Brief Bank # B-849 (Re: F 10.00 n10 [Rape: Belief As To Consent — Jury Should Consider Defendant’s Intoxication].)
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Date of Brief: March 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
Appeal from the Judgement of the Superior Court
for the State of California
Santa Clara County
HONORABLE MELINDA STEWART, JUDGE
JEFFREY J. GALE
Acting State public Defender
MICHAEL P. GOLDSTEIN
Deputy State Public Defender
Cal. State Bar No. 60358
221 Main Street, 10th Floor
San Francisco, CA 94105
Attorneys for Appellant
INSTRUCTING THAT INTOXICATION COULD NOT DIMINISH APPELLANT’S
CULPABILITY TOOK THE MISTAKE-OF-FACT ISSUE AWAY FROM THE JURY.
If Mr. Doe’s jury had a reasonable doubt as to his actual knowledge of Ms. J’s non-consent and whether a reasonable person would have known it, its duty was to acquit. (People v. Mayberry, supra, 15 Cal.3d 143, 155, 157.) The court below instructed the jury, using CALJIC No. 4.21.1, that it could not take into account Mr. Doe’s intoxication, except as it might have affected his forming the specific intent (to arouse Ms. J or gratify himself) required for conviction on the digital penetration and sexual battery counts. [Footnote 1] (CT 157-58, 164-72.) The court should also have permitted the jury to consider Mr. Doe’s actual mental state, including any intoxication, when determining the subjective prong of the mistake issue, i.e., whether he understood what Ms. J wanted. [Footnote 2]
This was prejudicial error; a jury that considered Mr. Doe’s intoxication was much more likely to have a reasonable doubt about his intent to proceed with knowledge of Ms. J’s non-consent. Instead, the instruction permitted the prosecutor to argue that the mistake-of-fact issue was irrelevant altogether, because the issue is not the belief “of a demented, assaultive [Footnote 3] young man who is high on methamphetamine.” (RT 1029.)
A. Intoxication Can Contribute to a Good Faith Belief in Consent, and a Jury Should Not Be Instructed Otherwise.
People v. Potter (1978) 77 Cal.App.3d 45, a First District case, summarily rejected a contention that intoxication should be considered on the knowledge element of rape. Potter neglected to apply established principles for deciding whether the effect of voluntary intoxication on a mental state may be considered by a jury. It is necessary to review those principles, which in fact require taking intoxication into account on the knowledge issue, before discussing Potter.
1. Determining the Role of Intoxication in Assessing Culpability for a Particular Offense is a Public Policy Choice.
The instruction at issue was based on Penal Code section 22, which provides broadly that voluntary intoxication makes no act committed in that state “less criminal,” but which permits considering the effect of intoxication evidence on “a required specific intent,” as well as on certain mental states relevant to murder. However, in People v. Mendoza, supra, 18 Cal.4th 1114, the Supreme Court reviewed the history of section 22 and the jurisprudence concerning it, reaffirming that the issue is one of policy choices, not labels.
The courts created the categories of specific and general intent in an attempt to determine when intoxication should be allowed to negate a required mental state. (People v. Mendoza, supra, 18 Cal.4th 1114, 1127; see also People v. Hood (1969) 1 Cal.3d 444, 455-57.) Thus the terms “are essentially ‘labels’ attached to particular crimes to identify them as admitting (‘specific intent’) or not admitting (‘general intent’) the defense of voluntary intoxication.” (In re M.S. (1995) 10 Cal.4th 698, 729 [conc. opn. of Mosk, J.].) They have also, however, acquired a life of their own, since they are often used in instructions in cases not involving intoxication. (See, e.g., People v. Dollar (1991) 228 Cal.App.3d 1335; cf. People v. Hering (1999) 20 Cal.4th 440, 446-47.) As the Court explained in Mendoza, the solution is a rough one:
“The division of crimes into two categories, one requiring ‘general intent’ and one ‘specific intent,’ is both simplistic . . . and potentially confusing. Ultimately, the designation of a mental state as specific or general for these purposes [materiality of intoxication] is a policy decision.” (People v. Mendoza, supra, 18 Cal.4th 1114, 1126-27.)
The Court largely relied on People v. Hood, supra, 1 Cal.3d 444, in explaining this conclusion, noting that in Hood itself, the conceptual definitions [Footnote 4] for specific and general intent actually permitted categorizing the intent required for the crimes considered there either way. Thus there was a need to take policy into account directly. (People v. Mendoza , supra, 18 Cal.4th 1114, 1127-28, citing People v. Hood, supra, 1 Cal.3d 444, 458.)
The problem in Mendoza was whether a jury should consider intoxication when determining whether an alleged aider and abettor knew of the perpetrator’s criminal purpose and intended to encourage or aid it. Reasoning that an innocent act, such as handing someone a baseball bat, should not be punished unless the requisite mental states of knowledge and intent regarding the recipient’s plan for using the bat exist in actual fact, the Court made the explicit policy choice that intoxication should be permitted to raise a reasonable doubt as to both knowledge and intent. [Footnote 5] (People v. Mendoza , supra,18 Cal.4th 1114,1128-30.)
In contrast, in People v. Hood, a leading case analyzing this kind of problem, the Court concluded that in the crimes of assault and assault with a deadly weapon, voluntary intoxication was immaterial. This was true even though the crimes require an attempt at a battery, which seems to imply a specific intent to batter. (People v. Hood , supra, 1 Cal.3d 444, 457-58; see also People v. Mendoza, supra, 18 Cal.4th 1114, 1127-28.) The reason for this conclusion was also public policy. The Court noted that “a drunk man” is as capable of intending to strike another as a sober person is, but less capable of exercising judgment or controlling impulses.
“It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.” (People v. Hood, supra, 1 Cal.3d 444, 458.)
Thus “the policy is based on a frank determination to remove intoxication . . . as a defense to assault with a deadly weapon.” (People v. Heckathorne (1988) 202 Cal.App.3d 458, 466 [conc. opn. of Crosby, J.])
In sum, whether courts label a crime one of specific or general intent for intoxication purposes is a policy question, not a matter of line-drawing based on conceptual categories. The pertinent considerations are the actual moral culpability of the intoxicated offender and whether protection of the interests furthered by the statute would be undermined by permitting an intoxication defense. (See People v. Hood, supra, 1 Cal.3d 444, 455.)
Moreover, there is another consideration. If a crime requires a particular mental state, federal due process requires giving a defendant the opportunity to prove that he did not possess that state. (People v. Saille (1991) 54 Cal.3d 1103, 1116-17.)
2. The Culpability Involved in Forcible Sex Crimes Should Permit Consideration of Intoxication on the Subjective Prong of Mistake of Fact.
People v. Mayberry, supra, 15 Cal.3d 143, first recognized the mistake-of-fact defense. The Court noted that, except where otherwise provided, crimes include an element of wrongful intent, and that one committing an act under a mistake of fact negating criminal intent is innocent. (Id. at p. 154, citing §§ 20 and 26.) Given the severe penalties and damage to reputation resulting from a rape conviction, the court found it “extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape.” (Id. at p. 155.) Hence it was error to refuse an instruction to acquit of rape “if the jury had a reasonable doubt as to whether [the defendant] reasonably and genuinely believed that [the complainant] freely consented . . . .” (Id. at pp. 153, 157.)
Here, as in Hood and Mendoza, the issue of intent to proceed with knowledge of non-consent can actually be characterized as one of specific or general intent. For example, there is no general right to an instruction on specific intent for crimes like rape. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 765 [§§ 286, 288a], overruled on another ground in People v. Flannel (1979) 25 Cal. 3d 668, 684; People v. Butcher (1959) 174 Cal.App.2d 722, 731 [§ 261].) Yet wrongful intent does not exist if one reasonably believes that the other person is consenting. (People v. Mayberry, supra, 15 Cal.3d 143, 153-57.) It does no violence to language to call this a specific-intent requirement: the crime requires both “the intent to sexually penetrate the victim and the intent to accomplish that act by force or fear” that overcomes the victim’s will. (People v. Burnham (1986) 176 Cal.App.3d 1134, 1140. See §§ 261, subd. (a)(2); 288a, subd. (a)(c)(2); 289, subd. (a)(1); 243.4, subd. (a).) Clearly the intent to overcome another’s will forcibly is much more “specific” than a simple intent to accomplish a sex act.
Analyzing the problem from the standpoint of culpability and the need to protect people from sexual assault shows that the reasonable-mistake-of-fact issue in a sex-crime prosecution is much more like the aiding and abetting problem of People v. Mendoza, supra, 18 Cal.4th 1114, than the simple or aggravated assault problem of People v. Hood, supra, 1 Cal.3d 444. A sexual act is normally engaged in innocently, as is the Mendoza exemplar of handing someone a baseball bat, so intent is crucial in determining culpability. In contrast, trying to strike someone or use a deadly weapon is an innocent act only in unusual circumstances justifying self-defense, which was not an issue in Hood. Alleged sex crimes fall into the class of cases where mens rea cannot be established without looking into the actual state of mind of the accused.
Mendoza also distinguished aiding and abetting from assault because an intoxication defense would cripple the law’s ability to deal with assaults, which are so often a result of intoxication. (People v. Mendoza, supra, 18 Cal.4th 1114, 1130; see also People v. Hood, supra,1 Cal.3d 444, 458.) Here, although intoxication may sometimes be a factor in rape, the mistake-of-fact defense contains an objective reasonableness requirement, which prevents excusing unreasonable sexual behavior for any reason. (People v. Williams (1992) 4 Cal. 4th 354, 361.) The potentially gaping loophole that concerned the Hood court is nonexistent here.
Intoxication can affect one’s perception of another’s intentions, which is why it is relevant to the aiding and abetting issue. There are no policy reasons for restraining a jury from taking this reality into account in the sex-crime setting as well. Moreover, as noted earlier, due process requires giving a defendant the opportunity to prove that he or she did not possess a particular mental state that is required as part of the definition of an offense. (People v. Saille, supra, 54 Cal.3d 1103, 1116-17.)
The only California case to analyze the question of intoxication and mistake of fact in forcible sex crimes was People v. Potter, supra, 77 Cal.App.3d 45. Potter did not apply the principles of Hood, Mayberry, or the subsequent Mendoza analysis, nor did it consider the constitutional issue, and it should not be followed by this Court. The court relied on conceptual categories rather than considering the policy issues. The opinion thus noted that rape has been held to be a general intent crime and simply concluded that intoxication could not, therefore, negate specific intent. (Id., at p. 51.) The Potter opinion failed to appreciate that “courts should avoid rote application” of the “difficult” categories of specific and general intent. (People v. Hering, supra, 20 Cal.4th 440, 445.)
Potter cited two cases for the proposition that rape is a general intent crime, but neither involved the issue at hand. The first, People v. Thornton, supra, 11 Cal.3d 738, 765, held that there was no right to a requested instruction, not specified in the opinion, on specific intent. Intoxication was not an issue; the defense was mistaken identity. (Id. at pp. 751-52.) But the criteria for specific intent as an element of an offense are not necessarily the same as the criteria for specific intent for determining the relevance of intoxication. (See People v. Fabris (1995) 31 Cal.App.4th 685, 696, fn. 10.) The second case cited in Potter, People v. Franklin (1976) 56 Cal.App.3d 18, 27-28, did involve a defendant who wanted to claim that his capacity to form the intent to rape was diminished by intoxication. Belief in consent, however, was not an issue; the defendant raised only the general question of his capacity to intend to rape, and the court repeated the formula that rape is a general-intent crime, which in that context it was. (Ibid.)
The mechanical application of the categories of specific and general intent in People v. Potter, without regard to the purpose they were designed to serve, yields anomalous results. Here the jury could consider whether, when Mr. Doe kissed or bit Ms. J’s breast and placed his finger in her vagina, intoxication prevented his actions from being based on an intent to arouse her or gratify himself. As a practical matter, however, intoxication does not affect the intentions underlying such acts. Yet when it came to the mental state that could actually be affected by intoxication—appreciation of Ms. J’s lack of consent—Mr. Doe’s impairment was permitted to have no bearing. This is not rational or fair, nor is it sound public policy.
The remainder of the Potter opinion’s reasoning was as follows:
“If, as a result of self-induced intoxication, appellant believed that the victim was consenting, that belief would not thereby become either ‘reasonable’ or ‘in good faith’ (cf. People v. Parks (1971) 4 Cal.3d 955, 960; People v. Hood (1969) 1 Cal.3d 444, 457).” (People v. Potter, supra, 77 Cal.App.3d 45, 51 [parallel citations omitted].)
Potter’s authorities are unhelpful. Parks simply held that an intoxication instruction was properly refused on a charge of assault with a deadly weapon, under Hood. (People v. Parks, supra, 4 Cal.3d 955, 960.) The portion of Hood cited in Potter is a general discourse on the limited utility of the difficult concepts of specific and general intent. Potter’s brief reasoning has to stand or fall on its own.
It cannot stand. “Reasonable belief” has apparently not been elaborated on in the rape context, but the concept is a familiar one. Whether a person’s belief is reasonable does not depend upon how well the person is reasoning; it is an objective standard based on what a reasonable person in the same circumstances would believe. (People v. Humphrey (1996) 13 Cal.4th 1073, 1087; People v. Coad (1986) 181 Cal.App.3d 1094, 1120.) Potter erroneously assumes, and requires a jury to assume, that a person whose reasoning is impaired cannot make a reasonable mistake. If that were the case, and two codefendants, one drunk at the time of their alleged offense and the other sober, made a reasonable mistake, only one would go free. The other would, in effect, be punished solely for his or her intoxication.
The courts have rejected this view in analogous contexts. Factors impairing a defendant’s reasoning are relevant in the reasonably-mistaken-self-defense context, where raising a reasonable doubt also requires doing so on the issues of both a subjective belief (in the need to defend) and its objective reasonableness. In People v. Aris (1989) 215 Cal.App.3d 1178, the question was the admissibility of evidence about “battered woman syndrome” (BWS) in the trial of a woman who killed her husband. Although evidence on the likely perceptions of a battered woman was irrelevant to the reasonableness question, it was probative on the issue of what the woman actually believed. (Id. at pp. 1196-98.) In Aris and similar cases, the courts permit the jury to consider the whole evidentiary picture—including what might distort the defendant’s perceptions—on the subjective issue, although there is still a reasonableness test that must be passed. (See also People v. Humphrey, supra, 13 Cal.4th 1073, 1086-89; People v. Day (1992) 2 Cal.App.4th 405.) [Footnote 6]
Similarly, for a killing to have been committed in the heat of passion, there are two prongs. Objectively, the circumstances must be such as to have aroused such passion in a reasonable person. Yet evidence of intoxication is cognizable on the subjective issue of whether the defendant did in fact act under such passion. (People v. Cameron (1994) 30 Cal.App.4th 591, 601 [reversing for instruction similar to that used here].)
The same distinction between the objective and subjective prongs of the defense should be made here. Intoxication and BWS can affect an actor’s subjective awareness (rape, self-defense) or emotion (heat of passion). Potter’s observation (77 Cal.App.3d at p. 51) that intoxication cannot make a belief reasonable simply states the obvious: that a subjective consideration does not affect the objective prong of the test. BWS does not have to make a belief in the need for self-defense reasonable, to be relevant to whether the belief was held; intoxication does not have to make heat of passion justifiable, to be relevant to whether it was present. By the same token, intoxication does not have to make a belief in consent reasonable to be relevant to whether the belief was held.
The statement from Potter quoted above, also addresses the subjective element of the defense, asserting that no belief to which voluntary intoxication contributes is held “in good faith.” (People v. Potter, supra, 77 Cal.App.3d 45, 51.) In less than a sentence, and without citation of pertinent authority, the court evidently made a policy judgment that a defendant who is voluntarily affected by an intoxicant should lose the benefit of the mens rea element of the offense recognized in Mayberry.
The objective prong of the Mayberry defense, however, already represents a policy choice to permit convictions for rape and similar offenses on a negligence theory, when an intoxicated person honestly makes an unreasonable mistake. Potter converts rape and similar offenses into strict-liability crimes for defendants who are affected by alcohol or a drug, in the face of the Mayberry holding that the crime requires some level of mens rea. (People v. Mayberry, supra, 15 Cal.3d 143, 155.) It does so by transforming the meaning of a good-faith belief from the normal sense of “a belief honestly held” [Footnote 7] into a term of art that means a belief held by one who is not intoxicated. Potter cites no authority and contains no reasoning justifying so drastic a step.
This Court should reject Potter and its progeny [Footnote 8] and hold that appellant’s trial court should have instructed that intoxication could be considered on any of the mental-state issues (actual belief in consent on all counts; specific intent on the last three).
B. Prohibiting the Jury From Considering Appellant’s Intoxication Was Prejudicial Error.
The California Supreme Court has characterized the type of error that occurred here as state-law error. [Footnote 9] (People v. Mendoza, supra, 18 Cal.4th 1114, 1134-35.) Under the standard of People v. Watson, supra, 46 Cal.2d 818, 836-37, the error was prejudicial in this case.
There was strong evidence permitting the jury to infer that intoxication had an impact on what happened the afternoon of March 11. Mr. Doe had evidently smoked marijuana laced with methamphetamine. (RT 513-15, 782, 949-52.) He felt slow and emotionally numb, and he experienced a vibrating sensation in his body. (RT 952-53.) Both Ms. T and Ms. J found him to be acting somewhat differently than normal when he first arrived. (RT 93, 527-28.) He said he was not thinking about anything while he and Ms. J were kissing and touching each other. (RT 899-900.) After the first act of intercourse, he also did not think; he just sat confused. (RT 947-48.) He agreed with the prosecutor that the drugs “probably” made him do what he did; he was not out of control or unconscious, but he was confused. (RT 948.) At trial he had difficulty remembering some peripheral details about what happened. (E.g., RT 871, 872, 883, 920, 921, 948.)
As explained above, one of the few ways that the jury could make sense of the evidence before it, given that it did not reject Mr. Doe’s testimony out of hand and given the problems with Ms. J’s version, was to decide that in some way both witnesses were basically relating their truths. In this view, Ms. J was being honest about not having wanted to have sex with Mr. Doe and about being devastated afterwards, but she was being dishonest—probably even with herself—in saying that she had vehemently protested and physically resisted. The other side of this hypothesis that the jurors may well have considered is that Mr. Doe, intoxicated and possibly affected by a teen’s strong sex drive and the unhealthy family dynamics swirling around him and Ms. J, tragically misread the situation.
The instruction at issue told the jurors that Mr. Doe’s conduct with Ms. J could not be less criminal by reason of his intoxication, then enumerated as exceptions the mental states to which it could pertain. These excluded his belief in Ms. J’s consent. (CT 157-58.) Thus the instructions stopped the jury before it ever reached the reasonable-person prong of the analysis: since intoxication cannot diminish culpability by contributing to a belief in consent, and Mr. Doe Vargas’s perceptions may well have been affected by his intoxication, there was no need to proceed further. There was no actual belief that could be uninfluenced by intoxication, because there was no unintoxicated believer, and thus whatever actual belief there was could not diminish Mr. Doe’s culpability. The instruction justified the prosecutor’s statement collapsing the objective and subjective issues into one: an exculpating belief in consent is not that of a “demented . . . young man who is high on methamphetamine.” (RT 1029.) It implemented the logical error of People v. Potter, supra, 77 Cal.App.3d 45, 51, that no person whose reasoning is impaired can have a reasonable belief. So it is quite possible that the erroneous instruction, not the state of the evidence, prevented the actual-belief prong of the Mayberry test from being met and the reasonable-belief prong from being evaluated.
Had that not been the case, and the jury found a reasonable possibility that Mr. Doe believed Ms. J was consenting, it would have moved to the next step in its inquiry. That would have been the time to consider whether Ms. J’s behavior may have been so ambiguous that a hypothetical reasonable (and sober) person could have made the same mistake. Although Ms. J testified that it was not, the evidence would have permitted the jury to have a reasonable doubt on that issue as well, leading to acquittal on all counts. Indeed, the court’s giving a Mayberry instruction represented an implicit finding that the defense could be applicable, given the evidence presented. A jury finding of reasonable mistake was therefore reasonably probable absent the error. (See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [a “probability” in the Watson context “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility”].) The error requires a new trial in which a jury can consider all the evidence on Mr. Doe’s mental state.
“It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of this condition.
“Thus, in the crimes of rape and forcible oral copulation charged in counts one, two and three, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crimes in count one, two and three.
“However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime.
“Thus, in the crimes of forcible penetration by foreign object and sexual battery charged in counts four, five and six, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crimes set forth elsewhere in these instructions.
“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent or mental state.
“If from all the evidence you have a reasonable doubt whether the defendant had that specific intent or mental state, you must find that defendant did not have that specific intent or mental state.” (RT 982-83.)
There was no objection to the instruction as given. While a court has no sua sponte duty to instruct on intoxication, if it does so, the instruction must correctly state the law. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.)
The prosecutor was referring to the alleged crimes. There was no assaultiveness in Mr. Doe’s prior history. (See CT 207-74.)
Mendoza quoted Hood on these definitions as follows:
“Specific and general intent have been notoriously difficult terms to define and apply . . . . When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1127.)
Although section 22 permits intoxication evidence on “specific intent” only, the Court refused to exclude knowledge, since intent to facilitate a crime cannot exist without knowledge of the perpetrator’s intent. (People v. Mendoza , supra,18 Cal.4th 1114, 1131.) The same is true of forcible sex crimes: an intent to do an act against the will of another requires knowledge of the other’s will. (People v. Mayberry, supra, 15 Cal.3d 143, 154-55.)
Humphrey held Aris and Day were too narrow, and that certain BWS evidence could also go to reasonableness. (13 Cal.4th at pp. 1086, 1089.) It did not, however, eliminate the need to limit some evidence about the accused’s state to the subjective prong of the self-defense claim. (See id. at p. 1088.)
Mayberry used the Latin equivalent to good-faith belief (15 Cal.3d at p. 155), but also approved an instruction on whether the defendant reasonably and “genuinely” believed there was consent should be given (id., at pp. 153, 157). See also People v. Williams, supra, 4 Cal. 4th 354, 361 (“honestly and reasonably, but mistakenly, believed”); People v. Barnes, supra, 42 Cal.3d 284, 303, fn. 19 (“honestly and reasonably believed”). Cf. In re Christian S. (1994) 7 Cal.4th 768, 773 (asking what a “dishonest belief” would be and substituting “actual belief” for traditional “honest belief,” on subjective aspect of imperfect self defense). Clearly the good faith prong requires only a genuine subjective belief, not a belief arrived at it through unobjectionable means.
Potter was followed, without further analysis, in People v. Guthreau (1980) 102 Cal.App.3d 436, 443; People v. Bishop (1982) 132 Cal.App.3d 717, 722; and People v. Stanley (1992) 6 Cal.App.4th 700, 706. People v. Guthreau, supra, additionally rejected an appellant’s attempt to benefit from a discussion in Mayberry regarding a codefendant who was charged only with assault with intent to commit rape and was arguably entitled to a diminished capacity defense. (People v. Guthreau, supra, 102 Cal.App.3d at p. 443.) Guthreau justifiably distinguishes this part of Mayberry as dealing with a classic specific intent crime, but there is nothing in Mayberry limiting the relevance of intoxication to such crimes. (See People v. Mayberry, supra, 15 Cal.3d 143.)
: Appellant recognizes that this Court must follow Mendoza, but to preserve his rights in any future proceedings he points out that the error amounted to severely limiting the defense of belief in consent, which is federal constitutional error. (People v. Mayberry, supra, 15 Cal.3d 143, 157-58.) Furthermore, misinstructing the jury on the relationship of intoxication to intent amounts to misdescribing the intent element of the offense, which is also federal error. (People v. Hagen, supra, 19 Cal.4th 652, 670.) Mendoza saw limiting the applicability of intoxication evidence as equivalent to the state-law error of erroneous exclusion of such evidence. (18 Cal.4th at pp. 1134-35.) The ruling fails to recognize that unjustified exclusion of significant defense evidence violates the Sixth and Fourteenth Amendments. (Chambers v. Mississipi, supra, 410 U.S. 284, 294-95 [due process right to fair trial includes right to offer evidence]; Taylor v. Illinois, supra, 484 U.S. 400, 409 [compulsory process right includes same].)