Opinion
B160420.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JASON ATHANS, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, William H. Davis Jr., Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Jason Athans appeals from the judgment entered following a jury trial that resulted in his conviction for forcible rape. (Pen. Code, § 261, subd. (a)(2).) Athans was sentenced to a term of eight years in prison, and the trial court imposed restitution and parole revocation fines.
All further undesignated statutory references are to the Penal Code.
Athans contends the trial court erred by: (1) admitting evidence of his other sexual misconduct; (2) failing to suspend proceedings to have his competency examined; (3) instructing the jury with CALJIC No. 2.50.01; and (4) failing to instruct the jury that a reasonable and good faith belief the victim consented was a defense to rape. We affirm.
FACTUAL BACKGROUND
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the facts relevant to the issues presented on appeal established the following. On the evening of June 12, 2001, victim Heather R., who had been drinking vodka, left her sleeping husband at home and took a taxi to see a friend at the Brighton Hotel in Torrance. Heather was a self-admitted "hard-core alcoholic" who suffered withdrawal symptoms if deprived of alcohol. Heathers taxi failed to return as requested. Shortly before 2:00 a.m. on June 13, she saw Athans, whom she had never met, walking toward the hotel. She asked whether he would give her a ride to a liquor store so she could obtain another bottle of vodka. Heather did not offer Athans anything in return for the ride. Athans agreed and Heather entered his car.
After driving for several minutes, Athans pulled the car to the side of the road and stated, "business before pleasure." Heather said, "Oh, no. I told you Im married, and I — dont expect anything in return." Athans made a comment to the effect that he was going to do something for Heather, and Heather was going to do something for him. Heather said, "No, Ill just get out. Ill walk from here." Athans replied, "Where do you think youre going to go? . . . Ill just drive you." Heather stated that she wanted him to stop and wished to exit the car. When she tried to open the door, however, Athans accelerated.
Athans parked in an area where they were not likely to be seen. He grabbed Heathers ponytail and yanked her head toward his lap. Heather said, "Whoa, whoa, whoa, whoa. Stop. What are you doing? Why are you hurting me? No, no, no. Hey, stop." Athans replied, "No, bitch, this is the way its going to be." Heather was terrified. Athans was pulling her hair so hard she "thought [her] neck was going to break. Hurting [her] really bad." Athans pinned her arms and leaned the seat back, positioning Heather so that she was unable to effectively resist. Heather continued to protest, saying, "Please dont do this. No. No." and "Im married. Dont do this. This — this is rape. Im not giving you — not giving you permission. The answer was no. Just let me go. You cannot do this. Youll get in trouble. This is going to hurt me, because I just delivered a stillborn child full term." Athans, who was very angry and hostile, yelled at Heather. Athans got on top of Heather and she struggled "a little," but stopped because whenever she struggled, Athans yanked harder on her hair, causing neck pain. Heather was afraid Athans was going to kill her. She begged Athans to let her up and, in an attempt to persuade him to stop, asked, "Dont you have any children?" He grinned and stated, "None that I know of." Heather pleaded to be released, promising not to tell the police. Athans replied, "I know youre not going to tell anyone. Its going to be our little secret."
Heather concluded that she was dealing with a "twisted individual" and decided not to fight any longer. Athans raped her. During the act of rape, Heather pleaded with him, saying, "Please, dont get me pregnant." She explained that she was not using birth control because she and her husband intended to try to have another baby as soon as possible. Athans stated, "Oh, I want you to have my baby. Take . . . good care of it." Heather continued asking Athans to stop, but he said, "no. Not until he was finished." She expressed concern that he was going to kill her. Athans replied, "Im not going to kill you unless . . . you do anything stupid."
When Athans completed the rape and moved off Heather, she did not run from the car because the area was deserted and she was afraid Athans would hurt her. Athans drove to a Del Taco restaurant and parked behind the building. He told Heather not to move and to decide where she wanted him to drop her off. Heather attempted to telephone her husband on her cellular telephone, but the battery was low and went dead before he got on the line. She managed to get a call through to a friend, Stephon M., and told him to meet her at a nearby intersection. When she saw Athans walking back toward the car, she terminated the call. Athans then drove through the Del Taco drive-through and purchased sodas. Heather gestured for help to the Del Taco cashier but the cashier did not notice her. When Athans left Del Taco, he threw a $10 bill at Heather. Heather had not agreed to have sexual intercourse with Athans for drugs, money, or alcohol.
When Athans drove past the intersection where Heather had told Stephon M. to meet her, Stephon approached the car and Heather exited. Heather whispered to Stephon that Athans had raped her. Stephon recorded Athanss license plate number.
A forensic examination revealed bruises on Heathers legs and foot and a tear or abrasion with tenderness around Heathers urethral area. The injury would not normally be the result of a vaginal birth that had occurred four weeks prior to the examination. A sperm sample taken from Heathers vaginal swab contained DNA that matched Athanss DNA profile. Approximately one in 1.5 trillion unrelated individuals in the Caucasian population would have had the same genetic markers as those found in Athanss profile.
DISCUSSION
1. The trial court properly admitted evidence of a second sexual offense committed by Athans.
a. Additional facts.
Prior to trial, the People sought permission to introduce evidence of other sexual misconduct purportedly committed by Athans against victim Kimberly M. less than two weeks after the charged offenses. At a hearing held pursuant to Evidence Code section 402, Kimberly M. testified as follows.
At approximately midnight on June 24, 2001, Kimberly visited a Beef Bowl restaurant in Gardena, accompanied by her husband and brother-in-law. Kimberly urgently needed to use the restroom. She entered the womens bathroom, which consisted of one room, locked the door, pulled her skirt up around her waist, and squatted over the toilet to urinate. As she was doing so, she saw Athans two feet in front of her. Kimberly asked, "What are you doing in here?" He replied, "Watching." Kimberly said, "Please, I have two little girls, and a Samoan husband. Please just leave." Athans replied, "No. Id rather stay." Athans lunged toward Kimberly, pushed her into the wall behind the toilet, grabbed her neck, and pressed his body against hers. Her skirt was still at her waist and her pelvic area was exposed. She screamed and fought with Athans. Athans choked her with his hands. When Kimberly continued to punch and resist, Athans said, "You bitch, you bitch," and exited the restroom. When he was outside the restroom, he screamed, "Its a misunderstanding[,] its a misunderstanding."
The trial court ruled the evidence was admissible under Evidence Code section 1108. It found that if Kimberlys testimony was credited, "at a minimum" Athans committed a sexual battery and possibly an attempted rape. It concluded the evidence was not more prejudicial than probative under Evidence Code section 352.
At trial, Kimberly testified consistently with her hearing testimony.
b. Discussion.
Athans asserts that evidence of the Kimberly M. incident was more prejudicial than probative, and its admission therefore violated his constitutional rights to due process and a fair trial. We disagree.
The People are correct that Athans has waived his claim that Evidence Code section 1108 violates due process by failing to object on this ground at trial. (People v. McPeters (1992) 2 Cal.4th 1148, 1188; People v. Benson (1990) 52 Cal.3d 754, 788.) In any event, Athanss claim fails on the merits because the California Supreme Court has rejected a due process challenge to section 1108. (People v. Falsetta (1999) 21 Cal.4th 903, 917-919, 922.)
Evidence Code section 1101 generally precludes admission of evidence about a defendants uncharged misconduct to show a propensity to commit the charged offense. Evidence Code section 1108, however, creates an exception to this principle. That statute provides in pertinent part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." The import of Evidence Code section 1108 is that a jury may now consider evidence of prior sex crimes "`for any relevant purpose [citation], subject only to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505-506; People v. Falsetta, supra, 21 Cal.4th at pp. 912, 917-919; People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
A determination under Evidence Code section 352 is entrusted to the sound discretion of the trial court and will not be overturned except upon a finding of manifest abuse, i.e., a conclusion that the decision was "palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; People v. Waidla (2000) 22 Cal.4th 690, 724.) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome (People v. Waidla, supra, at p. 724), and uniquely tends to evoke an emotional bias against the defendant without regard to relevance. (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) Among the factors a trial court may consider are the nature of the uncharged misconduct, its relevance to the current proceeding, its remoteness, the degree of certainty the defendant committed the uncharged crime, the likelihood of confusing or distracting jurors from the main inquiry before them, the similarity of the uncharged offense to the charged offense, the burden on the defendant in defending against the uncharged offense, the existence of less prejudicial alternatives, and the possible exclusion of inflammatory details surrounding the uncharged offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
The evidence of the crimes against Kimberly M. was not more prejudicial than probative. "Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense." (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) This was especially true in the instant case, where Athanss defense to the charged crime was that Heather was not a credible witness. The two offenses were close in time; the incident involving Kimberly M. occurred less than two weeks after Athans raped Heather. The Kimberly M. incident was no more inflammatory than the charged crime. Heather was actually raped; Kimberly was not. (People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Branch (2001) 91 Cal.App.4th 274, 283-284; People v. Callahan (1999) 74 Cal.App.4th 356, 371.) The jury was not told "one way or the other about any legal action which may have resulted" from the Kimberly M. incident, decreasing the likelihood that it would convict to punish Athans for his offenses against Kimberly M. (People v. Callahan, supra, 74 Cal.App.4th at p. 371.) While the jury was required to determine whether the Kimberly M. incident occurred as she described, this issue was straightforward and purely a question of credibility. There was little likelihood the jury would become confused or distracted. Finally, the evidence of the incident involving Kimberly M. did not consume a great deal of time. The entire direct and cross-examination of Kimberly was brief and to the point and occupied only 24 pages of transcript. (People v. Branch, supra, 91 Cal.App.4th at pp. 285-286; People v. Callahan, supra, 74 Cal.App.4th at p. 371.) On balance, we cannot say the trial court abused its discretion.
Athans makes several arguments in support of his contention, none persuasive. First, he argues that the evidence of the Kimberly M. incident lacked probative value. To the contrary, as we have noted, evidence that a defendant committed or attempted other sexual offenses is ipso facto highly relevant in a prosecution for another sexual offense. (People v. Fitch, supra, 55 Cal.App.4th at p. 179.) When enacting Evidence Code section 1108, the Legislature declared, "`the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness. [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 983; People v. Callahan, supra, 74 Cal.App.4th at p. 367.) As the California Supreme Court recently reiterated in People v. Reliford, supra, 29 Cal.4th at p. 1012, "[p]rior to the enactment of Evidence Code section 1108, evidence showing the defendants [propensity to commit sex crimes] was excluded `"`not because it has no appreciable probative value, but because it has too much." [Citation.]" (Id. at p. 1012, italics omitted; People v. Falsetta, supra, 21 Cal.4th at p. 915; People v. Fitch, supra, 55 Cal.App.4th at p. 179.)
Athans further argues that the two incidents were too dissimilar to allow a finding that the evidence was probative. But, the similarity requirement for evidence admitted pursuant to Evidence Code section 1101, subdivision (b) does not apply to Evidence Code section 1108. While the similarity between the charged and uncharged offenses may be a factor weighed in the Evidence Code section 352 calculus when evidence is offered under Evidence Code section 1108, it is not dispositive. (People v. Britt, supra, 104 Cal.App.4th at p. 506; People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; People v. Soto, supra, 64 Cal.App.4th at p. 984.)
People v. Harris (1998) 60 Cal.App.4th 727, cited by Athans, is distinguishable. Harris found evidence of a prior sexual crime, admitted under Evidence Code section 1108, was unduly prejudicial. (Id. at p. 741.) There, a male mental health nurse was accused of fondling and kissing two patients, one of whom had engaged in consensual sexual relations with him on a different occasion. The prior crime was committed 23 years before the charged offenses. (Id. at p. 739.) The details of the prior crime were "inflammatory in the extreme" (id. at p. 738, italics original) and were highly dissimilar to the charged offenses. In the charged offenses, the defendant "licked and fondled an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him. Although the assaults described [by the victims in the charged offenses were] criminal, involving a breach of trust by a caregiver, the abuse the victims suffered is, unfortunately, not unusual or shocking. On the other hand, the evidence of the [prior] incident described a viciously beaten and bloody victim who as far as the jury knew was a stranger to the defendant." (Id. at p. 738.) "The charged crimes involving a breach of trust and the `taking advantage of two emotionally and physically vulnerable women [were] of a significantly different nature and quality than the violent and perverse attack on a stranger" in the prior crime. (Ibid.) The prior conduct was therefore "not particularly probative of the defendants predisposition to commit `breach of trust sex crimes." (Id. at pp. 740-741.) Moreover, the jury was told that the defendant was convicted of burglary in the prior incident, but not rape, suggesting to the jury that the rape victim in the prior incident was "unrevenged." (Id. at p. 738.)
In contrast, as we have explained, the incident involving Kimberly M. occurred soon after the attack on Kimberly and was not more inflammatory than the current charges. There were some limited but significant similarities between the two crimes in the instant case. Athans committed both crimes against adult women, in locations in which they were alone and vulnerable (a womens bathroom, the interior of his car); both victims were strangers to him; and he used moderate physical force, but not a weapon. In contrast to the situation in Harris, here the sex crimes were of the same character: assaults on strangers in which the defendant used moderate physical force. While there were certainly dissimilarities between the two incidents, there was not the fundamental difference in the character of the crimes as in Harris. Also in contrast to Harris, the jury here was not given any information regarding the outcome of the Kimberly M. incident. (People v. Callahan, supra, 74 Cal.App.4th at p. 371 [distinguishing Harris].)
Athans further argues that evidence of the incident involving Kimberly M. was not probative because the Kimberly M. incident occurred after his attack on Heather. As Athans acknowledges, however, caselaw is to the contrary. (People v. Balcom (1994) 7 Cal.4th 414, 425-426 ["`If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense. [Citation.]"]; People v. Garcia (2001) 89 Cal.App.4th 1321, 1335 [although most cases deal with the admissibility of evidence of prior crimes, "evidence of crimes or misconduct committed after the charged incident may also have relevance"].)
Finally, Athans argues that the Kimberly M. evidence was merely cumulative, in that "Heather was available and testified at length regarding the charged offense" and the testimony of other witnesses corroborated her allegations. Evidence does not necessarily become cumulative, however, simply because some other evidence is sufficient to establish the elements of the crime. The Kimberly M. incident was the only evidence that Athans had a propensity to commit, or did commit, other sex crimes. Moreover, unlike in People v. Ewoldt, supra, 7 Cal.4th at pp. 405-406, the evidence cannot be considered cumulative because offered on an undisputed issue. Here, in contrast to Ewoldt, Athanss defense was that no crime occurred.
2. The trial court did not err by failing to order a competency hearing.
a. Additional facts.
On December 31, 2001, Athans changed his plea to not guilty by reason of insanity and a psychiatrist was appointed to examine him and report his findings. Athans subsequently withdrew his plea and the psychiatric appointment was accordingly set aside.
Kimberly M. testified on Friday, February 22, 2002. While Kimberly was testifying during the Evidence Code section 402 hearing, Athans made several disruptive and rude comments to her, despite the trial courts repeated admonitions. When Kimberly testified that Athans had lunged toward her, Athans interjected, "Thats a lie." When she stated that he choked her, he exclaimed, "Youre a God damn liar. I never laid a hand on you, and you know it" and "I didnt lay a hand on you." He also called Kimberly a "fucking liar." When Kimberly stated she screamed for help, Athans stated, "Do me [a] favor. Beat the shit out of that bitch on her way out. Lying sack of shit." Athans was at that point excluded from the hearing.
Athans was allowed back in the courtroom for the attorneys arguments regarding the admissibility of Kimberly M.s testimony. Athans indicated he understood he would be excluded if he continued to have outbursts. Athans was silent while the attorneys argued. When the trial court ruled Kimberlys testimony was admissible, it also admonished Athans to refrain from outbursts. Athans stated, "This is a sad day. A very sad day."
Defense counsel was allowed a brief recess to speak with Athans. Counsel then informed the court, "Its my feeling, talking to Mr. Athans, he is completely irrational. He is incapable of cooperating or aiding counsel at this time. [¶] I think hes had a mental breakdown because of this testimony. Hes completely irrational. He is having mental problems at this time. I cant even communicate with him. [¶] So I dont see how I can continue to represent him with the state hes in right now." Defense counsel asked the trial court to declare a mistrial and refer Athans for mental observation. The trial court denied the request.
Shortly thereafter, the trial court explained, "I need to make an additional record. This is just my viewpoint. [¶] And I highly respect Mr. Donohue [defense counsel]. But I understand his request for [section] 1368 proceedings. [¶] And I think Mr. Athans, in the courts view, based upon my observations of him, his demeanor throughout the trial, obviously was upset with what Kimberly [M.] said. [¶] He does believe shes lying. But I think its his way of acting out. And thats just the court[s] take. [¶] Thats why Im not accepting [defense counsels] declaration to declare a mistrial and conduct a [section] 1368 hearing. [¶] I think Mr. Athans, based upon my observations over the entire trial, kind of knows how to push [the] courts and bailiffs button[s]."
Defense counsel responded, "Just looking at Mr. Athans since Kimberly M. testified, hes a completely different person. [& para;] I cant speak to him at all. Hes completely incoherent. His face is rigid. Hes like shaking. [¶] Its like hes having almost a seizure. [¶] And I cant communicate with him at all at this point." The trial court indicated it would continue to observe Athans, but did not share counsels view that Athans was "quite that catatonic."
Kimberly M. testified in front of the jury. During direct examination, Athans interjected, "Are you making this up as you go along?" and "For goodness sake, woman. Tell the truth, why dont you?" The trial court admonished Athans to be quiet. Shortly thereafter, in response to Kimberlys testimony that she grabbed his shirt and punched him, Athans interjected, "Ive never heard the like. Im sorry." When the prosecutor showed Kimberly photographs depicting scratches on her neck sustained during Athanss attack, Athans interjected, "Men dont scratch. Only women do." After direct examination, the jurors were excused for a brief recess so defense counsel could ask Kimberly several questions out of the jurys presence. Athans said to Kimberly, "Put those scratches on your neck. Put those scratches on your neck."
After Kimberlys testimony, and out of the presence of the jury, the trial court stated that it had been making a point of observing Athans; the court could see Athans directly from its vantage point; Athans had smiled at his attorney and nodded his head; when Kimberly left the witness stand, Athans "was animated with his attorney; asking him questions, what about this, what about that. [¶] So the court sees communication between [defense counsel] and Mr. Athans." Defense counsel responded, "What the court [is] seeing is a complete breakdown in communication between Mr. Athans and his attorney. [¶] I cannot communicate with him. And Im getting no cooperation whatsoever from him. [¶] Hes at this point more of a detriment to his case than an asset. Hes completely uncooperative in working with me."
Another witness testified, and Athans did not engage in further outbursts. The next court day, Monday, February 25, 2002, two other witnesses testified without interruption by Athans. The court stated: "I need the record to reflect that I know Mr. Athans was very upset Friday afternoon. [¶] Particularly what upset him was the testimony of Kimberly M. [¶] Today, he seems much more composed. I have observed him communicating with counsel, making notes. I think his mood is much better." Defense counsel stated, "He is communicating with counsel. The only thing I would put on the record is at times — I dont know if were both sitting in the same courtroom. [¶] It seems that he either doesnt hear things, or doesnt know whats going on. Because he is asking me questions that are inappropriate, and are like — asked by somebody that either isnt paying attention, or isnt here."
b. Discussion.
Athans asserts that the trial court abused its discretion by failing to order a competency hearing. He posits that his outbursts, his withdrawn not guilty by reason of insanity plea, and defense counsels observations and opinions, constituted substantial evidence of his incompetence to stand trial. We disagree.
A defendant who, as a result of mental disorder or developmental disability, is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner is incompetent to stand trial. (§ 1367; People v. Koontz (2002) 27 Cal.4th 1041, 1063.) Trial of an incompetent defendant violates due process. (People v. Weaver (2001) 26 Cal.4th 876, 903; People v. Kelly (1992) 1 Cal.4th 495, 542.) The defendant is presumed competent and bears the burden of proving incompetence by a preponderance of the evidence. (§ 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31.)
When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a competency hearing. (§ 1368; People v. Koontz, supra, 27 Cal.4th at p. 1063; People v. Frye (1998) 18 Cal.4th 894, 951; People v. Kelly, supra, 1 Cal.4th at p. 542.) Substantial evidence is that which raises a reasonable doubt about the defendants competence to stand trial. (People v. Koontz, supra, at p. 1064; People v. Frye, supra, at p. 952; People v. Kelly, supra, at p. 542.) A judge is not compelled to order a competency hearing based only upon defense counsels opinion that the defendant is incompetent, but must take into consideration all the relevant circumstances, including counsels opinion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112; People v. Castro (2000) 78 Cal.App.4th 1402, 1415.) The courts duty to conduct a competency hearing arises when such evidence is presented at any time prior to judgment. (§ 1368, subd. (a); People v. Kelly, supra, 1 Cal.4th at p. 542.) In reviewing a determination regarding competence, we view the record in the light most favorable to the determination, and uphold it if it is supported by substantial evidence. (People v. Marshall, supra, 15 Cal.4th at p. 31.)
Applying these principles to the record before us, we discern no abuse of discretion. Athanss outbursts, and his purported refusal to communicate with counsel, did not indicate incompetence. A defendants refusal to assist in his own defense does not necessarily indicate incompetence. (People v. Medina (1995) 11 Cal.4th 694, 735 [defendants cursing and disruptive behavior during trial displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so].) "`"[M]ore is required to raise a doubt [regarding the defendants competence] than mere bizarre actions [citation] or bizarre statements [citation] . . . or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense [citation]." [Citation.]" (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Koontz, supra, 27 Cal.4th at p. 1064 [even if defendants rambling, marginally relevant speeches evidenced some form of mental illness, they did not show he lacked an understanding of the nature of proceedings or was unable to assist in his defense]; People v. Castro, supra, 78 Cal.App.4th at p. 1415.)
The court concluded Athanss conduct was not the result of a lack of competence, but instead was due to Athanss displeasure with Kimberlys inculpatory testimony. The trial court noted it had observed Athanss behavior and did not concur with defense counsels conclusions. Nothing in the record, other than the aforementioned outbursts and counsels statements, points to a hint of incompetence. Athans makes no showing that he had a history of psychiatric problems or substance abuse, was taking medication, or had ever been diagnosed as having any type of psychiatric problem. Athanss outbursts, while inappropriate, did not so much demonstrate incompetence as his bad judgment and temper. The outbursts were directly responsive to Kimberlys testimony, showing Athans was well aware of what was transpiring and alert enough to recognize the inculpatory value of her statements.
People v. Koontz, supra, 27 Cal.4th at page 1066, rejected an argument similar to Athanss. The Koontz defendant asserted that his statements at trial were paranoid and demonstrated incompetency. To the contrary, Koontz found the argument "overlooks the context of the cited remarks: When he complained of unfairness, defendant was undergoing cross-examination by the prosecutor and the course of trial evidently was not proceeding entirely to his liking." The record therefore lacked substantial evidence of incompetence. (Ibid.) The same is true here.
Athanss physical demeanor — his purportedly rigid face and shaking — easily support the trial courts conclusion that Athans was upset and angry, not incompetent. Defense counsels belief that Athans was incompetent was based upon Athanss behavior during an extremely brief period of time, not upon a pattern of irrational behavior or a history of mental illness. The Monday after Athanss outbursts, the court observed that Athans was more composed and was communicating with counsel. Counsel concurred that Athans was communicating with him at that point. Indeed, that same Monday defense counsel indicated, near the conclusion of a witnesss testimony, that he wished to ask an additional question "To satisfy my client," showing that Athans was communicating with counsel, cooperating in his own defense, and aware of and involved in the proceedings.
In the absence of substantial evidence that Athans was unable to understand the nature and purpose of the proceedings, the decision not to order a section 1368 hearing was properly left to the courts discretion. (People v. Welch (1999) 20 Cal.4th 701, 742; People v. Gallego (1990) 52 Cal.3d 115, 162.) We discern no abuse.
3. Instruction with CALJIC No. 2.50.01 was not error.
Athans next asserts that the trial court erred by instructing with CALJIC No. 2.50.01, which informed the jury that it could infer from evidence of Athanss other sexual offense that he had a predisposition to commit the charged crime. Athans argues that the instruction was constitutionally infirm because it denied his rights to due process and a fair trial. Athanss contention, however, was considered and rejected in People v. Reliford, supra, 29 Cal.4th 1007, decided after Athanss opening brief was filed. Reliford concluded that "the 1999 version of CALJIC No. 2.50.01 correctly states the law" (id. at p. 1009), and rejected the argument that the instruction impermissibly dilutes the Peoples burden of proof or misleads the jury concerning the purposes for which the evidence may be considered. (Id. at pp. 1013-1016.) Athanss jury was instructed with the 2001 revision of CALJIC No. 2.50.01, which was essentially the same as the instruction given in Reliford. Athanss claim of instructional error therefore lacks merit.
That instruction provided, in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] . . . [¶] If you find that the defendant committed a sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide. [¶] You must not consider this evidence for any other purpose."
4. The trial court did not err by failing to give a Mayberry instruction.
The trial court instructed the jury that an element of the crime of rape was that sexual intercourse was perpetrated against the victims will, i.e., without the victims consent. (CALJIC No. 10.00.) It declined to instruct with CALJIC No. 10.65, which would have informed the jury that a reasonable and good faith belief the victim voluntarily consented to engage in the sexual activity was a defense to rape, because there was insufficient evidence to support such a finding. Athans asserts that this was prejudicial error, as substantial evidence supported the instruction. He posits that because "there was conduct by the alleged victim which was sufficiently equivocal in regard to consent," the instruction was required. This contention lacks merit.
The standard version of CALJIC No. 10.65 provides in pertinent part: "In the crime of [rape] . . . criminal intent must exist at the time of the commission of the [crime]. 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 conduct]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge. [¶] However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another is not a reasonable good faith belief."
A defendants reasonable and good faith mistake of fact regarding a persons consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 Cal.4th 354, 360; People v. Mayberry (1975) 15 Cal.3d 143, 155.) "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 victims 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 defendants 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 . . . ." (People v. Williams, supra, at pp. 360-361, fn. omitted; People v. Maury (2003) 30 Cal.4th 342, 424.) The defendant carries the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief that the victim consented. (People v. Williams, supra, at p. 361.)
A trial court must give a Mayberry instruction whenever there is substantial evidence of equivocal conduct that the defendant could reasonably and in good faith have relied upon to form a mistaken belief of consent. (Id. at p. 364.)
People v. Williams, supra, 4 Cal.4th at pp. 361-362, governs this case. In Williams, the court rejected a claim that the trial court erred by failing to give a Mayberry instruction. It reasoned, "there was no substantial evidence supporting a Mayberry instruction. Williams [the defendant] testified that Deborah [the victim] initiated sexual contact, fondled him to overcome his impotence, and inserted his penis inside herself. This testimony, if believed, established actual consent. In contrast, Deborah testified that the sexual encounter occurred only after Williams blocked her attempt to leave, punched her in the eye, pushed her onto the bed, and ordered her to take her clothes off, warning her that he did not like to hurt people. This testimony, if believed, would preclude any reasonable belief of consent. These wholly divergent accounts create no middle ground from which Williams could argue he reasonably misinterpreted Deborahs conduct. [Citations.] There was no substantial evidence of equivocal conduct warranting an instruction as to reasonable and good faith, but mistaken, belief of consent to intercourse." (Id. at p. 362.)
The same is true here. Heather testified that she unequivocally told Athans she would not engage in sexual intercourse with him; that he refused to let her exit the car; he pulled her hair and pinned her arms while she struggled; and she kept up a steady stream of comments and protests to persuade him to stop the assault. As in Williams, this testimony, if believed, precluded any reasonable belief by Athans that Heather had voluntarily consented.
Athans, on the other hand, did not testify. Defense counsel never argued that Athans had an honest, reasonable belief that Heather consented to sexual relations. Instead, counsel argued that numerous inconsistent or incredible aspects of Heathers account of the event, her admitted actions before and after the rape, and her drug and alcohol use, indicated she was an unreliable witness and her testimony was not to be credited. He argued, "Whenever she needs to account for [her] whereabouts, she cries rape." Therefore, neither the evidence nor counsels argument suggested that Athans had a reasonable, honest, but mistaken belief that Heather consented to sexual intercourse. As in Williams, there was no middle ground from which Athans could argue he reasonably misinterpreted Heathers conduct. Accordingly, there was no substantial evidence supporting the requested instruction.
Athans argues that the following evidence supported the requested instruction: (1) Heather was an admitted alcoholic and drug user; (2) she asked a stranger for a ride to a liquor store at approximately 2:00 a.m.; (3) she had had an argument with her husband that evening; and (4) she later carried on a romantic relationship with a tow truck driver whom she flagged down the morning of the rape to take her to the police station. Athans also references evidence that (5) Heather described to a police officer how, after unsuccessfully attempting to resist the rape, she stated to Athans, "Fine, just dont hurt me"; (6) after Athans completed the rape he drove through a fast food establishment and tossed a $10 bill at Heather, which, according to a police officer, Heather kept; (7) there were no bruises or injuries on Heathers arms indicating she had been forcibly held down; and (8) Heather claimed to have been assaulted by male assailants in an unrelated incident that occurred several months after the charged crimes.
None of this evidence suggested that Athans had a reasonable, good faith, but mistaken belief Heather consented. The DNA evidence was strong proof Athans engaged in sexual intercourse with Heather. Some circumstantial evidence, including that Athans gave Heather $10 after the rape, which she kept, the lack of injury on her arms, and the fact that she voluntarily entered Athanss car at 2:00 a.m., considered together, could potentially have suggested to the jury that Heather actually consented to the sexual act for money.
This evidence did not, however, suggest Athans had a reasonable but mistaken belief Heather consented. Heathers solicitation of a ride from Athans, a stranger, at 2:00 in the morning, may have been foolhardy, but cannot be considered evidence supporting Athanss purported reasonable belief that she consented to sexual intercourse. This proposition — essentially that when a woman accepts a ride from a stranger, the driver may reasonably assume she has consented — is not tenable. People v. Williams, supra, 4 Cal.4th at p. 363, soundly rejected a similar argument. There the court of appeal had found substantial evidence to support a Mayberry instruction because the victim willingly accompanied the defendant to a hotel after spending several hours in his company, and did not object when the hotel clerk handed the defendant a bed sheet. Williams reasoned, "The relevant inquiry under Mayberry, however, is whether Williams believed Deborah consented to have intercourse, not whether she consented to spend time with him. To characterize the latter circumstance alone as a basis for a reasonable and good faith but mistaken belief in consent to intercourse is . . . to `revive the obsolete and repugnant idea that a woman loses her right to refuse sexual consent if she accompanies a man alone to a private place." (Id. at p. 363.)
Heathers subsequent relationship with the tow truck driver and report of a later assault could not have had any bearing on Athanss state of mind when considering whether Heather consented to sexual relations; these events did not occur until after the rape. Likewise, assuming arguendo that Heathers purported argument with her husband could have been the basis for a mistaken belief in consent, there was no showing Athans was aware Heather had had such an argument. Evidence that she was an alcoholic or lacked credibility was not substantial evidence requiring the instruction. (People v. Maury, supra, 30 Cal.4th at p. 425.)
Finally, Heathers statement, "Fine. Just dont hurt me," was not evidence that would have supported a Mayberry instruction. Heather made the statement after resisting and refusing Athanss advances, as detailed supra. No reasonable person would have considered Heathers statement, in this context, to constitute consent. Indeed, CALJIC No. 10.65 expressly states that a victims ambiguous conduct induced by force, violence, duress, menace, or fear of immediate and unlawful bodily injury, cannot be the basis for a reasonable, good faith belief the victim consented. Heathers statement could only have been understood by a reasonable person to mean that she would accede to Athanss demands to avoid his further use of force against her. In sum, the trial court properly declined to give the requested instruction because it was not supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J. and CROSKEY, J.