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For 12 years after serving prison time for raping a child, Michael Britt dutifully registered his home address with law enforcement officials as required by state law for serious sex offenders. But in 1997 Britt moved the 31 miles from Sacramento to El Dorado Hills and told no one. As a result, he was convicted of two felonies — one for failing to register as a sex offender in El Dorado Hills and one for failing to notify Sacramento that he was leaving. On Thursday, the California Supreme Court heard the case to determine whether Britt had been unjustly prosecuted twice. Had Britt committed one continuing criminal violation, rather than two independent ones — and are multiple prosecutions for one offense a violation of state law? Whatever the outcome, the justices gave little indication what they were thinking. The bluntest question of the morning came from Justice Ming Chin, but it wasn’t clear whether he was siding with the defense or just playing the devil’s advocate. “As a practical matter,” he asked Sacramento Deputy Attorney General Raymond Brosterhous, “isn’t this overkill? And isn’t it a waste of judicial resources?” That was part of defense lawyer William Arzbaecher III’s argument, that Penal Code § 654 doesn’t permit multiple convictions for an act of omission — such as failing to register as a sex offender. By extension, he argued, the state Supreme Court in 1966′s Kellett v. Superior Court, 63 Cal.2d 822, indicated that multiple prosecutions for one offense raised great concerns. “Taxpayers’ money is being wasted, and it’s undue harassment,” said Arzbaecher, a staff attorney for the Central California Appellate Program. The two cases against Britt could have been joined, he added, considering that El Dorado County prosecutors knew their counterparts in Sacramento County were already proceeding with a case. Justice Carlos Moreno asked whether there would be a problem if the two counties in question weren’t neighbors, but instead were hundreds of miles apart. Wouldn’t that be burdensome for everyone involved, he asked, especially witnesses? Arzbaecher conceded it might, but maintained “the same evidence would be used nonetheless.” He also argued that Britt committed a single crime that extended over time, not two separate crimes. “To make Mr. Britt go through the anguish of two prosecutions based on the same evidence,” he said, “would be unfair harassment.” Brosterhous, meanwhile, raised the argument used last year by the majority on Sacramento’s Third District Court of Appeal in upholding Britt’s dual prosecutions. The state Legislature, they noted, adopted Penal Code § 290(a) requiring sex offenders to register with authorities within five days of arriving at a new location and Penal Code § 290(f) requiring notification within five days of departure from the last residence. Brosterhous said legislators clearly intended prosecution for two violations in separate locales. In dissent last year, Third District Justice Rick Sims said he believed that the violation of different statutes wasn’t possible where a defendant had a single criminal intent — to move anonymously from one county to another. Britt’s intent wasn’t clear, but there was a suggestion in court records that he had registered on his birthday — as he was required — just before moving, and didn’t think he had to register again so soon. In his dissent, Sims also said he thought that Britt’s prosecution for two registration offenses was “chicken.” “In ordinary parlance,” he added, “I would use a slightly different word than �chicken,’ but, after all, this is an opinion.” After Thursday’s hearing, both lawyers had no idea how they had fared. “I couldn’t read them,” Brosterhous said. “They were all over the map. It’s certain some of them are concerned with piling on.” Arzbaecher said he “believes in his case,” but had no feel for the outcome. “That’s the problem with trying to read this court,” he said. “You never know if they’re playing the devil’s advocate or not.”

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