Metropolitan News-Enterprise


Thursday, August 8, 2013


Page 1


C.A. Reverses Conviction of Rapist for Failing to Register


By a MetNews Staff Writer


The Court of Appeal for this district has reversed the conviction of a man for failing to register as a sex offender because the jury was not instructed that his 1996 conviction for spousal rape only gave rise to a need to register if the offense was committed with “force or violence.”

The man, Tyrone Mason, 51, was sent to prison for the spousal rape and, following his release, did register at some points, but was convicted in both 2003 and 2004 of failing to do so. Where the obligation to register exists, it is a lifetime one.

In 2011, Mason was charged with inflicting corporal injury on a cohabitant—on which the jury was hung—and failing to register, of which he was found guilty by a jury.

This latest conviction was reversed Tuesday in an opinion by Justice Jeffrey Johnson of Div. One.

“Only those convicted of spousal rape involving force or violence and sentenced to prison must register as sex offenders,” Johnson said.

Although the preliminary hearing transcript in the spousal rape case revealed that force and violence were, in fact, exerted, Johnson declared that proof of that was required in the 2011 trial.

The infirmity of the 2011 conviction, he explained, was that a person can be convicted of spousal rape, under Penal Code Sec. 262, on bases other than force or violence—those bases being “duress, menace, or fear of immediate and unlawful bodily injury”—and in the latest criminal proceeding, “the specific nature of that underlying crime was never alleged against Mason or mentioned at trial.”

Instructional Error

The justice faulted Los Angeles Superior Court Judge Terry A. Bork for not instructing jurors that a conviction required a finding that the spousal rape stemmed from application of force or violence.

Johnson wrote:

“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 instructional error, he said, “was not harmless beyond a reasonable doubt.”

The Attorney General’s Office argued that Mason forfeited any challenge on appeal to Bork’s instruction by not objecting at trial. Johnson responded:

“[N]o forfeiture will be found where, as here, the court’s instruction was an incorrect statement of the law…, or the instructional error affected the defendant’s substantial rights.”

Invited Error

Johnson recited that the Office of Attorney General contended there was “invited error” inasmuch as defense counsel acquiesced in the instruction to avoid introduction of evidence of the brutal nature of the 1996 rape. He wrote:

“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.”

However, Johnson said, “[o]n 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 spousal rape charge.

He said Bork “had a sua sponte duty to instruct the jury fully as to the essential elements of the charged offense.”

There will be no retrial, Johnson declared, saying:

“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.

The case is People v. Mason, 13 S.O.S. 4046.

Senior Assistant Attorney General Linda C. Johnson argued for the People and San Diego attorney Waldemar D. Halka, under appointment by the Court of Appeal, argued for Mason.


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