Opinion
G055136
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE HERNANDEZ GUTIERREZ, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF1342) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
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I. Introduction
A jury convicted Jose Hernandez Gutierrez (Defendant) of one count of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3). The trial court sentenced Defendant to the upper term of eight years in prison.
Defendant challenges the conviction on a single ground: He contends the trial court erred by denying his request to instruct the jury that an actual and reasonable belief the victim was capable of consent to sexual intercourse is a defense to the charge of rape of an intoxicated person. For purposes of analysis, we assume Defendant was entitled to the instruction, a point which the Attorney General does not dispute. The trial court did not err because it instructed the jury on the elements of the offense of rape of an intoxicated person, and the instruction requested by Defendant merely restated one element of the offense as a defense. We therefore affirm.
II. Facts
R.S. was 17 years old when, on the evening of April 18, 2015, she went to a party with her friend S.H. and S.H.'s brother J.H. At the party, R.S. drank a "Four Loko" (apparently a type of malt liquor) and half a bottle of vodka. R.S. told S.H. she felt numb and sick, and soon blacked out. R.S.'s next memory was being in a dark, cold place resembling her apartment complex, followed by a memory of waking up in a hospital.
J.H. drove R.S. home from the party. Although R.S. was "really, really drunk," she managed to carry on a conversation. At R.S.'s apartment complex, J.H. helped R.S. out of the car and left her at the bottom of the staircase leading to the apartment she shared with N.V. and N.V.'s mother. At around midnight, N.V. walked down the staircase looking for R.S. and, in the garage area, saw a man holding a woman up against the front of a truck. The woman had her shirt on but her bra was loose. The man was making sexual gestures with his groin against the woman's backside.
N.V. approached the two and recognized the woman as R.S. The man left in a white Toyota. R.S. fell to the ground and appeared unconscious. Her shirt, pants, and bra were undone, and she had marks on her breasts, neck, and back. At trial, N.V. identified Defendant as the man she had seen assaulting R.S. On the night of the incident, Defendant told an investigating police officer that he had had contact with R.S. that evening but denied having sexual contact with her.
R.S. was taken to a hospital. A nurse conducted a sexual assault examination and took samples for a sexual assault kit. The nurse observed injuries to R.S.'s genitalia consistent with sexual assault. Semen taken with a vaginal swab was tested and Defendant was not excluded as a possible major DNA contributor.
R.S.'s blood was drawn at the hospital at 8:35 a.m. after the incident and had a blood alcohol concentration of .117. A forensic scientist from the Orange County Crime Lab testified that hypothetically a woman of R.S.'s size who had started drinking at 9:00 p.m., consumed the amount of alcohol R.S. had consumed, stopped drinking at about 10:00 p.m., and had a blood alcohol concentration of .117 at 8:35 a.m. the following day, would have had a blood alcohol concentration of between .22 and .25 at 1:30 a.m.
III. The Trial Court Correctly Instructed the Jury.
CALCRIM No. 1002 instructs the jury on the elements of the offense of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), the offense charged in this case. The instruction first lays out the elements as defined by statute, then provides definitions for the terms "sexual intercourse" and "prevented from resisting." (CALCRIM No. 1002, italics in original.) Lastly, CALCRIM No. 1002 includes this optional, bracketed language: "[The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty.]"
Defendant's trial counsel asked the court to give the optional, bracketed language from CALCRIM No. 1002. The trial court did not err by denying the request because the optional, bracketed language restates an element of the offense rape of an intoxicated person.
Defendant refers to this language as the "Mayberry defense," after People v. Mayberry (1975) 15 Cal.3d 143. That is not quite correct. The Mayberry defense—that the defendant actually and reasonably but mistakenly believed the victim consented—is a defense to forcible rape. (People v. Giardino (2000) 82 Cal.App.4th 454, 471.) However, for rape of an intoxicated person, consent refers to capacity to give consent rather than actual consent; that is, whether the defendant had an actual and reasonable belief that the victim was too intoxicated to resist. (People v. Lujano (2017) 15 Cal.App.5th 187, 194-195 (Lujano).) --------
The trial court instructed the jury with a modified CALCRIM No. 1002 as follows: "The defendant is charged in Count 1 with raping a woman while she was intoxicated in violation of Penal Code Section 261(a)(3). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The effect of a[n] intoxicating substance prevented the woman from resisting; [¶] AND [¶] 4. The defendant knew or reasonably should have known that the effect of the intoxicating substance prevented the woman from resisting. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. [¶] A person is prevented from resisting if she is so intoxicated that she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." (Italics added.)
The italicized portion of the instruction is, in sum and substance, the same as the optional, bracketed portion of CALCRIM No. 1002 that the trial court declined to give. The bracketed portion of CALCRIM 1002 merely restates, as a defense, element four of the offense of rape of an intoxicated person and the definition of "prevented from resisting." Instead of saying the defendant is guilty if he "knew or reasonably should have known" the victim was so intoxicated that she could not give legal consent, the optional, bracketed material says the defendant is not guilty if he "actually and reasonably believed" the victim was capable of giving legal consent.
In Lujano, supra, 15 Cal.App.5th at page 187, the Court of Appeal reached the same conclusion in addressing identical language from CALCRIM No. 1032—sodomy of an intoxicated person. CALCRIM No. 1032 is parallel to CALCRIM No. 1002. As element three of the offense of sodomy of an intoxicated person, CALCRIM No. 1032 states: "The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting." CALCRIM No. 1032 defines "prevented from resisting" in the same manner as does CALCRIM No. 1002. CALCRIM No. 1032 includes the same bracketed, optional language regarding consent as in CALCRIM No. 1002, except "(he/she)" is used instead of "he," the term "the other person" is used instead of "the woman," and the term "the act" is used instead of "sexual intercourse."
The defendant in Lujano argued the trial court had erred by refusing to give the optional, bracketed consent language from CALCRIM No. 1032. (Lujano, supra, 15 Cal.App.5th at p. 192.) The Court of Appeal concluded the trial court did not err because the optional consent language restates the third element of sodomy of an intoxicated person by "reformulating that element in the negative" and "incorporating the definition of 'prevented from resisting.'" (Id. at p. 193.) "That is, instead of saying that the defendant can be guilty only if he knew or reasonably should have known that the victim was prevented from resisting, the optional language says that the defendant is not guilty if he actually and reasonably believed that the victim was capable of consenting." (Ibid.) The court explained that an element of both rape of an intoxicated person and sodomy of an intoxicated person is the defendant knew or reasonably should have known the victim was incapable of consenting. (Id. at p. 195.) "Thus, unlike the Mayberry defense, the defense at issue here—that the defendant actually and reasonably believed that the victim was capable of giving legal consent—is merely the negation of an element of the offense. The court thus does not have a sua sponte duty to give a separate instruction on the defense, because the issues are already covered by the required instructions on the third element of the offense and the definition of 'prevented from resisting.' And, . . . the court has no duty to give the optional language concerning the defense even when requested." (Ibid., fn. omitted.)
We agree with Lujano. Its reasoning applies with equal force to the offense of rape of an intoxicated person. The bracketed, optional consent language of CALCRIM No. 1002 restates the fourth element of rape of an intoxicated person by "reformulating that element in the negative" and "incorporating the definition of 'prevented from resisting.'" (Lujano, supra, 15 Cal.App.5th at p. 193.)
IV. Disposition
The judgment is affirmed.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.