Tuesday, December 5, 2006
Sex Offender’s Conviction for Not Registering Reversed
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has thrown out a sex offender’s conviction for failure to register with the Los Angeles Police Department, saying prosecutors failed to prove that he was in the city for five working days prior to his arrest.
Presiding Justice Paul A. Turner agreed Friday with attorneys for Eric Balkin that “[t]here was no proof of any kind that [Balkin] entered Los Angeles, or changed his residence within Los Angeles, more than five working days before he was arrested, or even that he was in Los Angeles for any five-day period between” the date he was released from prison last year and his arrest in Los Angeles 18 days later.
Balkin stipulated that he had been convicted of three counts of forceful oral copulation in 1987. Prosecutors presented evidence that he had been advised of his registration requirements on nine occasions between 1989 and 2003 and released on parole in April of last year, but had never registered.
Following his arrest in downtown Los Angeles, he was interviewed and gave a Los Angeles mailing address. He was then charged with violating Penal Code Sec. 290(a)1(a) which, as of the date on which he was last notified of the obligation to register, required persons convicted of certain sexual offenses “to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, or, if he or she has no residence, is located.”
The statute was subsequently amended to delete references to the offender being “located” in a particular place.
Turner suggested that Balkin might have violated Sec. 290(a)(1)(C)(i), which requires a “transient” to “register, or reregister if the person has previously registered, within five working days from release from incarceration, placement or commitment, or release on probation.”
But since he was not charged or held to answer under that provision, and the prosecution did not move to amend the information or seek a jury instruction under it, and there was no evidence Balkin was a “transient,” his conviction cannot rest on that subdivision of the code, the presiding justice wrote.
“Under section 290, subdivision (a)(1)(A), a failure to register within five working days of coming into a city or county is one offense. Defendant’s failure to register within five working days of his release from a place of incarceration while a transient is a separate offense under section 290, subdivision (a)(1)(C)(i). Failing to register in the city or county in which the offender is residing within five days of entering the municipality is a separate offense which is not included in a violation of section 290, subdivision (a)(1)(C)(i).”
The case was briefed on appeal by court-appointed attorney Chris R. Redburn for the defendant and Deputy Attorneys General Lawrence M. Daniels and Ryan B. McCarroll for the prosecution.
The case is People v. Balkin, B186152.
Copyright 2006, Metropolitan News Company