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Filed 3/18/03
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE,


Plaintiff and Respondent,

A093759
v.

DONALD BARKER,
(San Mateo County
Super. Ct. No. SC47136)

Defendant and Appellant.



A jury convicted appellant Donald Barker of one count of willful failure to
register as a sex offender within five working days of his birthday, in violation of
Penal Code section 290, subdivision (g)(2).1 Having dismissed in the interests of
justice nine of appellant's ten prior convictions for purposes of the Three Strikes
Law, the court sentenced him to state prison for a total term of nine years. On
appeal, appellant contends we must reverse his conviction because (1) the trial court
failed to instruct the jury correctly on the knowledge element of a section 290
violation; (2) the trial court erred prejudicially by instructing the jury that forgetting
the statutory registration requirement was not a defense to the charge; (3) the trial
court denied appellant's due process rights by so instructing the jury after it had
allowed appellant to base his defense on having forgotten to register; and (4) there
was insufficient evidence independent of his own extrajudicial admissions to
establish the actual date of appellant's birthday for purposes of conviction. We
conclude that to the extent the trial court did err in instructing the jury, any possible
error was not prejudicial beyond a reasonable doubt; the trial court's instruction on

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

1
forgetting was neither erroneous nor misleading; appellant waived his objection to
the use of his own extrajudicial admissions to establish the date of his birth; and there
was sufficient evidence to support appellant's conviction without reference to his
own extrajudicial statements. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND

Appellant was convicted of forcible rape in March 1979. As a result of this
conviction, he was required pursuant to section 290 annually to update his
registration as a sex offender with the police department of the jurisdiction in which
he resided. As reflected by the records of the San Mateo City Police Department, as
stated on appellant's probation report, and as admitted by appellant himself,
appellant's date of birth was March 5, 1950. At the time relevant to this case,
appellant was consequently obliged under the terms of section 290 to update his sex
offender registration within five working days of March 5 every year.

As shown by the files of the California State Department of Justice and the
San Mateo City Police Department, appellant registered five times as a sex offender
with different jurisdictions, most recently with the San Mateo Police Department on
August 26, 1999. The registration form signed by appellant on that date states that
his date of birth was March 5, 1950, and his place of residence was 15 Ninth Avenue
in San Mateo. It was the standard procedure in the San Mateo City Police
Department to go over the notification material on the registration form with
registrants before they signed and initialed it.

Immediately over appellant's signature on the form is a printed statement
expressly declaring appellant's actual understanding of his mandatory obligations
under section 290. In pertinent part, this statement is as follows: "I am registering in
compliance with Section 290 . . . . I understand my requirement as stated in the
appropriate code sections. When registering pursuant to [section] 290 PC my
requirement to register is for life and I must, within 5 working days: register with the
agency having jurisdiction over my residence address . . . . Annually within five

2
working days of my birthday, I must update my registration address . . . ." On
another form entitled "Registration Change of Address/Annual Update," appellant
again signed a statement stating that "I have been notified of my duty to register" as
a convicted sex offender under section 290. On the reverse of this form, appellant
initialed 16 specific statements acknowledging that he had received notice that,
among other things, his "responsibility to register is a lifetime requirement"; he was
required to register as a sex offender within five working days with the local law
enforcement agency having jurisdiction of his residence every time he changed his
address; and that he must annually, within five working days of his birthday, update
his registration at the law enforcement agency having jurisdiction over his location or
place of residence.

In early March 2000, San Mateo Police Officer Al Baccei was assigned to
process the registration of convicted sex offenders within the jurisdiction of the San
Mateo Police Department. While checking to see if the Department's sex offender
registrations were current, he noticed that appellant's birthday was March 5. As a
result, the "window" for appellant to register was from Monday, February 28, 2000,
through Friday, March 10, 2000.

On Monday, March 13, 2000, after appellant had failed to register within the
statutory time period, Officer Baccei attempted to telephone him at his last known
address at Project 90, a men's residential alcohol and recovery program where
appellant had been living since August 1999. Appellant returned Officer Baccei's
telephone call about 15 minutes later. They arranged to meet each other at the Police
Department later that same day to discuss appellant's registration.

Appellant came to the Police Department within an hour of the telephone call.
Officer Baccei's interview with appellant was tape recorded and subsequently
transcribed. In the interview, appellant affirmed that his date of birth was March 5,
and acknowledged that he was required to comply with the annual registration
requirement within five days of his birthday. Asked why he had not called to make

3
an appointment to register, appellant said it was "because I'm in a program. I'm a
house manager. . . . And it keeps me busy all the time." Although appellant
acknowledged his awareness that he was required "once a year" to register "on my
birthday," he failed to do so this time because he was "too busy." Appellant further
explained: "Well, you know what, I totally forgot about it, I'm not going to make up
no excuses." In addition, appellant told Officer Baccei that although he had been
living at 15 Ninth Avenue when he last registered on August 26, 1999, he had moved
to 14 South Norfolk Avenue about a month before the date of the interview on
March 13, 2000. Appellant acknowledged knowing that he was required to notify
the Police Department whenever he changed his residence. Asked whether he had
failed to notify the police about this change of address because he "[j]ust forgot or
[was] too busy," appellant stated that he had "no excuse" for his failure. Asked if the
police had read the registration requirements to him the last time he had updated his
registration, appellant denied that they had been read to him. Appellant
acknowledged having read the requirements before signing and initialing the form,
"but vaguely." Officer Baccei placed appellant under arrest for failing to register in
accordance with the time requirements of section 290.

David Meeds, program director at Project 90, testified that both 15 Ninth
Avenue and 14 South Norfolk Avenue were addresses of rehabilitation facility
residences at which appellant had been housed since joining the program in August
1999. He also explained that after successfully completing the program in December
1999, appellant had received special training and become a house manager. In his
defense, appellant offered the testimony of Meeds and James Stansberry, the
executive director of Project 90, regarding appellant's duties as house manager and
his full schedule involving 16 to 18 hours of work on a typical work day.

By information filed on April 10, 2000, and amended on October 11, 2000,
appellant was charged with two counts of willfully failing to register as a sex
offender in violation of section 290, subdivision (g)(2), with 10 prior convictions

4
alleged for purposes of the Three Strikes Law and three priors alleged for purposes
of section 667.5, subdivision (b). Count one charged appellant with failing to update
his registration within five working days of his birthday; count two charged him with
failing to do so within five working days of changing his residence.

Jury trial commenced on October 10, 2000. On October 13, the jury found
appellant guilty of failing to register within five working days of his birthday as
charged in count one, but acquitted him of the charge in count two. Appellant
waived jury trial on the priors, and the trial court found all the alleged prior
convictions true. After denying appellant's motion for a new trial, the trial court
dismissed all but one of appellant's prior "strike" convictions in the interests of
justice pursuant to section 1385. It then sentenced appellant to state prison for a total
term of nine years as follows: the upper term of three years on count one, doubled
under the Three Strikes Law to six years, plus three consecutive one-year terms as to
the prior prison terms charged pursuant to section 667.5, subdivision (b). This
appeal timely followed.
INSTRUCTIONS ON KNOWLEDGE AND WILLFULNESS

Appellant first contends that the trial court erred in violation of the federal and
state constitutions by failing to give correct jury instructions on the element of
knowledge, and instead instructing that ignorance of or forgetting the law is not a
defense to a charge of violating the registration requirements under section 290. We
conclude the instructions given by the trial court were correct and not misleading.
To the extent the trial court's instructions were either misleading or erroneous, we
conclude the error was harmless beyond a reasonable doubt.

We begin with the requirements of the statute at issue. As amended in 1996,
1997 and 1998, and in effect at the time appellant registered in August 1999, section
290 provided in pertinent part that every person convicted of an enumerated sex
offense is required "for the rest of his . . . life while residing in . . . California . . . to
register . . . within five working days of coming into, or changing his . . . residence or

5
location within, any city, county, or city and county . . . in which he . . . temporarily
resides." (§ 290, former subd. (a)(1)(A), as amended by Stats. 1996, ch. 909, § 2;
Stats. 1997, ch. 821, § 3; Stats. 1997, ch. 821, § 3.5; and Stats. 1998, ch. 930, § 1.1;
see § 290, present subd. (a)(1)(A).) In addition, "[b]eginning on his . . . first birthday
following registration or change of address, the person shall be required to register
annually, within five working days of his . . . birthday, to update his . . . registration
. . . , including, verifying his . . . name and address, or temporary location, on a form
as may be required by the Department of Justice." (§ 290, former subd. (a)(1)(C), as
amended by Stats. 1997, ch. 821, § 3.5 and Stats. 1998, ch. 930, § 1.1; see § 290,
present subd. (a)(1)(D).) A person required to register because of a felony conviction
who "willfully violates" the registration provisions "is guilty of a felony and shall be
punished by imprisonment in the state prison for 16 months, or two or three years."
(§ 290, former subd. (g)(2), as amended by Stats. 1994, ch. 867, § 2.7; see § 290,
present subd. (g)(2).)

The trial court instructed the jury on the elements of the charged offense,
telling them that in order to convict appellant the prosecution was required to prove
that appellant "was notified" of the statutory registration requirements of section 290,
and that he "willfully failed to register with the law enforcement agency where he
lives within five working days of his birthday." With regard to the element of
willfulness, the trial court instructed the jury in the language of CALJIC No. 1.20
that "[t]he 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 another, or to acquire any advantage." In addition, the trial court
instructed on the concurrence of conduct and general criminal intent in accordance
with CALJIC No. 3.30, as follows: "In the crime[s] charged in the Information there
must exist a union or joint operation of act or conduct and general criminal intent.
General intent does not require an intent to violate the law. When a person

6
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."

Appellant contends that in giving the above instructions, the trial court
committed at least two "major instructional errors": (1) it failed to include in its
instructions on willfulness the requirement that appellant be proven to have had
actual knowledge of his duty to register; and (2) by instructing on general criminal
intent in accordance with CALJIC No. 3.30, it effectively instructed the jury that
"ignorance of the law is not an excuse." In support of its argument, appellant cites
our Supreme Court's opinion in People v. Garcia (2001) 25 Cal.4th 744. That
decision held that actual knowledge of the duty to register is an element of any
charge of violating the registration requirements of section 290; a failure to register
did not violate section 290 if the defendant had no actual knowledge of the
registration requirement; and in any case charging a violation of section 290, it is
error to give an instruction that " `ignorance of the law is no excuse.' " (Id. at
pp. 752-754.)2

2 "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. . . . [A] sex offender is guilty of a
felony only if he `willfully violates' the registration or notification provisions of
section 290. [Citations.] The word `willfully' implies a `purpose or willingness' to
make the omission. [Citation.] Logically one cannot purposefully fail to perform an
act without knowing what act is required to be performed. . . . `[T]he 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. . . .' 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 willfulness
requirement." Garcia, supra, 25 Cal.4th at p. 752.
"Accordingly, we conclude the [trial] court's instructions on `willfulness' should
have required proof that, in addition to being formally notified by the appropriate
officers as required by section 290, in order to willfully violate section 290 the
defendant must actually know of his duty to register. We also conclude that the court
erred in giving an `ignorance of the law is no excuse' instruction (CALJIC No. 4.36),
which on its face would allow the jury to convict defendant of failing to register even
if he were unaware of his obligation to do so. . . . [A]lthough the `no excuse'

7

In addition, appellant cites the recently published decision of People v. Edgar
(2002) 104 Cal.App.4th 210. In Edgar, Division Two of this court concluded that
"like the ` "ignorance of the law is no excuse" ' instruction (CALJIC No. 4.36) given
in Garcia, the general intent instruction given here (CALJIC No. 3.30) `on its face
would allow the jury to convict [appellant] of failing to register even if he were
unaware of his obligation to do so.' [Citation.]" (Edgar, supra, 104 Cal.App.4th at
p. 219.) On this basis, the Edgar court held that the same instructions given in this
case--i.e., CALJIC Nos. 1.20 and 3.30, in combination with general instructions on
the elements of the offense under section 290--"were erroneous in that they failed to
clearly state that a conviction required actual knowledge of the duty to register."
(Ibid.)3

principle is `deep in our law, . . . due process places some limits on its exercise.'
[Citations.] In the registration act context, the jury must find actual knowledge of the
act's legal requirements." (Id. at p. 754.)
3 We note that Edgar is distinguishable from this case on its facts. In Edgar, there
was substantial evidence that although the defendant had acquired one or more
additional addresses during the relevant time period, he had never abandoned the
original residential address at which he had previously registered. Because during
the time applicable to Edgar neither section 290 itself nor the registration documents
given to the defendant addressed the issue of multiple residences, Division Two
concluded he did not have clear notice of what he had to do to comply with his
registration responsibilities under the statute, and the trial court's jury instructions
effectively imposed criminal liability for failing to register "without any need for the
jury to find that [the defendant] actually knew the law required him to register
multiple residences." (Edgar, supra, 104 Cal.App.4th at p. 220.) Moreover, even
though there was evidence at trial that the defendant had actual knowledge of his
general duty to register a change of address with the appropriate law enforcement
agency, there was no evidence showing he also knew that his acquisition of a
temporary second residential address (at a transient hotel or homeless shelter)
constituted a "change in residence" for purposes of section 290, requiring registration
of the new address. On this basis, Division Two "concluded that the trial court's
instructions together with the evidence adduced at trial make it highly unlikely that a
properly instructed jury would have found that [the defendant] actually knew of the
requirement to register his additional addresses." (Id. at pp. 221-222, fn. 13.)

8

The trial court's instructions must be construed together as a whole. (People
v. Castillo (1997) 16 Cal.4th 1009, 1016.) On our reading, the instructions
sufficiently advised the jury of the necessary elements of the charged offense,
including actual knowledge. Thus, the trial court instructed the jury not only that the
prosecution was required to prove that appellant "willfully" failed to register, but that
in this context "willfully" meant the prosecution had to prove beyond a reasonable
doubt that appellant had "a purpose or willingness . . . to make the omission in
question." (CALJIC No. 1.20, italics added.) This instruction simply and correctly
restates the statutory definition of "willfully" as set forth in section 7, subdivision 1.4

The circumstances before us are clearly different. Here, there were no multiple
simultaneous residential addresses, with the corresponding issue of whether the
section 290 registration requirement applies to them. Unlike the defendant in Edgar,
appellant admitted having received advisement of the registration requirement
applicable to his actual residential situation. There was no evidence presented at all
to show that appellant did not receive and understand his obligation to re-register.
The central issue in this case was whether appellant's registration requirement was
excused because it happened to slip his mind. Edgar did not address this issue, and
its holding is not authority for appellant's contention that forgetfulness is a valid
defense to a section 290 charge.
4 In pertinent part, section 7 provides as follows: "The following words have in this
code the signification attached to them in this section, unless otherwise apparent
from the context: [¶] 1. The word `willfully,' when applied to the intent with which
an act is done or omitted, implies simply a purpose or willingness to commit the act,
or make the omission referred to. It does not require any intent to violate law, or to
injure another, or to acquire any advantage." (Italics added.)
We do not read the statutory definition as being inconsistent with the Supreme
Court's holding that it was error to instruct the jury that ignorance of the law is no
excuse. The statement in section 7 that willfulness "does not require any intent to
violate law" simply makes clear the fact that the crime at issue is a general intent
crime, and that no specific intent or mental state is required. (People v. Johnson
(1998) 67 Cal.App.4th 67, 71-72.) This language in section 7 does not in any way
imply that ignorance of that law may be an excuse; nor does it contradict the
Supreme Court's holding that "[i]n the registration act context, the jury must find
actual knowledge of the act's legal requirements." (Garcia, supra, 25 Cal.4th at
p. 754.) One may have actual knowledge of the statutory registration requirement

9
As the Supreme Court stated in Garcia, "one cannot purposefully fail to perform an
act without knowing what act is required to be performed." (Garcia, supra, 25
Cal.4th at p. 752.) By implication, therefore, the trial court's instruction on
willfulness informed the jury that in order to convict appellant of failing to register,
the prosecution had to prove that appellant had knowledge of the act he was
obligated to perform, and purposefully failed to comply with his annual registration
requirement. (See People v. Johnson (1998) 67 Cal.App.4th 67, 71-73.)5

Moreover, unlike in Garcia, the jury in this case was not instructed that
"ignorance of the law is no excuse." (CALJIC No. 4.36; Garcia, supra, 25 Cal.4th at
pp. 751, 754.) Contrary to appellant's assertion, the instruction on general criminal
intent given pursuant to CALJIC No. 3.30 did not so instruct the jury. CALJIC
No. 3.30 does state that so long as an accused intentionally does that which the law
declares criminal, he "is acting with general criminal intent, even though [he][she]
may not know that [his][her] act or conduct is unlawful." However, this is a very
different statement than one implying that a person accused of willfully failing to
perform a legally required act need not know of the obligation he is legally required
to perform, such as the duty to update a sex offender registration. CALJIC No. 3.30
does not convert a general intent offense into a strict liability one as to which
ignorance of the law is no excuse; it simply states that a defendant need not intend to
violate the law to be guilty. (People v. Johnson, supra, 67 Cal.App.4th at pp. 71-73.)

and yet willfully fail to comply without any specific intent to violate the law. All
that is required for violation of section 290 is a willing failure to register, without any
other specific intent or mental state. (People v. Johnson, supra, 67 Cal.App.4th at
p. 72.)
5 To this extent, we respectfully disagree with that portion of the opinion of our
colleagues in Division Two of this court stating that the trial court's instructions to
the jury in that case--which included both CALJIC No. 1.20 and CALJIC
No. 3.30--"did not tell the jury about the necessity that [the defendant] purposefully
violate the registration statute." (Edgar, supra, 104 Cal.App.4th at p. 220.)

10
Section 290 is not a specific intent crime, and appellant does not so contend.6 (Id. at
p. 72 [because section 290 simply prohibits willful failure to register and contains no
other intent language, it "is unquestionably a general intent offense"].) There was
therefore no error in instructing the jury, in effect, that appellant did not have to
intend to violate section 290 to be convicted of failing to register.

In short, we conclude that, read in combination with the CALJIC No. 1.20
instruction on willfulness, the trial court's general intent instruction pursuant to
CALJIC No. 3.30 did not mislead the jury. "The general intent instruction required
an `intentional' failure to register. The `willful' instruction required a `purpose or
willingness' to make the omission." (People v. Johnson, supra, 67 Cal.App.4th at
p. 73.) Together, these two instructions correctly informed the jury that in order to
be convicted of violating section 290, appellant had to have knowledge that he was
required to register. There was no error.

Even if we were to conclude the trial court's use of the CALJIC No. 3.30
instruction wrongly informed the jury either that the prosecution did not have to
prove appellant had actual knowledge of his duty to register or that ignorance of the
law was no excuse--a conclusion which, we reiterate, we do not make--the question
remains whether any such error would be prejudicial. Despite its holding that the
trial court had erred both in failing to instruct on the element of actual knowledge
and in giving an instruction that ignorance of the law was not a defense to the charge
of failing to register under section 290, the Garcia court nevertheless concluded the
error in that case was harmless beyond a reasonable doubt. The Supreme Court
found the prosecution had presented "strong evidence" that the defendant actually
knew of the registration requirements, based on his signing of the written
notifications thereof and the jury's implied finding pursuant to other properly given
instructions that the defendant had read and understood these notifications. (Garcia,
supra, 25 Cal.4th at p. 755.)

6 At oral argument, counsel for appellant acknowledged that the offense at issue in
this case is a general intent crime.

11

In the instant case, as appellant himself concedes, the undisputed evidence
shows he was given actual notice of the registration updating requirement. Although
notice alone does not prove actual knowledge of the registration requirement, there is
also overwhelming evidence in the record that appellant did actually know about the
annual updating requirement. The record shows that when he updated his
registration in August 1999, appellant signed forms attesting that he had been
notified and was aware of his lifetime obligation as a convicted sex offender under
section 290 to update his registration annually "within 5 working days" of his
birthday. In connection with the same registration update, appellant initialed no
fewer than sixteen clearly legible and straightforward statements again
acknowledging that he had received notice of his lifetime responsibility to register as
a sex offender with local law enforcement agencies annually within five working
days of his birthday and also within five working days of every change of his
address.

Neither was this the first notification appellant had received of the registration
requirements. The record shows appellant had signed numerous sex offender
registration forms in the past, dating back to 1988. When he registered in 1998, he
signed a form which specifically notified him of the then-new statutory requirement
that he update his registration annually within five working days of his birthday.
Similar forms signed by appellant in 1996 and 1997 also mentioned the yearly
updating requirement. Finally, appellant's own statements to Officer Baccei on
March 13, 2000, clearly show that appellant had actual knowledge of the annual
registration updating requirement, even if that information may have "skipped" his
mind. On the basis of this record, we conclude that there was no evidence on the
basis of which a rational fact finder could find that appellant did not have actual
knowledge of his duty to update his registration on his birthday. Thus, we conclude
that any possible error in failing to instruct the jury on the knowledge element of
section 290, or in giving the general intent instruction under CALJIC No. 3.30, was

12
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24; People v. Garcia, supra, 25 Cal.4th at p. 755; People v. Flood (1998) 18 Cal.4th
470, 502-503.)
FORGETFULNESS AS A DEFENSE

During jury deliberations, the trial court gave an additional instruction to the
jury in response to the following written question sent by the jurors to the trial judge:
"Is forgetting to regester [sic] a `willfull' [sic] act according to the law." After
extended colloquy with both trial counsel, the trial court instructed that "forgetting to
register by itself does not provide a defense to a charge of willful failure to register."
Appellant argues that the trial court erred by instructing the jury during deliberations,
in response to the jurors' own written question, that forgetting to register was not "by
itself" a defense to the charge of willful failure to register. In pursuing this
argument, appellant urges that this court undertake a painstaking legal and factual
analysis of the evidence to ascertain the precise degree of his own forgetfulness.
Thus, he insists that it is not clear whether his obligation to update his registration
had merely slipped his mind--in which case, it could be said he actually knew it, but
had simply failed to bring that actual knowledge to mind at the appropriate time--or
whether instead he had completely forgotten his registration obligation and had lost
the ability to recall it altogether, and consequently might not be said to have actual
knowledge thereof.7

Appellant's suggested exercise, although intellectually intriguing, is both
factually and legally irrelevant. Factually, appellant's own statements to Officer
Baccei clearly acknowledged his actual awareness of the requirement that he update
his registration annually within five working days of his birthday. Although he
claimed the requirements were not read to him when he signed the previous

7 Appellant also suggests a third or intermediate kind of forgetfulness, of the kind
where a person is aware he or she cannot remember some needed information, and
merely needs a means of refreshing or "prompting" his or her recollection to bring it
immediately to mind. There is no evidence of this kind of forgetfulness in this case.

13
registration form in 1999, he admitted reading and "vaguely" remembering them.
When Officer Baccei read all the detailed requirements and notifications to appellant
again "so you remember them so we don't have any problems in the future,"
appellant said his recollection of them was "coming back" to him. The only excuse
he offered for his failure to register was that his duties as a house manager at Project
90 kept him "too busy," so that he "totally forgot about it." Indeed, he expressly
acknowledged that his failure to update his registration "was my fault." On their
face, these statements conceded that appellant's actual knowledge of the annual
registration requirement just slipped his mind, i.e. he simply failed to remember to
update his registration when he needed to do so. As even appellant appears to
acknowledge in his brief on this appeal, this kind of common, everyday forgetfulness
does not negate the actual knowledge required for willfulness.

In any event, we are of the opinion that--as a matter of law--forgetting, by
itself, does not negate willfulness for purposes of a charge of violating the
registration updating requirement of section 290. Because one cannot forget
something one does not already know, the fact one has forgotten something
necessarily presumes actual knowledge. There is a fundamental difference between
a claim, like the one made by the defendant in Garcia, that one did not know about
the registration requirement, and the claim made by appellant in this case that he
simply forgot to register. The latter claim in reality amounts to a tacit admission of
actual knowledge of the registration requirement. As stated in the recent opinion in
People v. Cox (2002) 94 Cal.App.4th 1371 (Cox): "[W]ithin this context one
willfully fails to register when possessed of actual knowledge of the requirement he
or she forgets to do so. [¶] . . . [¶] . . . [T]he Legislature has created a registration
scheme that places strict demands not only on registrants but also on state and local
agencies. . . . In the face of such rigorous notification and registration requirements,
it is unreasonable to believe that . . . the Legislature intended that a mere lapse of
memory would excuse a failure to register. There are simply some things that cannot

14
be forgotten. To allow forgetfulness to excuse a failure to register, would serve, in
this context, as an incentive not to remember." (Cox, supra, 94 Cal.App.4th 1371,
1376-1377.)8

Section 290 imposes a statutory obligation to register and re-register at certain
times and under enumerated conditions. As is the case with any legal obligation,

8 "We conclude there is a fundamental difference between Garcia's claim [in People
v. Garcia, supra, 25 Cal.4th 744] that he did not know he was required to register
and appellant's claim that he forgot to register. Forgetting presupposes knowledge.
Appellant, in our view, conceded that he had actual knowledge of the registration
requirement. Human beings store in their brains a myriad of facts. At any given
time the vast majority of those facts are in storage waiting for some cue to bring them
to conscious recognition. A spouse may forget a wedding anniversary, a patient a
medical appointment; such lapses arise not from a lack of actual knowledge but a
failure to respond to cues. Persons keep calendars and appointment books, ask
others to remind them of duties and obligations and tie strings around their fingers all
to insure that important responsibilities are met. We conclude that within this
context one willfully fails to register when possessed of actual knowledge of the
requirement he or she forgets to do so.
"We think it is inconceivable the Legislature could have intended otherwise.
Because the Legislature believed it is essential the authorities know at all times the
whereabouts of those who have been convicted of committing sex offenses, it has
created a demanding and rigorous registration scheme. [Citation.] [¶] . . . [¶]
"The Legislature obviously believes it is of great importance that those who have
committed qualifying sex offenses be readily available for police surveillance.
[Citation.] To this end the Legislature has created a registration scheme that places
strict demands not only on registrants but also on state and local agencies. The
legislation also contains strict requirements for notification to registrants of their
obligations under section 290. In the face of such rigorous notification and
registration requirements, it is unreasonable to believe that in this context the
Legislature intended that a mere lapse of memory would excuse a failure to register.
There are simply some things that cannot be forgotten. To allow forgetfulness to
excuse a failure to register, would serve, in this context, as an incentive not to
remember.
"The willfulness element of section 290 requires actual knowledge of the
registration requirement. We take that to mean that the defendant has become
actually aware of the duty to register. Once a person is made aware of the
registration responsibility, he or she may not defend on the basis that the requirement
simply `slipped' his or her mind." (Cox, supra, 94 Cal.App.4th at pp. 1376-1377.)

15
inherent in that statutory mandate is the duty not to forget to perform it. In contrast
to the kind of subjective "forgetfulness" defense argued by appellant here, under the
statutory definition of "willfully" found at section 7, subdivision 1, an omission to
act would not be "willful" if objective circumstances beyond the defendant's control
prevented him from acting. For example, a debilitating injury, illness or mental
infirmity might objectively prevent a defendant from registering in timely fashion,
thereby rendering "unwillful" the defendant's failure to register in compliance with
the strict time deadlines of section 290, and providing a defense whether or not the
defendant had also simply forgotten his obligation to register.9 Mere forgetfulness,
however, does not rise to the level of such an objective circumstance preventing
compliance with the statute. Whether the obligation has simply slipped the
individual's mind is essentially irrelevant, because he was at all times obliged not to
let that happen. Without an objective circumstance preventing compliance with the
statutory obligation, a mere subjective failure to remember to do so therefore remains
"willful." (Cox, supra, 94 Cal.App.4th at pp. 1376-1377; Cf. People v. Johnson,
supra, 67 Cal.App.4th at p. 73 [instructions permitted jury to find that failure to
register was not willful, but the result of "misinformation and lack of
transportation"].)

The dissent asserts that Cox reads the term "willfully" out of Penal Code
section 290, and is in conflict with Garcia. We respectfully disagree. In the first
place, we note that there is no California law or case authority holding that
forgetfulness is a defense to a charged crime of willful omission to perform a
statutory duty. The only case authority directly addressing this precise issue is Cox.

In this regard, we find the history of the Cox decision instructive. The
original decision by Division One of the Fourth District Court of Appeal in People v.

9 Certainly, if appellant was hospitalized or snow-bound at a remote location, his
failure to appear at the police station and register would not have been done
willingly. Here, however, appellant had the ability to do what the law required. He
willingly--that is, willfully--chose to do other things for five days. Knowing his
obligation and willfully choosing to do other things, he broke the law.

16
Cox was filed in November 1999 and published at 76 Cal.App.4th 9. In August
2001, after ordering the decision depublished and granting review, the Supreme
Court ordered the case transferred back with directions that the court of appeal vacate
its prior decision and reconsider the appeal in light of Garcia. (People v. Cox,
review granted, cause transferred to Court of Appeal with instructions Aug. 8, 2001,
S084020.) The court of appeal published its reconsideration of the appeal at 94
Cal.App.4th 1371, duly analyzing Garcia's impact, and holding squarely that
forgetfulness is not a defense to a charge under section 290. It is that decision upon
which we rely herein. Although the defendant again petitioned for review of that
decision, the Supreme Court denied review and allowed the opinion to remain
published. (People v. Cox, review denied Mar. 20, 2002, S104197.) We view the
court of appeal's published decision in Cox as the most recent, and therefore
controlling, authority on this question.

In any event, we are in substantial agreement with the holding and result in
Cox. Although under Garcia, knowledge is required for willfulness, forgetting a fact
does not negate the preexisting knowledge thereof. To the contrary, forgetfulness
requires the preexistence of knowledge, since one cannot forget something unless
one already knows it. Knowledge is defined as "the fact of knowing a thing," or
personal acquaintance with some fact or thing. (8 Oxford English Dict. (2d ed.
1989) p. 517.) The opposite of knowledge is ignorance. Because knowledge of the
registration requirement is a necessary element of the crime as defined by section
290, subdivision (g), in this instance ignorance of the law must be a defense to a
charge of failing to register under section 290. However, forgetfulness is neither a
loss of knowledge, nor a form of ignorance. Although forgetfulness may temporarily
or momentarily negate the immediate awareness that one must undertake a given
action at a given time, it does not alter or affect the underlying knowledge that such
action is required. If someone forgets something he or she already knows, a simple
reminder is generally sufficient to restore the preexisting knowledge to awareness.

17
Thus, one may know that one has an obligation, even if one has a temporary lapse in
awareness thereof at the particular moment the obligation is due to be performed. In
contrast, if one does not know something in the first instance, no amount of
reminding will bring it to awareness until actual knowledge of the fact is imparted.
Forgetting something is fundamentally different from not knowing that thing.

The dissent states that the term willfully as used in section 290, subdivision
(g) "has meaning only if it is interpreted to require a conscious determination not to
register, as distinguished from inadvertence or forgetfulness, in order to impose
criminal liability." Once again, we respectfully disagree. A "conscious
determination not to register" is an example of the kind of specific intent or mental
state that is not required in a general intent crime like the one at issue. (People v.
Johnson, supra, 67 Cal.App.4th at pp. 71-72.) The element of willfulness simply
requires that the defendant have actual knowledge of the registration requirement. It
does not create any additional element of a specific intent not to register. Because
section 290 is a general intent crime, conviction requires proof only that a defendant
failed to register despite having knowledge of the registration obligation. (Ibid.)
The "willfulness" requirement does not protect a properly informed and
knowledgeable defendant from criminal liability if the obligation inopportunely slips
his mind.10

10 Quoting from the concurring opinion in a Florida appellate case, the dissent avers
that "[s]imply as a matter of common understanding, there is no doubt that `merely
forgetting to do an act does not equate with intentionally and willfully refusing to do
it.' [Citation.]" Even if one may agree with this thought in the abstract, it does not
address the statute at issue. The question before us is not whether "merely
forgetting" to register equates with "intentionally and willfully refusing" to comply
with the statute. Section 290 does not require that a defendant intentionally and
willfully refuse to register; it simply requires that he or she willfully fail to do so.
(Garcia, supra, 25 Cal.4th at pp. 751-752.) A willful failure to do something is not
the same thing as a refusal. The first simply requires knowledge of the required act;
the second implies an active intent to frustrate its fulfillment. We can find no
authority for the proposition that by using the word "willful," section 290 requires
proof of this kind of active intent to thwart the statute by refusing to perform the
registration obligation. To the contrary, no such specific intent is required for

18
By
following
Cox in ruling that forgetfulness is not a defense to the charge in
this case, we neither transform failure to register into a strict liability offense, nor do
we eliminate general intent as an element of the crime. In a strict liability crime,
ignorance of the law is no excuse, and one may be convicted even in the absence of
any knowledge of the requirements of the statute. Failure to register would be a
strict liability offense only if knowledge of the statutory obligation were not
required. However, as seen, one may not be guilty of a violation of section 290 if
one is ignorant of the law. (Garcia, supra, 25 Cal.4th at p. 754.) Moreover, the only
intent required for a general intent offense like the one at issue in this case "is the
purpose or willingness to do the act or omission." (People v. Johnson, supra, 67
Cal.App.4th at p. 72, italics added.) Thus, "[t]he willfulness element of Penal Code
section 290 is satisfied by a purposeful or willing omission." (Ibid., italics added.)
Because forgetfulness neither negates knowledge nor constitutes ignorance, a
defendant will be liable for failing to register once it is established that he had actual
knowledge of the statutory obligation to do so, regardless of whether he temporarily
forgot. He willfully--i.e., willingly--failed to assume a responsibility to abide by
the law of which he cannot be said to have been ignorant. Here, it is clear that
appellant had actual knowledge of the registration requirement. Yet he did not take
that requirement seriously enough to do whatever it took to remember to abide by the
law. He was willing to risk the omission, and must pay the penalty for that willful
failure.

Contrary to the dissent, the crime of perjury is not analogous to the offense of
failing to register in compliance with section 290. Unlike the crime at issue, perjury
is a crime of commission rather than omission. Perjury requires the willful act of
stating as unqualifiedly true some material matter which the defendant either knows
to be false, or does not know to be true. (§§ 118, 125.) Thus, the element of

commission of a general intent crime like the one at issue in this case. (People v.
Johnson, supra, 67 Cal.App.4th at pp. 71-73.)

19
willfulness in perjury requires proof the defendant made the statement with the
consciousness that it was false, or else with the consciousness that he did not know it
was true and with intent that it should be received as a statement of true fact.
(People v. Hagen (1998) 19 Cal.4th 652, 663-664 (Hagen); People v. Von Tiedeman
(1898) 120 Cal. 128, 135; People v. Tolmachoff (1943) 58 Cal.App.2d 815, 821.)
The willfulness element of perjury does not make forgetfulness a defense thereto.
The key to perjury is the honesty of the witness's testimony concerning facts, not
whether or not the witness has forgotten the facts. If one simply forgets one's former
knowledge of the facts, one may still testify truthfully that one is unable to recall
them, and avoid committing perjury. On the other hand, if a person has forgotten the
facts and nonetheless goes ahead and testifies thereto not knowing whether his
testimony is true or false, he has committed perjury. (§ 125.) Moreover, unlike the
offense of failing to register, conviction of perjury does not require proof that the
defendant had actual knowledge of the requirements of the perjury statute. There is
simply no similarity between the two crimes, and the elements of perjury offer no
support for the alleged defense of forgetfulness.

The dissent also analogizes to duties arising in the context of federal statutes
dealing with taxation, immigration and military selective service. We believe that
any analogy between these statutes and the registration requirement at issue is
strained at best. In the principle California case cited by the dissent in support of the
alleged analogy, our Supreme Court itself made clear the fact that "mistake or
ignorance of the penal law is almost never a defense," and any exception to the usual
common law rule that ignorance of law is no excuse has been limited to situations in
which an individual's misunderstanding or ignorance of civil statutory provisions
may be pertinent to some corollary penal sanction. (Hagen, supra, 19 Cal.App.4th at
pp. 660-661, fn. 4.)11 At least according to Hagen, then, the general rule that

11 In Hagen, the Supreme Court affirmed a defendant's conviction for three felony
counts of willfully making and subscribing a tax return without belief in its material
truth under Revenue and Taxation Code, former section 19405, subdivision (a)(1)

20
ignorance of the law is no excuse continues to apply in the context of criminal
statutory duties.

The dissent urges that permitting a defendant to offer forgetfulness as a
defense to the charge of willful failure to register, and instructing the jury to evaluate
the credibility of such a claimed defense, would not impose an insuperable burden on
the prosecution in section 290 cases. Although our disagreement is with the premise
of the dissent's argument--the validity of the claimed forgetfulness defense--we

(now Rev. & Tax. Code, § 19705, subd. (a)(1)). The pertinent statute "punished as a
felony any person who `[w]illfully makes and subscribes any return, statement, or
other document, that contains or is verified by a written declaration that it is made
under the penalties of perjury, and that he or she does not believe to be true and
correct as to every material matter.' [Citation.]" (Hagen, supra, 19 Cal.4th at
pp. 658-659.) Although the Supreme Court held that the use of the word
"[w]illfully" in the statute "created an exception to the common law presumption that
ignorance or mistake of law is no defense" (id. at p. 660), the court was careful to
emphasize that any such exception to the usual common law rule was limited to a
person's misunderstanding or ignorance of the civil, nonpenal provisions of statutes
imposing penal sanctions. "Neither this court nor the federal high court, however,
has suggested that mistake or ignorance of the law operates to excuse what would
otherwise be criminal falsehoods. We hold only that the failure to comply with tax
laws is not a violation of a particular penal statute, former [Revenue and Taxation
Code] section 19405[, subdivision] (a)(1), if the noncompliance is not willful, i.e., if
the taxpayer, in good faith, misunderstands or is ignorant of the pertinent provisions
of the tax law. We agree malefactors cannot be permitted to redefine the criminal
law by their own subjective misconceptions of that law. For that reason, mistake or
ignorance of the penal law is almost never a defense. There are a number of
circumstances, however, in which violation of a penal statute is premised on the
violator's harboring a particular mental state with respect to the nonpenal legal status
of a person, thing, or action. In such cases, the principle is `firmly established that
defendant is not guilty if the offense charged requires any special mental element,
such as that the prohibited act be committed knowingly, fraudulently, corruptly,
maliciously or wilfully, and this element of the crime was lacking because of some
mistake of nonpenal law.' [Citation.] . . . [T]he mistake must be one of nonpenal
law. [Citation.] Thus, a taxpayer may defend against a section 19405(a)(1) charge
on the basis, for example, that he mistakenly believed certain deductions were proper
under the tax laws, but not on the basis that he was unaware it was a crime to lie on
one's tax return." (Hagen, supra, 19 Cal.App.4th at pp. 660-661, fn. 4.)

21
also disagree with the assumption that such a defense might easily be tried in
practice. Even with a carefully crafted instruction, allowing forgetfulness as a
defense places the burden on the prosecution to prove a negative--that the defendant
did not forget the knowledge as claimed. Assuming that it may be relatively easy to
prove intent inferentially from circumstantial evidence, or to infer a defendant's
knowledge from proof of actual notice, the same cannot be said of proving the fact
that a defendant failed to forget something he already knew. Unlike the positive state
represented by actual knowledge of a fact, forgetfulness, or the loss of awareness of a
fact, is itself a negative condition. Inferring the absence of this negative state of
forgetfulness from proof that a defendant was given actual notice of the registration
requirement is far more difficult than inferring the presence of the positive state of
knowledge. Yet each time the prosecution proves that a defendant was given such
actual notice of the registration requirement, the defendant could claim that he
simply "forgot it." The practical difficulties presented in trying to enforce the
dictates of section 290 in the face of this "defense" seem to us all too obvious.

The people of this State, through their Legislature, have imposed in section
290 a yearly registration requirement on convicted sex offenders. The dissent urges
that the consequences of inadvertently forgetting to comply with this requirement are
too "draconian" for the courts to disallow a convicted sex offender from asserting his
alleged forgetfulness as a defense to the charged crime of failing to register. But
there are some responsibilities which are so important they simply cannot be
forgotten. The registration requirement established by section 290, subdivision
(a)(1) is one of these responsibilities. It is fixed and ongoing, and does not expire or
diminish over time. Nor are the consequences of failing to comply ameliorated or
reduced by good behavior or life changes. Appellant owed it to himself as well as to
society to remember to fulfill the statutory responsibility to register annually at the
time of his birthday. He concededly had long-standing actual knowledge of this

22
important responsibility. It was a responsibility the law does not permit him to
forget, or as he initially stated, to ignore because he was "too busy."

In sum, we hold that simply forgetting is not a defense to a charge of violating
section 290, and appellant's present claim that he lacked the necessary willfulness to
commit the charged offense because he forgot the annual registration updating
requirement is meritless. For that reason, the trial court did not err in instructing the
jury that "forgetting to register by itself does not provide a defense to a charge of
willful failure to register." The instruction was a correct statement of the law;
forgetting the mandatory registration requirement of section 290 is simply not a
legitimate defense to the charge of willfully failing to register. Section 290 imposes
a duty upon all registrants, once they have received and understood advisement of
the duty to register, to remember and fulfill that legal obligation. We do not believe
the Legislature intended that a defendant could successfully evade this duty by
claiming that "I totally forgot about it." "The willfulness element of section 290
requires actual knowledge of the registration requirement. We take that to mean that
the defendant has become actually aware of the duty to register. Once a person is
made aware of the registration responsibility, he or she may not defend on the basis
that the requirement simply `slipped' his or her mind." (Cox, supra, 94 Cal.App.4th
at p. 1377.)
ALLEGED UNFAIR PRECLUSION OF DEFENSE

Appellant next asserts that, independent of whether forgetfulness is a
legitimate defense to the charge of willfully failing to register, he was denied due
process of law by the trial court's jury instruction to that effect after appellant "had
been allowed" to offer evidence that he had forgotten to update his registration
because of "how busy he was at Project 90," and had then relied on that evidence in
arguing to the jury that his failure to update was not willful because it was the
product of his forgetfulness. In appellant's words, "[t]he error was not in the content
of the instruction per se but it was the denial of a fair trial by allowing appellant to

23
rely on a defense and then precluding the jury from considering it." Appellant offers
no citations to any authority in support of this creative line of reasoning.

When the jury sent the trial court a message during deliberations asking
whether forgetting to register was a willful act, the court was obliged to answer
according to the law. It had no duty to instruct on a defense unsupported by
substantial evidence (People v. Barton (1995) 12 Cal.4th 186, 201), and certainly
was not permitted to give an instruction that was either misleading or incorrect as a
matter of law. (People v. Ashmus (1991) 54 Cal.3d 932, 994; People v. Gordon
(1990) 50 Cal.3d 1223, 1275.) Contrary to appellant's unsupported assertion, the
trial court was not required to bolster appellant's purported "I forgot" defense by
giving the jury a response in any way suggesting that, despite a defendant's actual
preexisting knowledge of his legal obligation to register, a willful failure to do so
might be excused by sheer forgetfulness. In responding to the jury's note with the
instruction that "forgetting to register by itself does not provide a defense to a charge
of willful failure to register," the trial court simultaneously gave a correct statement
of the law, and avoided the pitfall of misleading the jury. (Cox, supra, 94
Cal.App.4th at pp. 1376-1377.)

Appellant nevertheless insists that even if the instruction was technically
correct, giving it at that stage of the trial "unfairly pulled the rug out from under"
appellant and his counsel, undermining their credibility and appellant's basic defense
at trial. Although a trial court may be precluded from barring or undermining a
particular defense once it has expressly ruled that it was available (cf. People v.
Quartermain (1997) 16 Cal.4th 600, 616-623 [prosecution's use of defendant's
pretrial statement to impeach his trial testimony, in breach of pretrial agreement with
defendant not to use the statement in court, was fundamentally unfair and a violation
of due process]), there is no rule stating that a trial court's silence on a particular
issue may induce a defendant's detrimental reliance thereon and prevent subsequent
jury instructions on that issue unfavorable to the defense. Here, there was no pretrial

24
agreement between the parties or ruling by the trial court permitting appellant to rely
on the defense that forgetfulness may negate willfulness for purposes of section 290.
The trial court simply allowed appellant to present evidence of his duties at Project
90, thereby permitting the jury to draw the inference that appellant was too busy to
remember to register. The trial court's silence on the question whether forgetting
was a defense apparently prompted the jury's inquiry on this point. The trial court's
response to the jury's question was legally appropriate, and appellant was not denied
due process thereby.

Moreover, the trial court's instruction did not preclude the jury from
considering the evidence of appellant's forgetfulness in determining whether his
failure to register was willful. The trial court specifically advised the jury that
forgetting to register "by itself" did not constitute a defense to the charges. The clear
implication of this instruction was that the evidence of appellant's busy schedule and
resulting forgetfulness might, in combination with other evidence bearing on the
issue of willfulness, be considered in determining whether appellant's failure to
update his registration within the statutory time frame was "willful." Thus, the trial
court's instruction did not actually exclude the jury's consideration of appellant's
evidence or defense. It simply--and correctly--stated that forgetfulness alone
cannot negate willfulness.
SUFFICIENCY OF EVIDENCE OF APPELLANT'S BIRTH DATE

Finally, appellant contends that he was denied due process because he was
wrongly convicted without sufficient evidence of the corpus delicti of the offense--
specifically, the actual date of his birth, within five days of which he was obliged to
update his registration--by means of evidence independent of his own extrajudicial
statements. Appellant's contention is meritless.

"Distilled to its essence, the corpus delicti rule requires that the prosecution
establish the corpus delicti of a crime by evidence independent of the defendant's
extrajudicial inculpatory statements before he or she may be held to answer a

25
criminal complaint following a preliminary examination, be convicted of an offense,
or hear the statements repeated as evidence in court. [Citation.] The corpus delicti in
turn consists of at least slight evidence that somebody committed a crime." (People
v. Ochoa (1998) 19 Cal.4th 353, 450.)

Appellant impliedly concedes that with his extrajudicial statements, the
evidence was sufficient to prove his birthday. Indeed, the record contains several
express admissions by appellant that his birthday was on March 5, as well as
abundant police records evidencing that fact. Appellant never objected to the
admission of any of this evidence on corpus delicti grounds. Of equal importance, he
never asserted the insufficiency of the evidence of his birthday based on the corpus
delicti rule.

"By failing to object, [appellant] cannot now complain the evidence was
improperly admitted. [Citation.] It may well be that `proof of the corpus delicti was
available and at hand during the trial, but that in the absence of [a] specific objection
calling for such proof it was omitted.' [Citation.]" (People v. Wright (1990) 52
Cal.3d 367, 404.) "A defendant cannot on review complain of insufficiency of
evidence based on improper admission of corpus delicti evidence where defendant
omitted to interpose a specific objection on the ground of the corpus delicti rule,
especially when `[i]t may well be that "proof of the corpus delicti was [otherwise]
available . . . ." [Citation.]' [Citation.]" (People v. Sally (1993) 12 Cal.App.4th
1621, 1628; see also People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104
[same].) Because he failed to object at trial to the admission of the evidence of his
birth date on the ground of violation of the corpus delicti rule, appellant may not now
for the first time on appeal rely on that rule to attack the sufficiency of the evidence
to support his conviction. (People v. Sally, supra, 12 Cal.App.4th at p. 1628.)

Appellant's current contention is meritless for another reason. To establish
the corpus delicti of an offense, only a "slight or prima facie showing" is required.
(People v. Jennings (1991) 53 Cal.3d 334, 364; see also People v. Ochoa, supra, 19

26
Cal.4th at p. 450; People v. Kraft (2000) 23 Cal.4th 978, 1057; People v. Diaz (1992)
3 Cal.4th 495, 528-529.)12 By this standard, the evidence of appellant's birth date
was plainly sufficient. The records and files of the Department of Justice and the
San Mateo Police Department going back to 1988 consistently refer to appellant's
birth date as March 5, 1950. Contrary to appellant's assertion on this appeal, there is
nothing in the record to support the alleged inference that only he himself could have
been the ultimate source of the birth date information contained in these public
records. The Police Department files were public records, of which "[t]he sources of
information and method and time of preparation were such as to indicate its
trustworthiness." (Evid. Code, § 1280, subd. (c); see People v. Monreal (1997) 52
Cal.App.4th 670, 678.) Even if the ultimate source of this information in the public
records was appellant himself, the fact remains that March 5, 1950, has been
accepted as his actual birth date for as long as he has been obliged to register as a sex
offender. Assuming hypothetically that appellant's own statements were the ultimate
source of this information, certainly the fact it has been accepted as true for over
twelve years by the public, the Department of Justice, and appellant himself is "slight

12 "We reemphasize that the quantum of evidence the People must produce in order
to satisfy the corpus delicti rule is quite modest; case law describes it as a `slight or
prima facie' showing. [Citations.] This minimal standard is better understood when
we consider that the purpose of the corpus delicti rule is `to protect the defendant
against the possibility of fabricated testimony which might wrongfully establish the
crime and the perpetrator.' [Citation.] As one court explained, `Today's judicial
retention of the rule reflects the continued fear that confessions may be the result of
either improper police activity or the mental instability of the accused, and the
recognition that juries are likely to accept confessions uncritically.' [Citation.]
[¶] Viewed with this in mind, the low threshold that must be met before a
defendant's own statements can be admitted against him makes sense; so long as
there is some indication that the charged crime actually happened, we are satisfied
that the accused is not admitting to a crime that never occurred." (People v.
Jennings, supra, 53 Cal.3d at p. 368.)

27
or prima facie" evidence of the truth of that fact, and therefore sufficient for purposes
of the corpus delicti rule.13

In sum, the corpus delicti having been established by competent evidence, we
conclude there was sufficient evidence to support appellant's conviction of the
charged offense of violating section 290.
DISPOSITION

The judgment is affirmed.


_________________________







McGuiness, P.J.


I concur:


_________________________
Corrigan, J.

13 At the time appellant hypothetically provided his date of birth to the authorities,
there was no criminal investigation of his failure to register because he had not yet
committed that offense. A pre-offense statement which does not admit guilt of a
crime or intent to commit one does not in any way implicate the essential rationale of
the corpus delicti rule, which is simply to preclude the admission of an extrajudicial
confession of a crime that never occurred. Thus, even if the ultimate source of the
March 5, 1950, birth date was appellant himself, its use would not contravene the
purpose of the corpus delicti rule. (Cf. People v. Jennings, supra, 53 Cal.3d at
p. 368.)

28
POLLAK, J., Dissenting. -- The majority concludes that if one forgets to do something,
that person has willfully failed to perform the act that he or she has forgotten. This
conclusion and the decision in People v. Cox (2002) 94 Cal.App.4th 1371 (Cox), on
which the majority relies, eliminate the critical element of willfulness from the statute
involved in this case, disregard the legislative history as well as the language of that very
statute, misconstrue controlling authority of the California Supreme Court and, with all
respect, distort fundamental principles of our criminal law. If permitted to stand, I believe
this decision will plant disturbing confusion into an important field of law, as well as
work a grave injustice in this case.

For the reasons explained in People v. Edgar (2002) 104 Cal.App.4th 210, 218-
219 (Edgar), I disagree with the majority's conclusion that the initial instructions given
to the jury on the subject of willfulness (CALJIC No. 1.20) and general intent (CALJIC
No. 3.30) sufficiently advised the jury of the necessary elements of the charged offense,
including actual knowledge. As in Edgar, "[t]he trial court in this case gave the same
willfulness instruction found inadequate in Garcia [(2001) 25 Cal.4th 744] ([s]ee
CALJIC No. 1.20)" and "like the ` "ignorance of the law is no excuse" ' instruction
(CALJIC No. 4.36) given in Garcia, the general intent instruction given here (CALJIC
No. 3.30) `on its face would allow the jury to convict [appellant] of failing to register
even if he were unaware of his obligation to do so.' (People v. Garcia, supra, 25 Cal.4th
at p. 754.)" (Edgar, supra, 104 Cal.App.4th at p. 219.)

However, regardless of the sufficiency of these CALJIC instructions, here, in
response to a specific inquiry in the midst of its deliberations, the jury was instructed that
"forgetting to register by itself does not provide a defense to a charge of willful failure to
register." This supplemental instruction was wrong, and prejudicially compounded the
effect of the error in the initial instructions.

There are numerous reasons for which Cox was wrongly decided. Cox held that
forgetting is not an available defense to the crime of failing to register under Penal Code

1
section 290.1 The Cox court reasoned that "Forgetting presupposes knowledge.
Appellant, in our view, conceded that he had actual knowledge of the registration
requirement. Human beings store in their brains a myriad of facts. At any given time the
vast majority of those facts are in storage waiting for some cue to bring them to
conscious recognition. A spouse may forget a wedding anniversary, a patient a medical
appointment; such lapses arise not from a lack of actual knowledge but a failure to
respond to cues. Persons keep calendars and appointment books, ask others to remind
them of duties and obligations and tie strings around their fingers all to insure that
important responsibilities are met. We conclude that within this context one willfully fails
to register when possessed of actual knowledge of the requirement he or she forgets to do
so." (Cox, supra, 94 Cal.App.4th at p. 1376.) The court then concluded that this
interpretation of the statute is consistent with the public policy embodied in the
registration statute, emphasizing the "great importance that those who have committed
qualifying sex offenses be readily available for police surveillance." (Id. at p. 1377.)

This conclusion reads the critical term "willfully" out of the statute. If correct, Cox
means that once an individual learns of the requirement to register, he (or, rarely, she) as
a matter of law will forever be deemed to retain that knowledge in his consciousness, and
will be held strictly liable for the failure to re-register when required to do so, regardless
of whether the failure results from a conscious decision not to register or from mere
inadvertence. The majority here repeatedly endorses this view that, as a matter of law,
knowledge is permanent, so that once one has been told of the need to register, any
failure to do so when required is necessarily willful as long as the individual is not
physically restrained from complying. (Maj. opn. ante, pp. 14-17.)

Simply as a matter of common understanding, there is no doubt that "merely
forgetting to do an act does not equate with intentionally and willfully refusing to do it."
(Grumet v. State (Fla.Ct.App. 2000) 771 So.2d 39, 44 (conc. opn. of Farmer J.)

1 All statutory references are to the Penal Code unless otherwise indicated.

2
[revocation of probation for failure to register as sex offender as required by Florida
statute remanded for clarification of whether trial court determined that defendant did not
forget requirement].)2 Indeed, the word "forget" is defined as "[t]o omit or neglect
through inadvertence; . . . to cease or omit to think of, let slip out of the mind, leave out
of sight, take no note of" (Oxford English Dictionary (2d ed. 1989)). I shall explore more
fully the meaning of "willfully" in the discussion below, but whatever else the term may
mean, it is the opposite of inadvertently. One who forgets to do something--such as
celebrate a wedding anniversary, or keep a medical appointment, using the examples in
Cox--does not willfully insult their spouse or willfully stand up their doctor. Whatever
the consequences of such an inadvertent omission may be, if one has forgotten, the
omission is not willful.

Appellant was charged with violating section 290, subdivision (g)(2), which
punishes any person required to register under section 290, subdivision (a)(1) based on a
felony conviction "who willfully violates any requirement" of the section. The inclusion
of the qualifier "willfully" was not inadvertent. In tracing the history of section 290, one
finds that the Legislature repeatedly amended the penal provisions of the statute,
generally to include willfulness as an element of the offense when increasing the
punishment. Prior to 1979, former section 290, subdivision (f) provided simply that
"[a]ny person required to register under this section who violates any of the provisions
thereof is guilty of a misdemeanor." (Stats. 1947, ch. 1124, § 1, p. 2562.) Simple failure
to register constituted the misdemeanor; there was no element of willfulness. In 1979,

2 Contrary to the suggestion in the majority opinion that the Florida statute at issue in
Grumet v. State requires a willful "refusal" to support a violation (maj. opn. ante, p. 18,
fn. 10), neither the term "willful" nor "refusal" appears in the Florida statute, which
simply makes the failure to comply with the registration requirement a felony. (Fla. Stat.
§§ 943.0435, 944.607; see Grumet v. State, supra, 771 So.2d at pp. 42-43.) The Florida
court imposed the requirement of willfulness even though not stated explicitly in the
Florida statute, whereas this court refuses to recognize that an inadvertent failure to
comply is not willful even though willfulness is explicitly required by the California
statute.

3
while retaining the first sentence, the Legislature inserted two additional sentences in
subdivision (f), mandating a minimum 90-day period of confinement for persons who
had committed designated sex crimes and "willfully" failed to register as required by the
statute. (Stats. 1979, ch. 944, § 8, p. 3256.)3 Over the years, the penal provisions for
failure to register, now in subdivision (g), were expanded to their present form. (See, e.g.,
Stats. 1989, chs. 1316, 1402, 1407; Stats. 1994, ch. 865, § 1.7, pp. 4351-4352; Stats.
1994, ch. 867, § 2.7, p. 4393; Stats. 1999, ch. 901, § 1.5, pp. 77-78.) Under the current
subdivision (g)(1), one required to register because of a prior misdemeanor conviction or
juvenile adjudication who "willfully violates any requirement of this section" is guilty of
a misdemeanor. Similarly, except as provided in subdivisions (g)(5) and (g)(7), one
required to register based on a felony conviction or juvenile adjudication who "willfully
violates any requirement of this section," is guilty of a felony.4 The exceptions provided
in (g)(5) and (g)(7) are telling. Under subdivision (g)(7), one "who fails to provide proof
of residence," as required, is guilty of a misdemeanor punishable by imprisonment for no

3 As amended, subdivision (f) then read as follows: "Any person required to register
under this section who violates any of the provisions thereof is guilty of a misdemeanor.
Any person who has been convicted of assault with intent to commit rape, oral
copulation, or sodomy, or of any violation of Section 286, 288, 288a, 289, or subdivision
2 or 3 of Section 261, and who is required to register under this section who shall
willfully violate any of the provisions thereof is guilty of a misdemeanor and shall be
sentenced to serve a term of not less than 90 days nor more than one year in the county
jail. In no event does the court have the power to absolve a person who willfully violates
this section from the obligation of spending at least 90 days of confinement in the county
jail and of completing probation of at least one year."
4 Subdivision (g)(2) of section 290 also applies to one who has a prior conviction or
juvenile adjudication for failing to register "and who subsequently and willfully violates
any requirement of this section." Subdivision (g)(3) likewise provides that one
determined to be a mentally disordered sex offender, or one found not guilty by reason of
insanity of a sex crime, "who willfully violates any requirement of this section" is guilty
of a misdemeanor for the first offense and is guilty of a felony for "any second or
subsequent willful violation of any requirement of this section." Subdivision (g)(8)
provides that "[a]ny person who is required to register under this section who willfully
violates any requirement of this section is guilty of a continuing offense."

4
more than six months, and under subdivision (g)(5) a person adjudicated a sexually
violent predator under section 6600 of the Welfare and Institutions Code "and who fails
to verify his or her registration every 90 days as required" shall be punished by
imprisonment for not more than one year.5 Thus, individuals subject to registration who
fail to provide the information referred to in subdivisions (g)(5) and (g)(7) are criminally
liable for the omission whether or not their failure was willful, but these omissions are
not punishable as felonies. Similarly, under subdivision (h), if a person released on parole
or probation is required to register "but fails to do so within the time prescribed," the
parole authority or the court "shall order the parole or probation of the person revoked."
No element of willfulness is required.

Attempts have been made to further amend section 290 to delete willfulness as an
element of the offense of failing to register. (See Assem. Bill Nos. 3513 and 1211 (1993-
1994 Reg. Sess.) §§ 865, 864.) To date, however, all such efforts have been unsuccessful.
In 1994, Assembly Bill No. 3513 was introduced, which sought to "delete the element of
willfulness from the statute requiring sex offenders to register," as well as to increase the
penalty for failure to register from a misdemeanor to a felony. (Assem. Bill No. 3513
(1993-1994 Reg. Sess.) § 865; Assem. Com. on Public Safety, Analysis of Assem. Bill
No. 3513 (1993-1994 Reg. Sess.) Apr. 5, 1994, p. 2.) "The purpose of the bill [was] to
increase the penalties under the sex offender registration statute and to broaden its scope
and application." (Cal. Sexual Assault Investigators Association, Analysis of Assem. Bill
No. 3513 (1993-1994 Reg. Sess.) Aug. 26, 1994, p. 3.) The analysis of the bill given by
the Assembly Committee on Public Safety offered in support of the amendment that
"Section 290 of the Penal Code is not effective in identifying the whereabouts of
previously convicted sex offenders. To make the registration program successful, the

5 In contrast, under subdivision (g)(6) of section 290, except as provided in subdivision
(g)(5) one who "willfully fails to update his or her registration" every 60 days as required
in some circumstances is guilty of a misdemeanor punishable by imprisonment for not
more than six months.

5
sponsor, DOJ [Department of Justice], believes the failure to register should be elevated
to a felony. In this time of limited resources, district attorneys generally do not have the
resources to prosecute misdemeanors. Since failure to register is a misdemeanor, district
attorneys generally do not file complaints for failure to register. As a result, sex offenders
learn if they fail to reregister upon moving, law enforcement will not follow-up. It is
estimated that much of the address information maintained by the DOJ registration
program is out-of-date or incorrect." (Assem. Com. on Public Safety, supra, p. 4.)
However, the bill was amended in the Senate and, as finally adopted, increased the
penalties for a violation but retained the element of willfulness in section 290. (Sen.
Amend. to Assem. Bill No. 3513 (1993-1994 Reg. Sess.) Aug. 9, 1994; Stats. 1994,
ch. 865, § 1, p. 4321; Stats. 1994, ch. 867, § 2.7, p. 4393.)

Thus, the current statute reflects a considered legislative determination that the
failure to comply with the registration requirements constitutes a basis to revoke parole or
probation whether or not the failure was willful, but that only certain failures to comply
with these requirements are subject to an additional criminal punishment in the absence
of willfulness. Most failures to comply, including the more serious failures to register that
constitute a felony, are not subject to the additional penalties that the statute imposes
unless the failure was willful.
Accordingly,
in
Garcia, supra, the Supreme Court rejected the Attorney General's
argument that a violation of the statute is established by proof that a defendant who failed
to register received actual notice of his registration obligations and that "actual
knowledge is not an element of the offense." (25 Cal.4th at p. 751.) The Supreme Court
explained: "a sex offender is guilty of a felony only if he `willfully violates' the
registration or notification provisions of section 290. [Citations.] 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"

6
. . . 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 willfulness requirement."
(Garcia, supra, 25 Cal.4th at p. 752.)

The conclusion reached in Cox and reaffirmed here--in effect, that a defendant is
deemed to know whatever he once knew--is inconsistent with both the language and the
reasoning of Garcia. In Garcia the Supreme Court concluded that "the court's
instructions on `willfulness' should have required proof that, in addition to being
formally notified by the appropriate officers as required by section 290, in order to
willfully violate section 290 the defendant must actually know of his duty to register." (25
Cal.4th at p. 754, italics added.) The court said "know," not "knew" or "have known."
Implicit in the court's analysis is that the defendant must have the necessary knowledge
at the time he was required but failed to register--not at some time in the past. The court
referred to and relied upon the definition of "willfully" that appears in section 7,
subdivision 1, that "when applied to the intent with which an act is done or omitted, [the
term] implies simply a purpose or willingness to commit the act, or make the omission
referred to."6 One does not have a purpose or willingness not to register when one has

6 Section 7, subdivision 1 continues with the following additional sentence: "It does not
require any intent to violate law, or to injure another, or to acquire any advantage."
However, the court concluded that it was error to have instructed the jury that ignorance
of the law is no excuse, and that "[i]n the registration act context, the jury must find
actual knowledge of the act's legal requirements." (25 Cal.4th at p. 754.)
I agree fully with the majority that the decision in Garcia is consistent with section 7.
(Maj. opn. ante, p. 9, fn. 4.) However, the majority's comments in footnote 4 underscore
its failure to distinguish between the need to establish a purposeful failure to register as
required by section 290 subdivision (a)(1)(D) (consistent with the first sentence of
section 7) and the absence of any need to establish that the defendant knew that failure to
register would render him subject to the criminal penalties imposed by section 290

7
forgotten that he must register. Indeed, the court noted the fundamental requirement for a
criminal conviction that, unless excluded expressly or by necessary implication, there
must be mens rea, "a union of act and wrongful intent." (Garcia, supra, at p. 754; § 20.)
Such a union requires that the act and state of mind concur. (People v. Green (1980) 27
Cal.3d 1, 53-54, overruled on different ground in People v. Martinez (1999) 20 Cal.4th
225, 237, 239.)

It may be, as the Cox opinion states, that a registration requirement about which
one has been told is "in storage" and could be brought to "conscious recognition" by
some cue or reminder. But while the failure to keep a calendar or appointment book or tie
a string around one's finger may fail "to [e]nsure that important responsibilities are met"
(94 Cal.App.4th at p. 1376), the failure to take such precautions does not convert the
resulting omission into a willful act. Willfulness might be established if it were shown
that the defendant consciously decided not to take measures that would remind him to
register because he did not wish to bother registering.7 But if the defendant made no such

subdivision (g)(2), or intended to violate subdivision (g)(2) (consistent with the second
sentence of section 7). See the discussion at pages 9-10, post.
7 The Supreme Court observed in Garcia that "the meaning of the term `willfully' varies
depending on the statutory context" (25 Cal.4th at p. 753) and the ambiguous nature of
this term has been repeatedly recognized (see, e.g., United States v. Bishop (1973) 412
U.S. 346, 352, 351 [willful "is a word of many meanings, its construction often being
influenced by its context"; "the word `willfully' has a meaning in tax felony statutes that
is more stringent than its meaning in tax misdemeanor statutes"]; Kwan v. Mercedes-Benz
of North America, Inc. (1994) 23 Cal.App.4th 174, 182 [the concept of willfulness "is not
one easily captured in a single, uniformly applicable formula"]; Jeremy M. Miller, Mens
Rea Quagmire: The Conscience or Consciousness of the Criminal Law? (2001) 29
W.St.U. L.Rev. 21). All definitions of the term, however, include either an intent to do or
fail to do a particular act or bring about a particular result or at least a reckless
indifference as to whether the result occurs. The grey area often centers around the
sufficiency of reckless conduct. (Compare United States v. Bengimina (8th Cir. 1974)
499 F.2d 117, 119 ["Willful cannot fairly be equated with careless or reckless. The
denotation of willful is deliberate and intentional"] with Williams v. Carr (1968) 68
Cal.2d 579, 583-584 [for purposes of automobile guest statute, "willful misconduct

8
conscious determination, and simply overlooked the fact that the five-day window for re-
registering had arrived, there is no sense in which his failure to re-register can be
characterized as willful. A defendant's failure to have taken adequate measures to ensure
that he did not overlook the need to re-register might well be negligent, but this
characterization merely "import[s] a want of such attention to the nature or probable
consequences of the act or omission as a prudent man ordinarily bestows in acting in his
own concerns." (§ 7, subd. 2.) The "requirement of a willful (purposeful, willing or
intentional) omission is more onerous than a negligent or reckless omission." (People v.
Johnson (1998) 67 Cal.App.4th 67, 72, fn. 3.)

Applying this basic distinction requires no elaborate differentiation between types
of forgetfulness such as the majority constructs to justify its conclusion. (Maj. opn. ante,
pp. 13, 15, 17.) Nor does acknowledging this distinction convert section 290 into a
specific intent crime, as the majority also suggests. To the contrary, the conclusion
reached by the majority eliminates even general intent as an element of the crime. Since
the offense created by subdivision (g)(2) is the willful failure to register as required by
subdivision (a)(1), all that is required for a violation of subdivision (g)(2) is that the
individual consciously determine not to register as required by subdivision (a)(1). In the
words of section 7, there must be a purpose or willingness not to do what is required by
subdivision (a)(1). It is not necessary that the defendant intend to violate subdivision
(g)(2), and ignorance of the fact that failure to register as required by subdivision (a)(1) is
an offense under subdivision (g)(2) is no defense. That, however, does not eliminate the

implies the intentional doing of something either with knowledge, express or implied,
that serious injury is a probable, as distinguished from a possible, result, or the intentional
doing of an act with a wanton and reckless disregard of its consequences"].) Under any
definition, there is no doubt that unintentional acts or omissions are beyond the pale of
what may be considered willful. There must be some element of conscious decision-
making, which is not present when one has simply forgotten.

9
requirement that the defendant at least have intended not to perform the act required by
subdivision (a)(1)--i.e., that the individual have intended not to register when required to
do so.8

California's perjury statute provides a helpful analogy. Under section 118, one
commits perjury only if, after having taken an oath, one "willfully and contrary to the
oath, states as true any material matter which he or she knows to be false." (Italics added.)
Past knowledge that one has forgotten is not sufficient. "The essential as to knowledge of
falsity pertains to the condition of mind of the witness at the time he gives the alleged
false statement." (People v. Wong Fook Sam (1905) 146 Cal. 114, 116, italics added.)
And before one may be convicted of perjury, "it must be shown that he made such
statement `willfully'--that is, with the consciousness that he did not know that it was
true, and with the intent that it should be received as a statement of what was true in fact.
. . . [T]he `willful' element in his testimony is quite as essential to the crime in the case of
an unqualified statement of that which one does not know to be true, as in the case of a
statement of that which one knows to be false. . . . [¶] `. . . [I]t is not perjury to swear
honestly to testimony which the witness believes to be true, though a little diligence
would have enabled him to have discovered its falsity.' " (People v. Von Tiedeman

8 This is precisely the analysis required by the California Supreme Court's decision in
People v. Hagen (1998) 19 Cal.4th 652 (Hagen), which the majority unsuccessfully
struggles to distinguish. (Maj. opn. ante, p. 21, fn. 11.) In Hagen, the Court pointed out
that ignorance of nonpenal provisions of the tax law constitutes a defense to the willful
filing of a tax return that the individual does not believe to be correct, whereas ignorance
of the fact that filing a false return is punishable under a separate penal provision
provides no such defense. (19 Cal.4th at pp. 660-661, fn. 4.) Similarly, unawareness that
it is time to re-register as required by subdivision (a)(1)(D)--essentially a mistake of fact
rather than a mistake of law--negates willfulness of a failure to register, while ignorance
that section 290 subdivision (g)(2) makes the willful failure a felony provides no such
defense. The Supreme Court carefully distinguished between awareness of what is
required and awareness of the penal consequences of a failure to comply. The majority
here fails to make this vital distinction. In Garcia, the Supreme Court held explicitly that
ignorance of the registration requirements in section 290 is a defense. (Garcia, supra, 25
Cal.4th at p. 754.)

10
(1898) 120 Cal.128, 135, 136; see also, e.g., People v. Tolmachoff (1943) 58 Cal.App.2d
815, 821 ["willfully" as used in perjury statute requires that the statement be made "with
the consciousness that it was false; with the consciousness that he did not know that it
was true"].)9

I do not quarrel with the view expressed in Cox that the Legislature has ascribed
great importance to the need for compliance with the registration requirements for those
who have committed qualifying sex offenses. Nor do I question that the Legislature
constitutionally could impose strict criminal liability on those who fail to register as
required, so long as they have been given due notice of the need to register. (Cf. Lambert
v. California (1957) 355 U.S. 225, 227; Garcia, supra, 25 Cal.4th at p. 753.) In that
event, a person required to register would act at his peril if he failed to take adequate
measures to ensure that he remembered when it was time to re-register. Such a statute
would indeed impose on the individual a "duty not to forget to perform" which the
majority reads into the present statute. (Maj. opn. ante, p. 16.) Some states in fact have
adopted sex-offender registration statutes that impose strict liability for failure to register
by omitting the requirement that the failure be willful.10 (State v. Beasley (Sep. 27 2001)

9 The majority's attempt to avoid the force of this analogy (maj. opn. ante, pp. 19-20)
instead reinforces its applicability. Contrary to the majority's unsupported assertion that
forgetfulness does not provide a defense to a charge of perjury (maj. opn. ante, p. 19), the
crime is not made out if one incorrectly testifies, for example, that he did not write a
particular letter, having forgotten that he had in fact written the letter. (See People v.
Sagehorn (1954) 140 Cal.App.2d 138, 149; Smith v. Thomas (1898) 121 Cal. 533, 536.)
While it is perjurious for a person aware of his uncertainty to testify positively that he did
not write the letter, the fact is that people do forget entirely, and it is not perjurious to
deny writing it if one is not conscious of uncertainty but is simply wrong because he has
forgotten. Moreover, unlike failing to register, perjury requires the affirmative act of false
swearing. Since affirmatively testifying falsely about a fact one has forgotten is not
willful, it follows a fortiori that failing to perform an act one has forgotten is not willful.
(See Garcia, supra, 25 Cal.4th at p. 752.)
10 Ohio Revised Code Annotated section 2950.05 provides in relevant part: "(E)(1) No
person who is required to notify a sheriff of a change of address pursuant to division (A)
of this section shall fail to notify the appropriate sheriff in accordance with that division.

11
Ohio App. LEXIS 4353; People v. Patterson (2000) 708 N.Y.S.2d 815; cf. Grumet v.
State, supra, 771 So.2d 39.) Under such a strict liability statute "a careless Sex Offender
might simply forget about his registration obligation after a number of years have passed"
but will have nonetheless "committed the acts that fall within the statutory definition of
the Crime of Failure-to-Register . . . ." (People v. Patterson, supra, at pp. 822-823.) New
Hampshire, on the other hand, has made a sexual offender "who negligently fails to
comply" with its registration requirements guilty of only a violation, while one who
"knowingly" fails to comply is guilty of a misdemeanor for the first failure and of a
felony for subsequent failures. (LXII N.H. Rev. Stat. Ann. § 651-B:9.) However, as
pointed out above, and contrary to what the majority reads into section 290, California--
like many other states11--has not adopted either approach, and the Legislature has
rejected proposed amendments to the statute that would have eliminated the willfulness
requirement. As another division of this court observed in holding that one does not
"willfully" discharge a firearm under section 264.3 if the person does not believe the gun
is loaded, "we must give effect to the statute as written, not as it might have or should
have been written." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1439.)

Garcia emphasized, in determining the significance to be attached to the element
of willfulness, that section 290 does not penalize affirmative conduct, but simply the

[¶] (2) No person who is required to register a new residence address with a sheriff or
with an official of another state pursuant to divisions (B) and (C) of this section shall fail
to register with the appropriate sheriff or official of the other state in accordance with
those divisions." New York Correction Law section 168-t provides in relevant part: "Any
sex offender required to register or to verify pursuant to the provisions of this article who
fails to register or verify in the manner and within the time periods provided for herein
shall be guilty of a class A misdemeanor upon conviction for the first offense, and upon
conviction for a second or subsequent offense shall be guilty of a class D felony."
11 See generally, Earl-Hubbard, Comment, The Child Sex Offender Registration Laws:
The Punishment, Liberty Deprivation, and Unintended Results Associated with the
Scarlet Letter of the 1990s (1996) 90 Nw.U. L.Rev. 788.

12
"mere failure to act." (25 Cal.4th at p. 752, italics in original.) A review of other statutes
that penalize omissions underscores the difference between criminalizing a failure to do
what the law requires, where forgetfulness is no excuse, and making the willful failure to
take such action a crime, where the consequences are more severe but there is a
correspondingly heavier burden to prove that the offender made a conscious decision not
to comply.

Revenue and Taxation Code section 19701 makes it a strict liability offense,
punishable as a misdemeanor, for a person to fail to file a tax return even if that person
has no intent to evade the law.12 (People v. Allen (1993) 20 Cal.App.4th 846, 850.) In
contrast, Revenue and Taxation Code section 19706 punishes as a felony those who
willfully fail to file tax returns.13 California law is based upon the federal model, which
"provides a graduated scheme of civil penalties and misdemeanor and felony punishment
to deter both honest mistakes and willful fraud." (People v. Hagen (1998) 19 Cal.4th 652,
662.)14

12 Revenue and Taxation Code section 19701 provides in part: "Any person who does
any of the following is liable for a penalty of not more than five thousand dollars
($5,000): (a) With or without intent to evade any requirement of Part 10 (commencing
with Section 17001), Part 11 (commencing with Section 23001), or this part or any
lawful requirement of the Franchise Tax Board, fails to file any return or to supply any
information required, or who, with or without that intent, makes, renders, signs, or
verifies any false or fraudulent return or statement, or supplies any false or fraudulent
information."
13 Revenue and Taxation Code section 19706 provides that "Any person or any officer or
employee of any corporation who, within the time required by or under the provisions of
this part, willfully fails to file any return or to supply any information with intent to evade
any tax imposed by Part 10 (commencing with Section 17001) or Part 11 (commencing
with Section 23001), or who, willfully and with like intent, makes, renders, signs, or
verifies any false or fraudulent return or statement or supplies any false or fraudulent
information, is punishable by imprisonment in the county jail not to exceed one year, or
in the state prison, or by fine of not more than twenty thousand dollars ($20,000), or by
both the fine and imprisonment, at the discretion of the court, together with the costs of
investigation and prosecution.
14 As to the majority's reliance on footnote 4 in Hagen, supra, 19 Cal.4th at pages 660-
661, see footnote 8, ante.

13

Under federal law, 26 United States Code section 7203 punishes any person who
willfully fails to a file a tax return, whereas 26 United States Code section 6651,
subdivision (a) imposes a penalty upon a person who fails to file a specified return
"unless it is shown that such failure is due to reasonable cause and not due to willful
neglect." While a person who inadvertently forgets to file a federal tax return is not guilty
of willfully failing to file a return under section 7203 (United States v. Rifen (8th Cir.
1978) 577 F.2d 1111, 1113; United States v. Olson (8th Cir. 1978) 576 F.2d 1267, 1272
fn. 4; United States v. Bengimina, supra, 499 F.2d at p. 119; see State v. Sinner
(Mo.App. 1989) 779 S.W.2d 690, 693), inadvertence, oversight, or forgetfulness do not
constitute reasonable cause under section 6651. (Weiss v. C.I.R. (1986) T.C. Memo 1986-
469; Johnson v. C.I.R. (1966) T.C. Memo 1966-164; see also Murrill v. State Board of
Accountancy (1950) 97 Cal.App.2d 709, 712-714 [plea of "willful" failure to supply
information for federal income tax computation shows omission was not negligent,
inadvertent or an honest mistake, but dishonest, deceitful or fraudulent].)

Section 1302 of the Immigration and Naturalization Act (8 U.S.C. § 1302)
requires aliens residing in the United States to register and be fingerprinted.15 Section
1306, subdivision (a) of the Act provides that "any alien required to apply for registration
and to be fingerprinted in the United States who willfully fails or refuses to make such
application or to be fingerprinted . . . shall be guilty of a misdemeanor and shall, upon
conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six
months, or both." (Italics added.) Section 1306, subdivision (b) of the Act, in contrast,
provides in relevant part that "[a]ny alien or any parent or legal guardian in the United
States of any alien who fails to give written notice to the Attorney General, as required by

15 Title 8 United States Code section 1302, subdivision (a) reads: "It shall be the duty of
every alien now or hereafter in the United States, who (1) is fourteen years of age or
older, (2) has not been registered and fingerprinted under section 1201(b) of this title or
section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States
for thirty days or longer, to apply for registration and to be fingerprinted before the
expiration of such thirty days."

14
section 130516 of this title, shall be guilty of a misdemeanor and shall, upon conviction
thereof, be fined not to exceed $200 or be imprisoned not more than thirty days, or both."
(Italics added.) The latter provision, imposing a lower fine and lesser jail time for its
violation, is a strict liability offense under which the prosecutor is not required to prove a
defendant's willfulness. (Legalization Assistance Project v. I.N.S. (9th Cir. 1992) 976
F.2d 1198, 1208, fn. 16, vacated on other grounds in 510 U.S. 1007.)

Section 453 of the War and National Defense Military Selective Service Act (50
App. U.S.C.A. § 453) requires "every male citizen of the United States, and every other
male person residing in the United States, who, on the day or days fixed for the first or
any subsequent registration, is between the ages of eighteen and twenty-six, to present
himself for and submit to registration . . . ." Under section 462 of the Act, "any . . .
person charged as herein provided with the duty of carrying out any of the provisions of
this title . . . who shall knowingly fail or neglect to perform such duty . . . shall, upon
conviction . . . be punished by imprisonment for not more than five years or a fine of not
more than $10,000." (Italics added.) Because the statute requires that a defendant
knowingly fail or neglect to report, an inadvertent failure to report is not a violation.
(United States v. Johnson (2d Cir. 1971) 443 F.2d 189, 192 [affirming conviction on
other grounds but implying that oversleeping might be considered inadvertent].)

These exemplary statutes, and others that might be cited,17 emphasize the
widespread legislative and judicial recognition of the significant difference between a
statute criminally punishing the mere failure to perform a legally required act, as to which
forgetting provides no defense, and the willful failure to do so, for which the penalty

16 Title 8 United States Code section 1305 requires aliens to provide written notice of any
change of address to the Attorney General within 10 days of the change.
17 See, e.g., Government Code sections 27495, 27500 (jurors and witnesses ordered to
appear at coroner's inquest are guilty of a misdemeanor only if they "willfully and
without reasonable excuse fail[] to attend"; section 1320.5 (person charged with or
convicted of a felony and released on bail is guilty of additional felony only if the person
willfully fails to appear as required in order to evade the process of the court).

15
typically is greater but which is not made out unless the failure reflects a conscious
decision not to comply.

During oral argument in this case, it was suggested that the holding in Cox does
not deprive the statutory requirement of willfulness of all meaning because it excludes
from liability one who is unconscious or physically prevented from registering, for
instance because the person is hospitalized or otherwise physically restrained from
traveling to the registration site. The majority adopts this suggestion. (Maj. opn. ante,
p. 16.) But even under statutes that impose strict criminal liability, physical impossibility
provides a defense. Section 26 identifies classes of persons incapable of committing
crimes, including, "[p]ersons who committed the act charged without being conscious
thereof" and "[p]ersons who committed the act or made the omission charged through
misfortune or by accident, when it appears that there was no evil design, intention, or
culpable negligence." Unconsciousness is a complete defense to a criminal charge.
(People v. Wilson (1967) 66 Cal.2d 749, 761; People v. Newton (1970) 8 Cal.App.3d
359, 376-378.) "Some mental state, if only consciousness, is required for every crime,
even one termed a `strict liability' offense." (People v. Atkins (2001) 25 Cal.4th 76, 93
(conc. opn. of Mosk, J.).) There is no criminal liability "as to failure to be present at a
required time and place (e.g., a juror, witness, or soldier on leave) because of a flood or a
broken bridge, or any other physical force that makes locomotion impossible." (Hall,
General Principles of Criminal Law (2d ed. 1947) p. 423.) Thus, to the extent that a
defendant's failure to register is caused by some circumstance beyond his control, he
would not be subject to criminal liability under section 290 even if the requirement of
willfulness were deleted from the statute. Hence, the term "willfully" as it appears in
section 290 subdivision (g) has meaning only if it is interpreted to require a conscious
determination not to register, as distinguished from inadvertence or forgetfulness, in
order to impose criminal liability. And of course it is a basic precept of statutory
construction that every term be given meaning if reasonably possible to do so. (In re

16
Jerry R., supra, 29 Cal.App.4th at p. 1437 ["Whenever possible, we must give effect to
every word in a statute and avoid a construction making a statutory term surplusage or
meaningless. [Citations.] We cannot create an offense by . . . deleting words, or by giving
terms false or unusual meanings."].)

Contrary to a further argument advanced to support the conclusion in Cox,
recognizing that a failure to register because one forgot is not willful does not place an
insurmountable evidentiary burden on the prosecution, or threaten to undermine
enforcement of the registration statute.18 "[F]rom the very beginning of the public
welfare offenses to the present time, there has been an unvarying insistence on the
difficulty of proving mens rea; e.g. `to permit such a defense would be to allow every
violator to avoid liability merely by pleading lack of knowledge and thus, practically,
nullify the statute. . . .' [Fn. omitted.] This argument implies that even though mens rea
exists, it is impossible to prove it, presumably because there are distinctive features in
such cases that make this proof peculiarly difficult. But if we appraise the actual situation
in this respect, without prejudging it, it is impossible to attach any great weight to that
argument. It amounts to no more than a bare assertion or a mere guess. It is obviously at
odds with what is actually done in countless prosecutions. Moreover, a glance at the law
on various major crimes reveals many situations where serious difficulties must be
overcome in proving mens rea, e.g. receiving stolen goods, numerous instances where
ignorance of fact is a defense, and innumerable statutory provisions where knowledge
must be shown. [Fn. omitted.] The burden of proof would obviously be lightened, indeed

18 As indicated above (ante, p. 9), no "painstaking legal and factual analysis of the
evidence to ascertain the precise degree of [Barker's] forgetfulness" (maj. opn. ante, p.
13) is necessary, nor would "allowing forgetfulness as a defense place[] the burden on the
prosecution to prove a negative--that the defendant did not forget the knowledge as
claimed" (maj. opn. ante, p. 22). As with the prosecution of a violation of any statute
penalizing the willful failure to perform a statutory obligation, the prosecution would
bear the burden of proving that the defendant purposefully failed to do what the statute
required. As indicated below (post, pp. 17-18), a defendant's efforts to overcome
evidence tending to show that a failure to perform was purposeful are often unavailing.

17
practically eliminated, if there were no need to prove mens rea. But even primitive law
did not often attach punitive sanctions to harms totally unrelated even to negligence. . . .
It has never occurred to anyone to assert that the mere denial by the defendant that he had
knowledge, e.g. that the goods he purchased were stolen, foreclosed the opportunity of
proof to the contrary. The fact that minor offenses are involved does not alter the
prospects or methods of establishing mens rea. Instead, the judges of the facts may be
expected to be less hesitant to find such offenders guilty. Nor should it be forgotten that
proof of recklessness is sufficient to sustain penal liability; that not only lessens the
burden of prosecution, it also conforms to established principles." (Hall, General
Principles of Criminal Law, supra, pp. 348-350.)

It is well established that intent may be proven circumstantially. (1 Witkin, Cal.
Evidence (3d ed. 1986) Circumstantial Evidence, § 408, pp. 381-382.) In Garcia itself,
the Supreme Court recognized that " [a]lthough 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." (25 Cal.4th at p. 752, italics in
original.) The court acknowledged that in some cases potential difficulties of proof have
justified interpreting statutes to include criminal negligence, i.e., conviction based on
what the defendant reasonably should have known, but it pointed out that these cases
generally involve affirmative acts, and should not be applied to the registration statute
which involves only the failure to act. (Ibid.) While it may be an easy matter for a
defendant to say that he forgot, it is another matter to convince a jury that this is true.
Grumet v. State, supra, 77 So.2d at page 43 illustrates that the trier of fact may well reject
a defendant's "testimony that `he forgot all about it.'" The same has proven true in
perjury prosecutions. (E.g., People v. Tolmachoff (1943) 58 Cal.App.2d 815, 821
[evidence sufficient to support jury's finding of willfulness, rejecting defendant's
testimony that her prior statements reflected "her best recollection, honestly given, as to
what occurred nearly a year prior to the time she testified"]; People v. Todd (1935) 9

18
Cal.App.2d 237, 244 ["The question of whether the false swearing is the result of an
honest mistake or has been committed willfully, knowingly and corruptly is one of fact
for the jury to decide [citation], and evidently the jury in the present case, as shown by its
verdict, did not believe the story told by appellant."].) Similarly, in the present case, the
evidence of the explicit notifications given to defendant, his written acknowledgements
of receiving and understanding these notices, his prior compliance with the registration
requirements, and the importance of compliance which he presumably understood, would
amply support a finding that defendant's failure to register was willful.

Nonetheless, the instructions given in this case improperly removed from the jury
the opportunity to evaluate the credibility of defendant's claim that he did forget that it
was time to re-register on the occasion in question. And unlike the situation in Garcia,
supra, 25 Cal.4th 744, there is no basis to suggest that the error was harmless. In Garcia,
the defendant did not testify that he had forgotten to register. Rather, the only evidence he
introduced to show lack of knowledge was his testimony that nobody had explained the
registration requirement to him, and under the instructions which the trial court gave, the
jury was required to find that defendant had been informed of the duty to register in order
to convict. Since the only factual question presented by the evidence had been properly
put to the jury, the court concluded that proper instructions on the knowledge
requirement would have made no difference in that case. (Id. at p. 755.) Here, in contrast,
the defendant acknowledged that he was properly notified of the registration requirement
but testified that, under the particular circumstances, which he described, he had
forgotten that it was time to re-register. The inquiry submitted by the jury in the middle
of deliberations, asking "Is forgetting to register [sic] a `willful' [sic] act according to the
law," shows unmistakably that some or all members of the jury believed, after hearing
defendant's testimony, that its credibility was entitled at a minimum to serious

19
consideration.19 Under these circumstances, it is impossible to conclude that it is not
reasonably probable that a result more favorable to the defendant would have been
reached if the correct instructions had been given. But in all events, since the instructions
as augmented by the trial judge's response to the jury's explicit question effectively
denied defendant his constitutional right to have his factual defense determined by the
jury, the standard is whether the error was harmless beyond a reasonable doubt--the
standard applied in Garcia. (Id. at p. 755; see also People v. Flood (1998) 18 Cal.4th 470,
479-482.) In view of the specific inquiry from the jury, there can be no question that the
error here was not harmless beyond a reasonable doubt.
___________

More than 20 years ago, Barker was convicted of a serious sex crime. He was duly
sentenced to a lengthy term of imprisonment, which he served. Upon his release from
prison, he registered as required by section 290 and for five years he timely re-registered
annually in accordance with the statute. During this period, he made progress in pulling
his life together, finding employment and committing no further offenses. When he
missed the window for his annual re-registration by less than three days--assertedly
because he overlooked the filing period in the press of extraordinary job demands--he
hurried to the police station to re-register within an hour of being reminded of the need to
do so. For this, he has been removed from society for an additional nine years.

If Barker consciously chose to disregard the deadline for his annual re-registration,
he has no one but himself to blame for incurring the severe consequences that the statute
imposes for a willful failure to comply. However, if his oversight was inadvertent, the

19 Indeed, much of the evidence which the majority views as showing that Barker did not
forget that it was time to register (maj. opn. ante, pp. 11-12) can just as easily be viewed
as supporting his claim that he did. The fact that he had repeatedly registered on time in
the past, that he responded immediately when contacted by Officer Baccei, and that he
candidly acknowledged having been advised of his registration obligations may well
have been considered by the jury to show that on this occasion he had honestly forgotten
that it was time to re-register.

20
law does not impose such draconian consequences. However dubious this court may be
that he truly forgot, as he testified, members of the jury who heard his testimony
apparently were not so skeptical. Our Constitution guarantees a defendant the right to
have the jury weigh the credibility of his testimony against the weight of the evidence
offered by the prosecution to show that his failure to timely register was purposeful.
Barker was denied that right and is entitled to a new trial.

For these reasons, I would reverse the conviction and remand for a new trial under
proper instructions.




___________________________







Pollak, J.


21




Trial Court:



San Mateo County Superior Court



Trial
Judge:
Hon.
Dale
A.
Hahn



Richard Such, First District Appellate Project, for Defendant and Appellant



Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General,
Ronald A. Bass, Assistant Attorney General, René A. Chacón and Ronald E. Niver,
Deputy Attorneys General, for Plaintiff and Respondent




















A093759 People v. Barker

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