PEOPLE v. WILLIAMS

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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wash WILLIAMS, Defendant and Appellant.

No. A049246.

Decided: July 19, 1991

Michael J. Hanley, San Francisco, for defendant and appellant. Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

In this appeal from convictions of forcible rape (Pen.Code, § 261, subd. (2)) and false imprisonment (Pen.Code, § 236), we conclude the trial court erred by refusing defendant's requested instruction on “reasonable belief of consent” as contained in CALJIC No. 10.65.   We reverse.

Since the sole issue on appeal is the defendant's right to the standard jury instruction on reasonable belief of consent to intercourse (CALJIC No. 10.65), we are required to examine the record for evidence justifying the instruction.  (People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. King (1978) 22 Cal.3d 12, 15–16, 148 Cal.Rptr. 409, 582 P.2d 1000.)   Accordingly, our recitation of the facts emphasizes such evidence, rather than the “customary summary of evidence supporting the judgment.”  (People v. King, supra, at pp. 15–16, 148 Cal.Rptr. 409, 582 P.2d 1000.)

The victim, Deborah S., and her sister were staying at the Episcopal Sanctuary homeless shelter where defendant is a volunteer worker and resident.   On the date of the offense, defendant invited Deborah to a nearby fast food restaurant.   He bought her some food;  they ate and walked to the United Nations Plaza, where they continued talking.   They then returned to the restaurant and defendant bought Deborah more food.

At the restaurant Deborah accepted defendant's invitation to go to a hotel.   On the way, defendant bought her a bracelet from a street vendor.   They then entered the Dahlia Hotel, where defendant rented a room until 4:30 p.m., and collected bedding from the hotel clerk before going up to the room.

Leslie Flakes, the manager of the Dahlia Hotel, testified that she did not hear any screaming or fighting emanate from the rented room.   She said she would have heard normal conversation if it was loud, and certainly screaming.

Defendant testified that when he entered the hotel room Deborah hugged and kissed him and began to remove her clothes, whereupon he did the same.   Defendant testified he was “impotent,” and the victim fondled his genitals for several minutes before helping him to insert his penis into her vagina.   He said this was the only act of intercourse.   After intercourse she asked him for $50, and when he refused she became angry.   According to defendant, “[h]er personality changed completely.”   She threatened to “create a problem for him by telling Father Nunn” and her sister if he did not give her the money.   Defendant stated that the victim insulted him and threatened to accuse him of rape.   Angry, defendant slapped her face.   He asked for the bracelet back and she threw it on the bed.   As she got dressed defendant asked her why she did not wipe away his sperm, and she replied that she wanted to preserve the evidence.

 The trial court agreed that the evidence supported a consent defense—i.e., that the jury could believe the victim consented to intercourse—but it refused to give the instruction requested by both defendant and the People on reasonable belief as to consent.  (CALJIC No. 10.65.)

I

The requested instruction (CALJIC No. 10.65) reads:  “In the crime of forcible rape, criminal intent must exist at the time of the commission of the forcible rape.   There is no criminal intent if the defendant had a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse.   Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge.  [¶] If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the sexual intercourse, you must find him not guilty of such crime.”  (CALJIC No. 10.65 (5th ed.)

The trial court must give requested instructions on defenses where there is substantial evidence to support them.  (People v. Flannel, supra, 25 Cal.3d at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1.)   Substantial evidence is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded” ’ that the particular facts underlying the instruction did exist.”   (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311, quoting People v. Flannel, supra, 25 Cal.3d at pp. 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)

This instruction originated in People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, a prosecution for forcible rape.   Mayberry held it was error not to instruct the jury on defendant's reasonable mistake of fact that the victim consented to intercourse.   One of the defendants testified that the victim willingly accompanied him to his home and agreed to engage in intercourse with him.   This contradicted the victim's testimony that she accompanied the defendant only after he threatened her with violence and struck her.   The evidence also showed the victim did not avail herself of opportunities to escape or to get help, and later did not physically resist defendant's sexual demands once inside his apartment.   The court concluded that defendant's testimony would support his request for an instruction that he had a good faith reasonable belief that the victim consented to accompany him to his apartment and engage in intercourse.   (Id., at p. 156, 125 Cal.Rptr. 745, 542 P.2d 1337.)

In reliance on Mayberry, People v. Hampton (1981) 118 Cal.App.3d 324, 329–330, 173 Cal.Rptr. 268 held that the mistaken belief instruction must be given, sua sponte, in every case wherein consent is offered as a defense to the charge of forcible rape.   In Hampton the victim and defendant testified to opposite versions of the event.   The victim stated that defendant grabbed her wrist, and threatened her with physical harm if she did not have intercourse with him.   Defendant testified that the victim willingly kissed him and engaged in intercourse.   Citing Mayberry, the court concluded “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.”  (Id., at p. 329, 173 Cal.Rptr. 268.)

A similar conclusion was reached in People v. Burnham (1986) 176 Cal.App.3d 1134, 222 Cal.Rptr. 630.   Burnham was convicted of several counts of spousal rape, attempted penetration with a foreign object and assault likely to produce great bodily injury.   Defendant repeatedly asserted that his wife was a willing participant in all the charged offenses.   Relying on Hampton, the court held that whenever the defendant testifies the victim said, “I consent” or testified to conduct from which consent is inferred, this raises “two theories of defense simultaneously:  the defense of actual consent, and the defense of defendant's belief the victim consented.”  (Id., at pp. 1144, 1145, 222 Cal.Rptr. 630.)   The court concluded that defendant's testimony was sufficient, by itself, to provide the substantial evidence necessary to support the instruction.  (Id., at p. 1148, 222 Cal.Rptr. 630.)   However, the court refused to follow the language in Hampton that in “every case” the defendant relies on consent, the court must instruct the jury pursuant to Mayberry.  (Id., at p. 1147, 222 Cal.Rptr. 630.)   The Burnham court recognized, “The mere offer of the defense of consent clearly is not synonymous with substantial evidence of mistake of fact.”  (Ibid.)

Here, defendant's evidence supports his request for the instruction that he reasonably believed the victim gave her consent to engage in intercourse.   Defendant testified that she willingly accompanied him to the hotel after spending several hours in his company, that she did not object when the hotel clerk handed him a bedsheet, that once inside the room she hugged and kissed him and initiated sexual intercourse, and that during the hour they were inside the room the hotel clerk did not hear any screams or other sounds indicating physical violence.   Based on this evidence, the jury should have been given the instruction.   While defendant has the burden of proving he had a bona fide and reasonable belief of consent, he need only raise a reasonable doubt in the minds of the jury whether this belief existed (People v. Mayberry, supra, 15 Cal.3d at p. 157, 125 Cal.Rptr. 745, 542 P.2d 1337) and should be allowed the chance to prove this defense.   At trial the People agreed, since they too requested that the instruction be given.

A conflict on this question exists among the Courts of Appeal, including Divisions within this District.   In People v. Romero (1985) 171 Cal.App.3d 1149, 215 Cal.Rptr. 634, the court held there was no sua sponte duty to give a mistake of consent instruction where the defense was actual consent.   The victim testified defendant forcibly raped her.   Defendant did not testify, but gave his statement to the police that he did not force the victim to have sex and “ ‘[s]he said it was good.’ ”  (Id., at p. 1156, 215 Cal.Rptr. 634.)   The court interpreted the defense to be actual consent and concluded that defendant did not present any evidence of equivocal conduct by the victim which led him to reasonably believe that she had consented to have sex with him.

The Romero reasoning was adopted in People v. Rhoades (1987) 193 Cal.App.3d 1362, 238 Cal.Rptr. 909.   There, the victim testified that defendant forced her to orally copulate him at knife point, and the defendant testified to actual consent.  (Id., at pp. 1365–1366, 238 Cal.Rptr. 909.)   Concluding defendant never asserted he mistakenly believed the victim consented, the court held that the trial court did not have a sua sponte duty to instruct on reasonable, good faith belief in consent.   It rejected the Hampton holding that a Mayberry instruction is required in every case of consent.

However, both Romero and Rhoades are distinguishable, since they were considering the court's duty to instruct sua sponte.   By contrast, the instant case involves a specific request for the instruction.

Contrary to the conclusions expressed in the dissent's discussion of the procedural evolution of rape prosecutions, we intend no revival of “archaic” social or legal philosophy concerning the crime of rape, nor do we express any dissatisfaction with any legislative enactments governing the prosecution and punishment of this heinous offense.   This case has nothing to do with those issues.   Rather, we are guided by well established legal principles which we construe as controlling on the single issue of the defendant's entitlement to a standardized jury instruction.   We briefly review those principles.

 First, upon request the court is required to give “any correct instruction on the defendant's theory of the case which the evidence justifies, no matter how weak or unconvincing that evidence may be.”  (5 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) § 2922;  People v. Flannel, supra, 25 Cal.3d at pp. 684–685, 160 Cal.Rptr. 84, 603 P.2d 1.)  “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.   That is a question within the exclusive province of the jury.”  (People v. Flannel, supra, at p. 684, 160 Cal.Rptr. 84, 603 P.2d 1, citations and internal quotation marks omitted.)  “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.”  (People v. Wilson (1967) 66 Cal.2d 749, 763, 59 Cal.Rptr. 156, 427 P.2d 820;  People v. Flannel, supra, 25 Cal.3d at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1.)

 Second, it is axiomatic that the defense is entitled to argue any theory of the case supported by the evidence (see, e.g., 5 Witkin & Epstein, op. cit. supra, § 2919), but every experienced litigator knows that an argument unsupported by instructions from the court is of slight benefit, as opposing counsel will be quick to point out, if the court permits counsel to argue a theory upon which it refuses to instruct.

We repeat that at trial herein, both the People and the defense requested the subject instruction.   It is conceded by all parties, as well as our dissenting colleague, that the evidence is sufficient to support and permit the assertion of the defense that the victim consented to engage in intercourse with defendant.   However, on appeal the People now argue that although the evidence is sufficient to support a finding by the jury that the victim consented, that same evidence is insufficient to support that same belief by the defendant.

We believe the People misconstrue the purpose of the two instructions.   While it is correct that the two defenses focus on different individuals—the victim and the accused—they are not mutually exclusive.   The purpose of CALJIC Nos. 1.23.1 [definition of consent] and 10.00 [definition of rape] is to direct the jury's attention to the victim's conduct and state of mind.   CALJIC No. 10.65 [reasonable belief as to consent] directs the jury's attention to the accused and his state of mind, in light of the evidence and the conduct of the victim.   For this very reason, the contention by the dissent that “the factual question presented in the omitted instruction was determined by the jury in another context” is mistaken.   The instructions on actual consent did not focus on defendant's belief nor advise the jury that a reasonable belief in consent was a defense to the charge.

Another way to view the issue is to determine whether defendant had the right to argue to the jury that he reasonably believed the victim consented to intercourse.   As we have noted, whether CALJIC No. 10.65 or any other requested instruction is required is dependent upon the evidence, and requires a consideration of the defendant's evidence as well as that produced by the People.  (People v. Flannel, supra, 25 Cal.3d at pp. 684–685, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. King, supra, 22 Cal.3d at pp. 15–16, 148 Cal.Rptr. 409, 582 P.2d 1000; 5 Witkin & Epstein, op. cit. supra, § 2922, and citations therein.)

Here, defendant's evidence, together with that produced by the People, is that (1) the victim voluntarily accompanied defendant to a downtown hotel that apparently charges by the hour, (2) she voluntarily accompanied defendant to the room after the hotel clerk supplied them with bedding, (3) she fondled his genitals to arouse him and assisted him in the act of intercourse, and (4) following intercourse she demanded payment.   The victim testified she thought they were going to the hotel to watch television, and that she submitted to intercourse because she was frightened after defendant struck her.   Defendant testified that he struck her after they had engaged in intercourse and got into an argument over her demand for payment.   The jury might have believed that the victim engaged in intercourse out of fear and this is why she did not scream for help, attempt to struggle or fight defendant off.   However, the jury was prevented from considering whether defendant could have believed, based on the foregoing evidence, that the victim consented freely.

We conclude that the state of the evidence is sufficient to entitle defendant to the requested instruction and to assert the defense that he entertained a reasonable belief that the victim consented.   Since this defense was removed from the jury's consideration and not covered by any other instruction, the error was prejudicial and requires reversal.  (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. St. Martin (1970) 1 Cal.3d 524, 532, 83 Cal.Rptr. 166, 463 P.2d 390;  People v. Modesto (1963) 59 Cal.2d 722, 730–731, 31 Cal.Rptr. 225, 382 P.2d 33;  People v. Lonergan (1990) 219 Cal.App.3d 82, 94, 267 Cal.Rptr. 887;  People v. Alvarado (1982) 133 Cal.App.3d 1003, 1020, fn. 6, 184 Cal.Rptr. 483.)   Our learned colleague attempts to re-weigh the evidence, but in so doing disregards our function and usurps that of the jury, which is not permitted.  (See, e.g., People v. Lemus (1988) 203 Cal.App.3d 470, 478, 249 Cal.Rptr. 897.)   We need not, and do not hold that CALJIC No. 10.65 is necessarily required in every rape case in which the victim's actual consent is raised as a defense.   We merely hold that based on the evidence herein and defendant's request for the rejected instruction, the court erred in denying it, and the error was prejudicial because it removed the defense from the jury.

Reversed.

It is not often that I disagree with my colleagues, but the archaic and harmful, albeit unintended, message of the majority opinion compels me to dissent.   The effect of the majority opinion is to revive the discredited notion that forcible rape should be treated differently from other assaultive crimes.   The majority suggests that the complainant's testimony that she did not consent should be given less credence than in other types of violent felonies requiring nonconsent, e.g., robbery, kidnaping and assault.   Long ago our legal system abandoned the canard that the charge of rape is easily made and that victims of sexual offenses are presumptively entitled to less credence than victims of other crimes.   Our Supreme Court has disapproved the instruction that the victim's testimony be viewed with caution (People v. Rincon–Pineda (1975) 14 Cal.3d 864, 871, 873–877, 123 Cal.Rptr. 119, 538 P.2d 247), and rejected as an element of rape that the victim must physically resist her attacker and thereby risk additional injury.  (People v. Barnes (1986) 42 Cal.3d 284, 302–303, 228 Cal.Rptr. 228, 721 P.2d 110.)

The modern trend is decidedly to remove evidentiary obstacles peculiar to rape prosecutions.   In 1980, the Legislature enacted Penal Code section 1112, barring psychiatric examinations of rape complainants which had been authorized in Ballard v. Superior Court (1966) 64 Cal.2d 159, 175–177, 49 Cal.Rptr. 302, 410 P.2d 838.   The Legislature also has prohibited the instruction that an “unchaste woman” is more likely to consent to sexual intercourse again (Pen.Code, §§ 1127d, 1127e), and has largely precluded the use of evidence of the complaining victim's prior sexual conduct to prove consent.  (Evid.Code, § 1103, subd. (b);  see also Barnes, supra, 42 Cal.3d at p. 301, 228 Cal.Rptr. 228, 721 P.2d 110.)

The majority decision reverts to that discredited mind-set which automatically views the woman's testimony regarding sexual assault with skepticism.   Under the majority view, no matter how divergent is the testimony of the defendant and the complaining witness, the jury is permitted to infer that “no” really meant “yes.”   Such a view confuses the romantic with the criminal by perpetuating the myth that women enjoy being roughed up or that “they asked for it.”   This is bad social policy.   I do not believe the case law supports this result.

I

The majority's reading of People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, is too broad.  Mayberry did not hold that the mistake of fact instruction must be given in every case the defendant testifies to actual consent.   Were this true it would have been quite simple for the Supreme Court to say so.   Rather, Mayberry stands for the unremarkable principle that either the defendant's or the victim's testimony may provide sufficient evidence to support the mistake of fact instruction.   The Mayberry court examined both the defendant's and the victim's testimony before concluding that this evidence could support the instruction:  “However, [defendant] Franklin's testimony summarized above could be viewed as indicating that he reasonably and in good faith believed that Miss B. consented to accompany him to the apartment and to the subsequent sexual intercourse.”   (Id., at p. 156, 125 Cal.Rptr. 745, 542 P.2d 1337.)   Seemingly wary of the thin evidentiary thread on which its conclusion rests, the Mayberry court also mentioned the victim's own “equivocal” testimony to support the giving of that instruction.  (Ibid.)  Had the court intended to create an automatic rule, as the majority believes, it would not have gone to such lengths to review the evidence to find factual support for the instruction.

The rationale behind Mayberry 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 (1987) 193 Cal.App.3d 119, 124, 238 Cal.Rptr. 207.)   This instruction requires the factfinder to examine the defendant's state of mind.   It is appropriate where the jury could conclude that both parties are telling the truth, i.e., the victim never intended to engage in intercourse, but the defendant reasonably believed her behavior indicated consent.   It is not appropriate in cases, as this one, where a defendant maintains that the victim actually consented.   In this situation the jury considers only the victim's state of mind.   In reaching a verdict in a case where the defense is actual consent, the jury must decide which of the two witnesses is telling the truth.   In this case, the defense was only actual consent.   There was no middle ground and there was no evidence to support the requested instruction.

The same conclusion was reached in People v. Romero (1985) 171 Cal.App.3d 1149, 215 Cal.Rptr. 634.   The court held that there was no sua sponte duty to give a mistake of consent instruction where the defense was actual consent.   The victim testified defendant forcibly raped her.   Defendant did not testify, but told the police that he did not force the victim to have sex and “ ‘[s]he said it was good.’ ”  (Id., at p. 1156, 215 Cal.Rptr. 634.)   The court interpreted the defense to be actual consent.   The court held that the defenses of actual consent and reasonable mistake of fact are not inseparable, and the assertion of actual consent does not necessarily raise the Mayberry defense.  (Romero, supra, at pp. 1154–1155, 215 Cal.Rptr. 634.)  “Where the defendant claims that the victim consented, the jury must weigh the evidence and decide which of the two witnesses is telling the truth.   The Mayberry defense, on the other hand, permits the jury to conclude that both the victim and the accused are telling the truth.”  (Id., at pp. 1155–1156, 215 Cal.Rptr. 634.)   The court concluded that defendant did not present any evidence of equivocal conduct by the victim which led him to reasonably believe that she had consented to have sex with him.

An identical result was reached in People v. Rhoades (1987) 193 Cal.App.3d 1362, 238 Cal.Rptr. 909.   There, the victim testified that defendant forced her to orally copulate him while she was handcuffed and he threatened her with a knife.   The defendant testified the sexual encounter was consensual and she accused him of the crime out of spite.  (Id., at pp. 1365–1366, 238 Cal.Rptr. 909.)   The defense was actual consent, and defendant never asserted he made a reasonable mistake of consent.   The court held that under these facts the trial court did not have a sua sponte duty to instruct on a reasonable, good faith belief in consent.  (Id., at p. 1367, 238 Cal.Rptr. 909.)   It rejected the argument that a Mayberry instruction is required in every case of consent.  (Id., at p. 1369, 238 Cal.Rptr. 909;  accord, People v. Simmons (1989) 213 Cal.App.3d 573, 579–581, 261 Cal.Rptr. 760.)

Similar reasoning was used in People v. Bruce (1989) 208 Cal.App.3d 1099, 256 Cal.Rptr. 647, to reverse a rape conviction on the ground the trial court improperly allowed evidence of a prior rape.   The court held that evidence of this prior conviction is permissible to prove that defendant did not reasonably and in good faith believe the victim consented.  (Id., at p. 1105, 256 Cal.Rptr. 647.)   But the defense was actual consent, which “may entail no more than the assertion that the complaining witness lied about the events that took place.   In that case, there would be no evidence that the victim acted equivocally.”  (Id., at p. 1104, 256 Cal.Rptr. 647.)   The court concluded that because the defendant's intent was unequivocal, there was no evidence to support a Mayberry defense.  (Id., at pp. 1105–1106, 256 Cal.Rptr. 647.)

This instruction is not automatically required in all cases of actual consent.   But this is the result of the majority opinion, despite disclaimers to the contrary.  (See maj. opn. at pp. 522–523.)   The better-reasoned view requires sufficient direct or circumstantial evidence which could lead one to believe the victim's actions in the hotel room could be viewed as equivocal.

In attempting to discredit the Romero and Rhoades decision, the majority draws the inappropriate distinction that those cases involved the court's duty to instruct sua sponte.  (See opn. at p. 521.)   The quantum of evidence which triggers the trial court's duty to give an instruction, either upon request or sua sponte, is the same.   A court's sua sponte duty to instruct on particular defenses arises only when there is sufficient evidence to support that defense and (a) defendant appears to be relying on that defense, or (b) that defense is not inconsistent with defendant's theory of the case.  (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.)   Likewise, a court must give a requested defense instruction only if there is evidence deserving consideration by a jury, i.e., substantial evidence.  (People v. Flannel (1979) 25 Cal.3d 668, 684–685, 160 Cal.Rptr. 84, 603 P.2d 1.)   These cases which reach a result opposite to that of the majority cannot be dismissed so lightly.

People v. Hampton (1981) 118 Cal.App.3d 324, 173 Cal.Rptr. 268, relied upon by defendant, interpreted Mayberry to require that “in every case wherein consent is offered as a defense to a charge of rape or unlawful oral copulation, the court must instruct the jury in the language of [CALJIC No. 10.65].”  (Hampton, supra, at p. 330, 173 Cal.Rptr. 268.)   This interpretation reads too much into Mayberry and ignores the requirement of substantial evidence to support the instruction.   Even People v. Burnham (1986) 176 Cal.App.3d 1134, 222 Cal.Rptr. 630, cited approvingly by the majority, does not extend Mayberry that far.   That court expressly declined to follow the Hampton court's interpretation “that in ‘every case’ wherein consent is ‘offered’ as a defense, the court must instruct the jury pursuant to Mayberry.   The mere offer of the defense of consent clearly is not synonymous with substantial evidence of mistake of fact.”  (Burnham, supra, at p. 1147, 222 Cal.Rptr. 630.)

Unless there is substantial evidence deserving of consideration by the jury, this instruction should properly be refused.

II

The plain assertion of actual consent does not establish substantial evidence of a good faith, honest belief of consent.   The trial court must give requested defense instructions only if there is substantial evidence deserving of consideration by the jury.   In other words, “ ‘[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.’ ”  (Flannel, supra, 25 Cal.3d at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1 [malice element of murder is negated by honest but unreasonable self-defense];  accord, People v. Wickersham (1982) 32 Cal.3d 307, 325–326, 185 Cal.Rptr. 436, 650 P.2d 311.)

Defendant's version of the events cannot be viewed as reasonably permitting the inference that he somehow misinterpreted the victim's actions.   Defendant testified that the victim hugged and kissed him and that she was the aggressor, laboring to overcome his proclaimed impotence and even inserting his penis into herself.   This scenario does not permit a reasonable jury to draw any inference other than the victim unequivocally assented to sexual relations with defendant.   There is no gray area from which defendant could logically argue that he misunderstood the victim's actions.   Defendant did not testify, and there was no circumstantial evidence to suggest the victim liked being “roughed up” or that her resistance was consistent with seduction, i.e., that “no” really meant “yes.”   According to defendant there was no resistance.

Nor did the victim's testimony offer any support for the instruction.   She testified that she tried to leave the hotel room but was physically prevented from doing so, that she twice refused to lie on the bed with defendant, and that she complied only when he punched her in the eye.   To characterize her conduct as equivocal because she voluntarily accompanied the defendant to a hotel room, as the majority does, is to revive the obsolete and repugnant idea that a woman loses her right to refuse sexual consent if she accompanies a man alone to a private place.   That is an especially cruel assumption here, where the victim, a homeless woman, may well have wanted nothing more than the relative quiet and comfort of a private room in which to relax and watch television.

This case is unlike others which have approved the giving of the instruction.   In People v. Anderson (1983) 144 Cal.App.3d 55, 192 Cal.Rptr. 409, the court held that defendant was entitled to the instruction in a case charging him with the forcible oral copulation and rape of two minor girls he picked up hitchhiking.   Both girls testified to forcible sex after defendant hit one of them and threatened to shoot them.   The only defense witness was defendant's young son, then four years old, who sat in the back seat during these events.   His testimony that one of the girls hit his father but laughed when she did so, that defendant never said he had a gun, and that one of the girls moved from the back to the front seat, together with circumstantial evidence that the girls remained in defendant's car despite opportunities to escape, could support the inference of reasonable belief of consent.  (Id., at p. 62, 192 Cal.Rptr. 409.)

In Castillo, supra, 193 Cal.App.3d 119, 238 Cal.Rptr. 207, the victim testified that she fought off defendant's sexual advances, but conceded that he spent the remainder of the night in her bed and that in the presence of her boyfriend she kissed him goodbye when she left for work the following morning, only to make her boyfriend jealous.  (Id., at p. 122, 238 Cal.Rptr. 207.)   Defendant admitted sleeping with the victim, but denied any sexual activity.  (Id., p. 123, 238 Cal.Rptr. 207.)   Defendant was convicted of forcible rape and penetration by a foreign object.   The reviewing court held that the trial court erred in not giving the Mayberry instruction, sua sponte, as to penetration by a foreign object, although it did give the instruction as to the rape count, as requested by defendant.  (Id., at p. 125, 238 Cal.Rptr. 207.)   The court held there was sufficient evidence to support the instruction and the victim's “testimony alone demonstrated equivocal conduct which could have led defendant to believe that consent existed where in fact there was none.”  (Id., at p. 126, 238 Cal.Rptr. 207.)

The recent case of People v. May (1989) 213 Cal.App.3d 118, 261 Cal.Rptr. 502, on which defendant relies, does not alter my conclusion.   That court determined there was sufficient ambiguity in the victim's own testimony from which the jury could infer defendant had a reasonable, good faith belief that she consented to the sexual acts.   The court relied on evidence of the parties' initial encounter, describing it as a “ ‘pick up,’ ” and noted that the victim conceded she was attracted to the defendant.  (Id., at p. 125, 261 Cal.Rptr. 502.)   The court further noted that “Maria's behavior in willingly accompanying him to the apartment after several hours of merriment, her failure to escape when presented with the opportunity, and her lack of verbal objection while in the bedroom could reasonably have been misinterpreted by May as the conduct of someone playing games rather than resisting his advances.   The testimony of May's father [who was in the apartment at this time] further strengthened the inference that Maria behaved as if she were a willing participant in the sexual encounter.”  (Id., at p. 126, 261 Cal.Rptr. 502.)

Importantly, the May court emphasized that the Mayberry instruction is not required “if the only evidence from the defendant is unequivocal consent and from the victim nonconsensual forcible sex․”  (May, supra, 213 Cal.App.3d at p. 125, 261 Cal.Rptr. 502.)

Here, no inference of equivocal behavior regarding consensual sexual intercourse could reasonably be drawn from either the victim's or the defendant's testimony.   The jury was presented with the only two theories supported by the evidence, and it would have been error to give a mistake of consent instruction.

III

Assuming the refusal to give the instruction was error, it should be deemed harmless beyond a reasonable doubt because no rational jury could, on this evidence, simultaneously reject the actual consent defense and accept the Mayberry defense.   A failure to instruct can be cured by determining if the factual question presented in the omitted instruction was determined by the jury in another context.  (Sedeno, supra, 10 Cal.3d at p. 721, 112 Cal.Rptr. 1, 518 P.2d 913;  Mayberry, supra, 15 Cal.3d at p. 158, 125 Cal.Rptr. 745, 542 P.2d 1337.)   The factual question posed by the Mayberry instruction—whether defendant could reasonably and honestly believe the victim consented—was resolved adversely to defendant.

Fundamental instructional errors, such as those directing the jury to draw mandatory presumptions or misdescribing the elements of the crime, have been considered harmless if the findings made by the jury as instructed would not have changed had the proper instruction been given.  (Carella v. California (1989) 491 U.S. 263, 267–273, 109 S.Ct. 2419, 2421–2424, 105 L.Ed.2d 218 (conc. opn. of Scalia, J.);  Pope v. Illinois (1987) 481 U.S. 497, 504, 107 S.Ct. 1918, 1923, 95 L.Ed.2d 439 (conc. opn. of Scalia, J.).)

In People v. Leach (1985) 41 Cal.3d 92, 104–105, 221 Cal.Rptr. 826, 710 P.2d 893, our Supreme Court held that the failure to give the complete aiding and abetting instruction, as announced in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, was harmless error since there was no possibility the defendant could have been convicted as an aider and abettor.   The trial court instructed the jury in the language of former CALJIC No. 3.01, which was held to be erroneous in Beeman, because the jury was not advised that the conviction as an aider and abettor required not only that the defendant have knowledge of the criminal purpose of the perpetrator of the offense, but also that defendant act with the requisite criminal intent to aid the commission of the crimes.  (Beeman, supra, at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   In Leach, the jury convicted defendant of first degree murder and specifically found he personally used a deadly weapon in the commission of the robbery.   The prosecution's evidence indicated that defendant was the principal perpetrator, not simply an aider and abettor, and if the jury accepted this evidence, the aiding and abetting instructions would not have been applicable at all.   It was defendant's position that he did not even know of his accomplice's intent to rob the victim, and did not commit or in any way aid in the commission of either the robbery or the killing.   (Leach, supra, 41 Cal.3d at p. 105, 221 Cal.Rptr. 826, 710 P.2d 893.)   The court concluded:  “On this state of the record, no reasonable trier of fact, having actually found that defendant acted with the requisite knowledge, ‘could at the same time have concluded that the defendant did not act for the purpose of facilitating or encouraging the crime.’ ”  (Ibid.)

By rejecting defendant's actual consent defense, the jury necessarily discredited defendant's totally innocent version of the events—i.e., the victim initiated all the sexual activity throughout.   As with the completely contradictory versions in Leach, the jury here necessarily determined that defendant could not harbor a good faith, honest belief the victim agreed to engage in sex.   Because of the contraposition of defendant's and the victim's versions, no rational jury could have returned a guilty verdict without also finding that defendant did not hold a mistaken belief of consent.

For several reasons I would respectfully urge our Supreme Court to grant review in this case so it can clear up the confusion generated by its Mayberry decision.   The primary reason is that a conflict not only exists between districts of the Court of Appeal, but within the First and Fifth Districts as well.   With the recent decision in People v. Vasquez (1991) 230 Cal.App.3d 1202, 281 Cal.Rptr. 661, the Fifth District disagreed, in part, with its earlier decision in People v. Burnham, supra, 176 Cal.App.3d 1134, 222 Cal.Rptr. 630.   As a former trial judge in the criminal courts, I sympathize with the difficult job trial judges have in determining when there is adequate evidence to trigger their responsibility to give a requested instruction.   This task is made nearly impossible when the same appellate court gives conflicting directions.   These trial judges deserve to have the path clearly marked.

For these reasons I would affirm the judgment.

HANING, Associate Justice.

KING, J., concurs.

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