Opinion
A157186
05-22-2020
The PEOPLE, Plaintiff and Respondent, v. Rafael DUARTE-LARA, Defendant and Appellant.
Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Katie L. Stowe, Deputy Attorney General, for Plaintiff and Respondent. First District Appellant Project, Jennifer A. Mannix for Defendant and Appellant.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of Part II and Part III of the Discussion.
Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Katie L. Stowe, Deputy Attorney General, for Plaintiff and Respondent.
First District Appellant Project, Jennifer A. Mannix for Defendant and Appellant.
Petrou, J. Rafael Duarte-Lara (defendant) was convicted of the felony offense of sexual penetration with a foreign object of a minor 14 years or older accomplished by force, violence, duress, menace, or fear of bodily injury. ( Pen. Code § 289, subd. (a)(1)(c). ) He was sentenced to the lower term of six years in state prison.
All further statutory references are to the Penal Code.
Defendant challenges his conviction on two grounds: (1) the trial court’s refusal to instruct the jury on the defense of reasonable and good faith belief in consent ( CALCRIM No. 1045 ); and (2) remarks made during the prosecutor’s closing arguments. Defendant challenges his sentence on the basis that the court imposed fines and assessments without determining his ability to pay. As defendant’s challenges to his conviction and sentence are either without merit or not preserved for appellate review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, defendant sexually assaulted a 16-year-old female relative by penetrating her vagina with his finger. The People’s case consisted of two days of testimony from three witnesses—the victim and two family members to whom the victim reported the sexual assault within an hour of its occurrence.
The victim described her family circumstances, living arrangements, and relationship with defendant. She had known defendant her entire life and called him her uncle, even though he was actually her second cousin. Defendant was around the same age as her father and about five inches taller than the victim. In the two years leading up to the incident, and at the time of the incident, the victim was living in her father’s apartment with defendant and other family members. Because she did not get along with her father, defendant was a "father figure" to her. Defendant talked to the victim every day, asked if she was hungry or needed a ride to school, and gave her money when she needed it for school.
On the evening of the incident, the victim took a shower and went to her bedroom, where she put on a large tee shirt and sweatpants and got into bed. Defendant came into the room for some keys. He took the keys, left the room, and returned about five minutes later. By the time he returned, the victim had taken off her sweatpants and was under the blankets ready to sleep.
Defendant confirmed with the victim that she needed money for school. He put a $100 bill on the nightstand and told the victim to use $20 and return the rest. The victim said she was going to sleep, and they hugged goodnight. The victim felt "uncomfortable" as the hug lasted much longer than usual and defendant was "kind of holding on." Defendant asked if she wanted a back massage. His mother often gave the victim a shoulder massage, and the victim thought defendant wanted to give her a massage because he knew she been asking for one from his mother. She replied, " ‘[N]o, I’m okay.’ " When defendant "insisted on giving" the victim a massage, repeatedly saying, " ‘I’ll give you one. I’ll give you one,’ " the victim said " ‘Fine’ " and flipped onto her stomach. She thought he would give her a normal back massage like his mother would and she trusted him.
While standing over her, defendant proceeded to massage her shoulders with light pressure. As he moved his hands toward her lower back, he asked if she "liked it." The victim responded, " ‘Huh-uh,’ " meaning, " ‘No,’ " because he was moving his hands towards her lower back. Defendant moved his hands lower, brushing her buttocks and massaging her thighs. He again asked her if she liked it, and she again responded " ‘Huh-uh.’ " At that point, she felt worse and "went like into shock, basically." Defendant returned to her buttocks and massaged her there for 30 seconds, again asking if she "liked it." She again responded, " ‘Huh-uh.’ " Defendant then pulled the victim’s underwear down. She wondered why this was happening, was afraid, and she did not know why she did not scream or stop him. Defendant asked the victim if she needed new underwear and said he would buy them for her, to which she did not respond. He again asked her if she like it and she responded, " ‘Huh-uh.’ " Defendant did not push or hold her down but she continued to be in fear.
After removing her underwear, defendant touched her buttocks, asking her if she liked it and again she responded, " ‘Huh-uh.’ " The victim felt like she was in shock, "frozen." Defendant then touched her vaginal area, repeatedly asking if she liked it, and repeatedly receiving the response, " ‘Huh-uh.’ " He then inserted his finger into the victim’s vagina for five to ten seconds. At that point he told her to turn over. The victim pulled up her underwear, rolled away from defendant, sat up and said, " ‘No.’ " She had wanted to move away earlier but her "body was in shock." After she said no, he did not touch her again, told her good night, and tried to hug her but she did not hug him back.
Defendant made the victim promise not to tell anyone what had happened and said the victim could keep the money he had left on the nightstand. Once he left the bedroom, the victim locked the door, got dressed, and then quietly left home so as to avoid waking anyone. She felt she had to tell someone what happened because otherwise defendant might continue to abuse her or someone else. She took a bus to her grandfather’s home in San Francisco and arrived at the door crying uncontrollably and unable to speak. Eventually, she was able to tell her cousin’s mother that "her uncle had touched her in her private area." The victim then called her mother, who in turn called the police. The victim spoke to the police and went to the hospital.
Defendant did not testify or present any witnesses. He challenged the prosecution’s case through cross-examination, eliciting testimony that the witnesses did not know him to be angry, violent, or threatening and instead knew him as an easygoing person who was the "life of the party."
DISCUSSION
I. The Trial Court Did Not Err in Refusing to Instruct the Jury on the Defense of Reasonable and Good Faith Belief in Consent ( CALCRIM No. 1045 )
Defendant contends the trial court erred in refusing to instruct the jury on the defense of reasonable and good faith belief in the victim’s consent under People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337 (hereinafter referred to as the Mayberry instruction or defense; CALCRIM No. 1045 ). We see no merit to his claim of error.
A. Relevant Facts
During the jury instruction conference, defendant asked the court to give a Mayberry instruction, which would allow the jury to find defendant not guilty of criminal sexual penetration if he had a reasonable and good faith, albeit mistaken, belief the victim consented to his sexual conduct. Defense counsel argued that the jury could find, based solely on the victim’s testimony, that her conduct led defendant to believe that she had consented to sexual penetration.
The trial court denied the request for a Mayberry instruction because there was "no evidence that ... shows that she actually consented, or that she did anything that would give a reasonable person the belief that he could do what he’s charged of doing. [¶] There was no equivocal conduct on the part of [the victim] that would cause a reasonable person to believe that they could, at that point, insert their finger in her vagina. [¶] ... [¶] The fact she didn’t say, ‘No, stop’ is not evidence of equivocal behavior that would give permission to do what was done to her." Defense counsel responded by urging the court to consider the acts prior to the sexual penetration. Specifically, and according to the victim, defendant massaged various parts of her body including intimate areas without the victim ever clearly saying "No" or "Stop" or physically moving away from defendant. "I think the totality of circumstances would give a reasonable person the belief she is consenting." The court replied that defense counsel’s "reasonable person is somebody I do not know."
The court went on to explain that, contrary to defense counsel’s recitation of the facts, the victim had not been silent: "She said, ‘No’ every time he asked her, ‘Are you enjoying yourself?’ [¶] Or she said, ‘Huh-uh,’ indicating ‘no.’ .... [¶] Everything ... cited [by defense counsel] is passive. Passive in a situation that happened in a very short time period. [¶] This wasn’t a very long event – 30 seconds, 15 seconds.... [¶] She was basically froze[n], according to her own testimony .... [¶] ... [¶] Her passivity, if that’s the right word, or inaction, is not consent.... [¶] I’ve looked at the case law. [¶] ... [¶] ... [I]n all these cases, there’s some ... affirmative equivocal conduct which ... imparted a reasonable belief on the defendant that they were consenting to the next act. [¶] And I don’t see the point where that happened in this case. [¶] You said in your opening statement ... that ... defendant ... believed there was a ‘moment.’ [¶] ... [¶] He didn’t testify, so I don’t know what that ‘moment’ was; but I certainly didn’t hear it from the witness that at any time she did anything to give him the green light to put his fingers where he put his fingers. [¶] So I don’t think there’s substantial evidence in order to support that [instruction]."
Following further argument, the court again explained that the focus was on reasonable belief: "[T]here’s no evidence of any reasonable belief. [¶] And I do think that it’s proper to take into consideration, in terms of what is reasonable in the situation that, in addition to having no affirmative conduct of any type on the [victim] that would permit, or would ... infer any consent to this, we have a situation where this is a 16-year-old girl; this is her [relative] who she calls Tio who is 25 years older than her, when would a reasonable person think that, ‘I can do that.’ [¶] ... [¶] So I think that it’s proper to consider that. I would [make] the same ruling, even if there wasn’t an age difference and a relationship in this situation."
B. Analysis
In Mayberry , supra , 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, our Supreme Court "held that a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. [Citation.] Mayberry is predicated on the notion that ... reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. [Citation.]" ( People v. Williams (1992) 4 Cal.4th 354, 360, 14 Cal.Rptr.2d 441, 841 P.2d 961, fns. omitted ( Williams ).)
"The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual [conduct]. 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 [conduct], 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." ( Williams , supra , 4 Cal.4th at pp. 360-361, 14 Cal.Rptr.2d 441, 841 P.2d 961.) "[B]ecause 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 , at p. 362, 14 Cal.Rptr.2d 441, 841 P.2d 961.)
1. The Victim’s Age Did Not Preclude a Mayberry Instruction
The People argue that the Mayberry defense was not available because a minor is not legally able to consent to sexual conduct and thus, even if defendant had mistakenly believed the victim had consented, he would still be guilty of the crime of sexual penetration of a person under the age of 18 under subdivision (h) of section 289. This argument was not raised to the trial court.
In support of the argument on appeal, the People rely on inapposite cases involving possible good faith mistaken belief as to the age of a minor victim. ( In re Jennings (2004) 34 Cal.4th 254, 279, 17 Cal.Rptr.3d 645, 95 P.3d 906 ; People v. Branch (2010) 184 Cal.App.4th 516, 521-522, 109 Cal.Rptr.3d 412 ; People v. Scott (2000) 83 Cal.App.4th 784, 800, 100 Cal.Rptr.2d 70.) Here, we are concerned with the request for a Mayberry instruction based on substantial evidence of mistaken but good faith belief as to a minor’s consent, which is an element "incompatible with the existence of wrongful intent." ( Williams , supra , 4 Cal.4th at p. 360, 14 Cal.Rptr.2d 441, 841 P.2d 961.) By enacting both the crime of forcible sexual penetration under subdivision (a) of section 289, requiring an act to be committed against the victim’s will or consent, as well as the crime of sexual penetration under subdivision (h) of section 289, which makes no reference to a victim’s ability or inability to consent, the Legislature acknowledged (as it did when it amended the rape law to provide for forcible and statutory rape), that "in some cases at least, a minor may be capable of giving legal consent to sexual relations." ( People v. Tobias (2001) 25 Cal.4th 327, 333, 106 Cal.Rptr.2d 80, 21 P.3d 758 ; see People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620, 1 Cal.Rptr.3d 261 ["[t]he existence of such consent, of course, is the distinction between the crimes" of forcible and statutory rape].) Accordingly, when a defendant such as the one in this case is charged with forcible sexual penetration of a person 14 years or older under subdivision (a)(1)(c) of section 289, "the jury must set aside the statutory presumption that a person under 18 years of age is incapable of giving legal consent and must determine whether the elements of the more serious crime are met" ( People v. Giardino (2000) 82 Cal.App.4th 454, 467, fn. 6, 98 Cal.Rptr.2d 315.), and whether the defendant is entitled to avail himself of the Mayberry defense. ( People v. Anderson (1983) 144 Cal.App.3d 55, 60-62 [court held defendant entitled to avail himself of Mayberry instruction against two counts of forcible rape and two counts of forcible oral copulation on two girls 14 and 15 years of age]; see CALCRIM No. 1045.)
2. There was No Substantial Evidence Supporting a Mayberry Instruction
In seeking reversal, defendant focuses primarily, if not exclusively, on whether there was substantial evidence that the victim’s actions leading up to the sexual penetration were equivocal by evaluating whether the victim reacted or failed to react during every step of his conduct. He also emphasizes that it was only when he asked her to flip over that she told him to stop, and he complied. However, we conclude the court properly considered both the requisite subjective and objective components of the Mayberry defense when deciding not to give the requested instruction.
In addressing the subjective component of the Mayberry defense, the trial court found no substantial evidence of equivocal conduct on the part of the victim and no substantial evidence from which the jury could find defendant reasonably and in good faith, albeit mistakenly, believed the victim had consented to sexual penetration with a foreign object. We agree. The parties’ relationship was one closely akin to a father and daughter or uncle and niece. There was no evidence of a sexual relationship before that night. Her agreement to a massage was clearly not an agreement to sexual touching. Rather, her testimony gives rise to only one reasonable conclusion: that once he moved away from her shoulders she became frightened, froze, could say nothing more than "Huh-uh" (meaning "No"), and only found an ability to get away from him when he asked her to flip over and she was terrified of what might happen. In this context, and as the trial court correctly noted, the fact that the victim did not say, "No," or "Stop," or earlier move away from defendant is not substantial evidence of equivocal behavior that would lead a reasonable person to believe she was consenting to his conduct. In other words, defendant’s "[c]riminal invasion of [the victim’s] sexual privacy does not become [consensual] merely because the victim is too fearful or hesitant to say something to the effect that ‘I guess you know I don’t want you to do this?’ " ( People v. Bermudez (1984) 157 Cal.App.3d 619, 622, 203 Cal.Rptr. 728.)
Defendant’s reliance on People v. Andrews (2015) 234 Cal.App.4th 590, 184 Cal.Rptr.3d 183 ( Andrews ) is misplaced. In that case, the appellate court found a Mayberry instruction appropriate because "there was evidence – adduced through defendant’s testimony – that the sequence of events that led to defendant’s touching of the victim’s breast commenced with [the victim] Elizabeth’s poking of defendant with her finger while she was in the kitchen and then tugging on his clothes in a ‘playful manner.’ According to defendant, shortly thereafter, Elizabeth followed him to the living room and wrapped herself around him from behind. They then hugged. After he picked her up and they had accidentally fallen to the floor, Elizabeth told him her leg hurt and he got off of her. According to defendant, she then wrapped her legs around his waist and pulled him on top of her. After defendant unbuckled Elizabeth’s belt and unsnapped her pants, thinking that she wanted to have sex, she placed her hands over her zipper, which defendant interpreted as her nonverbally telling him to stop. Not saying anything, according to defendant, Elizabeth then pulled her shirt up over her bra. Defendant touched her breast over her bra. Defendant testified that at the time, he did not think he was doing anything that was unwanted. Elizabeth instructed defendant ‘ "No. Stop. Get off." ’ She seemed angry. Defendant said he complied immediately and Elizabeth left the apartment." ( Id . at pp. 603-604, 184 Cal.Rptr.3d 183.) The mere recitation of the scenario in Andrews demonstrates that it does not support the giving of a Mayberry instruction in this case.
Finally, even if defendant subjectively believed the victim consented to the penetration of her vagina, we agree with the trial court that the evidence of the victim’s multiple and unequivocal "Huh-uh" responses to defendant’s questions leading up to the sexual penetration fails to support the objective component of the Mayberry defense. As our Supreme Court has cautioned, "regardless of how strongly a defendant may subjectively believe a person has consented ..., 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." ( Williams , supra , 4 Cal.4th at p. 361, 14 Cal.Rptr.2d 441, 841 P.2d 961 ; italics added.) Here, the circumstances are not within those that "society will tolerate as reasonable." ( Ibid. )
In sum, we conclude the trial court did not err in refusing to instruct the jury on the Mayberry defense. Therefore, we do not reach defendant’s claim that the failure to give the instruction was prejudicial.
See footnote *, ante .
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Fujisaki, acting P.J.
Jackson, J.