Opinion
E064679
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JEFFREY BROWN, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1502429) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Reversed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A person who has been convicted of a registrable offense under the Sex Offender Registration Act (Pen. Code, § 290 et seq.) (the Act), and who has been incarcerated for over 30 days, is required to register as a sex offender in accordance with the Act, or reregister if the person previously registered, within five working days of the date the person is released from incarceration (§ 290.015, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
In this case, a jury found defendant and appellant, Brian Jeffrey Brown, guilty as charged of violating section 290.015, subdivision (a) of the Act. The court found defendant had two prison priors (§ 667.5, subd. (b)) and sentenced defendant to four years in prison: two years for the failure-to-register conviction plus two years for the two prison priors.
The prosecution's theory of the case was that defendant willfully failed to reregister as a sex offender within five working days following his release from custody on April 2, 2015, after he had been in custody over 30 days. The prosecution claimed that defendant's underlying registrable offense—the offense which required him to register in accordance with the Act—was a 1991 juvenile adjudication for assault to commit rape, a violation of section 220. (§ 290.008, subds. (a), (c).) Section 220 may be violated by assault to commit rape, a registrable offense, or by assault to commit mayhem, a nonregistrable offense. (§ 290.008, subd. (c).) The jury was specifically instructed that, to prove defendant guilty of the failure to register charge, the People had to prove "defendant was previously adjudicated of the offense [of] assault with intent to commit rape."
In this appeal, defendant claims insufficient evidence shows that his 1991 juvenile adjudication for violating section 220 was based on assault to commit rape, rather than assault to commit mayhem. Thus, he argues that insufficient evidence supports his failure-to-register conviction. We agree that insufficient evidence supports the conviction. Accordingly, we reverse the judgment of the conviction.
Because we conclude that insufficient evidence supports defendant's failure-to-register conviction, it is unnecessary to address defendant's additional claims that (1) his trial counsel rendered ineffective assistance in failing to object to the testimony of the prosecution's expert witness, William Lee, who testified that in his opinion certified documents from the Department of Corrections and Rehabilitation, Department of Juvenile Justice (the DJJ), showed defendant had a 1991 juvenile adjudication for assault to commit rape; and (2) the prosecutor prejudicially erred in telling the jury during her closing argument that, "[u]nlike the defendant, I'm required to follow the rules . . . ." It is likewise unnecessary to address defendant's claim that the cumulative effect of these additional errors requires reversal.
II. BACKGROUND
A. Prosecution Evidence
The jury trial was conducted in October 2015. At the time of trial, Nicole De La Cruz had worked for over 11 years as an office specialist for the San Bernardino County Sheriff's Department, and was responsible for completing and overseeing the completion of the registrations of persons required to register as sex, arson, and narcotics offenders in San Bernardino County. At one point, Detective Donald Patton asked De La Cruz when defendant had last registered as a sex offender. De La Cruz checked the California Sex and Arson Registry System (CSARS), which accesses every law enforcement agency in California, and discovered that defendant had last registered on August 2, 2012. The CSARS system shows each time a person has registered as a sex offender as well as each time the person has been notified of his or her duty to register as a sex offender. De La Cruz found no sex offender registrations for defendant in 2013, 2014, or 2015. De La Cruz personally registered defendant as a sex offender on June 13, 2007.
When defendant last registered as a sex offender on August 2, 2012, defendant signed, initialed, and placed his thumbprint on "an SS8047" form titled, "Sex Registration/Change of Address/Annual or Other Update," acknowledging that in the event he was in custody for over 30 days he had a duty to reregister as a sex offender within five working days of his release from custody. (§ 290.015, subd. (a).) By signing the same form, defendant also acknowledged that his "responsibility to register as a sex offender in California is a lifetime requirement" and that the Act also required him to update his registration information, annually, within five working days of his birthday. Defendant was born on May 31, 1976.
On September 20, 2012, after he last registered on August 2, 2012, defendant was released from custody after having been in custody for over 30 days. When he was released on September 20, 2012, defendant signed, initialed, and placed his thumbprint on another SS8047 form, again acknowledging his obligation to reregister within five working days following his release from custody if he had been in custody for over 30 days, and also acknowledging that his failure to reregister under such circumstances would constitute a violation of section 290.015.
For over 14 years, Detective Patton had been responsible for investigating the registration compliance of sex offenders in San Bernardino County, and was "[e]xtremely familiar" with defendant through his work with sex offenders. On December 2, 1994, while he was in custody for a 1991 juvenile court adjudication for violating section 220 and other crimes, defendant signed and placed his thumbprint on an older SS8047 form titled, "Notice of Registration Requirement," acknowledging he had been notified of his "duty to register as a convicted sex offender pursuant to Section 290 . . . ." The older SS8047 form indicated that defendant had a 1991 juvenile court adjudication for violating section 220 which, according to Detective Patton, was based on defendant's commission of assault with intent to commit rape. The older SS8047 form listed the adjudication as "220 PC" but did not indicate whether the section 220 violation was based on assault to commit rape or assault to commit mayhem. Detective Patton did not testify that he had personal knowledge that defendant's section 220 violation was based on assault to commit rape.
On April 2, 2015, defendant was released from custody in Riverside County after having been in custody for over five months, first in San Bernardino County from October 2014 through March 30, 2015, then in Riverside County for two more days, from March 30 to April 2, 2015. After an agency advised him in June 2015 that defendant had failed to reregister following his release from custody on April, 2, 2015, Detective Patton checked the CSARS system and found that defendant did not register following his April 2, 2015 release. The CSARS system showed defendant had been notified of his duty to register over 45 times.
William Lee, a supervising deputy district attorney for San Bernardino County, testified that defendant was charged with failing to update his sex offender registration—a violation of section 290.018, subdivision (g)—in San Bernardino County Superior Court case No. FSB1405489. On March 27, 2015, after he had been in custody in San Bernardino County for 166 days, defendant pled no contest to the failure-to-register charge. During Lee's testimony, the court took judicial notice of the court file in case No. FSB1405489, including the plea form.
Lee also testified concerning a three-page certified document from the DJJ, which was admitted into evidence as exhibit 8. The first page was a letter dated March 11, 2015 from the DJJ addressed to the Office of the District Attorney, County of San Bernardino. The letter referenced case No. FSB1405489, defendant's name, defendant's DJJ number, and juvenile court case No. J-145649. The letter states: "Your request dated March 9, 2015, for information to establish a prior conviction in the above named case has been received. [¶] Our records indicate that the subject [defendant] was committed to the [DJJ] (formerly the Department of Youth Authority) . . . on August 29, 1991, for [sections] 220/12022[, subdivision] (b) Assault with Intent to Commit Rape . . . and was discharged from the [DJJ] on November 9, 2000. [¶] . . . [¶] This is to certify that the foregoing is true and correct information from the original document ('Register of Actions' card) on file in this office."
The second and third pages of the three-page certified document consist of untitled records, each marked as certified by the DJJ as true and correct copies of originals on file at the DJJ. According to Lee, the second page shows that defendant, as a juvenile, committed assault with intent to commit rape, a violation of section 220, and was committed to the former California Youth Authority (CYA), currently the DJJ, for the section 220 offense and other offenses on August 29, 1991.
On the second page, the word "rape" is handwritten after the typewritten phrase "PC 220 Assault [with] Intent to Commit." A handwritten asterisk appears next to the word "rape" and the handwritten phrase "PC 290 sex offender reg[istration]*" appears near the bottom of the document. The second page also shows defendant was dishonorably discharged from his CYA commitment on November 9, 2000. The third page appears to be a computer-generated document; contains defendant's name, social security number, and other identifying information; and contains the phrase "Referral History" near the top. The third page indicates that in juvenile court case No. J-145649 defendant was convicted of "RAPE" in violation of section 220, along with first degree burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), and malicious mischief (§ 594, subd. (b)(4)), on June 5, 1991.
Lee opined based on his training and experience that defendant suffered a juvenile adjudication for a registrable offense. Lee explained that, because defendant was committed to and discharged from the CYA for assault to commit rape, the offense was a registrable offense which required defendant to register as a sex offender in accordance with the Act.
Defendant's former parole officer, Elizabeth Ledoux, testified that while defendant was in custody in San Bernardino County between October 2014 and March 2015, defendant wrote a letter to Ledoux stating he had not registered as a sex offender since June 2012 and he "never will." B. Defense Evidence
Defendant testified in his own defense. He was 39 years old at the time of trial. He admitted that he committed the section 220 offense on June 4, 1991, four days after he turned age 15; but he had not been convicted of "any sex offenses" "[s]ince that time, from the age of 15 to the present." He also admitted he had a recent misdemeanor conviction for failing to register as a sex offender, apparently referring to his March 27, 2015 conviction for failing to register.
Defendant was not advised of his duty to reregister when he was released from custody in San Bernardino County on March 30, 2015. Nor was he advised of his duty to reregister following his release from custody in Riverside County on April 2, 2015. He understood that his obligation to register as a sex offender based on his juvenile court adjudication ended when he was age 25.
In August of 2000, when he was 24 years old, defendant was charged with failing to register as a sex offender, and he was dishonorably discharged from the CYA for his failure to register. Defendant was allowed to testify in a narrative manner. He claimed "[n]ot every charge in [or basis of committing a violation of] Penal Code [section] 220 is a registrable offense" and asked the court to instruct the jury that assault to commit mayhem, a section 220 violation, is not a registrable offense. Defendant also explained he is philosophically opposed to registration requirements.
Under cross-examination, defendant admitted being advised multiple times of his duty to register under the Act, and also admitted that he had registered over 20 times since he turned age 25, but he had signed the notification and registration documents "under duress, under threat" of incarceration. He was an "independent sovereign" who rejected the authority of the court and law enforcement. When asked whether he was going to comply with the law and register as a sex offender, defendant responded, "Never." Defendant admitted pleading guilty to multiple felonies since 1991, including failure to register in both 2008 and 2012. In 2003, he pleaded guilty to having sexual intercourse with a minor. (§ 261.5.)
The prosecution did not claim defendant's 2003 conviction for having sexual intercourse with a minor (§ 261.5) was a registrable offense, and the jury was instructed that, to find defendant guilty of the failure-to-register charge, it had to find he "was previously adjudicated of the offense of assault with intent to commit rape."
III. DISCUSSION
Defendant claims insufficient evidence supports his current conviction for failing to register as a sex offender in violation of section 290.015, subdivision (a). He argues the jury was not presented with sufficient evidence to find beyond a reasonable doubt that (1) his 1991 juvenile adjudication for violating section 220 was based on assault to commit rape, rather than assault to commit mayhem, a nonregistrable offense, or that (2) he was committed to the former CYA because of his 1991 assault to commit rape adjudication, if any. (§ 290.008, subds. (a), (c).)
Specifically, defendant argues that the certified DJJ documents, along with Lee's testimony, were outside of the record of his 1991 juvenile court adjudication, and for that reason were insufficient as a matter of law to show that his 1991 juvenile court adjudication for violating section 220 was based on assault to commit rape or that he was committed to and discharged from the former CYA because of his assault to commit rape conviction. For the reasons we explain, we agree that insufficient evidence supports the failure-to-register conviction. A. Applicable Legal Principles
We begin by setting forth the elements of the failure-to-register charge alleged in this case. A person violates section 290.015, subdivision (a) if he or she: (1) is subject to the Act, (2) has been incarcerated for over 30 days, and (3) fails to register, or reregister if he or she has previously registered, within five working days of the date he or she is released from custody. Only the first element—whether defendant is a person subject to the Act, or is required to register in accordance with the Act—is at issue here.
Section 290.015 provides: "(a) A person who is subject to the Act shall register, or reregister if he or she has previously registered, upon release from incarceration, placement, commitment, or release on probation pursuant to subdivision (b) of Section 290. This section shall not apply to a person who is incarcerated for less than 30 days if he or she has registered as required by the Act, he or she returns after incarceration to the last registered address, and the annual update of registration that is required to occur within five working days of his or her birthday, pursuant to subdivision (a) of Section 290.012, did not fall within that incarceration period. . . ."
"Section 290.008 sets forth the registration requirements for juvenile offenders." (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 380.) It mandates registration for persons, "discharged or paroled from the Department of Corrections and Rehabilitation . . . after having been adjudicated a ward of the juvenile court pursuant to Section 602 of the Welfare and Institutions Code because of the commission or attempted commission of specified offenses (§ 290.008, subd. (a), italics added), which include assault to commit rape in violation of section 220 (§ 290.008, subd. (c)(1)). Section 290.008 has been construed "as requiring registration only by one who was committed to the [former CYA or DJJ] 'both after and because of a sex offense adjudication,' not one committed 'only for non-sex offenses, . . . even though he [or she] has previously been adjudicated a ward for sex offenses.' [Citation.]" (People v. Ruelas, supra, at p. 380.)
The text of section 290.008 provides, in pertinent part: "(a) Any person who, on or after January 1, 1986, is discharged or paroled from the Department of Corrections and Rehabilitation to the custody of which he or she was committed after having been adjudicated a ward of the juvenile court pursuant to Section 602 of the Welfare and Institutions Code because of the commission or attempted commission of any offense described in subdivision (c) shall register in accordance with the Act. [¶] . . . [¶] (c) Any person described in this section who committed an offense in violation of any of the following provisions shall be required to register pursuant to the Act: [¶] (1) Assault with intent to commit rape . . . under [Penal Code] Section 220."
A person may violate section 220 by committing assault to commit rape, among other sex offenses, or by committing assault to commit mayhem. A section 220 violation based on assault to commit mayhem is not a registrable offense under the Act—that is, it does not render the person who committed the offense subject to the registration requirements of the Act. (§§ 290.008, subd. (c)(1) [assault to commit mayhem not listed among registrable juvenile court adjudications]; see also § 290, subd. (c) [assault to commit mayhem expressly excluded from registrable adult convictions].)
To determine the substance of a prior conviction—that is, to determine the nature and circumstances of the conduct underlying the conviction—the trier of fact may look "beyond the judgment to the entire record of the conviction" "but no further." (People v. Guerrero (1988) 44 Cal.3d 343, 355-356 (Guerrero), first italics added; People v. Martinez (2000) 22 Cal.4th 106, 117-118 (Martinez).) As Guerrero explained, this rule is both fair and reasonable because "it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (Guerrero, supra, at p. 355; People v. Trujillo (2006) 40 Cal.4th 165, 177.)
As one court recently noted: "The nature of evidence comprising the 'record of conviction' for purposes of this inquiry has been worked out over time in the case law. (See People v. Harrell (1989) 207 Cal.App.3d 1439, 1444 . . . [charging documents and no contest plea reflected in minute order are part of record of conviction]; People v. Abarca (1991) 233 Cal.App.3d 1347, 1350 . . . [reporter's transcript of change of plea hearing]; People v. Reed (1996) 13 Cal.4th 217, 220 . . . [reporter's transcript of preliminary hearing]; People v. Woodell (1998) 17 Cal.4th 448, 456 . . . [appellate court record]; but see People v. Trujillo[, supra,] 40 Cal.4th [at p.] 179 . . . [defendant's statements in probation report received after guilty plea accepted is not part of the record of conviction].) The documentary evidence offered to establish the record of conviction—which of necessity will be hearsay in some form—must be admissible under the rules of evidence. (People v. Miles (2008) 43 Cal.4th 1074, 1082 . . . .)" (People v. Eslava (2016) 5 Cal.App.5th 498, 508, fn. 5, review granted Feb. 15, 2017, S239061.)
In Martinez, our Supreme Court "concluded that items other than the 'record of conviction,' and certified prison records admissible under section 969b, are admissible to establish issues pertaining to a prior conviction, as long as such other evidence does not pertain to the substance of a prior conviction. For example, such other evidence is admissible to establish such matters as the fact of the prior conviction (i.e., that someone suffered it) and the identity of the defendant as the person who suffered it." (People v. Scott (2000) 85 Cal.App.4th 905, 912 (Scott), some italics in orig., some italics added; Martinez, supra, 22 Cal.4th at pp. 113-118.)
Section 969b provides: "For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence."
As Martinez explained, section 969b is "essentially 'a hearsay exception' that allows certified copies of the specified [prison, jail, or commitment] records 'to be used for the truth of the matter asserted in those records,' i.e., that a person served a prior prison term for a prior conviction. [Citation.]" (Martinez, supra, 22 Cal.4th at p. 116.) In addition, section 969b is permissive, not mandatory, and does not restrict the People from using other forms of proof to establish aspects of a prior conviction other than its substance, including that the defendant was the person who served the prison term or suffered the conviction. (Martinez, supra, at pp. 117-118.)
In the case before it, Martinez concluded the trial court did not abuse its discretion in admitting, under the official records exception to the hearsay rule (Evid. Code, § 1280) uncertified computer printouts from the California Law Enforcement Telecommunications System (CLETS) showing an individual's criminal history information to prove the defendant's identity as the person who suffered a prior conviction. (Martinez, supra, 22 Cal.4th at pp. 119-134.) Martinez distinguished Guerrero as involving "the permissible scope of proof to establish the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct[,]" rather than "matters of proof relating to other aspects of a prior conviction, such as the identity of the defendant or service of a prior prison term." (Martinez, supra, at pp. 117-118, citing People v. Reed (1996) 13 Cal.4th 217, 225 [the "limitations" of Guerrero "apply only to proof of 'the circumstances of the prior crime.'"].)
In Scott, the defendant challenged the sufficiency of the evidence supporting the trial court's finding that his 1981 felony conviction constituted a serious felony conviction and a strike. (Scott, supra, 85 Cal.App.4th at pp. 909-910.) The conviction was a serious felony and a strike if it was either (1) a robbery conviction (§ 1192.7, subd. (c)(19)); (2) a conviction for a felony in which the defendant personally used a firearm (§ 1192.7, subd. (c)(8)); or (3) a conviction for a felony in which the defendant personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23); Scott, supra, at pp. 912-913).
The People sought to prove that the 1981 conviction was for robbery and involved the defendant's personal use of a firearm based solely on two documents outside the record of the 1981 conviction. (Scott, supra, 85 Cal.App.4th at pp. 910-911 & fn. 5.) The first document was a copy of a letter addressed to the Los Angeles County District Attorney's Office, from the State of California, Youth and Adult Correctional Agency, pertaining to "a George Scott, superior court case No. A371596." (Id. at p. 911, fn. omitted.) The letter stated that the Agency's records indicated that "'the subject'" was committed to the Youth Authority on December 17, 1981, for "'211PC Robbery; 12022.5PC Use of a Firearm,'" and was discharged from the Youth Authority on December 13, 1985. (Id. at p. 911, fn. 5.) The second document was a certified copy of a form reflecting that "a George Scott was an 18-year-old Black male whose birth date was April 24, 1963," and that on December 17, 1981, that George Scott was committed to the Youth Authority in Los Angeles County Superior Court case No. A371596 for robbery involving his personal use of a firearm. (Id. at p. 911.)
Scott followed Guerrero and Martinez and held that the certified records, though admissible under section 969b to prove the fact of the 1981 conviction or the defendant's identity as the person convicted, were inadmissible to prove that the 1981 conviction was for a serious felony and a strike, and "the jury could not rely on" the documents to prove the substance of the 1981 conviction. (Scott, supra, 85 Cal.App.4th at p. 913.) In Scott, the People conceded that the records were not part of the record of the 1981 conviction and were adduced solely pursuant to section 969b. Scott thus applied the settled rule, adopted in Guerrero and reaffirmed in Martinez, that "evidence other than the 'record of conviction'" including documents adduced pursuant to section 969b, "may not be utilized" to prove the substance of the conviction. (Scott, supra, at p. 913.) B. Insufficient Evidence Supports the Judgment
Here, the prosecution relied on the DJJ documents admitted into evidence as exhibit 8, together with Lee's expert opinion testimony, to prove that defendant's 1991 juvenile adjudication for violating section 220 was based on assault to commit rape, that defendant was committed to and discharged from the former CYA because of his 1991 adjudication for assault to commit rape, and, therefore, that defendant was required to register in accordance with the Act. (§ 290.008, subds. (a), (c).) Lee explained that because defendant was committed to and discharged from the former CYA for assault to commit rape, as the DJJ documents indicated, defendant was required to register in accordance with the Act.
None of the DJJ documents, however, were part of the record of defendant's 1991 juvenile adjudication for violating section 220. (Guerrero, supra, 44 Cal.3d at pp. 355-356; Scott, supra, 85 Cal.App.4th at pp. 913-914 [documents proffered pursuant to hearsay exception of § 969b not part of record of conviction].) As such, the jury could not rely on the DJJ documents to show that defendant's 1991 juvenile adjudication for violating section 220 was based on assault to commit rape, rather than assault to commit mayhem. (Martinez, supra, 22 Cal.4th at pp. 117-118; Scott, supra, at p. 913; §§ 220, 290.008, subds. (a), (c).)
Further, Lee's expert testimony that (1) defendant's section 220 violation was based on assault to commit rape, and that (2) defendant was committed to the former CYA because of his 1991 adjudication for assault to commit rape, were based entirely on the DJJ documents. Although the DJJ documents and Lee's expert testimony competently showed that defendant was committed to the former CYA because of his 1991 section 220 adjudication (§§ 290.008, subd. (a), 969b), the DJJ documents and Lee's testimony were incompetent, and therefore insufficient, to show that the section 220 violation was based on assault to commit rape. (People v. Gardeley (1996) 14 Cal.4th 605, 619 [expert witness's "on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible material into 'independent proof' of any fact"], overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
Here, as in Scott, the People do not claim the DJJ documents and Lee's testimony were sufficient, by themselves, to show that defendant's 1991 section 220 adjudication was based on assault to commit rape. (Scott, supra, 85 Cal.App.4th at p. 913.) Instead, the People argue the evidence was sufficient on the registrable offense element of the failure-to-register charge because defendant, in testifying in his own defense, admitted he pled guilty or no contest to unspecified charges of failing to register in 2008 and in 2012. We disagree.
The court took judicial notice of a court file showing that on March 27, 2015, defendant pled no contest to violating section 290.018, subdivision (g), by failing to update his sex offender registration. Nothing in that court file, however, nor any other admissible evidence, showed that defendant's 1991 section 220 adjudication was based on assault to commit rape. --------
In reviewing a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) A guilty or no contest plea admits each element of the offense charged (People v. Watts (2005) 131 Cal.App.4th 589, 592, 594-595) and "thus concedes that the prosecution possesses legally admissible evidence sufficient to prove [the] defendant's guilt beyond a reasonable doubt" (People v. Turner (1985) 171 Cal.App.3d 116, 125).
But here, the jury was instructed that, to prove defendant guilty of the current failure-to-register charge, the People had to prove "defendant was previously adjudicated of the offense [of] Assault with the Intent to Commit Rape." (CALCRIM No. 1170.) This was the People's entire theory of the case. The prosecution did not claim that defendant could be convicted of the current failure-to-register charge based on any of his previous failure-to-register convictions, or based on any registrable offense other than his 1991 section 220 adjudication. No evidence showed that defendant, by pleading guilty or no contest to prior failure-to-register charges in 2008 and 2012, admitted that his 1991 section 220 adjudication was based on assault to commit rape. (§ 220.)
Thus, defendant's current failure-to-register conviction cannot stand upon any of his previous failure-to-register convictions. Indeed, defendant had no notice of nor an opportunity to defend against this alternative theory, because it was not presented at the preliminary hearing. (People v. Burnett (1999) 71 Cal.App.4th 151, 170-174 [felon-in-possession conviction based on possession evidence not adduced at preliminary hearing reversed on due process grounds].) Affirming the conviction on this ground, as the People now ask us to do, would violate defendant's due process rights—assuming without deciding this could have been a viable theory of the case.
It is also beyond question that the due process requirement of article I, section 15, of the California Constitution requires that the trial court give "instructions regarding—and the jury determine—all essential elements of the offense . . . ." (People v. Flood (1998) 18 Cal.4th 470, 481.) Because the jury was not asked to determine and did not determine that defendant was subject to the Act based upon his prior convictions for failure to register, his conviction may not stand upon that ground.
Finally, no other evidence showed defendant's 1991 section 220 adjudication was based on assault to commit rape. Defendant did not make this admission in testifying in his own defense. At one point, defense counsel asked defendant, "since that time [June 4, 1991], from the age of 15 to the present, you haven't been convicted of any sex offenses, correct? Defendant answered, "No." In context, this portion of defendant's testimony did not indicate that the 1991 section 220 adjudication was for any sex offense, including the registrable sex offense of assault to commit rape. Defendant was never asked that question.
Nor did the prosecution claim that defendant's section 2003 conviction for having sexual intercourse with a minor (§ 261.5) was a registrable offense that could underpin his current failure-to register charge, and that conviction was not a registrable offense (§ 290, subd. (c)). In sum, because insufficient evidence shows that defendant's 1991 section 220 adjudication was for assault to commit rape, the judgment of conviction must be reversed. Scott is directly on point. (Scott, supra, 85 Cal.App.4th at pp. 910-914.)
IV. DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.