Opinion
F083670
03-27-2023
THE PEOPLE, Plaintiff and Respondent, v. GERARDO RODRIGUEZ, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF167915A, John W. Lua, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
A jury found defendant Gerardo Rodriguez guilty of first degree murder and found true a special circumstance that defendant committed the murder during the commission or attempted commission of a rape. In this appeal, defendant solely challenges the trial court's purported failure to, sua sponte, instruct the jury that the Mayberry instruction given as part of the instruction on completed rape also applied to attempted rape. (See People v. Mayberry (1975) 15 Cal.3d 143, 155 (Mayberry) [a defendant's reasonable and good faith mistake of fact that victim consented to sexual intercourse is a defense to rape].) We affirm the judgment and order correction of an error in the abstract of judgment.
PROCEDURAL SUMMARY
On January 5, 2021, the Kern County District Attorney filed an amended information charging defendant with premeditated murder (Pen. Code, § 187, subd. (a)) and alleging a special circumstance that defendant committed the murder during the commission or attempted commission of a rape (§ 190.2, subd. (a)(17)(C)).(Undesignated statutory references are to the Penal Code.) After trial, on October 15, 2021, the jury found defendant guilty of first degree murder and found true the special circumstance. Accordingly, as mandated by law, the court sentenced defendant to life in prison without the possibility of parole. (§ 190.2, subd. (a).) This appeal followed.
The amended information also alleged as a second special circumstance that the murder occurred during the commission of rape by instrument (§ 289), but the People dismissed this second allegation during jury selection.
FACTUAL SUMMARY
Based on the nature of the challenge raised, we need not summarize all the evidence presented at trial. To give an overview, the jury heard testimony from 28 witnesses regarding the events and circumstances surrounding Stacy Duke's (the victim) visit to defendant's house on April 10, 2017, and the discovery of her lifeless body in his garage less than an hour later.
The victim-who was 15 years old but told people she was in her 20's-was driven to defendant's house by Lydia Ramirez, who was temporarily living there. Ramirez was a friend of defendant, and defendant had expressed a romantic interest in her, though she did not reciprocate. Ramirez was also an acquaintance of the victim's and had just picked her up on the street to get her away from her ex-boyfriend, Brian M., who was verbally confronting her. According to Ramirez, when the victim got in her van, she said "her ex-boyfriend was trying to kill her." However, by all accounts, the victim was uninjured when she arrived at defendant's house.
The victim previously had told Ramirez she and defendant "used to date" although she now found him annoying and felt he "didn't get the hint." Still, soon after Ramirez and the victim arrived, the victim went with defendant to his detached garage at the rear of the house to smoke cigarettes.
Ramirez later walked toward the garage to retrieve some clothing she had stored there. As she approached, Ramirez heard defendant's voice from inside the garage, saying, "'Don't come in, don't come in.'" Ramirez entered anyway and saw defendant on top of the victim, holding her hands down as she was lying on her back with her legs to the side. Ramirez believed they were having sex, so she turned around quickly and walked out. She did not hear the victim say anything.
Ramirez went inside the house and then 10 or 15 minutes later went back to the garage and yelled at them to hurry up so she could get her things and leave. Ramirez then waited in the backyard until, at some point, defendant walked up behind her, said, "I love you," and went inside.
Ramirez then went into the garage to finally get her clothes, and she saw the victim still lying on the floor in the same spot as before. Ramirez soon realized that the victim was not moving or breathing. When she saw the victim's lips and neck were "purple and blue," she screamed and ran inside. She ran into defendant and asked him what he had done, noting that the victim was not breathing. According to Ramirez, defendant "said he didn't do nothing"; "they were having sex," and she "must have [fallen] and bumped her head."
Eventually, Ramirez called 911 to request an ambulance. At one point, she passed the phone to defendant who told the 911 dispatcher he and his "girlfriend" had been having sex but then she swallowed something and fell-and he thought she overdosed. The fire department responded to the scene around 5:45 p.m. The firefighters prepared to perform life-saving measures but soon realized the victim was already deceased.
Both the firefighters and the police who were summoned soon after observed numerous signs that the victim had been strangled. The coroner who performed the autopsy confirmed that manual strangulation was the cause of death. According to his testimony, the victim's strangulation injuries were by far the most significant he had seen in a case outside the prison system. The coroner also observed bruising around the victim's left eye, consistent with being struck, a bruise on her leg, and an internal scalp lesion consistent with hair being pulled forcefully.
A forensic sexual assault team also inspected the victim's body (before the autopsy). The forensic nurse observed internal abrasions and lacerations, as well as redness of the hymen, which were consistent with forced sexual assault. The nurse testified that lacerations are rarely seen and are caused by blunt force trauma. Although she could not date the injuries, their appearance was consistent with having occurred on the date in question.
Defendant did not testify at trial. The defense case consisted of briefly recalling two witnesses: the victim's ex-boyfriend, Brian M., to inquire further about his sidewalk confrontation with the victim; and the homicide detective to inquire about a phone number written on the victim's hand.
DISCUSSION
I. Claim of Instructional Error
As his sole contention on appeal, defendant argues the trial court erred by failing to, sua sponte, instruct the jury that if defendant had a reasonable belief in consent to sexual intercourse, then it could not find true the special circumstance of murder during attempted rape. (See Mayberry, supra, 15 Cal.3d 143.) Defendant acknowledges the trial court did give a Mayberry instruction as part of the instruction regarding completed rape, but he argues the court did not make it sufficiently clear this defense applied equally to the commission of attempted rape. We reject this claim because there was no duty to give a Mayberry instruction at all in this case, and even if there were, the combination of the instructions adequately gave it.
A. Standard of Review
We review claims of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We consider "whether, 'in the context of the instructions as a whole and the trial record, there is a reasonable likelihood that the jury was misled to defendant's prejudice.'" (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) In conducting this inquiry, "'"'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]"'" (Ibid.)
B. Relevant Law
As first held in Mayberry, "a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape." (People v. Williams (1992) 4 Cal.4th 354, 360 (Williams).) It is also a defense to attempted rape since such mistake of fact negates the element of specific intent to commit rape. (People v. Sojka (2011) 196 Cal.App.4th 733, 737-739 [reversing attempted rape conviction for prejudicial failure to provide Mayberry instruction]; see People v. Lee (2011) 51 Cal.4th 620, 639-641 [upholding instructions on attempted rape special circumstance that included a modified Mayberry instruction].)
"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." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "The court has a sua sponte duty to give a Mayberry instruction about good faith and reasonable belief in the victim's consent '"if it appears ... 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. Molano (2019) 7 Cal.5th 620, 667 (Molano).) Specifically, "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." (Williams, supra, 4 Cal.4th at p. 362.) To satisfy Mayberry's subjective component, a defendant "must produce some evidence of the victim's equivocal conduct that led him reasonably to believe she consented to the act." (People v. Maury (2003) 30 Cal.4th 342, 424 (Maury). In other words, to warrant the instruction, "the record must contain evidence, whether direct or circumstantial, of the defendant's state of mind at the time the offense was committed." (Id. at p. 425.) "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 .." (Williams, at p. 361; see Mayberry, supra, 15 Cal.3d at p. 157.)
C. Analysis
Because defendant did not object to the rape-related instructions given or request the clarification of the attempt instruction now at issue, the question is whether the trial court failed in executing its sua sponte instructional duty. We conclude it did not, both because no Mayberry instruction was required and because the instructions given adequately informed the jury of the Mayberry defense for both rape and attempted rape.
We do not separately address the People's argument that defendant forfeited this claim of instructional error by not requesting clarifying or amplifying language at trial. (See People v. Lee, supra, 51 Cal.4th at p. 638.) To so conclude-given the trial court's sua sponte duty-we would have to determine the instructions as given both correctly stated the law and were responsive to the evidence. (See People v. Martinez, supra, 47 Cal.4th at p. 953; Molano, supra, 7 Cal.5th at p. 667.) As we explain, this is effectively the conclusion we reach on the merits. However, we decline to rest our holding in terms of forfeiture because, to the extent defendant is claiming the ambiguity rendered the instructions erroneous, his claim required no preservative action below. (See § 1259; People v. Sattiewhite, supra, 59 Cal.4th at p. 475; People v. Andrews (2015) 234 Cal.App.4th 590, 601, fn. 4.)
1. No Mayberry Instruction Was Required
We primarily affirm because the trial court was under no sua sponte duty to instruct the jury about a Mayberry defense at all in this case. There was no substantial evidence supporting a Mayberry defense, and such a defense was inconsistent with defendant's theory of the case. (See Molano, supra, 7 Cal.5th at p. 667 [sua sponte Mayberry instructional duty arises "'"if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case"'"].)
Defendant does not argue any express reliance on a Mayberry defense.
From opening statements through closing argument, defendant's theory of the case was that Ramirez was fabricating a narrative to implicate defendant as the victim's assailant when in reality the victim was assaulted by someone else-perhaps her exboyfriend, Brian M. In his opening statement, defense counsel emphasized to the jury the lack of evidence "that any kind of sexual encounter took place," setting aside Ramirez's account of seeing defendant on top of the victim in the garage. In summation, defense counsel put it even more bluntly: "[Defendant] didn't murder her. He didn't have sex with her nor did he even attempt to do so. All he did was have a cigarette with her." From defense counsel's arguments and lines of questioning in cross-examination, defendant's only discernible theory of the case was that Brian M., not defendant, strangled the victim in that garage; and Ramirez was setting up defendant through false testimony. Such a theory is totally incompatible with a simultaneous need for a Mayberry instruction. The jury heard evidence (from Ramirez's testimony and the 911 call transcript) that, when questioned about the victim's condition, defendant said they were having sex. However, defendant (who did not testify) never admitted that at trial. On the contrary, defense counsel argued defendant's reference on the 911 call to having had sex with his "girlfriend" was a reference to Ramirez, rather than to the victim. The absence of a defense theory that involved defendant and the victim engaging in sexual conduct made a Mayberry defense inconsistent with defendant's theory of the case. (See Maury, supra, 30 Cal.4th at p. 425 [Mayberry instruction would have been inconsistent with defendant's theory of the case where defendant attacked victim's credibility and "defendant never admitted that he engaged in sex with [her], consensual or otherwise"].)
Defendant now offers "[o]ne logical explanation" of what happened that day: He "intended to have consensual sexual intercourse with [the victim] and when he realized that was not going to happen he became angry and strangled her." However, the existence of some potential explanation of the evidence has no bearing on the trial court 's sua sponte duty to instruct if that explanation is inconsistent with the theory of the case actually presented at trial. (See Molano, supra, 7 Cal.5th at p. 667.) One of the necessary conditions to trigger a sua sponte Mayberry instructional duty is that the Mayberry defense "not [be] inconsistent with the defendant 's theory of the case." (Ibid.) Therefore, defendant's argument that the jury might not have adopted his theory of the case, with citation to the general substantial evidence standard of review, is unavailing.
Moreover, there was no substantial evidence supportive of a Mayberry defense. Defendant produced absolutely no evidence of "equivocal conduct" by the victim that "led him reasonably to believe she consented to the [sex] act." (Maury, supra, 30 Cal.4th at p. 424.) In fact, the jury heard no testimony describing the purported sexual encounter between defendant and the victim-other than Ramirez's brief account of seeing defendant on top of the victim, holding her hands down. Defendant did not testify or otherwise bring forth any evidence of how he and the victim were physically or verbally interacting at the time of the alleged rape or attempted rape. Thus, there was no evidence by which the jury could have assessed whether defendant (mistakenly) believed the victim consented to have sex with him. Having failed to satisfy this burden, defendant was not entitled to a sua sponte Mayberry instruction of any sort. (See Maury, at pp. 424-425 [no Mayberry instruction warranted where defendant did not testify and "offered no evidence showing he believed [the victim] had consented to sexual intercourse"]; Williams, supra, 4 Cal.4th at p. 361 [defendant's burden].)
Although, as discussed next, the trial court in fact gave a Mayberry instruction as part of the CALCRIM No. 1000 completed rape instruction, it was not required to do so on this record.
Of course, circumstantial evidence can suffice to show a defendant's mistake of fact as to consent. (See Maury, supra, 30 Cal.4th at p. 425 ["the record must contain evidence, whether direct or circumstantial, of the defendant's state of mind at the time the offense was committed" (italics added)].) Defendant offers the following as circumstantial evidence supporting a Mayberry instruction: (1) the victim willingly accompanying defendant to the garage, (2) defendant's flirtatious nature and reported inability to "get the hint," and (3) the lack of any cries for help by the victim when Ramirez walked in on what she believed to be the two of them having sex. These circumstances do not suffice, by a long shot, to show defendant's state of mind while engaging in whatever sexual activity occurred with the victim.
As to the first proffered circumstance, our Supreme Court has wisely rejected as "'obsolete and repugnant'" the "'idea that a woman loses her right to refuse sexual consent if she accompanies a man alone to a private place.'" (Williams, supra, 4 Cal.4th at p. 363.) "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." (Ibid.) The victim's willingness to go with defendant to the backyard, or even to the garage, does not shed light on defendant's belief in consent to intercourse; nor is it equivocal conduct on the victim's part.
As to the second, the limited evidence of defendant's overall flirtatiousness and obliviousness is far too generalized a circumstance to support defendant's belief in consent while engaged in sexual activity with the victim on the evening in question.
Finally, the fact that Ramirez did not hear the victim say anything when Ramirez first briefly entered the garage is not substantial evidence of equivocal conduct or mistaken belief in consent. As a general matter, a victim not crying for help rarely provides a basis for a defendant's good faith belief in consent; and in this case, the victim's failure to cry out at the specific moment when Ramirez was present (which may or may not have been while the victim could breathe) provides no circumstantial evidence of defendant's state of mind during the alleged sexual assault. (See Williams, supra, 4 Cal.4th at p. 363 [hotel clerk's "failure to hear [the victim]'s screams or struggling sheds no light on [the defendant]'s state of mind, or whether he misunderstood [the victim]'s conduct"]; cf. People v. Duarte-Lara (2020) 49 Cal.App.5th 332, 336, 340 [no substantial evidence for Mayberry instruction although minor victim never said "No" or "Stop" and never screamed].)
Accordingly, because no sua sponte instructional duty arose, there was no error in failing to give a Mayberry instruction directly targeted to the special circumstance of attempted rape. (See People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369 [no sua sponte duty to give Mayberry instruction where the "[d]efendant's counsel never suggested he was relying on the mistake of fact defense, tendered no evidence to support such a defense, and did not request the instruction defendant now claims it was error to withhold"].)
2. The Instructions Adequately Informed the Jury of the Mayberry Defense for Attempted Rape
Secondarily, even if a Mayberry instruction had been required, the combination of instructions given adequately informed the jury that reasonable belief in consent would negate the mental state required both for completed rape and attempted rape.
The amended information charged defendant with the special circumstance of committing murder during the commission or attempted commission of a rape (§ 190.2, subd. (a)(17)(C)). The prosecution proceeded on a theory that defendant at least attempted to rape the victim. Accordingly, the trial court gave the pattern CALCRIM No. 460 instruction on the elements of attempt other than attempted murder. The attempt instruction opened with a specification that it pertained to the special circumstance charged. It then laid out the elements of attempted rape:
"To prove that the defendant committed attempted rape, the People must prove that:
"1. The defendant took a direct but ineffective step toward committing rape; "AND
"2. The defendant intended to commit rape."
After several paragraphs explaining the direct step element, the instruction addressed the intent element by-as modeled by the pattern instruction-referring the jury to the instruction on the target offense: "To decide whether the defendant intended to commit rape, please refer to the separate instruction that I will give you on that crime. "
Immediately following on the next page of the instructions packet was the pattern CALCRIM No. 1000 instruction on the elements of rape. This rape instruction, like the attempt instruction, specified at the top that it pertained to the charged "special circumstance of murder committed while engaged in the commission or attempted commission of rape." At the end of the two-page rape instruction, the court included this pattern Mayberry defense language:
"The 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." (Italics added.) Defendant argues this combination of instructions failed to instruct the jury that it also could not find him guilty of attempted rape if he actually and reasonably believed the victim consented to intercourse. According to defendant, the attempt instruction logically directed the jury's attention to the four elements of rape, but not to the Mayberry defense. We are unpersuaded.
Neither the parties nor the record enlighten us as to what considerations or conversation might have led the court to include this Mayberry instruction, which (as discussed, ante) we view as unnecessary.
"[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." (People v. Martinez, supra, 47 Cal.4th at p. 954.) The rape instruction given as CALCRIM No. 1000 informed the jury of the legal effect mistaken belief in consent would have on defendant's guilt. Although CALCRIM No. 1000 did not include the word "intent" in the Mayberry portion, a reasonable juror would understand the reason mistaken belief in consent requires a not guilty finding as to rape is that in that scenario the defendant cannot intend to rape-i.e., to have sexual intercourse without consent.
A reasonable juror would therefore naturally apply the same rule in considering the second element of attempted rape-whether defendant "intended to commit rape"- seeing as CALCRIM No. 460 specifically directed the jury to the completed rape instruction (CALCRIM No. 1000) to assess intent. (See People v. Sattiewhite, supra, 59 Cal.4th at p. 475 ["'"'[W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]"'"].) The appearance of a Mayberry instruction in another cross-referenced instruction is often a significant factor in assessing claims that the jury was inadequately instructed on mistaken belief in consent. (See People v. Dillon (2009) 174 Cal.App.4th 1367, 1381 ["the reference to CALCRIM No. 1045 in CALCRIM No. 890 adequately informed jurors that [the defendant]'s reasonable belief in the victim's consent was a defense to the lesser included offense of assault with intent"]; see id. at p. 1383; People v. Sojka, supra, 196 Cal.App.4th at pp. 738-739 [reversing for lack of Mayberry instruction in part because this was "not a case where jurors were ever instructed on the legal effect mistaken belief in consent could have on the defendant 's guilt in another, albeit unrelated instruction"].) We find it dispositive here. Given the side-by-side appearance of the attempted rape and completed rape instructions, this was hardly the equivalent of expecting the jury to find a "needle in the haystack" as defendant contends.
This combination of instructions correctly informed the jury of the elements and legal defenses to the special circumstance of murder committed during the commission or attempted commission of rape.
II. Correcting the Abstract of Judgment
Although neither party raises the issue, we note the abstract of judgment reflects only the first degree murder conviction and omits any reference to the special circumstance finding. We sua sponte direct the trial court to correct this error because the issue seems to be straightforward. The trial court shall prepare an amended abstract of judgment that reflects in box 1 (the charges section) a violation of sections "187(a)/190.2(a)(17)(C)" for "special circumstance murder: first degree" as to count 1. Any party purporting to be aggrieved may petition for rehearing. (See People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may direct trial court to correct minute order and abstract of judgment to reflect oral pronouncement of judgment]; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457 [modifying the judgment without requesting supplemental briefing because both the error and appellate remedy were clear]; Gov. Code, § 68081.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect in box 1 a violation of sections "187(a)/190.2(a)(17)(C)" for "special circumstance murder: first degree" as to count 1. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: FRANSON, Acting P. J., SMITH, J.