People v. Williams

MOSK, J.

I concur in the judgment. The Court of Appeal reversed the judgment of the superior court convicting defendant after a jury trial of two counts of rape and one count of false imprisonment. Addressing the sole claim on appeal, it concluded that the superior court prejudicially erred when it refused to instruct on the defense of reasonable and honest belief by the defendant regarding the complainant’s consent. As will appear, that conclusion was itself erroneous: there was error at trial but no prejudice. Consequently, the judgment must be reversed.

I cannot concur, however, in the majority opinion. Its analysis does not go deep enough. And to the depth it does go, it is unsound.

I

As pertinent here, “Rape is an act of sexual intercourse . . . with a person not the spouse of the perpetrator” “accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (Pen. Code, § 261, subd. (a)(2).)

The People, of course, must prove the elements of a crime beyond a reasonable doubt. That is true under section 1096 of the Penal Code. It is also true under the due process clause of the Fourteenth Amendment to the United States Constitution, as construed in In re Winship (1970) 397 U.S. 358, 361-364 [25 L.Ed.2d 368, 373-375, 90 S.Ct. 1068].

In People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337], in an opinion authored by Justice Richardson for a unanimous court, we recognized a defense to rape “[i]f a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented ... to engage in sexual intercourse ....’’ (Id. at p. 155.) “Penal Code section 20,” we explained, “provides, ‘In every crime . . . there must exist a union, or joint operation of act and intent, or criminal negligence.’ The word ‘intent’ in section 20 means ‘wrongful intent.’ ” (Id. at p. 154, ellipsis in original.) A defendant’s reasonable and honest belief in the complainant’s consent, we concluded, negatives the element of intent: if he has a belief of this sort, “it is apparent he does not possess the wrongful intent that is a prerequisite . . . to a conviction of . . . rape . . . .” (Id. at p. 155.) That “wrongful intent” may simply be described—in accordance with the statutory definition of the crime as interpreted in the case law—as the intent to engage in an act of sexual intercourse that is in fact unconsented and forcible, either “purposely” (i.e., with a “conscious object to engage in” such an act), “knowingly” (i.e., with “awarejnessj” of the “nature” of the act), or “recklessly” (i.e., with “conscious[] disregard[]” of a “substantial and unjustifiable risk” that the act is unconsented and forcible) (Model Pen. Code, § 2.02).¹ To gain acquittal, the defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. (People v. Mayberry, supra, at p. 157.) Put otherwise, to obtain a conviction in such a case, the People must prove the absence of such a belief beyond a reasonable doubt. (See ibid.)

II

The majority conclude that there was not sufficient evidence to support a requested instruction on the defense of reasonable and honest belief by the defendant regarding the complainant’s consent. They disagree with the Court of Appeal on this point. They are in error.

To be sufficient for present purposes, evidence must be substantial. (People v. Flannel (1979) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1].) To be substantial, it must allow a reasonable jury to make a determination favorable to the defendant. (Id. at p. 684.) Here, it must allow such a jury to entertain a reasonable doubt whether defendant reasonably and honestly believed that the complainant consented.

The evidence in this case was more than sufficient. The majority themselves note that “[Defendant] testified that [the complainant] initiated sexual contact, fondled him to overcome his impotence, and inserted his penis inside herself.” (Maj. opn., ante, at p. 362.) A jury could have credited this testimony. Had it done so, it could have found that defendant had a reasonable and honest belief in consent. A fortiori, it could have entertained a reasonable doubt on the point.

The majority conclude to the contrary. Their analysis is unpersuasive.

First, and more generally, the majority assert that the reasonable-and-honest-belief defense involves only a mistaken belief.

Mayberry, however, does not so limit the defense. True, we there recognized the defense under the rubric of “mistake”: “Penal Code section 26 recites, generally, that one is incapable of committing a crime who commits an act under a mistake of fact disproving any criminal intent.” (People v. Mayberry, supra, 15 Cal.3d at p. 154.) But we simply did not cabin the defense: “If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented ... to engage in sexual intercourse”— mistaken or not—“it is apparent he does not possess the wrongful intent that is a prerequisite . . . to a conviction of. . . rape . . . .” (Id. at p. 155.)

Neither does logic limit the defense. It is not the mistaken belief that negatives the requisite “wrongful intent,” but simply the belief itself. A belief can of course affect an intent. Its ability to do so depends on what its content is—and not on whether it turns out to be well- or ill-founded. As the drafters of the Model Penal Code have explained, “the rule relating to mistake ‘is not a new rule; and the law could be stated equally well without reference to mistake.’ ” (Model Pen. Code & Commentaries, com. to § 2.04, p. 270, quoting G. Williams, Criminal Law: The General Part (2d ed. 1961) p. 173.)

Further, a “mistake” limitation would lead to untenable results.

It would effectively prohibit the defendant to attempt to raise a reasonable doubt about the intent element of rape unless he concedes the no-consent element. In other words, to offer the defense he would have to take the position that he was mistaken about the complainant’s consent—and thereby admit, at least by implication, that the complainant did not in fact consent. That is illogical. Consent by the complainant and a reasonable and honest belief by the defendant in that consent are altogether compatible. Indeed, they are inseparable in all truly consensual sexual intercourse.

In addition, a “mistake” limitation would virtually bar the jury from entertaining a reasonable doubt about the intent element until it resolves the no-consent element in the People’s favor. That also is illogical. The jury is free to acquit the defendant for lack of “wrongful intent” because of a reasonable doubt about his belief in consent. It cannot properly be forced to first determine the no-consent element itself beyond a reasonable doubt.

It is true that the terms “consent” and “mistaken belief in consent” are not commonly used to refer to the mental states of two participants in the same transaction. Thus, if A consents, B can of course soundly believe that A consents. By contrast, if A consents, B cannot mistakenly believe that A consents because A actually consents.

But as explained above, “consent” and “mistaken belief in consent” are simply not at issue. “Consent” and “reasonable and honest belief in consent” are. And they are compatible.

Second, and more specifically, the majority assert that the reasonable-and-honest-belief defense requires evidence of “equivocal conduct” on the part of the complainant. (Maj. opn., ante, at p. 361.)

Surely, evidence of “equivocal conduct” is sufficient for the defense. But it is not necessary.

To the extent that the majority imply that the evidence is insufficient as a matter of law when the complainant’s conduct “unequivocally” shows consent, they are wrong. As shown, consent by the complainant and a reasonable and honest belief by the defendant in that consent are compatible. The majority suggest that a defendant cannot harbor a belief that proves mistaken when the complainant engages in “unequivocal conduct” showing consent. Not true. “Consent” is defined as “positive cooperation in act or attitude pursuant to the exercise of free will.” (Pen. Code, § 261.6.) The complainant’s “unequivocal conduct” may appear to the defendant and, indeed, to all the world as “positive cooperation in act or attitude.” All the same, such conduct may not, in fact, be “pursuant to the exercise of free will.”

To the extent that the majority imply that the evidence is insufficient as a matter of law when the defendant testifies to consent and the complainant testifies to no consent, they are also wrong. Their premise is that, in a credibility contest between the defendant and the complainant, the jury must accept in toto the testimony of one and reject in toto the testimony of the other. Such a view is without basis in either logic or experience—as the majority themselves are compelled to recognize as they approach the end of their discussion. Here, defendant and the complainant each gave testimony that was worthy of belief on some points and not on others. The jury had to credit each person accordingly. It could not have unreservedly believed one and unreservedly disbelieved the other. It could have inferred that once inside the hotel room, the complainant became apprehensive about the situation in which she found herself; she thought her only “choice” was sexual intercourse with great bodily injury if she actively resisted or sexual intercourse without such injury if she did not; as a consequence, she engaged in conduct that could have supported a reasonable and honest belief in consent; but she did not, in fact, consent.

Beneath the surface of the majority opinion, there seems a fear that, in a case such as this, a defendant may too easily fabricate a reasonable-and-honest-belief defense through his own false testimony, and should accordingly be denied the defense unless he is supported by corroborating evidence.

Although the threat of fabrication is ever present, a corroboration requirement may not properly be imposed as a prophylactic. The rule is that the testimony of any single witness “is sufficient for proof of any fact.” (Evid. Code, § 411.) There is an exception “where additional evidence is required by statute . . . .” (Ibid.) The exception’s predicate, however, is absent here.

In any event, a corroboration requirement is not called for. The matter might be different if jurors in rape trials were unduly prone to acquittal. Perhaps they once were. Twenty years ago, it appears, prosecutions for rape were much less successful than those for other major crimes. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 879-880 [123 Cal.Rptr. 119, 538 P.2d 247, 92 A.L.R.3d 845] [citing authorities].) Today, by contrast, they fare as well. (U.S. Dept. of Justice, Sourcebook of Criminal Justice Statistics 1991 (1992) table 5.53, p. 546.) Hence, jurors do not seem unreasonably acquittal-prone in any degree.

There also seems a fear beneath the surface of the majority opinion that the jury might misconstrue or misapply the reasonable-and-honest-belief defense to acquit a defendant contrary to the law and the evidence.

We cannot give effect to such a fear. “We presume that jurors comprehend and accept the court’s directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [286 Cal.Rptr. 801, 818 P.2d 84].)

More important, we have no basis to harbor such a fear in the first place. As shown, jurors in rape trials do not appear to be unreasonably prone to acquittal.

In sum, defendant had a defense of consent, which was supported by substantial evidence. He also had a defense of no “wrongful intent” via reasonable and honest belief in consent, which also was supported by substantial evidence. These defenses were not inconsistent. Defendant was entitled to the former. He was entitled to the latter as well.²

Ill

I now turn from the fact of error to its consequences. The question, of course, is this: Does the superior court’s erroneous refusal of an instruction on the defense of reasonable and honest belief by the defendant regarding the complainant’s consent require reversal of the judgment? The answer, as will appear, is in the negative.

At the outset, I note that the superior court properly instructed the jury as follows. Rape requires “a union or joint operation of act or conduct and a general criminal intent. . . . When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent . . . .” What “the law declares to be a crime” insofar as rape is concerned is “an act of sexual intercourse with a female person who is not the spouse of the perpetrator accomplished against such person[’]s will by means of force, violence or fear of immediate and unlawful bodily injury to such person . . . .” The phrase “against. . . will” is defined as “without. . . consent,” i.e., without “positive cooperation in an act or attitude as an exercise of free will.”

“It is the general rule for error under [California] law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome.” (People v. Gordon (1990) 50 Cal.3d 1223, 1253 [270 Cal.Rptr. 451, 792 P.2d 251].) Similarly, it is the general rule for error under the United States Constitution that reversal requires prejudice and prejudice in turn is presumed unless the government shows that the defect was harmless beyond a reasonable doubt. (See, e.g., Rose v. Clark (1986) 478 U.S. 570, 576-579 [92 L.Ed.2d 460, 69-471, 106 S.Ct. 3101].)

Commencing the analysis proper, I observe that the erroneous refusal of an instruction on the reasonable-and-honest-belief defense implicates California law only. State law alone requires such an instruction in a proper case, and state law alone is offended by its absence. Defendant argues that the error is of federal constitutional dimension. His predicate is that refusal of the instruction removed the element of intent from the jury’s consideration. The record is otherwise. The instructions actually given, especially those quoted above, prove the point.

Next, the erroneous refusal of the instruction is subject to the general rule that reversal requires prejudice. Defendant argues that the error is reversible per se. His predicate here as above is the asserted—but unsupported— removal of the element of intent.

Lastly, the erroneous refusal of the instruction was not prejudicial in this case. In returning a verdict of guilty on each of the two counts of rape, the jury necessarily found under the proper instructions quoted above that defendant intentionally engaged in an act of sexual intercourse that was in fact unconsented and forcible. By implication, it necessarily found that he acted at least recklessly as to consent and force. By further implication, it necessarily found that he acted without a reasonable and honest belief in consent. Such a finding, the record demonstrates, is altogether sound. When, as here, under proper instructions the jury necessarily and soundly makes a finding adverse to the defendant on an issue erroneously omitted from the instructions, there is no prejudice arising from the omission. (See, e.g., People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [112 Cal.Rptr. 1, 518 P.2d 913] [implying as much under the California “reasonable probability"’ standard]; Carella v. California (1989) 491 U.S. 263, 270-271 [105 L.Ed.2d 218, 224-226, 109 S.Ct. 2419] (conc. opn. of Scalia, J.) [to similar effect under the federal constitutional “reasonable doubt” standard].)

In concluding that reversal was required, the Court of Appeal looked only to the superior court’s erroneous refusal of the instruction and overlooked entirely the jury’s implicit rejection of its fundamental premise. By so doing, it misstepped—and misstepped fatally.

IV

For the reasons I have stated—and not those the majority have given—I am of the opinion that the judgment of the Court of Appeal must be reversed.

Accordingly, I concur in the judgment.

1 Accord, Frank v. Superior Court (1989) 48 Cal.3d 632, 642 [257 Cal.Rptr. 550, 770 P.2d 1119] (conc. opn. of Kaufman, J.) (the requisite “wrongful intent” is the intent to engage in an act of sexual intercourse “irrespective of or without. . . consent"); People v. Burnham (1986) 176 Cal.App.3d 1134, 1140 [222 Cal.Rptr. 630] (to similar effect).

In People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1], we considered a claim that the superior court prejudicially erred by admitting evidence of prior unadjudicated rapes at the defendant’s trial of offenses including rape.

We found no prejudice. But we did indeed find error. The evidence, we reasoned, was not relevant: it was not probative of any disputed issue of consequence. “[T]his case,” we stated, “presented no issue of identity.” (People v. Tassell, supra, 36 Cal.3d at p. 88.) At this point, we added in a footnote: “Nor, to keep the record straight, was there any ambiguity about defendant’s intent. In People v. Kelley [(1967) 66 Cal.2d 232 (57 Cal.Rptr. 363, 424 P.2d 947)], we recognized that evidence of other sex offenses ‘is admissible in cases where the proof of defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident. (Id. at pp. 242-243.)’ [i/c] Several cases of this nature are noted in [a preceding footnote]. Here, however, there is nothing equivocal or ambiguous about defendant’s intent. Whichever version of the facts is believed, defendant intended intercourse. On his evidence, [the complainant] unmistakably consented. On hers, he accomplished the intended act against her will by use of force and threats. Right or wrong, the theory of lustice Reynoso’s dissent—that the uncharged offenses were admissable [i/c] to negative a mistaken but reasonable belief that [the complainant] had consented—is inapplicable to this case, since no such defense was ever suggested.” (People v. Tassell, supra, at p. 88, fn. 7.)

It might perhaps be argued that the Tassell footnote implies that the “wrongful intent” required for rape is the intent to engage in an act of sexual intercourse simpliciter. To say the least, such an implication would be strained. It would also be erroneous. The intent to engage in an act of sexual intercourse in and of itself is simply not wrongful. Moreover, if the requisite “wrongful intent” is such, “how can reasonable belief there was consent be a defense to a charge of forcible rape?” (Frank v. Superior Court, supra, 48 Cal.3d at p. 642 (conc. opn. of Kaufman, J.).)

A final observation on the “nature” of the “wrongful intent” required for rape. As we explained in People v. Daniels (1975) 14 Cal.3d 857: “The terms ‘specific’ and ‘general’ intent have been notoriously difficult to define and apply. [Citation.] While both terms have been employed in more than one sense, thereby causing confusion [citations], we have stressed an important temporal difference and have observed: ‘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.’ ” (Id. at p. 860, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].) Rape is classified as a “general intent” crime. (E.g., People v. Hernandez (1988) 46 Cal.3d 194, 209 [249 Cal.Rptr. 850, 757 P.2d 1013]; People v. Burnham, supra, 176 Cal.App.3d at p. 1140; People v. Franklin (1976) 56 Cal.App.3d 18, 27 [128 Cal.Rptr. 94].) The fact that the requisite

“wrongful intent” is as stated above does not affect the classification. The intent to engage in an act of sexual intercourse that is in fact unconsented and forcible, either purposely, knowingly, or recklessly, does not implicate an “intent to do some further act or achieve some additional consequence” beyond the “proscribed act.”

2 I note in passing that the majority gratuitously—and unfairly—criticize the Court of Appeal for what I assume they would call “sexism.” They suggest that the lower court held that the complainant’s consent to spend time with defendant was sufficient, in and of itself, to support a reasonable and honest belief in her consent to engage in an act of sexual intercourse. That is simply not the case. The Court of Appeal found sufficiency in evidence that “(1) the victim voluntarily accompanied defendant to a downtown hotel that apparently charges by the hour, (2) she voluntarily accompanied defendant to the room after the hotel clerk supplied them with bedding, (3) she fondled his genitals to arouse him and assisted him in the act of intercourse, and (4) following intercourse she demanded payment.”