Opinion
B161825.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CONNORS, Defendant and Appellant.
Eric R. Larson, 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, Scott A. Taryle and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Connors appeals from the judgment entered following his conviction by a jury for misdemeanor sexual battery and simple battery and, following a mistrial, by a second jury for felony indecent exposure, with a court finding he had suffered a prior serious felony conviction that qualified him for sentencing under the "Three Strikes" law. Connors contends the trial court improperly failed to instruct the jury on implied consent and reasonable and good faith mistake of fact as to consent. We affirm.
Additional felony counts for residential burglary and assault with intent to commit rape were dismissed after the second jury, like the first, was unable to reach a verdict on those charges.
The court, in bifurcated proceedings following the conviction for felony indecent exposure, found Connors had suffered two prior strike convictions but dismissed one of those prior serious felonies, as well as the separate prison term enhancement, under Penal Code section 1385. Connors was then sentenced to four years in state prison (double the middle term).
Connors also argues the trial court committed reversible error by instructing the jury with CALJIC No. 17.41.1, the "anti-nullification" instruction. The contention this instruction deprives a defendant of the right to a fair trial and to due process of law was rejected in People v. Engelman (2002) 28 Cal.4th 436, in which the Supreme Court held CALJIC No. 17.41.1 does not infringe upon a defendants federal or state constitutional right to trial by jury or state constitutional right to a unanimous verdict.
FACTUAL AND PROCEDURAL BACKGROUND
Connors was charged by information with two counts of residential burglary and one count each of assault with intent to commit rape, sexual battery, felony indecent exposure and simple battery. (Pen. Code, §§ 459; 220; 314; 243.4, subd. (d)(1); 242; 243.) The information also alleged that Connors had suffered two prior felony convictions, which made him eligible for sentencing under the Three Strikes law, and that he had served a separate prison term for a felony. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).)
The evidence presented at trial established that Konnie Kern lived on the third floor of a secured condominium complex. On October 1, 2000 Andrea Mossman, Susan Lavallie and a friend of Lavallie were visiting Kern to watch a televised football game. At 3:45 p.m. Lavallie telephoned a grocery delivery service and ordered liquor and cigarettes. Connors called the condominium at approximately 5:00 p.m. and said he was downstairs with the delivery. Lavallie pressed the security button, allowing him to enter the complex and walk up to Kerns condominium.
The entrance to Kerns condominium consisted of a screen security door on the outside and a wood door on the inside. When Connors arrived at the condominium, the screen security door was open; and the wood door was closed. After Connors knocked on the door, Lavallie yelled to Mossman the delivery man had arrived and opened the wood door. Connors stood by the open doors with the delivery. Lavallie asked him if she could pay by credit card. Connors said "yes" and added that he would need to make an impression of the card.
As Lavallie was closing the wood door, Kern screamed from the kitchen, "`Make sure you close the door, because of the cats." Mossman also yelled not to let the cats out. Lavallie shut the wood door and walked into the family room to retrieve her credit card, leaving Connors outside the condominium. Lavallie did not invite Connors inside to wait for her.
Lavallie also testified Kern shouted a warning about the cats as Lavallie was about to answer Connorss knock on the wood door.
Lavallie returned to the door with her credit card. Connors was now inside the condominium, standing in the hallway, one-to six-feet away from the wood door. Lavallie did not ask Connors to leave or to go outside the condominium.
Mossman then approached Connors and asked whether he had change for a $20 bill. Connors displayed a large number of bills, and Mossman remarked, "`Wow, that is a lot of money." Lavallie added: "`Yeah, can we have some?" Connors replied: "`How much do you want?" Mossman jokingly answered, "`Everything that you have." Connors unzipped his pants in the hallway.
Lavallie was shocked and wanted him out of the condominium. She handed Connors her credit card so he could complete the transaction. Connors made an impression of the card and gave Lavallie her credit card, a receipt and a pen to sign the receipt. As Lavallie was about to sign the receipt, Connors grabbed the pen from her hand, pulled his penis from his pants, held the pen next to his exposed penis and asked Lavallie, "`Which pen do you want?" After Connors returned the pen, Lavallie signed the receipt, directed Connors to leave the condominium and locked the wood door.
Connors did not testify and presented no other evidence on his behalf.
DISCUSSION
The crime of indecent exposure is generally a misdemeanor. (Pen. Code, § 314.) However, if the offense is committed after the defendant has entered a residence without consent, it may be punished as either a felony or misdemeanor.
Penal Code section 314 provides: "Every person who willfully and lewdly . . . [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . [¶] . . . is guilty of a misdemeanor. [¶] Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling . . . is punishable by imprisonment in the state prison, or in the county jail not exceeding one year."
During the discussion of instructions at Connorss second trial, the People objected to instructing the jury on the lesser included misdemeanor offense of indecent exposure because there was no evidence of consent. The trial court stated that it anticipated the defenses theory of the case was that Connors had "implied consent" to enter the condominium. Defense counsel confirmed Connorss defense was based on "implied consent." The court overruled the Peoples objection, finding there was sufficient evidence of "implied consent" to submit the issue to the jury.
After the close of evidence and prior to argument by counsel, the trial court instructed the jury with CALJIC No. 1.23, explaining that "[t]o consent to an act or transaction, a person (1) must act freely and voluntarily and not under the influence of threats, force or duress; (2) must have knowledge of the true nature of the act or transaction involved; and (3) must possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person. [& para;] Merely being passive does not amount to consent. Consent requires a free will and positive cooperation in act or attitude." (CALJIC No. 1.23 (6th ed. 1996).)
During closing argument the People urged finding Connors guilty of felony indecent exposure because he had entered the condominium without consent. The prosecutor argued that no one in the condominium affirmatively gave Connors permission to enter and his belief that consent to enter was implied as long as the cats were kept inside was unreasonable in light of the evidence. Connorss counsel argued the evidence showed Connors reasonably understood that he had been invited to step inside to complete his delivery if he did not allow the cats to escape.
Connors now asserts the trial court erred in failing to instruct sua sponte on "implied consent" because CALJIC No. 1.23 "failed to adequately and properly advise the jury that consent to enter may be implied, and that such implied consent is a defense to the felony charge." He also argues the trial court committed reversible error by not instructing the jury "on the defense of reasonable and good faith mistake of fact as to consent."
The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to and governing a case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) That obligation includes the duty to instruct the jury on a defense when the defendant is relying on the defense or there is substantial evidence supporting the defense and the defense is not inconsistent with the defendants theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195; People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165; see also People v. Rios (2000) 23 Cal.4th 450, 464.) Substantial evidence of a defense is evidence that is "sufficient to `deserve consideration by the jury, i.e., "evidence from which a jury composed of reasonable men could have concluded" that the particular facts underlying the instruction did exist." (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds in People v. Barton, supra, 12 Cal.4th at pp. 200-201.)
The trial court in this case properly instructed on consent using only CALJIC No. 1.23. That instruction addressed all the factors the jury should properly consider in evaluating the evidence to determine whether Connors had received consent, express or implied, to enter the condominium. The instruction informed the jury that it was to determine whether the victims conduct ("free will, positive cooperation, and attitude") established they had affirmatively acquiesced, as opposed to merely submitting, to Connorss entry. (See People v. Olds (1957) 154 Cal.App.2d 78, 82.) To the extent Connors is now suggesting CALJIC No. 1.23 was inadequate, he is seeking a pinpoint instruction, which the trial court was not obligated to give absent a request. (People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Saille (1991) 54 Cal.3d 1103, 1119.)
"Pinpoint" instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendants case, such as mistaken identification or alibi. (People v. Saille, supra, 54 Cal.3d at p. 1119.)
The trial court similarly had no duty to instruct on a "mistake of fact" defense because there was no evidence Connors made any mistake, reasonable or otherwise, as to consent. Connors did not testify, although substantial evidence of a defendants state of mind may exist without his or her testimony. (See, e.g., People v. DeLeon (1992) 10 Cal.App.4th 815, 824 [substantial evidence of an honest but unreasonable belief in the need for self-defense (imperfect self-defense) may be present without the defendants testimony].) However, the testimony of victims Lavallie and Mossman upon which Connors relies to support his defense is entirely insufficient. Their testimony established that Connors acted as if he did not care whether he had permission to enter and does not suggest that Connors mistakenly believed he had such permission.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J. and WOODS, J.