Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 204278
POLLAK, J.
Defendant Arvin Mackey appeals the judgment convicting him of rape by force and forcible sexual penetration and sentencing him to six years in prison. At trial, the jury was instructed that defendant was not guilty of the crime if he “actually and reasonably believed that the woman consented” to the sex acts. He contends that the court erred in failing sua sponte to instruct the jury that it should consider his mental impairment in deciding whether a reasonable person would have believed the victim consented and further that in evaluating the reasonableness of such a belief it should consider his mistake of fact as to the victim’s age. We find no instructional error and shall affirm the judgment.
Factual and Procedural History
Defendant was charged with one count of rape (Pen. Code, § 261, subd. (a)(2) ), one count of kidnapping to commit rape (§ 209, subd. (b)(1)), forcible oral copulation (§ 288a, subd. (c)(2)), and forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)). The information alleged further that counts one, three and four were committed under circumstances subjecting defendant to sentencing under the One Strike Law (§ 667.61, subds. (a)(d)(2), (a)(e)(1), (a)(e)(4).)
All statutory references are to the Penal Code.
At trial, the prosecution presented evidence of the following facts:
On October 3, 2007, around 6:30 a.m., the 15-year-old victim was approached by defendant as she was on her way to school. Defendant waived from his car window and asked her name and how old she was. The victim told him her name and that she was 15 years old. Defendant got out of his car and began walking next to her. He asked for her phone number. She initially refused, but then gave him a false phone number. When the victim refused defendant’s offer to drive her to school, he lifted his shirt to show her the handle of a handgun tucked in his waistband. He grabbed her wrist and the back of her neck and forced her into his car.
Defendant told the victim he would take her to school but first needed to stop for gas. He demanded that the victim give him $5 for gas. She initially refused, but then gave him the money. After they left the gas station, defendant unzipped his pants and forced the victim to touch his penis while he drove. He took her to a house where he raped and forcibly penetrated her with his fingers and forced her to orally copulate him. When the victim screamed and struggled, defendant became angry and told her he loved her.
Defendant ultimately drove the victim to school. As they arrived, however, defendant saw a security guard and drove away. Defendant told the victim he would bring her back later when the guard was gone because he did not want her to get in trouble for being late to school. They went to another gas station and two banks before defendant dropped the victim at the corner of 24th and Mission Streets. Before he would let her go, defendant demanded that the victim give him another $10. After leaving the car, the victim took the bus to her brother’s school where she called her mother. When she returned home, she told her mother what had happened and her mother took her to the hospital where she reported the crime to a nurse and later to a police officer.
Defendant’s recorded statement to the police was played for the jury. In it, he denied having sex with the victim and claimed that he did not know she was in high school. At trial, defendant testified that when he met the victim in the morning she told him she was going to school. When he offered her a ride she initially refused, but after talking for a moment she agreed and got in the car with him. After stopping at a gas station, he took her to her high school. He was surprised when the victim went along with his request to touch his penis while they were in the car. Once they arrived at her school, she said she did not want to go to school and would rather go with him, so they left. They went to a house where she willingly engaged in sexual activity with him. Thereafter, they went to two different banks and another gas station, before he dropped her off on Mission Street. He was shocked when the police later told him she had accused him of raping her. He claimed the victim had not told him how old she was and that based on the way she looked and acted he believed she was 18 years old.
An expert witness testified that defendant was impaired intellectually, with an IQ of 69, which placed him in the bottom 2 percent of the population. He explained that defendant’s level of intellect is “congruent with people who are mildly mentally retarded.” The expert was quick to qualify, however, that he was not concluding that defendant was mildly mentally retarded. Rather, he was “saying that... his intelligence or his cognitive ability level came out in that range” and that “when you get a score at that level, that’s an impaired intellectual ability finding.”
In closing argument, defendant’s attorney argued that the victim consented to the sexual encounter and that she fabricated the criminal charges to avoid being disciplined when her mother learned she had not been to school. He made no argument regarding an honest and reasonable but mistaken belief that the victim had consented and he disavowed any “mental state defense.” Counsel asserted that defendant’s disability should be considered only for the limited purpose of evaluating his conduct during the police interrogation.
The jury found defendant guilty of rape and forcible sexual penetration, not guilty of kidnapping to commit rape, and the one strike allegation not true. The court declared a mistrial as to the forcible oral copulation charge. The court imposed concurrent six-year midterm sentences for both convictions. Defendant filed a timely notice of appeal.
Discussion
1. The court did not err in failing sua sponte to instruct the jury that it should evaluate the reasonableness of defendant’s belief that the victim had consented from the point of view of a reasonable person with defendant’s mental capacity.
“Under People v. Mayberry (1975) 15 Cal.3d 143, a defendant who entertains both a reasonable and bona fide belief that the victim voluntarily consents to engage in the sexual offense does not have the necessary wrongful intent to be convicted of the crime. [Citations.] The rationale is simple: one who labors under a mistake of fact that negates the existence of any criminal intent cannot be convicted of a crime.” (People v. Castillo (1987) 193 Cal.App.3d 119, 124 (Castillo).) Consistent with this rule, the jury was instructed that defendant is not guilty of rape “if he actually and reasonably believed that the woman consented to the 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.” (CALCRIM No. 1000.) The jury was similarly instructed with respect to consent as a defense to forcible sexual penetration. (CALCRIM No. 1045.) Defendant contends the court erred in failing sua sponte to instruct that the reasonableness of his belief that the victim consented should be determined “from the standpoint of a person with a mental disability.” We disagree.
Defendant’s contention that the objectively reasonable person standard should be modified to take mental disabilities into account has repeatedly been rejected by California courts. In Castillo, the court held that the defendant’s moderate retardation was not relevant to whether he raped the victim under a reasonable but mistaken belief that she consented. (Castillo, supra, 193 Cal.App.3d at pp. 124-125.) The court observed that “[m]ental deprivation... never has been considered an attribute of the reasonable man.” (Id. at p. 124.) The court relied in part on People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083, in which the court held that expert testimony concerning a defendant’s delusion that her children were evil birds was not admissible to establish that she acted under a reasonable mistake of fact in inflicting corporal injury upon them. The court noted that one who commits what would otherwise be a crime under the influence of a mental disorder or condition “may represent a continuing threat” to society and “may be blameworthy to some degree, although perhaps not as much as a completely sane individual.” (Id. at pp. 1083-1084.) The defendant’s mental condition, the court observed, is taken into account by making available a plea of not guilty by reason of insanity, by admitting evidence of insanity to negate specific intent where that is an element of the offense, and by permitting consideration of the defendant’s impairments in mitigation of sentence. (Id. at p. 1084.) “This carefully balanced system, ” the court continued, “would be subverted, and the legitimate ends of criminal justice frustrated, ” if “irrational delusions... could provide a complete defense to general intent crimes by presenting them under the label of mistake of fact.” (Ibid.)
More recently, in People v. Jefferson (2004) 119 Cal.App.4th 508, 519, the court rejected the argument that the reasonable person standard should be the standard of a mentally ill person like the defendant in that case. “By definition, a reasonable person is not one who hears voices due to severe mental illness. In blunt fashion, our Supreme Court long ago defined a reasonable person as a ‘normal person.’ [Citation.] The reasonable person is an abstract individual of ordinary mental and physical capacity who is as prudent and careful as any situation would require him to be. [Citations.] [¶] The common law does not take account of a person’s mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds ‘the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.’ [Citation.] [¶] California criminal law reflects this principle by prohibiting the defendant from proving insanity in the same trial where guilt is established. The defendant is presumed sane in the guilt trial. He raises the defense of insanity by separate plea, and the issue is decided in a separate trial.” (Ibid.) In light of this well established authority and the absence of any published authority to the contrary, the trial court was bound to follow the holding in Castillo (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and certainly had no sua sponte obligation to instruct the jury as urged by defendant on appeal.
Defendant argues that the holding of Castillo is dicta with respect to the issue in this case because the issue here is the propriety of jury instructions whereas the issue in Castillo was the admissibility of evidence of mental retardation. He also argues that Gutierrez is distinguishable because unlike the defendant’s mental delusions in that case, the evidence here is that defendant’s “disability is both permanent and evident from an early age preceding the instant offense.” We see no meaningful distinction between those cases and the present one, and certainly none that gives rise to a sua sponte obligation to instruct the jury as defendant suggests.
Defendant contends that the holding in Castillo should be rejected in favor of authority recognizing the relevance of physical disabilities in determining the reasonableness of one’s conduct. Again we disagree. Defendant’s argument is based on an extension of the holding in People v. Mathews (1994) 25 Cal.App.4th 89. In that case the defendant, who was legally blind and partially deaf, was convicted of exhibiting a firearm in the presence of a peace officer. The jury was instructed that it must decide whether the accused “knew or reasonably should have known that the other person was a peace officer.” (Id. at p. 98, fn. 2.) On appeal, the court held that the trial court erred in rejecting the defendant’s request for the following special instruction: “ ‘If you find that the prosecution has not proven beyond a reasonable doubt and to a moral certainty the defendant was without sensory impairments then you must take those sensory impairments into consideration in determining whether defendant reasonably should have known that the intruders were peace officers engaged in the performance of their duties. [¶] In considering the self-defense issues, you must take into account any sensory impairment the defendant had in determining how a reasonable person with such disabilities would have acted.’ ” (People v. Mathews, supra, 25 Cal.App.4th at pp. 98-99.) The court recognized that under tort law “ ‘in determining the reasonableness of a person’s conduct, his or her... physical disability can be considered in defining the standard which he or she must meet.’ ” (Id. at p. 99, quoting Castillo, supra, 193 Cal.App.3d at p. 124.) The court concluded that this principle is equally applicable in the criminal law and may be required whenever a physically impaired defendant is held to the standard of a reasonable person. (Ibid; see also CALCRIM No. 3429 [“A person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation.”].)
Defendant contends that this court should extend the reasoning in Matthews and reject Castillo because “society’s perception of mental disease as distinct from a ‘physical’ disability has been dissipating” since Castillo was decided. He suggests that “there is no compelling reason for the courts to continue distinguishing between a physical or mental disability when construing whether an actor’s belief was reasonable under the circumstances.” However, although there may now be increased sensitivity to the reality of mental disorders and the needs of persons suffering from mental illness, there is still a recognized and significant distinction between mental and physical disabilities. The concept of a reasonable person necessarily refers to a person with normal mental acuity. Physical disabilities are not inconsistent with such a hypothetical construct, but mental disabilities are. “What is ‘apparent’ to a reasonable person who can see and hear is not ‘apparent’ to a person who is blind and hearing impaired.” (People v. Mathews, supra, 25 Cal.App.4th at p. 100.) Defendant’s position, if accepted, would substitute for the objective standard of what a reasonable person (with whatever physical disabilities the individual may have) would think or do, a standard that is essentially subjective-what the individual with his or her particular mental capacity would think or do. The courts in Castillo, Gutierrez, and Jefferson rejected such a standard in the criminal context, as have the courts in the civil context. (E.g., Fox v. City and County of San Francisco (1975) 47 Cal.App.3d 164, 169.) We see no basis on which to depart from the long-standing objective standard, which does not consider the defendant’s particular mental disability.
2. The court did not err in failing to instruct sua sponte on the mistake of fact defense.
Defendant argues that the court sua sponte should have instructed the jury with CALCRIM No. 3046 as follows: “The defendant is not guilty of forcible rape and/or forcible penetration if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit either of these crimes. [¶] If you find that the defendant believed that [the victim] was 18 years old or older and reasonably believed that she consented to having sex, he did not have the specific intent or mental state required for forcible rape or forcible penetration....” He argues that he mistakenly believed the victim was 18 and that this mistake of fact “played a part as to the issue of consent because it pertains to the issue of the reasonableness of [his] belief that [the victim] consented to intercourse.”
“In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘ “only if [1] it appears that the defendant is relying on such a defense, or [2] 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. Dominguez (2006) 39 Cal.4th 1141, 1148.) In this case, defendant did not proceed on a mistake-of-fact defense and there is little, if any, evidence in the record to support such a defense. At trial, defendant’s counsel argued that the victim had willingly engaged in the sexual acts with defendant and that she fabricated the criminal charges so that she would not be punished by her mother for missing school. At no point did he suggest that a reasonable person believing the victim was 18 rather than 15 years of age would have believed that the victim’s conduct evidenced consent. Moreover, although defendant testified that he believed the victim was 18 years old, that testimony was hardly credible in light of the victim’s testimony that she told defendant she was 15 and on her way to school. Defendant himself testified that the victim told him she was on her way to school and that he drove her to her high school before engaging in the sexual conduct for which he was convicted. Accordingly, the court was under no obligation to offer additional instructions on a defense that was neither relied on nor supported by the evidence presented at trial. (Id. at pp. 1147-1148.)
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.