Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF3931 Patrick Donahue, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, J.
Appellant was sentenced to 35 years to life in prison for committing a string of attacks against three female victims. He contends: 1) The trial court erred in failing to instruct the jury that voluntary intoxication can be a defense to the crimes of kidnapping and rape; and 2) his conviction for bringing drugs into jail should be reversed because he did not enter the jail of his own accord. We reject these contentions and affirm the judgment in all respects.
We will limit our statement of the facts to the counts at issue in this appeal.
A.V. and her boyfriend Roberto M. encountered appellant as they were walking back to A.V.’s apartment one evening. Believing that Roberto M. was staring at him, appellant stopped his bicycle and confronted the couple, demanding to know what Roberto M. was looking at. When Roberto M. didn’t answer, appellant shoved him. The two men fought and Roberto M. hit appellant in the face. Then, appellant threatened Roberto M. and rode off.
Believing the conflict was over, Roberto M. walked A.V. home before going back to his own apartment. After some time had passed, A.V. decided to call Roberto M. to make sure he had arrived home safely. When he didn’t answer his phone, she grew worried and convinced her friend Alfonso to go out with her to search for him. A block away from their apartment, they ran into appellant.
Recognizing A.V., appellant grabbed her by the arm and placed a knife against her stomach. He told Alfonso to leave and threatened reprisal if he called the police. Alfonso ran back to the apartment to get help. Once he was out of sight, appellant seized A.V.’s cell phone and led her to a nearby garage, where he lived. Although A.V. tried to befriend appellant, he was not cooperative and instead demanded to know her boyfriend’s name and address. When A.V. wouldn’t provide that information, he forced her to undress. She stood naked for five minutes as he stared at her. He then began laughing and insisted he wanted nothing to do with her. After ordering her to redress, he again demanded her boyfriend’s name and address. A.V. refused to tell him and begged him to let her go. They stayed like this in the garage for two hours before appellant decided to move her to a new location.
Appellant eventually led A.V. out of the garage and down the street, carrying the knife and holding her by the arm. When a man approached from the opposite direction, he forced A.V. to crawl under a trailer parked along the side of the road. Appellant brandished the knife and threatened the stranger, telling him to turn around and go back the way he came. A.V. tried to escape while appellant’s attention was on the other man, but appellant stopped her. Once the stranger was gone, he allowed her to get out from under the trailer and led her to an old house with a car parked in the backyard.
He ordered A.V. into the backseat of the car and forced her to undress. He then took off his pants and raped her. Although he had difficulty maintaining an erection and was unable to ejaculate, he was able to penetrate her vagina twice during a period of about ten to fifteen minutes. A.V. noticed that appellant smelled of alcohol. She threatened to call the police, but appellant just laughed. In fact, he burst into laughter several times during the assault. When it was over, he kept A.V. in the car for another three to four hours, while continuing to demand the name of her boyfriend.
He then took her back to his garage and held her there for three more hours, until around 5:00 a.m., before he finally gave her back her cell phone and let her go. When A.V. got home, she told her roommate about the ordeal, but she did not call the police because she was in the country illegally. Nonetheless, when appellant was arrested several months later, she identified him as her assailant.
While appellant was in custody, the police told him that, in addition to the crimes involving A.V., he would have to face additional charges if he tried to bring anything illegal into the jail. At the jail itself, there were signs warning of the consequences of bringing narcotics into the jail. However, when appellant was searched upon entering the jail, deputies found 151 milligrams of methamphetamine in his shoe. Appellant said he didn’t divulge the drugs because he was scared and he was saving them for later.
I
In counts 4 and 5, appellant was charged with kidnapping for rape and rape. The trial court instructed the jury it could consider the evidence of appellant’s intoxication in deciding whether he committed kidnapping for rape, but not whether he committed kidnapping or rape. Appellant contends it was error to limit the jury’s consideration of intoxication in this regard, but we disagree.
The only evidence appellant had been drinking is that he acted strangely, smelled of alcohol, and was unable to maintain an erection during the rape. There was no evidence as to how much appellant had to drink that evening or how it may have affected him. Nevertheless, respondent does not contest the trial court’s determination there was sufficient evidence of intoxication to warrant instructions on the topic, at least as to some of the charged offenses.
Arguably, appellant waived this claim by failing to raise it in the trial court. (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120; People v. Lee (1994) 28 Cal.App.4th 1724, 1734.) In any event, the claim fails on its merits.
Evidence of voluntary intoxication is relevant to the issue of whether the defendant formed the requisite intent for a specific intent crime, but it is not relevant in deciding whether the defendant is guilty of a general intent crime. (Pen. Code, § 22, subd. (b); People v. Reyes (1997) 52 Cal.App.4th 975, 982.) Unlike the crime of kidnapping for rape, which is a specific intent offense (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6), kidnapping and rape are general intent crimes (Ibid.; People v. Moya (1992) 4 Cal.App.4th 912, 916). Therefore, it follows that evidence of appellant’s voluntary intoxication was not relevant to whether he was guilty of those offenses.
Appellant argues a different result is compelled under the Supreme Court’s decision in People v. Mayberry (1975) 15 Cal.3d 143, which held a defendant’s reasonable and good faith belief the victim consented can be a defense to the crimes of rape and kidnapping. (Id. at pp. 153-158.) However, the Mayberry defense is “premised on mistake of fact.” (People v. Williams (1992) 4 Cal.4th 354, 362.) It does not apply in the context of voluntary intoxication because a defendant’s purported belief the victim consented cannot be characterized as either reasonable or in good faith when it is brought about by self-induced intoxication. (People v. Guthreau (1980) 102 Cal.App.3d 436, 443; People v. Potter (1978) 77 Cal.App.3d 45, 51.) Because “voluntary intoxication cannot be used to support a Mayberry defense” (People v. Stanley (1992) 6 Cal.App.4th 700, 706), the trial court did not err in failing to instruct otherwise. (Accord, People v. Bishop (1982) 132 Cal.App.3d 717, 722.)
II
Appellant also claims his conviction under Penal Code section 4573 for bringing a controlled substance into jail must be reversed because he did not enter the jail of his own volition. While he admits his act of possessing methamphetamine was voluntary, he argues he did not violate section 4573 because he only brought the drug into the jail “incidental to [his] submission to the lawful authority of the police.” Appellant misconstrues the statute.
Penal Code section 4573 provides, “Except when otherwise authorized by law, or when authorized by the person in charge of the prison or other institution referred to in this section or by an officer of the institution empowered by the person in charge of the institution to give the authorization, any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any other place where prisoners of the state are located under the custody of prison officials, officers or employees, or into any county, city and county, or city jail, road camp, farm or other place where prisoners or inmates are located under custody of any sheriff, chief of police, peace officer, probation officer or employees, or within the grounds belonging to the institution, any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming a controlled substance, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.” All further statutory references are to the Penal Code.
We had agreed with this contention, but the California Supreme Court has now held otherwise. In People v. Low (2010) 49 Cal.4th 372, 385, the court upheld a conviction under facts legally indistinguishable from those of the instant case, explaining that, since Low “entered jail in the possession of methamphetamine that he had previously secreted on his person [, ]... he committed the act that [Penal Code] section 4573 proscribes.” Appellant’s argument that his conviction would undermine the privilege against self-incrimination because it was based upon his failure to disclose, i. e., confess to, the methamphetamine in his possession, was also rejected by the Supreme Court. In Low, the court held that since Penal Code section 4573 does not require a person in appellant’s position to confess to any crime, the statute “does not implicate Fifth Amendment protections against compelling an arrestee to be a ‘witness’ against himself.” (People v. Low, supra, 49 Cal.4th at p. 391.) Thus, there is no basis for disturbing appellant’s conviction under that section. (Accord, People v. Gastello (2010) 49 Cal.4th 395, 398 [“an arrestee’s ‘involuntary’ presence in jail does not negate the elements of the crime or make prosecution unconstitutional.”].) The Supreme Court’s opinion on the points raised by Gonzalez leaves no room for adoption of his contentions regarding Penal Code section 4573.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.