Filed 8/6/13
                            CERTIFIED FOR PUBLICATION



               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                       DIVISION ONE


THE PEOPLE,                                         B239134

         Plaintiff and Respondent,                  (Los Angeles County
                                                    Super. Ct. No. BA385609)
         v.

TYRONE MASON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A.
Bork, Judge. Reversed.
         Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General,
for Plaintiff and Respondent.
                                     ——————————
       Appellant Tyrone Mason challenges his conviction for failure to register as a sex
offender. He argues reversal is required because the trial court committed prejudicial
instructional error, there is insufficient evidence to support the conviction, and that the
lifetime registration requirement violates his right to equal protection, due process and
privacy and constitutes cruel and unusual punishment. We conclude that prejudicial
instructional error requires reversal.
                              PROCEDURAL BACKGROUND
       By amended information, Mason was charged with one count of committing corporal
injury upon a cohabitant (Pen. Code, § 273.5, subd. (a)),1 and one count of failing to register
as a sex offender (§ 290, subd. (b)). The information also alleged two prior convictions: a
1996 conviction for spousal rape (§ 262, subd. (a)(1)), and a 2004 conviction for failure to
register as a sex offender (§ 290, subd. (A)(1)(D)). (§ 667.5, subd. (b).) The spousal rape
conviction was also alleged as a “strike” under the “Three Strikes” law. (§§ 667, subds. (b)–
(i); 1170.12, subds. (a)–(d).) Mason pleaded not guilty and denied all allegations.
       A jury was unable to reach a verdict on the charge of corporal injury upon a
cohabitant, but convicted Mason of failure to register as a sex offender. (§ 290, subd. (b).)
The jury found true allegations that Mason had been “convicted [in 2004] of a violation
of . . . [s]ection 290[, subdivision] (A)(1)(D), FAILURE TO REGISTER: SEX
OFFENDER,” and in 1996 of a “violation of . . . [s]ection 262[, subdivision] (A)(1),
SPOUSAL RAPE.”
       The trial court found that Mason had suffered the prior convictions (§ 1025,
subd. (c)), and that the spousal-rape conviction was a serious and violent felony within the
meaning of Three Strikes law. (§§ 667, subds. (b)–(i); 1170.12, subds. (a)–(d).) Mason was
sentenced to a total term of five years in prison.




       1   Statutory references are to the Penal Code.


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                                FACTUAL BACKGROUND
Prosecution case
       In March 2011, Alma Minnick was living with Mason and with Rayna Payton,
Minnick’s roommate. They lived in a one-bedroom residence at 668 E. 51st Street in Los
Angeles. Mason and Minnick, who were engaged, had lived together about four years.
       On March 19, 2011, Minnick called 911 to report that Mason had physically abused
her and she wanted him “to leave my . . . place.” Minnick told the dispatcher that Mason
“may pay on the bills but he don’t pay no rent.” Minnick and Mason yelled at one another
during the 911 call and, at one point, Minnick said, “I’m going in my house,” and “I’m going
in my room.” Mason was heard in the background saying, “You mean our!”
       Minnick told the officers who responded to the 911 call that she and Mason “had been
in a four-year dating relationship and . . . had been living together for the duration of the four
years.” Payton also said that Minnick and Mason were her roommates. Mason too told the
police that he lived at the 51st Street address.
       At trial, Minnick denied that she and Mason had lived together. She said Mason
came “over to visit frequently every now and then,” and that he spent the night about once a
month. Minnick testified that Mason “was homeless and [she] didn’t want him moving in at
the time because of his . . . [sex offender] registration.” Payton also testified, and denied that
she lived at the 51st Street residence with anyone but Minnick; Mason, she said, was there
“on an in-and-out status.”2 At the preliminary hearing, Payton had testified that she had
lived at the 51st Street with Minnick and Mason “[t]he whole time” since she had begin
living there in October 2010. Minnick and Mason slept in the bedroom, and she slept on a
living room sofa.




       2 By the time of trial, Minnick and Mason were no longer engaged but remained
friends. Payton and Minnick also were friends.


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       In sex-offender registration documents dating from 1998 to March 2, 2011, Mason
registered either as a transient or as a resident at an address on Wall Street. He never
registered at the 51st Street address.3
Defense case
       When he testified, Mason admitted having been convicted of spousal rape in 1996,
and failing to register as a sex offender in 2003 and 2004.
       Mason was homeless on March 19, 2011. He visited Minnick, his then-fiancée, at the
51st Street residence on that day and most days. He did not receive mail or keep personal
possessions at the 51st Street address. Mason acknowledged having corrected Minnick when
she said “my room,” during the 911 call, to “our room.” He said he did so “because [he’s]
always there and plus the fact [he’s] in a relationship with [Minnick], or was.” Mason denied
ever residing at the 51st Street address.
       Mason knew he was required to register as a sex offender; his registration was up-to-
date in March 2011.
                                          DISCUSSION
       Mason contends the jury instructions for the failure to register offense erroneously
omitted a requirement that the prosecution prove his prior spousal rape conviction involved
force or violence. The Attorney General insists Mason has waived this argument or that it is
barred by the doctrine of “invited error.” Neither of the Attorney General’s arguments has
merit. We find the instructional error was not harmless beyond a reasonable doubt.
       A defendant convicted of one of the enumerated offenses under section 290 is
required to register for the rest of his life with the police department in the city in which he
lives. (People v. Sorden (2005) 36 Cal.4th 65, 72–73.) Section 290 states that, “[e]very

       3 Documents introduced regarding Mason’s prior convictions were: (1) an
abstract of judgment, for the 1996 conviction for spousal rape and a section 969b prison
packet relating to that conviction; (2) a “DISPOSITION OF ARREST AND COURT
ACTION” form, reflecting Mason’s conviction in 2003 for failure to register as a sex
offender; and (3) a section 969b prison packet, regarding his 2004 conviction of failure to
register as a sex offender.


                                                4
person described in subdivision (c), for the rest of his or her life while residing in
California . . . shall be required to register” as a sex offender. (§ 290, subd. (b).) Subdivision
(c) includes “[a]ny person who . . . has been . . . convicted . . . of a violation of . . . paragraph
(1) of subdivision (a) of Section 262 involving the use of force or violence for which the
person is sentenced to the state prison . . . .” (§ 290, subd. (c).)4 Not all spousal rape
requires sex-offender registration. (See People v. Jeha (2010) 187 Cal.App.4th 1063, 1072;
In re Reed (1983) 33 Cal.3d 914, 919, overruled on other grounds by In re Alva (2004) 33
Cal.4th 254, 292.) Only those convicted of spousal rape involving force or violence and
sentenced to prison must register as sex offenders. (§ 290, subds. (b), (c); Jeha, at p. 1072.)
       Here, the prosecution proved Mason’s prior conviction for spousal rape based on an
abstract of judgment and prison packet. But, the specific nature of that underlying crime was
never alleged against Mason or mentioned at trial. Nor was the jury instructed that, to find
Mason guilty of the failure to register offense, it first had to find that his spousal rape
conviction involved force or violence. Instead, the jury was instructed only that: “The
defendant is charged in Count two with failing to register as a sex offender. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
was previously convicted of rape of a spouse pursuant to . . . section 262[, subdivision]
(A)(1) . . . .” The jury’s verdict did not establish the nature of Mason’s spousal rape
conviction. Rather, the jury found only a “violation of . . . [s]ection 290[, subdivision] (b), a
Felony, as charged in Count 2 of the information.”




       4   Section 262, subdivision (a)(1), provides: “(a) Rape of a person who is the
spouse of the perpetrator is an act of sexual intercourse accomplished under any of the
following circumstances: [¶] (1) Where it is accomplished against a person’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another.” (§ 262, subd. (a)(1).) “‘[D]uress’” is defined as “a
direct or implied threat of force . . . .” (§ 262, subd. (b).) “‘[M]enace’” is “any
threat . . . or act that shows an intention to inflict an injury upon another.” (§ 262,
subd. (c).)


                                                  5
1.     Mason did not forfeit his claim of instructional error
       Mason did not object to the above instruction nor did he ask that the instructions be
modified to require the jury to find his prior spousal rape conviction involved force or
violence. The Attorney General argues Mason forfeited his challenge by failing to object or
seek a modified instruction at trial.
       “‘[A] party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying instruction.’ [Citation.]” (People v. Mejia (2012) 211
Cal.App.4th 586, 617; People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012.) But no
forfeiture will be found where, as here, the court’s instruction was an incorrect statement of
the law (Hudson, at p. 1012), or the instructional error affected the defendant’s substantial
rights. (People v. Franco (2009) 180 Cal.App.4th 713, 719–720; § 1259 [“appellate court
may . . . review any instruction given, . . . even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby”].) Instructional
error as to the elements of an offense is not waived by trial counsel’s failure to object.
(Hudson, at pp. 1011–1012.) Accordingly, we reject the argument that Mason forfeited his
right to assert instructional error on appeal.
2.     The doctrine of invited error does not apply.
       The Attorney General also argues Mason’s claim of instructional error is barred by
the doctrine of “invited error.” That doctrine holds:
       “‘[W]hen 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.’ . . .
[¶] . . . [T]he doctrine . . . is ‘“an ‘application of the estoppel principle’ . . . .
[Citation.] . . . At bottom, the doctrine [aims] . . . to prevent a party from misleading the
trial court and then profiting therefrom in the appellate court. [Citations.]. . . .”’
[Citation.] [¶] . . . [T]he invited error doctrine ‘applies “with particular force in the area
of jury instructions. . . .”’ [Citation.] . . . [A] party who . . . acquiesces in[] a particular
jury instruction cannot appeal the giving of that instruction.” (Transport Ins. Co. v. TIG
Ins. Co. (2012) 202 Cal.App.4th 984, 1000.)

                                                  6
       The Attorney General maintains that Mason’s trial counsel acceded to the challenged
instruction for tactical reasons because, had the jury been required to find that Mason’s prior
spousal rape conviction involved force or violence it would necessarily have learned of the
violent nature of that offense.5 The Attorney General observes that Mason’s counsel
repeatedly expressed concern about inflaming the jury when the prosecutor indicated she
wanted to cross-examine Mason about the underlying facts of the spousal rape conviction.
Concerns about jury inflammation would not have been unwarranted. According to the
transcript from the preliminary hearing in Mason’s prosecution for spousal rape, Mason
threatened the victim, grabbed her by the hair, bit, punched, and tried to choke the victim in
the course of the rape.
       But “[i]nvited error will be found . . . only if counsel expresses a deliberate tactical
purpose in resisting or acceding to the complained-of instruction.” (People v. Souza (2012)
54 Cal.4th 90, 114.) On this record, we cannot definitively conclude that Mason’s trial
counsel made a deliberate tactical choice by not objecting to or seeking modification of the
jury instruction on the section 290 charge. “[M]erely acceding to an erroneous instruction
does not constitute invited error.” (People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.)
The trial court had a sua sponte duty to instruct the jury fully as to the essential
elements of the charged offense. (People v. Flood (1998) 18 Cal.4th 470, 481.)
       Further, even in the absence of an objection or when a party has acquiesced or
concurred in the trial court’s giving of an instruction, that instruction may be reviewed on
appeal if it affected the defendant’s “substantial rights.” (People v. Andersen (1994) 26

       5  To support this argument, the Attorney General requests that we take judicial notice
of the following records from Mason’s spousal rape conviction in People v. Tyrone Mason,
Jr., Case No. YA027685: (1) Felony complaint, filed March 8, 1996, charging Mason, in
count 1, with spousal rape by “means of force, violence, duress, menace and fear of
immediate and unlawful bodily injury,” in violation of section 262, subdivision (a)(1);
(2) reporter’s transcript of March 6, 1996 preliminary hearing; (3) June 11, 1996 Minute
Order reflecting Mason’s plea of nolo contendere to count 1; and (4) August 27, 1996 minute
order re sentencing. We grant the request for judicial notice to assess the merits of the
Attorney General’s assertion of invited error.


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Cal.App.4th 1241, 1249; § 1259.) “[A] defendant [need not] request amplification or
modification [of an instruction] to preserve the issue for appeal where, as here, the error
consists of a breach of the trial court’s fundamental instructional duty.” (People v. Smith,
supra, 9 Cal.App.4th at p. 207, fn. 20.) “‘[A]scertaining whether . . . instructional error
affected the substantial rights of the defendant necessarily requires an examination of the
merits of the claim—at least to the extent of ascertaining whether the asserted error would
result in prejudice if error it was.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1087.) We turn now to the merits of Mason’s appeal.
3.     Standard of review.
       We review de novo whether a jury instruction correctly states the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) Our charge is to determine whether the trial court “‘fully
and fairly instructed on the applicable law.’ [Citation.]” (People v. Ramos, supra, 163
Cal.App.4th at p. 1088.) We look to the instructions as a whole and the entire record of trial,
including the arguments of counsel. (People v. Stone (2008) 160 Cal.App.4th 323, 331.)
Where reasonably possible, we interpret the instructions “‘to support the judgment rather
than to defeat it.’” (Ramos, at p. 1088.)
4.     Analysis
       To obtain a conviction here the prosecution had to prove Mason had been convicted
of a specific registration offense, i.e., spousal rape “involving the use of force or violence.”
(See § 290, subds. (b), (c).) The information did not allege a specific registration offense, let
alone spousal rape by force or violence. Nor was a specific registration offense mentioned
during trial. The prosecution used an abstract of judgment and prison packet to prove
Mason’s prior conviction for spousal rape, but never established the specific nature of that
underlying crime. The jury was instructed that, to satisfy the registration requirement, the
prosecution had to prove only that Mason “was previously convicted of rape of a spouse,
pursuant to . . . section 262[, subdivision] (A)(1).” Consistent with that instruction, in
closing the prosecutor argued only that Mason had been convicted of spousal rape.
       “[A]n erroneous instruction that omits an element of an offense is subject to harmless
error analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct.

                                                8
824].” (People v. Gonzalez (2012) 54 Cal.4th 643, 663; Neder v. United States (1999) 527
U.S. 1, 15 [119 S.Ct. 1827, 144 L.Ed.2d 35].) “In such cases, ‘the harmless error inquiry
[asks whether] it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?’” (Gonzalez, at p. 663.)
       In a one-paragraph discussion, the Attorney General concedes the instructional error
but urges this court to find it harmless. The Attorney General argues Mason is bound by his
admission that his spousal rape conviction obligated him to register as a sex offender. We
disagree. The record establishes only that Mason was told he was required to register and
did so for a time. At no point did Mason concede that the reason he was told to register was
because his spousal rape conviction involved force or violence. Nor is there anything in the
trial record that addresses whether the prior spousal rape conviction involved force or
violence, and the jury never made that factual finding. The issue of the nature of Mason’s
spousal rape conviction remained unaddressed at trial.
       The question then is whether the omission of an element from the jury instruction as
to the charged crime is prejudicial under the Chapman test. “Harmless-error review
looks . . . to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry .
. . is not whether, in a trial that occurred without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.275, 279 [113 S.Ct. 2078,
124 L.Ed.2d 182]; see also People v. Kobrin (1995) 11 Cal.4th 416, 429–430.)
       We conclude there is prejudice under Chapman. The prosecution failed to prove
Mason’s spousal rape conviction involved force or violence. A properly instructed jury
could reasonably conclude that evidence of the spousal rape conviction, even considering
Mason’s admitted prior registration, failed to prove beyond a reasonable doubt that the nature
of that conviction involved force or violence as required by section 290, subdivision (c). The
jury made no factual finding that the spousal rape involved force or violence. The general
verdict, which tracks the incomplete language of the jury’s charge, does not mention “force”
or “violence,” and is insufficient to support a finding that the jury actually found the spousal
rape involved force or violence. The error is not harmless because, even if a properly

                                                 9
instructed jury would not have voted to acquit Mason, the views of some jurors may have
been swayed resulting in a hung jury. That is a result more favorable to Mason. (See People
v. Soojian (2010) 190 Cal.App.4th 491, 518–522; People v. Bowers (2001) 87 Cal.App.4th
722, 736.) The prosecution failed to prove beyond a reasonable doubt that the instructional
error omitting an element of the charged crime “‘did not contribute to the verdict obtained’”
or that “‘the guilty verdict actually rendered in [the] trial was surely unattributable to the
error.’” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Flood, supra, 18 Cal.4th
at p. 513, italics omitted.) Accordingly, reversal of the conviction is required. Based on this
resolution, we need not address Mason’s remaining contentions of error.
       Because the evidence is insufficient to prove that Mason’s spousal rape conviction
involved force or violence, he cannot be retried for failure to register as a sex offender on the
basis of the conduct at issue in this case.
                                         DISPOSITION
       The judgment is reversed.
       CERTIFIED FOR PUBLICATION.


                                                     JOHNSON, J.


We concur:


               MALLANO, P. J.


               ROTHSCHILD, J.




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