Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI025400, J. David Mazurek, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant, Ponciano Rubio, had sexual intercourse with a 12-year-old girl three times and orally copulated her once, over a two-day period, and he provided her with methamphetamine and marijuana. Defendant was convicted by a jury of four counts of committing lewd acts on a minor (Pen. Code, § 288, subd. (a)), in addition to one count of possession of controlled substances (Health & Saf. Code, § 11377, subd. (a)), and one count of soliciting a minor to use or sell a narcotic. (Health & Saf. Code, § 11353.) He appeals the conviction for soliciting a minor to use narcotics only. He argues that the trial court erred by failing to instruct the jury that his mistaken belief that the victim was 18 was a defense to the crime of furnishing drugs to a minor. We disagree and affirm.
We will refer to the victim as “Jane Doe” to protect her privacy.
BACKGROUND
Jane Doe was 12 years old on September 27 and 28, 2006. She told the defendant she was 18. Approximately three weeks prior to September 27, 2006, Jane Doe noticed the defendant, who lived across the street, and thought he was cute. She crossed the street to ask him for a cigarette and struck up a conversation with him. She gave him her telephone number and he called her the next day. The defendant would pick her up and they would drive around together.
On the afternoon of September 27, 2006, Jane Doe went to the apartment of Jessica Enriquez, where a female named Latya was also present. When they were alone, Jane Doe had sexual intercourse with defendant. Later that evening, she went with the defendant and Latya to an Econo Lodge. The three of them smoked a marijuana cigarette laced with methamphetamine. She also snorted a line of methamphetamine. Defendant handed the methamphetamine to Latya who in turn handed it to Jane Doe because defendant did not want to be the one to give it to Jane Doe.
After using the drugs, defendant told Jane Doe to take a shower. When she returned to the room, she found Latya orally copulating defendant. Subsequently, Latya fondled and orally copulated Jane Doe. Then defendant and Jane Doe had sexual intercourse.
The next day, defendant and Jane Doe returned to Jessica Enriquez’s apartment. They went to the laundry room of the apartment complex where defendant instructed Jane Doe to bend over a washing machine and then had sexual intercourse with her. Jane Doe also smoked a methamphetamine-laced marijuana joint provided by defendant and Jessica.
At approximately 3:00 p.m., sheriff’s deputies arrived at the apartment after receiving an anonymous tip that drugs were being sold there. Defendant was laying on a mattress pretending to be asleep. A deputy searched defendant and found a small baggie with.32 grams of methamphetamine in his pocket. Inside a tennis shoe in the room was a box for a digital scale that was filled with empty plastic baggies just like the baggie found in defendant’s pocket. Defendant’s car was searched and a digital scale was found in a bag containing men’s clothing.
Defendant was interviewed at the police station after his arrest. He admitted that in the motel room he had sexual intercourse with Jane Doe twice and that he orally copulated her there. He also admitted having intercourse with Jane Doe in the laundry room of the apartment. He stated Jane Doe told him she was 18 but he doubted it was true. His friends did not think she was 18, but he was hoping she was 18.
Jane Doe was taken to a hospital for a sexual assault examination, which was performed by a forensic nurse. A blood sample drawn from Jane Doe tested positive for marijuana and methamphetamine.
After a jury trial, defendant was found guilty of one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1), four counts of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a), counts 2, 3, 4, and 6), and one count of soliciting a minor to use methamphetamine. (Health & Saf. Code, § 11353, count 5.) In a separate proceeding, the court found that three prison prior allegations (Pen. Code, § 667.5, subd. (b)), and one Strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were true. The defendant was sentenced to an aggregate term of 38 years four months, in state prison. Defendant timely appealed.
DISCUSSION
Defendant’s sole claim of error is that the court erred in failing to instruct the jury, sua sponte, that the defendant’s mistaken belief that Jane Doe was 18 was a defense to the crime of soliciting a minor to use methamphetamine. He argues that substantial evidence supported the instruction on mistake of fact, and that because he was plainly relying on such a defense, the failure to give the instruction violated his right to a fair trial. We disagree.
In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction. (People v. Cruz (2008) 44 Cal.4th 636, 664.) The court must instruct sua sponte on applicable defenses if not inconsistent with the defense theory of the case, but the defendant bears the initial burden of producing evidence to support a reasonable doubt whether he had a good faith belief. (See People v. Cole (2007) 156 Cal.App.4th 452, 483-484.) A trial court’s obligation to instruct on a particular defense sua sponte arises only if (1) it appears 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.)
An act committed under a mistake of fact which disproves any criminal intent is not a crime. (People v. Welch (1972) 8 Cal.3d 106, 119.) A mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. (People v. Ervin (1997) 53 Cal.App.4th 1323, 1330, citing People v. Lopez (1969) 271 Cal.App.2d 754, 760-761 (Lopez).) Where a defendant’s mistaken belief disproves criminal intent, there is a good defense. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1665.) However, a mistake of fact will disprove a criminal charge if the mistaken belief is honestly entertained based upon reasonable grounds, and of such a nature that the conduct would have been lawful and proper had the facts been as they were reasonably supposed to be. (People v. Scott (2000) 83 Cal.App.4th 784, 801.)
Defendant was convicted of violating Health and Safety Code section 11353, which provides, in relevant part that “[e]very person 18 years of age or over,... who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years.” In People v. Goldstein (1982) 130 Cal.App.3d 1024 (Goldstein), the defendant was charged with a violation of this code section for soliciting, inducing, encouraging, and intimidating a minor to knowingly use a narcotic. Because it is not a criminal offense to so “solicit, induce, encourage, and intimidate” an adult, the court recognized a mistake of age defense.
The defendant in this case was alleged to have sold, furnished, administered, gave, etc., a controlled substance to a minor (Health & Saf. Code, § 11353, subd. (c)), and not merely induce the minor to use illegal drugs. Further, the victim in this case was under the age of 14, a factor not present in Goldstein. (See People v. Olsen (1984) 36 Cal.3d 638, 644, fn. 14, distinguishing Goldstein.) Thus, the holding of Goldstein is not controlling here.
In Lopez, supra, 271 Cal.App.2d 754, a case more similar to the present case, the defendant was charged with offering to furnish a minor (who was an informant) with marijuana. (Health & Saf. Code, § 11352.) The defendant contended the jury should have been instructed on his mistaken belief that the informant was older than 21. The court rejected that claim because it was a felony to offer or furnish marijuana to anyone, regardless of age. (Lopez, supra, at pp. 760-761.) The court noted that because furnishing marijuana is a crime notwithstanding the age of the offeree, the age of the victim only related to the gravity of the offense, and was not a complete defense. (Ibid.)
The same reasoning was applied in People v. Williams (1991) 233 Cal.App.3d 407, where the reviewing court held that ignorance of the age of the offeree did not give rise to a mistake of fact defense to the crime of sale of cocaine to a minor. (Health & Saf. Code, § 11353.) The court observed that the specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor. (Williams, supra, at p. 411.) The court concluded that ignorance of the age of the offeree neither disproved criminal intent nor negated an evil design on the part of the offeror, so it did not give rise to a mistake of fact defense. (Ibid.)
The age provision of Health and Safety Code section 11353, merely affects the gravity of the offense. Even if Jane Doe were 18 as she represented, rather than 12, the defendant was still guilty of a crime because it is a felony to transport, sell, furnish, administer or give away controlled substances irrespective of the age of the offeree. (Health & Saf. Code, § 11352.) Defendant therefore is not in the same position as one who would be “morally innocent” had the facts been as he believed them. (See People v. Paz (2000) 80 Cal.App.4th 293, 300.) A person who sells controlled substances to a minor, even with a good faith and reasonable belief that the offeree is over 18 does so at his or her peril. (People v. Magpuso (1994) 23 Cal.App.4th 112, 118, citing People v. Olsen, supra, 36 Cal.3d at p. 649.)
Even if the defendant could claim that a mistake as to the age of a 12-year-old victim is a defense to a charge of furnishing controlled substances to a minor, there is insufficient evidence to support such a defense here. It is true that substantial evidence of a defendant’s state of mind may be found in the testimony of witnesses other than the defendant. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) In other words, the fact the defendant did not testify is not of legal significance in determining if there is substantial evidence of a defense not inconsistent with the defense theory of the case. (People v. DeLeon (1992) 10 Cal.App.4th 815, 825.)
However, the only evidence of defendant’s state of mind in this case showed he did not reasonably believe that Jane Doe was 18. In fact, he admitted having doubts that she was 18, but he hoped she was 18. Defendant’s own statement that he doubted Jane Doe was 18 contradicts any notion he reasonably believed she was 18. Under such circumstances, he was not entitled to an instruction on the defense of mistake. (See People v. Ramsey (2000) 79 Cal.App.4th 621, 633 [defense theory that no pollutants had entered the river was inconsistent with the requested instruction regarding an accidental discharge]; see also, People v. Sullivan (1989) 215 Cal.App.3d 1446, 1453 [defendant’s version of the facts showing he made a conscious decision to exercise control over methamphetamine for an extended period was inconsistent with instructions as to fleeting possession].)
Here, no instructions as to mistake of fact were requested, and the only evidence as to defendant’s mental state showed he doubted that Jane Doe was 18. His doubts as to her age belie any assertion he reasonably believed she was 18. There was no error in failing to instruct the jury, sua sponte, on the affirmative defense of mistake as to Jane Doe’s age.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P. J., King J.