Opinion
E056843
03-06-2014
THE PEOPLE, Plaintiff and Respondent, v. PEDRO RAMON ALONSO, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kelley Johnson and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF1102647)
OPINION
APPEAL from the Superior Court of Riverside County. Honorable Bernard Schwartz, Judge. Affirmed with directions.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kelley Johnson and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Pedro Ramon Alonso was convicted of one count of forcible sodomy of a child under 14 years of age (Pen. Code, § 269, subd. (a)(3); count 4), three counts of forcible rape (§ 261, subd. (a)(2); counts 13, 14, 15), three counts of unlawful sexual intercourse with a minor under 16 years of age (§ 261.5, subd. (d); counts 16, 17, 18), and six counts of committing a lewd act on a child under 14 years of age, lesser included offenses of forcible lewd and lascivious acts upon a child under 14 years of age (§ 288, subd. (a); counts 7, 8, 9, 10, 11, 12). The trial court sentenced him to 15 years to life plus 39 years in state prison. Defendant appeals, contending the trial court committed prejudicial instructional error.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was acquitted of three counts of rape of a child under 14 years of age (§ 269, subd. (a)(1); counts 1, 2, & 3, and two counts of forcible oral copulation of a child under 14 years of age (§ 269, subd. (a)(4); counts 5 & 6). Regarding count 7, we note the minute order dated July 6, 2012, incorrectly identifies the greater offense as being section 288, subdivision (a), and the lesser offense as being section 288, subdivision (b)(1). We will order it corrected in our disposition.
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I. FACTS
Because defendant's sole issue on appeal involves the jury instructions regarding the charges of forcible rape (§ 261, subd. (a)(2), counts 13, 14 & 15), a summary of the facts is sufficient. Jane Doe was born in March 1997. Defendant was a "close cousin" of Doe's father, who came from Guatemala in 2008 or 2009 to live with Doe's family in Moreno Valley. In January 2011, Doe's mother was pregnant; however, she was at risk of losing the baby, as she had previously miscarried in July 2010. Doe was very concerned about her mother and helped around the house so that her mother would not have any extra stress. Doe was an only child and wanted a baby brother. Defendant was aware of Doe's mother's situation and how important it was to Doe that her mother not miscarry.
In January 2011, when Doe was 13 and defendant was 22 years old, defendant began sending text messages to Doe, expressing his sexual interest in her. She told him she was not interested in him; however, he threatened to hurt her parents if she did not do what he wanted. Because of defendant's threats, Doe allowed defendant into her room, where he then engaged in sexual intercourse with her. Defendant continued to threaten to "hurt [Doe's] parents," and thus, the sexual abuse continued "almost every single day." Whenever Doe told him, "No," defendant threatened to hurt her parents. In early March 2011, Doe stopped telling defendant "no" because she "felt like it was a thing that [she] had to do every single day, like, going to school, clean the house, coming home, doing homework, eating," even though defendant knew Doe did not want to have sex with him. Doe told defendant she did not want to. By threatening her parents, defendant made Doe send naked pictures of herself to him. Without Doe's knowledge, defendant recorded a video on his cell phone of them having sex. He refused to delete it, telling her that if she did not want to do something, he would "show the video to his friends and tell them that it was [Doe]."
The sexual abuse continued after Doe's 14th birthday in March. Between March and May 2011, defendant had oral, anal or vaginal sex with Doe almost every single day. By May, Doe was tired of the sexual abuse and resumed telling defendant "No"; however, he "kept coming, like, four times a week." He continued to engage in vaginal and anal sex with Doe. The last time he forced her to have sex with him under the threat of hurting her parents was on a Saturday in the middle of May.
When initially confronted about his relationship with Doe, defendant denied it. After being told about the text messages and videos, defendant then claimed they were boyfriend and girlfriend. He admitted having sex with her between 100 and 120 times, including anal and oral sex. Eventually defendant admitted that Doe "did not want it" and he "[had] her by force." He denied threatening her parents but admitted threatening to tell them about their physical acts and show them pictures. At trial, when confronted with his text messages to Doe threatening to rape her, he claimed they were jokes and that he was "just playing" with her. Defendant maintained that Doe initiated the sexual relationship and that she sent photos of herself to him because she loved him.
II. INSTRUCTION THAT CONSENT IS NOT A DEFENSE TO RAPE
Defendant was charged with three counts of forcible rape of Doe after she had turned 14. In discussing jury instructions, the trial court acknowledged that consent is an element of the offense of rape; however, the trial court reasoned that a person under the age of 18 years is incapable of giving consent to an act of intercourse. Thus, the jury was instructed with a modified version of CALCRIM No. 1000, as follows: "The defendant is charged . . . with rape by force in violation of Penal Code section 261(a)(2). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The woman did not consent to the intercourse; [¶] AND [¶] 4. The defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else or by threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. . . . [¶] . . . [¶] It is not a defense if a child consents to intercourse. [¶] Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will."
On appeal, defendant contends "the trial court incorrectly concluded, in the context of the offenses charged in Counts 13, 14, and 15 (rape), consent need not be proven if the victim is under the age of 18 years." Furthermore, he argues that because he was relying on the defense of good faith belief in consent, the trial court erred in failing, sua sponte, to instruct upon this defense. The People disagree on the ground that "consent is not a defense to a charge of forcible rape where the victim is a child."
A. Standard of Review.
"The trial court has a sua sponte duty to instruct on defenses where there is substantial evidence to support the instruction. [Citation.]" (People v. Felix (2001) 92 Cal.App.4th 905, 911.) Under People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), a defendant charged with a forcible sex offense is not guilty if he or she had a mistaken but good faith and reasonable belief that the adult victim consented. (Id. at pp. 153-158.) "If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented . . . to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite . . . to a conviction of . . . rape by means of force or threat [citation]." (Id. at p. 155.)
"[T]he 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.)
The test for prejudice from the court's failure to instruct the jury on a defense is not entirely clear. (See, e.g., People v. Gonzales (1999) 74 Cal.App.4th 382, 391 ["[w]e need not determine whether the applicable standard of prejudice is whether the error in failing to instruct regarding the defense of accident was harmless beyond a reasonable doubt or the less stringent standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836"], overruled on other grounds as stated in People v. Anderson (2011) 51 Cal.4th 989, 998, fn.3; People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16 [an exception to the Watson standard may exist "when the error deprives the defendant of the federal due process right to present a complete defense"].) In an abundance of caution, we apply the more stringent beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, especially in light of defendant's argument that his federal constitutional rights were violated.
B. Analysis
The crime of an aggravated sexual assault on a child by means of rape requires an act of "[r]ape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261." (§ 269, subd. (a)(1).) Section 261, subdivision (a)(2) requires that the act of rape be "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." The crime of aggravated sexual assault of a child by means of sexual penetration also requires that the act be committed against the victim's will and through the use of force, violence, duress, menace, or fear. (§ 289, subd. (a)(1)(A).)
According to defendant, "there is no provision in section 261 which relieves the People of the burden of proving lack of consent when a victim is under the age of 18 years." He adds, "This is not to say that a child victim possesses the capacity to consent to an act of sexual intercourse. However, [Doe] was not a 'child' within the meaning of the rape statute . . . ." Defendant contends that "the rape statute treats 'minors' and 'children' differently, and that a 'minor' is someone between the ages of 14 and 18 years, and a 'child' is someone under the age of 14 years." Thus, he argues that while a child may be incapable of giving consent, the same is not true for a minor. (People v. Soto (2011) 51 Cal.4th 229, 245-246.)
In contrast, the People argue that "'our laws governing sexual contact with minors make it irrelevant, as a general rule, whether the minor consented.' [Citations.] This rule remains applicable to the crime of forcible rape." The People note that by enacting section 261.5 (sexual intercourse with a minor) and amending section 261 (rape), "the Legislature implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations. If that were not so, then every violation of section 261.5 would also constitute rape under section 261, subdivision (a)(1). [Citation.]" (People v. Tobias (2001) 25 Cal.4th 327, 333, fn. omitted.) They maintain that the "legislative intent to make minors capable of giving legal consent in 'some cases' specifically pertained to section 261, subdivision (a)(1)—rape of a person incapable of giving legal consent due to a mental disorder or developmental or physical disability—rather than section 261, subdivision (a)(2)—forcible rape." Thus, the People argue that while the "issue of consent distinguishes a violation of section 261.5 and [sic] from a violation of section 261, subdivision (a)(1), it is not 'the distinction' between unlawful sexual intercourse and forcible rape in violation of section 261, subdivision (a)(2)."
For purposes of this case, we need not decide whether a defendant is entitled to instruction on a reasonable, good faith belief in consent for aggravated sexual assault involving a minor. We will assume, without deciding, that the trial court did err by ruling that a reasonable, good faith belief of consent was not a defense. As we will discuss, the error was harmless.
Throughout the trial, Doe maintained she never wanted to have sex with defendant, never expressed any sexual interest to him, never wanted to be his girlfriend, never wrote him love letters, never socialized alone with him, and never seduced him. In contrast, defendant testified that he and Doe were dating, she consented to their physical relationship, he never threatened to hurt her parents, and that she voluntarily sent photos of herself to him. However, defendant's interview with the investigating detectives shows otherwise. According to his interview, defendant initially denied any relationship with Doe. Then, he claimed it was consensual. Eventually he admitted that Doe "did not want it," and he "had her by force." He admitted threatening to tell her parents about their physical acts and show them pictures. At trial, when confronted with his text messages to Doe threatening to rape her, he claimed they were jokes, and that he was "just playing" with her.
Like the jury, we are not convinced of defendant's attempt to discredit his admissions to the detectives by claiming that he was scared, did not have the right interpreter, and was confused by the questions. Instead, the evidence overwhelmingly shows that Doe did not consent to defendant's actions. Thus, any error in failing to give the Mayberry instruction is harmless beyond a reasonable doubt. Under the facts of this case, no jury could have found there was any basis upon which defendant could have formed a reasonable and good faith belief in Doe's consent. By its verdicts, the jury implicitly found Doe credible and determined that her assent had been coerced. No other conclusion is possible from the jury's decision.
III. DISPOSITION
The trial court is directed to amend the minute order dated July 6, 2012, to accurately reflect that the jury found defendant not guilty of the greater charge in count 7, a violation of section 288, subdivision (b)(1), and guilty of the lesser included offense, a violation of section 288, subdivision (a). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.