PEOPLE v. GIPSON (1984)

After jury trial appellant was convicted of the following offenses:  forcible rape (Pen.Code, § 261, subd. (2), with use of a deadly weapon (Pen.Code, § 12022.3, assault with a deadly weapon, to wit a knife (Pen.Code, § 245, subd. (a));  and burglary (Pen.Code, § 459) with use of a deadly weapon (Pen.Code, § 12022, subd. (b)).  For these crimes appellant was sentenced to a total prison term of 19 years.

FACTS

Conflicting evidence was offered at trial by appellant and the victim, Lucie M. (hereafter sometimes Lucie).   Lucie testified that on March 17, 1982, she returned to her residence, where she lived with her husband, at around 2 p.m.  Just after she arrived there, the doorbell rang.   She opened the door and a man she identified at trial as appellant walked into her home and pulled a knife from his clothing.   Lucie screamed and fell down the steps leading to the living room.

Appellant said that he would not hurt her and asked if anyone else was home.   When Lucie replied that someone might be on the premises, appellant marched her through the house at knifepoint.   Finding no one else in the residence, they returned to the living room where Lucie was ordered to lie face down on the floor and undress.

Before undressing, Lucie asked if she could put in her diaphragm.   Appellant agreed.   They returned to the living room, Lucie still being led at knifepoint, where an act of intercourse occurred.

Immediately thereafter, appellant observed the police outside the residence and exclaimed, “The cops are here.”   Before leaving, appellant tied Lucie's hands behind her back with adhesive tape which he brought into the home with him.   He then threatened Lucie with further harm if she called the police, and fled out a back door.¹

Lucie got up and locked the doors.   She observed appellant jump over the fence and leave her yard, whereupon she called the police.   Shortly thereafter, Lucie saw appellant standing on the sidewalk in front of her house, handcuffed and in the custody of police officers.   She recognized appellant as her assailant, primarily from the clothing he was wearing.   She also identified a knife in appellant's possession as similar to the one used during the assault upon her.

Appellant was apprehended by Officer Vince Profaca of the San Francisco Police Department at the rear of 1400 Monterey Boulevard.   When first encountered, appellant was wearing a blue knit cap and sunglasses, and was carrying a knife in his right hand.   Officer Profaca ordered appellant to drop the knife, which he did after a momentary delay.   Once appellant was handcuffed and placed in a patrol car, Officer Profaca proceeded to 1390 Monterey Boulevard, where he spoke with Lucie.   He noticed that Lucie had adhesive tape on her right hand, which he removed and booked into evidence.

Before Officer Profaca spoke with Lucie, he turned appellant over to Officer Ralph Fleig, who in turn placed appellant in his patrol car.   Fleig noticed that appellant's pants zipper was down.

Officer Jerry Sarin testified that he discovered a roll of adhesive tape in the roadway behind the houses located at 1390 and 1400 Monterey Boulevard.   Terry Coddington, criminalist for the City and County of San Francisco, compared the tape removed from Lucie's hand with that found on the roll by Officer Sarin.   He opined that the tape taken from Lucie's hand came from the roll he examined.

Shortly after appellant was arrested, he was interviewed by Inspector Gary Lemos of the San Francisco Police Department.   Appellant confessed to the assault and rape of Lucie, and the use of the knife.   Inspector Lemos also removed from appellant's right rear pocket the outside shell of a metal adhesive tape container.

At trial, appellant testified in his own defense.   According to his version of the incident, he was driving on Monterey Boulevard when he saw Lucie.   He pulled over to the side of the street, and after they talked for a short time he asked if he could go home with her.   Lucie instructed him to wait outside while she checked to see if anyone was home.   He then went to her door, rang the bell, and Lucie let him in, after which they had consensual sex.   He left out the back door when Lucie's house guest came home.

Appellant denied using a knife, binding Lucie's hands with adhesive tape, or admitting to Inspector Lemos that he raped Lucie.

I.

Appellant challenges his rape conviction by contending that the trial court erred by failing to instruct the jury sua sponte on the defense of mistaken belief of consent, in the terms of CALJIC No. 10.23.²  Appellant submits that such an instruction was supported by substantial evidence, particularly his own testimony.

 “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence․” ’ ”  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   The general principles of law governing the case are those principles “closely and openly connected” with the facts before the court.  (Ibid.;  see also People v. Collie (1981) 30 Cal.3d 43, 63, 177 Cal.Rptr. 458, 634 P.2d 534.)  “The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts—not limited by the strategy, ignorance or mistakes of the parties.”  (Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.)   In People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, our high court declared that the trial court's obligation to give instructions sua sponte on particular defenses arises “only if 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.”  (P. 716, 112 Cal.Rptr. 1, 518 P.2d 913;  see also People v. Hampton (1981) 118 Cal.App.3d 324, 329, 173 Cal.Rptr. 268.)

 In the context of the court's sua sponte duty to instruct in the case at bench, “substantial evidence” is that which is sufficient to “ ‘deserve consideration by the jury, i.e., “evidence from which a jury of reasonable men could have concluded” ’ ” that appellant had a reasonable bona fide belief that the victim consented to have sex with him.  (People v. Wickersham, supra, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.)   The trial court is not obligated “to present theories to the jury which the jury could not reasonably find to exist.”  (Id., at pp. 324–325, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Gonzalez (1983) 141 Cal.App.3d 786, 793, 190 Cal.Rptr. 554;  People v. Day (1981) 117 Cal.App.3d 932, 936, 173 Cal.Rptr. 9.)   But as a corollary, “ ‘ “[t]he fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.  [Citations.]   That is a question within the exclusive province of the jury.” ’ ”  (People v. Flannel (1979) 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1.)

In People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, our high court recognized the defense in rape cases of mistaken belief of consent.   Error was found in the trial court's refusal to give a requested instruction that if the jury has a reasonable doubt as to whether the defendant entertained “a reasonable and bona fide belief that a prosecutrix voluntarily consented to ․ engage in sexual intercourse” he must be acquitted.  (Id., at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)

Subsequently, in People v. Hampton, supra, 118 Cal.App.3d 324, 173 Cal.Rptr. 268, the prosecutrix and the defendant offered differing versions of an alleged rape, with the former testifying that force was used by the defendant after she willingly permitted him to enter her apartment, and the appellant insisting that sexual intercourse was consensual.   This court rejected the Attorney General's suggestion that a Mayberry instruction must only be given if there is “evidence of equivocal behavior on the part of the victim from which the defendant could reasonably believe that the sexual activity was consensual.”  (Id., at p. 329, 173 Cal.Rptr. 268.)   The court explained:

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.   We conclude 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. 10.23 and No. 10.40.1.

(Pp. 329–330, 173 Cal.Rptr. 268;  in accord, People v. Anderson (1983) 144 Cal.App.3d 55, 61–62, 192 Cal.Rptr. 409.)

Appellant's defense to the rape charge was two-pronged.   The primary focus of the defense case was the identification of appellant as the perpetrator of the offense.   Peripheral to this main line of defense was the assertion that lack of consent had not been established.   Appellant testified that he had consensual sexual relations with the prosecutrix after she invited him into her residence.   He displayed no weapon, made no threats, and used no force of any kind.   According to appellant's account of the incident, Lucie was a completely willing participant in the sexual act.

To account for the issue of actual consent raised by such testimony, the trial court gave the instruction embodied in CALJIC No. 10.00.   The Mayberry defense, however, was not touched upon by either defense counsel or appellant's testimony.   We must evaluate the trial court's failure to give CALJIC No. 10.23 in light of the evidence and argument offered by the defense.

 In so doing, we reason from the rather obvious premise that lack of consent is a separate and distinct issue from the Mayberry defense of good faith mistaken belief of consent.  (People v. Rivera (1984) 157 Cal.App.3d 736, 743, 203 Cal.Rptr. 842;  People v. Anderson, supra, 144 Cal.App.3d 55, 63, 192 Cal.Rptr. 409.)   The former must be established by the prosecution as an element of the crime (Pen.Code, § 261, subd. (2);  People v. Harris (1979) 93 Cal.App.3d 103, 114, 155 Cal.Rptr. 472), while the burden is on the defendant to “prove that he had a bona fide and reasonable belief that the prosecutrix consented to the ․ sexual intercourse.”  (Mayberry, supra, 15 Cal.3d 143, 157, 125 Cal.Rptr. 745, 542 P.2d 1337.)   And more significantly for our purposes, the facts relied upon to show actual consent may not establish a Mayberry defense, as the present case illustrates.

Appellant and the prosecutrix offered diametrically opposed versions of the incident:  Lucie testified that she was forced into the sexual act;  appellant insisted that her involvement was voluntary.   Neither account of the sexual encounter brought into focus or dispute the reasonableness of appellant's belief that Lucie freely agreed to engage in sexual intercourse with him.   Either the sexual act was completely consensual or the obvious product of force, depending upon which testimony was believed.   Appellant contested the prosecution's showing of force, but he did not seek to show, under the authority of Mayberry, that he had a reasonable and good faith belief that the prosecutrix was a willing participant.

 We find in the case law a hierarchy of situations in which the trial court's sua sponte duty to instruct must be considered.   Some issues arise as a matter of law and consequently require an instruction even if not specifically raised by the defendant or the evidence.   In this category would be instructions on the credibility of witnesses (CALJIC Nos. 2.20, 2.24) or lesser included offenses.   Instructions must also be given on defenses which, while not central to the case, have substantial basis in fact or argument of counsel.  (People v. Wickersham, supra, 32 Cal.3d 307, 326, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Rivera, supra, 157 Cal.App.3d 736, 743, 203 Cal.Rptr. 842.)   In fairness to the defendant, such defenses require instructions, even if not requested, in order to insure that the jury will consider all issues found in the record.   Finally, we consider the category of “possible defenses”:  those defenses which the record indicates might have been raised by the defendant or put in issue, but were not.   The trial court cannot be expected or required to instruct on possible defenses if not alerted to them by either the defendant or the evidence.   The trial court may feel that a possible defense should have been presented or at least explored, but cannot be burdened with the duty of assisting with the defendant's case and instructing accordingly.

 We place in this latter category appellant's Mayberry defense.   He neither relied upon such a defense nor presented evidence to support it.   Appellant's testimony was that no force was used, the prosecutrix being a willing participant in the sexual act.   There was no evidence that a mistake of fact occurred.³  Actual consent was an issue, but we cannot find substantial evidence to support the theory that Lucie, even if she did not consent, led appellant to reasonably believe that she was doing so.   On this basis we find the present case distinguishable from Hampton and Rivera, relied upon by appellant, as in both of those cases there was evidence from which a reasonable juror could have found a good faith belief on the part of the defendants that the prosecutrix assented to the defendants' advances.   Here, in contrast, the reasonableness of the defendant's belief that Lucie consented to the act was not made an issue for the jury.

 Despite the holding in Hampton, we are not persuaded that “substantial evidence” of a Mayberry defense was presented in the present case.   We accordingly conclude that the trial court did not have the sua sponte obligation to give an instruction in the terms of CALJIC Nos. 10.23 and 10.50.1.  (People v. Gonzalez, supra, 141 Cal.App.3d 786, 792, 190 Cal.Rptr. 554.)

II.4

The case is remanded for resentencing in accordance with the views expressed herein.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   The police had been called by an off-duty policeman and neighbor who observed what appeared to be a prowler in the area.

2.   CALJIC No. 10.23 reads:“It is a defense to a charge of forcible rape that the defendant entertained a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse.   If from all the evidence you have a reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to engage in sexual intercourse, you must give the defendant the benefit of that doubt and acquit him of said charge.”

3.   Appellant submits that along with his testimony, Lucie's use of a diaphragm—which he characterises as “equivocal conduct” on her part—tends to show both consent or a reasonable belief of consent on his part.   We disagree if it is no more indicative of consent than force, and does not rise to the level of “substantial evidence.”

4.   Not certified for publication.

RUSHING, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

RACANELLI, P.J., and ELKINGTON, J., concur.