Return to CALJIC Part 9-12 – Contents
F 10.65 n1 Rape: Belief As To Consent — Evidence Necessary To Warrant Instruction (PC 261 & PC 263).
In People v. Williams (92) 4 C4th 354 [14 CR2d 441], the court held that “because 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.” (4 C4th at 362.) Hence, Williams effectively requires the defendant to corroborate his own testimony with conduct by the victim in order to obtain an instruction upon reasonable belief in consent. This requirement raises 14th Amendment due process considerations by precluding the defendant from obtaining a jury determination as to the credibility of the defense upon which he/she has relied. (See U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 [failure to instruct on theory of defense supported by the evidence violates due process].)
NOTE: Williams stated that the jury should be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that the equivocal conduct on part of the victim was the product of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (4 C4th at 364.)
The defense of reasonable belief as to consent is well established. (See People v. Mayberry (75) 15 C3d 143, 157-58 [125 CR 745].) Hence, when the record contains evidence that the defendant had a bona-fide and reasonable belief that the prosecutrix consented to the sexual intercourse, CJ 10.65 and CJ 10.66 should be given. (See People v. Simmons (89) 213 CA3d 573, 579-80 [261 CR 760].)
However, Simmons teaches that it is not enough to simply present evidence that the defendant and victim engaged in consensual sexual relations on prior occasions. In Simmons, the defendant presented such evidence but did not testify himself and did not present any other evidence either directly or circumstantially bearing on his state of mind at the time of the alleged offense. The Court of Appeal held that the defendant had no right to a Mayberry instruction under these circumstances.
This does not mean that the requisite evidence must come from the defendant. Circumstantial evidence of the defendant’s good faith belief in consent can be provided by the testimony of third persons. (People v. Anderson (83) 144 CA3d 55, 62 [192 CR 409].)
PRACTICE NOTE: Simmons illustrates the importance of obtaining pretrial rulings on jury instructions. (See FORECITE PG I(D).) If there is any question as to the sufficiency of the evidence to warrant a Mayberry instruction counsel could make a pretrial offer of proof — in camera if possible — in order to determine whether or not the proposed evidence will be sufficient to instruct upon the defense and to allow an opportunity to develop additional evidence during trial if necessary. The disposition of this pretrial request should allow counsel to make a more informed choice as to whether or not the defendant should testify.
To avoid premature revelation of defense strategies and evidence, the request and offer of proof could be made at the close of the prosecution’s case. However, by making the request pretrial, counsel will have the added advantage of utilizing cross- examination to cure any anticipated deficiencies in the evidence necessary to obtain the requested instruction.
F 10.65 n2 Rape: Belief As To Consent — The “Equivocal Conduct” Limitation On The Defense Of Reasonable Good Faith Belief Is Violative Of Due Process (PC 261 & PC 263).
In 1975, the California Supreme Court announced the rule that a defendant must be acquitted of sexual assault if he or she had a reasonable and good faith belief that the alleged victim consented to the sex acts in question. (People v. Mayberry (75) 15 C3d 143, 153-58 [125 CR 745].) Recently, the court has placed a severe limitation on the defense. Now, “a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent.” (People v. Williams (92) 4 C4th 354, 361 [14 CR2d 441].) Without doubt, the newly created limitation is unconstitutional.
At the outset, it is essential to note that Williams contains absolutely no explanation as to why “equivocal conduct” is a prerequisite to raising a mistake of fact defense. Indeed, no explanation exists since logic requires the opposite result. This is so because “[p]roof of unequivocal consent by the victim actually constitutes stronger evidence in support of a defendant’s belief, and the reasonableness of that belief, than evidence of equivocal conduct.” (People v. Burnham (86) 176 CA3d 1134, 1147 [222 CR 630].) Stated otherwise, if the defendant testifies that the alleged victim unequivocally consented, there is manifestly substantial evidence of a reasonable and good faith belief that consent was given.
Aside from the illogic of the Williams holding, the critical point is that it is at odds with the constitution. A defendant has an absolute right to present relevant evidence with respect to the elements of the offense charged. (Rock v. Arkansas (87) 483 US 44, 55-56 [93 LEd2d 37; 107 SCt 2704]; see also People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747]; but see FORECITE F 4.21 n11.) Indeed, the defendant’s constitutional right to present relevant evidence necessarily triumphs over a state’s contrary rule of exclusion. (Rock, 483 US at 55-56.)
Importantly, the California sexual assault statutes all require proof of at least general intent. Insofar as the defense of honest and reasonable belief as negating criminal intent was always a good defense at English common law (People v. Vogel (56) 46 C2d 798, 805 [299 P2d 850]), the question is whether California may irrationally dilute the defense by making it dependent on the alleged victim’s “unequivocal conduct.” Clearly, the constitution forbids the limitation devised in Williams.
In this regard, the due process clause forbids a state from defining its criminal laws in such a way as to offend “‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Citation].’” (McMillan v. Pennsylvania (86) 477 US 79, 85 [91 LEd2d 67; 106 SCt 2411].) Thus, due process is violated if a state uses “a freakish definition … [which] finds no analogue in history or the criminal law or other jurisdictions ….” (Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491] (plurality opn. of Souter, J.).)
In light of these principles, the “equivocal conduct” limitation certainly qualifies as being both “freakish” and contrary to traditional common law. Indeed to the extent that the limitation is truly irrational, it cannot be countenanced under both procedural and substantive due process principles. (See, e.g., Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904].)
In short, the constitution specifically allows a defendant to present relevant evidence in support of his cause, (Rock v. Arkansas, supra, 483 US 44, 55-56.) In any system of ordered liberty, a defendant must have the right to have the jury consider any competent evidence offered to disprove criminal intent. Our traditional notions of fair play require no less. (McMillan v. Pennsylvania, supra, 477 US 79, 85.)
F 10.65 n3 Rape: Belief As To Consent — Conflict Between CJ 10.61 and CJ 1.61.1 / CJ 10.66 (PC 261 & PC 263).
See FORECITE F 10.61 n1.
F 10.65 n4 Failure To Give Mistake As To Consent Instruction Sua Sponte As Reversible Error.
See Brief Bank # B-892 for briefing on this issue.
F 10.65a
Rape: Good Faith Belief In Consent — Definition of Good Faith
*Add to CJ 10.65:
A good faith belief is one which is honestly held.
Points and Authorities
People v. Trapps (84) 158 CA3d 265, 269 [204 CR 541]; see also People v. Nunn (56) 46 C2d 460, 468 [296 P2d 813].
F 10.65b
Modification of CJ 10.65 When The Defendant Is Charged
With Sexual Assault By Intoxication Or Anesthetic Substance
*Add to CJ 10.65:
When the defendant is charged with sexual assault by intoxication or anesthetic substance, the following modified version of CJ 10.65 should be given.
In the crime of [rape by intoxication, oral copulation by intoxication, sodomy by intoxication, penetration with a foreign object by intoxication], general criminal intent must exist at the time of the commission of the sex act. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was not so intoxicated that the person lacked the legal capacity to give consent. Legal capacity is the ability to exercise reasonable judgment, that is, to understand and weigh not only the physical nature of the act, but also its moral and probable consequences.
Therefore, a reasonable and good faith belief that the other person had the legal capacity to consent is a defense to [rape by intoxication, oral copulation by intoxication, sodomy by intoxication, penetration with a foreign object by intoxication]. If, after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the sex acts, you must find him not guilty.
Points and Authorities
In a proper case, the jury must be instructed that the honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to sexual assault by intoxication. (People v. Giardino (2000) 82 CA4th 454, 471-472.)
See also CJ 1.23.2 which provides the definition for the “prevented from resisting” element of the offense.
See also FORECITE F 10.02c.