COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ADAM MICHAEL HARRIS, DEFENDANT AND APPELLANT.
Super. Ct. No. SCD217769 APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
The opinion of the court was delivered by: Mcconnell, P. J.
P. v. Harris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted Adam Michael Harris of rape of an intoxicated person. (Pen. Code, § 261, subd. (a)(3).) The jury acquitted Harris of other counts, including a count of rape of an unconscious person (id., subd. (a)(4)) involving the same victim. The trial court sentenced him to the lower term of three years in prison.
Harris appeals, contending the trial court deprived him of his due process right to a fair trial by refusing to give a mistake of fact instruction. We conclude this contention lacks merit and affirm the judgment.
Harris lived in a house with Guillermo Perez and several other college students. One evening, Harris, Perez, and Perez's friend Natalie H.*fn2 hung out and had several drinks at the house. They then went to a party nearby and drank more alcohol. At the party, they met Kelly G., who had also been drinking and was "buzzed." The group continued drinking throughout the evening. When they returned to the house for the night, Kelly was "extremely drunk" and needed assistance walking. She planned to stay at the house and sleep with Perez, whom she found attractive. Her last memory of the evening was standing in the kitchen speaking with Perez, Natalie, Harris and one of Perez's other roommates.
According to Perez, when they reached the house, Kelly went to his bed, a mattress in the living/dining room, and lay down. He covered her and she fell right to sleep. Sometime after midnight, Perez went to the kitchen for a glass of water. As he was going back to the mattress, he saw Harris carrying Kelly. She was cradled in Harris's arms like a child. Her head was laid back and her limbs were hanging loose. Perez said to Harris, "What are you doing? Hand her to me." He grabbed Kelly from Harris and put her back on his mattress. Harris returned to his room. Kelly did not wake up at any time during this encounter.
About 20 minutes later, Perez went to the bathroom to brush his teeth and clean up. When Perez returned less than five minutes later, he noticed Kelly was not on his mattress. Perez quickly went to Harris's room and opened the door. He saw Harris standing on the floor, naked from the waist down, leaning over Kelly, who was motionless on the bed, also naked from the waist down. Perez yelled at Harris and pushed him to the side. Perez then scooped up Kelly, put her back on his mattress, and covered her up. Kelly did not wake up during this encounter either.
Perez returned to Harris's room to confront Harris. Harris said to Perez, "I'm sorry, and there's nothing wrong." Perez briefly returned to the living/dining room and then went back to Harris's room and asked Harris for Kelly's underwear. Harris grabbed Kelly's underwear and shorts and gave them to Perez. He told Perez, "Here. Take them. She pissed all over them anyway."
Kelly woke up the next morning around 7:00 a.m. She did not feel as if she had had sexual intercourse the night before. Although she was still drunk, she went home, changed, and went to work at 8:00 a.m. She did not sober up until 9:00 or 10:00 a.m.
The following evening Perez and another roommate went to see Kelly and told her what happened. She did not believe them at first. She did not remember meeting Harris or having sexual intercourse with him. She could not identify him in a photographic lineup or in court.
A subsequent sexual assault exam revealed some redness near Kelly's vaginal opening as well as tearing and swelling in the exterior portion of her anus. From these results, the examiner concluded it was possible a sexual assault occurred. Vaginal swabs taken from Kelly tested positive for semen, and a DNA analysis indicated the semen came from Harris.
Harris testified that on the day of the incident, he stopped at a liquor store after work and bought some alcohol because his roommates were more willing to hang out with him if he brought alcohol home. When he arrived at the house, Natalie and Perez were in the kitchen. Some of his other roommates and their friends were also at the house. He and Natalie started talking and "hit it off." He, Natalie, and Perez drank some alcohol and then decided to go to a party nearby. They brought some of Harris's alcohol with them. They ran into Kelly and the four of them shared Harris's alcohol and also drank beer from a keg that was at the party. When they finished Harris's alcohol, they got some more and continued drinking. At some point while they were at the party, Perez went to the bathroom and Kelly started flirting with Harris. Harris did not pursue it because he knew Kelly was with Perez.
Later, after the group had returned from the party and Natalie had left the house, Harris went into the kitchen to get some food and saw Perez and Kelly. Perez was asleep and Kelly was sitting up, awake and alert. Harris asked Kelly if she needed anything and she replied, "Yeah. Boxers and a bed." He told her he would give her a pair of boxers and invited her to his room. She led the way to his room and, once inside, immediately took off her shorts and underwear and sat on his bed. He kissed her, she responded, and they had sexual intercourse for five to 10 minutes. Although Kelly seemed "tipsy" in that she was "[t]oo drunk to drive but not too drunk to play beer pong," she did not slur her words, she seemed in control of her actions, and she had no trouble keeping her balance or walking to the bedroom. In addition, she was not passed out, unconscious, or asleep during the sexual intercourse. He would not have had sexual intercourse with her if she was asleep as he did not "think that would be very fun."
Perez came into Harris's room sometime after Harris and Kelly had finished having sexual intercourse and had fallen asleep. Perez said "Kelly, what the F are you doing?" Kelly told Perez to leave her alone. Perez grabbed Kelly's arm and threw her out. Perez then said to Harris, "What the F? Where's her clothes?" Harris pointed to them, picked them up, and threw them at Perez. Harris apologized to Perez because he knew Perez was hooking up with Kelly and he felt he "took advantage a little bit." Perez said he did not care, and told Harris, "You're f----d."
Harris denied ever picking Kelly up from Perez's mattress. Harris said he had nerve damage in one of his hands and it would have been "really hard" for him to pick up and cradle a girl.
On cross-examination, Harris clarified his acknowledgment of taking advantage of Kelly. He explained, "Taking advantage of a girl isn't raping a girl. That's why you go to the bar. It's not the right thing to do, but you buy a girl a drink for a reason, to break the ice, to make her comfortable. It wasn't rape."
During the jury instruction conference, the prosecution argued the trial court should not give a mistake of fact instruction because there was insufficient evidence to support the instruction. After hearing Harris's version of events, the trial court agreed and declined to give the instruction. Harris contends the trial court's refusal to give the instruction deprived him of his due process right to a fair trial. We disagree.
A defendant's reasonable and good faith, but mistaken, belief a person consented to sexual intercourse is a defense to rape because it negates the wrongful intent for the crime. (People v. Martinez (2010) 47 Cal.4th 911, 954 (Martinez); People v. Williams (1992) 4 Cal.4th 354, 360 (Williams); People v. Mayberry (1975) 15 Cal.3d 143, 155 (Mayberry).) By analogy, a defendant's reasonable and good faith, but mistaken, belief a person is not too intoxicated to consent to sexual intercourse is a defense to rape of an intoxicated person. (People v. Giardino (2000) 82 Cal.App.4th 454, 472.)
A jury instruction on this mistake of fact principle is colloquially referred to as a Mayberry instruction. (See, e.g., Williams, supra, 4 Cal.4th at p. 361.) In a case such as this one, a trial court must give a Mayberry instruction only when it is supported by substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe the victim was not too intoxicated to consent, even though she was. (See Williams, at pp. 361-362; Martinez, supra, 47 Cal.4th at p. 954.)
In this case, there is no evidence of any equivocal conduct by Kelly that would have led Harris to reasonably mistake her capacity to consent to sexual intercourse. Instead, the evidence was in stark contrast. Either Kelly was too intoxicated to do anything volitionally, or she was alert, in control, and initiated, then willingly and actively participated in sexual intercourse with Harris. "[T]hese contrasting scenarios 'create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victim's] conduct.' " (People v. Dominguez (2006) 39 Cal.4th 1141, 1149.) Accordingly, we conclude the trial court properly refused to give a Mayberry instruction in this case.
The jury's decision to acquit Harris of the rape of an unconscious person charge does not alter our conclusion. In closing argument, the prosecutor told the jurors that the two rape counts were alternate counts, that they should pick only one count to convict Harris, and that it did not matter which one they picked as long as they all agreed on it. Therefore, we cannot presume, as Harris asserts, that the jury acquitted him of the rape of an unconscious person count because they did not believe Kelly was unconscious during the sexual intercourse. Moreover, as we must review the verdicts on each count separately from one another, a seemingly inconsistent verdict on one count does not support a claim of instructional error on another count. (See People v. Lara (1996) 43 Cal.App.4th 1560, 1568, fn. 4.)
The judgment is affirmed.