P. v. Crespo

Filed 11/21/06 P. v. Crespo CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERT ANGELO CRESPO,
Defendant and Appellant.
C048486
(Sup.Ct. No. 02F08167)
A jury convicted defendant Albert Angelo Crespo of domestic
abuse, assault, false imprisonment, and two counts of forcible
oral copulation. (Pen. Code, §§ 236, 240, 273.5, subd. (a),
288a, subd. (c)(2).) In a bifurcated proceeding, the trial
court found he had a prior strike conviction. The trial court
sent defendant to prison for 35 years and defendant timely filed
this appeal.
Defendant asserts (1) no substantial evidence supports the
forcible oral copulation counts, (2) the court misinstructed on
prior act evidence, (3) the court should have instructed on

-- 1 of 32 --

2
mistake of fact, (4) the court misinstructed on consent, (5) the
court should have struck the prior conviction and (6) the court
should not have sentenced him based on facts not found true by
the jury. We shall affirm.
FACTS
The victim had known defendant for many years and they
dated for about three years and had been engaged for perhaps two
years. By September 2002 the relationship had turned sour and
they argued regularly. Although she told him she wanted to end
the relationship “He did not want the relationship to end and
was very adamant about the fact that he wasn’t going anywhere.”
On about September 1 and 18, 2002, he was violent with her,
pushing or pulling her and grabbing her by the throat each time,
and she filed for a restraining order against him on about
September 21, 2002. At about 3 a.m. on September 23, 2002, she
woke up to find defendant standing over her bed.
The victim was scared but got up and spoke with defendant.
He told her to go into the shower. Then he became angry and
grabbed her arm: “I kept telling him I didn’t want to go take a
shower. I was tired, and I wanted to go to bed. We started
walking back towards the bathroom. He . . . pushed me against
the wall and told me: Don’t make any noise. Don’t wake
everyone up, or he would fuck everybody up in the house.” He
was angry and she was angry and afraid. “It wasn’t like he was
dragging me down the hall. He had hold of me, and I was
reluctant in going with him.” Later she testified “It wasn’t a

-- 2 of 32 --

3
kicking, screaming fit, but I wasn’t saying, ‘Yeah. Sure. Come
on. Let’s go,’ either.”
When they entered the bathroom she asked him to leave the
door open but he shut and locked it. She reluctantly got into
the shower because “he wouldn’t let me not.” He told her “to
suck his dick” while he had his hand on her head with a handful
of her hair which he held tightly, pushing her head down;
although she told him she did not want to, she eventually did as
he ordered. She relented “Because I just wanted him to go away.
Q. And after you did that, what happened next? A. Then I
stopped, and I stood up, and he put my leg on the side of the
tub and start[ed] performing oral sex on me, and he stopped. Q.
And when you say he performed oral sex on you, was that your
request? A. No. Q. And is that something that you wanted at
that time? A. No.”
The victim was afraid defendant was going to hit her and
she fled from the bathroom and pounded on a roommate’s door.
When the household awoke defendant pretended that he did not
know what was happening. As defendant tried to pull a blanket
off the victim (who was otherwise still naked), they struggled
and he “started hitting me on my face and picked me up by my
hair.” Defendant said she was going with him. She saw that he
had a steak knife, with which he “barely cut” her shoulder.
Eventually, the couple left the apartment. At one point
away from the apartment defendant “said that he had dug a ditch
out there that he was taking me out to put me in,” and at
another he punched her so hard her vision was blurred for

-- 3 of 32 --

4
several minutes. The victim thought defendant was “coming down”
off of drugs and she had intercourse with him in the back of
their truck to help him go to sleep; she viewed this as entirely
consensual and so did not mention it during early interviews.
When he fell asleep she fled to nearby Grant High School to get
help. According to officers who saw her, she was shaking and
“very scared” and had visible injuries. When defendant was
captured he was asleep near the knife.
A school police officer testified as follows: “Q. When
you were speaking with [victim], did she tell you that the
Defendant made her perform oral sex on him? A. Yes.” Another
officer testified as follows: “Q. [W]hen you were speaking
with the victim and she was recalling to you what had happened
to her, did she tell you whether or not the Defendant made her
give him oral sex? A. Yes. Q. And what specifically did she
say? A. She said that happened when he was in the apartment
where she lives, and that he forced her into the shower and that
he forced her to have oral sex on him.” Although defendant
objected to these passages, his objections were impliedly
overruled.
The victim told an investigator there had been no threats
during oral sex, but there had been before; she told defendant
“no” and he grabbed her hair and held her head down. She told
an investigator “the same thing I just told this court, [which]
was that I went in there. He was coercing me in there. It
wasn’t -- like I said before, we weren’t holding hands as we
tra-la-laed into the bathroom. But I didn’t put up a screaming

-- 4 of 32 --

5
fight either.” She testified that as to getting into the
shower, to say he “heavily persuaded would probably be an
accurate description. He didn’t threaten me if I didn’t, but I
was afraid at the time already.”
She also testified on cross-examination as follows:
“Q. It is true, though . . . that you did not have unconsensual
oral sex with Albert in the shower at that point; is that true?
A. Correct.” On redirect the prosecutor asked her “did the
defendant hold you down in the shower while you were in the
shower? A. He had my hair and he had his hand full of my hair
and was holding me.” She reiterated that she had not wanted to
have oral sex and had told him so:
“A. I told him no. I didn’t want to do that. I
tried to stand up.
“Q. What happened when you tried to stand up?
“A. He just put pressure on my head, and he wasn’t
like forcefully putting a lot of pressure on me and holding
me down, but he was putting enough pressure that I felt
that pressure and wasn’t going to push back.
“Q. Why didn’t you push back and push him down?
“A. I did not want things to escalate, and I wanted
to -- wanted him to leave. I just wanted him to go.
“Q. And at that time when he -- when you told him you
didn’t want to, what words specifically did you say to him?
“A. No, I don’t want to do this; no.
“Q. After you said: No, I don’t want to do this,
what did he do?

-- 5 of 32 --

6
“A. He was just persuading: Come on. Do this. Then
it was: Oh, you are going to do this. He said: You are
going to do this. You are going to do this one last time.
“Q. And when he said that, when he said you were
going to do this one last time, was he holding your head at
that point?
“A. Yes.
“Q. And you said after you did -- you performed oral
sex on the defendant, he lifted up your leg?
“A. Yeah.
“Q. Can you describe what he did?
“A. He just grabbed my leg like underneath my knee
and just lifted my leg and put it on the side of the tub.”
She then testified she neither protested nor encouraged him
and eventually he stopped.
The victim testified that she went to defense counsel’s
office “to discuss the case with you because I was concerned
about the sexual charges,” and when asked if she told counsel
defendant had “not force[d] you to have sex in the shower” she
replied “That he had not forced-forced, yes.”
Later still she attempted to clarify:
“I don’t know how to explain how I feel about [whether
she was forced] because . . . that’s not the focus of why
we’re here today . . . because if everything had ended
after the shower, he could have walked out of my house and
it would have been a done deal.
“But that’s not why we’re in this courtroom today.
You know, so I don’t feel -- no, I didn’t want to do it,
but I’m not going to say he forced me or her raped me
either because it wasn’t -- I don’t feel that -- I don’t
know how to explain to you how I feel about that. I didn’t
want to do it, but I was heavily coerced. I don’t feel

-- 6 of 32 --

7
comfortable using the word forced, but I wasn’t willing
either.
“Q. Well, did you fear that he was going to hit you?
“A. I -- he had already grabbed me and he had already
put his hand on me, so there was already a fear there. So,
yes, I was afraid.”
She had also stated that she had never known defendant to
force himself sexually on anyone and that he did not force
himself on her “sexually speaking” that night. However, she
drew a Clintonian line between “sex” and “oral sex.” When asked
to explain statements “about having sex in the shower” she
replied “A. We didn’t have sex in the shower.” Later when she
was asked to clarify whether something happened “after you were
having sex with him in the bathroom shower,” she replied, “You
keep saying after I had sex with him in the bathroom, and no, we
didn’t have sex in the bathroom. But after, after oral sex was
performed in the bathroom, the argument escalated after that.”
Thus, when she testified she did not know defendant ever to
force himself on anyone and he did not force himself “sexually
speaking” on her that night, this is perfectly consistent with
her understanding of “sex” as opposed to “oral sex,” and her
view that he coerced her into the latter, but not the former.
She also testified to having previously “stated that when
you are in a relationship, there are times your partner asks you
to do things that you may or may not want to do. So I didn’t
consider it necessarily forcible, but I didn’t want to do it,
and I made it clear that I didn’t want to do it. [¶] At that
point what I was doing was stating that that was not the

-- 7 of 32 --

8
significance of what happened on that day. What happened in the
shower, that was not the significance of the day. That was the
point I was trying to make with that statement. That’s not --
Q. And that you further stated that you did not feel that that
day or that morning that he had forced himself on you; is that
true? A. Correct. Q. He did not force you to have oral sex
with him? A. That’s correct.” She later testified that during
the relationship she would sometimes submit to sex even after
saying “no.”
During one round of cross-examination she testified:
“Q. Isn’t it true . . . that Albert did not force you to have
sex with him, any sex, on September 23rd? A. Yes.” (Italics
added.) It is not clear whether she interpreted “any sex” to
mean “any kind of sex” or that it included oral sex, given her
earlier distinction between “sex” and “oral sex.” Further,
given prior testimony, it is clear she understood the term
“force” in a special way. On redirect she was asked about this
testimony and asked to define what she meant by “force” but at
first she was not able to explain what she meant; then she
testified “. . . I was just standing there in my clothes, and he
said well, get undressed. Aren’t you going to take your clothes
off? So he was prompting me like that and just like standing
there over me and I started crying. [¶] So, I mean, yes, I
stepped into the shower myself with -- you know, heavily
prompted. Like I said about the whole thing, he didn’t grab me
and throw me in the tub, but he didn’t leave me too many options
to say no either.”

-- 8 of 32 --

9
Defendant did not testify but introduced evidence that he
had recently been in a serious accident, reducing his ability to
do the things the victim described (e.g., picking her up by her
hair). He emphasized that the victim testified she was angry
with him about taking her truck and because she had seen him
with another woman, thereby providing a motive to lie. He also
introduced some evidence which, if believed, tended to show the
victim’s description of events in the apartment were exaggerated
and that she had had earlier opportunities to escape.
DISCUSSION
I
Defendant contends no substantial evidence supports the
oral copulation convictions because there was no evidence of
force. He raises this alternatively as a claim that the trial
court improperly denied his motions for a directed verdict (Pen.
Code, § 1181.1) and for a new trial, both of which challenged
the sufficiency of the evidence. Defendant asserts, “Without
question, the victim testified she was not forced by Appellant
into the acts of oral copulation. [Citations.] Nor was there
evidence that the acts of oral copulation were accomplished by
violence, given the fact that Appellant was not violent with
[the victim] in the shower. [¶] The question then becomes, was
the evidence sufficient to show the acts were accomplished by
means of duress, menace or fear of immediate and unlawful bodily
injury?”
Defendant’s recitation of the facts improperly skews them
in the light most favorable to his claim and improperly segments

-- 9 of 32 --

10
the events into discrete periods which, in his view, bear no
relationship to each other. In fact, when we view the events in
their totality, and in the light most favorable to the verdict,
as we are obliged to do (see People v. Johnson (1980) 26 Cal.3d
557, 578), we find substantial evidence to support the verdicts.
Penal Code section 288a, subdivision (c)(2) provides in
part: “Any person who commits an act of oral copulation when
the act is accomplished against the victim’s will by means of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person shall be
punished by imprisonment in the state prison . . . .”
In People v. Pitmon (1985) 170 Cal.App.3d 38, a case
involving child molestation, we discussed (at page 48) that for
purposes of sentencing “force” required “physical force beyond
that necessary to accomplish the lewd act,” but concluded that
Pitmon’s “manipulation of Ronald’s hand as a tool to rub his
genitals was a use of physical force beyond that necessary to
accomplish the lewd act. . . . Further the record reveals that
in those instances in which Ronald orally copulated defendant,
defendant slightly pushed Ronald’s back during each performance
of that act. Again this displayed a use of physical force that
was not necessary for the commission of the lewd acts.” As to
acts of oral copulation by Pitmon on Ronald, we said “the force
associated with the commission of [Pitmon’s] other acts and all
the circumstances surrounding them are sufficient to show
[Pitmon] accomplished all of the acts charged by means of
duress.” (Ibid.) Similarly, here defendant accomplished the

-- 10 of 32 --

11
first act of oral sex by entering her house in the early
morning, threatening her housemates, locking the victim in a
bathroom, ignoring her “no” response and by holding her hair and
pushing it onto his penis. He then physically moved her leg
aside so he could perform oral sex. The “force associated” with
the former act, coupled with “all the circumstances” show that
the latter was accomplished by duress. (See ibid.; People v.
Senior (1992) 3 Cal.App.4th 765, 775 [also a molestation case].)
Further, it is not necessary in adult sexual crime cases to
show more force than is necessary to accomplish the act, only
enough force to overcome the victim’s will. In People v. Guido
(2005) 125 Cal.App.4th 566 we explained (at page 576) that the
term “force” in such cases simply plumbs the line between
consensual and nonconsensual adult sexual activity:
“Consensual oral copulation, with or without physical
force greater than that normally required to accomplish the
act, is not unlawful except when accomplished [with a
minor]. As with forcible rape, the gravamen of the crime
of forcible oral copulation is a sexual act accomplished
against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily
injury. As with forcible rape, it is only when one
participant in the act uses force to commit the act against
the other person’s will that an otherwise lawful act
becomes unlawful.
“Unlike sexual abuse of a child by use of force, a
specialized definition of force is not necessary to the
crime of forcible oral copulation because a different
concept of force is not needed to distinguish between two
crimes or to give substance to the Legislature's use of the
term ‘force,’ such as it is in section 288, subdivision
(b)(1).

-- 11 of 32 --

12
“We note, too, the statutory language, ‘accomplished
against the victim's will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily
injury,’ is the same language that makes two otherwise
lawful acts criminal.
“In all, there is no reasoned basis to apply a
different concept of the term ‘force’ to forcible rape and
forcible oral copulation and we hold oral copulation by
force within the meaning of section 288a, subdivision
(c)(2) is proven when a jury finds beyond a reasonable
doubt that defendant accomplished an act of oral copulation
by the use of force sufficient to overcome the victim’s
will. The term does not carry a specialized legal
definition.”
The instructions required the jury to find that “The act
was accomplished against the alleged victim’s will by means of
force, violence, duress, menace or fear of immediate and
unlawful bodily injury on the alleged victim or any other
person.” (CALJIC No. 10.10; italics added.)
Duress was further defined to mean “a direct or implied
threat of force, violence, danger, hardship, or retribution
sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which she would not otherwise
have performed, or acquiesce in an act to which she otherwise
would not have submitted. The total circumstances, including
the age of the alleged victim, and his or her relationship to
the defendant, are factors to consider in appraising the
existence of the duress.” (CALJIC No. 10.10.)
We note in particular that the victim’s prior statements to
two police officers, to the effect that defendant “made” or
“forced” her to have sex were highly significant. (RT 267, 313)
By omitting any mention of this evidence in his briefs,

-- 12 of 32 --

13
defendant has failed in his duty to paint the evidence
faithfully. (See Foreman & Clark Corp. v. Fallon (1971) 3
Cal.3d 875, 881.) In any event, the victim’s testimony taken as
a whole supports the jury’s verdicts. To briefly recap, the
victim had broken up with defendant and sought a restraining
order against him after he assaulted her on two occasions. She
woke up at 3 a.m. to find him in her bedroom. When she refused
to take a shower with him he became angry and grabbed her arm.
He ignored her refusals and he pushed her against a wall and
threatened to “fuck everybody up in the house” if she made
noise. He locked her in the bathroom. After she was in the
shower he ignored her refusals and pushed her head onto his
penis. When this act finished defendant physically moved her
leg and began an act of oral copulation.
The post-assault evidence can also be used to
circumstantially bolster the evidence of lack of consent. (See
People v. Maury (2003) 30 Cal.4th 342, 403 [in part pointing to
evidence “that, after the act of intercourse, she grabbed a
screwdriver . . . to protect herself”] (Maury).) Here, after
the oral sex the victim fled the bathroom to seek help; after
being urged so to do by her housemates, the victim left with
defendant but ultimately fled from him once he fell asleep,
whereupon she ran from the house to the high school to get help;
once an officer found her she was screaming and still very
scared.
Contrary to defendant’s view, the victim was not
“unequivocal” in her discussion of force and it is abundantly

-- 13 of 32 --

14
clear, as the prosecutor argued to the jury, that her testimony
was predicated on her personal definition of “force,” which
differed from the legal definition provided to the jury. Her
view was she was not “forced-forced” but was afraid and “heavily
coerced” because of his conduct. That equates to duress. The
fact the victim did not think defendant applied enough “force”
to make the acts criminal is not dispositive, and her personal
views about the appropriate charges are not binding.
To the extent defendant separately contends the trial court
misapplied the law in denying his new trial motion, the claim is
based on an overly-fine reading of the trial court’s ruling.
The trial court stated: “Well, there was evidence presented at
the time of the trial that, in fact it [oral copulation] did
occur and that the -- there was certainly sufficient evidence
for the jury to have concluded that even with the impeachment,
and that’s really a province of the jury, and it is not clear
enough that this Court would overstep the decision of the jury
in that case.” Later the court stated there was “clearly
sufficient evidence to sustain” the verdicts.
On a motion for a new trial the judge reweighs evidence as
a “13th juror.” (See People v. Lagunas (1994) 8 Cal.4th 1030,
1038, fn. 6.) “It has been stated that a defendant is entitled
to two decisions on the evidence, one by the jury and the other
by the court on motion for a new trial. [Citations.] This does
not mean, however, that the court should disregard the verdict
or that it should decide what result it would have reached if
the case had been tried without a jury, but instead that it

-- 14 of 32 --

15
should consider the proper weight to be accorded to the evidence
and then decide whether or not, in its opinion, there is
sufficient credible evidence to support the verdict.” (People
v. Robarge (1953) 41 Cal.2d 628, 633; see People v. Lopez (1969)
1 Cal.App.3d 78, 84-85.) In our view the trial court found that
the evidence was “clearly” sufficient, and the court deferred to
the jury because it agreed with the jury.
Although, as the Attorney General concedes, the trial
court’s language was “less than artful,” we do not read the
record to indicate the trial court misunderstood its duty
regarding the new trial motion. (See People v. Price (1992) 4
Cal.App.4th 1272, 1275-1276 [“I think the evidence was
sufficient, and I think that . . . there was enough evidence
there for the jury to do what the jury did”; denial of motion
upheld; trial court’s “use of less than artful language cannot
be equated with having applied the wrong standard”].) Further,
in the unlikely event that this experienced trial judge actually
misunderstood the scope of its discretion on the new trial
motion, given the trial court’s comments and the strength of the
evidence, any error by the trial court was harmless. (See
People v. Braxton (2004) 34 Cal.4th 798, 817-818.)
II
Under Evidence Code section 1109 (§ 1109) the trial court
allowed the People to introduce evidence of specific acts of
prior domestic abuse to show his propensity to commit such acts,
and gave the jury standard limiting instructions on the use of
such evidence. (CALJIC No. 2.50.2.) Defendant contends the

-- 15 of 32 --

16
trial court misinstructed on the scope of permissible use of the
prior act evidence. He asserts the trial court instructed that
prior acts could be used to show his guilt of all the instant
“offenses”, but defendant points out that not all of the instant
offenses involved domestic abuse as defined by statute. He
concedes the instruction was proper as to Count I (domestic
abuse) and Count II (assault with a deadly weapon), but asserts
it should not have applied to Count III (kidnapping) or Counts
IV and V (forcible oral copulation).
For purposes of this appeal we agree with defendant that
the prior act evidence was not admissible as to Counts III-V
under section 1109, but we do not believe the instruction given
would be interpreted by the jury in the way defendant suggests,
nor do we believe, based on the record of this case, that any
prejudice ensued even if the instruction was so interpreted.
The challenged instruction probably should not have been
given for an entirely different reason. Although the People
also wanted to introduce evidence of domestic abuse defendant
committed against another victim, that evidence was excluded
before trial. The only “propensity” evidence was based on
alleged assaults against the instant victim. Those were
directly relevant to defendant’s intention towards this victim
and therefore were admissible regardless of section 1109. (See
People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [“Even before
the enactment of section 1109, the case law held that an
uncharged act of domestic violence committed by the same
perpetrator against the same victim is admissible”].)

-- 16 of 32 --

17
The trial court partly instructed as follows:
“Evidence has been introduced for the purpose of
showing that the defendant engaged in an offense involving
domestic violence on one or more occasions other than that
charged in the case.
“‘Domestic violence’ means abuse committed against . .
. a . . . person with whom the defendant . . . is having or
has had a dating or an engagement relationship. [¶] . . .
[¶]
“‘Abuse’ means intentionally or recklessly causing or
attempting to cause bodily injury . . . .
“If you find that the defendant committed a prior
offense involving domestic violence, you may, but are not
required to, infer that defendant had a disposition to
commit other offenses involving domestic violence. If you
find that the defendant has this disposition, you may, but
are not required to infer that he was likely to commit and
did commit the crime of which he is accused.
“However, if you find by a preponderance of the
evidence that the defendant committed a prior crime or
crimes involving domestic violence, that is not sufficient
by itself to prove beyond a reasonable doubt that he
committed the charged offenses.
“If you determine an [inference] properly can be drawn
from this evidence, the inference is simply one item for
you to consider along with all the other evidence in
determining whether the defendant has been proved guilty
beyond a reasonable doubt of the charged crime.
“Unless you are otherwise instructed, you must not
consider this evidence for any other purpose.”
As stated, defendant asserts the instruction—absent
modification, which he failed to request—could have led the jury
to conclude he was guilty of offenses other than the domestic
abuse charged in Count I and the assault charged in Count II.
We disagree.

-- 17 of 32 --

18
The instruction as given told the jury it “may . . . infer
that defendant had a disposition to commit other offenses
involving domestic violence,” and domestic violence was defined
as “abuse” in a specified relationship, further defined as
“intentionally or recklessly causing or attempting to cause
bodily injury[.]” Thus, by its terms the instruction limited
the permissible use of the evidence to and only to “offense[s]
involving domestic violence” as defined. It would not allow the
use of the evidence as to the kidnapping and oral copulation
charges. True, it also states, “If you find that the defendant
has this disposition, you may, but are not required to infer
that he was likely to commit and did commit the crime of which
he is accused.” (Italics added.) But in the context of the
instruction as a whole, it is not reasonable to conclude the
jury would interpret this sentence to mean the evidence was
relevant to all crimes “of which he is accused” whether or not
they involved domestic abuse.
A similar argument was treated similarly by another court,
and we agree with its reasoning, as follows (People v. Brown
(2000) 77 Cal.App.4th 1324, 1336-1337 (Brown)):
“. . . Brown notes that while the admission of prior
acts of domestic violence as propensity evidence ‘may be
logical’ when the charged offense is for a similar act of
domestic violence, ‘[t]he incidents of uncharged domestic
violence introduced against him simply have no logical
relevance to the firearm or weapon possession charges
. . . . However, the jurors were plainly told that they
could infer from that evidence that he did in fact commit
all five of the charged offenses.’ Thus, he claims, ‘due
process requires that the court explain to the jury
specifically which crimes the prior incidents may be used

-- 18 of 32 --

19
to inferentially establish.’
“In the absence of a request, the court had no sua
sponte duty to give such a limiting instruction.
[Citation.] The record reflects Brown did not request one.
In any event, as noted, the court instructed the jurors
that if they found Brown committed a prior act of domestic
violence, ‘you may infer that [Brown] had a disposition to
commit offenses involving domestic violence.’ By its own
terms, the instruction was not applicable to the charged
weapons offenses. Moreover, the prosecutor discussed the
prior acts of domestic violence only in the portion of his
argument regarding Brown's assault on Lisa Haynes. These
circumstances convince us there was little risk the jury
might have been confused. Therefore, we do not find a
reasonable probability the jury would have returned a more
favorable verdict on the weapons charges had a limiting
instruction been given.”
Moreover, the prior act evidence came solely from the
victim, and consisted of brief testimony that she sought a
restraining order against defendant based on two acts of
violence he perpetrated in the weeks before the charged
offenses. On or about September 1, 2002, he grabbed her by her
throat, leaving a lump under her chin and he pulled her around
by her arm. On or about September 18, 2002, they argued over
some car keys and “He had grabbed me and pushed me. Grabbed me
by my arm and was punching me. And he grabbed me by my
throat[.]” Based on these incidents she filed for a restraining
order on September 21, 2002. This evidence was unlikely to be
significant as applied to any of the challenged counts.
As for the kidnapping count, even if the jury somehow
interpreted the instruction to permit use of the uncharged-act
evidence when it considered the kidnapping charge, the evidence
bore little relationship to that charge. The uncharged-act

-- 19 of 32 --

20
evidence possibly explained her statement to an officer that
defendant could no longer rely on hitting her to control her,
but had to “elevate[]” to using a knife to control the victim
when he took her from the apartment. But defendant was
acquitted of kidnapping and convicted of the lesser charge of
false imprisonment. This shows the jury was carefully
evaluating the evidence relevant to this charge and we fail to
see how the prior act evidence could have tipped the scales;
indeed defendant impliedly concedes the point by not explicitly
arguing about Count III. As for the oral copulation offenses,
the evidence of which we have recounted in exhaustive detail,
the uncharged-act evidence could have bolstered the victim’s
explanation of why she feared him. But the fact he appeared in
her home uninvited early in the morning, made threats and
grabbed her, amply explained her fear before she succumbed to
demands for oral sex. The prior act evidence was minor in
comparison.
It is also important that in argument the prosecutor
discussed the prior act evidence only in connection with
domestic abuse, not in connection with the kidnapping or sex
charges. The California Supreme Court has said in determining
“whether the interplay of argument with individually proper
instructions produced a distorted meaning, it seems appropriate
to evaluate the remarks of both counsel to determine whether the
jury received adequate information.” (People v. Brown (1988) 45
Cal.3d 1247, 1256, see People v. Fudge (1994) 7 Cal.4th 1075,
1111 [“Although [defense] counsel’s arguments are not a

-- 20 of 32 --

21
substitute for a proper jury instruction, such detailed argument
supports our conclusion that the error in refusing the
instruction was harmless in this case”]; People v. Champion
(1995) 9 Cal.4th 879, 949-950; People v. Beeler (1995) 9 Cal.4th
953, 983-984 [“the prosecutor’s closing argument foreclosed any
realistic possibility of the jury not believing they had to find
intent to kill”].) The possible misconstruction of the
instruction theorized by appellate counsel was not pressed at
trial and, for the reasons stated we do not believe it would
have occurred to the jury. (See Brown, supra, 77 Cal.App.4th at
p. 1337.)
Even assuming the instruction should have been modified for
clarity, as given it did not undermine the People’s burden of
proof. (See People v. Reliford (2003) 29 Cal.4th 1007, 1015-
1016; Brown, supra, 77 Cal.App.4th at pp. 1335-1336; People v.
Johnson (2000) 77 Cal.App.4th 410, 419-420.) At worst it
allowed a permissive inference to be applied to the wrong
counts, an error of California law which we would not find to be
prejudicial under the Watson definition of a miscarriage of
justice. (Cal. Const., art. VI, § 13; People v. Watson (1956)
46 Cal.2d 818 (Watson).)
Finally, even if we agreed with defendant that trial
counsel was incompetent because no modification to clarify the
instruction was sought, the lack of prejudice defeats his claim
of incompetence of counsel. (See People v. Ledesma (1987) 43
Cal.3d 171, 216-218.)

-- 21 of 32 --

22
III
Defendant contends the trial court should have instructed
the jury to acquit him of the sex offenses if he had a
reasonable belief that the victim consented to the acts, a form
of mistake-of-fact defense. (CALJIC No. 10.65; see People v.
Mayberry (1975) 15 Cal.3d 143, 153-155 (Mayberry).)
Despite contrary language in some cases, we recently
explained that instructions on a defense must be given if and
only if substantial evidence supports it. (People v. Shelmire
(2005) 130 Cal.App.4th 1044, 1046, 1058-1059.)
To require a Mayberry instruction there must be substantial
evidence of a defendant’s “reasonable and good faith belief”
that the alleged victim “voluntarily consented” to the sexual
activity; however, “a belief that is based upon ambiguous
conduct by an alleged victim that is the product of conduct by
the defendant that amounts to force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the person of
the alleged victim or another is not a reasonable good faith
belief.” (CALJIC No. 10.65; see People v. Williams (1992) 4
Cal.4th 354, 364 (Williams).) Assertion of the defense is
successful if the defendant raises a reasonable doubt on the
issue of his intent. (Mayberry, supra, 15 Cal.3d at p. 157,)
“[R]egardless of how strongly a defendant may subjectively
believe a person has consented to sexual intercourse, that
belief must be formed under circumstances society will tolerate
as reasonable in order for the defendant to have adduced
substantial evidence giving rise to a Mayberry instruction.”

-- 22 of 32 --

23
(Williams, supra, 4 Cal.4th at p. 361.) Defendant intruded into
the victim’s house early in the morning, threatened her
housemates to keep her quiet and pulled her towards the bathroom
where he demanded oral sex, ignored her refusal and pushed on
her head to accomplish the first act; later, he physically moved
her leg to accomplish the second act. Our society does not
tolerate such conduct as reasonable. (See Maury, supra, 30
Cal.4th at pp. 424-425 [victim was tricked into going with Maury
and became scared when he refused to take her home].)
Usually the defense is raised by a defendant’s testimony
about his beliefs and intentions. (People v. Simmons (1989) 213
Cal.App.3d 573, 579 [noting a case where the testimony of a
percipient bystander to the assault was sufficient to raise the
defense] (Simmons).) Although in some cases a defendant may
succeed in raising the Mayberry defense without testifying, “the
record must contain evidence, whether direct or circumstantial,
of the defendant’s state of mind at the time the offense was
committed.” (Maury, supra, 30 Cal.4th at p. 425; see Simmons,
supra, 213 Cal.App.3d at pp. 579-580.)
Although the relationship between defendant and the victim
may have been relevant, “the victim’s testimony regarding the
circumstances of the alleged offenses was uncontroverted [i.e.,
the defendant did not testify and there were no percipient
witnesses]. If the victim’s testimony was believed, the
circumstance, standing alone, that she previously had consented
to sexual relations with [defendant] has no tendency in reason

-- 23 of 32 --

24
to prove she consented to sexual relations on the date of the
alleged offenses.” (Simmons, supra, 213 Cal.App.3d at p. 581.)
As we have said before, a Mayberry defense “is founded upon
evidence showing the defendant acted under a mistake of fact
sufficient to harmonize his assertion of consent with the
victim’s story that consent was lacking. Where there is no
evidence putting into issue the nature and quality of the
defendant’s belief in consent,” the instruction need not be
given. (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369.)
It is true the victim testified to the effect that during
their relationship she sometimes submitted to sexual contact
with defendant when he disregarded her “no” statements, but that
does not inform as to defendant’s “state of mind at the time the
offense was committed.” (Maury, supra, 30 Cal.4th at p. 425.)
Given that the jury found defendant guilty beyond a reasonable
doubt, it obviously credited her testimony about fear and
duress; the Mayberry instruction, if given would not have
changed the jury’s evaluation of the victim’s testimony.
Defendant correctly asserts that his testimony was not
required because the jury was free to disbelieve portions of the
victim’s testimony. (See Williams, supra, 4 Cal.4th at p. 364
[“a trier of fact is permitted to credit some portions of a
witness’s testimony, and not credit others”].) This does not
mean such an instruction is always required, and we find no
rational explanation in the record how defendant could have
formed a reasonable belief in the victim’s consent.

-- 24 of 32 --

25
Further, apart from the lack of any reason for the jury to
reject parts of the victim’s story, nothing in the Mayberry
instruction would have changed the substantive definitions of
consent, force and duress, and under those instructions the jury
found beyond a reasonable doubt that defendant acted by coercing
the victim. This negates an innocent misunderstanding. Put
another way, had a Mayberry instruction been given, the jury
would have followed the proviso that the defense is not
available where a defendant acts on a victim’s ambiguous conduct
in response to threats. (CALJIC No. 10.65.) Therefore, the
Mayberry instruction would have made no difference and any error
was harmless.
IV
Defendant contends the court misdefined “consent” to his
prejudice. We find the misinstruction to be harmless.
The trial court instructed the jury pursuant to CALJIC No.
1.23 as follows:
“To consent to an act or transaction, a person
(1) must act freely and voluntarily and not under the
influence of threats, force or duress; (2) must have
knowledge of the true nature of the act or transaction
involved; and (3) must possess the mental capacity to make
an intelligent choice whether or not to do something
proposed by another person.
“Merely being passive does not amount to consent.
Consent requires a free will and positive cooperation in
act or attitude.”
Unfortunately, “This instruction should not be given in
connection with a prosecution for a violation of” inter alia,
forcible oral copulation. (Use Note to CALJIC No. 1.23.) As to

-- 25 of 32 --

26
the oral copulation counts the trial court should have
instructed the jury pursuant to CALJIC No. 1.23.1 as follows:
“[T]he word ‘consent’ means positive cooperation in an
act or attitude as an exercise of free will. The person
must act freely and voluntarily and have knowledge of the
nature of the act or transaction involved.”
In denying defendant’s new trial motion raising this error,
the trial court acknowledged there were minor differences
between the instructions, but concluded none of the differences
caused prejudice. We agree with the trial court. A close
comparison reveals there is very little substantive difference
between these instructions.
The first paragraph of CALJIC No. 1.23 states that a person
must be free of duress and have the mental capacity and
knowledge to understand the request being made, similar to a
portion of CALJIC No. 1.23.1. Defendant does not argue with
this proposition of law.
The second paragraph of CALJIC No. 1.23 contains two
sentences: “Merely being passive does not amount to consent.
Consent requires a free will and positive cooperation in act or
attitude.” CALJIC No. 1.23.1 embraces the latter sentence by
stating that consent “means positive cooperation . . . as an
exercise of free will.” Thus, it is only the first sentence of
the second paragraph which is materially different. However,
this difference is more apparent than real. Although CALJIC No.
1.23.1 does not address passivity by use of such term, passivity
in this context reflects the opposite of “a free will and
positive cooperation” as stated in CALJIC No. 1.23, or “positive

-- 26 of 32 --

27
cooperation . . . as an exercise of free will” as stated in
CALJIC No. 1.23.1.
Defendant asserts the statement that “merely being passive
does not amount to consent” creates a presumption requiring the
defendant to prove “either active cooperation or his reasonable,
good-faith belief in such cooperation,” thereby lessening the
People’s burden of proof and improperly shifting the burden of
proof to defendant. We disagree.
As stated, the line about passivity is immediately followed
by a description of its opposite, namely, that “Consent requires
a free will and positive cooperation in act or attitude.”
Further, the jury was instructed that the People bore the burden
to prove lack of consent beyond a reasonable doubt. The
addition of the statement that “merely being passive does not
amount to consent” did not change the definition of what does
amount to consent, viz., free will and positive cooperation.
The “passive” language did not create any mandatory presumption,
nor did it alter the burden of proof. Therefore any error is a
state-law error, and we find any such error to be harmless.
(Watson, supra, 46 Cal.2d 818.)
V
After the verdicts the trial court appointed a new attorney
to bring a new trial motion on defendant’s behalf. Defendant
personally filed a Romero motion (People v Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero)) to have the court
strike the prior conviction. The trial court later emphasized
that defendant had to decide whether to represent himself or

-- 27 of 32 --

28
keep the services of his lawyer and—referring to Blakely v.
Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)
issues which were to be briefed—that “we can’t be getting
individual briefings from Mr. Crespo and then from [trial
counsel]. It has to be one or the other.” At that point,
defendant stated he wanted trial counsel to represent him again,
and the trial court so ordered.
Later, trial counsel filed a “superceding [sic]” sentencing
memorandum which did not raise Romero issues.
At sentencing, defendant and some family members testified
in mitigation. His older sister testified he helped her take
care of her child and the impact of a long sentence on the
family (particularly on defendant’s mother) would be severe;
another sister testified she thought he was innocent but in any
event did not deserve much punishment; his wife testified she
wanted to start a new life with him; other witnesses were to the
same effect. Defendant testified he knew he had “done wrong”
and wished the victim was present in court so that he could
apologize directly to her; he insisted he did not force her into
sex; his family needs him out of prison.
The trial court then sentenced defendant, imposing the
midterm on the principal count, both out of Blakely concerns and
because of the mitigating testimony.
The parties quarrel about whether the trial court impliedly
denied the Romero motion, or declined to rule, either because it
was filed by defendant or because it had been superseded.

-- 28 of 32 --

29
Defendant also contends trial counsel was incompetent for not
pressing the motion.
We need not resolve these procedural points because the
Romero motion lacked merit.
A trial court has discretion to strike a prior in the
furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 530-
531.) “[I]n ruling whether to strike or vacate a prior serious
and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, ‘in furtherance of
justice’ pursuant to Penal Code section 1385(a), or in reviewing
such a ruling, the court in question must consider whether, in
light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
defendant may be deemed outside the [Three Strike Law] scheme’s
spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more
serious and/or violent felonies.” (People v. Williams (1998) 17
Cal.4th 148, 161 (Williams).)
At sentencing the trial court considered a detailed
probation report. Defendant lodged no objections to the report.
Therefore, he has forfeited any claim that the information
therein is not accurate. (See People v. Evans (1983) 141
Cal.App.3d 1019, 1021.) The report reflects that defendant was
born in 1976. In 1990 he was made a ward for receiving stolen
property, based on being found in a stolen car. Later in 1990
he committed a robbery when he was interrupted stealing speakers

-- 29 of 32 --

30
from a car, and tried to cut the car’s owner with a knife.
While he was detained as a ward, he escaped and committed
another robbery with a firearm; during a court proceeding, he
“attempted to escape from court, knocking an official to the
ground.” He later ran away from the Boys Ranch and burgled an
occupied residence. He performed poorly during his wardship by
these acts and also by “submitting a dirty urine test.”
In 1994 defendant and a juvenile forced the door of a
residence and defendant pointed a gun at the occupant; he was
convicted in 1995 of residential burglary and sent to prison for
five years. After he was paroled, he was returned to custody
seven times, and was discharged in October 2001. In February
2002 he choked and punched his other girlfriend (Crystal) and
threatened to kill her, all in the presence of Crystal’s
daughter. On May 24, 2002, he was convicted of misdemeanor
domestic abuse and placed on three years probation—just four
months before the instant crimes against his longer-term
girlfriend.
Defendant has no substantial employment experience or
skills and he is an admitted member of the Varrio North Side
gang. During these proceedings, he twice violated jail rules,
resulting in lockdowns.
Based on this record, there is no basis upon which the
trial court could have stricken the prior conviction, as
defendant is a veritable poster child for application of the
Three Strikes law: He has committed many crimes, beginning at
an early age; these include violence and use of weapons. He has

-- 30 of 32 --

31
demonstrated contempt for the system by escaping or attempting
to escape, attacking a court official, violating parole and
violating jail rules. He committed the instant crimes while on
probation. He was placed on probation for assaulting a
girlfriend (Crystal) shortly after termination of his state
prison sentence. Although he asserts the oral copulation
offenses were minor because the victim did not think they were
serious, her belief is not dispositive and defendant’s record
reflects no mitigating circumstances. He presents as a
defendant who will likely reoffend, exactly the kind of
defendant targeted by the Three Strikes law. (See Williams,
supra, 17 Cal.4th at pp. 162-164 [abuse of discretion where
record showed no mitigating factors, Williams failed to avoid
criminality and had no prospects for reform]; People v. Philpot
(2004) 122 Cal.App.4th 893, 907 [Romero discretion reserved for
extraordinary cases and this was not such a case, “given
defendant’s continuous criminal history, his parole violations,
the seriousness of the present and past offenses, his seemingly
dim prospects for rehabilitation, and his lack of meaningful
crime-free periods”]; People v. McGlothin (1998) 67 Cal.App.4th
468, 475-477.) Defendant is the type of “revolving door”
criminal addressed by the Three Strikes law and therefore its
application to his case cannot be deemed outside its letter and
spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 338-343.)
Because the record shows it would have been an abuse of
discretion for the trial court to strike the strike, whether or
not the trial court ruled on the motion and whether or not

-- 31 of 32 --

32
defense counsel should have pressed the point are irrelevant
questions because defendant was not entitled to the relief
sought. Nor is there any reason to remand for the trial court
to exercise its discretion in the first instance, as such an act
would be futile: The only proper exercise of discretion would
be to decline to strike the strike.
VI
The trial court relied on facts not found true by the jury
to impose consecutive sentences. Defendant acknowledges the
California Supreme Court has rejected a Blakely challenge to
such sentencing practice (see People v. Black (2005) 35 Cal.4th
1238), but states he wishes to preserve the point for subsequent
review, as the issue is now pending in the United States Supreme
Court. (See People v. Cunningham (Apr. 18, 2005, A103501) cert.
granted sub. nom. Cunningham v. California (2006) ___ U.S. ___
[164 L.Ed.2d 47].) The point is preserved.
DISPOSITION
The judgment is affirmed.
____MORRISON_________, J.
We concur:
_______BLEASE____________, Acting P.J.
_______CANTIL-SAKAUYE____, J.

-- 32 of 32 --