People v. Garcia

KENNARD, J., Concurring and Dissenting.

I agree with the majority that a conviction of the crime of willful failure to register as a sex offender (Pen. Code, § 290) 1 requires proof that the defendant had actual knowledge of the registration requirement. I disagree, however, with the majority’s conclusion that here the trial court’s failure to instruct the jury on the element of knowledge was harmless.

I

In 1990, defendant entered a no contest plea to two crimes requiring registration as a convicted sex offender. At that time the prosecutor told *760 defendant, “You will be required to register under Penal Code Section 290,” but he did not explain what such registration entailed. Defendant was sentenced to prison.

Upon defendant’s release on parole in 1993, he signed a form acknowledging that he had been told of his duty to register “with a law enforcement agency” and to do so “within 14 days of coming into any city, county or city and county in which [he was] domiciled.” He was immediately deported to Mexico, but he later returned illegally to California. In September 1995, defendant was driving a car when a police officer stopped him for a minor traffic violation. Defendant had no driver’s license and gave a false name to the officer.

In December 1995, a police investigator talked to defendant at his place of employment and asked if he knew he had to register as a sex offender. Defendant replied he “wasn’t really sure” he had been told to do so. He then made an appointment to register at the police station. When he arrived there, the police promptly arrested him for failure to register as a sex offender. His two prior convictions were alleged as strikes under the three strikes law.

At trial, defendant asserted he did not know of the registration requirement. He said that he had not been told of that registration requirement when he pled no contest to the two sex offenses, that he did not read the documents he signed when released on parole, and that fear of deportation led him to give a false name when stopped for the traffic violation.

In closing argument, defense counsel tried to argue to the jury that defendant did not know of his duty to register, and therefore his failure to do so was not “willful” under section 290: “[T]his has got to be the willful failure to register. There’s got to be an omission with purpose or willingness to make the omission in question. HQ And what I suggest to you in this case is there was no willingness, no purpose or willingness to omit or make the omission in question because [defendant] was not aware of the requirement.” (Italics added.) The prosecutor objected, asserting, “That misstates the law.” The trial court sustained the objection, stating: “Right. I have instructed the jury and you cannot change those instructions . . . .” Thereafter, the prosecutor in his own closing argument stressed to the jury that lack of knowledge of the duty to register as a sex offender was not a valid defense.

II

A trial court’s failure to instruct the jury on an element of the crime requires reversal when “the defendant contested the omitted element and *761 raised evidence sufficient to support a contrary finding . . . (Neder v. United States (1999) 527 U.S. 1, 19 [ 119 S.Ct. 1827, 1838 , 144 L.Ed.2d 35 ] (Neder).) The high court in Neder also pointed out that the error is not prejudicial when on appeal it is clear “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence . . . .” (Id. at p. 17 [ 119 S.Ct. at p. 1837 ].) In addition, this court has held that such error is harmless when the reviewing court can determine beyond a reasonable doubt, based on jury findings that may be inferred from other instructions, that the instructional error did not contribute to the verdict. (People v. Hagen (1999) 19 Cal.4th 652, 670-671 [ 80 Cal.Rptr.2d 24 , 967 P.2d 563 ].)

Here, the trial court’s jury instructions did not omit an element of the offense charged. The instructions were potentially misleading, however, because they did not clarify that the element of willful failure to register as a sex offender could be satisfied only if the jury found that defendant knew of his duty to register. If the court had done no more, its failure to clarify for the jury the meaning of the word “willful” might have been harmless. But when, in closing argument, defense counsel tried to argue that defendant should be acquitted because he did not know he had to register as a convicted sex offender, the court erroneously told the jury the argument misstated the law. The court characterized defense counsel’s argument as an attempt to “change” the court’s instructions to the jury. The court’s actions effectively removed the element of knowledge from the jury’s consideration. Consequently, the error must be evaluated under the test articulated at the outset of this section.

Defendant testified he did not know of the registration requirement. Certain conduct by defendant tends to support that claim. When—in the wake of a traffic stop during which defendant could not produce a driver’s license and, fearing deportation, gave the officer a false name—a police investigator told defendant of his duty to register as a sex offender, defendant promptly tried to do so at the nearest police station, where he was immediately arrested for failure to register. Through his testimony, defendant contested the omitted element of knowledge. Because his testimony was plausible, it would have been sufficient to support a jury finding that the prosecution had failed to prove that element.

The majority insists, however, that the error did not contribute to the verdict. It points to an instruction telling the jury here that to convict defendant of failure to register as a sex offender, it must find that he “was informed of his duty to register under Penal Code section 290 by an official in charge of the place of confinement” and that he “read and signed a form *762 . . . stating that the duty of [defendant] to register under Penal Code section 290 had been explained to him.” The majority concludes that in light of this instruction, the jury’s verdict convicting defendant implies a finding that defendant read the form. According to the majority, this finding establishes beyond a reasonable doubt that “the same jury, properly instructed on the knowledge requirement, would also have concluded that [defendant] was aware of his duty to register.” (Maj. opn., ante, at p. 755.) Not so. The jury might well have concluded that defendant, who testified he was given “many, many papers to sign,” skimmed through the form before signing it but did not grasp its import and therefore did not realize he had to register as a sex offender when, after deportation to Mexico, he illegally returned to California.

Had the trial court instructed on the knowledge element, the jury might well have found that defendant knew of his duty to register. But, based on defendant’s testimony, it could just as reasonably have reached a contrary finding. When, as here, a defendant has “contested the omitted element and raised evidence sufficient to support a contrary finding” (Neder, supra, 527 U.S. at p. 19 [ 119 S.Ct. at p. 1839 ]), the trial court’s failure to instruct the jury on the element in question requires reversal. (Ibid.)

For the reasons given above, I would reverse the Court of Appeal’s judgment affirming defendant’s conviction.

Mosk, J., concurred.

Appellant’s petition for a rehearing was denied July 18, 2001, and the opinion was modified to read as printed above.

All further statutory references are to the Penal Code.