P. v. Wilkins

Filed 9/10/07 P. v. Wilkins CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant was convicted by jury trial of failing to reregister as a sex offender within five days of changing his address (Pen. Code, 290, subd. (a)(1)(A)) in August 2004, and of failing to update his sex offender registration within five days of his birthday (Pen. Code, 290, subd. (a)(1)(D)) in January 2005. The court found true allegations that defendant had suffered three prior serious felony convictions (Pen. Code, 667, subds. (b)-(i), 1170.12) and served three prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)). The court imposed a state prison term of four years. On appeal, defendants sole contention is that the trial court prejudicially erred in failing to instruct sua sponte on mistake of fact. We find no prejudicial error and affirm the judgment.

I. Factual and Procedural Background

Defendant was born on January 24, 1969. In July 1982, when defendant was 13 years old, defendant was committed to the California Youth Authority (CYA) after he was found to have committed three counts of forcible oral copulation (Pen. Code, 288a, subd. (c)). He was paroled from the CYA in November 1989 and discharged from parole in 1990.

Defendant first registered as a sex offender on October 28, 1998. His signature on the 1998 registration form was beneath an acknowledgment of his registration obligations. It stated that he was registering in compliance with Section 290 P.C. and that my requirement to register is for life. I must, within 5 working days: register with the agency having jurisdiction over my residence address; notify the last registering agency when I leave their jurisdiction[.] Annually within five working days of my birthday, I must update my registration address, name and vehicle information. In 1999, defendant signed another sex offender registration form containing the same acknowledgements.

In October 2001, while in prison, defendant signed a form, boldly entitled SEX OFFENDER REGISTRATION (290 P.C.). The sole purpose of this form was to notify defendant of his sex offender registration obligations. It itemized his registration obligations. My responsibility to register as a sex offender is a lifetime requirement. [] I must register within 5 working days of coming into, or of changing residence or location within, any city, county, or city and county in which I am located or residing with the law enforcement agency having jurisdiction over my location or place of residence. [] Upon changing my location or place of residence, either in the present registering agencys jurisdiction, or anywhere inside or outside of the state, I must inform in writing within 5 working days the law enforcement agency with which I last registered. [] . . . [] I must annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration, name and vehicle information. (Original boldface.) Defendant signed the October 2001 form beneath an acknowledgement that he had been notified of my duty to register as a convicted sex offender pursuant to Section 290 of the California Penal Code and that he understood the itemized registration obligations.

In early December 2001, just after defendants release from prison, he met with his parole agent, Michael Wanzenried. Wanzenried provided defendant with a form that listed the conditions of his parole. One of the parole conditions listed on the form was that defendant was required to have Penal Code 290 registration verification at all times and must present it to law enforcement officer during any contact or interaction Defendant signed the parole condition notification form, acknowledging that he had read and understood the conditions.

Defendant told Wanzenried that he did not think he needed to register as a sex offender. Wanzenried contacted the Department of Justice and the San Jose Police Department and confirmed that defendant was required to register as a sex offender. Wanzenried informed defendant that he was required to register as a sex offender under Penal Code section 290 and that this was a lifetime obligation. Wanzenried reviewed a sex offender registration notification form with defendant and had defendant confirm that he understood each of the requirements of Penal Code section 290. Defendant signed the notification form, which was similar to the one he had signed in October 2001, acknowledging that he had been notified of and understood his registration obligations.

Wanzenried told defendant to go to the San Jose Police Department and register as a sex offender. On December 18, 2001, defendant registered at the San Jose Police Department and signed a Penal Code section 290 sex offender registration form acknowledging that he had been notified of my duty to register as a convicted sex offender under PC 290 . . . . (Boldface in original.) His registered address was on Monterey Road in San Jose. On the back of this form, defendant placed his initials next to statements of each of his Penal Code section 290 registration obligations.

In February 2002, Wanzenried met with defendant again and told him to update his Penal Code section 290 registration. Defendant again went to the San Jose Police Department and signed and initialed a registration form just like the one he had signed in December 2001. He registered an address on South Second Street in San Jose. A comment on the form, which defendant initialed, said: Subject stated he was not aware he had to come in within five days of his birthday. Thus he was late.

On March 29, 2002, defendant again signed and initialed a registration form, just like the two previous ones, at the San Jose Police Department. This time he registered an address on South Fourth Street in San Jose. Wanzenried stopped supervising defendant in August 2002.

Defendant registered a change of address to Stary Road in San Jose on March 27, 2003. At the top of the form, which was just like the other registration forms, it said Late for Annual. A comment on the form said Subject states he did not come in for his annual as he did not know he was required to come in every year at his birthday. Defendant signed and initialed this form just as he had the previous ones.

Robyn Rodriguez became defendants parole agent in June 2003. In January 2004, while in prison, defendant signed another sex offender registration notification form, like the ones he had signed in October and December 2001, placing his initials next to each statement of his Penal Code section 290 registration obligations. In March 2004, Rodriguez met with defendant after his release from prison and advised him of his lifetime obligation to register under Penal Code section 290. Rodriguez told defendant that his registration obligation was not just a requirement for parole but an independent obligation required by law . . . for the rest of [his] life.

In March 2004, defendant registered a change of residence to Fruitdale Avenue in San Jose, and signed and initialed a registration form just like the others acknowledging his registration obligations under Penal Code section 290. A notation at the top of the form said Late next to the annual update checkbox. A comment on the form said Subj. is late for annual because he was incarcerated.

In June 2004, Rodriguez took defendant to the San Jose Police Department, where he registered a change of address to Meridian Avenue in San Jose and again acknowledged, by signing and initialing the registration form, that he was aware of each of his registration obligations under Penal Code section 290. This was the last time that defendant registered. Although defendant had registered a number of changes of address in 2002, 2003, and 2004, he had never complied with his obligation to update his registration annually within five days of his birthday.

In August 2004, Rodriguez unsuccessfully tried to contact defendant at his Meridian Avenue address for a scheduled home visit. She tried again a few days later, but to no avail. Rodriguez learned that defendant was not living at that address. Defendant ceased residing at the Meridian Avenue address in mid-August 2004. Defendant did not register his August 2004 change of address, and he did not complete his annual update of his registration within five days of his January 2005 birthday. A warrant was issued for defendants arrest in March 2005, and defendant was arrested in San Jose in August 2005.[1]

Defendant was charged by information with failing to reregister as a sex offender within five days of changing his residence (Pen. Code, 290, subd. (a)(1)(A)) in August 2004, and of failing to update his sex offender registration within five days of his birthday (Pen. Code, 290, subd. (a)(1)(D)) in January 2005. It was further alleged that defendant had suffered three prior serious felony convictions (Pen. Code, 667, subds. (b)-(i), 1170.12) and served three prison terms for prior felony convictions (Pen. Code,  667.5, subd. (b)). The prior conviction and prison prior allegations were bifurcated, and defendant waived his right to a jury trial on these allegations.

At the commencement of trial, the trial court instructed the jury that the People had the burden of proving that defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 . . . .

Defendant testified at trial that, up to and including the time of his 1989 parole from the CYA, he was never informed that he was required to register as a sex offender under Penal Code section 290. He acknowledged signing numerous notifications of his Penal Code section 290 registration obligations and numerous Penal Code section 290 registration forms from 1998 to 2004 and initialing each of his registration obligations on a number of these forms, but he claimed that he didnt even read these forms and didnt understand that these forms were notifying him of his registration obligations under Penal Code section 290. Defendant testified that he did not think it was important to read these forms. I didnt pay the form any attention. Im not even looking at none of these forms that Im actually signing. Read them for what? My say so dont matter, because I had a complaint about the whole thing altogether.

Defendant denied that Wanzenried had told him that he was required to register under Penal Code section 290 or explained his registration obligations. Defendant testified that he told Wanzenried that I wasnt told by no one to register, but Wanzenried told him that registration was a parole condition. Defendant testified that he had received a letter from San Jose Police saying that I didnt have to register. He showed the letter to Wanzenried, but Wanzenried still made him register. Defendant also testified that Rodriguez had not informed him of his obligation to register under Penal Code section 290.

Defendant testified that he did not understand that he was required to register under Penal Code section 290. He thought that registration was a parole condition and that he would be arrested for violating his parole if he failed to register, but he did not understand that he would be committing a criminal offense if he failed to register.

Defendant admitted that he had moved out of the Meridian Avenue address in August 2004 without notifying his parole agent or the San Jose Police Department. He did not notify the police because [i]t didnt matter and I didnt think I had to. Defendant moved to East Palo Alto where he lived with his girlfriend for most of the year. He also resided for short periods of time in San Jose and in Oakland. Defendant admitted that he had not registered within five days of his January 2005 birthday. Defendant testified that he didnt know I had to register on my birthday or within five days thereof. I was never told to register on my birthday.

The evidentiary portion of the trial lasted less than a day and a half. Defendants trial counsel argued to the jury that defendant lacked knowledge of his registration obligations under Penal Code section 290 because he had never read or understood the various forms that he signed acknowledging his registration obligations under Penal Code section 290. She asserted that Penal Code section 290 is a very complicated law. The prosecutor responded in his closing argument. Just because you dont care enough or just because you are not diligent or on top of things and are timely in your registration doesnt mean you dont know. The difference [is] between not caring and not knowing . . . . His not caring is not an excuse. Its not a defense.

The court instructed the jury after closing arguments. It told the jury that the People had the burden of proving beyond a reasonable doubt that defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 by informing in writing within five working days of changing his residence address the law enforcement agency with which he last registered of his new address or location. The court also instructed the jury that the People had the burden of proving beyond a reasonable doubt that defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 within five working days of his birthday wherever he resided. In addition, the jury was instructed that the People were required to prove beyond a reasonable doubt that defendant had willfully failed to register. The jury was told that [a] person willfully fails to register when the failure is done with actual knowledge of the duty to register pursuant to Penal Code section 290.

During deliberations, the jury requested [a] definition of the word knew, and the court responded in writing that [t]he word knew is not specifically defined in the instructions; thus, you should use its ordinary, everyday meaning. The jury deliberated for a total of about two hours before returning guilty verdicts. After a court trial on the prior conviction and prison prior allegations, the court found all of those allegations true.

The trial court thereafter struck two of the three prior conviction findings and also struck the punishment for the prison priors. It imposed a four-year state prison term. Defendant filed a timely notice of appeal.

II. Analysis

Defendants sole contention on appeal is that the trial court prejudicially erred in failing to instruct sua sponte on mistake of fact.

All persons are capable of committing crimes except those belonging to the following classes: . . . ThreePersons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. (Pen. Code, 26.) At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. (People v. Hernandez (1964) 61 Cal.2d 529, 535, internal quotation marks omitted.) A mere belief, unsupported by a showing of due care and bona fide, reasonable effort to ascertain the facts, is insufficient to constitute a mistake of fact defense. (People v. Dillard (1984) 154 Cal.App.3d 261, 267.)

Defendant claims on appeal that his trial testimony should have made it apparent that he was defending on the ground that he mistakenly believed that his obligation to register as a sex offender was only a parole condition, not an obligation under Penal Code section 290. By attempting to meld defendants two beliefs into one, defendant obscures precisely what the fact is that he asserts was the subject of his mistake. The only mistake of fact that constitutes a defense to a crime is a mistake that would make the act or omission innocent. The omission here was defendants failure to register. Assuming that defendant mistakenly believed that failing to register would violate his parole conditions, this mistaken belief would not make his failure to register innocent.[2] It would not establish that he lacked the criminal intentactual knowledgethat is an element of a Penal Code section 290 violation. The only potentially viable mistake of fact defense that defendants testimony could have supported was that defendant mistakenly believed that he was not required to register under Penal Code section 290. Had defendant actually made this mistake of fact, his failure to register would have lacked the requisite criminal intent and therefore would have been innocent.

It is questionable whether mistake of fact instructions were warranted in this case even as to this very limited potential mistake of fact defense. In the absence of a request for a particular instruction, a trial courts obligation to instruct on a particular defense arises only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148, internal quotation marks omitted.)

It was not readily apparent that defendant was relying on a mistake of fact defense in addition to a lack of actual knowledge defense. Defendant testified at trial that Wanzenried told him, and he believed, that registration was a parole condition. He also testified that he did not know that he was required to register under Penal Code section 290. Defendant asserted that he believed that failing to register would only be a violation of his parole, not a criminal offense. Defendant did not testify that he disbelieved the notices or those who told him he was obligated to register under Penal Code section 290. Defendant testified instead that he did not read any of the forms and no one ever told him that he was obligated to register under Penal Code section 290. All of this testimony was plainly directed at his lack of knowledge defense and did not suggest that he was also raising a mistake of fact defense.

Assuming arguendo that mistake of fact instructions were warranted on defendants claim that he mistakenly believed that he was not required to register under Penal Code section 290, any error in omitting such instructions was harmless. The California Supreme Court has not definitively resolved whether the failure to instruct on a defense is a federal constitutional error subject to review under Chapman v. California (1967) 386 U.S. 18, or a state law error subject to review under People v. Watson (1956) 46 Cal.2d 818. (People v. Wright (2006) 40 Cal.4th 81, 98-99 (Wright).) However, the California Supreme Court has held that an error in failing to give instructions on a defense is not prejudicial under either standard if the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (Wright, at p. 98.)

Here, the factual question that would have been posed by mistake of fact instructions was necessarily resolved against defendant under the actual knowledge instructions properly given by the trial court. The jury was fully and accurately instructed that the prosecution had the burden of proving beyond a reasonable doubt that defendant actually knew of each of his Penal Code section 290 registration obligations, and the jury necessarily concluded beyond a reasonable doubt that defendant actually knew that he was required to register and update his registration under Penal Code section 290.

Defendant claims that the jury should have been instructed that it could not convict him if it had a reasonable doubt as to whether he had made a reasonable mistake of fact in mistakenly believing that he was not obligated to register under Penal Code section 290. The jurys findings that defendant actually knew of his registration obligations under Penal Code section 290 necessarily resolved the issue of whether defendant mistakenly believed that he was not required to register under Penal Code section 290, thereby negating any possibility that the omission of mistake of fact instructions influenced the jurys verdicts. The allegedly erroneous omission of mistake of fact instructions was harmless because the factual question that would have been posed by mistake of fact instructions was necessarily resolved by the jury under the actual knowledge instructions.

III. Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] It was undisputed that defendant was not incarcerated between August 2004 and August 2005.

[2] It was undisputed that defendants asserted belief was accurate, not mistaken, that his parole conditions required him to register as a sex offender, and that failing to register would be a violation of his parole. His parole conditions required him to obey all laws, which obviously included Penal Code section 290, and it was a special condition of his parole that he carry his sex offender registration with him at all times.