THE PEOPLE, Plаintiff and Respondent, v. TYRONE MASON, Defendant and Appellant.
No. B239134
Second Dist., Div. One.
Aug. 6, 2013
A petition for a rehearing was denied September 4, 2013.
218 Cal. App. 4th 818
JOHNSON, J.; Mallano, P. J., and Rothschild, J., concurred.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
JOHNSON, J.—Appellant Tyrone Mason challenges his conviction for failure to register as a sex offender. He argues reversal is required because the trial court committed prejudicial instructional error, there is insufficient evidence to support the conviction, and that the lifetime registration requirement violates his right to equal prоtection, due process and privacy and
PROCEDURAL BACKGROUND
By amended information, Mason was charged with one count of committing corporal injury upon a cohabitant (
A jury was unable to reach a verdict on the charge of corporal injury upon a cohabitant but convicted Mason of failure to register as a sex offender. (
The trial court found that Mason had suffered the prior convictions (
FACTUAL BACKGROUND
Prosecution case
In March 2011, Alma Minnick was living with Mason and with Rayna Payton, Minnick‘s roommate. They lived in a one-bedroom residence at 668 East 51st Street in Los Angeles. Mason and Minnick, who were engaged, had lived together about four years.
On March 19, 2011, Minnick called 911 to report that Mason had physicаlly abused her and she wanted him “to leave my . . . place.” Minnick told the dispatcher that Mason “may pay on the bills but he don‘t pay no rent.” Minnick and Mason yelled at one another during the 911 call and, at
Minnick told the officers who responded tо the 911 call that she and Mason “had been in a four-year dating relationship and . . . had been living together for the duration of the four years.” Payton also said that Minnick and Mason were her roommates. Mason too told the police that he lived at the 51st Street address.
At trial, Minnick denied that she and Mason had lived together. She said Mason cаme “over to visit frequently every now and then” and that he spent the night about once a month. Minnick testified that Mason “was homeless and [she] didn‘t want him moving in at the time because of his . . . [sex offender] registration.” Payton also testified, and denied that she lived at the 51st Street residence with anyone but Minnick; Mason, she said, was there “on an in-and-out status.”2 At the prеliminary hearing, Payton had testified that she had lived at the 51st Street with Minnick and Mason “[t]he whole time” since she had begun living there in October 2010. Minnick and Mason slept in the bedroom and she slept on a living room sofa.
In sex offender registration documents dating from 1998 to March 2, 2011, Mason registered either as a transient or as a resident at an address on Wall Street. He never registered at the 51st Street address.3
Defense case
When he testified, Mason admitted having been convicted of spousal rape in 1996 and failing to register as a sex offender in 2003 and 2004.
Mason was homeless on March 19, 2011. He visited Minnick, his then fiancée, at the 51st Street residence on that day and most days. He did not receive mail or keep personаl possessions at the 51st Street address. Mason acknowledged having corrected Minnick when she said “my room,” during the 911 call, to “our room.” He said he did so “because [he‘s] always there and plus the fact [he‘s] in a relationship with [Minnick], or was.” Mason denied ever residing at the 51st Street address.
Mason knew he was required to register as a sex offendеr; his registration was up-to-date in March 2011.
Mason contends the jury instructions for the failure to register offense erroneously omitted a requirement that the prosecution prove his prior spousal rape conviction involved force or violence. The Attorney General insists Mason has waived this argument or that it is barred by the doctrine of “invited error.” Neither of the Attorney General‘s arguments has merit. We find the instructional error was not harmless beyond a reasonable doubt.
A defendant convicted of one of the enumerated offenses under section 290 is required to register for the rest of his life with the police department in the city in which he lives. (People v. Sorden (2005) 36 Cal.4th 65, 72–73.) Section 290 states that, “[e]very person described in subdivision (c), for the rest of his or her life while residing in California . . . shall be required to register” as a sex offender. (
Here, the prosecution proved Mason‘s prior conviction for spousal rape based on an abstract of judgment and prison packet. But, the specific nature of that underlying crime was never alleged against Mason or mentioned at trial. Nor was the jury instructed that, to find Mason guilty of the failure to register offense, it first had to find that his spousal rape conviction involved force or violence. Instead, the jury was instructed only that: “The defendant is charged in Count two with failing to register as a sex offender. [[]] To prove that the defendant is guilty of this crime, the People must prove that: [[]] 1. The defendant was previously convicted of rape of a spouse pursuant to . . . section 262[, subdivision] (A)(1) . . . .” The jury‘s verdict did not establish the nature of Mason‘s spousal rape conviction. Rather, the jury
1. Mason did not forfeit his claim of instructional error
Mason did not object to the above instruction nor did he ask that the instructions be modified to require the jury to find his prior spousal rape conviction involved force or violence. The Attorney General argues Mason forfeited his challenge by failing to object оr seek a modified instruction at trial.
“‘[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Mejia (2012) 211 Cal.App.4th 586, 617; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) But no forfeiture will be found where, as here, the court‘s instruction was an incorrect statement of the law (Hudson, at p. 1012), or the instructional error affected the defendant‘s substantial rights. (People v. Franco (2009) 180 Cal.App.4th 713, 719–720;
2. The doctrine of invited error does not apply.
The Attorney General also argues Mason‘s claim of instructional error is barred by the doctrine of “invited error.” That doctrine holds: “‘[W]hen a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.’ [Citation.] . . . [¶] . . . [T]he doctrine . . . is ‘an “application of the estoppel principle” [Citation.] . . . At bottom, the doctrine [aims] . . . to prevent a party from misleading the trial court and then prоfiting therefrom in the appellate court. [Citations.]. . . .‘” [Citation.] [[]] [T]he invited error doctrine ‘applies “with particular force in the area of jury instructions. . . .“‘” [Citation.] . . . [A] party who . . . acquiesces in . . . a particular jury instruction cannot appeal the giving of that instruction.” (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000.)
The Attorney General maintains that Mason‘s trial counsel acceded to the challenged instruction for tactical reasons because, had the jury been required
But “[i]nvited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction.” (People v. Souza (2012) 54 Cal.4th 90, 114.) On this record, we cannot definitively conclude that Mason‘s trial counsel made a deliberate tactical choice by not objecting to or seeking modification of the jury instruction on the section 290 charge. “[M]erely acceding to an erroneous instruction does not constitute invited error.” (People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.) The trial court had a sua sponte duty to instruct the jury fully as to the essential elements of the charged offense. (People v. Flood (1998) 18 Cal.4th 470, 481.)
Further, even in the absence of an objection or when a party has acquiesced or concurred in the trial court‘s giving of an instruction, that instruction may be reviewed on appeal if it affected the defendant‘s “substantial rights.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249;
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Our charge is to determine whether the trial court “‘fully and fairly instructed on the applicable law.’ [Citation.]” (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. (People v. Stone (2008) 160 Cal.App.4th 323, 331.) Where reasonably possible, we interpret the instructions “‘to support the judgment rather than [to] defeat it.‘” (Ramos, at p. 1088.)
4. Analysis
To obtain a conviction here the prosecution had to prove Mason had been convicted of a specific registration offense, i.e., spousal rape “involving the use of force or violence.” (
“[A]n erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18.” (People v. Gonzalez (2012) 54 Cal.4th 643, 663; see Neder v. United States (1999) 527 U.S. 1, 15.) “In such cases, ‘the harmless-error inquiry [asks whether it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?‘” (Gonzalez, at p. 663.)
In a one-paragraph discussion, the Attоrney General concedes the instructional error but urges this court to find it harmless. The Attorney General argues Mason is bound by his admission that his spousal rape conviction obligated him to register as a sex offender. We disagree. The record establishes only that Mason was told he was required to register and did so for a time. At no point did Mason сoncede that the reason he was told to register was because his spousal rape conviction involved force or violence. Nor is there anything in the trial record that addresses whether the prior spousal rape
The question then is whether the omission of an element from the jury instruction as to the charged crime is prejudicial under the Chapman test. “Harmless-error review looks . . . to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279; see People v. Kobrin (1995) 11 Cal.4th 416, 429-430.)
We conclude there is prejudice under Chapman. The prosecution failed to prove Mason‘s spousal rape conviction involved force or violence. A properly instructed jury could reasonably conclude that evidence of the spousal rape conviction, even considering Mason‘s admitted prior registration, failed to prove beyond a reasonable doubt that the nature of that conviction involved force or violence as required by
Because the evidence is insufficient to prove that Mason‘s spousal rape conviction involved force or violence, he cannot be retried for failure to register as a sex offender оn the basis of the conduct at issue in this case.
The judgment is reversed.
Mallano, P. J., and Rothschild, J., concurred.
A petition for a rehearing was denied September 4, 2013.