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Filed 9/17/03 P. v. Rider CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A097996
v.

VANCE LARCELL RIDER,
(San Mateo County
Super. Ct. No. SC047362)

Defendant and Appellant.

A jury found that defendant Vance Larcell Rider had failed to register as a
convicted sex offender as required by Penal Code section 290.1 After finding true
allegations in the information that defendant had five prior felony convictions, the trial
court sentenced him to a term of twenty-five years to life. On this timely appeal by
defendant, we affirm.
BACKGROUND
The
pertinent
circumstances are easily recounted and largely without dispute.

Defendant stipulated that he "has been previously convicted of a felony sexual
offense that requires him to register as a sex offender, pursuant to Penal Code section
290." People's exhibit No. 6--which was admitted in evidence and a copy of which is in
the record on appeal--consists of a number of defendant's registrations with various law
enforcement agencies dating from 1994. On several of the forms for change of address
defendant put down "transient" for his new address. The last registration from defendant

1 Statutory references are to the Penal Code unless otherwise indicated.

1

was in January of 1999, giving an address in Oakland. In March of 2000, police
discovered defendant in a National Guard armory in San Mateo, which was used as a
shelter for the homeless. Only allowed to stay in the armory at nights, defendant had
begun sleeping there in November of 1999.

The forms comprising People's exhibit No. 6 show defendant's birthday as
January 4. The January 1999 registration contains defendant's certification under penalty
of perjury as follows: "I have been notified of my duty to register as a convicted sex
offender under PC §290 . . . . I have read, understood, and initialed each requirement
listed below: [ś] . . . [ś] Upon coming into, or when changing my residence or location
within, any city, county, or city and county in which I am residing or located, I must
register with the law enforcement agency having jurisdiction over my residence or
location . . . as a sex offender, within five (5) working days. [ś] . . . [ś] Every year
within five (5) working days of my birthday, I must update my address, name, and
vehicle information with the registering agency."

One of the two officers who met defendant at the armory testified that a radio
check returned the information that defendant "may not be in compliance" with his
registration requirements. When asked when he had last registered, defendant replied
"[O]n my birthday" in "January of 1999." Defendant told the officer he had last
registered in Oakland, but he was "no longer living there." When asked for the card all
sex offender registrants are required to carry,2 defendant told the officers it had been
mailed to his mother's house; upon checking his wallet defendant produced an expired
registration card. Records of the Oakland Police Department showed that defendant had
not registered in that city since January of 1999. The San Mateo Police Department had
no record of defendant registering between November of 1999 and March of 2000.

Defendant did not testify or call witnesses on his behalf. At the start of trial he
indicated that he would call Dr. William Lynch to testify for him. The prosecution asked

2 During his closing argument the prosecutor described the card as follows:
"[O]n the back of this card are the sex registration requirements, within five days of
moving into the city, five days of your birthday. There it is in black and white . . . .
[D]efendant is carrying this with him on a daily basis."

2

for an offer of proof in order to establish the scope of Lynch's testimony "because issues
related to mental defect, mental illness, . . . under Penal Code Section 28, are not
admissible. There are very significant confines on how that sort of testimony can be used
in cases such as this, a general intent crime, and I believe [defense counsel] may be trying
to use a psychologist to introduce evidence that is not admissible pursuant to Penal Code
Section 28 . . . ." Defense counsel responded: "I've given [the] people a 13-page report
which indicates my client's I.Q., his memory problems, and brain damage. That's what I
would have Dr. Lynch testify about. It goes to whether there was a willful violation of
Penal Code section 290. [ś] The California Supreme Court's most recent case of Garcia
[People v. Garcia (2001) 25 Cal.4th 744] states the word `willfully' implies purpose . . .
and a person's intention, I think their ability for memory and recall, and brain damage
that they have suffered, can go directly to that issue."

At the hearing conducted pursuant to Evidence Code section 402 at the
prosecution's request, psychologist Dr. William Lynch testified that he is chief of the
brain injury rehabilitation unit at a Veterans Administration hospital. He examined
defendant and determined that he has an I.Q. of 69, "which is designated extremely low,
. . . the lowest rating of an I.Q. score. . . . [ś] . . . his score was lower than 98 percent of
the population." For a person with such a score "there will be difficulty with memory,
planning, problem-solving, the kinds of things that generally require more sophisticated
brain functioning and overall intellectual sophistication. A person can carry on their
everyday life, but what they tend not to do is project very far into the future in terms of
planning, they tend not to anticipate multiple consequences of their actions . . . ." Such a
person can follow simple instructions "if . . . stated very clearly" and remember dates "if
the date is extremely significant, possibly, but I think there's a tendency to be casual
about the specificity of dates and to possibly confuse them, because one of the problems
you have as the I.Q. score dips that low is in keeping things in proper sequence as you
may remember some details but you might remember them out of the actual order." The
passage of time would result in "loss . . . or distortion" of an instruction to do some act in

3

the future. Lynch tested defendant's memory and found it to be "on the same scale," that
is "he tended to lose information over time."

On cross-examination, Dr. Lynch testified that defendant had no trouble recalling
his birthday, but was not otherwise "a good historian" of events in his life. Asked about
the registration requirements recited on the forms in People's exhibit No. 6, Dr. Lynch
testified that defendant could follow such instructions "If the information was given to
him in writing, somebody sat down with him, went over it, under the circumstance[s] of
that, but I think an instruction that's given to him once and verbally would be at great risk
of being forgotten or distorted or misunderstood, based on what I found."

After hearing argument from the parties, the court granted the prosecution's
"motion in limine to exclude the testimony of Dr. Lynch" because "it appears that his
testimony relates to an alleged mental defect," a subject prohibited by section 28.

At the close of the prosecution's case-in-chief, defendant's counsel asked the court
to reconsider its ruling precluding Dr. Lynch from testifying. The court declined to
change its ruling. The defense rested without calling any witnesses or presenting any
evidence.

The jury was instructed on section 290 as follows: "In the crime charged in this
case, namely, a violation of Section 290(g)(2) of the Penal Code, there must exist a union
or joint operation of act or conduct and general criminal intent. General intent doesn't
require an intent to violate the law. When a person intentionally does that which the law
declares to be a crime, he is acting with general criminal intent, even though he may not
know that his act or conduct is unlawful. [ś] Every person who's required to register as
a sex offender based on a felony conviction shall, for the rest of his life, register with the
chief of police in the city in which he resides, within five working days of coming into
that city. A registrant is also required to register annually within five days of his
birthday. A willful failure to register is a violation of Penal Code section 290(g)(2).
[ś] . . . [ś] In order to prove the crime of violating Section 290(g)(2) of the Penal Code,
each of the following elements must be proved: one, the defendant was required to
register as a sex offender pursuant to Penal Code Section 290 due to a prior felony

4

conviction for a sexual offense; two, the defendant had actual knowledge of his duty to
register; three, the defendant was residing in the City of San Mateo; four, the defendant
willfully failed to register with the San Mateo Police Department within five working
days of moving into San Mateo; or willfully failed to register with the San Mateo Police
Department within five working days of his birthday."

The jury was also instructed with CALJIC Nos. 1.20 and 1.21 which defined
"willfully" and "knowingly" as follows: "The word `willfully' when applied to the intent
with which an act is done or omitted means with a purpose or willingness to commit the
act or to make the omission in question. The word `willfully' does not require any intent
to violate the law, or to injure another, or to acquire any advantage." "The word
`knowingly' means with knowledge of the existence of the facts in question. Knowledge
of the unlawfulness of any act or omission is not required. A requirement of knowledge
does not mean that the act must be done with any specific intent."

After less than two hours of deliberations, the jury requested written copies of the
instructions. Less than an hour later, the jury requested "can we get a clearer definition"
of the word "intentionally"; the court responded that "I am unable to do so." About 90
minutes later the jury requested--and received--a "read back" of the testimony by the
officer who arrested defendant. Deliberations were adjourned for the day about an hour
later. The following day, after about an hour of deliberating, the jury sent the court a note
asking "Can a person do something willfully but not consciously?" After consulting with
counsel in an unreported discussion, the trial court replied: "The question cannot be
answered in that context, but I do invite your attention to the definition of `willfully' in
the pertinent instruction and, if it aids you, to the definition of `knowingly' in that
pertinent instruction."

Less than an hour later the jury asked "If a person fails to perform an act they
know they must do, is that a willful act?" The court replied: "Again, you must use the
pertinent instruction for an answer to the question." It appears that after 20 minutes, the
jury advised that it was deadlocked. After consulting with counsel, the court then sent
the following to the jury: "In further response to the attached question, please be advised

5

as follows: [ś] The word `willfully' implies a purpose or willingness to make the
omission. One cannot purposefully fail to perform an act without knowing what act is
required to be performed. The word `willfully' imports a requirement that the person
know what he is doing."

Approximately three hours later (following the noon recess), and still on the
second day of deliberations, the jury asked the court "Is knowing what act is required to
be performed sufficient to prove that the failure of the act was willful?" Over objection
by the defense that this answer was covered by the court's most recent response, the court
told the jury that "If a person knows what act is required to be performed when he fails to
perform such act, a failure to perform such act is willful." Approximately 10 minutes
later the jury determined that defendant was guilty.

The next day the issue of defendant's priors was tried by the court. The court
found that, for purposes of the so-called three strikes law, defendant had prior felony
convictions for oral copulation, attempted manslaughter, and three robberies. In light of
these findings, defendant was sentenced to state prison for a term of 25 years to life.

Defendant filed a timely notice of appeal.
REVIEW

As a convicted sex offender, defendant was required by section 290 "for the rest of
his . . . life while residing in, or . . . while located within California, . . . to register with
the chief of police of the city in which he . . . is residing, or . . . located, . . . within five
working days of coming into, or changing his . . . residence or location within, any city,
county, or city and county . . . ." (§ 290, subd. (a)(1)(A).) "Beginning 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 with the entities described in subparagraph (A)." (Id., subd. (a)(1)(D).) The
precise provision defendant was convicted of violating specifies that "any person who is
required to register under this section based on a felony conviction . . . who willfully
violates any requirement of this section . . . is guilty of a felony . . . ." (Id., subd. (g)(2).)

6

People v. Garcia, supra, 25 Cal.4th 744, was the subject of much discussion
below and in the briefs on this appeal. The issue in Garcia was the correctness of
instructions, which did not tell the jury that a willful failure to register required a finding
that the defendant actually knew that he was obligated to register. The Attorney General
argued that the actual notice of the registration requirement given to the defendant by
parole authorities when he was released from prison, was sufficient, and actual
knowledge was not an element of the offense. The Supreme Court disagreed: "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 of willingness' to make the omission. [Citation.]
Logically one cannot purposefully fail to perform an act without knowing what act is
required to be performed. As stated in People v. Honig (1996) 48 Cal.App.4th 289, 334
. . . , `the term "willfully" . . . imports a requirement that "the person knows what he is
doing." [Citation.] Consistent with that requirement, and in appropriate cases,
knowledge has been held to be a concomitant of willfulness. [Fn. omitted.]'
Accordingly, a violation of section 290 requires actual knowledge of the duty to register."
(Garcia, at pp. 751-752.) "In this case, the court instructed the jury (based on the
definition in § 7) that `The word "willfully" when applied to the intent with which an act
is done or omitted means with a purpose or willingness . . . to make the omission in
question. The word "willfully" does not require any intent to violate the law . . . . '
(CALJIC No. 1.20.) Thus this instruction correctly requires a showing of purpose or
willingness to act, or (as in this case) fail to act. But, as we have explained, the
instruction was incomplete in failing clearly to require actual knowledge of the
registration requirement." (Garcia, at pp. 753-754.)
Consistent
with
Garcia, the trial court here instructed the jury that defendant could
not be convicted unless the jury determined that he "had actual knowledge of his duty to
register." Defendant, however, argues that a number of evidentiary and instructional

7

errors relating to the mental state required for a violation of section 290 were committed
and require reversal.
I

Defendant's primary contention is that the trial court committed prejudicial error
of constitutional dimension when it excluded the proposed testimony of Dr. Lynch.

The basis for the trial court's ruling was that the testimony was not permitted by
section 28, which provides in pertinent part: "(a) Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to form
any mental state, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
Evidence of mental disease, mental defect, or mental disorder is admissible solely on the
issue of whether or not the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought, when a specific intent crime
is charged. [ś] (b) As a matter of public policy there shall be no defense of diminished
capacity, diminished responsibility, or irresistible impulse in a criminal action . . . ."
Also relevant is section 29, which provides: "In the guilt phase of a criminal action, any
expert testifying about a defendant's mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required mental
states, which include, but are not limited to, purpose, intent, knowledge, or malice
aforethought, for the crimes charged. The question as to whether the defendant had or
did not have the required mental states shall be decided by the trier of fact." In operation
these statutes mean that "Expert opinion on whether a defendant had the capacity to form
a mental state that is an element of a charged offense or actually did form such intent is
not admissible at the guilt phase of a trial." (People v. Coddington (2000) 23 Cal.4th
529, 582.)

Although the matter is not completely free from doubt, we cannot conclude that
the trial court erred in treating Dr. Lynch's proposed testimony as proscribed by section
28. A proper appreciation of the context establishes that the subject of Dr. Lynch's
testimony was defendant's "capacity to form any mental state," specifically "knowledge"

8

within the meaning of section 28. Dr. Lynch did not ask defendant about why he did not
register; when asked by the prosecutor, "Did you talk with the defendant at all about his
obligations to register as a sex offender?" Dr. Lynch replied, "No." Lynch tested
defendant for his "overall intellectual ability." Dr. Lynch testified about the "parameter
or functioning" possessed by persons with defendant's I.Q., with particular attention to
their ability to remember what they have been told. He concluded that defendant's
memory "was consistent I think with what you would have predicted from the I.Q. tests."
He did, however, discover that defendant had no hesitation in remembering the date of
his birth. There is no evidence that Dr. Lynch questioned defendant about why he did not
register in either Alameda or San Mateo Counties for the 15-month period between
January 1999 and March 2000, and no indication that defendant himself raised the issue.
In other words, there was no evidence that defendant had in fact failed to register for
more than a year due to his impaired memory functioning. It thus appears that the
general subject of Dr. Lynch's testimony was, in the abstract, the memory capacity of
persons with I.Q.'s comparable to defendant. The testimony was consequently within the
prohibitions against "[e]vidence . . . to . . . negate the capacity to form any mental state,
including . . . knowledge" (§ 28, subd. (a)) by an expert (§ 29)).

Although defendant views the ruling as denying him his right under the United
States Constitution to present a defense, our Supreme Court has concluded otherwise:
"Sections 28 and 29 do not preclude offering as a defense the absence of a mental state
that is an element of a charged offense or presenting evidence in support of that defense.
They preclude only expert opinion that the element was not present." (People v.
Coddington, supra, 23 Cal.4th 529, 583.) These statutes did not preclude defendant from
testifying himself, nor presenting corroborating testimony by nonexperts, detailing any
previous incidents of forgetfulness, to attempt to establish that his failure to register was
attributable to his inability to remember his obligation to register. That did not occur.

9

Thus we need not decide whether People v. Cox (2002) 94 Cal.App.4th 1371 correctly
holds that forgetting to register constitutes a defense.3
II

The court in Garcia also concluded that the trial court there "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. . . . In the registration act context, the jury must find actual
knowledge of the act's legal requirements." (People v. Garcia, supra, 25 Cal.4th 744,
754.) The trial court did not give CALJIC No. 4.36, but it did give CALJIC No. 3.30,
which told the jury that "When a person intentionally does that which the law declares to
be a crime, he is acting with general criminal intent, even though he may not know that
his act or conduct is unlawful." Defendant argues that CALJIC No. 3.30 is "a
comparable `ignorance of the law is no excuse' instruction" and subject to the same
infirmities as the Garcia court found in CALJIC No. 4.36.

The comparison between CALJIC Nos. 3.30 and 4.56 was first drawn by Division
Two of this Court in People v. Edgar (2002) 104 Cal.App.4th 210. The court determined
that the use of No. 3.30 constituted reversible error, but this conclusion was made in a far
different context--unlike here, but like Garcia, the jury in Edgar had not been instructed
that the defendant must be found to have had actual knowledge of the registration
requirements. (Edgar, supra, at pp. 218-219.)

Defendant appears to read Garcia as standing for the proposition that the giving of
either CALJIC No. 4.56, or by analogy, CALJIC No. 3.30 is a separate ground of
instructional error. A close reading of Garcia and Edgar shows that both courts
examined the issue of CALJIC No. 4.56 where the jury received no instruction on the
requirement of actual knowledge of the registration requirements. There, the use of
CALJIC Nos. 4.56 and 3.30 only aggravated that omission. In this case, however, the

3 That issue is presently before our Supreme Court. (People v. Moss (2003) 109
Cal.App.4th 56, review granted August 13, 2003, S117313; People v. Barker (2003) 107
Cal.App.4th 147, review granted June 11, 2003, S115438.)

10

jury was instructed on the actual knowledge requirement. The correctness of the
instructions given the jury is to be determined by examining all of the instructions, not
just CALJIC No. 3.30. (E.g., People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 and
decisions cited.) It is clear from the instruction enumerating the requirements for
conviction under section 290 that the jury was unambiguously told that they could not
find defendant guilty unless they concluded that he "had actual knowledge of his duty to
register." The use of CALJIC No. 3.30 therefore does not qualify as reversible error.
Defendant
also
claims
that giving CALJIC No. 1.20 defining "willfully" was,
without modification, sufficiently erroneous as to require reversal. While it is true that,
as noted in Garcia and Edgar, CALJIC No. 1.20 does not, by itself, advise the jury of the
actual knowledge requirement in failure-to-register prosecutions, here the jury was
expressly instructed that defendant could not be convicted unless the jury found that he
"had actual knowledge of his duty to register."
III

Defendant contends that the trial court's instruction as to the "knowledge" element
was inadequate in two ways.

He states the first in his brief as follows: "The court gave the jury one instruction
as to both the offense of failing to `register with the chief of police in the city in which he
resides, within five working days of coming into that city' and the offense of failing to
`register annually, within 5 days of his birthday.' Here we are concerned with the first
offense. The court also instructed the jury as to the meaning of `residence'--that it
`means a temporary or permanent dwelling place, which one keeps and to which one
intends to return, as opposed to a place where one rests or shelters during a trip or
transient visit.' The court instructed the jury as to the `knowledge' element of the offense
simply that it must be proved that `The defendant had actual knowledge of his duty to
register.' [ś] The court did not instruct the jury that it had to be proved that appellant
knew that he had a duty to register within five days of coming into a city in which he
resided or, more importantly, that it had to be proved that he knew that this duty arose
upon his coming into a city and acquiring a temporary or permanent dwelling place

11

which he kept and to which he intended to return, as opposed to a place where he rested
or sheltered during a trip or transient visit. [ś] . . . Appellant cannot have willfully or
purposefully have failed to register in San Mateo if he did not know that, legally, he was
residing there." As to his second point, defendant contends that the jury was not told that
he had to know that the annual update of his registration had to be done in San Mateo, not
in Oakland.

Again, looking at the instructions as a whole, and how they would be reasonably
construed by the jury (e.g., People v. Smithey (1999) 20 Cal.4th 936, 963; People v.
Welch (1999) 20 Cal.4th 701, 766), we discern no error. When the jury was told that
conviction required that defendant had to have had "actual knowledge of his duty to
register," that instruction would reasonably be construed as encompassing either his
change of residence to San Mateo, his birthday in 2000, or both reasons giving rise to the
"duty." "Residence" is not a technical term requiring definition. (See People v. McCleod
(1997) 55 Cal.App.4th 1205, 1216-1219.) There was no evidence that defendant was in
effect maintaining dual residences in San Mateo and Oakland Counties. Moreover,
because defendant did not register either in Oakland or in San Mateo, the issue is of no
avail. (Cf. People v. LeCorno (2003) 109 Cal.App.4th 1058 [defendant had residence in
San Francisco but often stayed at San Mateo work place].) It thus appears that the
problems defendant now identifies are not intrinsic to the instructions, but assumed form
only within the context of this case. Defendant is, therefore, challenging the instructions
given as too general, incomplete, and lacking in clarity. That challenge has not been
preserved for review because defendant did not request that the instructions be clarified.
(E.g., People v. Coddington, supra, 23 Cal.4th 529, 603; People v. Welch, supra, at p.
757.)
IV

Defendant discerns a number of difficulties with the trial court's responses to the
inquiries sent out by the jury once it started deliberating.

As noted above, the court made four responses to inquiries from the jury. As to
the first three, the record does not establish that defendant either objected to the court's

12

responses or proposed different answers to the jury's questions. In these circumstances,
the issue of the propriety of the court's first three responses has not been preserved for
appeal. (E.g., People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Medina (1990) 51
Cal.3d 870, 902.)

The court's fourth and final response requires different treatment. When the jury
asked "Is knowing what act is required to be performed sufficient to prove that the failure
of the act was willful?", the court met with counsel and discussed the situation, off the
record. The reporter's transcript resumes with the court stating: "All right, on the record.
Plaintiff proposes language, defendant has proposed language, the Court proposes to and
will respond with the following answer, to wit, if a person knows what act is required
when he fails to perform such act, and failure to perform such act is willful, defendant
objects to that response." Defense counsel then explained his objection: "I believe the
Court has already--the last question the jury asked rather was basically the same
question. To this question, the Court responded with language that was directly out of
People v. Garcia . . . . [ś] . . . I believe that that language was appropriate. I believe to
go further and give you further answers to what is basically the same question is not
appropriate."

According to defendant, "This response was error. It was a misunderstanding and
distortion of Garcia's holding that willfulness presumes knowledge. It turned that
holding around and erroneously informed the jury that knowledge entails willfulness."
As defendant reasons, the trial court was conflating the elements of knowledge and
willfulness and in effect directing a verdict on willfulness. In the abstract, defendant's
argument might seem to have merit. The actual language of Garcia, however,
demonstrates that the trial court was not misreading the decision, but faithfully following
it. In Garcia, our Supreme Court held: "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. [ś] . . . Although notice
alone does not satisfy the willfulness requirement, a jury may infer from proof of notice
that the defendant did have actual knowledge, which would satisfy the requirement."

13

(People v. Garcia, supra, 25 Cal.4th 744, 752.) This is precisely the import of the trial
court's final response to the jury.
V

Defendant's final contention is that his sentence of 25 years to life constitutes
cruel and unusual punishment prohibited by the United States Constitution. Since
defendant filed his opening brief, the United States Supreme Court has found that
California's three strikes law does not violate the Eighth Amendment, even when the
latest offense is for a nonviolent, nonserious crime such as petty theft. (Lockyer v.
Andrade (2003) ___ U.S. ___ [123 S.Ct. 1166]; Ewing v. California (2003) ___ U.S. ___
[123 S.Ct. 1179].) Defendant makes much of the fact that a violation of section 290 was
a misdemeanor until 1995, when the Legislature elevated it to a felony. Section 290, and
laws like it, have been found not to violate ex post facto prohibitions. (Wright v.
Superior Court (1997) 15 Cal.4th 521, 531-533; see Smith v. Doe (2003) ___ U.S. ___
[123 S.Ct. 1140].) " `The purpose of section 290 is to assure that persons convicted of
the crimes enumerated therein shall be readily available for police surveillance at all
times because the Legislature deemed them likely to commit similar offenses in the
future. [Citation.]' " (Wright v. Superior Court, supra, at p. 527; accord, McKune v. Lile
(2002) 536 U.S. 24, 32-34.) A violation of section 290 thus entails a substantial risk of
future harm. Together with defendant's history of other serious and violent crimes, his
sentence does not qualify as grossly disproportionate.

The judgment of conviction is affirmed.

_________________________

Kay, P.J.

We concur:

_________________________
Reardon, J.

_________________________
Sepulveda, J.

14