Filed 1/25/21 P. v. Ray CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

F RANK BERTHA RAY,

Defendant and Appellant. B298506

(Los Angeles County

Super. Ct. No. NA106626)

APPEAL from a judgment of the Superior Court of Los Angeles

County, John David Lord, Judge. Affirmed.

Benjamin Adam Owens, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant

Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys

General, for Plaintiff and Respondent.

______________________________________2

Frank Bertha Ray was convicted of failing to register as a sex

offender. (Pen. Code, § 290.) 1 On appeal, he argues that the court

should not have instruct ed the jury with a definition of “willfulness”

from the Penal Code. The claim was waived when counsel said, “I have

no objection” to the instruction

. Ray assert s that the court erred by not

instructing, sua sponte

, on a mistake of law defense. We find no

instructi onal error and affirm.

FACTS AND PROCEDURAL HISTORY

Ray is required to register as a sex offender. O n May 12, 2017

, parole agents mov ed him to Los Angeles County

. 2 H e had been liv ing

with his wife and family in Riverside County , until h is wife obtaine d a

restraining order against him . H e i s not allowed to have contact with

her.

Neel Pratap is a state parole agent who supervise s sex offender s

.

He was assigned to supervise Ray. Pratap tells offenders at which

police department they need to register

, but it is each offender’s

obligation to regist e r , not one of the parole agent’s duties

. O ffender s

who move to a new location must register within five business days.

Failure to reg ister is a parole violation.

On May 12, Pratap met Ray , who wanted to move back with his

wife. Pratap told Ray “we would get him housing and he was no longer

allowed to go back to his previous residence,” and “he needed to update

his registration at Long Beach Police Department.” Ray sai d “okay.”

He previously registered in Long Beach in 2015 , then registered in

Riverside in early 2017

.

After meeting Pratap , Ray was dr i ve n to Pathways transitional

housing facility on Zona Court in Long Beach, where the parole

department pa i d for accommodations

. Ray objected to living at

Pathways.

Ray wore a GPS tracking device to monitor his location. On

May 16, Pratap was alerted by the tracking device that Ray had

1 Undesignated statutory references are to the Penal Code.

2 All date references are to the year 2017.3

traveled more t han 50 miles without permission. He telephoned Ray,

who said he was going to Hemet to see his wife. Pratap warned Ray

that he cannot contact his wife and instructed him to return to Los

Angeles. Ray ignored Pratap and continued to his wife’s home , where

he was arrested

. On May 23, Pratap went to the Banning jail to pick up Ray and

return him to Lo ng Beach . Pratap checked the sex offender registr y

and saw Ray had not registered. En route , Pratap “instructed [Ray] he

needed updated registration immediately.” Ray replie d “okay.” As

Pratap dropped Ray off at Pathways, he reiterated “to make sure he

goes and registers immediately.” Ray insist ed that he wanted to be in

Hemet

. A parole supervisor said Ray could not go because “he was no

longer allowed to go back to the area in Riverside

. ”

Pratap saw Ray on May 25 and reminded him to register. I n a

meeting on June 2, Pratap “instructed [Ray] again to update his

registration.” He informed Ray that he may be in viola tion of his

parole; Ray did not respond. On June 5, in another meeting at the

parole office, Ray replied “no” when Pratap asked if he had registered.

Since arriving in Los Angeles on May 12, Ray came to the parole office

almost daily to complain about li ving at Pathways. He did not register

in Long Beach.

On the evening of June 6, a resident near Pathways

, who lives

above a bar

, saw Ray reach through a window screen and move the

glass pane in his apartment

. The two shout ed at each other . Ray

yelled repeatedly, “open the door

. ” The resident refused. Ray asked

, “are you the bar?” T he resident replie d that he was not the bar and

told Ray to leave . Ray left. He was arrested.

Ray testified that he went to the neighbor’s apartment to discuss

a parking issue. H e assumed the apartment belonged to the owne r of

the bar on the first floor. He did not intend to break into the residence

. Ray testified that he has been required to register as a sex

offender since he was convicted of indecent exposur e in 2009

. F rom

2009 to 2017, he always registered

— some 40 times

— when he was not

incarcerated, even when homeless

. H owever, he did not believe he4

resided at Pathways

. He claimed Pratap never told him to register in

Long Beach ; he was assured that “you’ll be going home” to Hemet

, where he was registered

. Ray agreed that he has registered at the

Long Beach police station in the past.

Ray lived in Los Angeles from 2014 to 2016, while being

supervised on parole. He transfer red to Riverside in early 2017, to be

with his family. In May , he was involuntarily moved to Lo ng Beach

. He claimed he never formally met with parole agents but went daily to

talk to them about return ing to Riverside. He did not understand that

his transfer to Riverside was revo ked

. Ray took a train to Riverside on

May 16 and was arrested

. Pratap picked him up and took him to Long

Beach on May 23. He was at Pathways until June 6, when he was

arrested. He told the officer investigating him that he lived at the

“parolee house” on Zona Court.

At his preliminary hearing, Ray testified that on June 2, “ ‘ I

resided at 414 Zona Court to be exact. I was placed there by my

[ parole ] agent ’ ” eight days earlier, after being “escorted” from

Riverside. At trial, h e explained that he sought “to demonstrate to the

courts that I was not a burglar, that I had reason to be there” when he

accosted a neighbor. From the time he was taken to Pathways on May

12 until his arrest on June 6, he admittedly did not register as a sex

offender in Lon g Beach.

Ray was charged with burglary and failure to register as a sex

offender. (§§ 459, 290.) It was alleged that he has prior serious felony

convictions. A jury acquitte d Ray of burglary and attempted burglary

but found him guilty of failing to reg ister. Ray admitted two prior

convictions. The court struck hi s prior convictions for purposes of

sentencing and sentenced him to the upper term of three years in

county jail.

DISCUSSION

S ection 290 ensure s that convicted sex offenders are subject to

police surveillance and helps the public protect itself through

awareness of the offender’s location

. ( Ruelas v. Superior Court (2015)

235 Cal.App.4th 374, 379.) “ The duty to register arises when the sex5

offender enters a jurisdiction and ends when he o r she leaves the

jurisdiction ” and “ is not dependent upon whether the offender stayed at

a residence five or more consecutive days .” ( People v. Williams (2009)

171 Cal.App.4th 1667, 1672.)

The prosecution must prove the defendant had actual knowledge

of the duty to register as a sex offender and failed to register. ( People v.

Garcia (2001) 25 Cal.4th 744, 753

– 754 ( Garcia .) The jury may infer

knowledge of the duty to register if the defendant is given notice of the

duty and act s willfully . ( Id

. at p. 75 2 ; People v. Poslof (2005) 126

Cal.App.4th 92, 97

– 98 [defendant could be convicted of failing to

register at a “second residence or temporary residence” in San

Bernardino County, though he was already registered in Merced] .)

The sole issue raised on appea l is whether the jury was properly

instructed.

The jury was given a modified version of CALCRIM No. 1170. It

states that the People must prove Ray was convicted of violating

section 314; resided in California; “actually knew he had a duty .

. . to

register as a sex offender living at 414 Zona Court, Long Beach .

. . within five working days of May 23, 2017 ;” and “willfully failed to

register as a sex offender” with police “ within five days after coming

into [Long Beach], or regularly or temporarily residing in Long Beach. ”

A residence i s defined as “one or more addresses where someone

regularly resides, regardless of the number of days or nights spent

there, such as a shelter or structure that can be located by a street

address

, ” includ ing a house, apartment, motel, homeless shelter

, or

vehicle.

At the request of the prosecutor, t he court instruct ed : “The word

‘willfully’ when applied to the intent with which an act is done or

omitted, implies simply a purpose or willingness to commit the act, or

m ake the omission referred to. It does not require any intent to violate

the law , or to injure another, or to acquire any advantage. ” This

language comes from the Penal Code, which defines “willfully” in

section 7

.6

Ray contends that the court erred by gi ving section 7 because it

“instruct [ed] the jury that willfulness does not require the intent to

break the law.” The issue was waived: Defense c ounsel said

, “I have

no objection

, ” when the court add ed the willfulness language from

section 7

.

The Supreme Court has said that section 7 “ correctly requires a

s h owing of purpose or willingness to act, or (as in this case) fail to act.”

( Garcia, supra, 25 Cal.4th at pp. 753

– 754.) H owever, it “was

incomplete in failing clearly to r equire actual knowledge of the

registration requirement.” ( Id. at p. 754.) Here , the jury was

instructed that the People must prove Ray “actually knew he had a

duty .

. . to register as a sex offender.” The instruction complies with

Garcia.

The willful ness language that Ray objects to, for the first time on

appeal, was given as CALJIC 1.20 in Tolden v. Tilton (9th Cir. 2011)

449 Fed.Appx. 579, 581. The court deemed it proper “because the trial

court instructed the jury on all the elements of [ section ] 290, including

the required mental state of actual knowledge. Viewing the

instructions as a whole and the trial in its entirety, no ‘substantial and

injurious effect or influence on the verdict’ occurred.” ( Ibid. ) Th at

reasoning applies here.

Ray asserts that the court had a sua sponte duty to instruct the

jury on mistake of law. “ A mistake of law

, in its strict sense, means

ignorance that the penal law (of which one stands accused) prohibits

one's conduct

— and ignorance on this point ‘ is almos t never a defense. ’

( People v. Hagen [ ( 1998 ) ] 19 Cal.4th [652], 660

– 661, fn. 4.) There are

rare instances where ignorance that a penal law prohibits one ’ s conduct

does provide a defense. Those instances include crimes punishing the

failure to act (rather than an affirmative act) and certain conspiracies.

In People v. Garcia [

, supra

, ] 25 Cal.4th 744, 751

– 754, the California

Supreme Court held that a defendant who claimed he was unaware of a

law requiring sex offenders to register their residencies with the police

was entitled to present that defense to the jury. The law punishes a7

willful failure to register, which is a failure to act. ” ( People v. Meneses

(2008) 165 Cal.App.4th 1648, 1662

– 1663

. )

The court had no duty to instruct on the defense of mistake of

law. Unlike the defendant in Garcia, supra, 25 Cal.4th 744, Ray never

claimed ignorance or unawareness of the law requiring registration by

sex offenders. On the contrary, he testified that he know s the

registration requirement and has previously obeyed it by register ing

some 40 times. There was no mistake of law

. ( See People v. Barker

(2004) 34 Cal.4th 345, 358 [no defense that defendant knew of the duty

to register but “

just forgot ” to do so ] ; People v. Sorden (2005) 36 Cal.4th

65, 6 8

– 70 [where defendant knew his duty to register and did so many

times, no defense that his state of depr ession caused him to forget to

register ] .)

Ray’s mistake

— if there was a mistake

— was believing he did not

reside in Long Beach ; however, the law requires registration “ within

five working days of coming into

. . . any city

, ” even at a temporary

residence. ( § 290, subd. (b).) Ray admitt ed to resid ing in Long Beach

for eight days before his arrest

, to show he belonged there and was not

in the neighborhood to burglar ize

. Ray’ s subjective belief that he resides at the address on his

driver’s license

, not at the transitional housing facility where he slept,

does not constitute a mistake of law

. To say otherwise would eviscerate

the requirement in section 290 of registration within five days of

“coming into” a city. ( People v. Sorden, supra, 36 Cal.4th at p. 73

[courts need not countenance excuses that fall short of nullifying

knowledge of one’s registration obligation].)

A ssum ing that there was instructional error, it was harmless

beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18,

24; Garcia, supra, 25 Cal.4th at p. 755.) “At trial, the prosecution

presented strong evidence that defendant knew of the registration

requirements.” ( Garcia at p. 755.)

Ray told the jury that he has been required to register as a sex

offender since was convicted of indecent exposure a decade earlier, and

he always registered, even when homeless. The jury discredited Ray’s8

claim that he did not believe he needed to register after coming into

Long Beach. His housing at Pathways qualified as a “residence.”

Pratap testified that he repeatedly directed Ray to register in

Long Beach. Ray was arrested when he went to Riverside County on

May 16

, belying his claim at trial that he believed he resided there even

after he was involuntarily returned to Long Beach on May 23

. Pratap

warned Ray to re gister as they drove back to Pathways. Ray said

“okay.” At the time of his arrest on June 6, Ray had still not registered.

We conclude beyond a reasonable doubt that the jury would have

convicted Ray even if it had been instructed on mistake of law.

DIS POSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN

- GERST, J.

CHAVEZ , J.