People v. Andrews (2015) 234 CA4th 590, 592 considered whether the Mayberry [People v. Mayberry (1975) 15 Cal.3d 143] defense of honest and reasonable belief in consent is applicable to the crime of misdemeanor sexual battery. Andrews concluded that in an appropriate case honest and reasonable belief in the victim’s consent may be a valid defense theory in a sexual battery prosecution.
The crime of misdemeanor sexual battery requires a the touching of “an intimate part of another person … against the will of the person touched … for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (PC 243.4(e).) “A defendant therefore commits a sexual battery if he engages in an intimate, nonconsensual touching.” (People v. Babaali (2009) 171 Cal.App.4th 982, 995–996.) In other words sexual battery is a specific intent crime (People v. Chavez (2000) 84 Cal.App.4th 25, 29) and belief in that the victim consented “is incompatible with the existence of wrongful intent.” (People v. Williams (1992) 4 C4th, 352, 360, fn. omitted.)
Accordingly, the Andrews court held that a mistaken but honest and reasonable belief of the victim’s consent is available to defendants charged with sexual battery where there is substantial evidence to support the defense and it is not inconsistent with the defendant’s theory of the case.(Andrews, 234 CA4th at 602-03.)
In light of Andrews the CALCRIM Committee add the Mayberry defense theory to its sexual battery instructions CC 935 and CC 938 as follows:
[The defendant is not guilty of sexual battery if (he/she) actually and reasonably, even if mistakenly, believed that the other person consented to the touching [and actually and reasonably believed that (he/she) consented throughout the act of touching]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.]