 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Rushing6/28/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Kenneth Ray Rushing was convicted by a jury of failing to annually update his registration as a sex offender within five days of his birthday in December 1999, in violation of Penal Code section 290, subdivision (a)(1)(C). He was acquitted of failing to register as a sex offender after an address change under Penal Code section 290, subdivision (a)(1)(A). He admitted five prior serious felony convictions, all for sex offenses committed on one occasion in 1988. He was sentenced to state prison for 25 years to life. He challenges the court's denial of his motion to dismiss the prior strike convictions and argues that his sentence of 25 years to life is cruel and unusual punishment. We find that the trial court abused its discretion in denying defendant's Romero motion because it relied upon questionable evidence and made impermissible inferences from the evidence before it. We therefore reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Assuming as true all facts in favor of the judgment of conviction on count II, the facts of the current offense are relatively simple. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Defendant originally was received at the Department of Corrections on May 2, 1988. He was first paroled on January 30, 1995, and returned to custody on August 3, 1995. He was again released on parole on May 28, 1996, but again violated parole and returned to custody on March 18, 1997. He was paroled on July 31, 1997. He was returned again on May 13, 1998, and released on September 9, 1998. He was returned to custody on September 25, 1998, and remained in prison until fully discharged without parole from the Department of Corrections on February 9, 1999.
Amador County Sheriff's Department's records show that defendant registered as a sex offender on June 3, 1996; January 28, 1997; July 16, 1997; and December 26, 1997. Each time defendant registered the same address in Pine Grove. District attorney investigator Weldon Lincoln did all the sex offender registration forms for Amador County. He first registered defendant in December 1997, after calling him to come in to register. A letter was sent to all registrants once in 1997, during the transition after the passage of "Megan's Law," asking them to notify the sheriff within two weeks prior to their birthdays in order to make appointments to register annually. When defendant appeared on December 26, 1997, to register, he initialed the form in a variety of places, including acknowledging that he had to update his registration annually within five days of his birthday.
After his discharge from prison in 1999, defendant went to visit his mother in Texas during the summer because she sent him a bus ticket. He did some remodeling and construction work for his mother and her friend, Olive Patterson. He got a Texas driver's license because his stepfather gave him a car. He returned to California in September for six weeks, because he drove his mother up for family weddings. While in California, he went back to his brother's house in Pine Grove. He left Texas in December, explaining to his mother that he needed to return to California and sign something by his birthday.
Defendant was in custody for driving under the influence of alcohol in June 2000. Investigator Lincoln visited him in jail. Lincoln asked defendant why he had not registe
Page 1 2 3 4 5 6 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|