Opinion
E051031
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. VALENTIN DIEGO MATEO, Defendant and Appellant.
Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Ronald A. Jakob, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF029196)
OPINION
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.
Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Ronald A. Jakob, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
Defendant Valentin Diego Mateo entered a coworker's residence at dawn and attempted to rape her. A jury convicted defendant of count 1, battery (§ 242); count 2, sexual assault during a residential burglary (§ 220, subd. (b)); count 3, sexual battery (§ 243.4, subd. (a)); and count 4, residential burglary (§ 459).)
The court sentenced defendant on count 2 to an indeterminate sentence of life in prison with the possibility of parole. The court imposed a concurrent term of 180 days on count 1. The court imposed and stayed the middle term of three years on count 3 and the middle term of four years on count 4.
On appeal, defendant challenges his convictions on counts 2 and 4, based on instructional error concerning intent, the defense of mistake of fact, and lesser included offenses. Defendant charges that the court's cumulative errors deprived defendant of his rights of due process and effective assistance of counsel.
We conclude the court properly instructed the jury on the mens rea for count 2 and the court had no sua sponte duty to give an instruction on the defense of mistake of fact. We reject defendant's claims of instructional error and affirm defendant's convictions on counts 1, 2, and 3. We agree with both parties that count 4 should be reversed because it is a lesser included offense of count 2.
II
FACTUAL BACKGROUND
Defendant and Jane Doe worked together at the Pechanga casino. They also socialized together occasionally. Defendant misinterpreted the nature of Jane Doe's interest in him. On two occasions in August 2009, he subjected her to unwanted attentions. Finally, Jane Doe reported defendant to legal authorities after an episode of forcible sexual conduct. Defendant contends that Jane Doe encouraged him and gave her consent.
A. Prosecution's Evidence
Jane Doe worked the graveyard shift at the Pechanga casino, manning the slot machines. Defendant was also a slot floor employee. Both Jane Doe and defendant were in an employee bowling league.
For about six months, defendant hinted he was romantically interested in Jane Doe. Jane Doe knew defendant was married and had children. In April 2009, they visited the Pala casino together. They also visited the Valley View buffet a week later. During that trip, defendant questioned Jane Doe about her sexual life and about her interest in him.
Defendant continued to flirt with Jane Doe, calling her "mango," "ripe," and "juicy." Finally, she complained to the casino's human resources department on April 25, 2009, and they were separated from working together. Jane Doe continued to encounter defendant at the bowling league and other social events. At a dinner party in June or July 2009, defendant attended with his wife and children. Defendant made Jane Doe uncomfortable by bringing her drinks and food until a coworker intervened.
Jane Doe lived in Temecula with her three children. Jane Doe had broken up with her boyfriend about a week before the incident on August 14, 2009.
On August 11, 2009, defendant offered Jane Doe a ride home from bowling. She accepted the ride because defendant had apologized to her and his children were with him. He asked to see her apartment and he wanted to know how much she was paying. While his kids waited in the car, he came up to see the apartment and talked about how he was planning to divorce his wife and rent his own place to live. When he asked about Jane Doe's recent separation from her boyfriend, she became emotional and tearful. Defendant followed her into the bedroom and tried to console her by hugging her and offering to "pop" her back. Then he grabbed her and kissed her, bruising her lip. She pushed him away and told him to leave.
On the night of August 13, 2009, Jane Doe went with some coworkers to the Silk nightclub for drinking and dancing. Her friend, Mike, was watching her children. Defendant was also at Silk but Jane Doe had little interaction with him. Jane Doe eventually left Silk and went with seven or eight others to the house of another friend, Patrick, for about two hours. Defendant arrived there and sat next to Jane Doe. Another friend, Jerome, drove Jane Doe home.
Defendant had previously offered to work on Jane Doe's car as a way of apologizing for his conduct. He was scheduled to do so the day after they visited Silk. When Jane Doe got home about 3:30 or 4:00 a.m. on the morning of August 14, 2009, Mike, the babysitter, was still there. Jane Doe went to sleep in the bedroom she shared with her daughter. Her next memory was awakening with defendant, not wearing pants or underwear, on top of her. Her pants were undone and he was trying to penetrate her with his penis.
Jane Doe asked, "How the hell did you get into my house?" and defendant responded that the door was open. He told her he was jealous and she had been ignoring him. She told him to leave or she would scream. She got up, changed clothes, and left the bedroom. She noticed the bedroom door had been locked. She was confused, angry, and crying. She yelled at Mike to make defendant leave. She was reluctant to call the police immediately.
Jane Doe's daughter, who was eight years old, testified that, when defendant came to their apartment, he knocked on the window, and told her to wake up her mother. Her mother did not wake up but mumbled some numbers. When the child went to the front door, defendant opened the door and entered the apartment. The child followed defendant into the bedroom where defendant asked Jane Doe about working on her car. Jane Doe again mumbled some numbers. Defendant told the daughter to leave and he locked the door. After a short time, Jane Doe emerged crying.
Defendant returned later that day to work on Jane Doe's car. He apologized for his earlier conduct. He worked on her car for two hours. Jane Doe felt too confused to talk to him but, after he left, she called the sheriff's department.
A deputy sheriff said Jane Doe reported that defendant fondled her breasts, genitals, and buttocks. Defendant had also tried to penetrate her with an erect penis. Jane Doe remembered saying defendant had touched her on the back, buttocks and genitals but not the breast.
Defendant was interviewed by a sheriff's detective. Defendant claimed he and Jane Doe had engaged in consensual hugging and kissing. On the morning he came to her apartment to work on the car, he got in bed with her and she agreed to have sex but then changed her mind. Defendant denied having intercourse but he admitted rubbing her genitals and performing oral copulation. During the interview, defendant wrote a letter of apology to Jane Doe asking for forgiveness.
B. Defense Evidence
Defendant testified that, after bowling on August 11, 2009, they kissed and hugged and Jane Doe allowed him to massage her. At Silk, they had conversation and defendant bought Jane Doe some drinks and held her wallet for her. After they went to Patrick's house, she left with Jerome.
On the morning of August 14, 2009, defendant came to Jane Doe's apartment, intending to fix her car. The sun was rising when he knocked on the bedroom window. Her daughter said her mother said she was sleeping. Defendant tried the front door and it was unlocked. He entered the apartment and knocked on the bedroom door. The child opened the door and he entered the bedroom and asked Jane Doe about the car. He told the child to wait outside and asked if he could lie down. Jane Doe agreed. She also agreed to his request to lock the bedroom door.
Defendant began caressing Jane Doe and she agreed to "make out." Defendant removed both their clothes and massaged her genitals and buttocks. When he initiated intercourse, she stopped him. Then she agreed he could perform oral copulation on her. The encounter continued until Mike knocked on the door and asked for a ride home.
Jane Doe asked defendant to leave but he wanted to stay and work on the car. Jane Doe dressed and left the bedroom. Mike came in and told defendant to go. Later Jane Doe called defendant about the car. He spent $123 on parts and worked on the car. Jane Doe told him she did not like what had happened earlier and he apologized for "rushing" the relationship. She assured him it was okay and not a problem.
III
INSTRUCTION ON INTENT
Defendant contends the court should have instructed the jury, when defendant entered Jane Doe's residence, he intended to have sexual intercourse with her while she was sleeping. Defendant claims the combination of CALJIC No. 9.10 and CALCRIM No. 1700 was too confusing for the jury.
We conduct an independent review of instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.) We conclude the court correctly instructed the jury as to the elements of sexual assault during the commission of residential burglary and any error was harmless.
A. Instructions Based On CALJIC No. 9.10 and CALCRIM No. 1700
In count 2 of the amended information, defendant was charged with violating section 220, subdivision (b), in that "he assaulted JANE DOE during the commission of a first degree burglary with the intent to commit mayhem, rape, sodomy, oral copulation, and a violation of sections 264.1, 288, and 289 of the Penal Code."
Section 220, subdivision (b), states: "Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole."
The court instructed the jury, based on CALJIC No. 9.10, as follows:
"Every person who assaults another with a specific intent to commit rape of an unconscious person during the commission of a burglary in the first degree is guilty of a violation of Penal Code section 220, subdivision (b), a crime.
"In order to prove this crime, each of the following elements must be proved:
"1. A person was assaulted;
"2. The assault was made with the specific intent to commit rape of an unconscious person; and
"The assault was committed during the commission of a first degree burglary.
"The crime of assault with intent to commit rape of an unconscious person is complete if an assault is made and at any moment during the assault the aggressor intends to commit rape of an unconscious person upon the person assaulted."
The court then instructed the jury on the elements of simple assault based on sections 240 and 241, subdivision (a), and CALCRIM No. 915.
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The court further instructed the jury based on CALCRIM No. 1003 and section 261, subdivision (a)(4), the People must prove that:
"3. The woman was unable to resist because she was unconscious of the nature of the act;
"AND
"4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.
"Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.
" A woman is unconscious of the nature of the act if she is []unconscious or asleep or not aware that the act is occurring."
Finally, with regard to burglary, the court instructed, based on section 459 and CALCRIM No. 1700, the People must prove that, when defendant entered Jane Doe's residence, "he intended to commit rape.
"To decide whether the defendant intended to commit sexual assault, please refer to the separate instructions [CALJIC No. 9.10] that I have given you on that crime.
"A burglary was committed if the defendant entered with the intent to commit rape. The defendant does not need to have actually committed rape[]as long as he entered with the intent to do so. The People do not have to prove that defendant actually committed rape.
"The People allege that the defendant intended to commit rape. You may not find the defendant guilty of burglary unless you all agree that he intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes he intended."
B. Analysis
In summary, defendant argues the court erred by giving CALCRIM No. 1700 combined with CALJIC No. 9.10 because the jury should have been instructed that, when defendant entered Jane Doe's apartment, he intended to rape her while she was sleeping. A fair reading of the instructions demonstrates the jury was instructed as the law requires.
The instruction of CALCRIM No. 1700 repeats four times the requirement that defendant must have intended to commit rape upon Jane Doe when he entered her apartment. The instruction also referred the jury to the separate instruction based on CALCRIM No. 9.10, concerning assault with the specific intent to commit rape of an unconscious person during a burglary. CALJIC No. 9.10 includes the instruction that the crime is committed if "at any moment during the assault the aggressor intends to commit rape of an unconscious person upon the person assaulted." In closing argument, the prosecutor reiterated the requirement of intent to commit felony rape as required for counts 2 and 4. The combined instructions of CALJIC No. 9.10 and CALCRIM Nos. 1003 and 1700 satisfied the law's requirement that, when defendant committed the assault, he intended to have sexual intercourse with Jane Doe while she was sleeping.
Defendant offers a number of hypotheticals, speculating about possible reasons for juror confusion. Notwithstanding defendant's efforts, we observe that the jury instructions, as given, were closely based on standardized instructions, correctly stating the law. We presume the jurors could understand, apply and correlate the court's instructions. (People v. Butler (2009) 46 Cal.4th 847, 873; People v. Sanchez (2001) 26 Cal.4th 834, 852.) Furthermore, the record does not supply any evidence of jury confusion or any reason for the jury to misconstrue the instructions. The read-backs requested by the jury pertained to a different charge of oral copulation, for which defendant was not convicted.
Defendant relies heavily on a general discussion of the principle of mens rea in People v. Dancy (2002) 102 Cal.App.4th 21, 37: "[R]ape of an unconscious person is not a strict liability offense because it has not just one but two separate mens rea requirements. A defendant may be convicted of rape of an unconscious person only if he had both knowledge of the person's unconsciousness and the wrongful intent to engage in an act of sexual intercourse with an unconscious person." The Dancy case was factually distinguishable because it involved the issue of consent but it did not involve rape of an unconscious person during a burglary. Nor does the Dancy case offer any basis on which to find the subject instructions constituted error. The instructions given were entirely consistent with the mens rea requirements discussed in Dancy.
Furthermore, any error was certainly harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Williams (2001) 26 Cal.4th 779, 790.) According to the evidence, defendant came to Jane Doe's apartment, early in the morning, only a few hours after they had both left a late-night party. When Jane Doe's daughter said her mother was sleeping, defendant entered the bedroom and locked the door. Taking advantage of Jane Doe's unconscious state, he subjected her to various kinds of sexual conduct. He admitted to the sheriff's deputy and at trial that was why he went to the apartment. In view of the record, any instructional error was harmless concerning the formation of intent to commit rape of an unconscious person during the commission of a burglary.
IV
INSTRUCTION ON DEFENSE OF MISTAKE OF FACT
Defendant next asserts the court also committed instructional error by not giving an instruction sua sponte on the defense of mistake of fact on the issue of whether Jane Doe was unconscious when defendant engaged in sexual conduct with her. Rape of an unconscious person requires the perpetrator know the victim is unconscious. (People v. Dancy, supra, 102 Cal.App.4th at p. 36.) The court instructed the jury that the People had to prove defendant knew Jane Doe was unconscious and unable to resist. (CALCRIM No. 1003.) Defendant's defense at trial was that Jane Doe was awake and consented. Therefore, defendant's proposed instruction was inconsistent with his theory of defense and the court had no obligation to give an instruction on mistake of fact. (People v. Russell (2006) 144 Cal.App.4th 1415, 1427.)
At trial, contradicting Jane Doe's testimony, defendant testified Jane Doe talked to him in the bedroom about her car and consented to him locking the door and joining her in bed. She agreed they could "make out" and accepted and encouraged his advances. She verbally objected only when he tried to penetrate her. Then she permitted him to copulate her orally. The defense attorney argued in closing argument that Jane Doe could not have been unconscious.
As the record shows, defendant did not argue he had an honest, and reasonable but mistaken, belief that Jane Doe was conscious although she actually was not. (People v. Giardino (2000) 82 Cal.App.4th 454, 472; People v. Russell, supra, 144 Cal.App.4th at pp. 1425-1426.) Instead, he argued that Jane Doe was conscious, awake, and consenting during the sexual encounter. Therefore, the trial court had no duty to instruct on the defense of mistake of fact. (Id. at p. 1427.)
Furthermore, any error was harmless. (People v. Russell, supra, 144 Cal.App.4th at p. 1431.) It is not reasonably probable that the jury would have found defendant had an honest, and reasonable but mistaken, belief that Jane Doe was conscious during his sexual assault. As described above, defendant arrived at her apartment in the early morning. Her daughter said Jane Doe was asleep and defendant locked the bedroom door and proceeded with his assault. In defendant's interview with the sheriff's deputy, defendant admitted that Jane Doe was talking in her sleep when he touched her genitals, orally copulated her, and attempted intercourse before she finally awoke and stopped him.
The jury had two choices: believing Jane Doe's testimony that she was asleep until she realized defendant was trying to penetrate her or believing defendant's story that she was conscious. The proposed third alternative—that defendant mistakenly thought Jane Doe was conscious when she was not—is inconsistent with defendant's theory of defense. Clearly, the jury could not have accepted defendant's alternate version of events. Any error was harmless.
V
LESSER INCLUDED OFFENSE FOR COUNT 2
The People concede the trial court erred, as argued by defendant, by not instructing the jury on count 2 on the separate lesser included offenses of simple assault with intent to commit rape and residential burglary. But the People argue the error was harmless because the jury convicted defendant of residential burglary as charged in count 4 and sexual battery in count 3. Hence, there is no reasonable probability of the jury convicting defendant on count 2 of the lesser included offense of simple assault with intent to commit rape rather than sexual assault during a residential burglary.
The People's argument is persuasive. Jane Doe testified that she awoke to find defendant pinning her down, trying to insert his penis into her vagina. Defendant admitted he tried to have sexual intercourse with her. Because the jury found defendant guilty of sexual battery and burglary in counts 3 and 4, it necessarily had to find defendant guilty of sexual assault during a residential burglary in count 2.
VI
DISPOSITION
We hold there was no prejudicial instructional error concerning intent, the defense of mistake of fact, or lesser included offenses. Consequently, we reject defendant's claims of cumulative error and ineffective assistance of counsel. (People v. Bradford (1997) 14 Cal.4th 1005, 1057; Strickland v. Washington (1984) 466 U.S. 668, 686-697.)
We affirm the judgment as to counts 1, 2, and 3. We order the judgment reversed as to count 4 because it is a lesser included offense of count 2.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
King
Acting P.J.
Miller
J.