Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN213600 Joan P. Weber, Judge.
HUFFMAN, J.
A jury convicted Robert J. Bryant of willfully failing to register as a sex offender with a prior registerable felony conviction in violation of Penal Code section 290, subdivision (g)(2). In a bifurcated proceeding, the trial court then found true allegations that Bryant had previously suffered four strike priors (§§ 667, subds. (b)-(i), 1170.12) and a prison prior (§ 667.5, subd. (b)). After denying Bryant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero) to strike three of his strike priors, the court sentenced Bryant to prison for a total term of 26 years to life, consisting of a 25-year-to-life term under the Three Strikes Law plus a consecutive one year for the prison prior.
All statutory references are to the Penal Code unless otherwise specified. Although section 290 was repealed and replaced by the Sex Offender Registration Act, effective October 13, 2007 (Stats. 2007, ch. 579, § 8, p. 3741), in this opinion we refer to the version of section 290 in effect at the time of Bryant's offense.
Bryant appeals, raising numerous issues, including challenging the sufficiency of the evidence, several claims of instructional error, and due process and equal protection challenges to section 290. He also contends that the trial court erred in refusing to grant his Romero motion to strike three of his strike priors and that the punishment for a felony section 290 conviction as well as a three strikes sentence for such constitute cruel and/or unusual punishment under the state and federal Constitutions. As we explain, because of the problems with pleading, proof, and instructions in this case, we cannot confidently conclude that the jury verdict was based on a legally sufficient theory and therefore reverse the judgment.
Bryant specifically contends that: (1) there is insufficient evidence to support his conviction; (2) section 290 fails to provide "the kind of notice that will enable ordinary people to understand what conduct it prohibits;" (3) the giving of CALCRIM No. 1170 deprived him of due process because it inadequately defines the elements of the charged offense; (4) the trial court prejudicially erred in failing to give an unanimity instruction; (5) the trial court prejudicially erred in refusing to instruct on the defense of necessity thereby depriving him of his right to present a defense; (6) the cumulative effect of the above trial errors was prejudicial and mandates reversal; (7) the provisions of section 290, which base punishment as a misdemeanor or a felony on whether the underlying act that required registration was respectively a misdemeanor or a felony violates equal protection under the state and federal constitutions; (8) the "felony" section 290 punishment and the 25-year-to-life punishment under the three strikes law for a first time registration offense, together and separately, constitute cruel and/or unusual punishment under both the federal and state constitutions; and (9) the trial court failed to properly exercise its discretion in refusing to dismiss three of his four prior strike convictions in the interest of justice.
FACTUAL BACKGROUND
Here the record before the jury showed in the prosecution case that Bryant had been sent to prison after being convicted on April 15, 1998, of committing a lewd act on a child under the age of 14 years (§ 288, subd. (a)) and of attempting to commit three other lewd acts on a child (§§ 288, subd. (a)/664), all registerable sex offenses. During his prison stay, Bryant was befriended by Jeff Ghelardi, a volunteer through a charitable program, who visited him and helped him plan for his transition from prison back into the community before his release in September 2005. Ghelardi essentially agreed to help Bryant rent an apartment by advancing money for rent and other expenses that Bryant would pay back once he was gainfully employed.
Before Bryant's release, a prison counselor reviewed with him the "special" conditions of parole that he would be required to adhere to in order to "stay out of prison." Bryant acknowledged these parole conditions, including one that he would be required to register as a sex offender, with his signature. When he was released September 10, 2005, he met with Ghelardi, who lent him a pickup truck, a cellular phone and some money. On September 12, 2005, Bryant reported to the Oceanside parole office where he met with a parole duty agent for his initial interview and processing.
At that time, the agent "completely" covered all of the conditions of Bryant's parole, including discussing with him in detail his special sexual offender registration requirements. During the hour-long meeting, in which Bryant participated and asked questions, the agent specifically advised him that within five days, he was required to "register as a sex offender" with local law enforcement and that any time he was released from custody or had an address "change," he was required to reregister. Bryant signed and dated the list of conditions. The agent also had Bryant fill out a parolee release report/initial interview form in which he listed Motel 6 on Coast Highway in Oceanside as his residence and Ghelardi as his emergency contact.
The agent gave Bryant a copy of each of the above forms, a temporary parolee identification card, and told him to report to the parole office every Friday and to attend an orientation meeting September 27, 2005 at the Parole Agency Community Service Training (PACT), an agency providing information and assistance to parolees about community resources such as housing, employment, and counseling.
Before that meeting, which Bryant attended, he registered September 16, 2005, as a sexual offender with the Oceanside Police Department (OPD), providing the address 519 North Nevada Street, apartment R, for his residence. After Bryant completed his portion of the form, OPD Community Services Officer Ryan Davis re-explained to Bryant all of the conditions that applied to his registration as a sexual offender. In doing so, Davis specifically advised Bryant that if he were to leave the North Nevada Street address, he was to notify the OPD within five days and that if he were to become incarcerated at any point in the future, upon his release he was required to "re-register with the law enforcement agency having jurisdiction over" his place of residence. Bryant stated he understood all the conditions, initialed each one and then signed the bottom of the form. Bryant also dated and signed an acknowledgment that he had received a copy of the form, and a second copy was later mailed to him at the North Nevada Street address.
Because Ghelardi had had difficulties finding an apartment complex that would rent to a parolee, he had lied to the manager saying he was renting the North Nevada Street apartment for himself and noting that his "assistant" would occasionally be staying there. Ghelardi paid the deposit for the apartment and one month's rent on a six-month lease that began September 16, 2005.
Thereafter, Bryant's assigned parole agent, Mike Shanahan, began to routinely check up on Bryant, who was working as an independent contractor on two or three construction jobs. Shanahan's purpose was to assure that Bryant was living and working in accordance with his representations to the parole office and his condition of parole. Shanahan's duties included random visits to Bryant's worksites, as well as searches of his North Nevada Street apartment. During one such visit to the apartment on October 14, 2005 to conduct a search, Shanahan found two men who did not live there waiting inside for Bryant to return to pay them money for work they had performed for him on a construction project. The search of the apartment revealed a half case of beer, a half-full beer in the refrigerator and an empty bottle of Jägermeister liqueur inside a kitchen cabinet. Because one of Bryant's parole conditions prohibited him from consuming or having access to alcohol and neither of the men in the apartment were drinking, Shanahan decided to violate Bryant's parole and issued a warrant for his arrest. That afternoon, Bryant was taken into custody for the parole violation and sent back to prison.
Also, that same afternoon, Ghelardi learned of Bryant's rearrest and called to arrange a meeting with Shanahan to clarify Bryant's situation. After that meeting, Ghelardi decided to end his contact with Bryant and to "close the apartment as soon as possible." He did not relay this information to Bryant and was only able to terminate the apartment lease after time and difficulty.
Subsequently, the parole board conducted a hearing on the parole violation and determined that Bryant's parole condition prohibiting alcohol was unnecessary and unrelated to his underlying sexual offenses. After striking the no-alcohol term from his conditions of parole, the parole board ordered Bryant released from prison. Accordingly, on November 15, 2005, Bryant was rereleased from prison, given some "gate money," taken by bus to the trolley, and instructed to report to his parole office within 24 hours.
On November 17, 2005, Bryant reported to the Oceanside parole office and submitted to another "interview and intake procedure." This time, he met with a different parole duty agent, who had him complete a new parolee release report or initial interview form. In filling out the form, Bryant listed "519 North Nevada, Number R, in Oceanside" as his address. The agent again reviewed and explained Bryant's parole conditions with him, stressing that he was required to register with the local police department as to his sex offender status within five days. The agent explained that this meant that based on the address provided, Bryant was to register with the OPD to fulfill his "re-registration" requirement. The agent further commented that if Bryant were to became homeless and without money, he would still be required to register within five days as a "transient" with the local police department. The agent also made an appointment for Bryant to again meet with PACT on November 27, 2005.
Sometime after his release from prison, Bryant called Ghelardi to meet him in the parking lot of the Sports Arena in San Diego, saying he had $300 to repay Ghelardi. At that meeting, Ghelardi told Bryant that after learning more about him from his parole agent, he had decided not to continue helping him or to provide the apartment in Oceanside. Although Bryant indicated he had some job prospects in San Diego, he did not give Ghelardi any money during the meeting.
Bryant did not communicate with his parole office in Oceanside after November 17, 2005. When Shanahan tried to contact him at the cellular phone number listed on his intake form, he discovered that the number had been disconnected. When he then contacted Ghelardi, Ghelardi told him that Bryant had a possible employment opportunity in San Diego. Shanahan also learned that Bryant had not registered with the OPD within five days of being released from prison on November 15, 2005, and had not communicated to the OPD that he was moving from the North Nevada Street address. After confirming Bryant's failure to register on a computer, finding the apartment on North Nevada Street empty and locked on November 21, 2005, and learning from the manager that it had been vacated and considered abandoned on October 31, 2005, Shanahan issued a nationwide media warrant on November 22, 2005, for Bryant's arrest for breaching his parole conditions by failure to register and to notify parole of his whereabouts.
On January 23, 2006, Bryant was arrested on the above warrant in Lexington, Georgia and extradited back to California.
The Defense Case
Bryant testified in his own defense. He admitted he had previously suffered four felony counts of lewd conduct against a child in California for which he served a prison term and that he also had suffered two felony counts of lewd acts against a child in Florida in 1995. He then explained his relationship with Ghelardi through a prison program to assist in his release from prison, noting he had never told him about his underlying sex offenses. Bryant conceded that he was advised of his parole conditions before he was originally released from prison on September 10, 2005, and again at the parole office in Oceanside where he first registered. He also attended the PACT meeting scheduled by the duty parole agent in September, but was told there was no assistance available for him because he was a "290 registrant."
Bryant testified that because his hours of work as an independent contractor on several related jobs were irregular, he stayed in contact with Shanahan via telephone daily. Shanahan stopped by his apartment several times when he was not there and also by his work. On the second visit to his apartment on October 14, 2005, Shanahan found beer and an empty bottle of liquor in the apartment which violated a condition of his parole. Bryant claimed the bottle of alcohol was in the apartment only to cut up to make wind chimes and the beer belonged to one of his employees who was in the apartment at the time of the search. Bryant was arrested the same day and sent back to prison for a parole violation. Before he was rereleased on November 15, 2005, after "some sort of hearing before the Board of Prison Terms," Bryant had had no contact with either Ghelardi or the manager of his North Nevada Street apartment.
Bryant was released with $26 in "gate money" and wearing a prison jumpsuit. He spent the night in a downtown San Diego hotel for between $18 and $20, telephoned Shanahan to inform him where he was at, and took the Coaster to Oceanside the next day after eating a $3.00 breakfast. Once there, Bryant went to the parole office and met with a parole duty agent. Bryant claimed that the agent was gruff and abrasive with him, just handing him some forms to sign in a hurry. As a result, Bryant became agitated and withdrawn and signed and initialed the forms without reading them. He gave the North Nevada Street apartment as the address where he was living because he assumed the apartment was still available to him. Bryant did not remember whether the agent instructed him to reregister with the police, but he recalled the agent told him there was nothing he could do for him because he was not his assigned parole officer. When the agent referred him to PACT, Bryant told him that PACT had no programs for convicted sex offenders. Nonetheless, the agent offered no assistance to him regarding housing.
After the meeting with the parole duty agent, Bryant went to the apartment. However, when he tried to use his key to open the door, it would not work. When he looked inside the apartment, he discovered it was empty and that his belongings were gone. Several of the neighbors who saw him there called him "Chester Molester," a rapist, and pervert and threatened that if he did not leave the complex, it would be "unhealthy" for him and he would be "floating at the beach." The manager then ordered him to leave the complex. Bryant explained that before his arrest for violating parole, he had had a casual relationship with the other residents of the complex and that he had never disclosed to them he was a convict or sex offender.
Bryant said he then contacted a person who owed him some money for work done before his arrest, but to no avail. Neither did he have any luck at a construction site where he checked on the availability of work. After meeting with Ghelardi and learning he would no longer help him, Bryant spent the night at the beach. With no money, food, shelter or way to reestablish his contracting business without a pickup truck or tools, Bryant contacted his sister in Georgia the next day and asked for help. His sister sent him $20 and a bus ticket to Georgia, which he used the following day after spending the night at the Greyhound bus station. He left California about three and a half days after being rereleased from prison.
Bryant conceded he knew he was violating his parole by leaving California without contacting his parole agent, but chose to do so because he was homeless, hungry, had no family here, was scared and threatened by his former neighbors, and he also had not seen his family in about 15 years and wanted to see them over the holidays. Bryant became gainfully employed in Georgia within two days of his arrival there. Although he intended to return to California in February 2006 after he had saved enough money to reestablish himself here, he did not call Shanahan or the OPD from Georgia to advise them of his status and whereabouts because he knew his parole would have been immediately violated and he would have been arrested and brought back to California. Bryant was living in his sister's home when he was arrested in Georgia.
On cross-examination, Bryant acknowledged he had no problems with reading and understanding things and that he had no confusion with the initial registration requirements or forms given at the OPD after his first prison release. Because he had been told by his attorney and the commissioner at the parole violation hearing that the dismissal of his probation violation case had the same effect as if he had not been reincarcerated, Bryant believed that he had to only reregister on his birthday. He denied knowing that he had to reregister with the police when he was rereleased from prison even though the second parole duty agent at the parole office may have told him to do so.
At the close of the evidence, the court instructed the jury with CALCRIM No. 1170 (Failure to Register as Sex Offender), which provided that in order for the jury to reach a guilty verdict, "the People must prove that: [¶] 1. [Bryant] was previously convicted of [section 288(a)] Lewd Act Upon a Child. [¶] 2. [Bryant] resided in Oceanside California. [¶] 3. [Bryant] actually knew he had a duty to register as a sex offender under Penal Code section 290 AND [¶] 4. [Bryant] willfully failed to register as a sex offender with the police chief of that city within five working days of coming into or changing his residence. [¶] Someone commits an act willfully when he or she does it willingly or on purpose." The court also instructed the jury that "[t]he crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crime of Failure to register as a Sex Offender[, a] person must not only commit the prohibited act or fail to do the required act, but must do so intentionally or on purpose." (CALCRIM No. 250.)
After analogizing the registration forms reviewed with, initialed by and given to Bryant by the parole authorities as voluminous escrow papers that were confusing, defense counsel argued that even though Bryant had stipulated to his underlying convictions requiring section 290 registration on his part, the prosecution had failed to prove that he had a residence in Oceanside, which was element two in the instructions. Counsel claimed that when Bryant regained his freedom on November 15, 2005, he had no residence, no help from the community, perfunctory treatment by the parole agents, and merely went to Georgia "to put it back together again [a]nd that's where he is when they find him under the same name." Because the prosecutor had told the jury it would prove element two and had not done so, counsel asked the jury to bring in a "not guilty verdict."
The prosecutor disagreed that the forms given Bryant were as abundant or confusing as escrow papers, that Bryant was mistreated by the parole agents because he was a registered sex offender, and with the sequence of events related by the defense, noting that Bryant had written on the parole office form the North Nevada Street apartment as the address where he was residing before discovering it was not a good address for him. Because Bryant did not then register that address with OPD, even though he knew he was to do so after being told by the parole agent, or advise the parole office or OPD that the North Nevada Street address was no longer his residence after discovering that his key would not work and chose instead to leave the state, he willfully failed to register after coming into or changing his Oceanside residence. The prosecutor argued that Bryant was "simply not credible" when he said he did not realize that he needed to reregister after getting out of prison again or becoming homeless and moving to Georgia because he had twice filled out the same form telling him to do so and both agents had reviewed the provisions with him.
Based on the evidence, instructions, and argument, the jury found Bryant guilty of failing to register as a sex offender "in violation of Penal Code section 290(g)(2), as charged in Count One of the Information."
DISCUSSION
Among other things, Bryant contends there was insufficient evidence to support his count 1 conviction in this case. The information charged him in count 1 with "FAILURE TO REGISTER AS SEX OFFENDER-PRIOR REGISTERABLE FELONY CONVICTION OR PRIOR 290" and recited:
"On or about and between November 17, 2005 and January 21, 2006, [Bryant], while being a person falling within any one or more of the following categories: 1) a person who is residing in California; 2) a person without a residence, but who is located within California; 3) a person who is an out-of-state resident, who is required to register as a sex offender in his state of residence, and is employed in California for more than 14 days and an aggregate period exceeding 30 days in a calendar year; 4) a person who is an out-of-state resident enrolled in an educational institution in California, as defined in Section 22129 of the Education Code, and being a person required to register as a sex offender based upon a prior felony conviction and juvenile adjudication, did subsequently willfully and unlawfully violate a requirement of Penal Code Section 290, to wit: having changed his residence address and location, failed to inform, in writing, within five (5) working days, the law enforcement agency and agencies with which he last registered of the new address and location, in violation of PENAL CODE SECTION 290(g)(2)."
As noted above, the jury found Bryant guilty of failing to register as a sex offender "in violation of Penal Code section 290(g)(2), as charged in Count One of the Information."
In reviewing a challenge of the sufficiency of the evidence, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576.) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the convicted offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [Bryant's crime] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081, original italics.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here, at the time of Bryant's offense in 2005, subdivision (g)(2) of section 290 provided in relevant part, that "any person who is required to register under this section based on a felony conviction . . . who willfully violates any requirement of this section . . . is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years." Although the information did not specify the exact requirement of section 290 that Bryant allegedly had willfully violated, the language of the information closely tracked that of subdivision (f)(1) of section 290, which provided in pertinent part that "any person who is required to register pursuant to this section and who has a residence address and changes his . . . residence address, whether within the jurisdiction in which he . . . is currently registered or to a new jurisdiction inside or outside the state, . . . shall inform, in writing within five working days, the law enforcement agency or agencies with which he . . . last registered of the new address or transient location and any plans he . . . has to return to California." (§ 290, subd. (f)(1).)
However, as evidenced by the jury instruction submitted for count 1, the prosecutor elected to proceed on the theory that Bryant was guilty of section 290 because he "willfully failed to register as a sex offender with the police chief of that city within five working days of coming into or changing his residence," a requirement of registration that was defined under subdivision (a)(1)(A) of section 290 in effect at the time of Bryant's offense. That subdivision specifically provided in relevant part that:
"Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, . . . shall be required to register with the chief of police of the city in which he or she is residing . . . within five working days of coming into, or changing his . . . residence within, any city, county, or city and county . . . in which he . . . temporarily resides." (§ 290, subd. (a)(1)(A).)
Subdivisions (a)(1)(A) and (f)(1) "are separate, albeit closely related, requirements." (People v. Britt (2004) 32 Cal.4th 944, 951.) A defendant who is required to register as a sex offender may be convicted of violating both subdivisions of section 290, if applicable. (Britt, supra, at p. 951.) Specifically, "[s]ection 290, subdivision (a)(1)(A), requires certain sex offenders in California . . . to register with the appropriate law enforcement authorities where they reside. Section 290, subdivision (f)(1), also requires those offenders, when they move, to inform the law enforcement agency where they last registered of their new address or location." (Britt, supra, at p. 951, fns. omitted.) Notably, subdivision (a)(1)(A) applies to sex offenders in California who move into or change their residence or location in California, while subdivision (f)(1) applies to even those offenders, like Bryant, who move outside of California. (See People v. Franklin (1999) 20 Cal.4th 249, 253-256.) Essentially, subdivision (f)(1) of section 290 provides an additional way in which California keeps track of sex offenders for police surveillance even when they move outside the borders of California, and another jurisdiction assumes primary responsibility for surveilling them. (Franklin, supra, at pp. 254-256.)
Because of the prosecutor's election, the question thus becomes whether the record shows substantial evidence to support a finding that the elements of failure to register as a sex offender under section 290, subdivision (a)(1)(A) have been proved. As noted above, the jury was instructed that in order to find Bryant guilty of such crime, it must find he was required to register as a sex offender under section 290, that he had a residence in the city of Oceanside, that he knew he had a duty to so register, and that he had willfully failed to do so with the Oceanside Police Chief, "within five working days of coming into or changing his residence."
On appeal, Bryant does not dispute the first element, which he stipulated to below, that he is a person required to register under section 290. Rather he asserts that the prosecutor failed to prove any of the other elements for his conviction of willfully failing to register under that section. As to the second and fourth elements, he specifically argues the evidence was insufficient to support his conviction on the theory he resided in Oceanside and willfully failed to register with the police chief of that city within five working days of coming into the city because there is no evidence that after his rerelease from prison on November 15, 2005, that he actually resided in or remained in Oceanside for at least five business days during the time of the charged violation. Bryant also claims there is no evidence to support the alternative theory of guilt that he willfully failed to register within five working days of changing his residence in Oceanside because there is no evidence he actually resided in that city. He claims the evidence presented by the prosecutor showed that although he may have believed he had a residence at the North Nevada Street apartment in Oceanside when he was initially rereleased, he actually had lost the residence when he was arrested for the October parole violation and he left Oceanside and the state within three and a half days after being released from custody and discovering that apartment was no longer a place where he could reside. We find some merit to Bryant's arguments.
Similar to the situation in People v. Balkin (2006) 145 Cal.App.4th 487, 491 (Balkin), where there was no evidence that the defendant there had been present within the city or county of Los Angeles for five working days before his arrest for failure to register, or for any five day period between the dates charged in the information of that case, there was no evidence in this case that Bryant remained in Oceanside or San Diego County for more than five business days after getting out of custody and coming into that city on November 17, 2005, before his arrest in Georgia on January 21, 2006. The only evidence before the jury was that Bryant left Oceanside and the County of San Diego on a Greyhound bus three and a half days after getting out of custody and not more than two days after coming into Oceanside and discovering that the address, which he had believed was his residence, was no longer available to him.
Although the five working day requirement generally refers to the time within which a person needs to register and not to the length of a person's stay (People v. Poslof (2005) 126 Cal.App.4th 92, 106), there must be "substantial evidence defendant had established a residence . . . and failed to register within five working days of doing so." (Ibid.) Here, because Bryant listed the North Nevada Street address on the form with the Oceanside parole agent on November 17, 2005, as the address where he resided, there is arguably sufficient evidence to support element two and one theory of the fourth element, that he came into Oceanside with a residence, which he then failed to register with the chief of police of that city within five days of November 17, 2005. However, there appears to be no evidence to support the other theory of the fourth element, that Bryant changed his residence in Oceanside to another residence or location in Oceanside or San Diego County, or any other place in California, and then failed to register that change with the chief of police in Oceanside within five days of doing so.
Normally, in assessing whether substantial evidence supports a defendant's conviction, we must consider both theories of guilt advanced by the prosecution to determine whether either theory is supported by substantial evidence. (People v. Guiton (1993) 4 Cal.4th 1116, 1126-1129 (Guiton).) If one of the prosecution's alternative theories suffers from an inadequacy of proof that is purely factual, "of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in [People v. Green (1980) 27 Cal.3d 1 (Green)], the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Guiton, supra, 4 Cal.4th at p. 1129, fn. omitted.)
In this case, the factually unsupported theory of a violation of subdivision (a)(1)(A) of section 290 mentioned above is basically an erroneous legal theory because a required change of residency in Oceanside, San Diego County or California to trigger the registration requirement is necessary to state a crime under section 290 based on that subdivision. As to such theory, the jury was not instructed on the requirement that the change of residence needed to be to another residence or location in Oceanside, San Diego County or California. In closing argument, the prosecutor did not make any distinction between the theories for finding a subdivision (a)(1)(A) section 290 violation, merely arguing that Bryant had a residence in Oceanside evidenced by the address he gave the parole agent, he knew he had to reregister when he was rereleased from custody, regardless of whether he changed his residence or then became homeless and left the state, and that he also knew he was required to reregister in Georgia and notify the OPD of his move there. Because we cannot determine from this record whether the jury relied upon the incorrect legal theory as the basis for its general verdict, we have a case of legal insufficiency as compared to factual insufficiency requiring reversal. (Guiton, supra, 4 Cal.4th at p. 1128.) Part of the prosecutor's argument was based upon the erroneous theory of guilt and the instructions failed to correct any misunderstanding of the law the prosecutor may have conveyed and on which the jury may have relied in reaching its verdict.
Moreover, although there was sufficient evidence that would have supported a conviction based on subdivision (f)(1) of section 290, the language of which was charged in count 1 of the information, and which would apply to a change in residence outside of California, the jury was not instructed on the elements of that requirement of section 290 as a theory for Bryant's guilt in willfully failing to register as a sex offender. Without such instructions or argument directing the jury to consider that requirement, even assuming the variance in the pleading was harmless, we simply cannot be confident that the jury relied on a correct legal theory for finding guilt in this case.
Bryant has raised no issue below or on appeal that the charging document did not provide him notice that he may be charged with violating subdivision (f)(1) of section 290.
This also applies to any theories of guilt based on other requirements of section 290 for which no reference in the information or jury instructions were given. For example, the prosecutor's comments the crime charged could be supported by the facts that Bryant knew he had to reregister or notify the OPD when he was rereleased from custody (subd. (e)(2)) or if he became transient (subd. (a)(1)(C)(i)), pertained to other requirements of section 290 that are separate and discrete offenses, which are not necessarily included in a violation of section 290, subdivision (a)(1)(A). (See Balkin, supra, 145 Cal.App.4th at pp. 492-493; People v. Meeks (2004) 123 Cal.App.4th 695, 703; People v. Davis (2002) 102 Cal.App.4th 377, 384-385.)
In sum, because Bryant's conviction may have been based on a legally incorrect theory of guilt, we must reverse his conviction. Accordingly, we need not address his remaining contentions.
DISPOSITION
The judgment is reversed.
WE CONCUR: McCONNELL, P. J., AARON, J.