Opinion
A165675
10-31-2024
THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL MOLLOY, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super Ct. No. 05001912021
HILL, J.[*]Defendant David Michael Molloy appeals from an eight-year prison sentence imposed after he was convicted of sexual offenses involving two different women, Jane Doe One and Jane Doe Two. On appeal, Molloy raises a host of issues. He argues that there was insufficient evidence to support his conviction for rape of an intoxicated woman with respect to Jane Doe Two. He asserts that several of his convictions must be reversed because the court's instructions on his consent defense were inadequate. And he also contends that the prosecutor committed prejudicial error during his rebuttal argument to the jury. In addition, Molloy challenges the modified version of CALCRIM No. 1191B given in this case because it allowed a propensity inference to be drawn from other charged crimes. Finally, he claims the true findings with respect to aggravating circumstances found by the jury must be reversed due to instructional issues. Finding no meaningful error in the trial court proceedings, we affirm.
I. BACKGROUND
A. The Information
On March 9, 2022, the Contra Costa County District Attorney filed the operative information in this case, charging Molloy with six felony sexual offenses involving two women, Jane Doe One and Jane Doe Two. Specifically, with respect to Jane Doe One, the information alleged that, on or about November 28, 2015, Molloy committed rape of an intoxicated woman (Pen. Code, § 261, subd. (a)(3); count 1); rape of an unconscious person (§ 261, subd. (a)(4); count 2); sexual penetration of an unconscious person by a foreign object (§ 289, subd. (d); count 3); and sexual penetration of an intoxicated person by a foreign object (§ 289, subd. (e); count 4).
All statutory references are to the Penal Code unless otherwise designated.
With respect to Jane Doe Two, the information alleged that, on or about March 11, 2018, Molloy committed forcible rape (§ 261, subd. (a)(2); count 5) and rape of an intoxicated woman (§ 261, subd. (a)(3); count 6). The information additionally alleged aggravating circumstances under California Rules of Court, rule 4.421(a)(1) (crime involving high degree of cruelty, viciousness, or callousness), (a)(3) (particularly vulnerable victim), (a)(7) (conviction of crimes subject to consecutive sentences for which concurrent sentences are imposed), and (b)(1) (defendant's violent conduct indicates a serious danger to society).
B. Trial Evidence
Trial was held before a jury over 10 days in March 2022. The following was among the evidence adduced at trial:
1. Allegations Involving Jane Doe One
Jane Doe One was 27 at the time of the offense. She testified at trial that she met Molloy during the summer of 2015. They had mutual friends and were "acquaintances." Several weeks later, they were both at the same bar in Pleasant Hill, an establishment where Jane Doe One hung out regularly with a group of friends. Although she had "never expressed any interest in him," Molloy walked past her in the bar and "smacked [her] rear end." Doe One got very upset and told Molloy not to talk to her. He did not talk to her for weeks after that encounter.
On November 26, 2015, Jane Doe One had been at a sports bar with friends and had two or three beers before they met some other friends at her regular bar, including James L. Molloy was also there with his friend, T. Mitchell. Doe One testified that she decided to socialize with Molloy because "everybody that [she] knew, they were still friends with him and thought he was an okay guy and wanted things to kind of keep the peace. So because he hadn't done anything again up to that point, [she] said, okay, don't ever do that again, and we can be okay." Doe One drank two or three vodka Red Bulls at the bar and was "definitely" not sober by the time she left. She did not dance while she was there. She does not dance.
After closing time. around 2:00 a.m., the group went to James L.'s house as was their habit. They hung out, listened to music, and had a few beers. Molloy and Mitchell were also there. In less than an hour, things began to wind up. Molloy and Mitchell offered to give Jane Doe One a ride, as they were also taking another woman home. Doe One accepted. She was intoxicated and ready to go home. She was too drunk to drive. They dropped the other woman off first. While Doe One and Molloy were waiting in the car, he offered her a pill he described as a Norco. She took it from him because she did not want to be rude, but did not ingest it because she did not know what it was.
When they got to her place, Molloy and Mitchell came in and they all had "a couple beers." She thought "everything was fine," that they "were friends." The last thing she remembered was being in her living room fully dressed until she woke up naked in her bed with Molloy on top of her. Molloy was also naked, and she felt something inside of her. She asked him what he was doing and pushed him off of her. She noticed Mitchell standing in front of the closed door "just watching." She was not sure what was inside of her. It was small, and she did not know if it was Molloy's penis or his finger. Molloy pulled his pants on as she was screaming at him. He and Mitchell left quickly without saying anything. She had a "flash of sobriety" when she realized what was happening and got them to leave. But she was still "very drunk" and went to sleep when they left.
When she woke up six or seven hours later, she called her best friend and told him what had happened. She also texted Molloy telling him it was "not okay." He responded "Okay .... [s]o let me make it up to you." Jane Doe One also participated in a pretext phone call with Molloy that was arranged by the police. And her father took her to get a sexual assault response team (SART) exam.
James L. was friends with Jane Doe One in 2015. He considered Molloy a bar friend or acquaintance. He saw Doe One at their regular bar on the night of the incident. James never saw Molloy and Doe One interact. Doe One was drinking throughout the night. At one point, she was upset and hit a table, breaking a glass. Doe One was "not in any condition" to be in a bar. She was "definitely intoxicated." After closing, the bar group would often end up at his house. That night, Doe One was among the people at his house. She got into an argument with some other women there and was asked to leave. James described it as "[t]ypical drunken nonsense." He would not have let Doe One drive that night due to her intoxication.
Travis F. is a friend of Jane Doe One. He confirmed that he was with Doe One at the sports bar on the night of the incident, where she had several beers. Later, at their regular bar, Doe One drank five mixed drinks. Travis did not remember seeing Molloy at the bar, although he knew who he was. Travis was with Doe One the whole time he was there. He left with his girlfriend before Doe One. The next morning, he received a call from Doe One asking him to come over. She was upset, her voice was shaking, and she sounded like she had been crying. When he got there, Doe One immediately began to cry. She was shut down and holding herself but eventually told him what happened, a description which matched her trial testimony. Either he or his girlfriend called 911.
The parties stipulated that Nurse Ana Rea conducted a SART exam of Jane Doe One on November 28, 2015, during which she collected samples from, among other areas, Doe One's vagina and left breast. Officer Sansen was a detective with the special victims' unit for the City of Concord in 2015. Molloy was arrested with respect to the incident involving Jane Doe One, a warrant was issued for his DNA, and a buccal swab was collected. Marte Curtis was a criminalist in the Contra Costa County Sheriff's Office during the relevant timeframe. She found a suspected saliva sample on Jane Doe One's breast. Another criminalist, Angela Freitas, testified that the DNA in the saliva included Molloy as the source. Molloy's profile was not detected in the vaginal swab.
2. Allegations Involving Jane Doe Two
Jane Doe Two was 52 years old at the time of the offense. On the evening of March 10, 2018, Doe Two went to a sushi restaurant with her eldest daughter and a DJ who her daughter had just started dating. The event was a birthday dinner for the DJ and at least 20 people attended, but she and her daughter did not know the other guests. They sat at a table with the DJ and Molloy. Doe Two did not know Molloy and had no romantic interest in him. She found him "loud and rude." In particular, he made loud comments about her daughter. Doe Two consumed some small cups of sake during dinner. As they were leaving for the dance club where the DJ would be working, Molloy shouted, "mom's going with me," but Doe Two and her daughter drove with the DJ instead.
Since they were with the DJ, Jane Doe Two and her daughter sat in the VIP section at the club, which had alcohol on the table for the guests. At that point, only three of them were there. Molloy poured vodka into a glass for Doe Two, and she filled the other half with Red Bull. Doe Two took a few sips of the drink and then went out to dance with two friends she had arranged to meet at the club, K. Brown and her mother, S.W. After a few songs, Doe Two grabbed her drink off the bar where she had left it unattended and took a gulp. Her friends stopped her, telling her not to drink it for safety purposes. They gave it to the bartender. Doe Two then had a Fireball shot and resumed dancing.
Jane Doe Two remembered at one point Molloy coming up behind her, trying to "grind" on her. She did a maneuver where "you drop [and] turn, so that you kind of push [the person] away," without being rude. It is "like a dance but it's telling them back off."
After dancing "[n]onstop," she went back to the bar and had a second Fireball shot. At that point, she started "not feeling right" like "something was off." She went outside to get some air and was holding onto a friend because she did not feel well.
Jane Doe Two recalled her daughter saying she should go home, and then she remembered being in a car, but she did not remember how she got there. At that point "everything" was "a buzz." She told Molloy, who was driving, that she felt sick. He got mad, telling her not to get sick in his car, and pulled over. She opened the door and vomited. The next thing she remembered was waking up in Concord and feeling sick again. She told Molloy, and he pulled over. She opened the door and vomited again. Molloy had exited the vehicle and come over to the passenger side, holding back her hair for her. Molloy then laid her seat back, took off her pants and underwear, and lifted her legs on either side of her head. She felt "folded in half." He then put his penis in her vagina. She remembered crying and repeatedly saying no. Afterwards, Molloy drove her to Marc C.'s house. She had known Marc C. for almost 50 years and described him as her best friend. During the drive, she "[didn't] recall being awake half the time." She exited the car and went inside with Marc C.
Jane Doe Two scheduled a Lyft to take her to the hospital at approximately 5:00 a.m., but she fell asleep and missed it. She eventually arrived at a hospital later that day and underwent a SART exam. The parties stipulated that Nurse Ana Rea conducted the exam of Jane Doe Two, during which she collected a sample from, among other areas, Doe Two's vagina. Jane Doe Two finally testified that, although she was a dance instructor and dancing was her passion, she no longer dances. She does not "want to take a chance."
Jane Doe Two's friend, K. Brown, had known Doe Two since she was in kindergarten, as Doe Two and her mother were friends. She testified that she, her mother, and Doe Two would often go dancing together. Doe Two did not flirt or dance with any of the men at the bar on the night in question. Brown never saw Molloy dancing with Doe Two and did not recognize him at trial.
K. Brown testified that, over the course of the evening, Doe Two became increasingly intoxicated. She went from "basically seeming sober to kind of leaning on us a little bit more and maybe stumbling a little bit." She was taking Doe Two back to the bar for a glass of water when she encountered Doe Two's daughter and the DJ, who stated that Doe Two "need[ed] to go home" and that she was "super wasted." When she left the club, Jane Doe Two was "intoxicated." Her daughter and the DJ walked Jane Doe Two "from inside of the club, through the parking lot, to the car, and had to put her in the car physically." She could not take care of herself.
Marc C. testified that Jane Doe Two was his best friend in the world and that they had an on-and-off romantic relationship-"Mostly off." Doe Two did not live at his house, but she often stayed there. Marc testified to Jane Doe Two's condition when she arrived at his home on the night of the assault: "There was nothing that was right. She was way out of sorts." He elaborated: "If someone put you in a dryer and turned it on spin for about a minute, that's kind of what it looked like. Her hair was everywhere. She was just sobbing uncontrollably. Her whole body was shaking basically." When asked if Jane Doe Two could walk, Marc C. replied, "No, she couldn't walk. She could barely stand. She couldn't really do much of anything, let alone talk." Jane Doe Two "couldn't even formulate words," and it took about 45 minutes of prodding before he found out what happened. After that, Jane Doe Two fell asleep "[o]ff and on a couple of times. She was not in any state of mobility at that moment." It would have been "absolutely impossible" for her to take care of herself in "any meaningful way."
Criminalist Curtis screened the samples contained in the SART kit for Jane Doe Two and found a sperm sample in Doe Two's vagina. Criminalist Estrada-Ballardo tested the DNA found on the vaginal swab. At that point, there was no suspect listed so that a DNA comparison could be done. The DNA sample was uploaded to CODIS, a database for DNA profiles of people who are required by law to give a reference sample. Nichole Tuscher, another criminalist, did a DNA comparison after receiving a CODIS hit for Jane Doe Two's sample. Molloy was included as the donor based on that comparison.
Combined DNA Index System.
3. Molloy's Testimony
a. Jane Doe One
Molloy took the stand in his own defense. He was 34 in 2015. T. Mitchell was a "really good friend" of Molloy's. Molloy testified that, in the months leading up to November 27, 2015, he once had an argument with Jane Doe One at their regular bar. Specifically, the first night they met, she blocked him from joining a friend's birthday party. He then tried to walk past her and she pushed him on his chest. He reacted by "smack[ing] her on the butt," which he described as a "[s]tupid reaction to being pushed." He apologized later that night, and she accepted. After that, he saw Doe One at least once a week at various parties and they became "friendly."
On the night of the incident, he went with Mitchell to their regular bar. When Doe One saw them, she gave them both a hug. Thereafter, he danced with her on the dance floor two or three times. The dancing was "[f]un" and "flirtatious," and their bodies started touching. He gave Jane Doe One and Mitchell a ride to James L.'s house after the bar closed and she seemed "just fine." The after-party shut down fairly quickly after an argument between Jane Doe One and other guests. Molloy acknowledged that he had observed Jane Doe One have verbal arguments in the past when she was intoxicated.
After they left James L.'s house, Molloy first dropped another woman off at her duplex. He denied giving Jane Doe One a Norco pill at that point, stating he had "never been into hard drugs like that." Rather, they "talked it up" and listened to some music. She appeared capable of handling herself.
When they arrived at Jane Doe One's house, she invited them in for drinks. He and Mitchell also smoked some marijuana. They were listening to music and things became flirtatious with Doe One. They started dancing, Doe One kissed him, and Mitchell stepped outside while they were making out on the couch. She lifted her shirt and Molloy kissed her breast. She then led him by the hand into her bedroom, asking him to come and give her a massage. She was lying on her stomach, and he massaged her shoulders. She seemed to be enjoying it, so he massaged further down her back. Seeing no rejection, he slid her pants down and began touching her butt and her vagina. She was "[a]bsolutely" conscious and alert.
According to Molloy, after about a minute of the intimate touching, there was a "weird dramatic switch" when she rolled onto her side and started saying, "what's happening, what are you doing." He was confused and stopped what he was doing. He looked over and saw Mitchell poking his head through the doorway and Doe One focused on Mitchell. Molloy talked to her, and she said not to worry and she was not mad. Then he and Mitchell left. He was confused by her text message later that day because he thought they had "left everything in good standing." He denied intending to share Doe One with Mitchell that night. However, Molloy acknowledged that, during the pretext call with Jane Doe One, she asked him several times why Mitchell was standing there when it happened, and he responded it was because "you were into both of us all night. He thought you were going to be-he thought you were going to be-he was, you know."
Several months later, Molloy was arrested and spent three days in jail but no charges were filed at that time. In sum, it appeared to Molloy that Jane Doe One was not blacked out and had consented to everything that happened. He denied having sex with her and was not naked on top of her while Mitchell watched.
b. Jane Doe Two
Molloy also testified to sitting with Jane Doe Two at a birthday dinner in 2018. Afterwards, at the dance club, he never made Jane Doe Two a drink and never put any sort of drug into any of her drinks. He did go to the bar with her at one point and got her a Fireball shot. He saw Jane Doe Two dancing on the dance floor with other men and women. He danced with Jane Doe Two four or five times, but always from the front because he was "not tacky." According to Molloy: "We danced in close and we seemed to-we were in rhythm. She could dance. She enjoyed the way I danced. We were vibing with each other." At one point, she kissed him on the neck and told him he was handsome. She did not seem drunk.
Later, Jane Doe Two's daughter asked Molloy to take Doe Two home. He agreed because he needed to go home and get his identification card before work and it was on his way. They were all "a little buzzed" but Doe Two was coordinated getting into the car and seemed fine. They listened to music in his car and were being "a little flirty," Doe Two telling him she enjoyed dancing with him. She was touching his arms and hands, and he asked her if she wanted to fool around. She giggled and said maybe. Molloy acknowledged pulling over once because Doe Two said she felt like she had to throw up. He then parked across the street from his house and went inside to get his ID, kissing her and telling her he would be right back. She kissed him in return. When he came back from his house, he kissed Doe Two again and put the seat down. Molloy thought Jane Doe Two was consenting to sex because of the way she was responding to him. She never told him no, and he would have stopped if she had asked him to. After they had sex, Doe Two asked him to drive her to her boyfriend's house, and he did.
4. Other Defense Evidence
T. Mitchell testified that he had known Molloy for over a decade. He saw Molloy as normal and respectful with women. Jane Doe One was an acquaintance whom he saw at their regular bar "pretty often." On the night in question, he saw Doe One and Molloy dance flirtatiously together. Doe One did not appear unusually intoxicated.
When they went to Jane Doe One's house, she put on some music and they were hanging out. Mitchell saw Doe One kiss Molloy and decided to step outside for a cigarette. When he came back in, Doe One was dancing, and then she led Molloy into her bedroom. After a while, Mitchell went to check on Molloy because he was his ride home. The door was open, and he knocked and called out Molloy's name. He saw Doe One sitting up on the bed, Molloy kneeling beside her, and they were talking. Both of them were clothed. Doe One saw him when he pushed the door open. Doe One seemed taken aback. He observed a switch in her behavior, he and Molloy felt uncomfortable, and they left.
A few weeks later, Mitchell received a call from the police. He also talked to Molloy about the incident before and during the trial. He recalled Jane Doe One getting in arguments with others when she was highly intoxicated. He admitted he told the police he had not been drinking with Jane Doe One that evening, which was a lie. He also lied by saying Jane Doe One was not drunk when they dropped her off at her home. He lied because he did not want to be involved. After being contacted by the police, Mitchell texted Jane Doe One and called her a stupid bitch and a lying whore.
Vincent A. and Ruben A. testified as character witnesses. Vincent had known Molloy for over a decade and had socialized with him. He never saw him act aggressively or violently towards anyone; nor had he seen him act inappropriately towards women. Ruben had known Molloy for 12 to 15 years and was introduced to him by Mitchell. He also testified that, in his opinion, Molloy was not capable of violence. He saw him be attentive, responsive, and catering to women.
C. Verdict and Sentencing
The case went to the jury with final instructions on March 23, 2022. On March 25, the jury found Molloy not guilty of counts 1 and 2, the alternate counts with respect to Jane Doe One that were applicable if the jury found beyond a reasonable doubt that Molloy inserted his penis into Jane Doe One rather than his finger. The jury convicted him of the lesser included offense of simple assault with respect to both of those counts. The jury found Molloy guilty of the remaining four counts, counts 3 and 4 (Jane Doe One) and counts 5 and 6 (Jane Doe Two). In a bifurcated proceeding, the jury also found various factors in aggravation true. Specifically, the jury found true one special allegation with respect to Jane Doe One (particularly vulnerable victim). With respect to the counts involving Jane Doe Two, the jury found true three aggravating circumstances (particularly vulnerable victim; high degree of cruelty, viciousness, or callousness; and serious danger to society).
On July 8, 2022, the trial court sentenced Molloy to an aggregate term of eight years in prison. Specifically, it imposed the middle term of six years for the forcible rape of Jane Doe Two (count 5) and two years (one-third the middle term) for sexual penetration of an unconscious person by a foreign object with respect to Jane Doe One (count 3). The court imposed six years for each of counts 4 (sexual penetration of an intoxicated person by a foreign object) and 6 (rape of an intoxicated woman), which were stayed pursuant to section 654. The simple assault convictions (counts 1 and 2) were sentenced at 90 days in county jail and were also stayed pursuant to section 654. In rendering its sentence, the trial court found that Molloy was not particularly remorseful and noted that the jury did its job "very appropriately" and found him guilty of some of the charges and not guilty of others.
This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence (Count 6)
We first address Molloy's argument that his conviction for rape of an intoxicated person with respect to Jane Doe Two must be reversed for insufficient evidence that Doe Two was so intoxicated she lacked the legal capacity to consent. We reverse for insufficient evidence in a criminal matter only if, on the entire record, no rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).) This is a high bar, and Molloy has not cleared it here.
1. Legal Framework
A conviction for rape of an intoxicated person requires, among other things, for the jury to find that the effect of an intoxicating substance prevented the victim from resisting. "A person is prevented from resisting if he or she is so intoxicated that he or 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." (See CALCRIM No. 1047.) Thus, for purposes of this offense, "[i]t is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victim's sexual inhibitions....Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue." (People v. Giardino (2000) 82 Cal.App.4th 454, 466-467 (Giardino).) Whether or not the level of the victim's intoxication deprived the victim of legal capacity is a question of fact to be decided after considering all of the circumstances. (Id. at pp. 466, 470.)
In determining whether substantial evidence supports the conclusion in this case that Jane Doe Two lacked the capacity to consent, we" 'must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.'" (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
"' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." '" (Smith, supra, 37 Cal.4th at p. 739.)" 'It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict.'" (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Indeed,"' "[t]o warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." '" (People v. Barnes (1986) 42 Cal.3d 284, 306.)
2. Sufficient Evidence of Lack of Capacity to Consent
Molloy argues that, because Jane Doe Two repeatedly said no while he raped her, there is insufficient evidence that she was so intoxicated that she was" 'prevented from resisting.'" Molloy ignores the fact that "prevented from resisting" is specifically defined in this context to mean incapable of giving legal consent. Just because a woman says no when physically attacked does not mean she was capable of exercising reasonable judgment at that time-either in saying yes or in saying no. Molloy's argument to the contrary is specious.
Indeed, there is overwhelming evidence here that Jane Doe Two was so intoxicated on the evening of the rape that she lacked the legal capacity to make reasoned decisions. Jane Doe Two testified she was not a regular drinker. After having sake with dinner, she "could feel . . . [she] had drinks" but she was still awake and alert. Afterwards, when she went to the dance club with her daughter and the DJ, Molloy made her a drink with vodka and she put Red Bull in it. She had a few sips, danced with friends for two or three songs, and then went back and took another gulp of the drink, consuming about half of the glass. Then she had a Fireball shot and resumed dancing. After dancing "[n]onstop," she went back to the bar and had a second Fireball shot. At that point, she started "not feeling right" like "something was off." She went outside to get some air and was holding onto a friend because she did not feel well.
Jane Doe Two recalled her daughter saying she should go home, and then she remembered being in a car, but she did not remember how she got there. At that point "everything [was] a buzz." She told Molloy she felt sick, he pulled over, and she opened the door and vomited foam or bile. The next thing she remembered was waking up in Concord and feeling sick again. She told Molloy and he pulled over. She opened the door and vomited bile again. Molloy had exited the vehicle and come over to the passenger side, holding back her hair. When Molloy then pushed her seat back and raped her, she remembered crying and saying no. Afterwards, Molloy drove her to Marc C.'s house, but she "[did not] recall being awake half the time." She exited the car and went inside with Marc C. She did not feel as if she could drive a car at that moment and still felt how she had been feeling earlier.
Jane Doe Two's friend, K. Brown, testified to the following. Over the course of the evening in question, Jane Doe Two became increasingly intoxicated. In addition to two Fireball shots, Doe Two also ordered another vodka and Red Bull. She went from "basically seeming sober to kind of leaning on us a little bit more and maybe stumbling a little bit." When she left the club, Jane Doe Two was "intoxicated." Her daughter and the DJ walked Jane Doe Two "from inside of the club, through the parking lot, to the car, and had to put her in the car physically." She could not take care of herself. Marc C. testified to Jane Doe Two's condition when she arrived at home: "There was nothing that was right. She was way out of sorts." He elaborated: "If someone put you in a dryer and turned it on spin for about a minute, that's kind of what it looked like. Her hair was everywhere. She was just sobbing uncontrollably. Her whole body was shaking basically." When asked if Jane Doe Two could walk, Marc C. replied, "No, she couldn't walk. She could barely stand. She couldn't really do much of anything, let alone talk." Jane Doe Two "couldn't even formulate words," and it took about 45 minutes of prodding before he found out what happened. After that, Jane Doe Two fell asleep "[o]ff and on a couple of times. She was not in any state of mobility at that moment." It would have been "absolutely impossible" for her to take care of herself in "any meaningful way." Marc C. confirmed that Jane Doe Two was not a regular drinker.
It is clear from the verdicts in this case that the jury found Jane Doe Two credible. In addition, her own description of her level of intoxication was corroborated by other witnesses. The record amply demonstrates substantial evidence supporting count 6.
B. Consent Instructions
Molloy next argues that his convictions with respect to forcible rape (count 5), sexual penetration of an intoxicated person (count 4), and rape of an intoxicated person (count 6) must be reversed because the trial court failed to instruct the jury properly on his consent defense. He argues that the instructions on these counts failed to recite the statutory definition of consent and that they failed to link his mistaken belief in the Does' consent to a lack of criminal intent. According to Molloy, these errors deprived him of his state and federal constitutional rights. We are not persuaded.
1. Additional Background
With respect to forcible rape, the trial court instructed the jury via CALCRIM No. 1000 that the People must prove, as is relevant here, that "[t]he woman did not consent to the intercourse." The instruction explained that in order to consent "a woman must act freely and voluntarily and know the nature of the act." And it set forth the standard language on a Mayberry defense: "The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse.
People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).
The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty."
The trial court instructed on rape of an intoxicated person based on CALCRIM No. 1002 and on sexual penetration of an intoxicated person based on CALCRIM No. 1047. Both instructions stated, in relevant part, that the People must prove that the effect of an intoxicating substance prevented the other person from resisting the sexual act and that the defendant "knew or reasonably should have known" that the effect of that substance prevented the other person from resisting. The instructions went on to explain: "A person is prevented from resisting if he or she is so intoxicated that he or 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." Both instructions also contained the following language: "The defendant is not guilty of this crime if he actually and reasonably believed that the [woman] was capable of consenting to [the sexual act], 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."
Molloy concedes that, at trial, defense counsel "did not object to the jury instructions at issue and did not request their modification."
2. Legal Framework and Standard of Review
Pursuant to section 261.6, subdivision (a): "In prosecutions under Section 261, 286, 287, or 289, or former Section 262 or 288a, in which consent is at issue, 'consent' means positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." As our high court has explained in this context, "the Mayberry defense 'is predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent.' [Citation.] There are two components to the defense, 'one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. . . . [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.'" (People v. Guenther (2024) 104 Cal.App.5th 483, 522, quoting People v. Williams (1992) 4 Cal.4th 354, 360-361 (Williams), italics added by Guenther.)
" '" '" '[I]t 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. Parker (2022) 13 Cal.5th 1, 68 (Parker).) It follows that "a defendant is' "entitled to adequate instructions on the defense theory of the case" if supported by the law and evidence [citation] and" 'has a constitutional right to have the jury determine every material issue presented by the evidence.'" '" (People v. Vasquez (2018) 30 Cal.App.5th 786, 793.) However, "[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638 (Lee).) In other words, a "defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.) We review de novo whether instructions correctly state the law. (Parker, at p. 68.)
Regardless of forfeiture, "section 1259 allows us to reach the merits of any claim of instructional error that potentially affects a party's substantial rights." (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 916.) "A '[d]efendant's substantial rights are affected if the instruction results in a miscarriage of justice, making it reasonably probable that absent the erroneous instruction [the] defendant would have obtained a more favorable result.' [Citation.] 'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.'" (People v. Johnson (2022) 79 Cal.App.5th 1093, 1113.)
In addition," '[i]n a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. [Citation.] Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is" 'whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.'" [Citation.]" '[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" [Citation.] If the charge as a whole is ambiguous, the question is whether there is a" 'reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." '" (People v. Mills (2012) 55 Cal.4th 663, 677, citing, among other authorities, Estelle v. McGuire (1991) 502 U.S. 62, 72.)
3. No Instructional Error
As stated above, Molloy asserts that the instructions given with respect to counts 4, 5, and 6 were inadequate because they failed to adhere to the statutory definition of consent stated in section 261.6, subdivision (a), and because they failed to tie his misinterpretation of the facts relevant to consent to a necessary finding of criminal intent. Based on his concession that he neither objected to the instructions given nor sought their modification, Molloy has forfeited these claims. Even had he not, we would find no instructional error.
a. Definition of Consent: Counts 4 and 6
Turning first to the argument regarding the failure to incorporate the definition of consent stated in section 261.6 into counts 4 and 6, Molloy is correct that the instructions on rape of an intoxicated person (CALCRIM No. 1002) and sexual penetration of an intoxicated person (CALCRIM No. 1047), do not contain any definition of consent. However, no such definition was necessary in this context because "the prosecution did not have to prove that [the women] did not consent; it had to prove that [they] could not consent due to the effects of intoxication." (People v. Sta Ana (2021) 73 Cal.App.5th 44, 61 (Sta Ana).) Since lack of actual consent is not a required element of rape of an intoxicated person or sexual penetration of an intoxicated person, the trial court had no sua sponte duty to define consent in this context. (Ibid.) Indeed, by its terms, section 261.6, subdivision (a)'s definition of consent applies only to specified crimes where "consent is at issue."
The distinction between actual and legal consent in prosecutions for sexual offenses involving intoxicated persons was explained by our colleagues in the Fourth Appellate District in Giardino, supra, 82 Cal.App.4th 454. There, the trial court denied Giardino's request that the "jury be instructed either that lack of consent was an element of [sexual offenses against intoxicated persons] or that consent is a defense." (Id. at p. 459.) On appeal, Giardino argued-as Molloy does here-that the "trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication." (Ibid.) The Giardino court disagreed, explaining that there is a difference between actual and legal consent.
The appellate court dubbed the definition of consent set forth in section 261.6" 'actual consent'" and stated that consent pursuant to that statutory definition means "consent that is actually and freely given without any misapprehension of material fact." (Giardino, supra, 82 Cal.App.4th at p. 460, italics added.) To support a defense to rape based on consent, however, a defendant must show both that the victim actually consented to sexual intercourse and that the victim had sufficient capacity to give that actual consent. Certain types of rape, in contrast, deal solely "with the victim's lack of capacity, i.e., with the lack of legal consent." (See id. at pp. 460-461.)
Reviewing the elements of rape of an intoxicated person (§ 261, subd. (a)(3)), the Giardino court concluded the offense "proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication," and that "the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent." (Giardino, supra, 82 Cal.App.4th at p. 462; accord, People v. Braslaw (2015) 233 Cal.App.4th 1239, 1245 [citing Giardino and opining that whether the defendant "believed Doe was consenting to intercourse . . . is irrelevant if he did not also reasonably believe she was capable of giving consent to intercourse despite her intoxication. It is a reasonable belief in the victim's capacity to consent, not the consent, which provides a defense to rape of an intoxicated person."].)
The Giardino court went on to opine that the distinction between actual and legal consent "determines the instructions that are relevant to the charge. A charge that the defendant accomplished the act of sexual intercourse against the will of the victim, together with evidence that places in dispute the willingness of the victim to engage in intercourse, entitles the defendant to an instruction that the act was not criminal if it was committed with the victim's actual consent. [Citations.] But if the charge is that the victim lacked the capacity to give legal consent [citation], then actual consent is irrelevant, and the jury instructions need not touch on that issue." (Giardino, supra, 82 Cal.App.4th at p. 461.)
Most recently, in Sta Ana, supra, 73 Cal.App.5th 44, the Sixth Appellate District reaffirmed the holding in Giardino under facts similar to our own. There, the defendant argued that "to prove rape of an intoxicated person, the prosecution had to 'prove that [the victim] did not consent,' meaning that 'consent was a required element of the offense' and the trial court therefore had a sua sponte duty to define it for the jury. He also argue[d] the 'prosecutor was required to prove that [the defendant] knew or should have known that [the victim] did not "give legal consent." '" (Sta Ana, at p. 61.) After reviewing Giardino, the court concluded that "the prosecution did not have to prove that [the victim] did not consent; it had to prove that she could not consent due to the effects of intoxication. Lack of actual consent is not a required element of rape of an intoxicated person and the trial court therefore had no sua sponte duty to define it." (Sta Ana, at p. 61.) Giardino and Sta Ana are fatal with respect to Molloy's first challenge to CALCRIM Nos. 1002 and 1047.
b. Definition of Consent: Count 5
Molloy also contends that CALCRIM No. 1000 does not define consent in the manner required by section 261.6. CALCRIM No. 1000 explains that in order to consent "a woman must act freely and voluntarily and know the nature of the act." This is essentially the second sentence of section 261.6. The instruction, however, did not include the first sentence of section 261.6- that" 'consent' means positive cooperation in act or attitude pursuant to an exercise of free will." (§ 261.6, subd. (a).) Molloy contends this was error because Jane Doe Two's "actions consistent with 'consent' in the form of 'positive cooperation in act or attitude' had a bearing on whether [he] knew or reasonably should have known that Doe [Two's] words or acts expressed her lack of 'consent.' "
It is also the same as the definition of legal consent set forth in CALCRIM Nos. 1002 and 1047: "Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved."
We note that the lack of the "positive cooperation" language in the forcible rape instruction did not prohibit Molloy from admitting evidence in support of his defense theories that Jane Doe Two either consented to sexual intercourse or that he reasonably believed that she did. Indeed, Molloy describes in his briefing relevant evidence that was presented on these issues, and defense counsel argued both theories forcefully during his closing. Moreover, the instruction adequately encompassed defendant's theory of the case. Thus, the question here is whether the failure of CALCRIM No. 1000 to include in its definition of consent the fact that it means "positive cooperation in act or attitude" rendered the instruction legally insufficient, and, if so, whether the error was prejudicial to Molloy.
We conclude that any potential instructional error with respect to the definition of actual consent in count 5 is harmless under any standard. As stated above, to support a defense to rape based on consent, a defendant must show both that the victim actually consented to sexual intercourse and that the victim had sufficient capacity to give that actual consent. (Giardino, supra, 82 Cal.App.4th at p. 460.) The jury here concluded beyond a reasonable doubt that Jane Doe Two lacked the capacity to consent to sexual intercourse due to her intoxication (count 6), and we have held that substantial evidence supports that determination. Under such circumstances, it matters little what the jury concluded with respect to actual consent. Because Molloy cannot establish both actual and legal consent, his defense to the forcible rape of Jane Doe Two (count 5) necessarily fails.
c. Mayberry Defense
Molloy finally asserts that the pattern instructions for all three counts-CALCRIM Nos. 1000, 1002, and 1047-were inadequate because they failed to tie his misinterpretation of the facts (i.e., his Mayberry defense) to a necessary finding of criminal intent. Pointing to CALJIC No. 10.65, an alternative instruction on the Mayberry defense for specified sex crimes, Molloy opines that the way it "associates criminal intent with mistaken consent is critical" because "[i]t properly conveys the legal principle that the defendant's guilt must be based on more than a misunderstanding that inadvertently resulted in an illegal sexual act. The evidence must show that the defendant acted with criminal enmity in making the mistake." Thus, Molloy posits, the "trial court committed prejudicial error by failing to instruct the jury that an honest, yet mistaken, belief in consent" provided him "a complete defense because it erased the element of criminal intent." Molloy misapprehends both CALJIC No. 10.65 and the nature of a Mayberry defense.
Section 26 includes, among the persons incapable of committing crimes, "Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent." It is no doubt true that "Mayberry [was] predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent." (Williams, supra, 4 Cal.4th at p. 360, fn. omitted.) But this does not mean, as Molloy suggests, that any mistake of fact, no matter how honestly held, is a sufficient defense in this context. Rather, as stated above-and as Molloy himself acknowledges-there are two elements to a successful Mayberry defense, one subjective and one objective." 'The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse.'" (Guenther, supra, 104 Cal.App.5th at p. 522.) The objective component" 'asks whether the defendant's mistake regarding consent was reasonable under the circumstances.'" (Ibid.) Thus, regardless of how strongly Molloy may have subjectively believed that Jane Doe One or Jane Doe Two consented to the sexual acts at issue-or that they were capable of legally consenting-a Mayberry defense was unavailable to him unless his beliefs were also objectively reasonable. (See ibid.; see also Williams, at pp. 360-361.) In other words, in order to absolve him of these serious sexual offenses, his belief had to have been" 'formed under circumstances society will tolerate as reasonable.'" (Guenther, at p. 522, italics added by Guenther.)
The Mayberry instructions given in this case adequately stated the law. CALCRIM No. 1000 informed the jury that Molloy was not guilty of raping Jane Doe Two "if he actually and reasonably believed" she consented to intercourse. It further stated it was the People's burden to prove beyond a reasonable doubt that Molloy did not "actually and reasonably believe" that she consented. Similarly, pursuant to CALCRIM Nos. 1002 and 1047, the jury was properly instructed that Molloy was not guilty of sexual penetration of an intoxicated woman by a foreign object and/or rape of an intoxicated woman "if he actually and reasonably believed the [woman] was capable of consenting." And the People had to prove beyond a reasonable doubt that Molloy "did not actually and reasonably believe that the woman was capable of consenting." We see no error.
Indeed, CALJIC No. 10.65, which Molloy champions, says essentially the same thing. With respect to the crimes of forcible rape, oral copulation, sodomy, and genital or anal penetration by a foreign object, the form instruction explains that "criminal intent must exist at the time of the commission of the (crime charged)." It then goes on to state, "There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [the sexual act]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]" And it provides finally: "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 accused sexual activity, you must find [him] [her] not guilty of the crime." In other words, CALJIC No. 10.65 simply equates a lack of criminal intent with the two elements required to establish a Mayberry defense for offenses involving consent without changing the analysis required to be done by the jury in any way. Moreover, the version of CALJIC No. 10.65 dealing with capacity to consent instead of actual consent would similarly not change the analysis to be done by the jury. In sum, there is no reasonable likelihood a jury would reach a different result based on which of the form instructions was given.
Indeed, we note that at least one appellate court has concluded it is not error to refuse to give a Mayberry instruction entirely where lack of capacity to consent is at issue. In People v. Lujano (2017) 15 Cal.App.5th 187 (Lujano), the trial court refused to give a Mayberry instruction for sodomy of an intoxicated person because it found insufficient evidence to justify it. (Lujano, at pp. 191-192.) On appeal, the court found no error because the jury was instructed that, as an element of the crime, the People were required to prove that"' [t]he defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting.'" (Ibid.) And the instruction went on to clarify that" 'prevented from resisting'" meant incapable of giving legal consent. (Id. at p. 192.)
Noting that a trial court is not required to give duplicative instructions, the appellate court concluded that the Mayberry instruction was not necessary because it simply "restate[d] the third element of the offense by (1) reformulating that element in the negative and (2) incorporating the definition of 'prevented from resisting.' 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." (Lujano, supra, 15 Cal.App.5th at pp. 193-195.) While we understand the Lujano court's logic, we believe the better course is to give a separate Mayberry instruction on capacity to consent in this context if justified by the evidence. The trial court did so in this case. It was not required to do more.
C. Prosecutorial Error
Molloy further contends that the prosecutor engaged in prejudicial misconduct during his rebuttal argument to the jury. He concedes that defense counsel did not object to the statements he now challenges on appeal but asserts we should nevertheless review their propriety through the lens of ineffective assistance of counsel. We agree the issue has been forfeited. (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown) [in order to avoid forfeiture of a prosecutorial error claim, a defendant generally "must make a timely objection, make known the basis of [the] objection, and ask the trial court to admonish the jury"].) We will thus consider whether Molloy can establish defense counsel's ineffectiveness in this context.
In reaching this decision, we reject Molloy's claim that an objection would have been futile in this case because an admonition would not have cured any harm caused by the prosecutor's comments. (Compare People v. Turner (2021) 73 Cal.App.5th 117, 128 [listing" 'exceptional circumstances'" where an admonition may be inadequate].) We also disagree with Molloy's contention that his motions in limine were somehow sufficient to preserve the specific issue before us. (Compare People v. Rowland (1992) 4 Cal.4th 238, 262-265 & fn. 3 [dueling motions in limine regarding the admission of specific evidence under a hearsay objection sufficient to preserve the issue on appeal without further objection].)
To demonstrate ineffective assistance of counsel under either federal or state law, a defendant must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (People v. Waidla (2000) 22 Cal.4th 690, 718.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.) As is pertinent here, we note that "[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
1. Relevant Facts
During his closing argument, the prosecutor reminded the jury that, when initially interviewed by the police, T. Mitchell denied that he drank alcohol with Jane Doe One on the night of the rape. The prosecutor pointed to this as one of the "multiple" lies Mitchell told to help protect his friend Molloy and suggested the jury should not find him credible. In defense counsel's closing, he countered this claim, stating: "And [Mitchell] talked to you about his relationship generally to the police and how if the police were to call him about something, that makes him sort of uncomfortable. And he's uncomfortable because he didn't want to get dragged into something. [¶] So I ask you in terms of how reasonable was his response. Is it unreasonable for a young African-American man who's uncomfortable with the police to deflect and try to not be involved with a situation where he knows a young, white person, a young, white woman is making an accusation of sexual assault? It's not unreasonable for him to do what he did and for him to try and not be involved. He ended up exactly where he didn't want to be."
The comments Molloy objects to here were made during rebuttal in response to defense counsel's attempt to explain why Mitchell might have lied to the police. The prosecutor first stated: "I will say that [defense counsel] is a very good attorney. But what he's asking you to do, though, sounds like he's asking you to compete in the Olympics with the amount of jumping, diving, hurdling and vaulting that you're going to have to do to get over the damning evidence against this client. That's what he's asking you to do, folks, mental gymnastics to avoid the truth." Later, the prosecutor argued with respect to Mitchell: "Now [defense counsel] is a good attorney, and he's using current society and people's beliefs to try to-I guess we'll say twist Mr. Mitchell. To say, you know, there's some race issue here. Mr. Mitchell, he didn't want to talk to the police. He lied to the police because he's an African-American man. [¶] Quite frankly, it's offensive. It's offensive to think that's why Mr. Mitchell lied as opposed to the fact that he was trying to help his buddy. Quite frankly, I don't think you jurors are going to fall for that. I trust that you have more common sense than that, to believe that [defense counsel] and his client are going to go down [to] that level."
2. Legal Framework and Standard of Review
"[Prosecutorial] error occurs, as a matter of state law, when a prosecutor 'engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.' [Citation.] Federal constitutional error occurs only when the prosecutor's actions 'comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant's right to due process of law.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854 (Daveggio and Michaud))
A prosecutor, however, "enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom." (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353; accord, People v. Dykes (2009) 46 Cal.4th 731, 768 (Dykes) [" '[a] prosecutor is given wide latitude to vigorously argue his or her case' "].)" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Brown, supra, 31 Cal.4th at pp. 553-554; People v. Clair (1992) 2 Cal.4th 629, 663-664.) In addition, we examine the prosecutor's challenged statements in the context of the whole argument. (People v. Morales (2001) 25 Cal.4th 34, 46-48.)
Nevertheless, a "prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill (1998) 17 Cal.4th 800, 832 (Hill).) Such conduct "directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom." (People v. Sandoval (1992) 4 Cal.4th 155, 184.) And statements characterizing defense counsel as liars or accusing defense counsel of lying to the jury are impermissible. (People v. Young (2005) 34 Cal.4th 1149, 1193.) Moreover, "[t]he defendant generally need not show that the prosecutor acted in bad faith or with appreciation of the wrongfulness of his or her conduct, because the prosecutor's conduct is evaluated in accordance with an objective standard." (People v. Bradford (1997) 15 Cal.4th 1229, 1333; accord, Hill, at pp. 822823.)
As a general matter, we review a trial court's rulings on prosecutorial misconduct for abuse of discretion. (People v. Ramirez (2022) 13 Cal.5th 997, 1122; accord, People v. Alvarez (1996) 14 Cal.4th 155, 213.) However, when a claim of prosecutorial misconduct presents a question of law on undisputed facts, the appellate court reviews the issue de novo. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) We see no ineffective assistance on this record.
3. No Prosecutorial Error on These Facts
Pointing to the prosecutor's rebuttal comments described above, Molloy claims that the prosecutor "improperly implied to the jury that defense counsel was attempting to deceive the jurors"; "insinuated that defense counsel believed that Molloy was guilty"; "accused defense counsel of 'playing the race card' (which he stated was 'offensive')"; and "essentially argued that defense counsel was fabricating the defense to get Molloy off notwithstanding his clear guilt of the charged crimes." We disagree that the prosecutor's comments constituted improper disparagement of defense counsel. Rather than a personal attack on defense counsel's integrity, the prosecutor was merely noting that defense counsel was skilled in persuasion and reminding the jury to focus on the relevant evidence. The prosecutor's passing reference to "some race issue" does not change our analysis.
People v. Gionis (1995) 9 Cal.4th 1196 (Gionis) is instructive. In that case, the prosecutor stated in rebuttal that "defense counsel was arguing out of both sides of his mouth" and that this "was an example of 'great lawyering' which 'doesn't change the facts, it just makes them sound good.'" (Id. at pp. 1215-1216.) Finding no impropriety, the Supreme Court determined that "[t]aken in context, the prosecutor's remarks simply pointed out that attorneys are schooled in the art of persuasion; they did not improperly imply that defense counsel was lying." (Id. at p. 1216.) Indeed, the high court found the comments "far milder" than those at issue in People v. Bell (1989) 49 Cal.3d 502 (Bell), where it also found no error, stating that both "could properly be understood as a reminder to the jury that it should not be distracted from the relevant evidence." (Gionis, at p. 1218.) Similarly, in People v. Medina (1995) 11 Cal.4th 694, the Supreme Court found "proper" a prosecutor's comments that" 'any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something.'" (Id. at pp. 758-759.) The court reasoned: "In our view, the prosecutor's foregoing argument was unobjectionable. To observe that an experienced defense counsel will attempt to 'twist' and 'poke' at the prosecution's case does not amount to a personal attack on counsel's integrity." (Id. at p. 759.) In line with this precedent, we find no error here in the comments challenged by Molloy, which did not take aim at defense counsel's integrity but rather cautioned the jury not to be distracted by his persuasiveness.
In Bell, the prosecutor stated:" 'It's a very common thing to expect the defense to focus on areas which tend to confuse. That is-and that's all right, because that's [defense counsel's] job. If you're confused and you're sidetracked, then you won't be able to bring in a verdict.' . . . 'It's his job to throw sand in your eyes, and he does a good job of it, but bear in mind at all times, and consider what [defense counsel has] said, that it's his job to get this man off. He wants to confuse you.'" (Bell, supra, 49 Cal.3d at p. 538.) Molloy cites this language as deceptive but ignores the fact it was ultimately upheld by the Supreme Court in Bell and found by analogy to be within "the bounds of permissible vigor" in Gionis. (Bell, at p. 538; Gionis, supra, 9 Cal.4that p. 1218.)
We also reject Molloy's argument that it was error for the prosecutor to comment in rebuttal that defense counsel was" 'playing the race card'" by arguing that Mitchell lied because he was "a young African-American man who's uncomfortable with the police."" '[R]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel.'" (People v. Reyes (2016) 246 Cal.App.4th 62, 74.) We find Dykes, supra, 46 Cal.4th 731, dispositive. There, the prosecutor argued:" 'The defense plays the race card as only a desperate defense attorney [sic]. I'm shocked, even someone of [defense counsel's] reputation would resort to that.'" (Id. at p. 771.) Our high court concluded: "The prosecutor's references to race did not constitute misconduct, but rather represented fair rebuttal to defense counsel's suggestion that the prosecution had attempted to play on the all-White jury's emotions and racial prejudice. The argument 'did little more than urge the jury not to be influenced by [defense] counsel's arguments, and to instead focus on the testimony and evidence in the case.'" (Ibid.) Moreover," '[i]t was clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally.'" (Id. at p. 772.) So too here. In sum, we see no error and certainly no ineffectiveness of counsel.
D. Propensity Instruction for Charged Offenses
In a criminal trial in which the defendant is accused of a sexual offense, evidence of other sexual offenses may be admitted in order to prove propensity pursuant to Evidence Code section 1108 (section 1108), subject only to screening pursuant to Evidence Code section 352 (section 352). (§ 1108; People v. Villatoro (2012) 54 Cal.4th 1152, 1159-1160 (Villatoro).) In this case, the jury was instructed via CALCRIM No. 1191B as follows: "The People presented evidence that the defendant committed the crimes charged in Counts 1-6. [¶] If the people have proved beyond a reasonable doubt that the defendant committed one or more of these crimes against a particular person, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the sex offenses against the other person charged in this case. [¶] If you find that the defendant committed more than one of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
Molloy asserts that all of his convictions and true findings must be reversed because CALCRIM No. 1191B allowed the jury to rely on currently charged crimes to find that he had committed other currently charged crimes in violation of his Fourteenth Amendment due process rights. He concedes that no objection was lodged on this basis at trial. He also acknowledges that the Supreme Court's decision in Villatoro is controlling. We therefore review that precedent.
In Villatoro, supra, 54 Cal.4th 1152, the defendant was charged with multiple sex offenses. (Id. at pp. 1156-1159.) The trial court instructed the jury pursuant to section 1108 and a modified version of the related pattern jury instruction, CALCRIM No. 1191, that it could "use evidence of the defendant's guilt of one of the charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses." (Villatoro, at pp. 1156, 1158.) On appeal, the defendant argued it was improper to instruct the jury that it could use charged, rather than uncharged, offenses to prove his disposition to commit the other charged offenses. (Id. at p. 1159.)
Our high court disagreed in a four-three decision. It first noted that, "[w]ith regard to the admission of uncharged sexual offenses, we have held that section 1108 satisfies the requirements of due process [citation], and that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct statement of the law." (Villatoro, supra, 54 Cal.4th at p. 1160, citing People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) The Supreme Court then reasoned that, "[b]y its terms, the statute does not distinguish between charged or uncharged sexual offenses, and refers instead to" 'another sexual offense or offenses.'" (Villatoro, at p. 1160.) "This definition of 'another' contains no limitation, temporal or otherwise, to suggest that section 1108 covers only offenses other than those for which the defendant is currently on trial." (Id. at p. 1161.)
With respect to the import of the specific reference to section 352 in section 1108, the Supreme Court reasoned as follows: "Rather than imposing an additional hurdle to the admissibility of character evidence, as defendant suggests, the inclusion of section 352 merely makes 'explicit' the point that section 1108 does not supersede section 352 or other provisions of the Evidence Code. In other words, even if section 1108 did not refer to section 352, the latter still serves as a limitation on the admission of all evidence." (Villatoro, supra, 54 Cal.4th at p. 1163.) Thus," '[e]ven where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.'" (Id. at p. 1163.) The Supreme Court was" 'willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'" (Id. at p. 1168.) It stressed, however, it was not deciding "whether courts should give such an instruction in the future." (Id. at p. 1169.)
In an opinion joined by Justice Werdegar, Justice Corrigan dissented from the majority's analysis. (Villatoro, supra, 54 Cal.4th at pp. 1169-1182 (conc. &dis. opn. of Corrigan, J.).) She argued that the majority opinion contradicted longstanding precedent on the admission of character evidence (id. at pp. 1169, 1170-1172) and improperly expanded the narrow exception created by section 1108 (Villatoro, at pp. 1169, 1172-1175). She also stressed that allowing a propensity inference for charged crimes lacks the safeguard of section 352 and improperly bootstraps verdicts on multiple counts. (Villatoro, at pp. 1176-1179.) And she expressed concern that the majority decision could lead to confusion and unintended consequences. (Id. at pp. 1179-1182.) Nevertheless, Justice Corrigan found any error in giving the instruction harmless based on the strength of the case, which included the testimony of the complaining witnesses, DNA evidence, and strong similarities among the crimes. The similarities "mitigated prejudice from the instruction, because the jury could have properly considered these similarities for noncharacter purposes." (Id. at p. 1182.)
Justice Liu agreed with Justice Corrigan that it was error to instruct the jury with a propensity instruction with respect to charged offenses but that the error was harmless under the facts of the case. (Villatoro, supra, 54 Cal.4th at p. 1182 (conc. &dis. opn. of Liu, J.).) Justice Liu further opined that, even if section 1108 does apply to charged offenses, he was not convinced the trial court had implicitly conducted a section 352 analysis in the case. (Villatoro, at p. 1183 (conc. &dis. opn. of Liu, J.).) He emphasized the "crucial protective role" the weighing process under section 352 plays in supporting the constitutionality of section 1108. (Villatoro, at pp. 1183-1184 (conc. &dis. opn. of Liu, J.), quoting Falsetta, supra, 21 Cal.4th at p. 917 [" 'we think the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge' "].) And he referenced the factors set forth in Falsetta used to determine whether drawing a propensity inference under section 1108 from another sexual offense would be unduly prejudicial and thus improper, such as" 'its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, [and] its similarity to [another] charged offense.'" (Villatoro, at pp. 1184-1185 (conc. &dis. opn. of Liu, J.).)
Molloy states that he has raised a due process challenge to the use of CALCRIM No. 1191B with respect to charged offenses in this case to preserve his federal constitutional claim so that he can "request the California Supreme Court to reconsider its decision in Villatoro in light of the dissent of Justice Corrigan joined by Justice Werdegar and the dissent of Justice Liu." His argument consists of reciting statements made by the various dissenting justices and includes a passing reference to Chapman v. California (1967) 386 U.S. 18 to argue that it is" 'completely impossible to say'" that the erroneous instruction did not contribute to his convictions given the holes in the prosecution case and the defense he presented
In line with Villatoro, we consider whether the necessary weighing under section 352 was done here, keeping in mind that we may" 'infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'" (Villatoro, supra, 54 Cal.4that p. 1168, italics added by Villatoro.) Justice Corrigan noted that "[i]nferences arising from the charged offenses are best considered at the joinder and severance stage of trial." (Villatoro, at p. 1182 (conc. &dis. opn. of Corrigan, J.) We agree that this is an appropriate place for weighing under section 352 to be done. (Daveggio and Michaud, supra, 4 Cal.5th at pp. 828-830 [relying, under similar circumstances, on a section 352 analysis done during denial of a bifurcation motion].)
Here, defense counsel filed a motion before trial to sever counts involving Jane Doe One from those involving Jane Doe Two, arguing that trying the two incidents together would deny him his constitutional right to due process and a fair trial. Specifically, counsel asserted that joinder of the two sets of charges would be prejudicial because they otherwise would not be cross-admissible and because joining a weak case (Jane Doe One) with a stronger case (Jane Doe Two) would create a "very real danger" of prejudicial spill-over. The trial court disagreed, denying the motion to sever.
Specifically, the court concluded that the events surrounding each incident would be cross-admissible pursuant to section 1108. And, even without that statute, the events would be cross-admissible on the issue of reasonable mistake regarding consent. (See Evid. Code, § 1101, subd. (b) [permitting admission of other acts evidence "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented)"].) The court also found that neither incident was particularly strong versus the other. Rather, they were "roughly equivalent."
Thus, the trial court weighed the prejudice which might result from trying the two sets of charges together and concluded severance was not necessary. Each incident would be admitted against the other under both Evidence Code sections 1108 and 1101, subdivision (b) even if the matters were tried separately, so trying them together would not necessitate any extra time. (See § 352.) And there was no substantial danger of undue prejudice, of confusing the issues, or of misleading the jury because the two distinct incidents were "roughly equivalent." This appears to be sufficient to fall under the umbrella of the Villatoro majority.
Since the timing of the discovery of multiple sexual offenses-and of their prosecutions and convictions-is often pure happenstance and/or subject to prosecutorial discretion, we see no reason why section 1108 should not apply in the context of charged offenses as the majority held in Villatoro. Indeed, legislative findings with respect to section 1108 note the critical need for propensity evidence in sex offense cases given the" 'serious and secretive nature of sex crimes'" that often results in a" 'credibility contest at trial'" as well as the" 'particularly probative'" nature of such evidence because" 'the willingness to commit a sexual offense is not common to most individuals.'" (Falsetta, supra, 21 Cal.4th at pp. 911-912.) And, under such circumstances, an instruction on propensity actually appears to aid the defense by delineating the strict requirements that must be met-including proof beyond a reasonable doubt-before a propensity inference may be drawn. (Villatoro, supra, 54 Cal.4th at p. 1171 (conc. &dis. opn. of Corrigan, J.) [noting that the admission of character evidence" 'is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them' "].) This seems especially true where, as in this case, charged offenses are also cross-admissible under Evidence Code section 1101, subdivision (b) for noncharacter purposes.
Nevertheless, even if section 1108 should not be applied to other charged offenses and/or CALCRIM No. 1191B should not have been given in this case, we would find the error harmless under any standard. The evidence in this case was strong. Both complaining witnesses testified; Molloy's DNA was found on each woman; and the two incidents were strikingly similar, both involving the removal of an intoxicated woman from her companions and a bar setting in order to isolate and sexually assault her. And importantly, the jury was permitted to use the evidence presented regarding both sexual assaults for noncharacter purposes-i.e., to prove intent, plan, absence of mistake or accident, and whether Molloy did not reasonably and in good faith believe that Jane Doe One and Jane Doe Two consented. Under such circumstances we can conclude beyond a reasonable doubt that any error with respect to section 1108 did not contribute to the guilty verdicts in this case. (People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat).)
Molloy makes a cumulative error argument in this context, contending that even if errors found with respect to three of his claims are deemed individually harmless, cumulatively, they denied him due process. However, as discussed above, we have found no meaningful error with respect to the consent instructions given in this case (part II.B., ante), Molloy's alleged prosecutorial error (part II.C., ante), or the use of CALCRIM No. 1191B (part II.D., ante). We therefore also reject Molloy's assertion of cumulative error. It is clear that any possible error tied to these three claims did not contribute to the verdicts in this case. (Aledamat, supra, 8 Cal.5th at p. 13.) Nor did they impede Molloy's ability to receive due process and a fair trial. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
E. Jury Instruction on Factors in Aggravation
Molloy finally claims that the jury's true findings with respect to the aggravating circumstances in this case must be reversed because the instructions given by the trial court with respect to those circumstances "were prejudicially erroneous and incomplete." Specifically, he argues that the trial court's instructions failed to adequately convey a number of concepts set forth in pattern jury instructions recently promulgated by the Judicial Council in this context (CALCRIM Nos. 3224, 3226 &3234). Although the instructions given do not completely track the pattern instructions, we see no prejudicial error.
1. Additional Legal Principles
Effective January 1, 2022, section 1170, subdivision (b) (hereafter section 1170(b)) was amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) "to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 'have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' (§ 1170(b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. (§ 1170(b)(3).)" (People v. Lynch (2024) 16 Cal.5th 730, 742.) In addition, Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124) created a presumption in favor of a mitigated term when, among other things, a defendant's "psychological, physical, or childhood trauma" is a "contributing factor" to the defendant's commission of the offense. (§ 1170(b)(6)(A).) A court may depart from the mitigated term under these circumstances only if it finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice. (§ 1170(b)(6), 1st par.)
"After a sufficient factual basis to support the circumstances in aggravation or mitigation is found, the court enjoys broad discretion in its sentencing determination. The trial court's sentencing decision is 'review[ed] for abuse of discretion.' [Citation.] That 'discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an "individualized consideration of the offense, the offender, and the public interest."' [Citation.] The court abuses 'its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.'" (People v. Hilburn (2023) 93 Cal.App.5th 189, 205-206.)
2. Additional Background
a. Trial on Factors in Mitigation
After the jury found Molloy guilty of counts 3 through 6 in March 2022, the trial court held a bifurcated jury trial on the alleged factors in aggravation with respect to those counts, explaining: "Now, ladies and gentlemen, there's a new law in the state of California that requires that if the People allege aggravating circumstances, then there is a decision the jury must make.... [¶] I have an instruction for you. But in this case with regards to Counts 3 through 6, the People have alleged that the following aggravated circumstances apply to either the defendant or to this case.
"And one is that the crime-each of the crimes charged involved great violence, bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness.
"The second alleged aggravating circumstance is that the victim was particularly vulnerable. That's alleged as to each of the counts.
"And the third one is the defendant engaged in violent conduct that indicates a serious danger to society. [¶] And those are questions that you'll have to resolve as to each of the counts, each of the felony Counts 3 through 6 that you decided that the defendant was guilty on.
"To these aggravating circumstances, the defendant has denied them and the burden of proof is on the People. Consider this instruction . . . that I will give to you. [¶] And, by the way, all of the other instructions that I gave to you still apply, if you find that you need to use them in your deliberations. And all of the evidence that was already received is also for your consideration. Here's the instruction.
"The People allege that aggravated circumstances apply to the defendant or to the crimes committed by the defendant. An aggravated circumstance is a proven fact, condition or event related to the defendant or the commission of the crime that is above and beyond the elements of the crime itself.
"In order for you to find that an aggravated circumstance is true, you must find that it is proven by the People beyond a reasonable doubt. If you find that the People have not met this burden with regard to an aggravated circumstance, you must find that the alleged aggravated circumstance is not true.
"Any finding by the jury must be unanimous, meaning all of you must agree.... [¶] The following definition may apply to some of the alleged circumstances in this case. Vulnerable means to be in need of special care, support or protection, because of age, condition or relationship."
No further evidence was admitted by either party. As is relevant here, the prosecutor argued with respect to Jane Doe One that she was particularly vulnerable because "[s]he put her care and custody in the hands of the defendant to drive her home and they took advantage of her. She couldn't defend herself and she was passed out and intoxicated on her bed. She couldn't do anything to protect herself." Similarly, Jane Doe Two was particularly vulnerable because she "was heavily intoxicated and was in the passenger seat of [Molloy's] car. There's nothing she could do to protect herself." Jane Doe Two was also vulnerable as a woman some 20 years older than Molloy. The prosecutor further argued that Jane Doe Two was "was intoxicated and she said no. And the defendant forcefully pushed her legs up and raped her anyways. That behavior by itself is dangerous, cruel, vicious and callous." Finally, the prosecutor asserted as to both women: "Sexual assault. Of course-of course it's dangerous to society. It's harmful. These women went through hell as we heard. And the defendant's behavior indicates a clear danger to society as a whole and these women in particular."
Defense counsel explained: "They're aggravating circumstances. What that means is they are circumstances about these crimes that make them sort of an aggravated version of this crime. Right? Rape of an intoxicated person is a crime. It's illegal already. The question is not, is-is rape of an intoxicated person violent, right? Is it-is this a violent version of that crime, if that makes sense. Is this a version of this crime that indicates a degree of callousness or viciousness?" He went on to argue that the versions of the crimes committed did not indicate a high degree of cruelty, viciousness, or callousness. With respect to whether Molloy had committed violent conduct indicating a serious danger to society, counsel argued that Molloy was 40 years old and had no other criminal record. In summary, he asked the jury not to find the aggravated circumstances true "because this is not an aggravated version of the crimes that were found."
During deliberations, the jury asked for clarification as to whether "high degree" in the first aggravating factor applied only to cruelty or to each of the three concepts following the modifier-i.e., cruelty, viciousness, and callousness. The court responded that it applied to all three and that the jury "must find 'high degree' of any one or more of them, in order for it to be true." The jury ultimately found true the allegation that Jane Doe One was particularly vulnerable, but rejected the other two aggravating factors with respect to counts 3 and 4. As to counts 5 and 6 involving Jane Doe Two, the jury found true all three aggravating circumstances.
b. Sentencing Hearing
At the sentencing hearing in July 2022, the court indicated that it had reviewed the briefing from both parties, including the attached social history and letters from family and friends, as well as the probation report, which also included "a great amount of social history." Prior to argument, the court indicated that there might be an issue under section 1170(b)(6) given Molloy's social history and that it intended to consider the factors in aggravation found by the jury. Defense counsel argued that Molloy's history of trauma, as well as his lifetime of otherwise law-abiding behavior, outweighed the aggravated circumstances and justified mitigated, concurrent terms. Jane Doe Two then gave a victim impact statement, detailing the significant ways in which the rape had negatively affected her life. The prosecutor described the serious impacts on Jane Doe One based on his continuing contacts with her, as she did not want to be present. He then argued for the maximum possible sentence, noting that Molloy showed no real remorse.
As mentioned above, the trial court ultimately designated count 5 involving Jane Doe Two as the principal term and sentenced Molloy to the middle term of six years in state prison on that count. It sentenced Molloy to an additional two years (one-third the middle term) for count 3 involving Jane Doe One. In doing so, the court indicated it did not see Molloy as remorseful. Even if he had been entitled to probation, the court would have denied it due to "the nature and seriousness of the crimes, that's crime times two, two sets of crimes, the vulnerability of the victims as the defendant preyed on them, created emotional damage that was caused by the defendant to the victims, how it affected their lives as you heard in this hearing and in the trial, it's immense damage." Although Molloy's lack of a record was "a good thing," it did not outweigh his "clear lack of remorse."
With respect to the sentence imposed, the court considered the aggravating factors found by the jury and the mitigating factor of Molloy's lack of a record. Turning to the applicability of section 1170(b)(6), the court found it "hard . . . to find that his childhood experience was a contributing factor to these crimes." Nevertheless, the court evaluated the question, finding that "there is some suggestion that since he had these difficulties as a child it may have affected his ability to understand and react to situations the way that other people would." However, with respect to count 5-even with the social history as a contributing factor-the court found the aggravating factors outweighed the mitigating factors such that imposition of the lower term was contrary to the interests of justice. It then imposed the sentence for count 3 consecutive to count 5, given the aggravating factors, lack of remorse, and the distinct nature of each of the two sexual assaults.
c. New Form Instructions on Factors in Aggravation
In March 2023, the Judicial Council published new form instructions to implement the changes to section 1170 enacted by Senate Bill 567 and Assembly Bill 124. For example, CALCRIM No. 3226 explains the aggravating factor involving a particularly vulnerable victim. To find that aggravating factor true, the jury must find that the victim suffered a loss, injury, or harm with respect to the crime; and was "particularly vulnerable." (Ibid.) Particularly vulnerable is defined to include "being defenseless, unguarded, unprotected, or otherwise susceptible to the defendant's criminal act to a special or unusual degree." (Ibid.) However, the jury would be instructed it could not find vulnerability based solely on an element of the underlying offense (such as intoxication or unconsciousness). (Ibid.)
CALCRIM No. 3224 discusses the aggravating factor involving great violence, great bodily harm, and/or a high degree of cruelty, viciousness, and/or callousness. The instruction defines all of these terms. For instance, "[a]n act discloses cruelty when it demonstrates the deliberate infliction of physical or mental suffering." (Ibid.) "An act discloses callousness when it demonstrates a lack of sympathy for the suffering of, or harm to, the victim[s]." And "[v]iciousness means dangerously aggressive or marked by violence or ferocity. Viciousness is not the same as violence. For example, some acts which may be described as vicious do not involve violence at all, but rather involve such acts as deceit and slander. On the other hand, many violent acts do not indicate viciousness, but instead show frustration, justifiable rage, or self-defense." (Ibid.)
CALCRIM No. 3234 involving violent conduct that is a serious danger to society does not define violent conduct but states: "To determine whether the defendant is a serious danger to society, you may consider the defendant's conduct before or after commission of the crime [as well as evidence about the defendant's background]." Finally, all three instructions state that, while all jurors must agree on the existence of the specific aggravating circumstance, they do not have to agree on the underlying facts supporting the existence of that circumstance. (CALCRIM Nos. 3224, 3226 &3234.) And the three instructions additionally provide: "You may not find the allegation true unless all of you agree that the People have proved that the defendant's conduct was distinctively worse than an ordinary commission of the underlying crime." (CALCRIM Nos. 3224, 3226; see CALCRIM No. 3234.)
3. No Prejudicial Instructional Error
Using the form jury instructions as a guide, Molloy contends the instructions given by the trial court in this case with respect to the factors in aggravation were erroneous and incomplete on five different grounds. We agree with the Attorney General that Molloy has forfeited these arguments by failing to request clarification or augmentation of the otherwise correct instructions. (Lee, supra, 51 Cal.4th at p. 638.) Nevertheless, we will examine Molloy's claims in the context of determining whether his substantial rights have been violated. (§ 1259; see also Parker, supra, 13 Cal.5th at p. 68 [even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised].) We find no meaningful error.
Molloy first claims that the instructions given by the trial court were inadequate because, unlike CALCRIM Nos. 3224, 3226, and 3234, they failed to admonish the jurors that they could not" 'find the allegation true unless all of you agree that the People have proved that the defendant's conduct was distinctively worse than an ordinary commission of the underlying crime.'" (Italics added.) However, the instruction given in this case did state: "An aggravated circumstance is a proven fact, condition or event related to the defendant or the commission of the crime that is above and beyond the elements of the crime itself." (Italics added.) While there are differences between these two formulations, they both address the need for the jury to find that the crimes constituted aggravated versions of their ordinary counterparts. In addition, as detailed above, defense counsel argued this concept at length during his closing argument. He stated, for example, that the question was not if rape of an intoxicated person is a violent crime, but whether the crime at issue was a "violent version of that crime." And he asked the jury not to find any of the aggravated circumstances true because the crimes for which Molloy was found guilty were not "aggravated version[s]" of those crimes. On this record, there is no reasonable likelihood the jury applied the instructions given in a way that violated the Constitution. Nor is it reasonably probable Molloy would have received a more favorable result had the trial court used the language from the pattern instructions.
Next, Molloy objects to the particularly vulnerable victim instruction given in this case because, unlike CALCRIM No. 3226, it did not specify that" 'particularly vulnerable' means more vulnerable than similarly situated victims of the same offense." We disagree. CALCRIM No. 3226 does define "particularly vulnerable" to include "being defenseless, unguarded, unprotected, or otherwise susceptible to the defendant's criminal act to a special or unusual degree." (Italics added.) But the instruction given here stated, "Vulnerable means to be in need of special care, support or protection because of age, condition or relationship." While "particularly" was not defined, it is commonly known to mean "to an unusual degree." (Merriam-Webster Dict. Online (2024) <https://www.merriam-webster.com/dictionary/particularly> [as of Oct. 31, 2024].) Thus, we find no meaningful distinction between the instruction given and the form instruction.
Molloy's third argument also involves the particularly vulnerable victim instruction. He complains that the trial court should have instructed the jury in accordance with CALCRIM No. 3226 that" 'particular vulnerability'" cannot be based solely on an element of the underlying crime (such as, here, Jane Doe One's or Jane Doe Two's intoxication or unconsciousness). We note preliminarily that neither intoxication nor unconsciousness was an element of Molloy's forcible rape conviction with respect to Jane Doe Two (count 5). Moreover, as stated above, the instructions here did define an aggravating circumstance as a condition or event related to the commission of the crime that is above and beyond the elements of the crime itself. This implies that something more than the intoxication or unconsciousness used by the jury to convict on counts 3, 4, and 6 would be needed to find Jane Doe One or Jane Doe Two particularly vulnerable with respect to those counts.
Indeed, that is just what the prosecution argued. Jane Doe One was not just intoxicated and intermittently conscious, she was also particularly vulnerable due to the other circumstances under which the crime was committed. Specifically, she was physically outmatched by Molloy and Mitchell and alone in her home when she awoke with one man on top of her and the other standing by in the room. Similarly, Jane Doe Two was not just intoxicated, she was vomiting and was trapped in the seat of a car with her legs pushed up on either side of her head, unable to resist or escape. She was also in her 50s, while Molloy was approximately 20 years younger. Finally, with respect to count 3, the jury was free to consider Doe One's intoxication because intoxication is not an element of sexual penetration by a foreign object while unconscious. Similarly, with respect to count 4, the jury could consider Doe One's lack of consciousness because unconsciousness is not an element of sexual penetration by a foreign object while intoxicated. Given all of these facts, if there was any error here, we would find it harmless under any standard.
Molloy's fourth claim attacks the instruction given in this case because it did not specifically define great violence, great bodily harm, threat of great bodily harm, cruelty, viciousness, or callousness, as does CALCRIM No. 3224. Here, the prosecutor argued only that the crimes involved cruelty, viciousness, or callousness so we limit our discussion to those concepts, finding no error. Rather than being terms of art, these concepts all have a commonly understood meaning. (People v. Mena (2005) 133 Cal.App.4th 702, 706 ["We presume the jurors understood the common meaning of the language used, and applied common sense."].) Indeed, reviewing the definitions adopted by CALCRIM No. 3224 as set forth above, we note that they largely track that common meaning. (See Merriam-Webster Dict. Online, supra, <https://www.merriam-webster.com/dictionary/cruel>; <https://www.merriam-webster.com/dictionary/viciousness>;<https://www.merriam-webster.com/dictionary/callousness> [as of Oct. 31, 2024].) There is no reasonable likelihood the jury misapplied these concepts in a way that created a constitutional violation.
We similarly reject Molloy's fifth complaint-that the instruction failed to give guidance regarding how to determine whether Molloy engaged in violent conduct that indicated a serious danger to society. The terms "serious danger to society" and "violent conduct" are also terms that have commonly understood meanings. And CALCRIM No. 3234 does not define them either, stating only that "[t]o determine whether the defendant is a serious danger to society, you may consider the defendant's conduct before or after commission of the crime[ as well as evidence of the defendant's background]." Here, in determining the existence of the circumstances in aggravation, the court told the jury it could consider "all of the evidence that was already received."
Finally, with respect to all of these instructional claims, we note that the jury clearly took seriously its duties with respect to determining the factors in aggravation. During deliberations, they asked for clarification with respect to the wording of one of the circumstances, and then found that it did not apply to Jane Doe One but did apply to Jane Doe Two. Overall, it found true only one of the three circumstances alleged with respect to Jane Doe One, while finding all three true with respect to Jane Doe Two. Thus, there is no indication that the jury was confused (other than in the one instance where they queried the court) by the instructions as given or that it failed to apply them appropriately to the facts.
In sum, under any standard, no prejudicial error occurred with respect to the trial court's aggravating circumstance instructions.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.