[CERTIFIED FOR PARTIAL PUBLICATION[*]]
[As modified Mar. 4, 2015.]
Santa Clara County Super. Ct. No. F1242829, The Honorable Edward F. Lee.
[Copyrighted Material Omitted]
J. Wilder Lee under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Earnest L. Andrews was convicted by a jury of misdemeanor sexual battery of Elizabeth Doe (Pen. Code, §§ 242-243.4, subd. (e)(1); count 2). The jury also convicted defendant of three felonies (counts 3, 4 and 5) involving a second victim, Juanita Doe. But, as to the first victim (Elizabeth Doe), the jury acquitted defendant of rape (§ 261, subd. (a)(2); count 1) and the lesser-included offense of assault with intent to commit rape (§ 220). The court sentenced defendant to seven years in prison.
Defendant asserts three claims of error on appeal. First, he argues the court erred in failing to give an instruction under People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337] (Mayberry) for the misdemeanor sexual battery charge. The proposed instruction would have advised the jury that defendant’s honest and good faith belief that the victim had consented to the sexual contact would require a verdict of acquittal. The Mayberry instruction was given for the rape charge and the lesserincluded offense of assault with intent to commit rapeoffenses of which defendant was acquitted-but was not given for the misdemeanor sexual battery offense. Second, defendant argues that he received prejudicially ineffective assistance of counsel, based on counsel’s failure to make a motion for acquittal under section 1118.1 as to the sexual battery count after the prosecution rested. He contends the prosecution presented no evidence to support a conviction for that offense, and the only evidence upon which he could have been convicted was presented by defendant. Third, defendant contends there is an error in the abstract of judgment because it is inconsistent with the court’s oral pronouncement of the judgment.
We hold in the published portion of this opinion that where a defendant is charged with misdemeanor sexual battery, a Mayberry instruction must be given when there is substantial evidence to support the defense and it is not
inconsistent with the defendant’s theory of the case. Because we conclude the court erred in failing to give a Mayberry instruction in connection with the misdemeanor sexual battery charge, and this error was prejudicial, we will reverse the judgment. In the unpublished portion of the opinion, we conclude that defendant’s second claim of error that he received prejudicially ineffective assistance of counsel is without merit. We also conclude that the abstract of judgment must be corrected. Accordingly, we will reverse the judgment as to the misdemeanor sexual battery conviction and will remand this matter to the trial court for retrial or other proceedings as to that count and for amendment of the abstract of judgment.
I. Evidence Related to Counts 1 and 2 (Elizabeth Doe)
A. Prosecution Evidence
Elizabeth was a transient and an alcoholic. She met defendant through a friend who was also homeless. Defendant later invited Elizabeth to stay with him in his apartment on Ciolino Street in Morgan Hill, saying that he himself had been homeless for many years. After he told her it was a one-bedroom apartment, she said she would stay with him, but “no sex, and he agreed to it.” Elizabeth stayed with defendant for approximately two to three months. She slept on the floor, and they would watch television and drink beer. Elizabeth told defendant several times while she was living with him that she would not have sex with him.
Elizabeth testified that she did not recall the time of day that defendant raped her, but that it was still daytime and getting close to dusk. She had drunk probably five or six beers that day. She had gone to the apartment of her friend, Judy Glenn, and had played cards and listened to music. She then left and went to defendant’s apartment about one block away.
Elizabeth and defendant sat on the couch and had a beer. Sometime thereafter, defendant shoved her onto the floor. She “knocked out.” When she regained consciousness, she was on her stomach, and defendant was on her back “knocking [her] face to the carpet.” Her belt was undone and her pants were down. Defendant was behind her with his penis in her vagina. He was very heavy and she struggled unsuccessfully to get him off of her. She said, “ ‘No’ ” a number of times. At some point, defendant got off of Elizabeth. She pushed him away, pulled up her pants, and ran out of the apartment.
Elizabeth ran to Glenn’s apartment, holding her pants up with one hand. Elizabeth told her what happened and Glenn called the police on her cell phone. Elizabeth had carpet burns on the right side of her face.
Glenn testified that, as of October 2011, she lived about two blocks from defendant and they had known each other for years. They both lived in government-sponsored apartments for recovering alcoholics. Glenn had been acquainted with Elizabeth for one to two years. Glenn knew that Elizabeth had stayed with defendant for a period of time. Elizabeth would also stay periodically with Glenn and her husband “when [defendant] would kick her out.”
On October 20, 2011, Elizabeth had visited Glenn. Elizabeth had been drinking and had upset Glenn, who asked her to leave. Shortly afterward, Elizabeth returned and called to Glenn from outside the apartment, yelling several times that she had been raped. “She said[, ] ‘Ernie did it.’ ” Elizabeth “kind of threw herself” on Glenn’s porch, and Glenn and her husband helped her inside their apartment. Glenn observed that Elizabeth’s pants were unzipped and unbuttoned and there were rug burns on her face. Glenn got her cell phone, called 911, and handed Elizabeth the phone.
Officer Michael Brookman of the Morgan Hill Police Department was the first officer who responded to the scene, arriving shortly after 3:00 p.m. He contacted Elizabeth, who was sitting on the front steps of the apartment and was sobbing and screaming; she was holding her head and stomach. She screamed repeatedly, “ [‘]He raped me.[’] ” She also said, “ [‘]He beat me.[’] ” Officer Brookman testified that “[Elizabeth] was fairly intoxicated.” He observed that the right side of her face was scraped and she was bleeding slightly from her lower lip. She said she had sustained damage to her teeth from the incident. Her belt was undone with the buckle end pulled out partially, the top button of her pants was undone and the zipper was partially down. Elizabeth picked up the buckle end of her belt and showed it to the officer, indicating she had left it that way for him to observe. She was transported by ambulance to the hospital.
Elizabeth’s blood was drawn by a phlebotomist from Santa Clara County at 5:05 p.m. on October 20, 2011. The sample was tested by the Santa Clara County Crime Laboratory. It was determined that Elizabeth’s blood alcohol level was 0.24 percent.
Commencing at approximately 7:00 p.m. that same day, Kathleen Stallworth, a registered nurse at Santa Clara Valley Medical Center, performed a two-hour SART (Sexual Assault Response Team) examination upon Elizabeth. Stallworth observed that Elizabeth had an abrasion on her left lower lip, and had “rug burn type” abrasions on her right cheek, on the right side of her nose, and above her right eyebrow. Elizabeth also reported that she had “painful teeth.” Stallworth performed a genital examination of Elizabeth and noted that there was evidence of trauma, i.e., “injury, redness and swelling on
the labia [minora].” The condition could have been caused by a number of things, including a reaction to a chemical, a reaction to an animate or inanimate object, or an infection. The area of trauma was “in the general [region] of where many injuries are seen in sexual assault.”
During the SART examination, Stallworth took vaginal swabs from Elizabeth and made slides from them. The swabs and slides were tested by the Santa Clara County Crime ...