Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061708
Marchiano, P. J.
A jury convicted defendant Arnell Mercurio of felony sexual battery and misdemeanor false imprisonment. The trial court sentenced him to three years’ probation conditioned on serving a year in county jail. Defendant contends the trial court improperly denied him discovery of the victim’s psychotherapy records, the court erred in referring to the victim by a pseudonym, and the court improperly instructed the jury. We find no error and affirm.
I. Facts
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The crime arises from a New Year’s Eve celebration gone awry. The defense was that the sexual activity was consensual.
The Victim’s Testimony, as Corroborated by Other Witnesses
The victim, referred to below as Agatha Doe, testified as follows. Our summary of her narrative of the night of the crime and its aftermath is interspersed with specific references to the testimony of other witnesses.
Agatha Doe was engaged to Rick B. The couple made plans to spend New Year’s Eve 2005 with two other couples―Mike and Olga A. and Carl and Hanilla B.―at the Crowne Plaza Hotel in Foster City.
On the afternoon of December 31, 2005, Agatha and Rick checked into the Crowne Plaza and went to their room on the fourth floor. The room phone did not work, so Agatha called Hanilla on her cell phone. The three couples met in the lounge for a late snack. Agatha had one glass of wine. After about 30 minutes, Agatha and Rick returned to their room. They napped for about 45 minutes, dressed, and went downstairs just after 8:00 p.m. to meet the other two couples at the dinner buffet.
We will henceforth use first names only for ease of reference. We intend no disrespect.
When they got off the elevator downstairs, they ran into defendant, an acquaintance of Rick’s whom Agatha had previously met. Defendant hugged Agatha and said, “Hi,” and spoke briefly to Rick.
Agatha and Rick met the other two couples for dinner at the buffet. Agatha drank one glass of wine with dinner. After dinner, the three couples went to the hotel bar, known as The Bistro, and socialized. Defendant and his wife, Tammy, came up to Agatha and Rick and briefly spoke with them. Nothing in defendant’s behavior or conversation suggested to Agatha that defendant wanted to have sex with her, and she did not want to have sex with him. Agatha drank two glasses of wine and a “Cosmopolitan shot.” She felt “happy” and “buzzed,” but was not drunk.
Rick testified that when he spoke with defendant that night, defendant told him he should not get married, because “it’s not worth it, it’s a headache.”
The three couples left The Bistro at 2:00 a.m. January 1, when the bar closed. Agatha and Rick stopped at Carl and Hanilla’s room on the fifth floor, and then went to Mike and Olga’s room on the sixth floor. Defendant was there without his wife, but Agatha was not aware that anyone in her group had invited him.
All January dates refer to January 2006.
After about 15 minutes Rick, who was tired and feeling the effects of alcohol, fell asleep on the bed. The group decided to take him back to his and Agatha’s fourth floor room. After they put Rick in his room, the group, including Agatha, went to Carl and Hanilla’s room on the floor above. Defendant was there and was talking with the men in the room while Agatha spoke with Hanilla and Olga.
Defendant repeatedly suggested to Agatha that she check on Rick. Defendant claimed that Rick might be angry with her because she continued to party. Olga testified that defendant continuously suggested Agatha check on Rick, and was “relentless.” Agatha capitulated and told the group she was leaving to check on Rick. Defendant offered to walk her to her room. As they walked down the hallway, defendant said he wanted to stop at his room to let Tammy know what he was doing.
Defendant opened the door to his room and Agatha said, “hi,” expecting to see Tammy. But she saw no one in the room despite the fact that the lights were on. Agatha asked defendant where Tammy was. He said she was not there. Defendant grabbed Agatha by the wrists and turned her toward him, grabbed her upper arms, and pushed her “pretty hard” onto the lower portion of the bed. Agatha’s back hit the bed.
Defendant lifted up Agatha’s dress, pinned her hands crossed over her head, held her down by her wrists, and began to kiss her breasts. Agatha again asked where Tammy was; defendant replied, “[W]ho the fuck cares where my wife is?” Agatha told defendant to stop and tried to get up, but he pushed her back down on the bed.
Defendant pinned down Agatha’s wrists with one hand and used the other to take off his shirt, belt, and pants. At one point he switched hands. Then he ripped off Agatha’s thong underwear. He repeatedly tried to penetrate Agatha’s vagina, but was unable to achieve an erection. Agatha kept pleading with defendant to stop. To escape the sexual assault she told defendant she had to urinate. He released her and she ran out the door, pulling down her dress but leaving her underwear behind. She ran down the hallway and took the elevator to her room. The entire incident lasted 10 to 15 minutes.
Agatha denied removing any of her own clothing or defendant’s. She denied that any oral copulation occurred between them, as defendant would later testify.
Agatha got to her room and tried to wake Rick. She told him his friend had tried to rape her. He stirred in his sleep, but did not react to the news, and remained sleeping. She used her cell phone to call Olga twice, but Olga did not pick up. She tried unsuccessfully to reach Carl by phone. She finally reached Hanilla. Agatha, hysterically crying, told Hanilla that defendant had tried to rape her, that she was scared, and could not wake Rick. Hanilla told her to stay in her room. Hanilla testified and corroborated Agatha’s testimony about the call, and said Agatha “cried and cried.”
Agatha did not call the police, or ask Hanilla to call them, because she wanted to first speak to Rick. Because she still could not wake him, she grabbed pillows and blankets and threw herself on the floor―but did not collide with any furniture in the process.
When Agatha and Rick woke up, she told him what had happened. Rick testified that Agatha started crying. They agreed to report the assault to the police. They called the police from the hotel lobby.
Foster City Police Officer Douglas Nix arrived at the Crowne Plaza about 2:30 p.m. on January 1. He took a brief statement from Agatha and then took her to the police station for a lengthier interview. He observed scratches on Agatha’s hands that she described as “bloody.” Agatha thought she received the scratches when defendant dug his nails into her hands when she tried to get off the bed. She did not have the scratches before the sexual assault.
Rick and Agatha’s mother, Maria O., picked Agatha up at the police station and took her home. (Rick, Agatha, and Maria lived together.) Agatha was crying, felt sick to her stomach, and felt pain in her lower back. Maria testified that Agatha was upset and “frightened.” Maria also testified that she noticed redness in the area of Agatha’s lower back, as well as a scratch on her right hand. Rick testified that he noticed the redness, and thought the area was “a little swollen.” Rick also testified Agatha complained of pain in her lower back.
Agatha got into her pajamas and went to bed. She stayed in bed all day January 2. Over the next few days she developed bruises on her buttocks, waist, and arm, which she attributed to defendant’s throwing her on the bed and grabbing her by the arms. Both Rick and Maria testified that they saw the bruises.
On January 4, Agatha went to the Keller Center at the San Mateo County Medical Center where a nurse photographed her injuries. While she was there, she was interviewed by Detective Sergeant Frank Derris.
At the request of the police, Agatha placed a pretext call to defendant. She led defendant to believe she had contracted a sexually transmitted disease from him. She told him he had hurt her. Defendant told Agatha he was sorry.
Defense counsel thoroughly cross-examined Agatha. Defendant draws our attention to several minor discrepancies between her trial testimony and her statements to police. Given our standard of review we need not discuss them in detail. They do not undermine the essence of her testimony.
The Police Investigation and Physical Evidence
Officer Nix testified that when he took a statement from Agatha at the hotel, she was distraught, but appeared to be sober. Nix noticed a fresh scratch on the knuckle area of her right hand.
Nix recovered the duvet from the bed in defendant’s room. Blood smears on the duvet matched Agatha’s DNA profile.
Sergeant Derris seized the bed from defendant’s room. He described the bed as rigid at the edges and he could feel a solid bar inside the bed.
The Medical Evidence
Diana Cummings was the clinical coordinator of forensic nurse practitioners at the Keller Center. She testified she had performed over 800 examinations of victims of sexual assault and domestic violence who had suffered physical injuries. She qualified as an expert witness in the area of forensic examinations, with specific expertise in bruises and bruising.
Based on her review of Agatha’s description of the incident, Maria’s and Rick’s description of the redness on Agatha’s lower back, and photographs of Agatha’s bruises, Cummings concluded that Agatha’s bruises on her back, buttocks and arm were non-accidental and consistent with her account of the sexual assault. The back bruises were caused by blunt force trauma and were consistent with being caused by forcible contact with the rigid edge of a bed. This would be true even if the rigid bed surface was covered by a mattress pad, sheets, and duvet. The back bruises were not consistent with falling onto the floor.
The arm bruise was consistent with being grabbed on the upper arm, and was “a characteristic finding that [is seen] a lot in assault cases.” The scratch on Agatha’s hand could have been caused by being grabbed by someone and scratched by that person’s fingernail.
Cummings reviewed the report of the defense medical witness. She disagreed with the witness’s conclusion that the bed could not have caused the bruises to Agatha’s back and buttocks. Her disagreement was partially based on the defense witness’s assumption that the bruises were caused by forcefully sitting on the mattress.
Defense Case
Defendant testified as follows. This is his version of events, rejected by the trier of fact on matters material to guilt.
Defendant and his wife Tammy went to the Crowne Plaza on New Year’s Eve to celebrate with their friends Emma and Oscar H. After dinner, defendant spoke with Agatha and Rick in the bar. At about 1:00 a.m. New Year’s Day, defendant went to his friends’ room. He called Rick at about 2:00 a.m., after Tammy had gone back downstairs. Rick told him he was in Mike and Olga’s room. Defendant went there and socialized, and then the group went to Carl and Hanilla’s room.
On his way to that room, defendant encountered Tammy who was angry with him, demanded the car keys, and left the hotel.
In Carl and Hanilla’s room, someone suggested putting Rick to bed. Defendant helped get Rick to his room, then returned to Carl and Hanilla’s room. Defendant was tired and announced he was going to bed. Agatha said she was going to check on Rick. She told defendant she would walk out with him.
On the way to the elevator, defendant told Agatha about the scene with Tammy. Agatha hugged him. They kissed in the elevator. When they arrived at Agatha’s floor, she stayed in the elevator car. Defendant invited her up to his room.
Once inside defendant’s room, Agatha sat on the bed. Agatha began “making out” with defendant and undressing him. She got on her knees, and orally copulated him. Then she said it was “my turn.” Defendant took off Agatha’s dress. She got on top of him and he orally copulated her.
Agatha asked defendant if his wife was coming back and then went to the bathroom. She was not wearing her underwear. Defendant felt sad and guilty because he had cheated on his wife. He told Agatha “they shouldn’t do this because it’s not right.” Agatha agreed. They got dressed, and defendant walked Agatha to the elevator.
Defendant went back to his room and went to sleep. Tammy came to get him the next day. He flushed Agatha’s underwear down the toilet so Tammy would not see it.
Defendant denied forcing himself on Agatha. On cross-examination, the prosecutor explored a number of discrepancies in defendant’s testimony, which we need not discuss in detail.
Tammy testified that she saw nothing unusual going on between defendant and Agatha that night.
Defendant called Officer Nix and Sergeant Derris and explored some discrepancies in Agatha’s statements and minor errors in Derris’s interview report.
The defense expert on bruising was Dr. Terri Haddix. She reviewed the police reports and examined the hotel bed and the photographs of Agatha’s bruises. She concluded it was “unlikely” that the bruises were caused by impacting the edge of the bed. She did not believe that one action could cause bruising in two areas of Agatha’s back. In her opinion, the bruises could have been caused by Agatha’s hitting a nightstand when she threw herself to the floor.
Haddix characterized the scratch on Agatha’s hand as “non specific,” and may have resulted by contact with a rough surface. She opined the arm bruise could “possibly” be caused by being grabbed, but concluded the bruise was not necessarily typical of what she would expect to see under the circumstances.
Defendant was charged by information with attempted rape (Pen. Code, § 261, subd. (a)(2); 664); felony sexual battery (§ 243.4, subd. (a)); and felony false imprisonment (§ 236). As noted, the defense was consent. The jury rejected that defense. The jury acquitted defendant of attempted rape, but convicted him of felony sexual battery and misdemeanor false imprisonment as a lesser included offense of felony false imprisonment.
Subsequent statutory citations are to the Penal Code.
II. Discussion
Defendant contends he was improperly denied discovery of Agatha’s psychotherapy records. He also contends the trial court erred by referring to Agatha as “Agatha Doe.” Finally, he urges instructional error. We reject defendant’s contentions for the following reasons.
Denial of Discovery
Defendant contends that he was improperly denied discovery of records of Agatha’s postassault counseling sessions. We disagree because he made an insufficient showing for the trial court’s in camera review of the records.
As we noted above, defense counsel thoroughly cross-examined Agatha, largely with regard to information which was missing from her initial statements to police but emerged over time. Agatha testified that “[a] lot of stuff started to come back” over time, and “[e]verything came back to me in time after the incident on the New Years Eve or New Years Day so it became more clear to me as the days progressed.”
Subsequently, defense counsel cross-examined Agatha about whether she was asked in a police interview how defendant held her arms. She said she was not asked, but later did a demonstration of how defendant held her. She testified, “It just . . . came to me at the time by actually going to some counseling classes, seeing my counselor, just talking about it constantly for three months, it’s like everything just came back to my mind, it was more clear to me.”
Officer Nix testified that in his experience as a police officer, a witness’s information “evolves over time.”
Two days after Agatha referred to counseling sessions in her testimony, defendant filed a motion for discovery. Defendant sought disclosure of “the name, address, and telephone number of the counselor referred to by Agatha Doe during her testimony in court.” Defendant also sought disclosure of “any and all notes taken by the counselor and the number of counseling sessions with Agatha Doe.”
The motion was heard the next day. The People objected to the discovery on the ground of the psychotherapist-patient privilege. The court found the privilege applied. Defense counsel argued that under People v. Reber (1986) 177 Cal.App.3d 523 (Reber) the privilege was subject to a balancing test against the defendant’s right to confront and cross-examine witnesses. Counsel asked the court to review the counseling records in camera. The court declined and denied the motion.
At a later point in the proceedings, the court elaborated on its reasons for denying the motion. The court referred to Reber and People v. Pack (1988) 201 Cal.App.3d 679 (Pack). The court noted that those cases state the rule that a defendant seeking in camera review must make an initial showing of sufficient specificity that the records sought may contain material evidence. The court stated that defendant had failed to make such a showing and, like the defendant in Pack, was seeking privileged records solely on the basis that a witness sought mental health treatment.
Defense counsel replied: “Now, the reason I couched my motion in terms of discovery, it is just that we don’t know if there was any hypnosis that was used in order to help her attempt to remember more of the facts . . . . [¶] Now, I have no way of knowing the answer to that unless I have some help in producing the records so we can see what it was that the therapist did in order to help her . . . memory to be more vivid today than it was when she first talked to [Officer] Nix on January 1st.” (Italics added.)
The prosecutor responded that defense counsel could have cross-examined Agatha regarding hypnosis. The court agreed that counsel could have. The court concluded that defense counsel “didn’t lay a sufficient foundation. . . .”
Reber set forth the procedures for seeking records protected by the psychotherapist-patient privilege. The defendant must make an initial showing of good cause for discovery, meaning that the defendant must describe the records with reasonable specificity and present a plausible justification for their production. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1691 (Dancer); Reber, supra, 177 Cal.App.3d at pp. 531-532.) Once that showing is made, the trial court should review the records in camera, weigh the defendant’s constitutional right of confrontation against the privilege, determine which (if any) of the privileged material is essential to vindicate the right of confrontation, and create an adequate record for review. (Reber, supra, at p. 532.)
Dancer, Reber and Pack were disapproved in People v. Hammon (1997) 15 Cal.4th 1117, 1123, 1127-1128, but only so far as they permitted disclosure of psychotherapy record before, as opposed to during, trial.
In the present case, the trial court found that defendant had not made an initial showing of good cause. We review that determination for abuse of discretion. (People v. Memro (1985) 38 Cal.3d 658, 684.)
This case is very similar to Pack, supra, 201 Cal.App.3d 679. In that case the defendant sought discovery of privileged records solely on the ground that the victim/witness had received treatment for an unknown mental health problem. We agree with the analysis of the Pack court: “We decline to [approve] review [of] privileged psychotherapeutic records upon such a minimal showing. A person’s credibility is not in question merely because he or she is receiving treatment for a mental health problem. To subject every witness in a criminal prosecution to an in camera review of their psychotherapist’s records would be the invasion of privacy which the psychotherapist-patient privilege is intended to prevent.” (Id. at p. 686.)
Defendant sought Agatha’s records essentially because she had sought counseling. It is common knowledge that victims of sexual assault frequently seek counseling; that alone should not routinely allow in camera review of their privileged records. The mere fact that Agatha’s memory improved as a result of speaking to her counselor does not amount to a showing of good cause. The record reflects that it is common for witness’s memories to become more complete over time. In any case, defense counsel admitted he wanted the records to see whether Agatha had been hypnotized―an issue he could have, but did not, raise on cross-examination. We note the cross-examination was thorough and counsel had the opportunity to place Agatha’s memory and credibility squarely before the jury.
Reliance on Section 293.5
Defendant raises numerous issues about Agatha’s being referred to as “Agatha Doe.”
With certain exceptions not applicable here, section 293.5, subdivision (a) provides that “the court, at the request of the alleged victim [of a sex offense], may order the identity of the alleged victim in all records and during all proceedings to be either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense.”
Subdivision (b) of the statute provides that if the court orders the alleged victim to be identified as a Doe at a jury trial, “the court shall instruct the jury, at the beginning and at the end of the trial, that the alleged victim is being so identified only for the purpose of protecting his or her privacy pursuant to this section.”
The statute cross-references section 293, subdivision (e), which defines “sex offense” as “any crime listed in paragraph (2) of subdivision (f) of Section 6254 of the Government Code.” That list of crimes includes numerous sex offenses, including rape, but does not include any attempted sex offense.
1.
Defendant argues that it was error to refer to the victim as “Doe” because section 293.5 does not apply to the charge of attempted rape. We disagree.
“The rule of strict interpretation of penal statutes does not apply in California.” (People v. Squier (1993) 15 Cal.App.4th 235, 241.) The provisions of the Penal Code “are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice.” (§ 4.)
“The fundamental goal of statutory construction is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (People v. Barrajas (1998) 62 Cal.App.4th 926, 929 (Barrajas), citing People v. King (1993) 5 Cal.4th 59, 69.) A court will not give a penal statute its literal meaning when that would result in absurd consequences the Legislature did not intend. (Barrajas, supra, at p. 929.) “ ‘ “Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” ’ ” (Ibid.) We are also required to construe a statute with the goal of promoting, instead of hindering, its general policy and purpose. (City of Costa Mesa v. McKenzie (1973) 30 Cal.App.3d 763, 770.)
The Barrajas court applied these rules of construction to conclude that a defendant who attempts to commit a divertible drug offense is eligible for diversion on the same basis as a defendant who commits a divertible drug offense―despite the fact that attempts were not listed as divertible offenses in the diversion statutes. (Barrajas, supra, 62 Cal.App.4th at pp. 928-930.) Likewise, the court in People v. Crowles (1993) 20 Cal.App.4th 114 used these rules of construction to conclude that a defendant convicted of an attempt to commit an offense requiring registration as a narcotics offender is required to register, on the same basis as one who commits a registrable crime―again, despite attempts not being listed in the applicable statute. (Id. at pp. 116-119.)
We do not accept defendant’s literal interpretation of section 293.5. The policy behind the statute is to protect the privacy of alleged victims of sex offenses. The trauma and humiliation of that type of victimization is present in the case of an attempt, as well as in a completed crime. The policy of protecting victim privacy is the spirit of the law, and must prevail over the literal letter. It would be absurd to assume the Legislature intended to exclude victims of attempts from the scope of the statute.
We conclude that section 293.5 is applicable to the crime of attempted rape.
Defendant relies on a series of cases, culminating in People v. Lewis (2006) 146 Cal.App.4th 294, and People v. Reed (2005) 129 Cal.App.4th 1281. These cases arise in different contexts than that before us, and we question their literal statutory interpretations.
2.
Defendant contends that even if the statute applies the trial court abused its discretion by ordering that Agatha be referred to as “Doe.” Defendant claims the trial court failed to weigh the competing interests of Agatha’s right to privacy and defendant’s rights to the presumption of innocence and a fair trial.
Defendant grounds this contention on the fact that, as trial progressed, certain identifying information about Agatha was presented to the jurors. Indeed, at one point, the transcript of the pretext phone call, referring to Agatha by her true last name, was presented to the jury. But the trial court observed that not all jurors noticed the name.
Nevertheless, the trial court believed, in its discretion, that it should continue to protect Agatha’s privacy. There is nothing in the record to indicate the trial court failed to weigh Agatha’s rights against defendant’s, or in any other way abuse its discretion under section 293.5. Defendant relies heavily on his characterization of this case as a credibility battle―but it is more than that. Agatha’s testimony is amply supported by physical evidence and expert testimony. Defendant also argues that the use of the word “Doe” would imply that Agatha was an actual victim and not an alleged victim, and that therefore defendant must be guilty. The logic would eviscerate the statute. The logic was also rejected by Division Four of this District in People v. Ramirez (1997) 55 Cal.App.4th 47, 57-58 (Ramirez).
We see no error.
3.
The trial court instructed the jury pursuant to section 293.5, subdivision (b) at the outset of trial, but failed to reinstruct the jury at the end. Defendant contends the omission of the second instruction was prejudicial error. We disagree.
An omission of a cautionary instruction is not ipso facto prejudicial. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.) Instructions must be viewed as a whole, not in isolation. (Ramirez, supra, 55 Cal.App.4th at p. 58.) The trial court gave the appropriate instruction at the outset of trial, and instructed the jury at the end with CALCRIM No. 200: “Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” This was sufficient to remind the jury of the previous instruction that the “Doe” designation was only for privacy protection, and to inform them that the fact of guilt was for them to determine from the evidence―not from the use of a pseudonym.
There was no prejudicial error.
4.
Finally, defendant briefly contends there was no proper request from the victim to invoke section 293.5. This contention is patently without merit. The prosecutor made a request on the victim’s behalf. That is sufficient.
Alleged Instructional Error
Finally, defendant alleges that the jury was improperly instructed on the element of intent for sexual battery. We disagree.
Sexual battery is a specific intent crime. It consists of touching an intimate part of another, against their will, and for the purpose of sexual arousal, gratification, or abuse. (People v. Chavez (2000) 84 Cal.App.4th 25, 29.) But the trial court instructed the jury on general and specific intent.
First, the trial court instructed the jury with CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together):
“Every crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent.
“The following crimes require general criminal intent: felony sexual battery, misdemeanor sexual battery, assault, felony false imprisonment and misdemeanor false imprisonment. To be guilty of these offenses, a person must not only commit the prohibited act or fail to do the required act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime or allegation.
“The following crimes require a specific intent: attempted rape. To be guilty of this offense, a person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent. The act and the intent or mental state required are explained in the instruction for each crime.”
Subsequently, the trial court instructed the jury with CALCRIM No. 935 (Sexual Battery: Felony):
“The defendant is charged in Count 2 with sexual battery. [¶] To prove that defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully restrained Agatha Doe; [¶] 2. While Agatha Doe was restrained, the defendant touched an intimate part of Agatha Doe; [¶] 3. The touching was done against Agatha Doe’s will; [¶] AND [¶] 4. The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.”
Defendant contends the instructions are in direct conflict and confused the jury on the issue of whether they needed to find specific intent or only general intent to convict him of sexual battery.
First, defendant failed to object to CALCRIM No. 252, which inaccurately told the jury that sexual battery was a crime of general intent. Thus, he has waived the issue for appeal unless the error affects his substantial rights. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
Second, no substantial rights are affected here because there is no error. A potentially confusing instruction constitutes error if, looking at the entire charge to the jury as a whole, there is a reasonable likelihood the jury applied the instruction in a way that violated the defendant’s constitutional rights. (People v. Bland (2002) 28 Cal.4th 313, 332; People v. Holt (1997) 15 Cal.4th 619, 677.)
Defendant relies on cases in which two instructions were in direct conflict. In People v. Lee (1987) 43 Cal.3d 666, the court instructed the jury that specific intent to kill was and was not required for the crime of attempted murder. (Id. at pp. 670-671.) In People v. Maurer (1995) 32 Cal.App.4th 1121, the court instructed the jury that motive was and was not required for the crime of child annoyance. (Id. at pp. 1125-1127.)
These cases are distinguishable. Here, the trial court instructed that a list of crimes, including sexual battery, required general intent, but then specifically instructed the jury that sexual battery required specific intent, i.e., “the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” It is not error to instruct on general intent if the court follows up with a specific intent instruction “which leaves no doubt in the jury’s mind” that specific intent is a matter they must determine from the evidence. (See People v. Hill (1967) 67 Cal.2d 105, 118.)
That is what occurred in this case. CALCRIM No. 935 left no doubt in the jury’s mind that they had to find specific intent, in this case a specific purpose of sexual arousal or gratification. Indeed, the closing argument of both counsel focused on that specific purpose―and in arguing that the sexual activity was consensual, defense counsel effectively conceded defendant was acting for the purpose of his and Agatha’s sexual gratification.
There is no instructional error.
III. Disposition
The judgment of conviction is affirmed.
We concur: Margulies, J., Flinn, J.
Judge of the Contra Costa Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.