MEMORANDUM **

Unlike subsequent versions of California Penal Code § 290, which describe the registration obligations of transients, see, e.g., CaLPenal Code § 290(a)(C)(i) (2005), at the time of Smith’s alleged offense in 1996, a homeless person’s registration obligations were unclear. See CaLPenal Code §§ 290(a), (f) (1996). The state failed to introduce sufficient evidence to support a finding that Smith knowingly faded to register under the statute. “[A]ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.” Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 243, 2 L.Ed.2d 228, 232 (1957). Therefore, Smith’s conviction cannot stand.

“Because a defendant may not be retried under the Double Jeopardy Clause if the evidence against him is insufficient to support a conviction,” (United States v. Messer, 197 F.3d 330, 341 (9th Cir. 1999); see also Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 566-67 (1979)), the district court must issue the writ of habeas corpus. Although Smith has requested a new trial, because his conviction is insufficient as a matter of law under Jackson, he may not be retried.

REVERSED and REMANDED for issuance of the writ in accordance with this memorandum disposition.