Opinion
H046381
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. RALPH JUNIOR BOBADILLA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17CR002094)
A jury found appellant Ralph Junior Bobadilla guilty of forcible rape and sexual penetration of Jane Doe. On appeal, Bobadilla faults his defense counsel for failing to move to strike testimony of a prosecution expert about the low likelihood of a false sexual assault allegation. In addition, he claims the trial court erred by refusing to instruct on the defense of reasonable belief in consent and that defense counsel was ineffective for conceding that the defense was not available for the sexual penetration charge. Bobadilla argues further that the cumulative effect of the alleged errors requires a reversal of the judgment. Finally, he requests that we order corrections to a minute order and the abstract of judgment because they include fines, fees, and assessments that the trial court did not actually impose at Bobadilla's sentencing.
For the reasons explained below, we affirm the judgment and direct the trial court to correct the minute order and abstract of judgment to accurately reflect the fines, fees, and assessments imposed.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
On October 10, 2017, the Monterey County District Attorney filed an information charging Bobadilla with forcible rape of Jane Doe (Pen. Code, § 261, subd. (a)(2) ; count 1) and sexual penetration of Jane Doe by a foreign object (§ 289, subd. (a)(1)(A); count 2). The jury heard the evidence from August 28, 2018, to August 31, 2018. On September 4, 2018, the jury found Bobadilla guilty as charged. At Bobadilla's sentencing on October 26, 2018, the trial court imposed concurrent, six-year prison sentences on each count, as well as various fines and fees.
Unspecified statutory references are to the Penal Code.
B. Trial Evidence
1. Overview
Bobadilla and Doe were coworkers at the Department of Motor Vehicles (DMV) in Monterey County. Bobadilla was engaged to be married to the daughter of another DMV coworker. One Friday night in August 2017, Bobadilla and Doe went to a party together. After the party, they returned to Bobadilla's house. There, according to Doe, Bobadilla digitally penetrated and forcibly raped her. Bobadilla testified in his own defense. He denied the digital penetration and said that the sexual intercourse with Doe was consensual. Bobadilla claimed he stopped the intercourse when he realized it was wrong to have sex with Doe while he was engaged to another woman.
2. The Prosecution Evidence
Doe moved to Monterey County in June 2017, when she began working at the DMV branch in Seaside. Bobadilla also worked at the DMV. Doe occasionally spoke with Bobadilla in the break room. Doe testified that she did not socialize with Bobadilla, was not attracted to him, and never flirted with him. At some point, Doe learned Bobadilla was engaged to be married.
All dates are in 2017 unless otherwise indicated.
On Friday, August 4, Doe spoke with a colleague about trying to meet more people in the area. The coworker said that Bobadilla had "cute friends" and "would be a good wingman." Later that day, Bobadilla approached Doe and said, " 'Hey, I heard you need a wingman.' " Bobadilla invited Doe to attend a party with him that night. They arranged to meet at Bobadilla's house and travel to the party together.
Doe arrived at Bobadilla's house around 8:00 p.m. She was not concerned about going to his house alone. Doe asked Bobadilla about his fiancée. Bobadilla said that she was at a bachelorette party in Las Vegas and knew he was going to a party with Doe. Bobadilla also said he wasn't "going to broadcast" that he was going to the party with Doe. Bobadilla was drinking alcohol and made a drink for Doe. After about 20 to 25 minutes, they left for the party in Bobadilla's car.
The party took place in Morgan Hill at the home of Bobadilla's friend Jesse McGraw. When Doe and Bobadilla arrived, about eight people were at the party. The partygoers socialized, danced, drank, and smoked marijuana. Doe had three drinks and one "hit" from a marijuana cigarette at the party.
At various times during the party, Doe and other women danced in ways that attendees described as "wild," "stripper" like, "provocative," a "little inappropriate," and a "little sexual." Doe's dance moves included "twerking," and she had a twerking/butt-shaking contest with another woman. Doe did not consider her dancing sexual, and it was not directed at anyone in particular. Other partygoers similarly testified that the dancing at the party was not sexually directed at specific people. At one point, Doe and McGraw simulated him performing oral sex on her. Doe said they were "joking around," and McGraw testified they were not indicating sexual interest in the other. The partygoers, including Doe and Bobadilla, laughed and took videos of the dancing. Doe handed her phone to Bobadilla and others for them to record her dancing. Doe intended to post the videos to her Snapchat social media account. Doe testified that she did not flirt with Bobadilla or have any contact of a sexual nature with him at the party. Partygoers testified they did not see anything of a sexual or flirtatious nature occur between Doe and Bobadilla.
During the party, at 1:00 a.m., someone sent a text message containing a video of Doe dancing from Doe's phone to Bobadilla. Doe testified that she did not send this message. Bobadilla responded by sending a message containing another video of Doe.
Sometime after 2:40 a.m. on Saturday, August 5, Bobadilla, Doe, and another woman, Yolanda Esquivel, left the party in Bobadilla's car. Doe was still under the influence of alcohol. Bobadilla did not appear intoxicated. Bobadilla and Doe dropped Esquivel off at her home and then continued to Bobadilla's house. Nothing sexual happened between Bobadilla and Doe during the drive.
When Doe and Bobadilla arrived at his house, Doe said she wanted to watch some television and sober up before driving herself home. Bobadilla told Doe she was welcome to stay the night, but Doe said she did not plan to do so.
Doe put her purse down on the home's bar and sat on the couch. Bobadilla sat on the couch with Doe, and they watched TV. At one point, Bobadilla left for a few minutes, changed into a t-shirt and boxer shorts, and then returned to the couch. He offered Doe some pajamas. Doe found the offer odd because she had already told Bobadilla she was not going to spend the night.
Doe had her legs stretched out on the couch, but they were not touching Bobadilla. Bobadilla reached over and tapped Doe's stomach, remarking that she had a hard stomach. Doe replied that she did not work out but had good genes. Bobadilla tapped Doe's stomach again, before moving his hand lower down her abdomen. Doe told Bobadilla that he had "wandering hands" and that it was time for her to go. She felt "really uncomfortable" and figured Bobadilla was "trying to make a move" on her. Doe stood up. Bobadilla pulled her back on top of him and told her to give him a lap dance. Doe pushed herself off of Bobadilla and began walking toward her purse.
As Doe walked away, Bobadilla approached her from behind, put his hand down the back of her jeans, inserted his fingers into her vagina, and moved them in and out. Doe told Bobadilla, " 'No. You're engaged. We're coworkers. Stop.' " Doe kept trying to tell Bobadilla to stop, but he did not respond verbally and kept his fingers inside her vagina. As Doe neared the wall where the bar and her purse were located, she and Bobadilla fell to the floor. Doe was on her hands and knees. She crawled up the wall and put her hands on the bar and her purse. Bobadilla removed his fingers. Doe was afraid; she froze and thought about how she could leave. Seconds later, Bobadilla pulled Doe's jeans down to her thighs and put his penis into her vagina. Doe repeatedly told Bobadilla, " 'No, stop. You're engaged.' " She thought those words would cause Bobadilla to stop because he would realize what he was doing was wrong. However, Bobadilla stopped only when Doe finally turned and pulled herself off of him. Doe turned around, and they looked at each other. Doe, not wanting to believe that Bobadilla had raped her, told Bobadilla, "that didn't happen." Bobadilla was panting and said, " 'I'm so sorry.' " Doe left and drove herself home around 3:30 or 4:00 a.m. She was not completely sober but felt she "had to get home." Doe testified that she did not consent or indicate in any way that she was consenting to the sexual contact.
Bobadilla and Doe exchanged several text messages that morning. At 4:08 a.m., Bobadilla texted, " 'Man, I'm sorry, [Jane Doe].' " Doe texted, " 'That didn't happen. And you are not married. And you didn't . . .' " With that text, Doe wanted to pretend as if nothing had happened, to let Bobadilla know she was not trying to mess with his relationship, and to note that Bobadilla did not ejaculate. In another text Doe asked Bobadilla if he ejaculated in her. She then wrote, " 'Nothing happened,' " in response to Bobadilla saying that he did not ejaculate inside her. Doe also texted, " 'Nothing happened. We hung out and drank and I watched TV and I went home.' " Doe testified that this was "the story" she wanted to believe.
Doe deleted the text messages she exchanged with Bobadilla between Friday August 4, and Saturday, August 5. Doe did not delete the text messages she later exchanged with Bobadilla on Wednesday, August 9. Doe subsequently gave her cell phone to the police and they recovered the deleted text messages from her phone.
After Doe again asked Bobadilla if he had ejaculated in her, Bobadilla responded that he was "certain" he had not and wrote " 'If there's anything else to help you ease your mind, let me know.' " Doe responded, " 'Make sure there is no makeup [on] your couch or hair.' " Doe did not want anyone to know she had been at Bobadilla's house. She did not want to "be involved in any kind of drama" or "deal with what happened" to her. At one point during their text message exchange Bobadilla asked, " 'We still coo[l], though?' " Doe replied, " 'Yeah. Good night.' "
Later that morning, at 9:48 a.m., Doe texted Bobadilla that she might have left her contact lens solution at his house and told him to throw it away. When Bobadilla asked " 'What are you doing today?' " Doe replied, " 'Going on random adventures.' " Doe gave this response because she "wanted to pretend like everything was okay." This was the last text message Doe sent Bobadilla that day.
Doe also exchanged text messages with Esquivel on the Saturday morning, following the party. They discussed socializing in the future. In a message sent at 11:38 a.m., Doe wrote: " 'Last night was fun. We should definitely do the City.' " Doe was in a good mood when she sent the messages to Esquivel, and Doe knew that Esquivel was friends with Bobadilla.
Doe spent Saturday evening at a restaurant in Hayward. She also made a video collage that included Bobadilla from videos recorded at the party. On Sunday, August 6, Doe walked around Jack London Square in Oakland.
On Monday, August 7, Doe went to work. She performed her normal routine there and had only a brief interaction with Bobadilla when he said good morning. She tried to avoid him. Doe did not go to work on Tuesday, August 8, because she had not been able to sleep the night before. After getting home from work on Monday, she "started thinking about what happened on Saturday morning" and she "just felt really low" and "wanted to run away." At around 9:00 p.m. on Tuesday, Doe used her phone to search the term " 'rape' " online. Doe also reached out to a friend and told the friend what had happened and asked the friend for advice about what to do.
About 6:00 a.m. on Wednesday, August 9, Doe used her phone to access the website of Planned Parenthood. Doe went to work on Wednesday. That afternoon she saw Bobadilla and told him that what he had done to her was "not cool." Bobadilla replied, " 'Yeah, we should really talk about that.' " Doe was upset by Bobadilla's "nonchalant" response and told him there was nothing to talk about. She went to the restroom and cried. Doe left work around 2:30 or 3:00 p.m., after asking herself, "why am I trying to work when I can't even function correctly?"
At 2:47 p.m., Doe sent Bobadilla a text message: " 'You know that's considered rape, right?' " She continued, " 'You took advantage of me. You knew I was drunk and you were sober. I was trying to fucking leave.' " Doe went that day to a Planned Parenthood office "to get tested," but was told she had to go to the hospital. At the hospital, staff contacted police. As Doe waited for the police to arrive, she received text messages from Bobadilla. Bobadilla tried to get Doe to discuss her earlier texts messages to him.
On the morning of Thursday, August 10, Doe went to the Salinas Police Department. Doe and Detective Byron Gansen made a pretext phone call to Bobadilla. When Doe asked Bobadilla to tell her what happened, Bobadilla said that, at the party, he ingested what he thought was cocaine but later learned was methamphetamine. He mentioned his methamphetamine use several times. During the call, Doe told Bobadilla that he digitally penetrated and raped her. Bobadilla stated that he did not completely remember what had happened at his house after the party. He talked about some of the things he did recall, but said he did not remember digitally penetrating or raping Doe. Detective Gansen interviewed Bobadilla on Thursday afternoon. Bobadilla made screenshots of the text messages he had exchanged with Doe and sent them to Gansen.
The prosecution played a recording of the pretext call for the jury and presented the jury with a transcript of the call. The recording was admitted into evidence; the transcript was not.
Kimberly Birdsong testified for the prosecution as an expert on trauma and sexual assault, their effects on the human body, and the common characteristics of and misperceptions about sexual assault and trauma victims. Birdsong is a consultant and counselor who works part-time with victims of sexual assault at the Monterey County Rape Crisis Center. Birdsong had not met Doe and was not familiar with the case.
Birdsong testified that trauma, like that related to sexual assault, overwhelms a person's basic coping skills and capacity to respond and affects thinking and memory. Birdsong explained that people may "think if we're under some kind of a threat, that we're going to fight to the death to keep it from happening to us, especially with a rape." However, "[v]ery often people in sexual assaults do nothing. . . . because those kinds of decisions actually aren't under your conscious control. Your brain does that for you. It's a protection mechanism." Some people have a hard time admitting that they were sexually assaulted because "[i]t's an overwhelming thing to have to come to grips with." Post-assault responses of victims can vary widely. The extent and timing of disclosure is variable and can be affected by feelings of guilt and responsibility or how the person is received when telling someone about the assault. People may openly express their emotional responses, minimize what happened, try to avoid thinking about the assault, avoid places or people that remind them of the assault, have angry outbursts, or become very moody. Most of the people Birdsong counsels come to realize something happened to them and they seek help, sometimes immediately or sometimes years later.
We discuss further testimony by Birdsong as it pertains to the likelihood of a false sexual assault allegation in detail below.
3. The Defense Case
Bobadilla testified that he and Doe were "[f]lirty friends." Although the flirting made Bobadilla feel uncomfortable initially, he later found it "kind of flattering" and felt that Doe was romantically interested in him.
On Friday, August 4, Doe approached Bobadilla at the end of the work day and said " 'I heard you're a good wingman.['] " Bobadilla understood the term " 'wingman' " to mean someone who helps another "pick up on guys and hook up with guys" sexually. Bobadilla and Doe discussed possibly going to a club or a bar together. Bobadilla told Doe that his fiancée was out of town at her bachelorette party.
Later that evening, after Bobadilla missed a call and a text message from Doe, he called Doe and told her they were not going out to a bar or club. After Bobadilla told Doe that he was headed to a friend's house for a barbecue that night, Doe "[p]retty much" invited herself and he "couldn't say no." They arranged for Doe to drive to Bobadilla's house and for Bobadilla to drive them to the party. After eating, having a drink, and talking for a while at Bobadilla's house, they left for the party.
Around 1:00 a.m. on Saturday, Bobadilla responded to a text message that contained a video of Doe and other women dancing by sending Doe a video he had taken of her dancing in front of him. At one point during the party, Doe had given her phone to Bobadilla and asked him to record her dancing. During that dance, Doe pulled down her pants and exposed a bite mark on her rear end. In addition, Doe sat with Bobadilla on a couch a couple of times, leaned on him, showed him videos, and put her legs over his lap. This made Bobadilla feel that they were "more than just friends now." Based on their flirting, the permission Doe gave to Bobadilla to record her dancing, and the video sent from Doe's phone to Bobadilla, Bobadilla felt he and Doe were "a step closer" to "hooking up."
When they returned to his house from the party, Bobadilla asked Doe if she was "okay to drive home," and Doe said she just needed to use the restroom. Bobadilla got himself water and a drink and placed them both on the coffee table in the living room. Doe declined a drink. After turning on the television, Bobadilla went to his bedroom to use the restroom. He changed into basketball shorts and a t-shirt. When Bobadilla returned to the living room, Doe was lying on the couch.
Doe moved her legs out of the way, Bobadilla sat down on the couch, and Doe placed her legs over his lap and groin area. Doe's actions prompted Bobadilla to think more about "hooking up," and he became aroused. Bobadilla then touched and rubbed Doe's stomach. Doe "kind of giggl[ed]" and told Bobadilla that he had wandering hands.
Bobadilla was tired, so he closed his eyes for what seemed like a second. Doe shook him awake and moved her legs. Doe then said, " 'I gotta go.' " Instead of leaving, Doe got up, sat on Bobadilla's lap, and "started . . . pretty much like giving [him] a lap dance." Doe's sexual motions turned Bobadilla on, and he thought to himself "we're about to have sex and no one's going to know." Doe then stood up, unbuttoned her pants, and pulled them down. At the same time, Bobadilla pulled down his shorts, and they began having sex on the couch. Bobadilla testified that he did not put his hands down Doe's pants or digitally penetrate her.
After about 20 or 30 seconds of intercourse, Bobadilla realized that "this wasn't right," so he "kind of pushed [Doe] off." Doe looked at Bobadilla "with a different look, like kind of . . . a smirk" and said, " 'Oh, I forgot, you have a [fiancée].' " Doe had an "upset look," and Bobadilla felt that Doe's attitude had changed.
Doe said she wanted to go home. Bobadilla felt bad, began apologizing to Doe, and asked her if she was okay to drive. Doe "kept kind of like . . . pushing [Bobadilla] aside and saying, 'I'm fine; I'm fine.' " Bobadilla felt that Doe was mad because he "stopped having sex with her." Bobadilla testified that he said he was sorry to Doe because he "just cheated on [his fiancée], now wife" and would see his mother-in-law often because she also worked at the DMV. When he texted " 'Man, I'm sorry, I feel like an ass now,' " he was referring to having cheated on his fiancée. Bobadilla said that he obsesses over his wrongdoings and is "[a]bsolutely" an "over apologizer." He was concerned that his fiancée and mother-in-law would find out about what happened, and some of his texting with Doe was to see that she was okay and was not going to tell anybody about what had occurred.
Bobadilla saw Doe at work on Monday, August 7. Doe did not react toward him in any way that suggested she was upset with him. On Wednesday, August 9, Bobadilla "kind of bumped [into]" Doe at a door as she was leaving and he was returning from lunch. Bobadilla said, " 'Sorry.' " Doe replied, " 'That's not cool.' " This incident prompted Bobadilla to text Doe and ask her, " 'Can we talk?' " He was still feeling guilty and worried that his fiancée and mother-in-law would find out that he had sex with Doe. Doe responded, " 'You know that's considered rape, right?' " Bobadilla was shocked, hurt, scared, and afraid his fiancée was going to find out what happened.
Bobadilla admitted that when he spoke with Doe during the pretext call on Thursday, August 10, he lied when he repeatedly said he did not remember what had happened. Bobadilla did not deny Doe's accusations during the call, because he did not want to upset her and was concerned that answering would prompt her to tell his fiancée what had occurred. Bobadilla also was scared, panicking, and thinking about his fiancée when he later spoke to Detective Gansen. Bobadilla admitted that he told Detective Gansen some things that were not true, because he did not want his fiancée and mother-in-law to find out what had happened. In addition, Bobadilla testified that he did not believe he was "entitled to sex" with Doe, and he agreed "that women have the right to say no, no matter what flirting they've done before."
On cross-examination, Bobadilla testified that, when he spoke to Detective Gansen, he knew consensual sex was not a crime. Bobadilla said he lied to Detective Gansen when he said he did not have consensual sex with Doe. In addition, Bobadilla denied that he lied to his supervisor regarding the reason he left work shortly after he bumped into Doe on Wednesday afternoon.
In its rebuttal case, the prosecution presented testimony from Bobadilla's office manager that Bobadilla said he was going to a pharmacy to get medication for his allergies that day and did not return to work.
Bobadilla testified further on cross-examination that he was drunk on the night of the party, but not "super drunk." He had "maybe five" drinks during the "whole evening." In addition, about 30 minutes after he arrived at the party, Bobadilla "tried" cocaine with his friend Robert Austin, not knowing "exactly what it was."
Bobadilla also said the following about the substance he ingested: "I thought it was meth, but it ended up not being."; "Well, I believe it was coke, but it wasn't like I was 'doing' it. I tried it."; and when Bobadilla told Doe he had done methamphetamine, he "thought it was meth . . . ." Austin, however, testified that he did not do any drugs at the party and did not see any other drugs being used other than marijuana.
Three DMV employees testified that they had witnessed an incident in which Doe flirted with Bobadilla at work. One of these witnesses testified that she did not see anything unusual about Doe's or Bobadilla's demeanor or notice any friction between them at work on Monday, August 7. A fourth DMV employee testified that she did not notice anything unusual about Doe's demeanor on Monday, August 7, or on Tuesday, August 8. Bobadilla, however, "seemed a little distracted." This employee also testified that she did not witness the flirting incident recounted by her three colleagues, but she did see Doe act in a flirtatious manner toward Bobadilla.
II. DISCUSSION
Bobadilla raises five claims on appeal. He contends his defense counsel provided ineffective assistance when he failed to move to strike certain testimony of the prosecution's expert about the low likelihood of a false sexual assault allegation. Bobadilla claims further that the trial court erred by refusing to instruct on the defense of reasonable mistake of fact regarding Doe's consent to the acts charged in counts 1 and 2. Relatedly, he contends that, to the extent his defense counsel forfeited the mistake-of-fact instructional claim as to count 2, defense counsel's actions amounted to ineffective assistance. Bobadilla also maintains that the cumulative effect of the alleged errors requires a reversal of the judgment. Lastly, Bobadilla requests that we order corrections to a minute order and the abstract of judgment because they include fines and fees that the trial court did not impose.
A. Ineffective Assistance Regarding the Prosecution's Expert Witness
1. Background
The prosecutor moved in limine to present the expert testimony of Kimberly Birdsong. Defense counsel opposed the motion arguing that the varied response of trauma survivors is "an entirely uncontroversial topic" and not "something that's outside the common understanding of a jury." The trial court ruled the prosecutor could present Birdsong's testimony, noting that "delayed reporting and talking about how a woman acts during a rape, after a rape, and how she mentally and emotionally processes that rape . . . [is] outside of the regular understanding of most jurors who have not gone through such things."
During cross-examination at trial, Birdsong gave three answers that Bobadilla—on appeal—identifies as "asserting that a false rape allegation was an unlikely event." The first answer came when defense counsel questioned Birdsong about her work as a counselor in a therapeutic setting:
The identified answers are italicized in the below-quoted excerpts of Birdsong's testimony.
"Q. [The prosecutor] asked you some questions about when you're talking to individuals seeking your assistance, if it was in sort of a therapeutic setting. Do you remember a question like that?
"A. The agency is very home-like in that Monterey office, so we have a counseling room. And very often we're sitting across from each other in a setting like that.
"Q. Okay. But you used the word you were there to listen. Is that fair, that when people are coming and disclosing things to you or seeking counseling for a crisis and trauma, that you are there to listen?
"A. That is part of what I do, yes.
"Q. And you are there to help them, correct?
"A. I hope to, yes.
"Q. Okay. And it is not your job at that point in time to question whether or not the act is true? The disclosure there I'm making to you there is true?
"A. I tend to believe victims, and there are statistics that say that -- that most of the disclosures are true.
"Q. Okay. So my question to you is, is it your role at the Monterey Rape Crisis Center, you are there to help and you are not to question whether or not the disclosure they are making is true?
"A. I've never had reason to -- to doubt the disclosures I've heard." (Italics added.)
A short time later, when defense counsel questioned Birdsong about the timing of disclosures of sexual assault, the following exchange occurred:
"Q. Okay. So the timing of when a disclosure is made does not mean it's true or false; is that fair?
"A. Yes. People [] disclose when they feel like it's the right time to disclose or report when they feel it's the right time to report and that a lot of factors [] figure into that.
"Q. So if somebody reports the next day, does not necessarily mean it is false, does not necessarily mean it is true; is that right?
"A. The evidence has to decide and the courts have to decide the validity of those things.
"Q. Okay. Someone reports five days later does not necessarily mean it's true, does not necessarily mean it's false, correct?
"A. I can say that statistically only two to eight percent of any kind of
"THE COURT: Let's avoid statistics at this point. [¶] Go ahead.
"[Defense counsel]: Strike that.
"THE COURT: Motion to strike is granted." (Italics added.)
Soon after the trial court struck this testimony, Birdsong made her third statement while being questioned by defense counsel about the various reactions victims may have when disclosing sexual assault during a medical sexual assault exam:
"Q. Essentially, just because someone is not hysterically crying doesn't mean it's not true, correct?
"A. Yes.
"Q. Just because someone is minimizing doesn't mean it's not true, correct?
"A. Correct.
"Q. Just because someone is giggling and laughing doesn't mean it's not true, correct?
"A. Correct.
"Q. Just because someone is giggling and laughing doesn't mean it's true, right?
"A. The chances are that it would be true, from what I've seen, the people that are in those situations, they're there because of what has happened to them." (Italics added.)
At the close of the evidence, the trial court instructed the jurors regarding Birdsong's testimony with a modified version of CALCRIM No. 1192.
The written jury instruction read: "You have heard testimony from Kim Birdsong regarding sexual assault trauma. [¶] Kim Birdsong's testimony is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Jane Doe's conduct was not inconsistent with the conduct of someone who has been raped, and in evaluating the believability of her testimony." (Italics added.) The reporter's transcript of the trial court's oral instruction does not include the word "and" in the final sentence of the instruction. However, the trial court said it would provide copies of the written instructions to the jurors for their deliberation, and we therefore infer that the jury received the written instructions. When a "discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control." (People v. Wilson (2008) 44 Cal.4th 758, 803.)
The prosecutor and defense counsel mentioned Birdsong's testimony during their closing arguments. The prosecutor highlighted that "rape victims behave in all kinds of ways" and "Ms. Birdsong is not saying believe Jane Doe; she's not saying convict the defendant. She is not offering evidence in this case, per se." The prosecutor explained that Birdsong's testimony was about giving Jane Doe a "fair chance" and not judging her credibility based on assumptions about the behavior of rape victims.
Defense counsel argued that Birdsong worked as a therapist helping sexual assault victims and "told [the jurors] that she had no reason to ever disbelieve what [victims] told her. [¶] Ms. Birdsong's role is to help, not to investigate, not to question, not to determine if things are true; that 'I never had any reason to doubt what someone was telling me' almost is akin to saying, 'I presumed that the story they are telling is true.' " Defense counsel also contrasted Birdsong's "presumption" with the legally mandated, "exact opposite presumption" of innocence. Further, defense counsel argued that Birdsong's testimony was of little import on whether Doe's behavior was "consistent or inconsistent" with trauma and sexual assault, because Birdsong did not meet with Doe, listen to Doe's testimony, or review the evidence in the case.
Defense counsel also argued that Birdsong's testimony about the various effects of trauma could explain Bobadilla's reactions to Doe's accusations of rape.
2. Governing Law and Analysis
Bobadilla claims that defense counsel provided constitutionally ineffective assistance when he failed to move to strike Birdsong's first and third statements excerpted above—namely that "there are statistics that say . . . most of the disclosures are true," and "chances are" someone who giggled and laughed when disclosing a sexual assault during an exam would be telling the truth. In his reply brief, Bobadilla also appears to challenge defense counsel's lack of action with regard to Birdsong's additional statement that she "never had reason to [] doubt the disclosures I've heard." Bobadilla contends that this testimony was "equally inadmissible and just as damaging" as Birdsong's statement about specific statistics that the trial court interrupted and struck on defense counsel's request.
This answer, unlike the others that Bobadilla highlighted with italics in his opening brief, was not specifically challenged in the opening brief. Bobadilla's failure to argue ineffective assistance regarding this answer in his opening briefs amounts to a forfeiture of that claim. (People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219.) Nevertheless, for the sake of completeness, we will include this answer in our examination of the record and analysis of Bobadilla's claim of ineffective assistance.
To prove that his defense counsel was constitutionally ineffective, Bobadilla must establish both that counsel's performance was deficient and that he suffered prejudice as a result of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to the first element of Strickland, Bobadilla bears the burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To satisfy the prejudice element, Bobadilla must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to [him], i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.)
"Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) A "mere failure to object to evidence or argument seldom establishes counsel's incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.) "It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
Bobadilla principally relies on two recent cases, People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian), for his argument that Birdsong's testimony was inadmissible and defense counsel failed to adequately guard against its admission. He maintains that these cases accord with the limitation on the admissibility of "Rape Trauma Syndrome" set forth in People v. Bledsoe (1984) 36 Cal.3d 236. In Bledsoe, the California Supreme Court "conclude[d] that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped." (Id. at p. 251.)
Wilson and Julian involved expert testimony about child sexual abuse accommodation syndrome (CSAAS) and false allegations of child abuse. In Wilson, the prosecution's expert provided specific statistics about false allegations. (Wilson, supra, 33 Cal.App.5th at p. 568 [referencing a study that found " 'about 4% of cases in which there was an allegation that was determined to be false' "; stating that "there were 12 to 15 other studies on the subject, which found false allegations in between 1 and 6 percent of cases"].) The defendant argued on appeal that "this numerical evidence improperly amounted to testimony that 96 percent (or between 94 and 99 percent) of children accusing a person of child molestation were telling the truth, and that this invaded the province of the jury in assessing a complaining witness's credibility." (Ibid.) The Court of Appeal agreed with defendant's argument. (Id. at p. 570.) The court also concluded that the "statistical evidence was not relevant." (Id. at p. 571.) The court explained that the jury must evaluate the victims' testimony, together with all the other evidence, to decide whether their particular allegations are false, "and it should do so without statistical evidence placing a thumb on the scale for guilt." (Ibid.)
In Julian, the prosecution's expert testified that "false allegations of sexual abuse by children 'don't happen very often.' 'The range of false allegations that are known to law enforcement or [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.' " (Julian, supra, 34 Cal.App.5th at p. 885, italics omitted.) The Court of Appeal held that the expert's "92 to 99 percent probability evidence invited jurors to presume [the defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886.) Further, the court concluded that defense counsel was ineffective for failing to object, reasoning that "there is no justification for counsel's failure to object to [the expert's] statistical evidence on false allegations. It was inadmissible and it improperly suggested [the defendant] was guilty based on statistical probabilities that were irrelevant to this case." (Id. at p. 888.) When examining the issue of prejudice flowing from counsel's deficient performance, the court observed that "[s]uch evidence may not be prejudicial where it occurs in a slight passing reference by the expert. But here the jury was bombarded with it." (Ibid.) The court noted that defense counsel's cross-examination "questions about multiple studies only opened the door to a mountain of prejudicial statistical data that fortified the prosecutor's claim about a statistical certainty that defendants are guilty." (Id. at p. 889.)
The Attorney General does not argue here that Birdsong's answers were admissible evidence or that any objection by defense counsel to the challenged answers would have been futile. Rather, the Attorney General contends that defense counsel reasonably refrained from objecting to and moving to strike Birdsong's answers for several reasons. As to the first answer, the Attorney General argues it was "too fleeting to have much impact on the jury," and defense counsel knew the trial court would later instruct the jury in accord with CALCRIM No. 1192. Regarding the third answer, the Attorney General asserts that "Birdsong had already told the jury that she knew nothing at all about this case" and "had testified that[,] notwithstanding her views of the truth of a rape allegation, 'the evidence has to decide and the courts have to decide the validity of those things.' "
We question whether the expert testimony found inadmissible in Wilson and Julian is, as Bobadilla argues, "directly analogous" to Birdsong's more general statements that "most of the disclosures are true," she never had reason to doubt disclosures, and that, in her experience, "chances are" a sexual assault disclosure is true. Nevertheless, because the Attorney General fails to argue that Birdsong's answers were admissible, we will assume arguendo that a motion to strike would have been granted had defense counsel made one utilizing arguments like those accepted by the courts in Wilson and Julian.
We note further that Bobadilla argues his defense counsel could have moved to strike Birdsong's answers as nonresponsive. The Attorney General does not respond to this contention. Thus, we also presume this ground would have been an additional valid basis for a motion to strike.
Even assuming that a motion to strike Birdsong's answers had merit, on the present record, Bobadilla cannot satisfy his burden to show that defense counsel performed deficiently by failing to make such a motion. The record does not preclude the possibility that defense counsel's actions and omissions were based on reasonable strategic decisions. As the California Supreme Court has observed, a "competent counsel may often choose to forgo even a valid objection." (People v. Riel (2000) 22 Cal.4th 1153, 1197.) "Whether to object at trial is among 'the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle.' " (Id. at p. 1202.) "Even where defense counsel may have ' "elicit[ed] evidence more damaging to [defendant] than the prosecutor was able to accomplish on direct" ' [citation], we have been 'reluctant to second-guess counsel' [citation] where a tactical choice of questions led to the damaging testimony." (People v. Williams (1997) 16 Cal.4th 153, 217; see also People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Slaughter (2002) 27 Cal.4th 1187, 1210, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190; cf. Julian, supra, 34 Cal.App.5th at p. 888.)
Although defense counsel's motion to strike the specific statistical statement made by Birdsong evinces counsel's desire to keep probability data from the jury, defense counsel could reasonably have concluded that Birdsong's other, more general and anecdotal statements about the incidences of truthful disclosure—before and after the motion to strike—were less weighty and impactful. Defense counsel could have reasonably believed he gave up or risked little by letting those answers stand. Moreover, on balance, defense counsel could reasonably have decided that Birdsong's answers furthered his apparent goal to show her overall bias as a crisis counselor toward people who report sexual assault.
As Bobadilla correctly points out, Birdsong's first answer was not responsive to defense counsel's question about the fact that it was not Birdsong's "job . . . to question" the veracity of people who come to her for counseling. Defense counsel appeared to recognize the nonresponsive nature of Birdsong's answer, because his next question reiterated his previous one: "Okay. So my question to you is, is it your role . . . not to question" whether a disclosure is true? The second question drew another arguably nonresponsive answer about Birdsong "never [having] had reason" to doubt any disclosures. This answer further demonstrated Birdsong's evasiveness about her role as a counselor and seemingly steadfast acceptance of what she is told by the people she counsels.
Up to that point in Birdsong's testimony, defense counsel had made several objections based on Birdsong's nonresponsiveness during direct examination and one such objection when the trial court asked Birdsong a clarifying question during cross-examination. Thus, defense counsel knew nonresponsiveness was a ground on which he could object.
Similarly, Birdsong's later statement that, based on her experience, "chances are" a person who "is giggling and laughing" when disclosing would be telling the truth could reasonably have been considered by defense counsel as showing Birdsong held inflexible views that the jury should regard skeptically. That defense counsel may have let Birdsong's answers stand for the purpose of demonstrating her potential bias is further supported by defense counsel's closing argument. There, defense counsel highlighted that Birdsong provided help to sexual assault victims as a therapist for more than a decade and essentially " 'presumed that the story they are telling is true.' "
For these reasons, we conclude that Bobadilla has not demonstrated his defense counsel's failure to move to strike Birdsong's answers fell below an objective standard of reasonableness. We discern from the record the possibility of rational tactical justifications and satisfactory explanations for defense counsel's lack of action. Thus, Bobadilla's claim of ineffective assistance of counsel fails.
Having concluded that Bobadilla has not satisfied the performance prong of the Strickland standard, we need not address whether he can demonstrate the requisite prejudice for his claim of ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 687.)
B. Instruction on Reasonable Belief in Consent Defense
Bobadilla claims that the trial court prejudicially violated his state and federal constitutional rights to due process by failing to instruct the jurors on the defense of reasonable mistake of fact regarding consent as to forcible rape (count 1) and sexual penetration (count 2). Alternatively, Bobadilla contends that, if we find his defense counsel invited the error as to count 2 by conceding the inapplicability of the instruction to that count, counsel's actions amounted to constitutionally ineffective assistance.
1. Background
Bobadilla requested pretrial that the trial court instruct the jurors with "the bracketed language" from CALCRIM Nos. 1000 (rape) and 1045 (sexual penetration) regarding "reasonable belief in consent." This language is commonly referred to as the "Mayberry instruction." (See People v. Mayberry (1975) 15 Cal.3d 143, 153-158 (Mayberry).)
The requested "bracketed language" from CALCRIM No. 1000 reads: "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]. 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 similar, requested language from CALCRIM No. 1045 reads: "The defendant is not guilty of forcible sexual penetration if (he/she) actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty."
After the parties rested, the trial court, prosecutor, and defense counsel discussed the jury instructions on the record. Defense counsel reiterated his request for the Mayberry language in CALCRIM Nos. 1000 and 1045. Defense counsel acknowledged that a Mayberry instruction should not be given when there is no way to harmonize the defendant's and victim's accounts of the sexual contact and no evidence of equivocal conduct exists. However, citing to Mayberry, defense counsel argued that the analysis should include the events leading up to the alleged sexual assault. Defense counsel further maintained the Mayberry instruction could be given even where the victim made it clear it was a "forcible encounter," and there was no legal requirement that the victim describe the event as a "gray area-type of sexual encounter" for the instruction to apply.
Defense counsel then described the evidence that supported a finding of reasonable mistake of fact in this case. That evidence included the testimony about flirtatious behavior between Doe and Bobadilla at work, the video of provocative dancing sent from Doe's phone to Bobadilla's while they were at the party, the provocative dancing itself, and that Doe went back to Bobadilla's house after the party and reclined on his couch. Defense counsel also argued that Doe's statement to Bobadilla about his " 'wandering hands' " was "a little bit [] equivocal or open to interpretation about whether it was teasing or a clear indication of 'Stop touching me.' " Defense counsel maintained that there was "an agreement between both" at some point during the incident that they should not have sex because they were coworkers, and, at the "moment that sexual penetration occurs, . . . [Doe is] not saying 'No,' . . . [or] physically resisting." Defense counsel concluded: "[T]hey do tell stories that in moments diverge, certainly, but they are not wholly consistent descriptions of the night. There is quite a bit of overlap between how the two are telling the story. I believe it's enough overlap . . . and enough equivocal behavior that Mayberry is appropriate here."
After the trial court pointed out that Bobadilla had testified no digital penetration occurred and defense counsel had conceded the day before that a Mayberry instruction was not appropriate for count 2, defense counsel acknowledged his earlier concession.
The discussion that had taken place on the previous day is not included in the appellate record, apparently because it occurred in the judge's chambers.
The trial court refused Bobadilla's request for the Mayberry instruction on the forcible rape charge (count 1). The trial court found that Bobadilla "tells a version that I view as completely inconsistent with anything other than consen[s]ual sex." The trial court noted that Bobadilla testified Doe got on top of him, they proceeded to have sex, and Bobadilla stopped it, not Doe. The trial court "[did]n't see any theory under which the defense can say the Defendant had a mistake of a fact. There is nothing equivocal." The trial court added, "with respect to events leading up to the sexual act, when you have any two individuals involved in any human interactions, there will always be a gray area. That's . . . an issue with flirtation. One person might intend it to be flirtation; the other person might be receiving it as flirtation, but they might be wrong about that. [¶] So that, I think, does not justify the Mayberry instruction. I think it has to do with whether or not . . . there was equivocal conduct such that the Defendant could reasonably have a mistake of fact, but the Defendant himself refutes that potential theory."
Defense counsel argued in his closing that "Ms. Doe was not raped. Ms. Doe and Mr. Bobadilla, as consenting adults who are legally allowed to have sex with whomever they want to have sex with, irrespective of their relationship statuses, engaged in a consensual sexual encounter."
The trial court instructed the jurors with modified versions of CALCRIM Nos. 1000 and 1045. Those instructions informed the jurors that the prosecution had to prove Doe "did not consent to the intercourse" to find Bobadilla guilty on count 1 and "did not consent to the act" of sexual penetration by use of a foreign object on count 2. The trial court, however, did not include the Mayberry instruction language for either count.
2. Governing Law
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) "When warranted by the evidence, it is error for the court to decline an instruction on the effect of a defendant's reasonable and honest belief in the victim's consent." (People v. Sojka (2011) 196 Cal.App.4th 733, 737, citing Mayberry, supra, 15 Cal.3d at pp. 156-157.) Doubts whether evidence is sufficient to warrant an instruction on a particular defense theory should be resolved in the defendant's favor, but the trial court need not give the requested instruction where the supporting evidence is insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145; see also People v. Williams (1992) 4 Cal.4th 354, 361 (Williams); People v. Salas (2006) 37 Cal.4th 967, 982.) On appeal, we independently review whether the trial court erred by failing to instruct on a defense. (See People v. Waidla (2000) 22 Cal.4th 690, 733, 737; see also Williams, at p. 361.)
In Mayberry, the California Supreme Court "held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape because it negates the wrongful intent required for the crime. [Citation.] In People v. Williams (1992) 4 Cal.4th 354, [the court] clarified when the instruction is required. [The court] explained that, in order for the Mayberry defense to apply, the defendant must have 'honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse' based upon 'evidence of the victim's equivocal conduct,' and 'the defendant's mistake regarding consent [must have been] reasonable under the circumstances.' [Citation.] 'Thus, because the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.' " (Martinez, supra, 47 Cal.4th at p. 954.)
"[R]egardless 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." (Williams, supra, 4 Cal.4th at p. 361.) "The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent [citations], 'and then only if the prosecution's proof did not of itself raise such a doubt.' " (Ibid.) "It is only in the case where there is substantial evidence supporting both components of the defense [i.e., the objective and subjective] that the court must give a Mayberry instruction." (People v. Andrews (2015) 234 Cal.App.4th 590, 603.)
"The Mayberry defense . . . permits the jury to conclude that both the victim and the accused are telling the truth. The jury will first consider the victim's state of mind and decide whether she consented to the alleged acts. If she did not consent, the jury will view the events from the defendant's perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not." (People v. Romero (1985) 171 Cal.App.3d 1149, 1155-1156.) "[W]holly divergent accounts create no middle ground from which [the defendant] could argue he reasonably misinterpreted [the victim's] conduct." (Williams, supra, 4 Cal.4th at p. 362.) When the defense is unequivocal consent and the prosecution's evidence shows nonconsensual, forcible sex, the trial court should not give a Mayberry instruction. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148-1149; People v. Maury (2003) 30 Cal.4th 342, 424; Williams, supra, 4 Cal.4th at pp. 362-363; People v. Burnett (1992) 9 Cal.App.4th 685, 690; People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369-1370.)
3. Analysis
Bobadilla contends that, although his and Doe's testimony "offered divergent accounts of the sexual contact itself, the case as a whole contained evidence supporting a 'middle ground from which [Bobadilla] could argue he reasonably misinterpreted [Doe's] conduct.' " Bobadilla specifically points to the evidence about flirting at work and that Doe went to Bobadilla's house, accompanied him to the party, invited him to record her dancing provocatively, may have sent him a video of her dancing, and, according to Bobadilla, made physical contact with him at the party, and draped her legs across his lap while on the couch at his home. Bobadilla also asserts that the post-incident text messages "demonstrated a disconnect between Doe's behavior and state of mind." He argues that the jurors could have relied on the text messages "as evidence that [Doe's] behavior was substantially more ambiguous than she testified" and "could have harbored reasonable doubt on the question of whether Doe clearly refused [Bobadilla]'s advances, or whether her conduct was more ambivalent—in which case, [Bobadilla] could have made a reasonable mistake."
We are not persuaded that there was substantial evidence supporting a reasonable and good faith, albeit mistaken, belief by Bobadilla that Doe consented to have sex with him. Bobadilla testified that after he touched Doe's stomach and dozed off for a moment, Doe woke him, said she had to go, and then proceeded to give him a "lap dance." Next, Doe stood up, unbuttoned her pants, pulled them down, and had sex with him on the couch for 20 or 30 seconds—until he pushed her away. Bobadilla denied that he ever put his hands down Doe's pants or digitally penetrated her.
For her part, Doe testified that after Bobadilla tapped on her stomach, she told him that he had "wandering hands" and it was time for her to go. Bobadilla then pulled her down on top of him and told her to give him a lap dance. Doe pushed herself off. As Doe walked to get her purse, Bobadilla reached down her pants and digitally penetrated her vagina, while she told him " 'No' " and " 'Stop.' " After Doe fell and got back up, Bobadilla removed his fingers. Moments later, Bobadilla pulled down her pants and inserted his penis into her vagina, while she repeatedly told him, " 'No, stop. You're engaged.' " Bobadilla did not stop until Doe pulled herself away from him.
In sum, in Doe's account, she said "no" to Bobadilla during the sexual acts that formed the basis of counts 1 and 2. If the jury credited this testimony, no reasonable juror could find that Bobadilla's belief in Doe's consent was objectively reasonable.
By contrast, Bobadilla testified that Doe never said "no" to any of the acts and instead gave him a "lap dance," had intercourse with him until he pushed her away, and then texted amicably with him about the events and her plans the following day. If the jury believed Bobadilla's testimony, then there was no basis from which a jury could infer that Doe communicated (verbally or otherwise) to Bobadilla that she did not consent to their sexual activity. In other words, accepting his testimony, her consent was unequivocal.
We therefore conclude the evidence does not demonstrate any equivocal conduct by Doe supporting a conclusion that Bobadilla reasonably and honestly, but mistakenly, believed at the time of the sexual acts that Doe consented to be digitally penetrated and have intercourse with him. Although Bobadilla is correct that the jurors were entitled to believe some but not all of either witness's testimony, the jurors were not entitled to rely on speculation. (See People v. Rodriguez (2014) 58 Cal.4th 587, 630; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864 ["[s]peculation . . . is not evidence"].) Bobadilla's arguments on appeal of a purported testimonial " 'middle ground' " in the evidence amount to nothing more than speculation. As in Williams, Bobadilla's testimony, "if believed, established actual consent" throughout the incident, and Doe's testimony, "if believed, would preclude any reasonable belief of consent." (Williams, supra, 4 Cal.4th at p. 362.) There is "no middle ground" from which Bobadilla could argue he reasonably misinterpreted Doe's conduct. (Ibid.; see also People v. Dillon (2009) 174 Cal.App.4th 1367, 1382-1383.)
Further, when we consider all of the evidence about Doe's and Bobadilla's interactions, before, during, and after the sexual acts, we reach the same conclusion about the insufficiency of the evidence for a reasonable and honest mistake of fact regarding consent. The evidence, overall, was not so substantial that it renders equivocal what was a nonconsensual sexual encounter or a consensual sexual encounter, based on the versions told by Doe and Bobadilla. Moreover, during his testimony, Bobadilla said he "[a]bsolutely" agreed "that women have the right to say no, no matter what flirting they've done before." He also acknowledged his subjective belief that he was not "entitled to sex" with Doe just because she flirted with him, asked him to videotape her dancing, sent him a provocative video, came to his house when his fiancée was out of town, sat on his couch, and spread her legs over his lap. Further, no reasonable person would have believed that Doe's actions showed she consented to being fingered and penetrated merely by returning to Bobadilla's house after the party and sitting with him on the couch. (See Williams, supra, 4 Cal.4th at p. 361 [defendant's "belief must be formed under circumstances society will tolerate as reasonable"].) As the court in Williams observed, the "relevant inquiry under Mayberry [] is whether [the defendant] believed [the victim] consented to have intercourse, not whether she consented to spend time with him." (Id. at p. 363.) The evidence in this case does not satisfy either the subjective or objective component of the mistake of fact defense under Mayberry.
Bobadilla's reliance on People v. May (1989) 213 Cal.App.3d 118, is misplaced because that case is distinguishable. In May, the defendant testified that he met the victim at a bar and drank and flirted with her. (Id. at pp. 123-124.) He claimed that she was a prostitute and "what transpired was nothing more than a sex-for-money transaction from the outset." (Id. at p. 125.) The victim, on the other hand, testified she was attracted to May, drank with him, and ultimately accompanied him to his apartment. (Id. at pp. 122-123.) The Court of Appeal described May's behavior from the time he and the victim met to their entry into his apartment as having "all the characteristics of a casual 'pick up.' " (Id. at p. 125.) From there, the victim's "version of subsequent events is, to say the least, enigmatic." (Id. at p. 126.) The victim followed May into his kitchen, brandished a knife, and told him " 'no.' " (Ibid.) "[S]he could not explain why she had not simply turned around and walked out the front door." (Ibid.) May responded by taking the knife out of the victim's hand, slapping her, and leading her to his bedroom. (Ibid.) The court observed that, other than simply delaying awhile before she took off her clothes at May's request in his bedroom, the "only other plausible manifestation of nonconsent to the ensuing sex acts was [the victim's] attempt to roll off the bed, to which May again reacted by slapping her." (Ibid.) The court opined that the victim's "behavior in willingly accompanying [May] to the apartment after several hours of merriment, her failure to escape when presented with the opportunity, and her lack of verbal objection while in the bedroom could reasonably have been misinterpreted by May as the conduct of someone playing games rather than resisting his advances. The testimony of May's father further strengthened the inference that [the victim] behaved as if she were a willing participant in the sexual encounter. Thus, there was unquestionably evidence substantial enough to permit a jury to find that the defendant had a good faith, albeit mistaken, belief that [the victim] consented to the sexual acts he performed." (Ibid.)
The evidence in the present case is not at all analogous to that in May. There was no such "enigmatic" testimony or behavior by Doe directly related to and surrounding the sexual acts. On this record, we conclude there is no substantial evidence raising a reasonable doubt as to whether Doe indicated her refusal to be penetrated, either digitally or with a penis, with such equivocation that it caused Bobadilla to reasonably and honestly, but mistakenly, believe that Doe consented when she in fact did not. Accordingly, the trial court properly withheld the Mayberry instruction on counts 1 and 2, and did not violate Bobadilla's constitutional rights.
In reaching our conclusion on the merits of Bobadilla's claim, we have considered the evidence with regard to both counts of the information. Because we have determined that the Mayberry instruction was not warranted on count 2, we need not address whether defense counsel's concession regarding the inapplicability of the instruction invited any error by the trial court or otherwise amounted to ineffective assistance of counsel. Even if defense counsel had not made the concession, the trial court did not have to give a Mayberry instruction on count 2 because no substantial evidence supported that defense. --------
C. Cumulative Prejudice
Bobadilla contends he was prejudiced by the cumulative effect of multiple errors in his trial. Having found no error, there is nothing to cumulate. (People v. Duff (2014) 58 Cal.4th 527, 562.)
D. Corrections to Minute Order and Abstract of Judgment
Bobadilla asserts, and the Attorney General agrees, that the minute order from Bobadilla's sentencing and the abstract of judgment erroneously reflect imposition of a $300 fine under section 290.3, and related "penalty assessments and administrative fees; for a total of $1,310." The trial court did not mention or impose this fine or the related penalty assessments and administrative fees at the sentencing hearing.
When a clerk's minute order or the abstract of judgment conflicts with the oral pronouncement of judgment, it is the oral pronouncement that governs. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) On a silent record, where the trial court did not impose a particular fine or fee, the appellate court presumes that the trial court resolved issues of a defendant's ability to pay in favor of not imposing the fine or fee. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1517; see also People v. Tillman (2000) 22 Cal.4th 300, 302-303 [the People forfeit imposition of fines and fees by failing to raise the issue at sentencing].)
Accordingly, we will order that the minute order dated October 26, 2018, and the abstract of judgment be corrected to strike any reference to the $300 fine (§ 290.3) and the related $1,010 in penalty assessments and administrative fees.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to correct the minute order for October 26, 2018, to strike the order that Bobadilla, pursuant to Penal Code section 290.3, pay a fine of $300, plus penalty assessments and administrative fees, for a total of $1,310. The trial court also is directed to correct the abstract of judgment by striking the order in item No. 13 that Bobadilla pay $1,310 pursuant to Penal Code section 290.3 and is ordered to deliver a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Elia, Acting P.J.
/s/_________
Bamattre-Manoukian, J.