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P. v. Moss 5/23/03 CA3
State: California
Court: 1st District Court of Appeal 1st District Court of Appeal
Docket No: C039117
Case Date: 05/23/2003
Preview:Filed 5/23/03

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, Plaintiff and Respondent, v. CLYDE SHERWOOD MOSS, Defendant and Appellant.

C039117 (Super. Ct. No. NCR55080)

APPEAL from a judgment of the Superior Court of Tehama County, Dennis E. Murray, Judge. Reversed. Louis Marinus Wijsen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

As required by subdivision (a)(1)(A) of Penal Code section 290, defendant Clyde S. Moss registered as a convicted sex offender when he moved to Red Bluff in May 2000. But he failed to update the

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registration within five working days of his birthday the next year, as required by subdivision (a)(1)(D) of Penal Code section 290. (Further section references are to the Penal Code unless otherwise specified.) Six working days late, defendant went to the Red Bluff Police Department to update his registration, saying that he had forgotten to do so on time. He was arrested and prosecuted under subdivision

(g)(2) of section 290, which makes it a crime to "willfully" violate any sex offender registration requirement of section 290. At trial, defendant's position was that he simply forgot to update his registration on time and that, when he remembered his obligation to do so, he immediately drove to the police department and attempted to register. However, the court would not allow him

to introduce the testimony of four witnesses, corroborated by a Tehama County Mental Health Department report, to establish that he had borderline intellectual functioning and was forgetful. The court also refused defendant's request to instruct the jury that the term "willfully" in subdivision (g)(2) of section 290 "imports a requirement that the person knows what he is doing." Defendant was found guilty, and he was committed to state prison. On appeal, defendant contends the court committed prejudicial error in excluding the proffered evidence and refusing the requested instruction. We agree.

For reasons that follow, we part company with Division One of the Fourth Appellate District (People v. Cox (2002) 94 Cal.App.4th

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1371)1 and conclude that genuinely forgetting to comply with a sex offender registration requirement is a defense to the charge of violating subdivision (g)(2) of section 290. Because the

challenged rulings in this case precluded defendant from being able to effectively present this defense, we shall reverse the judgment. DISCUSSION I A Section 290 imposes a number of sex offender registration requirements upon a person who has been convicted of certain crimes. Among other things, after registering as a sex offender as required by subdivision (a)(1)(A) of section 290, the person must annually update the registration within five working days of his or her birthday. (
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