Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C149565
Siggins, J.
Defendant William Hackney was convicted of multiple counts of rape and related sexual offenses, and sentenced to 77 years in prison. He contends the court misinstructed the jury; that his trial counsel rendered constitutionally deficient representation; and that his sentence violates Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856]. We affirm.
BACKGROUND
July 10, 2004
On July 10, 2004, at 2:00 a.m., defendant picked up T.A. in his van. T.A., an admitted crack cocaine addict, was living on the streets and working as a prostitute. She agreed to have sex with defendant in exchange for cocaine.
T.A. did not initially get a good look at defendant’s face because he was wearing a large hat. After she got into the van and saw his gold-framed glasses and large size (defendant is over six feet tall and weighs over 200 pounds; T.A. is under 5 feet and weighs about 100 pounds), she recognized him as the man who raped and beat her the previous Christmas Eve. She remembered that her assailant had a large tattoo on his arm, so she asked defendant if he had any tattoos. Defendant responded that he had a lot. T.A. told defendant she thought he had beat her the previous Christmas Eve, but he replied, “What are you talking about, bitch, that ain’t my style.” Nonetheless, T.A. was almost certain that defendant was the man who had assaulted her.
T.A. did not try to escape on July 10 because she was frightened that defendant would hurt her again. In her mind, all that followed this initial exchange was against her will. Her strategy was to “get it over with” and bring defendant to orgasm as soon as possible, so she could leave without getting hurt.
Defendant stopped at two motels but was unable to get a room, and finally told T.A. that he would find a place to park. T.A. did not try to escape while defendant was trying to check into a motel because she was not sure where he was or whether he could see her.
Defendant gave T.A. cocaine and told her to get in the back of the van. He parked and climbed into the back with her. As T.A. lit the cocaine defendant hit her in the jaw hard enough to knock her to the floor. T.A. cried. Defendant told her to take her clothes off and “suck my dick, bitch.” She complied because she was afraid defendant would hit her again. Afterward he made her bend over and penetrated her vagina, but soon lost his erection. Defendant said his impotence was T.A.’s fault because she moved, and beat her with his fists on her back and the back of her head. T.A. was crying. Defendant told her to “try it again, bitch.” Defendant repeated this sequence more than 10 times. He would require T.A. to orally copulate him and attempt to penetrate her vagina, and then lose his erection.
Around the fifth time defendant told T.A. to orally copulate him she saw him drink from a fifth of Hennessy cognac. Shortly thereafter he began hitting her with the bottle. When she bled from her mouth he told her “You better not get no blood on my shit, bitch” and made her wipe her mouth with a towel. He threatened to “bust [T.A.’s] head open and throw [her] out there on the sidewalk naked.” She responded, “why don’t you please do that. Please do that” because she wanted the beating to stop.
T.A. eventually lost consciousness. When she awoke she was lying naked on the floor of the van and defendant was driving the van. After 10 or 15 minutes defendant stopped the van, told T.A. to get on her knees, and inserted a large dildo into her vagina. He asked her if it felt good and she said it did, even though it hurt, because she did not want to upset him. When defendant tried to insert the dildo in her anus she screamed and he beat her again. At one point T.A. lost control of her bowels. On his third and fourth attempts defendant penetrated T.A.’s anus with the dildo, while she screamed and cried. Defendant then instructed her to insert the dildo in her anus. T.A. tried but could only insert it “a little bit,” so defendant beat her again and told her to wipe the dildo off with the towel.
The two moved to the front of the van and defendant told T.A. to orally copulate him. She said, “Why don’t you just kill me. I don’t feel like getting beat anymore.” He responded, “Suck my dick, bitch.” She complied, after which defendant again tried unsuccessfully to penetrate her vagina with his penis. While parked in this second location, defendant forced T.A. to orally copulate him about five times over the course of about an hour and “stomped” her with the heels of his shoes as she lay on the floor of the van.
Defendant eventually fell asleep while T.A. was orally copulating him. She grabbed the cognac bottle and her lighter and ran away, naked. She found a painter’s tarp at a construction site and covered herself. She tried to sit down next to a tree to take a drink but was too badly beaten to lower herself to the ground. When T.A. saw her swollen face in the reflection of a window she went into the California Hotel and asked the clerk to call an ambulance.
Officers responded and found T.A. wrapped in the tarp, crying, shaking and hysterical. She had multiple cuts and abrasions and swelling on her face, as well as dried blood around her nose and lips. T.A. said her assailant was a man named “Willie,” described him and his van, and told officers where he was parked.
Officers found defendant sleeping inside the van and arrested him. T.A. positively identified him as her attacker.
T.A. was treated by a paramedic at the California Hotel and transported to the hospital, where she was given a four hour sexual assault examination. T.A. reported that she had been raped, sodomized, penetrated with a foreign object and orally copulated. Her jaw was swollen, she had dried blood on her lips, multiple bruises and abrasions, tenderness on her head, face, neck, abdomen, upper and low extremities, shin, right hip, and back, as well as a loose tooth. She also had multiple linear abrasions along her inner thigh and vagina, redness and tenderness on her posterior fourchette and around her anus, and bruising inside her anus. These injuries were consistent with her report of sexual assault.
DNA evidence established that blood on the van carpet belonged to T.A. and sperm found in her vagina was defendant’s. Defendant’s sperm and T.A.’s blood were also found on towels recovered from the van. T.A.’s DNA was found on a dildo recovered from the van.
On cross-examination, T.A. denied that she had smoked cocaine and engaged in oral sex with defendant before he hit her on July 10, 2004. She said she might have confused some of the events of Christmas Eve 2003 with the July 10, 2004, incident because she was in “shock” and “not in [her] right frame of mind” when she spoke with police officers.
December 24, 2003
On Christmas Eve 2003, defendant picked up T.A. in a maroon van. He said he had no money but would provide a motel room and drugs in exchange for sex. T.A. agreed. At the motel, T.A. was preparing to smoke cocaine when defendant hit her in the face and accused her of stealing his drugs. T.A. started crying and explained she had not stolen his drugs, but defendant kept hitting her and telling her to be quiet. Defendant told T.A. to take off her clothes, then orally copulated her. She went along with it because she did not want him to hit her again. Defendant then told her to orally copulate him, because she “owed” him. After she complied he penetrated her vaginally until he lost his erection. Defendant said “You moved, bitch. You did that on purpose” and “beat the hell out of” her. He told her to orally copulate him again. Defendant tried to engage in intercourse multiple times but each time lost his erection and beat her. He repeated this cycle of forced oral copulation, attempted intercourse and beating 10 to 15 times. He also strangled T.A. and hit her on the head with a phone receiver.
Finally, defendant fell asleep and T.A. escaped, taking his van keys, drugs and knife. She did not call the police because she was high, had an outstanding warrant, and had defendant’s knife in her possession.
Defense Case
Defendant went to a hospital on December 25, 2003, complaining of abdominal pain. He spent a week there and was given morphine for the pain, although X-rays, a CAT scan and an ultrasound did not disclose its cause. He had no trouble walking, was neurologically sound, and had full arm and hand strength and no mobility limitations.
Dr. Stephen Pittel testified for the defense as an expert on drug and alcohol issues. Dr. Pittel testified that if defendant had a blood-alcohol level of .07 at 9:00 a.m. on July 10, 2004, his blood-alcohol level at 2:00 a.m. would likely have been around 0.18 if he had not consumed alcohol in the interim. Dr. Pittel said that at the 0.18 level a person generally enters into a confusional state and his mental processes become significantly impaired.
Dr. Pittel also testified that someone who uses crack cocaine for an extended period of time might become paranoid, see things that are not there, imagine things that did not occur, have fragmented attention, and jumble events. On cross-examination, he admitted he previously testified in another case that cocaine does not affect perception or memory. He also admitted that in 1990 he was caught snorting cocaine outside a courthouse where he was testifying as a defense expert. Dr. Pittel had coauthored an article that listed different strategies for making drug-using defendants appear sympathetic to a jury.
Verdict
The jury found defendant guilty of six counts of forcible oral copulation, two counts of rape, two counts of assault with a deadly weapon by means of force likely to produce great bodily injury, and one count of forcible penetration with a foreign object. It deadlocked on the one charged count of kidnapping and on special allegations that defendant had moved the victim substantially, increasing the risk of harm to her. Sentenced to 77 years in state prison, defendant timely appealed.
DISCUSSION
I. Omission of Mayberry Instruction
Defendant contends the court committed reversible error by failing to instruct the jury that a reasonable and good faith, but mistaken, belief that T.A. consented was a defense to the charges of rape, oral copulation, and penetration with a foreign object We disagree.
Defendant requested that the court instruct with a variation of CALJIC No. 10.65, the “Mayberry”instruction. (People v. Mayberry (1975) 15 Cal.3d 143, 155.) The proffered instruction read as follows: “If you find the defendant in fact believed that the alleged victim consented to the acts charged in that count, and if you further find this belief was a reasonable belief, then you may not convict the defendant on that count. You may determine the issue of defendant’s belief that the alleged victim so consented, and the reasonableness of that belief based on the testimony of the alleged victim alone. There is no requirement that the defendant testify in order for you to determine this issue. And you may determine this issue based on circumstantial evidence.”
CALJIC No. 10.65 provides: “In the crime of [forcible rape] [penetration of the [genital] [or] [anal] opening by a foreign object, substance, instrument, or device by force, [violence] [fear] [or] [threats to retaliate]], criminal intent must exist at the time of the commission of the (crime charged). [¶] There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device.] Therefore, a reasonable and good faith belief that there was a voluntary consent is a defense to such a charge[.] [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]
The court rejected the request on the ground that it was duplicative of other instructions. The instructions to which the court referred, CALJIC Nos. 2.60, 2.61, 1.23.1, and 2.20, overlap with defendant’s proffered instruction insofar as they informed the jury that consent is an element of the sexual offenses; not to draw any inferences from the fact that defendant did not testify; that the testimony of one witness concerning any fact is sufficient proof of that fact; and to weigh the credibility of witnesses by considering various factors such as the witness’s ability to perceive, bias, interest, motive to lie, demeanor, attitude, and prior convictions. But these instructions did not apprise the jury of the core of the Mayberry defense, i.e., that defendant could not be convicted if he had a mistaken but reasonable and bona fide belief that T.A. consented to the charged acts. (See, e.g., People v. Castillo (1987) 193 Cal.App.3d 119, 124-125.)
The court did, however, instruct the jury that a reasonable and good faith but mistaken belief in consent is a defense to kidnapping. With respect to that offense, the jury was instructed that “It is a defense to the charge of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. If from all the evidence you have a reasonable doubt that the defendant harbored general criminal intent at or during the time of the movement, you must find him not guilty of kidnapping.”
A Mayberry instruction is required if “there is substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented . . . .” (People v. Williams (1992) 4 Cal.4th 354, 361.) Defendant maintains T.A. evidenced equivocal conduct warranting the instruction when she remained in the van while he tried to rent a motel room, and thus provided him with a reasonable basis to believe she consented to the sexual activity that followed. Assuming arguendo that defendant could have interpreted T.A.’s conduct to be her consent, any error was harmless beyond a reasonable doubt. (People v. Flood, supra, 18 Cal.4th at pp. 502-503; Chapman v. California (1967) 386 U.S. 18, 24.)
Defendant cites People v. Mayberry, supra, 15 Cal.3d at pp. 157-158 and People v. Burnham (1986) 176 Cal.App.3d 1134, 1150 for their statements that failure to instruct on an element is reversible per se unless the point was necessarily resolved against defendant under other instructions. In People v. Flood (1998) 18 Cal.4th 470, however, the Supreme Court analyzed the precedent underlying those cases and rejected the prior rule that instructional error that improperly describes or omits an element of a crime is reversible regardless of prejudice. (Id. at pp. 482-491, 502-503; see also People v. Magee (2003) 107 Cal.App.4th 188, 193-194.) Defendant’s authorities are therefore no longer good law on this point.
The Mayberry defense has both a subjective and an objective component. “The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.)
Here, no matter what the jury could have believed about defendant’s subjective understanding when T.A. agreed to exchange sex for drugs or stayed in the van while he tried to book a room, the evidence was unequivocal, and overwhelming that defendant committed the charged offenses during and after the delivery of a horrific beating, while T.A. wept, screamed, bled, and lost control of her bowels. Given T.A.’s detailed testimony about the assault, and the nature and severity of her injuries, it is inconceivable that the jury, if given a Mayberry instruction, would have found defendant actually believed he had her consent to the charged acts; it stretches credulity yet further to suggest the jury could have found that such a belief, even if subjectively held, was objectively reasonable. On this record the failure to give a Mayberry instruction was harmless beyond any doubt.
II. Uncharged Offenses
Defendant contends the court erred when it instructed the jury under slightly modified versions of CALJIC Nos. 2.50.01 and 2.50.1 that it could use his alleged prior acts of sexual misconduct, if proven by a preponderance of the evidence, as evidence of the charged crimes. The contention is meritless.
The court instructed the jury, in relevant part, that: “If you find that the defendant committed one or more prior sexual offenses, you may, but are not required to, infer that the defendant has 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 and did commit the crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes.” (See CALJIC No. 2.50.01.)
The jury was further instructed that “Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed sexual offenses other than those for which he is on trial. [¶] You must not consider this evidence to show the defendant had a disposition to commit sexual offenses unless you find by a preponderance of the evidence that the defendant committed the other sexual offenses. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” (See CALJIC No. 2.50.1.)
Defendant argues that these instructions violate federal and state standards of due process by “tell[ing] the jury that it can use disposition, as found by the preponderance of the evidence, not merely as some evidence of guilt, like flight, or fabricating evidence, but to find that [defendant] committed the charged offenses because he committed the uncharged offenses.” Our Supreme Court explicitly rejected the argument defendant makes in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016. As explained there, CALJIC No. 2.50.01 does not instruct the jury that it may base a conviction solely upon the uncharged conduct evidence; rather, it expressly directs that a finding by a preponderance of the evidence that the defendant committed the uncharged act is insufficient by itself to prove guilt of the charged offense beyond a reasonable doubt, and that the inference of propensity, if found, is simply one item to be considered with all of the evidence in determining whether the prosecution has proven guilt beyond a reasonable doubt. (Reliford, supra,at pp. 1013, 1016.) Reliford is binding on this court anddictates rejection of defendant’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Here, moreover, the jury was reminded under CALJIC No. 2.50.1 that “before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” The jury was properly instructed.
With one exception, the remaining cases defendant cites do not address these instructions. (See Rose v. Clark (1986) 478 U.S. 570, 580; People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 12; Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, 773.) The only cited case that does address the constitutionality of CALJIC Nos. 2.50.01 and 2.50.1, an unpublished memorandum opinion from the Ninth Circuit, questioned but declined to disturb a state Court of Appeal holding that earlier versions of these instructions were not reasonably likely to confuse jurors. (Smith v. Ryan (9th Cir., Nov. 5, 2007, No. 05-16072) 2007 W.L. 387589.) In any event we are not bound by decisions of federal courts of appeal on federal constitutional questions. (Debtor Reorganizers, Inc. v. State Bd. of Equalization (1976) 58 Cal.App.3d 691, 696.)
III. Ineffective Assistance of Counsel
Defendant’s contention that his trial attorney rendered ineffective legal assistance by failing to call hotel clerk Yolanda Armstrong to testify that T.A. reported being assaulted by two attackers’ warrants only brief discussion. The decision whether to call a particular witness is a matter of trial tactics, which a reviewing court generally will not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) In this case, the record shows that defense counsel made repeated efforts to find Armstrong but was unable to locate her and, consequently, to call her as a witness. Thus, not only has defendant failed to rebut the strong presumption of effective representation (see Strickland v. Washington (1984) 466 U.S. 668, 690); the record affirmatively establishes a reasonable explanation for counsel’s failure to call Armstrong to testify. (See People v. Diaz (1992) 3 Cal.4th 495, 574 [rejecting claim of ineffective assistance where counsel was unable to find a potentially favorable witness].)
IV. Cunningham/Blakely Error
The California Supreme Court has obviated defendant’s final claim, i.e., that he was wrongly denied a jury trial on factors used to determine whether his prison sentences will run concurrently or consecutively. (People v. Black (2005) 35 Cal.4th 1238, 1262-1264.) Black holds that “a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences.” (Id. at p. 1262.) That holding was not affected by the recent United States Supreme Court ruling that a jury trial is required on the aggravating factors used to impose an upper term under California’s determinate sentencing law, Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], which does not address the distinct issue of imposition of consecutive sentencing for separate crimes. Black is binding on this court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) and dispositive of defendant’s claim of sentencing error.
DISPOSITION
The judgment is affirmed.
We concur:, McGuiness, P.J., Parrilli, J.
[However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief.]
If after a consideration of all the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find [him] [her] not guilty of the crime.”