Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F00150
CANTIL-SAKAUYE, J.
A jury found defendant Stephon W. Newman guilty of rape and assault with force likely to produce great bodily injury. The jury also found it true that defendant engaged in acts disclosing a high degree of cruelty, viciousness, or callousness, and that he personally inflicted great bodily injury. Defendant was subsequently sentenced to seven years in state prison. Defendant makes two claims on appeal: The court erred in failing to give a Mayberry instruction; and the court erred in denying his motion to continue judgment and sentence. We will affirm the judgment.
People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).
FACTUAL AND PROCEDURAL BACKGROUND
In January 2006, the victim was 19 years old and living in a one-bedroom apartment in Sacramento. She previously dated two of defendant’s cousins, was friends with members of his family, and had had consensual sex with defendant on a couple of occasions.
On the night of January 6, 2006, defendant came over to the victim’s apartment, and they began drinking brandy. With her consent, defendant gave the victim a back massage. Later that night, the victim’s friend, Simone, came over, and after Simone, defendant’s cousin Anthony. The four friends drank brandy and talked. The victim drank about three small glasses of brandy and was “buzzed,” but coherent.
After a while, Simone and Anthony left to go to the store. When they left, Simone believed the victim and defendant were going to bed together to sleep; Anthony thought they wanted to be alone. In fact, the victim went to her room to put clothes away. Defendant followed her into the bedroom, they talked, defendant cleared a space on the bed, and they lay down together. (The victim testified that once or twice previously she and defendant lay in the bed together and had not had sex.)
Defendant began rubbing the victim’s back again and she told him she did not want to have sex. Defendant became angry, told the victim his “penis was hard,” and called her a bitch. They began to argue about the victim’s refusal to have sex. When Simone and Anthony returned from the store, defendant and the victim were still arguing and the argument became physical.
The victim testified that defendant threw the first punch, but Simone and Anthony remember the victim coming at defendant first. Regardless, it was undisputed that defendant hit the victim in the face, breaking her nose. Defendant then grabbed the victim’s throat and began choking her, causing her necklace to cut into her skin.
Anthony and Simone were able to pull defendant off the victim; the victim then sat on her bed crying, her nose bleeding. The victim asked defendant to leave, and Anthony told defendant they should leave, but defendant refused. The victim remembers defendant was angry, and told Anthony to get out of the room. Simone testified that defendant asked Anthony and Simone to leave the room so he could talk to the victim, and the victim acquiesced; Anthony remembered defendant being “remorseful” and asking to speak with the victim alone. In any event, Anthony and Simone left the room and someone closed the door behind them.
Behind the closed door, defendant told the victim that her tears were not going to help her. He ordered her to take her pants off. When she refused, he became angry and took them off of her himself. Then, against the victim’s will, defendant put his penis inside her vagina.
While defendant put his penis into her vagina, the victim’s nose continued bleeding and she continued to cry. The victim tried to resist defendant, and while she could not recall precisely what she had done, she remembered moving her “bottom end” around the bed to avoid him and pushing him away. She did not offer much resistance because he threatened to hit her again if she did, and she did not cry out because she was scared.
Outside the bedroom, Simone could hear the victim crying through the closed door, so she knocked and defendant told her they would be out in a minute. Still hearing the crying, she knocked a second time and tried to open the door but it was locked. She called the victim’s name, and then went to get Anthony.
Inside the room, defendant finished raping the victim; she was still crying and her nose was still bleeding. Defendant said she would probably tell everyone he raped her; wanting him to leave, she said she would not. Then, Anthony knocked and defendant opened the door.
The victim remembers defendant looking proud of himself and laughing; she and Simone both remember defendant saying to Anthony: “That’s how G-Evil does it.” Defendant and Anthony then left the apartment. The victim told Simone what happened, that defendant raped her. She then called her family, who urged her to call the police. Worried that “something bad” would happen to her, the victim nevertheless called the police.
Defendant is referred to alternately as “G-Evil” and “G-Neevil.”
When the police arrived, the victim was hysterical and crying; her nose was still bleeding. The victim showed the police the room where she was raped and the officers saw blood on the bed and in the pajamas she had been wearing prior to the assault.
The victim was then taken to the U.C. Davis Medical Center where her blood-alcohol level was estimated to be .16 at the time she called the police, although the responding officer testified that she did not appear to be drunk and was able to understand and respond to his questions. The victim was then examined by a nurse practitioner who observed the following injuries: swollen nose; tenderness under the eyes; two red marks on the right side of her neck; three red marks on the left side of her neck: 3, 8, and 16 centimeters; red marks on the left side of her face, near her ear; red marks on her upper arm, right shoulder, and left arm; and bruises on her right and left lower legs; and a “five by four” centimeter area that was red and tender on the back of her head.
During the exam, the victim told the nurse practitioner that she had been raped. Accordingly, the practitioner collected blood, vaginal and cervical swabs, and pubic hair. Her examination of the victim’s genitals revealed no injuries, which she testified occurs in approximately one-third of rape cases. A subsequent DNA test confirmed that the semen found inside the victim was the defendant’s.
Defendant did not testify, but relied on Anthony’s testimony to prove his innocence. The jury was not persuaded, finding defendant guilty of rape and assault.
DISCUSSION
I.
Defendant contends the trial court prejudicially erred by refusing to instruct the jury with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 1000. That instruction, often referred to as the Mayberry instruction, provides that a reasonable, good faith belief in consent is a defense to rape. The trial court did not err.
“The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. 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.” (CALCRIM No. 1000.)
“As . . . explained in People v. Williams (1992) 4 Cal.4th 354 . . ., the Mayberry defense ‘has two components, 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 order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] 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.’ [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)
“[A] requested instruction regarding mistake of fact was required when ‘some evidence “deserving of . . . consideration”’ existed to support that contention. [Citation.] In People v. Flannel (1979) 25 Cal.3d 668, 684-685 and footnote 12 [our Supreme Court] explained that a trial court must give a requested instruction only when the defense is supported by ‘substantial evidence,’ that is, evidence sufficient to ‘deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.’ Thus, in determining whether the Mayberry instruction should be given, the trial court must examine whether there is substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented to sexual intercourse.” (People v. Williams, supra, 4 Cal.4th 354, 361.)
Here, there was no evidence warranting the instruction. Defendant did not testify, and the prosecution’s evidence refuted defendant’s theory. The victim lay down in her bed with defendant to talk to him, as she had done in the past. When she declined to have sex with him, he became angry, they argued, and defendant punched the victim in the face, breaking her nose and causing it to bleed uncontrollably. He then choked her hard enough to cause her necklace to cut into her skin. Under these circumstances, it would be unreasonable for anyone to believe the victim consented to have sex with the defendant.
Additionally, “[t]he relevant inquiry under Mayberry . . . is whether [defendant] believed [the victim] consented to have intercourse, not whether she consented to spend time with him.” (People v. Williams, supra, 4 Cal.4th at p. 363.) The fact that the victim and defendant previously engaged in consensual sex was insufficient evidence to require the instruction. It had no tendency to prove or disprove defendant’s state of mind at the time of these offenses when the victim repeatedly told defendant she did not want to have sex. (See People v. Simmons (1989) 213 Cal.App.3d 573, 580-581.) Based on the foregoing, the trial court did not err in refusing to give the requested jury instruction.
II.
Trial in this matter concluded on March 27, 2007. Defendant was to return for judgment and sentencing on May 4, 2007. Before he could be sentenced, defendant filed a motion to continue judgment and sentencing for one month so he could investigate newly discovered evidence, which he argued might form the basis of a motion for a new trial. The newly discovered evidence contradicted the victim’s testimony that after the rape she was so afraid she moved out of the Sacramento area and had not been in contact with any of defendant’s family members in quite a while.
Defendant argued the newly discovered evidence established that the victim may have moved only to Carmichael, not out of the Sacramento area. In addition, the newly discovered evidence suggested that after the rape, the victim rekindled her romantic relationship with another of defendant’s cousins. Defendant wanted to use this evidence to impeach the victim, and to argue that her subsequent relationship with defendant’s cousin gave the victim a reason to lie about what happened in the bedroom that night.
After hearing argument from both sides, the court denied the motion:
“I must say I don’t think you’ve articulated any possible thread that could lead to a meritorious motion for a new trial.
“I think if you are going to ask the Court to delay a sentencing in a case of this gravity, for that reason I think there is a responsibility to identify something in the way of newly discovered evidence that you would believe has some possibility of prevailing in a motion, and I don’t think you have done that at all.
“Your suggestion that because [the victim] -- this is what, in so many words, you were saying -- because she might later on have a relationship with Mario, that coming out of that bedroom that night with that swollen eye after she had been struck and was crying and alleging hysterically that she had been raped -- that that was some sort of manufacture so she could explain having consensual sex with [defendant] to a cousin later is really preposterous. That is just a real tortured view, and I am going to deny the motion.”
Defendant contends the trial court abused its discretion in refusing to grant him a one-month continuance to investigate evidence for a new trial motion based on newly discovered evidence. The court’s ruling, he argues, denied him his state and federal constitutional rights to due process and a fair trial.
“[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] [D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 920-921.)
Defendant has failed to carry his burden of establishing that the trial court exceeded the bounds of reason in denying his motion for a continuance. Defendant offered nothing other than evidence he might use to impeach the victim’s testimony in a new trial. Given these circumstances, without more, defendant has failed to carry his burden of establishing that the trial court exceeded the bound of reason in denying his motion for a continuance. (People v. Long (1940) 15 Cal.2d 590, 607-608 [newly discovered evidence which would tend merely to impeach a witness is not of itself sufficient ground for granting a new trial]; People v. Bookout (1961) 197 Cal.App.2d 457, 464 [same].) Accordingly, we find no error.
DISPOSITION
The trial court judgment is affirmed.
We concur: MORRISON, Acting P. J., ROBIE, J.