Opinion
C039458.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. JIMMIE DUANE BAKER, Defendant and Appellant.
A jury convicted defendant Jimmie Duane Baker of one count of willfully failing to register as a sex offender (Pen. Code, § 290, subd. (g)(2)) on or about June 6, 2000, and found that he had a serious prior felony conviction (& sect; 667, subds. (b)-(i)). He was sentenced to state prison for four years.
Further undesignated section references are to the Penal Code.
Defendants motion for acquittal (§ 1118.1) on count 2, which charged the same offense as count 1, but was alleged to have occurred on or about April 22, 2001, was granted.
On appeal, defendant contends that (1) the admission of unnecessary and highly prejudicial evidence offered to prove a prior felony conviction allegation denied him a fair trial; and (2) the courts error in instructing the jury with CALJIC No. 17.41.1, regarding the jurys duty to report to the court any juror who was unwilling to follow the law requires reversal.
We conclude that although the court erred by admitting the challenged evidence, the error was harmless. We also reject defendants claim of instructional error. We shall affirm the judgment.
FACTS
In 1985, defendant was convicted of first degree sexual abuse in Oregon and sentenced to prison. In 1987, he was paroled to California. In 1989 and 1990, defendant registered as a sex offender with the Sacramento City Police Department; both residence addresses listed were within Sacramento County. Both registration forms were signed by defendant and contained the advisement that the "requirement to register is lifetime and [] [defendant] must register within 14 days of moving into a city or county or a city/county." (Italics omitted.) On June 6, 2000, defendant was arrested in Yolo County on an unrelated charge and gave an address in Yolo County as his residence. Defendant had not registered as a sex offender in Yolo County.
In 1989 and 1990, section 290 did not contain the annual registration requirement.
Defendant testified. He admitted the 1985 conviction in Oregon and signing the 1989 and 1990 sex offender registration forms for California. Defendant did not believe that his Oregon conviction required him to register as a sex offender in California because that conviction did not require him to register in Oregon. In 1989, his parole officer in California said he would find out whether defendant was required to register in California, but the parole officer never got back to him. Defendant registered in 1989 and 1990 only because his parole officer directed him to do so.
Defendant testified that he did not register again after 1990 because he was "let off parole" and did not believe that he was required to do so. On June 6, 2000, defendant was arrested in Yolo County and gave an address in Woodland as his residence. Defendant admitted living in Woodland from July 1998 to the date of trial, August 1, 2001.
DISCUSSION
I
Defendant contends that he was denied due process and a fair trial by the courts admission into evidence of Peoples exhibit Nos. 1 and 9 because each contained irrelevant and highly prejudicial evidence. We agree the trial court committed error; however, because of the unusual circumstances of this case, we conclude the error was harmless.
Exhibit No. 1 contains the 1989 and 1990 sex offender registration forms, each of which advises defendant that he has a lifetime requirement to register as a sex offender within 14 days of changing his residence. Exhibit No. 1 also contains four pages from the "Violent Crime Information Center," which lists "annual violation[s]" for years 1996 through 2000, although no basis for the violations is stated. Pursuant to Evidence Code section 352, defendant objected to the admission of the annual violations.
Exhibit No. 9 consists of 26 pages and was offered to prove defendants 1985 prior conviction for first degree sexual abuse. In addition to containing certified copies of the judgment showing the 1985 conviction and defendants fingerprints, exhibit No. 9 also contains a second judgment showing a 1985 conviction for "Sexual Abuse in the Second Degree," a Corrections Division Supplemental Report, a Presentence Investigation Report, a Criminal History/Risk Assessment evaluation, and an Oregon Department of Corrections Field Services Report.
Peoples exhibit No. 5 was a copy of this same judgment, and Peoples exhibit No. 6 was the indictment for that judgment. The court, with the prosecutors concurrence, excluded both documents because sexual abuse in the second degree appeared to be a misdemeanor, and the information alleged that defendant was required to register because of a prior felony conviction.
The Corrections Division Supplemental Report stated that defendant began molesting his daughters when they were seven or eight years old, that the molestations continued for approximately nine years, and that defendant had "strong sexual abuse tendencies" that needed to be addressed, but that he had refused to accept responsibility for his offense.
The Presentence Investigation Report included the following information: Defendants older daughter described the molestations as touching her breasts, her vagina and all over her body. She also stated that on one occasion, when she and her sister and two of their 15-year-old girlfriends were visiting defendant, he bought them alcoholic beverages and talked them into removing their clothes while he videotaped them. He later showed the videotape to his older daughter and attempted to have sexual intercourse with her. The younger daughter stated that defendant molested her almost every time she visited him and that he once had sexual intercourse with her.
The Presentence Investigation Report also listed defendant as having been convicted of "Sexual Abuse Second Degree" and observed that he had arrests or referrals for contempt of court, criminal trespass, disorderly conduct, resisting arrest, and four misdemeanor driving convictions. He was also $15,000 in arrears on child support payments. The writer of the Presentence Investigation Report concluded that "defendant presents a serious sexual threat to vulnerable young females whether they are his daughters or others." The report further noted that a female who was present while the writer of the report, a male adult, was interviewing defendant stated that "she had been visually undressed by the defendant."
Defendants "Criminal History/Risk Assessment" gives him a score of "11," but fails to explain the significance of this rating.
The Field Services Report states that Dr. Tim Worden, a mental health expert who examined defendant, found that a more in-depth evaluation of defendant was needed to determine whether defendant had "`a sexual deviancy disorder." Dr. Worden observed that that defendant "`does not consider himself to have any sexual difficulties, and he is not amenable to treatment if he were considered to be suffering from such a disorder." The report further noted that defendant had been evaluated by a counselor who opined that defendant "is a classic child molester, with risk of reoffense quite high."
Defendant agreed that the judgment showing the 1985 conviction for first degree sexual abuse and the fingerprint document contained in exhibit No. 9 were relevant and he did not object to their admission. However, defendant did object to the remaining documents in exhibit No. 9 on the grounds that they lacked relevancy, and were subject to exclusion under Evidence Code section 352. The court admitted all of exhibit No. 9, observing, "There is nothing so outrageous in any of the documents that would be a 352 problem."
Relevance of Exhibit No. 1
The charge before the jury was whether defendant willfully failed to register as a sex offender on or about June 6, 2000. In order to prove this offense, the People were required to prove, inter alia, that defendant actually knew of his duty to register as a sex offender. (See People v. Garcia (2001) 25 Cal.4th 744, 747.) The sex offender registration forms for 1989 and 1990 showed defendant had such knowledge and, therefore, they were relevant. However, the history of "annual violation[s]," which did not show a violation occurring "on or about June 6, 2000," had no relevance to proving that defendant failed to register on the charged date. Consequently, they were irrelevant and should have been excluded. (See Evid. Code, § 350 [no evidence is admissible except relevant evidence].)
That the court recognized the irrelevancy of the "annual violation[s]" is evident from the following instruction given to the jury: "One of the exhibits that youre going to see is exhibit 1, which [is] several pages that start with a cover sheet from the State of California, Department of Justice. In that packet you will see a page that has some highlighting on it, and this is an exhibit from the district attorneys office. And Mr. Bell told me and Mr. Morris that when he received this from the Department of Justice, it already [] had the highlighting on there. I dont want you looking and say the Judge must think thats important. I didnt touch it. Mr. Bell didnt put the highlighting on there. For some reason, the records clerk at the Department of Justice highlighted those lines. Thats not meant by any of us to emphasize anything. And please dont speculate as to why the records clerk over there did that, but they did it before they sent it over. [& para;] The other thing is on that same page youll see a list of items that for some reason are listed as annual violation[s] with no other explanation whatsoever of what the Department of Justice means by that. I dont exactly know what it means except that it does seem to come up annually that every October 2nd they put in a notation `annual violation. [¶] Like I say, I have no idea what that means. Youre to disregard it entirely, and it certainly is no evidence of anything concerning the June 2000 allegation that the DA has brought in this case."
Relevance of Exhibit No. 9
Exhibit No. 9 was offered to prove defendants 1985 conviction in Oregon of first degree sexual abuse. The only documents relevant to such proof were the certified copies of the judgment showing that conviction and defendants fingerprints. Defendant did not object to these documents. However, he did object, as irrelevant, to the documents relating to his other convictions, his uncharged sexual offenses, his evaluations, and the opinions regarding his dangerousness and high risk for reoffending. Since the challenged documents were wholly irrelevant to proving the prior conviction, they should have been excluded.
Again, the courts recognition of the irrelevancy of these documents is shown by its instruction to the jury: "Also, in exhibit 9, and the cover sheet on this is from the Oregon Department of Corrections, you will see that if you go through it all page by page, Im not telling the jury what they should or shouldnt do with the evidence, but if one were to look at every page, one would see that there are various things here from court records, parole records, and corrections records. And some of those circumstances, other than the issue of whether [defendant] suffered the first degree conviction in Oregon, they might go to things that predate the conviction, or they might go to things that happened through the Department of Corrections after the conviction. [¶] The only purpose that exhibit 9 is submitted to you — actually, theres two purposes that this DA used it for. One is to show that the conviction occurred and only that the conviction occurred, not the circumstances leading to the conviction and not the circumstances after the conviction, but only that the conviction occurred. [¶] And the other thing that the DA used it for was when he examined Investigator Lipelt, he used the fingerprint page. So thats it for the purposes for which exhibit 9 is being submitted to the jury. Other things like what led to the conviction or what occurred in some prison records after the conviction is not of concern to the jury because it is completely irrelevant to the charges in this case, the charge of failing to register and the charge of having a prior serious felony conviction."
Although it defies understanding why the court would admit such obviously prejudicial evidence and then instruct the jury to disregard it, nevertheless the error was harmless. The defense was mistake of fact, the purported mistake of fact being that although defendant was aware that the form he signed stated that he had a lifetime requirement to register under section 290 "within 14 days of moving into a city or a county or a city/county" (italics omitted), he did not believe that his Oregon prior required him to do so. In other words, defendant believed, albeit wrongly, that his legal status was such that section 290 did not apply to him. As explained below, this is not the type of mistake that gives rise to a mistake of fact defense.
There was no factual dispute at trial. Documentary evidence showed that defendant was convicted in Oregon in 1985 of the California equivalent of lewd and lascivious conduct with a minor (§ 288), and defendant so testified. The sex offender registration forms signed by defendant in 1989 and 1990 informed defendant that he was legally required in California to register for life as a sex offender whenever he changed his residence, and defendant admitted that he was aware of the requirement. Finally, defendant admitted in his testimony that he changed his residence to Yolo County in 1998, but did not register the change. Thus, the only question was whether defendants belief, good faith or otherwise, that section 290 did not apply to him was a mistake of fact.
It has long been settled, however, that "[t]he applicability of a statute to conceded facts is a question of law." (Neal v. State of California (1960) 55 Cal.2d 11, 17.) People v. Snyder (1982) 32 Cal.3d 590 (Snyder), is analogous to the present case. In Snyder, the defendant was convicted of possession of a concealed firearm by a convicted felon (§ 12021). (Snyder, supra, at p. 591.) The defendant contended that the trial court erred when it excluded evidence of her mistaken belief that her prior conviction was only a misdemeanor. (Ibid.) In rejecting her contention, the high court observed that since section 12021 was a general intent crime (id. at p. 592), the defendants "lack of actual knowledge of the provisions of Penal Code section 12021 [was] irrelevant; the crucial question [was] whether the defendant was aware that [s]he was engaging in the conduct proscribed by that section." (Id. at p. 593.) The court concluded: "Thus, regardless of what [the defendant] reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It [did] not constitute a defense to section 12021." (Ibid.)
Failure to register under section 290 is a general intent offense. (People v. Johnson (1998) 67 Cal.App.4th 67, 72.) Section 290 requires defendant to register with local authorities upon changing his residence, and the registration forms he signed in 1989 and 1990 clearly put him on notice of that fact. Based upon defendants belief that his Oregon conviction did not make section 290 applicable to him, defendant willfully failed to register when he moved to Yolo County. However, as shown by Snyder, defendants belief regarding his legal status was a mistake of law, not of fact. (Snyder, supra, at p. 593.) And even though the jury received mistake of fact instructions, defendant was not entitled to them.
The court instructed the jury: "Now, an act which is committed, or an omission which was made [in] ignorance or by reason of a mistake of fact which disproves the general criminal intent, if you do an act under those circumstances, it is not a crime. Thus, a person is not guilty of a crime if he commits an act or omits to act when the person has an actual and reasonable belief in the existence of certain facts and circumstances which, if those were true, would make the act or omission itself actually lawful."
In sum, not only did defendant have no legal defense to the charge, but by his own testimony he actually admitted the violation. Consequently, given defendants lack of any legal defense, coupled with his judicial confession, the admission of the challenged evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
II
Defendant contends that the trial courts instructions to the jury per CALJIC No. 17.41.1—which directs jurors to report to the court any fellow juror who refuses to deliberate, expresses an intention to disregard the law, or is deciding the case based on punishment or other improper basis—"impinged upon [his] Sixth and Fourteenth Amendment rights to a unanimous jury verdict and jury nullification." We reject the contention because neither such right exists.
There is no Sixth Amendment right to a unanimous jury verdict in state criminal trials. (Apodaca v. Oregon (1972) 406 U.S. 404, 406, 411-412 ; Johnson v. Louisiana (1972) 406 U.S. 356, 359 .) Nor is there a federal or state constitutional right to jury nullification. (People v. Williams (2001) 25 Cal.4th 441, 447-463.) Moreover, in People v. Engelman (2002) 28 Cal.4th 436, the California Supreme Court rejected the defendants argument that the giving of CALJIC No. 17.41.1 denied him his state constitutional right to a unanimous verdict (Cal. Const., art. I, § 16) where, as here, the jury was also instructed per CALJIC Nos. 17.40 and 17.50. (Id. at pp. 444-445.)
CALJIC No. 17.40 instructs the jury that the defendant is entitled to the individual opinion of each juror and each juror must decide the case for himself or herself. CALJIC No. 17.50 instructs the jury that to reach a verdict, all 12 jurors must agree to the decision.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., and MORRISON, J.