Opinion
E066715
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KENYA KENYETTA HOLT, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1401844) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In June 2014, defendant and appellant Kenya Kenyetta Holt had been dating Jaquline for approximately two months. One night, he met up with Jaquline and her two sisters, Jane Doe and Eva, at the Eagle's Nest Bar at the Pechanga Casino. After having several drinks, they all ended up at defendant's house. Eva was with defendant's cousin the entire night. Doe was feeling sick and tired from drinking alcohol and fell asleep in a bedroom. In the middle of the night, she felt someone on top her. The person put his hand over her mouth, penetrated her vagina with his penis and then left. Doe lay on the bed frozen in shock until Jaquline told her it was time to leave. Once Eva, Jaquline and Doe were in the car, Doe started crying and told them she had been raped. Defendant's DNA matched semen found on Doe's vagina after a sexual assault exam.
Defendant was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2)). Defendant was sentenced to six years in state prison.
Defendant was additionally charged with rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) but the jury found defendant not guilty of the charge.
Defendant makes two related claims on appeal as follows: (1) the trial court erred by failing to instruct the jury with CALCRIM No. 3406 on the mistake of fact defense; and (2) his counsel's failure to object to the instructions proffered and/or to request a proper jury instruction on the issue of mistake of fact constituted ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. DOE'S TESTIMONY
At the time of trial, Doe was 33 years old. She had five sisters, two of whom were Eva and Jaquline. On January 25, 2014, at around 10:00 p.m., Doe, Eva and Jaquline were all together and decided to go to the Eagle's Nest Lounge at the Pechanga Casino. On their way to the Eagle's Nest, they bought wine at the store and drank it in the parking lot at the casino. Doe had two cups of wine. They arrived inside the Eagle's Nest at around 11:00 p.m.
Jaquline met up with defendant, her boyfriend. Doe had never met defendant. Eva was with defendant's cousin, William Page. Doe sat with some girls she had just met and drank two vodka drinks at the Eagle's Nest. About an hour and a half later, Doe met up with Jaquline in the bathroom. Doe told her that she was feeling the effects of the alcohol and asked to go home. They could not find Eva so they waited in the car.
Doe fell asleep. She awoke to Jaquline talking on the phone. Jaquline was upset because Eva had gone to defendant's house with Page. They drove to defendant's house to pick her up. Eva did not want to leave. Doe told Jaquline that she could go inside and Doe would just sleep in the car. Jaquline later came out to the car and told her that defendant said she could sleep in a guest room at the house. Jaquline took her upstairs to the bedroom that defendant told her Doe could sleep in. Doe did not recall seeing defendant. The room had a twin bed. Jaquline brought her a blanket and she fell asleep.
Doe woke up; someone was on top of her. He was kissing her on the mouth and neck. It was dark and she could not see him. He was touching her breasts and legs. She was wearing a dress with underwear and a girdle. Doe said, "Stop. Stop. Please don't" two or three times. The man covered her mouth with his hand; he did not squeeze her mouth but placed his hand over her mouth. Doe did not move or try to push him off of her because she was in shock, not because of the alcohol. The man moved her underwear to the side and penetrated her vagina. He still had his hand over her mouth. She felt his penis inside her vagina for five to 10 minutes. His body was heavy on her. Doe never hit, kicked or bit the person. The man never kicked, punched or threatened her in any way.
Doe previously testified she said "no" or "stop it."
The man finally got up and walked out of the room. Doe did not scream or yell because she was in shock; she was frozen in fear. Doe remained on the bed in shock. Eventually, Jaquline came into the room and told her it was time to go.
Jaquline and Doe went to the car. Eva came out of the house with Page. Eva got into the car and they all drove away. As they drove back to their mother's house, where Jaquline and Eva lived, Doe told them what had happened. She was crying. Jaquline called the police. An ambulance transported Doe to the hospital. Doe spoke with the police at the police station and told them that there had been two males in the house but she could not identify the suspect. Doe told the nurse who examined her that she told the man no, and that he had covered her mouth.
Doe did not recall having any trouble walking that night because of the alcohol. Doe recalled telling the officers that she was intoxicated while at defendant's house. She felt she was more in shock than feeling the effects of alcohol. Doe and her sisters subsequently went to the Eagle's Nest, including one occasion two weeks prior to trial; she did not want to go but her sisters wanted to go.
B. OTHER TESTIMONY
1. JAQULINE'S TESTIMONY
In January 2014, Jaquline had been dating defendant for several months; Doe had never met him. Jaquline and defendant had engaged in sexual relations. Defendant lived in a house in Temecula, which was about five to 10 minutes from the Pechanga Casino. Prior to going into the casino on January 25, Eva and Doe sat in the parking lot and drank two bottles of wine; Jaquline did not drink any wine.
Defendant and Page met up with Jaquline and Eva at the bar at the Eagle's Nest. Doe was outside on the patio with some other girls. At some point, Jaquline went to the bathroom and ran into Doe who told her she wanted to go home. They tried to find Eva but she had left the bar and gone to defendant's house with Page. Doe and Jaquline got to defendant's house around 1:00 a.m.
Defendant came to the car. He walked with Doe and Jaquline into the house. Doe sat down and passed out on the couch. Page and Eva were in the hot tub outside. Defendant offered that Doe could sleep in one of the bedrooms upstairs. Jaquline and defendant walked Doe upstairs. There were four bedrooms upstairs. They put her in a room with a twin-sized bed. It was next to the master bedroom, which was defendant's room. The master bedroom had a larger bed in it. Defendant gave Jaquline a blanket to put over Doe. He also put a trash can next to the bed in case she needed to throw up. The door to the room was left open.
Defendant and Jaquline went downstairs and sat on the couch. Eva and Page were still in the hot tub. Eva and Page went upstairs to one of the bedrooms. Jaquline got into the hot tub with her bra and underwear and defendant got into the hot tub with her, naked. They were in the hot tub for about 20 minutes. Before they got in the hot tub, defendant went upstairs to get towels. He was upstairs for approximately five minutes. He went upstairs one other time for two or three minutes when they heard something upstairs.
Jaquline had told a sheriff's investigator prior to trial that defendant was only upstairs for one minute.
Jaquline denied that they engaged in sexual relations in the hot tub. Jaquline was upset with defendant because he seemed distant while they were at the casino. At around 2:00 a.m., defendant was falling asleep in the hot tub so she took him upstairs to the master bedroom. Defendant passed out on the bed. They did not engage in sexual relations because Jaquline was on her period.
Jaquline did not fall asleep. She checked her phone and realized it was 3:00 a.m. She called out to Eva and told her it was time to leave. Jaquline went downstairs to get her purse and keys; she was only downstairs for five minutes. She then went upstairs to get Doe. The door was still open. They all went to the car. Page went to his car and left at the same time. On the drive, Doe was asleep at first but then started yelling, crying and screaming telling them she had been raped. They called the police when they got home. Jaquline sent defendant a text the next morning because she was upset about what Doe had told her; defendant never responded.
After this incident, Jaquline continued her relationship with defendant; the relationship was intimate. They went to Cancun, Mexico, where defendant met her father. In April 2015, defendant and Jaquline went to Las Vegas together.
2. EVA'S TESTIMONY
Eva first met Page at the at the bar at the Eagle's Nest. After being at the bar for about an hour and a half, she and Page drove to defendant's house. They went into the hot tub. Later, she saw defendant and Jaquline. She never saw Doe but Jaquline told her that Doe was sleeping in one of the bedrooms. Page and Eva engaged in sexual relations in the hot tub. They went upstairs to one of the bedrooms. There was no one else in the bedroom and it had either a king or queen bed. They engaged in sexual relations on the bed. At one point, Eva fell off of the bed onto the floor. She was with Page the entire night and she never fell asleep.
Jaquline yelled to Eva that it was time to go at around 3:00 a.m. Page walked with Eva to get her purse out of his car. Eva did not see defendant when they left. Doe told them in the car that someone came in her room, covered her mouth and raped her.
3. PAGE'S TESTIMONY
Page went to the Pechanga Casino that night with friends and defendant. Page had met Jaquline a couple of times prior to that night but had never met Eva. Page had one drink at the Eagle's Nest. Page did not see Doe at the bar; he only spoke with Jaquline and Eva.
After about one hour of talking to Eva, they went to defendant's house. Defendant was not home yet. They went into the hot tub. They both were naked and engaged in sexual relations. They were in the hot tub for about one hour when Jaquline and defendant came home. He did not see Doe.
Eva and Page went upstairs to one of the bedrooms. It had a double-sized bed. They engaged in sexual relations in the bedroom. At one point, Eva went to the restroom and fell on the ground because it was dark. They were together in the bedroom for about one hour and he never left. He never went in the bedroom where Doe was sleeping; he did not know that she was at the house.
Page walked out of the house with Eva but went back into the house after they left. He checked on defendant who was asleep. He locked all of the doors and left the house. Since that night, he had seen Eva, Jaquline and Doe at the Eagle's Nest and they had all been friendly to him.
C. INVESTIGATION
Doe underwent a sexual assault examination on January 26. Doe advised the examining nurse that she had not had consensual intercourse within five days of the incident. Doe had not showered prior to the exam.
Doe estimated the assault occurred around 2:00 a.m. She did not know her assailant. Doe told the nurse that the male had got on top of her, pushed her underwear aside and penetrated her vagina. He covered her mouth with his hand. Swabs were taken from her breasts, neck and mouth. Several samples were taken from her vaginal area. There appeared to be semen in her cervix area. There was an abrasion inside the vaginal area which could have been caused by either consensual or non-consensual sex. The nurse concluded there was some type of sexual contact. The swabs were submitted for DNA analysis.
Riverside County Sheriff's Investigator James Dickey spoke with Doe at her home. Doe said she was too intoxicated and in shock to be able to push the man off of her. Investigator Dickey examined Jaquline's cell phone and she had sent a text to defendant the morning of January 26 that stated, "Which of you two fuckers took advantage of my sister?" There was no response.
Investigator Dickey went to defendant's home. He spoke with defendant and recorded the conversation. Defendant told him that Jaquline was just a friend but they had engaged in sexual relations a couple of times. When they went to his house after they all were at the Pechanga Casino, Page was in the hot tub with Eva and he, Jaquline and Doe, who defendant did not know, were in the living room. Jaquline and defendant went in the hot tub and then went upstairs to go to bed. Defendant fell asleep and when he woke up everyone was gone.
Defendant had received Jaquline's text that morning. He insisted he texted her back asking "What the hell are you talking about? Your sister left with my cousin." Defendant claimed he engaged in sexual relations with Jaquline that night in the hot tub and upstairs. He was asked if he was 100 percent sure that he engaged in sexual relations the night before with Jaquline, and he responded "Yeah." He was sure they engaged in sexual relations that night even though she was on her period. Defendant said he was drunk but only drank three drinks. He was tired.
Investigator Dickey then told defendant that Doe was claiming someone engaged in sexual relations with her against her will and there was semen found during an examination. Defendant claimed he only engaged in sexual relations with Jaquline and that his semen "should not" be on Doe. The only males in the house were defendant and Page. On previous occasions, Jaquline had worn a black girdle type of undergarment.
Defendant was asked if it was possible he mistook Doe for Jaquline. Defendant denied that he engaged in sexual relations with Doe. He remembered he was with Jaquline. When asked where he engaged in sexual relations, "Yeah in my bed. I'm sure it was my bed. Yeah." Defendant was again asked if he was 100 percent sure he did not engage in sexual relations with Doe believing it was Jaquline. He responded, "I'm pretty—yeah I'm pretty sure it was—yeah. Not it was—I'm sure it was, uh, Jackie got—only one I remember getting in my bed." Defendant adamantly denied going in the room where Doe was sleeping.
Investigator Dickey looked at defendant's phone and it showed he never responded to Jaquline's text. Only one bedroom in the house had a twin-sized bed. The master bedroom had a king-sized bed. Investigator Dickey found sheets and underwear in the washer.
After Investigator Dickey searched the house, he again spoke with defendant. Investigator Dickey encouraged defendant to admit what happened. He told defendant that Jaquline denied having sex with him however she had admitted having oral sex in the hot tub but would not have engaged in intercourse with him because she was on her period. Defendant said he and Jaquline engaged in sexual relations. Investigator Dickey again asked if he accidently engaged in sexual relations with Doe thinking it was Jaquline and he responded, "I had sex with Jackie." Jaquline had denied wearing a girdle that night. Defendant insisted that his DNA would not be found on Doe.
Investigator Dickey then spoke with Page. Page submitted to a DNA test and gave Investigator Dickey his phone. There were no messages about the incident on his phone.
Defendant was arrested and again interviewed at the police station. Defendant had met Eva prior to that night; not Doe. He was adamant he only engaged in sexual relations with Jaquline that night. He knew he engaged in sexual relations with Jaquline because she got on top of him. She was on her period and his sheets were a mess after it was over. He stripped his bed and put them in the washer. Defendant did not engage in sexual relations with Doe or Eva. His DNA would not be on Doe. A DNA sample was taken from defendant.
Judith Partridge was a criminalist employed by the San Bernardino County Sheriff's Department Scientific Investigation Division. She analyzed samples from Doe's sexual assault examination. There were 19 items that could have been tested. She chose six items to send for testing against the buccal swab from Doe; she chose the items based on Doe's report of the sexual activity.
Jennifer Steele was a criminalist employed by the same laboratory. Steele explained DNA and how it was tested. Steele was given the six items, including the buccal swab from Doe, and the buccal swabs from defendant and Page. She chose one swab from Doe's vagina area to test. She sampled the sperm from the swab. The sperm sample was matched to defendant. Page was excluded as a contributor. Steele did not test all of the items that were collected from Doe. She tested only one of the seven items (six plus a "reference") that were sent to her.
D. DEFENSE
Harold Rose owned a business in Las Vegas. He and defendant had been close friends since high school. Defendant a reputation for being very honest and "laid back." He was surprised by the allegations; they did not change his opinion of defendant. He had seen defendant in the past when defendant was drunk and he was mostly quiet and would fall asleep. Defendant visited him in Las Vegas in April 2015. He was with Jaquline. They appeared to be a couple. Jaquline told Rose that she did not believe defendant would rape her sister. She did not think he was capable of doing such a thing.
Investigator Dickey admitted that he had recently checked the phone records for defendant's phone, which included recovered messages. There was a response to Jaquline's message. Defendant responded, "Your sister was with my cousin." Jaquline responded, "Not that sister. The other one, [Doe]." Defendant had deleted the message from his phone.
Defendant's ex-wife described defendant as being honest and laid back. He was respectful to women. He was more laid back when he was drunk. She did not believe that it was in his character to rape a woman.
DISCUSSION
It is difficult to determine on what basis defendant is arguing the mistake of fact instruction, set forth in CALCRIM No. 3406, should have been given. First, it appears defendant is arguing that defendant believed Doe gave her consent because defendant only "placed his hand" over her mouth, she only told him stop "2 or 3" times, and even though her legs were free, she did not fight back. On the other hand, defendant makes some reference to the fact that he mistakenly believed that he engaged in sexual relations with Jaquline. He contends it was reasonable for the jury to conclude that since defendant and Jaquline had previously engaged in sex she was less likely to be intimated by defendant so would be more likely to resist unwanted advances. Defendant also contends that he received ineffective assistance of counsel because defense counsel failed to request CALCRIM No. 3406. We reject these contentions.
A. ADDITIONAL FACTUAL BACKGROUND
When discussing the instructions, the trial court asked about CALCRIM No. 1000. The parties discussed the bracketed portion of that instruction regarding a woman who consents at first and then changes her mind during the act. Defense counsel represented he did not intend to argue that Doe first consented to the sex, and then withdrew her consent. The trial court left in that part of the instruction out of an abundance of caution. Both parties agreed the last portion, detailed post, should be given. Defense counsel did not request CALCRIM No. 3406.
The jury was instructed with CALCRIM No. 1000. It included language that, "The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty."
The standard instruction CALCRIM No. 3406, which was not given, provides as follows: "The defendant is not guilty of __________ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit __________ <insert crime[s]>. [¶] If you find that the defendant believed that <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for <insert crime[s]>. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for __________ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes)."
The People argue only that the jury was adequately instructed on consent by Doe and apparently did not interpret defendant's argument to include that he mistakenly believed he engaged in sexual relations with Jaquline. --------
B. FAILURE TO INSTRUCT
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 953.) " 'But " 'when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a "pinpoint" instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such "pinpoint" instructions are not required to be given sua sponte and must be given only upon request.' " ' " (People v. Lawson (2013) 215 Cal.App.4th 108, 11 (Lawson), citing to People v. Anderson (2011) 51 Cal.4th 989, 996-997.)
" ' "At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense." ' " (People v. Lucero (1988) 203 Cal.App.3d 1011, 1016.) "[A]n instruction on the defense of mistake of fact [only serves] to negate the mental state element of the crime." (Lawson, supra, 215 Cal.App.4th at p. 118.) "Thus even if [there is] substantial evidence . . . on mistake of fact, the trial court [has] no duty to instruct on the defense sua sponte." (Ibid.)
In People v. Mayberry (1975) 15 Cal.3d 143, pages 154 through 155, the 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. "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." (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted.)
Defendant insists that the trial court had a sua sponte duty to instruct the jury with the mistake of fact instruction in CALCRIM No. 3406 because he reasonably believed that he was engaged in sexual relations with Jaquline rather than Doe. Defendant ignores authority from this court that a mistake of fact instruction is a pinpoint instruction that need not be given sua sponte. (Lawson, supra, 215 Cal.App.4th at pp. 117, 119.) Defendant's trial counsel did not request that the jury be instructed with CALCRIM No. 3406 and defendant cannot complain on appeal that the trial court failed to give the instruction.
Moreover, as pointed out by the People, the jury was already instructed with CALCRIM No. 1000 with the Mayberry instruction. The trial court had no duty to instruct with CALCRIM No. 3406 as it related to whether Doe consented to the intercourse as that principle was already explicated in CALCRIM No. 1000.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant further contends that his counsel was ineffective for failing to request that the CALCRIM No. 3406 instruction be given to the jury. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show both that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Bolin (1998) 18 Cal.4th 297, 333.)
" ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citations.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Here, trial counsel could have reasonably determined that CALCRIM No. 1000 adequately covered the issue of consent by Doe. Further, trial counsel could have also reasonably concluded that the jury would disbelieve any attempt to argue at trial that defendant was mistaken that he engaged in sexual relations with Doe thinking it was Jaquline. Defendant had been interviewed prior to trial by Investigator Dickey as to whether he had mistakenly engaged in sexual relations with Doe. Defendant adamantly denied on multiple occasions that he engaged in sexual relations with Doe thinking it was Jaquline. Defense counsel specifically argued in closing that defendant was given every opportunity to create a "bogus" defense, such as mistaking Doe for Jaquline, but defendant never wavered that he did not engage in sexual relations with Doe. Defendant's counsel chose to attack Jaquline's credibility and that the DNA evidence was not reliable.
Defense counsel made a reasonable tactical decision, based on the evidence that defendant had denied during the pretrial interviews that he slept with Doe by mistake thinking she was Jaquline, that the best defense was to argue that the DNA was wrong based on only one sample being tested and that all of the surrounding circumstances supported that he did not engage in sexual relations with Doe. "To hold that counsel rendered ineffective assistance in doing so would merely be to second-guess this decision." (People v. Coffman (2004) 34 Cal.4th 1, 86.) We do not find that counsel was ineffective.
Moreover, defendant has failed to demonstrate a reasonable probability that the result would have been more favorable to him had the jury been instructed with CALCRIM No. 3406. (Strickland v. Washington, supra, 466 U.S. at pp. 687-689.) Defendant claims that there was "substantial evidence" that would have tended to show that his actions were a product of a mistake of fact. However, as stated, defendant had adamantly denied that he engaged in sexual relations with Doe believing it was Jaquline. He described in detail his interactions with Jaquline that night, including that when they engaged in sexual relations she was on top of him and that his sheets were a mess after the encounter because she was on her period. Doe described a much different sexual encounter. If defendant was really mistaken in sleeping with Doe, there is no reasonable explanation as to the differing accounts by Doe and defendant as to the sexual encounter. There simply was no evidence supporting a mistake of fact instruction and the jury certainly would have rejected this defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.