Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 061545-0
Pollak, J.
Defendant Sean Walter Harris, previously convicted of a registrable sex offense, appeals his conviction for failing to register within five days of a change of his residence, in violation of the Sex Offender Registration Act (the Act), Penal Code section 290 et seq. Defendant contends that the trial court erred in rejecting his request that the jury be informed, as he was prepared to stipulate, that he was required to register, without indicating the nature of the offense giving rise to the registration requirement, and that he was then denied due process when the jury was informed, pursuant to stipulation, that he was previously convicted of oral copulation of a 14-year-old girl. We conclude that the trial court correctly ruled that the prosecution was entitled to inform the jury that defendant had previously been convicted of a sexual offense, and it did not err, or deny defendant due process, in advising the jury pursuant to stipulation of the nature of the sexual offense. Nor did defendant receive ineffective assistance of counsel because his attorney opted to have the jury advised of the nature of the prior sex offense, fearing that the jury might suspect something worse if not told what the offense had been. Thus, we shall affirm the judgment of conviction.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged by information with violating section 290, subdivision (a)(1)(A) in failing to register within five days of changing his address. Defendant did not dispute his prior conviction of a sexual offense and that he was subject to the registration requirements of the Act. He contended that the address listed on the registration forms he had completed, 4331 Redland Circle in San Ramon—the home of his mother, was correct, and he disputed the prosecution’s evidence that he had been living at two different addresses in Antioch. Since defendant does not challenge the sufficiency of the evidence to support the jury’s contrary finding, there is no need to summarize the evidence received at trial.
The information also alleged several sentencing enhancements and probation ineligibility.
Prior to the start of trial, defendant filed an in limine motion to “sanitize” his prior sex offense conviction by stipulating that he had suffered a felony conviction that required him to register a change of residence within five days. Defendant’s attorney requested that the prosecutor not “mention anything about [defendant] being a sexual offender, a sexual predator, or child molester, or similar charge, and just to tell the jury that this is a failure to register case.” The court refused to limit the prosecution to that extent, but agreed that defendant’s counsel was “well within her rights here to have it sanitized as to the nature of the offense.” The court indicated that it would be acceptable to advise the jury that “as a result of the earlier conviction for sexual offense, the law provides that [defendant] is required to register periodically and at certain times”; however, the jury “ha[s] to be told as to why the registration is required by law for prior convictions here.” The prosecutor agreed to “stipulate that [defendant] is a sex offender who is required to register under section 290.”
Section 290, subdivision (b) provides in relevant part: “Every person described in subdivision (c), for the rest of his or her life while residing 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 or her residence within, any city, county, or city and county, . . . and shall be required to register thereafter in accordance with the Act.”
Defendant’s counsel stated that if the court would not exclude reference to defendant having been convicted of a sex offense, she “would ask the court to limit the underlying charge, which is the oral copulation with a minor under 18, because I think that is very inflammatory for the jurors to hear. Under 18 they can think it’s a five-year-old child or anybody.” Although the court indicated it would accept the prosecutor’s offer to advise the jury only that defendant “was earlier convicted of a sexual offense,” defense counsel requested that the court “take it a step further and be more specific and say that [defendant] was convicted of oral copulation with a minor of 14 years of age.” The court responded, “You want that in there? I wouldn’t want that in if I was sitting in your chair.” Counsel then conferred and drafted the following stipulation to be read during jury voir dire: “In 1984, [defendant] was convicted of a felony, oral copulation of a 14-year-old, a crime for which he was required to register as a sex offender.” Before accepting the stipulation, the court insisted that it be approved personally by the defendant. The court had defendant arraigned to determine “whether he understands the nature of this scope of the stipulation and whether he’s authorized his lawyer to make such a stipulation and, further, that he will admit that he has, in fact, suffered a conviction for a felony that requires registration.” Defendant responded that he understood the scope of the stipulation, that the stipulated facts were true, and that the prosecution need not prove those facts. The court then approved the stipulation and read it to the jury panel during the course of voir dire. The stipulated facts were also referred to during the course of the trial.
The jury ultimately found defendant guilty of the charged offense. The court found the enhancement allegations true but struck several of them and sentenced defendant to imprisonment for four years. Defendant has timely appealed.
DISCUSSION
After being fully advised of the language of the stipulation to be read to the jury, defendant expressly confirmed his agreement to the stipulation. Therefore, he has waived any right to challenge its propriety. A defendant “may not assert on appeal procedural rights which he waived at the trial.” (People v. Wilson (1947) 78 Cal.App.2d 108, 120 [defendant bound by attorney’s stipulation entered in his presence without objection].) A defendant “may not acquiesce in the admission of possibly excludable evidence and then claim on appeal that rulings made in a prior proceeding render objection unnecessary.” (People v. Clark (1990) 50 Cal.3d 583, 624.) Although the court did refuse defense counsel’s initial request to completely “sanitize” the prior conviction by not advising the jury that defendant was required to register because of a prior sex offense, defendant waived his right to appeal because he then agreed to the precise language with which the jury was advised of his prior conviction and obligation to register. He at no time objected to or sought to be relieved from the stipulation and is, therefore, bound by it. (Ibid.; People v. Wilson, supra, at pp. 119-120.)
Regardless of waiver, the court did not err in refusing to withhold from the jury the fact that defendant was required to register because of a prior sex offense. Defendant acknowledges that his contrary contention was explicitly rejected by Division Five of this court in People v. Cajina (2005) 127 Cal.App.4th 929 (Cajina), but argues that Cajina was incorrectly decided. We disagree. California Constitution article I, section 28(f), provides that “[w]hen a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.” Defendant relies heavily on People v. Valentine (1986) 42 Cal.3d 170, which held that although the constitutional measure requires disclosure of ex-felon status when the prior conviction is an element of a charged offense, the measure “does not require the nature of prior convictions to go to the jury in such a case, since that information is utterly irrelevant to the charge.” (Id. at pp. 181-182.) When the defendant agrees to stipulate to a previous felony conviction, the constitutional provision “allows evidence of the nature of [a prior] felony to be withheld from the jury.” (People v. Sapp (2003) 31 Cal.4th 240, 261.) As the court held in Cajina, this qualification does not mean that the fact that a defendant has previously been convicted of a sex offense is “utterly irrelevant” to the charge of violating section 290 and may be excluded in such a case.
Here, as in Cajina, defendant “was not charged with an offense in which an element was simply ‘ex-felon’ status. A critical element of section 290 is conviction of an enumerated sex offense; there can be no violation of this statute absent sex offender status. There is a strong policy against depriving the People’s case of its persuasiveness and strength by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety. [Citation.] Thus, prosecutors are not required to stipulate to the existence of any elements of the crime they are trying to prove where the stipulation will impair the effectiveness of their case and foreclose their options to obtain convictions under differing theories. [Citation.] . . . [¶] . . . In a charge of violating section 290, the People must prove the defendant knew he or she was obligated to comply with an extremely stringent set of requirements, including annual, lifelong registration. If the jury is not informed why this defendant is subject to such a seemingly onerous obligation, the People, as the instant prosecutor aptly observed, would ‘look overbearing.’ ” (People v. Cajina, supra, 127 Cal.App.4th at p. 933.) This reasoning does not, as defendant argues, “ignore[] the fact that a primary function of jury voir dire is to cull out those venirepersons who are incapable of giving the prosecution’s case fair consideration” or undervalue the jurors’ ability to follow the trial court’s instructions. The prosecution is entitled to present its case in a rational and understandable light to jurors who are fair and follow the court’s instructions.
The trial court in the present case was prepared to limit the disclosure to the jury to the fact that defendant had previously been convicted of a “sexual offense” without indicating the nature of the offense. However, defendant’s attorney requested that the explanation to the jury be expanded to indicate that defendant was convicted of “oral copulation with a 14-year-old,” and the jury was so instructed. Any error in including this level of detail was thus an invited error about which the defendant cannot complain. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 [“Under the doctrine of invited error, when 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”].) Defendant argues in the alternative that his attorney provided ineffective assistance in seeking this fuller instruction, thereby forfeiting his right to object to the instruction, but the record does not support this contention.
To establish a violation of defendant’s right to effective assistance of counsel, the burden rests on defendant to show both (1) “that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney” and (2) “that this deficient performance caused prejudice in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” (People v. Sapp, supra, 31 Cal.4th at p. 263.) The record here shows neither.
After unsuccessfully attempting to exclude any reference to the fact that defendant had been convicted of a sex offense, defendant’s attorney thought it preferable to tell the jury that defendant, when 19 years of age, had engaged in oral copulation with a 14-year-old, than to let the jury speculate that he had committed what jurors may have considered a far more serious offense such as forcible rape or improper sexual conduct with a much younger person. We cannot say that this decision lacked a “rational tactical purpose” (People v. Pinholster (1992) 1 Cal.4th 865, 936) or would not have been made by a reasonably competent attorney. (See People v. Sapp, supra, 31 Cal.4th at p. 262; see also People v. Stewart (2004) 33 Cal.4th 425, 479.) Nor is there any reason to believe that the stipulated advice to the jury was prejudicial and that a less expansive instruction would have affected the jury’s verdict. (Strickland v. Washington (1984) 466 U.S. 668, 691.)
DISPOSITION
The judgment is affirmed.
We concur McGuiness, P. J., Jenkins, J.