CALJIC instruction on this crime,
although there is a new CALCRIM instruction on failure to
register as a sex offender.5 Unlike that instruction, none of
the instructions given in this case required the jury to find
that defendant actually knew that he had a duty to register at
the place where he resided.
However, the evidence showed that defendant had actual
knowledge of the registration requirement. Defendant had
successfully registered for a period of several years. Three
months before leaving his Yuba City address, defendant initialed
an advisement that “If I have no residence address, in addition
to the requirement to register annually within 5 working days of
my birthday, I must update my registration information at least
once every 60 days and register a change of location within 5
working days with the law enforcement agency having jurisdiction
4 Plaintiff’s Special Instruction No. 1 provided in relevant
part: “In order to prove this crime each of the following
elements must be proved: One, a person is required to register
under Section 290 (a)(2) of the Penal Code. [¶] Two, the
requirement to register under Section 290(a)(2) of the Penal
Code is based on a felony conviction. [¶] Three, a person
willfully violated the requirements of Penal Code Section
290(a)(1) by failing to register with the Police Department or
Sheriff’s office having jurisdiction over his residence or
transient location within 5 working days of changing residence
address or becoming transient.”
5 CALCRIM No. 1170 requires as an element: “3. The
defendant actually knew (he/she) had a duty to register as a sex
offender under Penal Code section 290 [within five working days
of his/her) birthday] wherever (he/she) resided.”

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over my location.” The form is evidence of notice, and
defendant’s initials on the form are circumstantial evidence of
his actual knowledge.
Defendant claims this evidence of knowledge is
“particularly weak,” because he initialed “18 separate
provisions” of the form, and jurors could doubt whether he had
remembered them all. The evidence is further weakened by the
Yuba City Police Department’s practice of not giving the
registrant a copy of the initialed form unless requested; there
is no suggestion that defendant requested or received a copy of
the form.
But further evidence of knowledge was presented in the form
of the Yuba City Police Detective’s November 2003 advisement
that defendant needed to register with the Sutter County
Sheriff. The detective testified that she referred defendant to
the Sheriff’s Office to register, and that she “told him he
needed to register with them and not the Yuba City Police.”
Defendant claims the detective’s advisement was
“equivocal,” in that it merely told him: “If you want to
register a Sutter County address, you must go to the Sutter
County sheriff’s department.” (Original italics.) But
defendant’s “if” has no basis in the record; no evidence
suggests he went to the Yuba City Police Department for any
reason other than to register his then-current Sutter County
address.

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Defendant claims the detective’s advisement would not
necessarily lead to actual knowledge, because “a defendant may
fairly be skeptical of what a police officer tells him.” But
even a skeptical defendant would have “actual knowledge” that
the registration requirement existed, at least according to the
officer. Where no steps are taken to confirm or refute the
officer’s statement, regardless of how dubious it may seem, the
defendant has no basis to claim lack of knowledge of the
requirement.
Defendant also claims he misunderstood what the detective
was telling him. In his declaration in support of a new trial,
defendant asserted that if allowed to testify, he would “say
that the police in November 2003 turned me away because I was
homeless when I tried to register.” But the police did not
“turn[]” defendant “away;” rather, they took him into custody
and transported him to the sheriff’s office, thus implying that
he needed to register in some jurisdiction. At most, defendant
could have believed that his homeless status prevented him from
registering in Yuba City. He could not reasonably have believed
that the sheriff would refuse to register him as the city police
had done.6
6 Because the detective’s statement imparted actual
knowledge, it is not necessary to consider defendant’s argument
that he lacked knowledge of the registration requirement prior
to the detective’s advisement, when he went to the Yuba City
Police Department.

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Lastly, defendant claims the omission of an actual
knowledge instruction was prejudicial because it “likely led to
[his] decision not to testify.” In his new trial motion,
defendant claimed his trial counsel had been ineffective for
having failed to allow defendant to testify. However, defendant
presented no declaration or other evidence suggesting that this
was so. Thus, we can only speculate whether defendant would
have chosen to testify had the trial court indicated that it
would give an actual knowledge instruction.
On this record, any reasonable juror would have concluded
that defendant had actual knowledge of the duty to register;
thus, the omission of an actual knowledge instruction played no
part in the jury verdict and was harmless beyond a reasonable
doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [17
L.Ed.2d at pp. 710-711].)
II
Defendant contends the trial court erred prejudicially by
failing to hold an evidentiary hearing to determine whether a
juror committed misconduct when she denied that she was
acquainted with him. We are not persuaded.
Background
Juror No. 132978 was among the first 12 veniremen seated
for voir dire. After the respective counsel introduced
themselves and defense counsel introduced defendant, the trial
court asked, “If any of you are acquainted with either of the
attorneys or [defendant], please, raise your hand.” Juror

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No. 132978 remained silent, and the court moved on to other
questions.
When the trial court asked if any veniremen, their family
members or close friends had been charged with a felony, Juror
No. 132978 said that 10 years earlier her sister had been
charged and had gone to court.
Later, Juror No. 132978 stated that she was a manager at a
Head Start program; her “significant other” was a firefighter;
she had no children; and she had been in the county her whole
life. Shortly thereafter, the jury was sworn.
Following the verdict, defendant moved for a new trial on
the ground, among others, of juror misconduct. In support of
his motion he declared: “4. [Juror No. 132978] was a classmate
of mine at Yuba City High School between 1980 and 1983. [¶]
5. She was always following me around and smiling at me, trying
to get my attention. I found out that she wanted to date me,
but I was not interested. She persisted and I agreed to go out
with her. I then stood her up for the date and never did go out
with her. [¶] 6. I heard from her and others that [the juror]
was very angry with me. She called me an ‘asshole’ and a
‘prick’ and vowed revenge. [¶] 7. Although all of these acts
happened during those high school years, our community is a
small one, and I believe [the juror] still harbors ill will
toward me.”
In opposition, the prosecutor submitted Juror No. 132978’s
declaration as follows: “1. I attended Yuba City High School as

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a student between 1980 and 1983. [¶] 2. When asked during voir
dire in the above-entitled case if I was acquainted with
[defendant], I recalled hearing his name during the time I
attended Yuba City High School as a student. [¶] 3. I have
never been acquainted with the defendant, had no personal
knowledge of him at the time of voir dire, and did not have any
feelings toward him that would have caused me to favor or
disfavor one side over the other in this case. [¶] 4. At the
time of voir dire, I could not recall any information I might
have ever heard about the defendant, aside from hearing his name
as stated above. [¶] 5. I have never had, nor have I ever
pursued, any kind of dating relationship with the defendant.”
At the hearing on the new trial motion, defense counsel
argued that the juror in her declaration “admits she recognized
[defendant] during voir dire, and she didn’t say anything. She
didn’t acknowledge that she knew him.” Defense counsel asserted
that the juror “has apparently undergone some cosmetic dental
work since the time [defendant] knew her, and he didn’t
recognize her at first until after voir dire was over.”
The trial court interrupted counsel, noting, “That’s not
what the declaration says. She said I recall hearing his name
during the time I was in high school, and then it goes on to say
I have never been acquainted with the defendant, have no
personal knowledge of him, didn’t have any feelings toward him.”
Defense counsel continued: “She knew his name. That’s
something that you think you would mention during voir dire when

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you ask if you’re acquainted, if you know the defendant or his
attorneys. All the jurors are asked that. She didn’t say
anything . . . she should have let us know. And by not doing
that, she deprived us to question her and use a peremptory
challenge if we wanted to. [¶] And under the rule the analysis
is to determine whether the information in the declaration from
[defendant] is admissible. . . . He can give testimony today if
necessary and whether the facts he testifies to establish
misconduct. . . . He directly contradicts it. I think her
facts are self-serving. She is in a little trouble if she --
what [defendant] says is true. She withheld it on voir dire.
[¶] And then the third step is to determine whether the
misconduct was prejudicial. And if what [defendant] says is
true and we believe it is true, it is prejudicial. . . . [¶] I
think it would be reasonable for the Court in light of the two
opposing declarations to have her subpoenaed and come here for
some testimony, and for the defense to have some time to try to
find witnesses that can rebut her statement. [¶] So the first
position is that, you know, her declaration is self-serving, and
[defendant] is here and can give testimony and has given
testimony that misconduct has been shown. If the Court feels it
is necessary, we would be willing to take some testimony and
develop it further.”
The court replied, “I see no need for . . . [¶] . . . [¶]
[a] hearing involving the juror.”

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The prosecutor responded, “Starting with juror misconduct,
we need to realize that we cannot fault a juror for answering
the question that we ask and not the question we wish we had
asked. We asked if anyone was acquainted with the defendant,
and the juror’s declaration makes it very clear she did not
consider herself to be acquainted with him. She had never met
him. [¶] The only thing she knew was his name from having
heard it when she was a student at the high school, and that’s -
-that’s not being acquainted with someone. I’ve heard of Brad
Pitt, but I’m not acquainted with him. . . . So there is no
misconduct there, and without any misconduct, there is no need
for -- there is no prejudice. There is no need for a new trial.
I also frankly find it amusing that defendant’s counsel makes
the argument that the juror’s statement is self-serving but
[defendant’s] statement would be reliable, when obviously he has
even more interest in giving a self-serving statement than the
juror does.”
The trial court ruled: “On the declarations as they
pertain to the allegation of jury misconduct, the Court does
find that the declarations are admissible. The Court
specifically finds that the declaration of [J]uror [No.] 132978
is credible, and I find the declaration of the defendant not to
be credible. The Court finds no juror misconduct.”
Analysis
“‘[W]hen a criminal defendant moves for a new trial based
on allegations of jury misconduct, the trial court has

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discretion to conduct an evidentiary hearing to determine the
truth of the allegations. We stress, however, that the
defendant is not entitled to such a hearing as a matter of
right. Rather, such a hearing should be held only when the
trial court, in its discretion, concludes that an evidentiary
hearing is necessary to resolve material, disputed issues of
fact.’ [Citation.] ‘[A hearing] should be held only when the
defense has come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred. Even upon
such a showing, an evidentiary hearing will generally be
unnecessary unless the parties’ evidence presents a material
conflict that can only be resolved at such a hearing.’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 581-582,
quoting People v. Hedgecock (1990) 51 Cal.3d 395, 415.)
In this case, the two declarations were in conflict as to
whether a dating relationship had existed between defendant and
the juror. The conflict was material because, if the
relationship had existed and the juror remembered it during voir
dire, then she committed misconduct by failing to disclose the
relationship. However, the trial court was able to resolve the
conflict by finding the juror’s declaration to be credible and
defendant’s declaration not to be credible. Thus, this was not
the sort of conflict that “can only be resolved at” an
evidentiary hearing. (People v. Brown, supra, 31 Cal.4th at
pp. 581-582.) There was no error.

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III
Defendant contends the trial court erred by imposing the
upper term of imprisonment based on facts that the jury never
found to be true beyond a reasonable doubt. He recognizes that
his contention was rejected in People v. Black (2005) 35 Cal.4th
1238, 1244, and that Black is binding upon this court (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
However, he raises the point in order to preserve it for
possible federal review, noting that the United States Supreme
Court has granted a petition for certiorari raising the issue
whether Black was correct. (People v. Cunningham (2005) 2005
Cal. LEXIS 7128, cert. granted sub nom. Cunningham v. California
(2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47].) For the
reasons stated in Black, we conclude defendant’s contention has
no merit.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
NICHOLSON , Acting P.J.
BUTZ , J.

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