Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA304809, Norm Shapiro, Judge.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Salvador Tirado appeals from the judgment entered following a jury trial in which he was convicted of two counts of spousal rape (Pen. Code, § 262, subd. (a)(1)). He was sentenced to prison for six years and contends the trial court committed prejudicial instructional error. For reasons stated in the opinion we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 22, 2006, Ms. G. was leaving her apartment in Los Angeles to pick up two children she cared for and to take them to school when she encountered appellant, her husband, from whom she was separated. He pulled her sweater and said he wanted to talk to her. She told him to go away and that she did not want him to bother her. She dropped off the children at school and while returning home, she ran into appellant again. He told her he wanted to live with her again. Ms. G. told him she did not want anything to do with him. Sometime later when Ms. G. opened the door to her apartment, appellant pushed the door inward and Ms. G. fell into a chair that was behind the door. She told appellant she did not want him there and that he should take his “stuff” and leave. Appellant told her he would not leave. He grabbed her and threw her onto the bed and said he wanted to have sex with her. Ms. G. said she “didn’t want to be with him and . . . didn’t want to see him again.” Appellant then “forced [her] to be with him.” He took his clothes off, got on top of her and forced her to have intercourse with him. Ms. G. told him he should not do “this” and should leave. Ms. G. continued to tell appellant to stop and tried to get him off her but he overpowered her. At some point appellant stopped and went to the bathroom. Ms. G. tried to escape but appellant “put himself behind the door and did not let [her] out.” Appellant again pushed Ms. G. onto the bed and forced her to have sex with him again. Ms. G. was feeling very bad. She would close her legs, trying to push him off, but “he would in a very ugly manner push [her] open . . . .” This continued for approximately three hours. Appellant stopped again and went to the bathroom for “seconds.” When he returned from the bathroom, he “went down onto the carpet to watch television.” Ms. G. could not leave because appellant “would keep running to cover the door.” Ms. G. tried to speak nicely to him so that he would not get upset. She asked him to go to the bathroom to brush his teeth and told him that she would prepare some food. While he was in the bathroom, she called the police. When appellant finished in the bathroom, he forced Ms. G. onto the bed again and got on top of her. She tried “to take him off [her].” She was crying and asked him to please leave the house. Police entered the apartment and took him off her.
On June 22, appellant was not living at the apartment. Five days before, Ms. G. had asked him to leave. Prior to his leaving, Ms. G. had consensual intercourse with appellant. It was always forced on her, but she never said anything because he would say he was her husband. She never told him no. Ms. G. and appellant had been married for approximately 10 years. Prior to June 17, they had lived together at the apartment for about seven weeks. Before that, they had been separated for two years. After the two years of separation, Ms. G. did not want to take appellant back but he kept bothering her. Appellant would follow her everywhere. Ms. G. and appellant lived together for two to three years during their marriage.
Los Angeles Police Officer Antonio Garcia responded to Ms. G.’s apartment to investigate a possible domestic dispute with a possible rape. He stood just outside the closed apartment door and heard a woman crying, asking to be let go. Officer Garcia believed that a possible rape was occurring and he and his partner entered the apartment through the unlocked door. He observed Ms. G. crying and on her back on the bed. Appellant’s lower body was between her legs. Ms. G. made eye contact with the officer and asked for help in Spanish. Officer Garcia observed appellant pull himself away from under Ms. G.’s skirt, grab his penis and place it inside his boxer shorts. Officer Garcia asked appellant for identification and appellant responded, “That is my wife. I can do whatever I want.”
Los Angeles Police Officer Hector Chaidez transported appellant from the apartment to the UCLA Medical Center and observed scratches on appellant’s back.
On July 8, 2006, Ms. G. received a letter from appellant asking her to lie for him. On cross-examination, she admitted that appellant did not directly ask her to lie. Ms. G. explained that appellant wanted her to tell the police they were “arguing” and that she was “angry because [he] didn’t make it home.”
DISCUSSION
Appellant contends the trial court prejudicially erred by refusing to instruct the jury with a Mayberry instruction, the defense of a “reasonable[,] good faith belief” in consent pursuant to CALJIC number 10.65.
People v. Mayberry (1975) 15 Cal.3d 143.
CALJIC No. 10.65 provided in relevant part, “In the crime of unlawful forcible rape, criminal intent must exist at the time of the commission of the unlawful forcible rape. [¶] There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.] [¶] [However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief.] [¶] 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 not guilty of the crime.”
“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 fn. 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. Appellant did not testify, and the prosecution’s evidence undermined appellant’s theory. Ms. G. testified that she continuously pled with appellant to stop what he was doing and to let her go. She physically tried to get appellant off of her but he overpowered her. She repeatedly told appellant that she wanted nothing to do with him. Ms. G. struggled to keep her legs together but appellant pushed them open. Ms. G. tried to escape when appellant went to the bathroom, but appellant “put himself behind the door and did not let [her] out.” That towards the end of the attacks Ms. G. offered to cook for appellant and requested that he brush his teeth does not amount to equivocal conduct that could indicate consent. The conduct was the product of Ms. G.’s fear and an attempt to keep appellant from getting upset. (See People v. Williams, supra, 4 Cal.4th at p. 363.) Additionally, “[t]he relevant inquiry under Mayberry . . . is whether [appellant] believed [the victim] consented to have intercourse, not whether she consented to spend time with him.” (Id.) The fact that Ms. G. and appellant previously engaged in consensual sex was insufficient to require the instruction. It had no tendency to prove or disprove appellant’s state of mind at the time of the offenses when Ms. G. repeatedly told appellant she did not want to have sex. (See People v. Simmons (1989) 213 Cal.App.3d 573, 580-581.) Additionally, Officer Garcia testified that before entering the apartment he heard Ms. G. pleading with appellant to get off of her. Officer Garcia also testified that when he asked appellant for identification, appellant responded “This is my wife. I can do whatever I want,” indicating he did not believe he needed his wife’s consent to engage in sexual intercourse with her. Based on the foregoing, the trial court did not err in refusing to give the requested jury instruction.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.