THE PEOPLE, Plaintiff and Respondent, v. WASH JONES WILLIAMS, Defendant and Appellant, 4 Cal. 4th 354

Opinion ARABIAN, J. Our task is to delineate the circumstances under which a trial court is required to give a requested instruction regarding a rape defendant’s bona fide and reasonable, but mistaken, belief of consent to sexual intercourse. We conclude that the instruction was not warranted in this case, and hence reverse the judgment of the Court of Appeal. I. Facts and Procedural Background On Saturday, November 4, 1989, Deborah S. and her sister Jenny S. were staying at the Episcopal Sanctuary homeless shelter at Eighth and Market Streets in San Francisco.

They had arrived in San Francisco from Wichita, Kansas approximately two weeks earlier. Deborah and Jenny returned to the shelter mid-Saturday morning after completing some errands. Jenny entered the shelter, and Deborah waited outside. Shortly after Jenny’s departure, Deborah was approached by defendant Wash Jones Williams. Deborah had not met Williams before, and he did not introduce himself. Williams was an electrician, and a volunteer and resident at the shelter. He had noticed Deborah at the shelter the day before, but had not spoken with her.

Deborah was 28 years old, 5 feet 1 inch tall, and weighed 117 pounds. Williams was 52 years old, 6 feet 1 inch tall, and weighed 220 pounds. Williams asked if Deborah would like to get some coffee, “no strings attached.” Williams and Deborah agree that for the remainder of the morning they walked, engaged in conversation, and ate some food. Deborah testified to the events that followed that day. During a stop at a Jack-In-The-Box, Williams asked her if she would like to watch television. Deborah said the only place she knew of to watch television for free was the Osmond Center, located next door to the shelter.

Williams later told her the place he was talking about to watch television was not far away. Deborah and Williams walked towards Turk Street. Williams purchased a bracelet from a street vendor for Deborah. The area was unfamiliar to her. Deborah thought they were going to “his friends or something” to watch television, because “That is what he was talking about.” Williams mentioned nothing about sex, and in fact led Deborah to believe he was not interested in sex because he mentioned that he had a daughter about Deborah’s age. They stopped at a building with a gate across the front, and Williams rang a buzzer.

While Deborah did not see a sign in front of the building, the building was later identified as the Dahlia Hotel. Once inside, Williams rented a room, and asked the clerk for a sheet. At this point Deborah realized they were in a hotel, and were not going to a friend’s house. Deborah walked into the room ahead of Williams. She noticed that there was no television. When Williams arrived, she asked him how it was that he wanted to watch television when there was no television in the room. He lay down on the bed and said he wanted Deborah to lie down beside him.

She said that she was used to sitting up during the day, and suggested that he get back the $20 he paid for the room. Deborah went to the door to let herself out, but was unable to release the bolt lock. Williams came up behind her, and put his hand on the door. She told him to “make it easy for the both of us” by trying to get his money back. He “hollered” at her that “he didn’t spend $20.00 for nothing.” He punched her in the left eye. He said he would count to five, and he wanted her “over there in the bed.” She said “no,” so he pushed her down on the bed. Williams asked her if she wanted him to use a condom.

She said no because “I am not going to do it anyway,” and that she did not come there for that. Williams told Deborah to take off her pants. She asked “Why do I need to take off my pants?” He repeated his demand that she take off her pants, and said that he did not like to hurt people. She was scared, so she removed her pants. He took off his clothes, got on top of her, and attempted intercourse. His penis partially penetrated her vagina.

Deborah said that she was going to tell her sister and the Sanctuary “what he really was.” He screamed that he “didn’t give a fuck.” He said something about “too dry,” and then licked his fingers and rubbed saliva on his penis. He reinserted his penis and engaged in sexual intercourse for approximately 10 to 15 minutes. She screamed and tried to push him off, but because of the disparity in their size, her efforts were unsuccessful. Once Williams had ejaculated, he allowed Deborah to get up and get dressed. He offered her $50, but she said she was not a prostitute and did not want the money.

She threw the bracelet at him. Deborah left the room first. She returned to the Sanctuary, where she asked directions to the nearest police station. She walked to the San Francisco Hall of Justice, and reported that she had been raped. At this point her eye was so swollen she could hardly see out of it. According to witnesses other than Deborah, an officer took her statement, and then drove her to the hospital where he and then another officer waited with her for approximately seven hours until she was examined.

The examining nurse and doctor testified that the injury to the eye was more consistent with a punch than a slap. Vaginal slides showed the presence of semen. In addition to the eye injury, the doctor noted complaints of pain on the right side of her neck and along the right side near the lower ribs, and tenderness along the right side of the uterus. The doctor testified that Deborah appeared scared, and that the examination was consistent with her complaint of sexual assault. Williams gave a dramatically different account of the encounter.

He testified that prior to entering the hotel room, he neither wanted nor expected to have sex. However, when he entered the room, Deborah hugged and kissed him and began to remove her clothes, whereupon Williams also began to remove his clothes. Williams asserted that he is diabetic and almost impotent, and therefore Deborah had to fondle his genitals for 10 to 15 minutes before helping him to insert his penis into her vagina. This was the only act of intercourse. He and Deborah never discussed watching television.

After intercourse, Deborah told Williams she needed $50 because her sister was moving in with her boyfriend, and she was not sure if she would fit in. He told her he did not “turn tricks” and refused to give her the money. She became hostile and “Her personality changed completely.” She threatened to create a problem for him by telling Father Nunn and her sister if he did not give her the money.

Williams said that he did not care whom she told, that she had come to the room voluntarily, and “we made love.” Deborah called Williams a “welching Nigger,” and said she knew how to “fix” him, since her father and either brother or brothers-in-law had previously raped her. Angry at these remarks, Williams slapped her hard on the right, not the left, side of her face. He asked for the return of the bracelet, and she threw it on the bed. As she got dressed, Williams asked Deborah why she did not wipe away his sperm, and she said that she wanted to preserve the evidence.

The trial court found that the evidence supported a jury instruction regarding consent. It refused, however, to give an instruction requested by both defendant and the People on reasonable and good faith but mistaken belief as to consent. (CALJIC No. 10.65.) A jury found Williams guilty of two counts of forcible rape (Pen. Code § 261, now subd. (a)(2).) and one count of false imprisonment (§ 236). He was sentenced to eight years in state prison. The Court of Appeal reversed, finding there was substantial evidence in support of defendant’s request for a Mayberry instruction. (People v.

Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337].) In particular, the court relied on defendant’s testimony that Deborah “willingly accompanied him to the hotel after spending several hours in his company, that she did not object when the hotel clerk handed him a bedsheet, that once inside the room she hugged and kissed him and initiated sexual intercourse, and that during the hour they were inside the room the hotel clerk did not hear any screams or other sounds indicating physical violence.” The Court of Appeal stated that “Based on this evidence, the jury should have been given the instruction.

While defendant has the burden of proving he had a bone [sic] fide and reasonable belief of consent, he need only raise a reasonable doubt in the minds of the jury whether this belief existed . . . and should be allowed the chance to prove this defense.” II. Discussion In People v. Mayberry, supra, 15 Cal.3d 143, this court held that a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. (Id. at p. 155.) Mayberry is predicated on the notion that under

section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. (People v. Mayberry, supra, 15 Cal.3d at pp. 154-155; see People v. Hernandez (1964) 61 Cal.2d 529, 535 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092] [reasonable and good faith mistake of fact as to victim’s age defense to statutory rape]; People v. Vogel (1956) 46 Cal.2d 798, 801, 804-805 [299 P.2d 850] [reasonable and good faith mistake of fact regarding divorce from first wife defense to bigamy].) The Mayberry defense has two components, one subjective, and one objective.

The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances.

Thus, regardless 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. (See People v. Bruce (1989) 208 Cal.App.3d 1099, 1104 [256 Cal.Rptr. 647] [one relying on Mayberry defense must produce some evidence of victim’s equivocal conduct that led the accused to reasonably believe there was consent]; People v.

Romero (1985) 171 Cal.App.3d 1149, 1156 [215 Cal.Rptr. 634] [“defense must produce some evidence of equivocal conduct by the victim which led him to reasonably believe that there was consent where in fact there was none.”].) The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent (People v. Mayberry, supra, 15 Cal.3d at p. 157; see People v. Tewksbury (1976) 15 Cal.3d 953, 963 [127 Cal.Rptr. 135, 544 P.2d 1335]), “and then only if the prosecution’s proof did not of itself raise such a doubt.” (People v.

Babbitt (1988) 45 Cal.3d 660, 694 [248 Cal.Rptr. 69, 755 P.2d 253].) In Mayberry, we held that a requested instruction regarding mistake of fact was required when “some evidence ‘deserving of . . . consideration’ ” existed to support that contention. (People v. Mayberry, supra, 15 Cal.3d at p. 157.) In People v.

Flannel (1979) 25 Cal.3d 668, 684-685 and fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1], we further explained that a trial court must give a requested instruction only when the defense is supported by “substantial evidence,” that is, evidence sufficient to “deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak.” Thus, in determining whether the Mayberry instruction should be given, the trial court must examine whether there is substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented to sexual intercourse.

Williams asserts that “a successful Mayberry defense does not require a jury finding that the defendant’s belief was mistaken.” However, as the language implies, a mistake of fact occurs when one perceives facts differently from how they actually exist. This principle is illuminated by reference to the cases on which Mayberry relied. For example, in People v.

Vogel, supra, 46 Cal.2d 798, we held that a reasonable and good faith belief that a former wife had obtained a divorce was a valid defense to a charge of bigamy arising out of a second marriage when the first marriage had not in fact been terminated. (Id. at pp. 801, 804-805.) However, the mistake of fact defense would not have been applicable if the first marriage had in fact been terminated. In this situation there is no mistake of fact; rather, the facts as they actually exist preclude a conviction of bigamy. Likewise, in People v.

Hernandez, supra, 61 Cal.2d 529, we held that a reasonable and bona fide but erroneous belief that a woman was at least 18 years of age is a defense to a charge of statutory rape. (Id. at pp. 535-536.) This defense differs in kind from the defense that the woman was in fact at least 18 years of age. Thus, because the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.

As one author has explained, under the reasonable mistake defense, “ ‘a woman is raped but not by a rapist.’ ” (Berliner, Rethinking the Reasonable Belief Defense to Rape (1991) 100 Yale L.J. 2687, 2695, fn. 56.) Here, there was no substantial evidence supporting a Mayberry instruction. Williams testified that Deborah initiated sexual contact, fondled him to overcome his impotence, and inserted his penis inside herself. This testimony, if believed, established actual consent.

In contrast, Deborah testified that the sexual encounter occurred only after Williams blocked her attempt to leave, punched her in the eye, pushed her onto the bed, and ordered her to take her clothes off, warning her that he did not like to hurt people. This testimony, if believed, would preclude any reasonable belief of consent. These wholly divergent accounts create no middle ground from which Williams could argue he reasonably misinterpreted Deborah’s conduct. (See People v.

Burnett (1992) 9 Cal.App.4th 685, 690 [11 Cal.Rptr.2d 841] [if “defense evidence is unequivocal consent and the prosecution’s evidence is of nonconsensual forcible sex, the [Mayberry] instruction should not be given”]; People v.

Rhoades (1987) 193 Cal.App.3d 1362, 1369 [238 Cal.Rptr. 909] [neither account of sexual encounter was evidence that defendant mistakenly believed victim consented even though she did not— “sexual act was [either] entirely consensual or the obvious product of force”].) There was no substantial evidence of equivocal conduct warranting an instruction as to reasonable and good faith, but mistaken, belief of consent to intercourse. In finding substantial evidence to support a Mayberry instruction, the Court of Appeal relied primarily on three circumstances.

First, it noted that Deborah “willingly accompanied [Williams] to the hotel after spending several hours in his company, [and] that she did not object when the hotel clerk handed him a bedsheet.” The relevant inquiry under Mayberry, however, is whether Williams believed Deborah consented to have intercourse, not whether she consented to spend time with him.

To characterize the latter circumstance alone as a basis for a reasonable and good faith but mistaken belief in consent to intercourse is, as noted by Presiding Justice Low’s dissent in the Court of Appeal, to “revive the obsolete and repugnant idea that a woman loses her right to refuse sexual consent if she accompanies a man alone to a private place.

That is an especially cruel assumption here, where the victim, a homeless woman, may well have wanted nothing more than the relative quiet and comfort of a private room in which to relax and watch television.” Second, the Court of Appeal relied on Williams’s testimony regarding the sexual encounter. As explained above, however, this testimony of Deborah’s unequivocal behavior was evidence of actual consent, not reasonable and good faith mistake as to consent.

Finally, the Court of Appeal cited the fact that “during the hour they were inside the room the hotel clerk did not hear any screams or other sounds indicating physical violence.” As a preliminary matter, the clerk testified that she may have left the hotel office and even the floor while Williams and Deborah were in the room. Furthermore, the clerk’s failure to hear Deborah’s screams or struggling sheds no light on Williams’s state of mind, or whether he misunderstood Deborah’s conduct. (See People v.

Simmons (1989) 213 Cal.App.3d 573, 578, 580 [261 Cal.Rptr. 760] [motel employee’s testimony that he did not hear screams from room where rape allegedly occurred not evidence in support of defendants’ belief in consent]; compare with People v. Anderson (1983) 144 Cal.App.3d 55, 59-60, 62 [192 Cal.Rptr. 409] [witness present during sexual encounter].) Finally, both Deborah and Williams reported an argument, although at different times, in their accounts of the sexual encounter.

In sum, we find that there was no substantial evidence of equivocal conduct warranting an instruction on reasonable and good faith mistake of fact as to consent to sexual intercourse in this case.

We note for the guidance of the lower courts that there may be cases, as in Mayberry, in which there is evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, but also evidence that this equivocal conduct occurred only after the defendant’s exercise or threat of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2); People v.

Mayberry, supra, 15 Cal.3d at pp. 147-148, 156-157 [evidence that victim’s equivocal conduct began only after victim endured series of physical assaults and verbal threats]; see People v. Burnham (1986) 176 Cal.App.3d 1134, 1142 and fn. 8, 1148 [222 Cal.Rptr. 630] [evidence that wife’s equivocal conduct regarding attempted penetration by a canine penis followed husband’s admitted severe beating of her]; People v.

Anderson, supra, 144 Cal.App.3d at pp. 58, 62 [evidence that first victim’s equivocal conduct occurred after defendant’s assault causing great pain on second victim, and threat to continue assault if first victim did not do as he ordered].) No doubt it would offend modem sensibilities to allow a defendant to assert a claim of reasonable and good faith but mistaken belief in consent based on the victim’s behavior after the defendant had exercised or threatened “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§261, subd. (a)(2) [“Rape is

an act of sexual intercourse 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.”]; see People v. Barnes (1986) 42 Cal.3d 284, 302-303 [228 Cal.Rptr. 228, 721 P.2d 110] [rejecting as an element of rape that the victim must resist her attacker and thereby risk additional injury].) However, a trier of fact is permitted to credit some portions of a witness’s testimony, and not credit others.

Since a trial judge cannot predict which evidence the jury will find credible, he or she must give the Mayberry instruction whenever there is substantial evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, despite the alleged temporal context in which that equivocal conduct occurred.

The jury should, however, be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” Conclusion We conclude that there was no substantial evidence warranting an instruction on reasonable and good faith but mistaken belief of consent to sexual intercourse in this case. Accordingly, we reverse the judgment of the Court of Appeal. Lucas, C.

J., Panelli, J., Baxter, J., and George, J., concurred. The version of CALJIC No. 10.65 submitted by defendant in his proposed jury instructions provided in relevant part: “In the crime of forcible rape, general criminal intent must exist at the time of the commission of the forcible rape. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse.

Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge. “If after a consideration of all of the evidence you have a reasonable doubt that the defendant had general criminal intent at the time of the sexual intercourse, you must find him not guilty of such crime.” (CALJIC No. 10.65 (5th ed. 1988).) A11 statutory references contained herein are to the California Penal Code unless otherwise indicated.

Section 261 currently provides in relevant part: “(

a) Rape is

an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: “

(2) Where it is 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.”

Section 26 provides in part: “All persons are capable of committing crimes except those belonging to the following classes: “Three—Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.” Since Mayberry, supra, the Courts of Appeal have struggled with the issue of when an instruction on reasonable and good faith but mistaken belief as to consent is required. A variety of approaches have developed, and those most consistent with the spirit of Mayberry have been incorporated herein.

While we cite certain Court of Appeal opinions for particular propositions, we disapprove of any portions of these opinions that are otherwise inconsistent with the principles announced today. Consent for purposes of rape prosecutions is defined as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (§ 261.6.) Hence we reject the conclusion in People v.

Hampton (1981) 118 Cal.App.3d 324, 330 [173 Cal.Rptr. 268] that the Mayberry instruction should be given in every case in which “[actual] consent is offered as a defense to a charge of rape.” The Court of Appeal also emphasized the fact that both the prosecutor and the defense requested the Mayberry instruction in the trial court. We note that only the defendant objected to the trial court’s refusal to give this instruction.

Moreover, the fact that the prosecutor requested such an instruction does not establish that it was required by the evidence, since “[s]uch instructions are commonly requested out of an abundance of caution.” (People v. Perez (1992) 2 Cal.4th 1117, 1130 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) Such caution was particularly warranted here where at least one division of the relevant district Court of Appeal had opined that a Mayberry instruction was required whenever a defendant proffered an actual consent defense. (People v. Hampton, supra, 118 Cal.App.3d at p. 330.)