PEOPLE v. VASQUEZ

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Eddie VASQUEZ, Defendant and Appellant.

No. F012713.

Decided: May 30, 1991

A. Brent Carruth and Lance Haddix, Woodland Hills, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., and W. Scott Thorpe, Supervising Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

STATEMENT OF THE CASE

On February 15, 1989, an amended information was filed in Tulare County Superior Court charging appellant Eddie Vasquez with the following:  counts I through V, forcible rape (Pen.Code, § 261, subd. (2)), with the further allegation for count I that appellant kidnapped the victim (Pen.Code, § 667.8, subd. (a));  counts VI through VIII, sodomy (Pen.Code, § 286, subd. (c));  count IX, oral copulation (§ 288a, subd. (c));  count X, kidnapping (§ 207, subd. (a));  and count XI, assault with a deadly weapon, a knife, with force likely to cause great bodily injury (§ 245, subd. (a)(1)).   On February 15, 1989, appellant pleaded not guilty and denied the allegations.

On February 16, 1989, a jury trial commenced.   On February 21, 1989, the court granted appellant's motion for acquittal on count V pursuant to Penal Code section 1118.1.   On February 22, 1989, the court granted appellant's motion for mistrial.

On May 9, 1989, a “3rd AMENDED INFORMATION” was filed against appellant alleging the following charges:  counts I through IV, forcible rape, with the further allegation of kidnapping for count I;  counts VI through VIII, sodomy;  count IX, oral copulation;  count X, kidnapping, and count XI, assault with a deadly weapon.1  On June 13, 1989, appellant again pleaded not guilty and denied the allegations.

On June 13, 1989, appellant's second jury trial began.   On June 29, 1989, he was found guilty on counts I through IV, forcible rape, with the kidnapping allegation on count I found not true.   He was found guilty of counts VI and VIII, sodomy, but not guilty of sodomy as charged in count VII.   He was also found guilty of oral copulation and kidnapping.   He was found not guilty of assault with a deadly weapon.

On September 6, 1989, appellant was sentenced to an aggregate term of 32 years:  the upper term of 8 years for count X, kidnapping (the principal term);  the upper term of 8 years for counts I, III and IV, forcible rape, to run fully consecutive to the principal term;  the upper term of 8 years on count II, rape, to run concurrently;  and the mid term of 6 years for sodomy and oral copulation, to also run concurrently.

On September 6, 1989, appellant filed a timely notice of appeal.   We will affirm.

STATEMENT OF FACTS

Appellant Eddie Vasquez met Lilia L. in 1979, and they began living together in 1983.   They had two children but never married.   Eddie and Lilia started having problems in their relationship and he moved out in 1987.   They still saw each other, however, and Eddie occasionally dropped by the house to leave his clothes for Lilia to launder.   In July 1988, Lilia was about to reconcile with Eddie until she caught him with another woman.   Lilia threw an object through the window of the house where Eddie was staying, and Eddie ran outside and slapped her.   Another incident occurred later that summer when Eddie and Lilia were driving to a concert.   They started fighting and Eddie threatened to kill her.   He pulled the car to the side of the road, bound her hands and feet, and tried to choke her.   These two incidents finally convinced Lilia to split up with Eddie.

On September 15, 1988, Eddie arrived at Lilia's house to pick up his laundered clothes.   An argument began when Eddie indicated he wanted to stay overnight.   Eddie pulled a knife, held it to Lilia's head and threatened to kill her.   Eddie eventually left, and Lilia reported the incident to the police.   A few days later, Eddie again arrived at Lilia's house and Lilia called the police.   Eddie left before the police arrived, but called Lilia and again threatened to kill her.

On September 20, 1988, Lilia spent the evening with several friends.   She arrived home in the early morning hours of September 21 and fell asleep in the same bed as her children.   She was awakened by the sound of breaking glass.   Eddie crashed through the bedroom window and pulled out the telephone cord.   Eddie chased Lilia, pulled her by the hair into the bathroom, tore off her underwear and repeatedly said he was going to kill her.   The children were screaming, and Eddie put them in another bedroom.   Lilia testified that Eddie beat her face and banged her head against the wall during the struggle in the bathroom.   Lilia grabbed a towel from the bathroom, escaped through the broken window and ran into the street covered only by the towel.   Eddie caught Lilia and dragged her by the hair into a car and drove off while she continued to scream for help.   Eddie drove the car while pushing her to the floor by her hair.   He continued to threaten to kill her.   Lilia grabbed the steering wheel of the car and Eddie lost control.   The car hit another vehicle then crashed into a fence.   Lilia dashed out of the car and ran down the street screaming for help.   Eddie caught up and knocked her to the street, then pulled her back into the car by her hair and drove off.

Primotivo Villanueva was the driver of the other car.   He observed a naked woman running down the street screaming for help, with a man running after her.   Villanueva saw the man grab the woman by her hair and push her into the car.   Villanueva approached but thought he saw a weapon in the man's hand and ran home to call the police.   Jesse Branch lived across the street from the collision and rushed outside when he heard the crash.   He heard a man yelling, “get in the car,” and saw a man and woman by the fence.   Branch observed the car leave traveling eastbound on Springville Drive.

California Highway Patrol Officer Terry Lambert responded to the accident scene at 5:57 a.m.   Lambert took statements from Branch and Villanueva.   Branch described a nude female running down the street being chased by a Mexican male.   Branch informed Lambert that the male caught the female, started hitting her, and dragged her by the hair into the car.   Lambert then drove down the road looking for the vehicle which he located at 6:20 a.m.

Lilia testified that the car eventually stalled on a street near a cliff.   Eddie pulled her out of the car and dragged her down the cliff.   They encountered several barbed-wire fences near pasture land, and Eddie threw her over the fences.   When they reached the bottom of the cliff, Eddie ordered Lilia to orally copulate him.   Lilia refused, and Eddie forced the oral copulation then raped her.   Eddie grabbed her and they walked for approximately 10 minutes until he again ordered her to perform an act of oral copulation.   Lilia refused, and Eddie forced the oral copulation and again raped her.   Eddie threatened to kill her and forced Lilia to walk toward the Tule River and ordered her to wash off.   He pulled her into the river and she was submerged to her neck.   Lilia testified that she was cold and in pain from scratches on her legs.

Eddie continued to force Lilia to walk through the field until they reached a pile of leaves.   He forced Lilia to her knees, then sodomized and raped her.   Lilia testified that Eddie made her hide under some branches when they heard people in the field.   Eddie again forced her to another location and sodomized and raped her.

Eddie forced Lilia to another location under a large tree, where he again sodomized and raped her.   Lilia testified that they remained under the tree for a long time, and he raped her more than once.   Eddie stated he was going to kill her by inserting a stick into her vagina.   He instead inserted his finger into her vagina.   Lilia promised not to tell anyone about the incident and agreed to create a fabricated story for the police.   Eddie promised to leave her alone if she lied to the police but threatened to kill her after he was released from jail if she didn't stick to the fabricated story.   They decided that Eddie would claim that he rescued Lilia from another man who dragged her out the window and drove her to the cliff.

Eddie left Lilia under the tree and starting walking to a nearby road, but waited to see if she would attempt to escape.   He finally walked to the road and flagged down Walter Long around noon.   Eddie told Long that his girlfriend had been raped.   Long accompanied Eddie into the field and found Lilia under the tree.   Long covered Lilia with his jacket, and Eddie gave her his tennis shoes.   Long testified that Lilia held on to Long when Eddie attempted to put his arm around her.   Long carried Lilia over a fence, then drove Lilia and Eddie to a market and called the police.   During the drive, Eddie stated that he tried to save Lilia from an attacker in her house.   Eddie described his pursuit of the attacker to a car.   Eddie claimed that he jumped on the attacker's car but fell off.   Long asked Eddie how he was able to catch up with Lilia, and Eddie replied that he searched for Lilia but was unable to find the attacker.   Eddie encouraged Lilia to confirm the story, and Lilia shook her head in agreement.

In the meantime, Porterville Police Officer Silver Rodriquez arrived at Lilia's house at approximately 5 a.m. to investigate an apparent burglary.   He discovered the broken window, torn underwear, and signs of a struggle in the house.   He also discovered the two children asleep in the bedroom.   Officer Griffin arrived at the home after 8:30 a.m.   Lilia's brother arrived at the house and informed Griffen that he feared for her safety.   At approximately 10 a.m., Griffin ordered an air search of the area near Lilia's house, but the search was unsuccessful.

Shortly after noon Officer Ricky Cooksey arrived at the market and drove Lilia to the hospital.   Lilia was naked except for Long's jacket and Eddie's shoes.   Lilia told Cooksey that Eddie had taken her from her house, beaten her, and repeatedly raped her.   Dr. Robert Rhodes treated Lilia at the hospital, and testified that she was severely bruised, with lacerations and abrasions over her face, back, neck, buttocks, arms and legs.   Lilia told Dr. Rhodes she had been raped and beaten.   Dr. Rhodes took specimens with a sexual assault kit from her vagina, rectum, and mouth.   Rhodes testified that his examination of Lilia corroborated her account of the ordeal.   Officer Griffin contacted Lilia at the hospital, and testified that she was covered with dirt, bruises, and scratches.   There were stickers and rocks embedded in her feet.   Lilia told Griffin that Eddie had forcibly raped her.

Officer Griffin returned to the police station where Eddie was being booked.   Griffin administered Miranda warnings and interrogated Eddie.   Eddie stated that he arrived at Lilia's house to pick up some clothes and saw another man attacking Lilia.   Eddie went through the bedroom window in an attempt to save Lilia.   The man hit Eddie on the head and pulled Lilia out the window.   Eddie followed and jumped into the man's car.   Eddie stated that the car was in an accident and eventually stalled.   Eddie followed the man and Lilia down the cliff, and subsequently found Lilia hiding under the tree.

Eddie was charged with assault with a deadly weapon, kidnapping, oral copulation, four counts of forcible rape, and three counts of sodomy.   Lilia testified that she promised to create the fabricated story because Eddie threatened to kill her.   Lilia admitted they had a violent relationship and Eddie often beat her, but he never threatened to kill her until July 1988.   She described Eddie as having a violent temper and a jealous nature.   Eddie tried to choke her while they were driving to Fresno for the concert, and threatened to kill her when he crashed through the bedroom window.   Lilia testified that she did not consent to any of the sexual acts on September 21.

The specimens taken by Dr. Rhodes confirmed the presence of sperm in the vaginal sample indicating recent intercourse.   Eddie was among the 50 percent of the population who could have been the donor.   There was no evidence of sperm in the rectal and oral samples, but this did not preclude its presence at an earlier time.

Eddie testified at trial and admitted he crashed through Lilia's bedroom window.   He had been drinking that night and drove by her house several times and noticed no one was home.   He admitted he pulled off her clothes because he was searching for “hickeys” and suspected that she was with another man.   He pulled the telephone cord out off the wall.   Lilia ran out the window and was screaming.   Eddie did not know why she was hysterical because she had never acted that way when he slapped her on previous occasions.   He did not threaten to kill her.   Eddie decided to take her to his car and drive around to calm her down.   Lilia was still hysterical while they were in the car, and she grabbed the steering wheel and they hit another car and a fence.   Eddie did not know why she grabbed the steering wheel.   Lilia ran out of the car and was screaming, but returned to the car with Eddie.   Lilia willingly entered the car and was not hysterical.

Eddie was concerned about Lilia's hysterical condition and lack of clothes, but never thought of returning home.   Eddie continued driving in the direction of a lake, but the car had a flat tire.   They left the car and walked down a hill, and Eddie helped Lilia over a fence.   He denied throwing her over the fence or dragging her down the hill.   Lilia was naked but did not complain about the walk.   Eddie was not sure why they walked down the hill, but no other alternative occurred to him.   They stopped near the river and washed themselves.   They eventually stopped under a tree and talked about their relationship.   Eddie testified that they made consensual love and denied any acts of sodomy or oral copulation.   Eddie stated that it was common for them to make love after an argument.   They remained under the tree and talked about their life.   Eddie admitted that Lilia complained of some pain to her legs, but she willingly walked down the hill without shoes.   Eddie also admitted that she was dirty because she fell in the field, but denied throwing her over the fences.   Eddie was afraid of getting in trouble because of the broken window and the car accident, so they decided to make up a story to explain the incident.

Eddie was convicted of kidnapping, oral copulation, four counts of forcible rape, and two counts of sodomy.   He was found not guilty of assault with a deadly weapon and one count of sodomy.   He raises a number of issues on appeal.

DISCUSSION

I.THE SUPPRESSION MOTION WAS PROPERLY DENIED.**

II.

THE MAYBERRY INSTRUCTION.

Appellant contends the court had the sua sponte duty to instruct the jury in the defense of “reasonable belief in consent,” pursuant to People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, based on his interpretation of the victim's testimony, i.e., that they had participated in prior acts of violent sex.   Appellant claims that the victim's prior conduct led him to believe that she consented to intercourse and she only complained to the police in an attempt to seek revenge for his involvement with another woman.   Appellant denied committing any acts of sodomy or oral copulation.   Thus, in the instant case, appellant's claimed error would only be applicable to the forcible rape convictions because these were the only offenses the occurrence of which he did not outright deny.  (People v. Burnham (1986) 176 Cal.App.3d 1134, 1144, 222 Cal.Rptr. 630.)

 The trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence.   The general principles of law governing the case are those principles closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case.  (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)   The trial court has a sua sponte duty to instruct on a defense wherever “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.”  (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Castillo (1987) 193 Cal.App.3d 119, 125, 238 Cal.Rptr. 207.)

 The elements of the offense of forcible rape are:  (1) a male and female person engaged in an act of sexual intercourse;  (2) the two persons were not married to each other;  (3) the act of intercourse was against the will of the female person;  and (4) such act was accomplished by means of force, violence, or fear of immediate and unlawful bodily injury, or threats of the perpetrator to retaliate in the future.  (CALJIC No. 10.00;  Pen.Code, § 261, subds. (a)(2) & (a)(6).)   The necessary intent which the prosecution must prove is the defendant's “wrongful intent.”  (People v. Mayberry, supra, 15 Cal.3d 143, 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)

 There are two types of “consent” defenses which relate to the elements of the offense.   The first type involves “actual consent.”   Lack of consent is an element of rape, and the defense of consent is established if the People do not carry their burden of proof of this element beyond a reasonable doubt.  (People v. Bruce (1989) 208 Cal.App.3d 1099, 1104, 256 Cal.Rptr. 647;  Pen.Code, § 261, subd. (2).)  When the defendant claims that the victim consented and the victim testifies that she did not, the jury must weigh the evidence and decide which of the two witnesses is telling the truth.  (People v. Bruce, supra, 208 Cal.App.3d at p. 1104, 256 Cal.Rptr. 647;  People v. Rhoades (1987) 193 Cal.App.3d 1362, 1367, 238 Cal.Rptr. 909.)  “When asserting the defense of consent, the defendant focuses on the victim's state of mind alone.   The defense may entail no more than the assertion that the complaining witness lied about the events that took place.”  (People v. Bruce, supra, 208 Cal.App.3d at p. 1104, 256 Cal.Rptr. 647, emphasis in original.)   Thus, this “defense” focuses on whether the defendant committed the sexual act against the will of the victim.

 The defense created by Mayberry, however, is based on the defendant's reasonable belief that the victim consented and relates to the general intent required to prove the offense.   A defendant who entertains both a reasonable and bona fide belief that the victim voluntarily consented to engage in sexual intercourse does not have the necessary wrongful intent to be convicted of the crime.  (People v. Mayberry, supra, 15 Cal.3d at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337;  (People v. Castillo, supra, 193 Cal.App.3d 119, 124, 238 Cal.Rptr. 207.)  “The rationale is simple:  one who labors under a mistake of fact that negates the existence of any criminal intent cannot be convicted of a crime.  [Citations.]”  (People v. Castillo, supra, 193 Cal.App.3d at p. 124, 238 Cal.Rptr. 207.)   The defendant must honestly believe the victim consented and that belief must be objectively reasonable under the circumstances.  (People v. Burnham, supra, 176 Cal.App.3d 1134, 1141–1142, 222 Cal.Rptr. 630.)

The Mayberry defense, in contrast to actual consent, “permits the jury to conclude that both the victim and the accused are telling the truth.   The jury will first consider the victim's state of mind and decide whether she consented to the alleged acts.   If she did not consent, the jury will view the events from the defendant's perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not.”  (People v. Romero (1985) 171 Cal.App.3d 1149, 1155–1156, 215 Cal.Rptr. 634;  People v. Mayberry, supra, 15 Cal.3d 143, 159–160, 125 Cal.Rptr. 745, 542 P.2d 1337.)

 The defense of actual consent and the Mayberry defense are compatible defenses and may be raised together.  (People v. May (1989) 213 Cal.App.3d 118, 125, 261 Cal.Rptr. 502.)   There has been a split between districts, however, on whether reliance on actual consent automatically requires a sua sponte instruction on the Mayberry defense.   In People v. Hampton (1981) 118 Cal.App.3d 324, 173 Cal.Rptr. 268, Division Three of the First District determined that reliance on actual consent required a sua sponte instruction on the Mayberry defense:  “Mayberry compels the conclusion that, by itself, the testimony of a defendant in a rape case that the prosecutrix consented can be sufficient to require the giving of the reasonable belief instruction.   Moreover, the reasonable belief in consent defense is not inconsistent with the defense of actual consent;  to the contrary, the defendant who relies on the defense of consent necessarily also relies on the defense that he had a reasonable and good faith belief that there was consent.”  (People v. Hampton, supra, 118 Cal.App.3d at p. 329, 173 Cal.Rptr. 268.)

In People v. Romero, supra, 171 Cal.App.3d 1149, 1153, 215 Cal.Rptr. 634, the defendant did not testify.   It was stipulated, however, that “at the time of his arrest [he] told the police he had not forced [the victim] to engage in sex with him, ‘we just had oral sex and drank a beer.   She said it was good.’ ”   Division Two of the First District noted the record was “devoid” of evidence which might have caused the defendant “to mistakenly believe that she consented to have sex with him.”  (Id. at p. 1156, 215 Cal.App.3d 634.)   The court agreed that the two defenses were compatible but rejected Hampton' s insistence that reliance on actual consent compels a sua sponte instruction on the Mayberry defense.   Instead, Romero required “some evidence” of equivocal conduct by the victim leading the defendant to reasonably believe in consent where in fact there was none.  (171 Cal.App.3d at p. 1156, 215 Cal.Rptr. 634.)  Romero distinguished actual consent as involving the contention that the complaining witness lied about the events that took place, rather than a claim that her conduct was misleading.  (Ibid.)

 In People v. Burnham, supra, 176 Cal.App.3d 1134, 222 Cal.Rptr. 630, this court also rejected Hampton because the “mere offer of the defense of consent clearly is not synonymous with substantial evidence of mistake of fact.”  (Id. at p. 1147, 222 Cal.Rptr. 630.)   Instead, the Mayberry instruction must be given sua sponte if supported by substantial evidence and not inconsistent with defendant's theory of the case.  Burnham concluded that the testimony of the defendant could be sufficient to raise the defense.   While equivocal conduct by the victim is an example of the type of evidence which may give rise to the Mayberry defense, Burnham disagreed with any requirement that the defendant must produce some evidence of equivocal conduct by the victim which led him to reasonably believe that there was consent where in fact there was none.  (176 Cal.App.3d at p. 1146, 222 Cal.Rptr. 630.)  “The question is whether there is substantial evidence to support the defendant's belief the victim consented.   Proof of unequivocal consent by the victim actually constitutes stronger evidence in support of a defendant's belief, and the reasonableness of that belief, than evidence of equivocal conduct.   We would agree, however, with the Romero opinion's insistence on at least some evidence of equivocal conduct by the victim where, in the context of that case, there was no evidence of unequivocal consent, much less evidence of what, if anything, the defendant believed.”  (Id. at p. 1147, 222 Cal.Rptr. 630.)

An additional interpretation of the sua sponte duty to give the Mayberry instruction is contained in People v. Rhoades, supra, 193 Cal.App.3d 1362, 238 Cal.Rptr. 909.   The Third District partially agreed with Burnham as to the defendant's belief in the victim's consent, but rejected its conclusion as to the sua sponte duty in a situation in which the defendant's testimony is contradicted by the victim's account:

“It is true that when consent is offered as a defense, we may infer the defendant asserts his belief in consent was reasonable.   Moreover, the testimony of the defendant alone can be sufficient to support the duty to instruct the jury in the mistake of fact defense.  (See People v. Burnham (1986) 176 Cal.App.3d 1134, 1148 [222 Cal.Rptr. 630]․)  However, unless the evidence reveals some way to harmonize the conflicting accounts of defendant and prosecutrix through a mistake of fact, so that the jury can evaluate proof relating to defendant's belief in consent (as distinguished from his mere assertion of consent), the court need not give the reasonable belief instruction sua sponte.”  (People v. Rhoades, supra, 193 Cal.App.3d at pp. 1369–1370, 238 Cal.Rptr. 909, emphasis in original.)

 In the instant case, appellant did not request the Mayberry instruction, but contends that the record contains substantial evidence of the reasonable belief defense so that the trial court had a sua sponte duty to instruct on the defense.   While appellant admitted breaking into the bedroom window, he denied any acts of violence against Lilia and testified she willingly accompanied him down the cliff, across the fences, and through the fields.   He denied Lilia's accusations of forced acts of sodomy and oral copulation, but claimed she consented to intercourse.   He also denied any threats to kill her and claimed the fabricated story was required because of the broken window and the car accident.   In contrast, Lilia described an encounter which began with appellant's violent entrance through the window, continued with his act of dragging her by the hair into the car, and throwing her down the cliff and over barbed-wire fences, with repeated threats to kill her.   Lilia also described numerous forced acts of oral copulation, sodomy and intercourse, and appellant's final threat to kill her unless she agreed to the fabricated story about the alleged attacker.

Appellant contends that substantial evidence supports the instruction based on evidence of prior incidents of violent sex with Lilia.   Lilia testified that during violent episodes the last few years of their relationship, appellant would “always beat up on me.”   She denied any responsibility or fault for the beatings.   She stated there were approximately 100 to 200 violent incidents between 1985 and 1988.   Lilia explained that appellant was “very jealous” and “the littlest things would upset him,” but the threats to kill her did not start until July 1988.

Appellant testified that his relationship with Lilia was not very good in June 1988:

“Q [defense counsel] Okay.   And would you characterize your relationship with Lillia [sic ] during that time as having any violence in it?

“A [appellant] Yeah.

“Q Could you tell the ladies and gentlemen of the jury about that.

“A Well, when I'd go home sometimes, we'd argue a little bit and sometimes I would slap her or slap her around sometimes.   And she would slap me back.

“Q Did Lillia [sic ] actively fight with you also?

“A Well, she would slap me back.   She wouldn't sit there and just let me hit her.   She would slap me back, yes.   She's not that way, just to sit there and let me hit her.   She would slap me back.

“Q Okay.   Now, were there instances when—instances when you would have a fight with her and there'll be some slapping and some hitting and some violence and then you guys would make love?

“A Yes.   Most the times or all the time, when we had an argument or anything, we'd end up making love to makeup [sic ].   We'd makeup [sic ] that way, by making love.

“Q Did you at any—any time during your relationship ever have sex with Lillia [sic ] against her will?

“A I never had sex with Lillia [sic ] against her will.   It was always consenting to me.   All the time.

“Q Even though you had fought before?

“A Even though—even though we would argue, we'd argue, and say our words and say our differences, we'd makeup [sic ] and we'd also make love.   All the time.”

Appellant admitted that Lilia was “hysterical” when she grabbed the wheel of the car, but he failed to understand the reason for her conduct:

“A ․ Because—in our previous time, I've—I've slapped her and she—we—she would never do that before, freak out and go take off running.   She would always, you know, be there, be strong, and we'd have our differences and talk it out.   And just—it would be all right.”

He admitted that her reaction to the September 21 incident was “very different” from other times.   He denied any threats to kill her and claimed that “other times” they just argued.   He also admitted that other incidents with Lilia involved “slapping or something” when they argued.   Appellant's only testimony concerning the actual incident was that Lilia “put her arm on my back” the second time they made love in the field.

During closing argument, defense counsel did not “dispute much of the evidence in the trial,” and conceded that Lilia “looks just horrible” in pictures taken at the hospital.   Counsel conceded that Lilia became hysterical after appellant crashed through the window, and appellant made the wrong decision to take her to the car and drive around.   Counsel attacked Lilia's story because it raised reasonable doubts about her veracity, and the sequence of events was not consistent.   As for Lilia's allegations of forcible sexual acts, counsel argued that the inconsistencies inferred Lilia “made it up.   She certainly had plenty of motive” to lie because she caught appellant with another woman:  “[H]ell hath no wrath like a woman scorned.”

 Appellant urges that such evidence supported the trial court's sua sponte duty to instruct on the Mayberry defense, which would be in accordance with this court's previous decision in Burnham.   We agree with Burnham's conclusion that the trial court is not obligated to sua sponte instruct the jury pursuant to Mayberry in every case where consent is offered as a defense.   The trial court has a sua sponte duty to instruct on the Mayberry defense only when such a defense is supported by substantial evidence and is not inconsistent with defendant's theory of the case.   (People v. Burnham, supra, 176 Cal.App.3d at pp. 1147–1148, 222 Cal.Rptr. 630.)   We also agree with Burnham' s conclusion that equivocal conduct is not the “sine qua non” for determining whether the evidence supports a sua sponte Mayberry instruction.  (People v. Burnham, supra, 176 Cal.App.3d at p. 1146, 222 Cal.Rptr. 630.)

 We disagree, however, with Burnham' s ultimate conclusion that “nothing more than the testimony of a defendant may be sufficient to trigger the duty to instruct sua sponte on the defense of a bona fide belief in the victim's consent.”  (People v. Burnham, supra, 176 Cal.App.3d at p. 1148, 222 Cal.Rptr. 630.)   This conclusion is valid as long as the defendant and victim do not testify to completely different stories concerning the events.   Burnham' s emphasis on the defendant's testimony necessarily implies that the victim did not testify to another story of the events giving rise to the charges that contradicted the defendant's testimony.   Thus, it is true that the testimony of the defendant alone may be sufficient to raise the Mayberry defense if the testimony of the victim or other prosecution evidence does not directly and completely contradict the defendant's testimony on the material, relevant factual issues.

But if the victim testifies and denies the occurrence of any such words or conduct, whether equivocal or unequivocal, that defendant could have interpreted to imply consent (or there is other equivalent prosecution evidence of the incident), then the question for the jury is not whether the defendant's “belief” in the victim's alleged consent was reasonable, but which witness is to be believed.   Such evidence is relevant to attack the element of the offense as to whether the sexual attack was against the will of the victim.  (CALJIC No. 10.00.)   This presents the classic “consent” defense in which the defendant and the victim testify to two completely different stories:  the defendant claims the victim consented by either words or conduct, and the victim denies speaking such words or performing such conduct.

We reject any interpretation of Burnham implying that the testimony of defendant alone, when in direct and complete conflict with the victim's testimony, is sufficient to raise the sua sponte duty to instruct on the Mayberry defense.   Instead, we agree with the conclusion in Rhoades:

“[U]nless the evidence reveals some way to harmonize the conflicting accounts of defendant and prosecutrix through a mistake of fact, so that the jury can evaluate proof relating to defendant's belief in consent (as distinguished from his mere assertion of consent), the court need not give the reasonable belief instruction sua sponte.”  (People v. Rhoades, supra, 193 Cal.App.3d at pp. 1369–1370, 238 Cal.Rptr. 909, emphasis in original.)

In the instant case, the only point on which both the victim and defendant concurred was that Eddie crashed through Lilia's bedroom window in the early hours of the morning.   Aside from the mere preliminary of entry into the house, the testimony of the defendant and victim were in direct conflict at every crucial point.   Lilia testified that Eddie chased her through the house, beating her and threatening to kill her.   When she escaped through the broken window, Eddie caught her and dragged her by the hair into the car.   In contrast, Eddie claimed that Lilia inexplicably became hysterical and decided to take a drive to calm her down.   Lilia testified that Eddie slapped her around in the car and she grabbed the steering wheel in an attempt to crash the car and escape.   Eddie denied striking her and wasn't quite sure why she grabbed the wheel.   Most importantly, Lilia testified that she ran out of the car, naked and screaming for help, in an attempt to evade Eddie because she feared for her life, and returned to the car only because Eddie caught up and dragged her by the hair into the vehicle.   Eddie testified that Lilia willingly accompanied him back to the car.   The conflicting stories take an even greater leap when Eddie testified that the naked and bleeding Lilia willingly accompanied him down the hill, over barbed-wire fences, and across the field to a spot under a tree where they talked about life and made love.   Lilia testified to Eddie's violent behavior in throwing her down the hill and over barbed-wire fences despite her protestations, and forcing several acts of sodomy, rape and oral copulation before making her wash off in the Tule River.   The forced march continued as Eddie pushed her under a bush and again committed rape and threatened to push a stick in her vagina.   Eddie denied committing any acts of sodomy or oral copulation or threatening her life.   The only conceivable agreement in their testimony concerns the false story about Eddie allegedly rescuing Lilia from a kidnapper.   Lilia testified that she agreed to this false story because Eddie threatened to kill her;  Eddie claims the story was necessary to avoid any trouble for breaking Lilia's window and crashing the car.   To the extent this is equivocal conduct, it does not relate to the issue of consent, nor can it be interpreted to explain acts which had already occurred.   But this minute area of agreement, and the potential for conflicting inferences from such testimony, is insufficient to support the Mayberry instruction because it occurred after the sexual incidents which were the basis for the charges.

Appellant's reliance on his testimony of their sexual relationship prior to this incident (which was completely contradicted by Lilia's testimony) is also insufficient to support the sua sponte duty to give the Mayberry instruction.   In People v. Simmons (1989) 213 Cal.App.3d 573, 261 Cal.Rptr. 760, the court noted that the jury may consider the victim's prior sexual conduct with a defendant as it may bear on whether the defendant had a reasonable belief the victim gave her consent.   However, the court concluded that “evidence of the victim's prior sexual conduct with a defendant, by itself, is insufficient to require that the jury be instructed pursuant [to the Mayberry instruction], because such conduct has no tendency to prove or disprove the defendant's state of mind at the time of the offense.   To warrant this instruction, there must be evidence, whether direct or circumstantial, of the defendant's state of mind at the time the offense was committed.   In such a case, the additional evidence that the victim and the defendant previously had engaged in sexual intercourse might properly have a bearing on the reasonableness of the defendant's belief.”  (213 Cal.App.3d at pp. 580–581, 261 Cal.Rptr. 760, emphasis in original.)

 Thus, we conclude that under the facts of this case, the trial court did not have a sua sponte duty to give the Mayberry instruction.   We additionally conclude that even if the trial court had a sua sponte duty to so instruct, any error would be harmless beyond a reasonable doubt under the principles of Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 and Pope v. Illinois (1987) 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439.

In Rose v. Clark, supra, 478 U.S. 570, 583, 106 S.Ct. 3101, 3109, the court found a jury instruction that homicide is presumed malicious violated Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 because it eliminated one of the elements of murder and unconstitutionally shifted the burden of proof to defendant.   The court concluded, however, the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 was applicable to Sandstrom error.

In its discussion, Rose distinguished between fundamental trial errors that are reversible per se and other federal constitutional errors which are subject to the Chapman harmless error analysis.  “We have emphasized ․ that while there are some errors to which Chapman does not apply, they are the exception and not the rule.  [Citation.]   Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.   The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments.   Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.”  (Rose v. Clark, supra, 478 U.S. at pp. 578–579, 106 S.Ct. at pp. 3106–3107.)

Rose confirmed that reversal is mandated if the error necessarily rendered the trial fundamentally unfair, aborted the basic trial process, or denied it altogether, but analyzed the instructional error in terms of its potential impact on the actual trial.   Although the jury was erroneously instructed to presume malice from predicate facts, it still had to find the existence of those predicate facts.   It was also instructed that it had to find the defendant guilty beyond a reasonable doubt of every element of murder.  “In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.  [Citation.]   In that event the erroneous instruction is simply superfluous:  the jury has found ․ ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.”  (478 U.S. at pp. 580–581, 106 S.Ct. at pp. 3107–3108.)

Rose clarified that “our harmless-error cases do not turn on whether the defendant conceded the factual issue on which the error bore.   Rather, we have held that ‘Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.’  [Citation.]   The question is whether, ‘on the whole record ․ the error ․ [is] harmless beyond a reasonable doubt.’  [Citation.]”  (478 U.S. at p. 583, 106 S.Ct. at p. 3109.)   The court also suggested the harmless error analysis may be applied to other types of instructional error:  “Harmless-error analysis addresses ․ what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome.”  (Id. at p. 582, fn. 11, 106 S.Ct. at p. 3108, fn. 11.)

In Pope v. Illinois, supra, 481 U.S. 497, 107 S.Ct. 1918, the court held that instructional error, even with regard to an element of the offense, may be tested under the harmless error rather than reversible per se standard.  “To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof [citation], after Rose, they are no longer good authority.”  (481 U.S. at pp. 503–504, fn. 7, 107 S.Ct. at pp. 1922–1923, fn. 7;  see also Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 1263–1265, 113 L.Ed.2d 302.)

 In light of the holdings in Rose and Pope, we reject any interpretation of Burnham as holding that such an instructional error is always prejudicial and never harmless.  (People v. Burnham, supra, 176 Cal.App.3d at pp. 1150–1151, 222 Cal.Rptr. 630.)   Instead, such errors must be reviewed to be determined if they are harmless beyond a reasonable doubt under Rose.

In the instant case, even had we concluded that the trial court had a sua sponte duty to give the Mayberry instruction, any error would have been harmless beyond a reasonable doubt because, under the facts of this case, no jury could have found there was any basis upon which appellant could have formed a reasonable and good faith belief in the victim's consent.   The evidence presented two directly conflicting versions of the incident which formed the basis for the charges.   The jury obviously chose to disbelieve appellant.

III.–IV.***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Count V was stricken by the court.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

HARRIS, Associate Justice.

ARDAIZ, Acting P.J., and DIBIASO, J., concur.