Opinion
F072624
11-02-2017
THE PEOPLE, Plaintiff and Respondent, v. DENNIS TED REYNOLDS, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901920)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Dennis Ted Reynolds was convicted after a jury trial of being a sex offender who failed to register his change of address (Pen. Code, § 290.013, subd. (a); count 1) and for failing to update his registration within five days of his birthday. (§ 290.012, subd. (a); count 2.) Defendant waived his right to a jury trial on the truth of eight prior serious felony convictions within the meaning of the three strikes law and admitted them. The trial court denied defendant's request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike any of his prior serious felony convictions and sentenced defendant to a term of 25 years to life on count 1, and to the same sentence on count 2, which the court stayed pursuant to section 654.
Unless otherwise designated, all statutory references are to the Penal Code.
Defendant contends the pattern instruction used for each count, CALCRIM No. 1170, failed to define adequately the concept of actual knowledge as an element of the offense for the jury. Defendant further contends he was entitled to instructions supporting his defense of mistake of law and of fact. Defendant argues the trial court abused its discretion in denying his request to strike any of his prior serious felony convictions pursuant to Romero, and his sentence constitutes cruel and unusual punishment under the Constitutions of the United States and California. Because the trial court failed to instruct the jury concerning defendant's mistake of law theory of defense, we reverse the judgment and remand for further proceedings.
FACTS
Defendant stipulated he had a previous conviction requiring him to register as a sex offender pursuant to section 290. Between 2005 and 2012, defendant registered his address in Madera County using an official form designated for that purpose. In 2012, defendant completed the form with Stephanie Johnson, a community service officer in the Madera Sheriff's Office. Defendant initialed statements on the form indicating he was aware of his responsibility to register as a sex offender in California for his lifetime and that he do so within five days of his birthday. He also initialed a statement on the form that he had to inform local authorities of his change of address within five days of moving to a new location.
In May 2013, defendant moved out of his Coarsegold residence in Madera County to live in Fresno with his sister. In November 2014, defendant moved in with his girlfriend, who also lived in Fresno. Defendant remained at this address through March 2015. Defendant failed to register either his sister's address or his girlfriend's address with law enforcement in Fresno. His last registered address was in Coarsegold in June 2012.
Detective Joshua Alexander of the Fresno Police Department investigated defendant's failure to notify authorities of his address changes. Alexander checked defendant's records and confirmed defendant was required to register as a sex offender but had not changed his registration since he last listed his address in Coarsegold on June 14, 2012.
Defendant had a registration file with the Fresno Police Department. A registration file can be created by the police agency when an offender informs prison authorities of his intended address prior to release from prison and prison authorities notify the local agency. Defendant, however, had never gone to the police department in person to register his change of address. When a registrant goes to the police department to register as a sex offender, a file is created that includes notice of the registrant's duty to register, and additional information is added to the registrant's file. The additional information includes a photograph, a new set of fingerprints, and a Department of Justice form.
Defendant's file with the Fresno Police Department indicated he had never come in to the department to register himself at any time. Detective Alexander went with his partner to the last recorded address in 2012 for defendant in Coarsegold and found the residence vacant. Alexander contacted defendant on March 24, 2015, at the address of defendant's girlfriend. Defendant was carrying keys that unlocked his girlfriend's residence. There was mail addressed to defendant using his girlfriend's address and male clothing in the residence.
Defendant told Alexander he was arrested for failing to register as a sex offender in 2012 and had "beat that case." Defendant said his attorney told him he no longer needed to register because it was considered double jeopardy. Alexander reviewed defendant's history through the California Law Enforcement Telecommunication System and found no arrest for defendant in 2012. All arrests in California are entered into that computer system. There was also no indication of any court case involving defendant in 2012.
Defendant testified that he was released from prison in 1987. According to defendant, someone at that time told him he was required to register as a sex offender. Defendant's parole officer told him he just had to check in once a month. Defendant said he was unaware he had to register as a sex offender his entire life. Defendant explained he initially registered as a sex offender in 1992 with his address, which was then in Fresno. Defendant said a police officer and his parole officer informed him he had to register but did not indicate he would have to continue to register.
When shown a prior registration form defendant had initialed and executed in 2012, he was asked if he read the conditions he had initialed. Defendant replied he had not. Defendant said he executed the form because police officers told him that if he failed to register, he would automatically have to spend six months in jail. Defendant was afraid he would be locked up if he did not sign the form. The officers told defendant he had to sign the form yearly but did not tell him he had to do so for the rest of his life. Defendant hired an attorney in 1992 who told him it was not necessary for him to register because he had already paid his debt to society by serving his prison sentence and completing parole. The attorney told defendant the registration requirement was "added on punishment and considered double jeopardy and that [he] didn't have to register."
Defendant explained he was tried for failing to register as a sex offender in 2006, but the jury failed to reach a verdict. Defendant said he was surprised to learn on cross-examination that he had a conviction in 2006 for failing to register as a sex offender. Defendant conceded that between 2005 and 2012, he continuously registered as a sex offender. Defendant admitted he moved to Fresno in 2013 and did not register his new address with the Fresno Police Department when he was living with his sister. Defendant admitted moving in with his girlfriend in Fresno in 2014 and again failing to register his address change with the Fresno Police Department. Defendant also admitted the last time he registered as a sex offender was when he did so in Madera in 2012.
DISCUSSION
Adequacy of Jury Instructions
Defendant contends the trial court's use of the pattern instruction for failing to register as a sex offender, CALCRIM No. 1170, failed to properly define the element of knowledge, an element of the offense. Defendant argues the phrase "actual knowledge" is too broadly defined in the instruction. Defendant also contends the trial court erred in its sua sponte duty to instruct the jury on defendant's mistake of fact and mistake of law defense. Alternatively, defendant argues his defense counsel was ineffective for failing to request this instruction. Although we find no infirmity in the pattern instruction, we agree with defendant that he presented a defense based on mistake of law. It was, therefore, error for the trial court to fail to instruct the jury on defendant's theories negating his intentional and willful violation of the failure to register provisions.
A. Adequacy of Pattern Instruction
The jury was instructed on both counts with substantially the identical instruction, CALCRIM No. 1170. The jury received the following instruction on count 1, failure to file a change of address in a timely manner:
"The defendant is charged in Count One with failing to register as a sex offender in violation of ... section 290.013(a).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant was previously convicted of an offense for which he is required to register pursuant to ... section 290;
"2. The defendant resided in Fresno, California;
"3. The defendant actually knew he had a duty under ... section 290 to register as a sex offender living at ... Fresno, California and that he had to register within five working days of a change of address and location;
"AND
"4. The defendant willfully failed to register as a sex offender with the police chief of that city within five working days of changing his residence within that city.
"Someone commits an act willfully when he does it willingly or on purpose."
For a defendant to be guilty of violating section 290, he or she must have failed to register willfully. The California Supreme Court has held that willful failure to register pursuant to the terms of the statute requires that the defendant had to know about the duty to register according to the terms of the statute. Actual knowledge of the duty to register is especially important because section 290 involves the failure to act, so to show a violation of the statute, the People must establish the defendant actually knew of the duty to act. (People v. Garcia (2001) 25 Cal.4th 744, 751, 754 (Garcia).) The term "willfully" as used in the statute implies a purpose of willing to make the omission. "Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed.... A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Garcia, at p. 752.)
In relevant part, the trial court in Garcia instructed the jury it had to find the defendant suffered a qualifying sex offense for which he was required to register, he resided in California, and he "'willfully failed to register with the chief of police of the city in which he temporarily resides or was domiciled [within the statutorily prescribed time].'" (Garcia, supra, 25 Cal.4th at pp. 750-751.)
The Attorney General in Garcia suggested "the trial court's instruction on 'willfulness' adequately instructed the jury regarding the governing principles." (Garcia, supra, 25 Cal.4th at p. 753.) The Supreme Court noted it had "observed that the meaning of the term 'willfully' varies depending on the statutory context. (People v. Hagen (1998) 19 Cal.4th 652, 659, 663-666 [adopting as a test for willful tax evasion 'the voluntary, intentional violation of a known legal duty'].)" (Ibid.)
The court in Garcia found in that case the trial court "instructed the jury (based on the definition in § 7) that 'The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness ... to make the omission in question. The word "willfully" does not require any intent to violate the law ....' (CALJIC No. 1.20.)" (Garcia, supra, 25 Cal.4th at pp. 753-754.) The Garcia court found the instruction then in use "correctly requires a showing of purpose or willingness to act" or as in the failure to act by registering pursuant to section 290. The Garcia court further reasoned, however, "as we have explained, the instruction was incomplete in failing clearly to require actual knowledge of the registration requirement." (Garcia, supra, at p. 754.)
Garcia noted the requirement the prosecution prove some form of guilty intent, knowledge, or criminal negligence for a criminal conviction "'is of such long standing and so fundamental to our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly to state it.'" (Garcia, supra, 25 Cal.4th at p. 754.) The court in Garcia concluded "the court's instructions on 'willfulness' should have required proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register." (Ibid.) The court also noted giving the additional jury instruction that ignorance of the law is no excuse only compounded the error. (Ibid.) Citing to People v. Hagen, supra, 19 Cal.4th at page 660, Garcia found the requirement of statutory willfulness creates an exception to the common law presumption that ignorance or mistake of law is not an excuse. "In the registration act context, the jury must find actual knowledge of the act's legal requirements." (Garcia, at p. 754.)
Defendant argues that although the trial court's instructions required actual knowledge of the duty to register a new address, the actual knowledge requirement was defective in two ways. First, the requirement of actual knowledge cannot be considered in a vacuum. Defendant had been informed by an attorney that he had no duty to follow the law because the registration law itself violated double jeopardy. Defendant's argument does not concern the sufficiency of the pattern instruction itself but interjects an affirmative defense of mistake of law and/or of fact presented by defendant at trial. According to defendant, this defense can vitiate his actual knowledge of his duty to register. We find merit to this point and discuss it in more detail below in our analysis of defendant's affirmative defense.
Defendant's second argument is a challenge to the specificity and definition of actual knowledge as used in CALCRIM No. 1170. According to defendant, actual knowledge is not further defined by the statute and fails to convey the concept of willfulness and knowledge as defined in Garcia. Defendant argues that although knowledge can include the concept of practical understanding of something, it can also connote the more simple meaning of "information." According to defendant, the simple connotation of information does not include the concept of willfulness and knowledge as defined by the Supreme Court in Garcia. We find this second argument unpersuasive because the pattern instruction used by the trial court required the jury to find actual knowledge by defendant of the affirmative duty to register as a sex offender, and that defendant willfully failed to follow through with this duty. As written, it is highly improbable a jury would understand the concept of actual knowledge as used in CALCRIM No. 1170 to have the more limited meaning suggested by defendant of only "information."
When a word or phrase is commonly understood by those familiar with the English language and does not use a technical sense peculiar to the law, the trial court is not required to give an instruction as to its meaning absent a request. Only when a word or phrase has a technical, legal meaning differing from its nonlegal meaning does the trial court have to clarify it for the jury. (People v. Jennings (2010) 50 Cal.4th 616, 670-671.) The correctness of jury instructions is determined from the entire charge of the court, not from consideration of parts of an instruction. Alleged ambiguity in instructions is viewed in light of the instructions as a whole. (People v. Salazar (2016) 63 Cal.4th 214, 247-248.) Read as a whole, CALCRIM No. 1170 correctly instructs the jury to find that a defendant has actual knowledge of the duty to register under section 290 and the defendant's failure to register was willful.
B. Affirmative Defense Instructions
Defendant contends the trial court had a sua sponte duty to instruct the jury on his affirmative defenses of mistake of law and mistake of fact. We agree defendant was entitled to instructions on a mistake of law defense, but not on a mistake of fact defense.
In determining whether a defendant's mistaken belief disproves criminal intent, courts have drawn a distinction between mistakes of fact and those of law. The People must generally prove some form of guilty mental state. A defendant may refute guilt by showing a mistake of fact disproving criminal intent. Courts have drawn a distinction between mistakes of fact and mistakes of law. Though mistake of fact usually is a defense, mistake of law usually is not. Ignorance of the law is not an excuse in the absence of specific statutory language to the contrary. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661.) The difference between mistakes of fact and mistakes of law is often a difficult distinction. (Id. at p. 1662.)
When, for instance, a defendant misunderstands his or her status as a felon and is charged with being a felon in possession of a firearm, the misunderstanding is a mistake of law, not a mistake of fact. (People v. Snyder (1982) 32 Cal.3d 590, 593; People v. Mills (1992) 6 Cal.App.4th 1278, 1290-1291.) Misunderstanding whether the Compassionate Use Act legalizes transportation of marijuana because the defendant believed it was medicine constitutes a mistake of law not a mistake of fact. (People v. Young (2001) 92 Cal.App.4th 229, 233, 235-237, superseded by subsequent statute as noted in People v. Mentch (2008) 45 Cal.4th 274, 291.)
Defendant argues his former counsel's incorrect legal advice that registration was not necessary because it violated his constitutional right not to be placed twice in jeopardy is a mistake of fact because his failure to register was an innocent act under section 26. This argument is not persuasive because defendant has failed to point out any factual basis undermining his ability to form the intent to not comply with section 290. Defendant's affirmative defense is premised on a mistake of law, not a mistake of fact.
In its strict sense, mistake of law is ignorance of the penal law of which one stands accused prohibits one's conduct. Although ignorance is almost never a defense, there are rare instances where ignorance that a penal statute prohibits one's conduct does provide a defense. (People v. Meneses, supra, 165 Cal.App.4th at pp. 1662-1663.) Those instances include crimes punishing the failure to act, rather than an affirmative act, and certain conspiracies. (Id. at p. 1663.) The Supreme Court in Garcia recognized failure to register as a sex offender involved a mere failure to act, and the defendant must be aware of the duty to act to be culpable. (Garcia, supra, 25 Cal.4th at pp. 751-754; Meneses, supra, at p. 1663.) Garcia found a defendant who was a former sex offender and claimed he was unaware of a law requiring him to register his residence with the police was entitled to present that defense to the jury. (Garcia, at pp. 751-752; Meneses, at p. 1663.)
In People v. Urziceanu (2005) 132 Cal.App.4th 747, the defendant was convicted of conspiracy to sell marijuana. As part of his defense, the defendant argued the Compassionate Use Act allowed him to defend the conspiracy charge because his distribution was legal. The court in Urziceanu rejected this argument but accepted the defendant's additional argument that he was entitled to present, argue, and receive instructions on a mistake of law defense. (Id. at pp. 772-774.) A trial court's duty to instruct sua sponte on particular defenses arises only if it appears the defendant is relying on such a defense, or there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. (Id. at p. 775; People v. Young, supra, 92 Cal.App.4th at p. 233, citing People v. Barton (1995) 12 Cal.4th 186, 195.) Because conspiracy requires specific intent, a good faith mistake of law can provide a defendant a defense. The court in Urziceanu found substantial evidence to support the defendant's mistake of law defense and that the trial court erred in failing to instruct the jury on the defendant's defense. (Urziceanu, supra, at pp. 776-780.)
In People v. Barker (2004) 34 Cal.4th 345, 356-358, the California Supreme Court rejected the defendant's argument that he was excused from registering as a sex offender because his depressive emotional state caused him to forget to register. The court in Barker found a prosecutor is not required to prove when a registrant moved, especially because of the transitory lifestyle of many sex offenders. (Id. at pp. 357-358.) The Barker decision emphasized, however, that it was not deciding or expressing an opinion on whether an acute psychological condition or chronic deficit of memory or intelligence might negate the willfulness required to violate section 290. (Barker, at p. 358.)
Appellate courts have struggled with the requirement that a sex offender have knowledge of his or her duty to register under section 290 where the defendant has multiple residences or a dwelling place is not typically understood as a residence. The court in People v. Edgar (2002) 104 Cal.App.4th 210 (Edgar) confronted the situation where a sex offender was properly registered at his primary residence but spent some time at two other residences, a hotel and a homeless shelter, without also registering those addresses. (Id. at pp. 216-217.) The Edgar court noted that during the time in question, section 290 had not yet addressed the issue of a registrant who had multiple addresses. Neither the statute itself nor the documents the defendant had signed explaining the registration requirement addressed the issue of multiple residences. (Edgar, supra, pp. 219-220.)
Section 290 was later amended to require sex offenders to register all the residences where they resided. (Edgar, supra, 104 Cal.App.4th at p. 219, fn. 10; see § 290.010.)
The trial court's instructions not only failed to inform the jury the defendant must actually know he was violating the statute by failing to register multiple residences, they further failed to instruct the jury it had to find the defendant purposely violated the registration statute. (Edgar, supra, 104 Cal.App.4th at p. 220.) The trial court in Edgar gave no instructions requiring the jury to find the defendant actually knew he had to register his addresses at a transient hotel or homeless shelter, even on a temporary basis. (Edgar, supra, at p. 221.) The Edgar court found it could not conclude beyond a reasonable doubt that the same jury properly instructed on the knowledge requirement would have found the defendant was aware of his duty to register multiple residences. (Id. at p. 222.)
People v. LeCorno (2003) 109 Cal.App.4th 1058 (LeCorno) also involved a sex offender who temporarily moved to a second residence and failed to report it pursuant to section 290. (LeCorno, at pp. 1062-1064.) As in Edgar, the trial court in LeCorno failed to properly instruct the jury on the element of knowledge. (LeCorno, supra, at pp. 1067-1068.) LeCorno noted the defendant testified he had been told by one police department official that he had to register the address at which he spent the most time, and the employee who gave this incorrect advice admitted he gave this improper instruction to individuals registering at the time the defendant registered. The court in LeCorno also found the trial court's instructional errors, including that he was aware of the duty to register a second sometimes used address, was highly prejudicial and not harmless beyond a reasonable doubt. (Id. at pp. 1069-1070.)
The court in People v. Aragon (2012) 207 Cal.App.4th 504, 510-511 (Aragon), found that a sex offender living in a travel trailer parked on the street who failed to register it as an address may not have understood the travel trailer to be a residence. Aragon found there was not substantial evidence the defendant knew the travel trailer was a residence and reversed the defendant's conviction. (Id. at p. 511.)
Edgar, LeCorno, and Aragon illustrate that knowledge of the duty to register can be confusing where sex offenders have multiple residences or live in transitory or impermanent dwellings. These cases found instructional error on the element of knowledge, or lack of substantial evidence of the defendant's knowledge of his affirmative duty to register. Although we have not found the same kind of instructional error with the pattern instruction used here, defendant presented an affirmative defense based on mistake of law, and instructions on this defense would have been consistent with defendant's defense. The trial court had a sua sponte duty to give the mistake of law instruction. (People v. Barton, supra, 12 Cal.4th at p. 195; People v. Urziceanu, supra, 132 Cal.App.4th at p. 775.) If believed by the jury, this defense could negate or create reasonable doubt of the defendant's actual knowledge of the duty to register pursuant to section 290 and his willfulness for failing to do so.
Defendant affirmatively defended the allegations based on his contention that a former attorney told him he did not have to register as a sex offender because he had already served a prison sentence for the sex offenses and registration constituted double jeopardy. Detective Alexander confirmed defendant had explained this to him during defendant's arrest. Defendant admitted someone told him he was required to register as a sex offender when he was released from prison. According to defendant, his parole officer told him he just had to check in once a month. Defendant said he was unaware he had to register as a sex offender his entire life. Defendant explained he initially registered as a sex offender in 1992 with his address, then in Fresno. Although a police officer and a parole officer later informed defendant he had to register his address, they did not indicate he would have to continue to register his entire lifetime.
On cross-examination, defendant explained he initialed the requirements of section 290 on a registration form only because officers told him he would go to jail if he failed to do so. Defendant said he did not read the registration form. From the totality of the evidence adduced at trial, there was substantial evidence to support the jury's verdicts. Defendant, however, presented substantial evidence supporting his mistake of law theory and clearly relied on this theory throughout his trial. The trial court had a sua sponte duty to instruct the jury on defendant's mistake of law defense.
Unlike Garcia where the defendant made a simple denial of his knowledge to register despite other evidence to the contrary or Barker where the defendant claimed to forget the duty to register on a vague assertion of depression, defendant here presented an affirmative defense based on the alleged inaccurate advice of a former attorney. Defendant further presented evidence that he received inconsistent advice from parole officers concerning the duty to register and no advice from parole and police officers concerning the duty to continuously register. The jury in this case specifically sought review of the transcript of defendant's testimony. It was for the jury to determine the credibility of defendant's mistake of law defense, a defense that would have potentially shown he did not have actual knowledge of the duty to register pursuant to section 290 and a willful intent not to follow the law.
The People note our Supreme Court has not yet determined the test of prejudice for failure to instruct the jury on an affirmative defense. (See People v. Salas (2006) 37 Cal.4th 967, 984.) In the related context of whether the defendant in an affirmative defense bears the burden of proof by a preponderance of the evidence, our Supreme Court has distinguished defenses negating an element of the crime and thus affecting a defendant's guilt or innocence from defenses going to a collateral matter. We therefore refer to this aspect of an affirmative defense in determining which standard of proof to apply for a trial court's instructional error.
In criminal cases it is virtually axiomatic that the prosecution bears the burden of proof beyond a reasonable doubt. The prosecution has the burden of proving every element of the crime beyond a reasonable doubt. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence, as long as he or she is not required to negate an element of the offense. (People v. Neidinger (2006) 40 Cal.4th 67, 72.) Furthermore, the state may not label a traditional element of an offense as an affirmative defense and thereby make a defendant presumptively guilty of that offense unless the defendant disproves the existence of that element. (Id. at p. 74.) A defendant is required to establish an affirmative defense by a preponderance of the evidence only as to defenses that are collateral to the defendant's guilt or innocence "'and do not bear directly on any link in the chain of proof of any element of the crime.'" (People v. Sherow (2011) 196 Cal.App.4th 1296, 1307, quoting People v. Tewksbury (1976) 15 Cal.3d 953, 964.) Affirmative defenses such as entrapment, which focus on the police conduct rather than the defendant's conduct, are collateral defenses where the defendant bears the burden of proof by a preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 479-482.) For defenses directly related to a defendant's guilt or innocence, the defendant need only raise a reasonable doubt in making his or her affirmative defense. (Id. at p. 481.)
Defendant's affirmative defense, if believed by the jury, would negate his criminal intent to violate section 290. It would be legally inconsistent to require defendant to only have to demonstrate reasonable doubt based on evidence negating his criminal intent, but to measure any error in the trial court's failure to give a sua sponte instruction on this point under the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) rather than the standard for determining constitutional error set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman).
An instruction on mistake of law goes to the crux of whether defendant actually knew, and willfully disregarded, his duty to register based on his misunderstanding of the law. The courts in Edgar and LeCorno measured prejudice in the court's instructional error in failing to adequately instruct the jury on an element of the offense under the standard of review set forth in Chapman. (Edgar, supra, 104 Cal.App.4th at p. 222; LeCorno, supra, 109 Cal.App.4th at pp. 1069-1070.) Because a key element involving whether defendant had formed the intent to willfully evade the registration requirement is at issue, we apply the Chapman standard of review rather than the standard of review set forth in Watson.
If the jury believed defendant's testimony that he was misadvised of his legal duty to register by an attorney, parole officers, and police officers, this would completely undermine his intent to willfully violate the registration requirement. In Edgar and LeCorno, the defendants were misadvised of their legal duties by law enforcement officers and with the forms used for registration. Here, defendant contends he was further misadvised of his legal duties by a former attorney. His defense is arguably stronger than those presented in Edgar and LeCorno.
The People argue that even under the Chapman standard of review, there was overwhelming evidence that defendant willfully violated his duty to register under section 290. The People point out that defendant had annually registered in the past and executed a registration form in 2012 where defendant placed his initials next to statements informing him of his legal duties. Defendant, however, explained he only initialed the form because the officers told him he would be arrested. Defendant denied that he read the form. Although there was evidence in the record to support the People's theory, the jury was not properly instructed on defendant's mistake of law theory and was not given an opportunity to evaluate defense evidence under proper legal instructions. Furthermore, it is the province of the jury, not this court, to weigh and evaluate the conflicting evidence presented by the parties. Given the conflicting evidence presented at trial, we cannot find the People's case so overwhelming that the instructional error was harmless beyond a reasonable doubt. We therefore reverse and remand for further proceedings.
Because we reverse defendant's convictions for instructional error, we do not reach defendant's contention that trial counsel was ineffective for failing to request mistake of law instructions. Further, the trial court's sentence is no longer operative and we also do not reach the issues he raises concerning the trial court's abuse of its sentencing discretion and his constitutional challenges to the length of his sentence. --------
DISPOSITION
The judgment is reversed and the case is remanded for further proceedings.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.