IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 23, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHRISTOPHER JOHN MCKINNEY, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. (Super.Ct.No. SWF022757)
The opinion of the court was delivered by: Richli J.
P. v. McKinney
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant and appellant Christopher J. McKinney guilty
of one count of sexual intercourse with an unconscious person in
violation of Penal Code section 261, subdivision (a)(4) (count 2).*fn1
Defendant was thereafter sentenced to the low term of
three years in state prison. Defendant's sole contention on appeal is
that the trial court prejudicially erred in failing to sua sponte
instruct the jury with the mistake-of-fact instruction (Judicial
Council of California Criminal Jury Instructions (CALCRIM) No. 3406).
We reject this contention and affirm the judgment.
I FACTUAL BACKGROUND
On August 30, 2007, Jane Doe, who had known defendant for approximately two weeks, went to defendant's friend's house, where she drank several cocktails and some beer. Defendant was interested in a romantic relationship with Jane; however, Jane merely wanted to be friends with defendant. Jane denied ever becoming romantically involved with defendant or having any physical contact with him.
Later in the evening, defendant and Jane went to a liquor store to purchase more alcohol. When they returned to defendant's friend's house, Jane drank some more beer. Sometime around 10:00 p.m., Jane told defendant that she needed to get home. Defendant attempted to hug and kiss Jane, but she rejected his advancements, which led to an argument. Defendant also desired to have sexual intercourse with Jane, but Jane told defendant "no" and insisted that she needed to get home.
Eventually, defendant agreed to drive Jane home. While in the car, the two continued to argue. Jane next remembered waking up on a couch with defendant lying on top of her with his penis inside her vagina. When she realized what was happening, she pushed defendant off of her, ran out of the house, and flagged down a police officer. She noticed that her underwear and shoes were missing.*fn2
On August 31, 2007, about 1:53 a.m., Riverside County Sheriff Deputy Brian Burgin was on patrol when he was flagged down by Jane. Jane appeared "hysterical" and was "barefoot." She told the deputy that she had just been raped by defendant. She explained to the deputy that she had been hanging out with defendant drinking alcohol until she passed out. When she awoke, defendant was on top of her having sex with her. She then began "kicking and screaming to get him off of her." About 2:40 a.m., Jane was transported to a medical center, where a registered nurse conducted a sexual assault examination on her. Jane informed the nurse that her last memory was of getting into a car and that when she awoke, her vagina was "being penetrated by a penis." A physical examination of Jane revealed tenderness and swelling around Jane's vaginal area and a red mark, consistent with a suction injury, on Jane's neck. Jane's injuries were consistent with the information provided by Jane.
Jane also spoke with Riverside County Sheriff Detective Tina Woodard. Jane informed the detective that she had been picked up from her house by defendant at around 7:30 p.m. They then went to defendant's friend's house where she drank four 10-ounce Jack Daniel's drinks, one 12-ounce beer, and one 24-ounce beer. Jane was feeling the effects of the alcohol.
Blood was drawn from Jane at 4:00 a.m. An analysis showed Jane's blood alcohol level to be .02 percent at that time. A toxicologist estimated that if Jane drank four Jack Daniel's cocktails and 36 ounces of beer between 8:30 p.m. and 10:45 p.m., her blood alcohol level would have been approximately .20 percent at 11:15 p.m., and at that level, a person would show signs of physical and mental impairment.*fn3 It would also not be unusual for that person to be incoherent or passed out.
On the morning of August 31, 2007, Detective Woodard interviewed defendant.*fn4 Defendant stated that he and Jane were dating, that Jane was bipolar, and that Jane was telling people that she was defendant's girlfriend. He further said that he had had sex with Jane at a friend's apartment four to six days before the incident and that on the night of the incident he had introduced Jane as his "girlfriend" to his friend Brian; he and Jane were holding hands and kissing. Defendant noted that Jane had had four Jack Daniel's cocktails and a few beers. Defendant believed Jane was "buzzed" but able to control herself. She "seemed coherent" and "alert." Defendant claimed that he had had two Jack Daniel's cocktails, one 12-ounce beer, and one 24-ounce beer and that he had smoked marijuana.
Defendant further explained that about 11:00 p.m., Jane wanted to go home. She appeared "[v]ery alert" when she got into defendant's truck. In the truck, Jane was kissing defendant's ear and holding his hand. Defendant pulled onto a dirt road, and the two had consensual sex. Jane thereafter "passed out." Defendant placed Jane's legs back into the truck because she was "just laying there," fastened her seat belt, and then drove back to Brian's house.*fn5 It was obvious to defendant that the alcohol had "taken over."
Once defendant got to Brian's house, Jane fell over in the driveway. Defendant picked her up and leaned her against his truck. Defendant then carried Jane up the stairs and laid her down on the couch. Defendant asked Jane if she wanted water and whether she was okay, but Jane just "mumbled" and appeared incoherent. Nonetheless, defendant claimed she was "there." Defendant laid on top of Jane and caressed her. Jane was kissing his ear and telling him she was "okay." Defendant initially denied trying to have intercourse with her, explaining that he was merely lying on top of her and holding her. Later, however, defendant admitted that he had tried to penetrate Jane with his penis, despite not knowing whether Jane was alert. It was at that point that Jane began screaming, flailing her arms, and telling defendant to get off of her and ran out the door. Defendant claimed that he was not "all there" either.
Defendant's defense essentially was to show that Jane's testimony was incredible, that she was a troubled girl, that she and defendant had a boyfriend/girlfriend relationship, and that the two were mutually affectionate. Defendant also claimed that Jane was conscious at the time of the events. In support, a defense toxicologist testified that, using the People's hypothetical of a 130-pound woman drinking four 10-ounce Jack Daniel's cocktails and 36 ounces of beer between 8:30 p.m. and 10:45 p.m., her blood alcohol level would be .13 percent at 11:15 p.m. and .07 percent at 4:00 a.m. The toxicologist believed that he would not expect a person with a .12 percent alcohol level to black out. He disagreed with the People's toxicologist that Jane's blood alcohol level at 11:15 p.m. could have been at .20 percent.
Defendant contends that the trial court prejudicially erred when it failed to sua sponte instruct the jury on the defense of mistake of fact pursuant to CALCRIM No. 3406*fn6 as it applied to defendant's knowledge that Jane was not conscious of what defendant was doing on the couch.
Penal Code section 261, subdivision (a)(4) provides that sexual intercourse with another person constitutes rape "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting because the victim meets one of the following conditions: [¶] (A) Was unconscious or asleep. [¶] (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. [¶] (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact."*fn7
Rape is a general intent crime and merely requires intent to do the prohibited act. (People v. Dancy (2002) 102 Cal.App.4th 21, 34.) The mental state requirement for rape of an unconscious person is only that the perpetrator knows the victim is unconscious and has the intent to have sexual intercourse with that person. "Hence, a person who intentionally has sexual intercourse with an unconscious victim knowing that the victim is unconscious commits rape of an unconscious person." (Ibid.) As the appellate court in Dancy recognized, rape of an unconscious person does not include a consent element. (Id. at p. 35.) Thus "sexual intercourse with an unconscious person is a criminal sexual offense regardless of real or hypothetical consent." (Ibid.)
"At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act with which the person [was] charged an innocent act, was a good defense." (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) The common law rule is codified in Penal Code section 26, subdivision three, which provides: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] . . . Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent." Under this defense, the defendant's guilt or innocence is determined "'"as if the facts were as he perceived them."' [Citations.]" (People v. Reed (1996) 53 Cal.App.4th 389, 396, italics omitted.)
The court "must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial." (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, the obligation to instruct on defenses such as mistake of fact arises "'only if it appears that 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. Barton (1995) 12 Cal.4th 186, 195.) There is no sua sponte duty to instruct on a defense if the evidence of that defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Russell, supra, 144 Cal.App.4th at p. 1424.)
In Russell, the Court of Appeal found the trial court prejudicially erred by not instructing on mistake of fact based on "relatively strong" evidence that the defendant believed a motorcycle was in fact abandoned, and that he held the belief in good faith. (People v. Russell, supra, 144 Cal.App.4th at p. 1433.) This evidence included the poor condition of the motorcycle, the fact that the defendant found it parked near some trash bins by a repair shop (id. at p. 1421), and the defendant's testimony, corroborated by other witnesses, that he asked an employee of the shop if the motorcycle had been left for repair and was told that it was not. Before the owner reported the vehicle stolen, the defendant also had been stopped for a traffic violation, and he told the citing officer he found the motorcycle and intended to register it in his name. The citing officer ran the vehicle identification number to confirm that the vehicle had not been reported stolen and, at the defendant's request, gave defendant the name of the registered owner. Before he was arrested, the defendant made an attempt to find the registered owner in the hope he would sign the vehicle over. (Id. at pp. 1422-1423, 1433.) In light of the relative strength of the evidence that the defendant believed in good faith the motorcycle had been abandoned, the court concluded it was reasonably probable the result would have been different had the court instructed on mistake of fact. (Id. at p. 1433.)
Unlike the defendant in Russell, defendant here did not concede that he honestly but mistakenly believed Jane was not unconscious. The record contains no direct testimony on defendant's relevant mental state, namely, whether defendant acted on the mistaken belief that Jane was conscious at the time of the sexual intercourse. In other words, there is no evidence in the record to suggest that defendant relied on the mistake-of-fact defense at trial or that there is substantial evidence to support such a defense. Rather, defendant's defense was that the People failed to prove beyond a reasonable doubt that defendant committed the charged crimes, as there was insufficient evidence to support the charges and Jane was an unbelievable witness. Defendant's defense was that defendant and Jane had an ongoing relationship, that she had consented to the sexual intercourse, and that she had been conscious. In support, defendant argued that Jane's story that she had blacked out was contrived and that the forensic evidence showed Jane's blood alcohol level was not up to the level where one would black out from alcohol use.
The only statements conceivably related to the defense of mistake of fact were defendant's meandering statements to the police that he believed Jane was conscious at or shortly before the sexual act. Specifically, while also acknowledging that Jane was passed out in his truck, defendant stated that he thought Jane was in control, or or "coherent," or "knew what was going on." However, at the time of trial, defendant's defense was that Jane was conscious at the time of the sexual intercourse, not that he honestly but mistakenly believed Jane was not unconscious. Under these circumstances and from our review of the record, we cannot say defendant relied upon the defense of mistake of fact or that there was substantial evidence to trigger a sua sponte obligation to give a mistake of fact instruction. (People v. Russell, supra, 144 Cal.App.4th at pp. 1427.)
Even if we assume for the sake of argument that the trial court erred in failing to sua sponte instruct the jury with a mistake of fact instruction, any error was harmless. Contrary to defendant's assertion, error in failing to instruct on this defense is subject to the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. Under this standard, a conviction of a charged offense may be reversed only if, after an examination of the entire cause, including the evidence, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Russell, supra, 144 Cal.App.4th at p. 1432.)
Here, it is undisputed that defendant had sexual intercourse with Jane on the couch of Brian's house. It is also undisputed that Jane had consumed four Jack Daniel's cocktails and 36 ounces of beer within a two-hour period. In addition, defendant's statements given to the police suggest that he was more than aware that Jane was unconscious at the time of the sexual intercourse. Defendant admitted that Jane was passed out in his truck. Indeed, defendant informed the detective that because Jane was inebriated, he had to lift her legs back into his truck and buckle her seatbelt for her. At Brian's house, Jane could not even stand up in the driveway, and defendant had to lean her up against his truck. Defendant then had to carry Jane over his shoulder into Brian's house. Defendant admitted that Jane was mumbling and incoherent. A review of defendant's entire statement to the detective shows that defendant could not reasonably have believed Jane was conscious. In other words, it is not reasonably probable the jury would have accepted defendant's claim of mistaken belief that Jane was conscious had the mistake of fact instruction been given.
Furthermore, CALCRIM No. 1003 adequately covered the mistake-of-fact theory. This instruction, which was given to the jury, required the jury to find that defendant "knew that the woman was unable to resist because she was unconscious of the nature of the act." This instruction clearly sets forth the defense that if defendant lacked knowledge of Jane's consciousness, he would be not guilty of violating Penal Code section 261, subdivision (a)(4). The failure to instruct on mistake of fact did not remove defendant's defense from the case and was adequately covered by the instructions as given.
Since it is not reasonably probable that a mistake of fact instruction would have produced a verdict more favorable to defendant, any error in failing to give such an instruction was not prejudicial.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RAMIREZ P.J. CODRINGTON J.*fn8