Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCE264094, Charles W. Ervin, Judge.
HALLER, Acting P. J.
Jimmy Sanchez was convicted of forcible oral copulation and rape by a foreign object, with true findings under the "one strike" sentencing provisions of Penal Code section 667.61. He was also convicted of attempted rape, with a true finding that he personally used "a deadly or dangerous" weapon. He argues the judgment should be reversed because: (1) the trial court failed to instruct that his oral statements should be viewed with caution; (2) the trial court failed to instruct on absence of consent and mistake of fact for kidnapping allegations brought under section 667.61; and (3) the trial court erroneously included the term "dangerous weapon" when instructing on the deadly weapon allegation for the attempted rape count. We reject his assertions of reversible error and affirm the judgment. We also order correction of a clerical error in the abstract of judgment.
Subsequent statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sanchez was charged with offenses against two women (J.V. and A.T.) occurring on two different occasions. The jury deadlocked on the charges involving J.V. (counts 7 and 8) and these were dismissed; accordingly we need not summarize the facts pertaining to her.
Sanchez lived in the same apartment complex where A.T. lived with her husband and two small children (a five-month-old son and one-year-old daughter). Around 7:20 a.m. on August 23, 2006, A.T. was at home with the children preparing to go to work and to take the children to daycare. Sanchez, whom A.T. had occasionally seen at the complex, knocked on her door and asked if he could use her bathroom because he had locked himself out of his apartment. A.T. agreed and allowed him into her home. At the time of his entry, A.T. was changing her son's diaper on the living room floor.
After Sanchez used the bathroom, he acted as if was going to leave. However, instead of leaving he shut the front door, told A.T. he had a gun, and told her to go to the bedroom. Sanchez, who was carrying a backpack and wearing jeans, did not actually display a gun, but A.T. did not want to risk anything because her children were "right there" in the living room. When A.T. went to the bedroom, Sanchez told her to take off her clothes but to leave on her bra and underwear. Believing she was going to be raped, A.T. started to unbutton her pants. However, when her daughter came and stood at the open door, A.T. stated to Sanchez, "Please don't do anything in front of her." Sanchez told A.T. to turn on the television for the girl. A.T., followed closely by Sanchez, returned to the living room, turned on the television, and told her daughter to sit down. Sanchez then stated to A.T., " 'Let's go.' " A.T., trying to stall, asked if she could give her daughter some food because she had not eaten, and Sanchez told her to hurry and to give the girl a banana. A.T. gave her daughter a banana that was on the counter. Sanchez was acting "nervous" as if things were not going as planned, and A.T. wanted to "get as far away from [her] kids as possible" because she did not want anything to happen in front of them or to them. Sanchez again stated, " 'Let's go.' " As A.T. started to walk out of the apartment, Sanchez told her, " 'Don't say anything. Don't scream' "; " 'Don't try anything funny, don't run, or I'll kill you. . . .' "
A.T. walked beside Sanchez to his apartment. They walked down a sidewalk, past the office, and up some stairs. Sanchez walked right next to her without touching her. A.T. looked for someone so she could scream for help but did not see anyone. A.T. did not try to run away because she was afraid if she ran towards her home, Sanchez would follow her and hurt her children. She believed Sanchez's threats were real; he did not do anything that suggested his threats were not real; and she wanted "to play everything safe" because she did not want to risk her children's safety.
When they entered Sanchez's apartment, Sanchez locked the door and told A.T. to take off her clothes but to leave on her bra and underwear. After A.T. complied, Sanchez retrieved some tape and a 10-inch kitchen knife from his backpack, cut the tape with the knife, and taped her hands behind her back. A.T. kept asking Sanchez, " 'What is going on?' " Sanchez repeatedly told her "Don't try anything. Nothing will happen," and that if she tried anything he would shoot her. Thereafter, Sanchez repeatedly sexually assaulted A.T., including oral copulation, digital penetration, and attempts at sexual intercourse. During the assaults, Sanchez told A.T. she was a beautiful woman, and in a commanding tone told her to just " 'enjoy it.' " While the sexual activity was occurring, the knife was on a love seat about four feet away. A.T. was too afraid to do anything to resist; she felt that if she screamed she would not "make it out of there."
At one point during the assaults, Sanchez used the knife to cut the tape off of A.T.'s hands. When he went to the kitchen counter (where he had periodically been going to snort something up his nose), A.T. grabbed the knife off the loveseat and started screaming, " 'Just let me go.' " Sanchez grabbed a pair of scissors and lunged toward her. During the altercation, A.T. and Sanchez inflicted stab wounds on each other's arms. Sanchez gained control of the knife, and starting stabbing A.T. A.T. grabbed the blade of the knife in her hand to try to protect herself, and Sanchez screamed at her to let go; A.T. responded " 'No. You're going to kill me.' " A.T. eventually let go of the knife blade, and Sanchez, acting angry and panicked, started pacing. He repeatedly lunged at her with the knife and stated he should kill her. He finally told her to get up and rinse off the blood in the shower.
After Sanchez told her to get out of the shower and she complied, he digitally penetrated her again, and he continued his threats to kill her if she tried anything. He was moving her around the apartment from place to place, twirling the knife, lunging towards her, and repeating that he told her nothing was going to happen, that she should not scream or say anything, and that he should kill her by cutting her head off or stabbing her in the heart. A.T. told him she could get money for him from her bank, but he told her to "shut up." At one point he taped her mouth and hands, but the tape began to come off because she was wet. He took the tape off and told her to lie on the floor. He sat down and started chain-smoking cigarettes. He kept looking out the window, apparently concerned because they had heard sirens from a nearby sheriff's station.
Sanchez eventually told A.T. to get dressed. He went to the front door and stated that if she told the police, he would kill her or her children. A.T. promised she would not tell anyone. Sanchez opened the front door, and A.T. ran out.
A.T. quickly fled the apartment complex in her car with her children and started driving towards her husband's place of employment. A little before 10:00 a.m., while she was en route, she was pulled over by the police for speeding. Sobbing and hysterical, she explained to the police what had happened and they called an ambulance for her. She had lacerations on her face, hands, breast, back, and thigh. She spent three days in the hospital and underwent plastic surgery.
When law enforcement officers arrived at Sanchez's apartment, Sanchez was seated on the couch with a large butcher knife protruding from his chest. The paramedics arrived and transported him to the hospital.
Sanchez's Version
Testifying in his own defense, Sanchez presented the following description of his encounter with A.T. Sanchez had had previous conversations with A.T. at the apartment complex. On one occasion she was pregnant, and she told Sanchez she was expecting a boy. On August 23, 2006, he was walking outside his apartment when he saw A.T. and waved at her. He asked her how her children were and commented "I bet your baby boy is big." A.T. invited him in to her apartment to see the baby. A.T. appeared stressed and told Sanchez that she had not been ready to have a second child. Sanchez listened and tried to cheer her up. While they were conversing, he asked if he could use her restroom and A.T. agreed. When he came out of the bathroom, A.T., who was now in her bedroom, stated to Sanchez, " 'Can you come here a minute?' " When Sanchez walked over to her, she began to kiss him. A.T.'s daughter walked into the room, and A.T. stated, " 'We can't do this in front of the kids.' " Sanchez agreed and asked if she would like to go elsewhere. A.T. responded, " 'As long as we don't take a long time.' "
They walked together to his apartment; they did not touch each other or talk but looked at each other and smiled. En route, Sanchez saw people at the pool area and walking toward the parking lot. A.T. did not speak to these people. When they entered his apartment, they resumed their kissing and thereafter engaged in voluntary sexual activity, including oral copulation and sexual intercourse. He did not threaten her or do anything with tape prior to their sexual activity.
While they were engaging in sexual intercourse, Sanchez told A.T. to get off him. He explained to her that he did not feel right about what they were doing "due to her kids." When Sanchez turned around after looking for a cigarette lighter, he saw A.T. with a butcher's knife that had been on his kitchen counter. She ran towards him with the knife and he grabbed a pair of scissors. They struggled over the knife and fell to the floor. They both ended up getting cut and were covered in blood. However, he never stabbed her. A.T. was crying. He pointed to the shower and they went to clean up.
Sanchez was in shock and was confused. He did not know what to do because "[s]he just came at [him] like that." As they were walking out of the bathroom, he heard sirens, which scared him because during the struggle for the knife A.T. had been screaming for help. He got some packaging tape off a shelf and tied A.T.'s hands behind her back to give him time to "get [himself] back together." He smoked a cigarette, and then cut the tape with the knife and told A.T. to go home. He did not threaten her in any manner and he did not tell her he would do something to her if she reported anything. She put her clothes on and told him she had money and jewelry. He shook his head and opened the door, and she walked out.
After she left, Sanchez was confused and in disbelief. He was bleeding profusely, there was blood everywhere, and he did not think the police would believe him if he called them. When he looked out the window and saw officers with guns, he panicked and stabbed himself in the chest with the knife.
Jury's Verdict and Sentence
The jury found Sanchez guilty of two counts of forcible oral copulation (counts 1 and 3), two counts of rape by foreign object (counts 2 and 4), and one count of attempted rape (count 5). For the forcible oral copulation and rape by foreign object counts, the jury rendered true findings on allegations under the "one strike" sentencing provisions of section 667.61, finding that during the sex offenses (1) Sanchez committed kidnapping that increased the risk of harm above the risk inherent in the sex offenses, and (2) he committed kidnapping, personally inflicted great bodily injury, personally used a deadly or dangerous weapon, and engaged in tying and binding. For the attempted rape count, the jury rendered a true finding that he personally used a "deadly or dangerous weapon" and that he personally inflicted great bodily injury. The jury found him not guilty of attempted murder. He was sentenced to 25 years to life for count 1 forcible oral copulation, and received a determinate sentence of 42 years for the remaining counts.
DISCUSSION
I. Failure to Instruct that Defendant's Statements Should Be Viewed with Caution
In her testimony, A.T. claimed that Sanchez made statements during the course of the encounter that were inculpatory in nature; i.e., that he had a gun, that he would kill or shoot her if she tried anything, that he should kill her by cutting her head off or stabbing her in the heart, and that he would kill her or her children if she told the police.
Based on this evidence of Sanchez's inculpatory statements to A.T., the trial court instructed the jury in the language of CALCRIM No. 358, stating: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all of the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements." The trial court, however, did not read the portion of the instruction which states: "You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." Sanchez contends omission of the cautionary instruction requires reversal of the judgment.
A trial court has a sua sponte duty to instruct the jury that it must view evidence of a defendant's oral admissions with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The duty to give the cautionary instruction applies broadly to inculpatory oral statements made by the defendant before, during, or after the crime. (People v. Carpenter, supra, at pp. 392-393; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) As explained in People v. Bemis (1949) 33 Cal.2d 395, 399, even well-intentioned witnesses " 'are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used.' " Further, unscrupulous witnesses may " 'torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.' " (Ibid.) The failure to give the cautionary instruction is reviewed under the state law prejudicial error standard; i.e., reversal is not required unless it is reasonably probable the jury would have reached a result more favorable to the defendant had the instruction been given. (People v. Dickey (2005) 35 Cal.4th 884, 905.)
The Attorney General essentially concedes the trial court should have given the cautionary instruction, but contends the error was not prejudicial. We agree. The California Supreme Court has recognized that the failure to advise the jury to view the defendant's statements with caution may be harmless when the defendant denies making the statements, but there is no conflict " 'concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately.' " (People v. Dickey, supra, 35 Cal.4th at p. 906.) When the defendant simply denies making the statements and there is no issue concerning the meaning or exact content of the statements, the jury's determination of whether the statements were made essentially turns on a credibility contest between the defendant and the witness. In this situation, the jury's primary focus is whether the witness is credible or is fabricating the testimony, and instructions on witness credibility may provide adequate guidance for the jury to properly evaluate the evidence of the defendant's statements. (Id. at pp. 906-907.)
Here, the evidence of inculpatory statements by Sanchez consisted solely of A.T.'s testimony describing the various threatening statements he made during the course of their encounter (including his statements that he had a gun, that he would shoot her, and that he would kill her or her children). In his testimony, Sanchez simply denied that he threatened A.T. in any manner.
There is nothing in the record suggesting that there was a dispute about whether A.T. understood or accurately quoted the statements she claimed Sanchez made to her. The essential issue concerning the statements was whether A.T. fabricated them in their entirety, as claimed by Sanchez. The jury was instructed at length on the issue of how to evaluate a witness's credibility. For example, the jury was told it could consider such factors as the witness's ability to hear and remember; the witness's bias or prejudice; the witness's prior consistent or inconsistent statements; the reasonableness of the witness's testimony; the existence of contradictory evidence; conduct by the witness affecting his or her credibility; and the possibility that a witness is lying about everything or only lying about some things. (See CALCRIM No. 226.)
Because the dispute over Sanchez's statements was essentially a credibility contest between him and A.T., and because the jury was given detailed instructions on how to evaluate witness credibility, we have no doubt it understood the need to critically evaluate A.T.'s testimony about Sanchez's statements. There is no reasonable probability the jury would have reached a different result if the trial court had given the cautionary instruction pertaining to Sanchez's statements.
II. Failure to Instruct on Absence of Consent and Mistake of Fact for Kidnapping Sentencing Allegations
In addition to being charged with various substantive sexual offenses, Sanchez was charged under section 667.61's "one strike" sentencing scheme which requires a mandatory life sentence when sexual offenses are committed under certain statutorily-specified special circumstances. A 15-years-to-life sentence is required when one special circumstance exists. (§ 667.61, subds. (b), (c), (e).) A 25-years-to-life sentence is required when two or more special circumstances exist (§ 667.61, subds. (a), (c), (e)), or when one or more aggravated special circumstances exist (§ 667.61, subds. (a), (c), (d)).
The section 667.61 special circumstances requiring a 15- or 25-years-to-life sentence include such circumstances as kidnapping of the sex offense victim, commission of the sex offense during a burglary, personal infliction of great bodily injury, personal use of a deadly or dangerous weapon or firearm, multiple sex offense victims, tying or binding, or administration of a controlled substance to the victim. (§ 667.61, subd. (e).) The aggravated special circumstances requiring a 25-years-to-life sentence include such circumstances as a previous sex offense conviction, kidnapping with movement that substantially increased the risk of harm above the risk inherent in the sex offense, infliction of aggravated mayhem or torture, or commission of the sex offense during first degree burglary with intent to commit the sex offense. (§ 667.61, subd. (d).)
For each of the sex offenses, Sanchez was charged under the 15-years-to-life or 25-years-to-life provisions based on allegations that he committed kidnapping, that he personally inflicted great bodily injury, that he personally used a dangerous or deadly weapon, that multiple sex offense victims were involved, and that he engaged in tying and binding. (§ 667.61, subds. (e)(1), (3)-(6).) Further, he was charged under the 25-years-to-life aggravated special circumstance provision based on an allegation that he committed kidnapping involving movement of the victim that substantially increased the risk of harm to the victim over and above the risk of harm inherent in the sex offense. (§ 667.61, subd. (d)(2).)
The jury found the section 667.61 allegations true (except for the multiple victim allegation). Accordingly, Sanchez was sentenced to 25 years to life.
This case concerned diametrically opposed descriptions of what occurred during the interaction between Sanchez and A.T., with A.T. describing an entirely coercive encounter and Sanchez describing an entirely consensual encounter. The defense theory
was that A.T. actually consented to the encounter, or alternatively that Sanchez reasonably but mistakenly believed she had consented. Consistent with this, the trial court instructed the jury on absence of consent as an element of the sexual offense allegations and on mistake of fact as a defense to the sexual offense allegations. However, the trial court did not instruct the jury on absence of consent and mistake of fact for kidnapping relevant to the section 667.61 sentencing allegations. Sanchez argues the trial court had a sua sponte duty to provide the absence of consent and mistake of fact instructions for the kidnapping sentencing allegations, or alternatively that his counsel was ineffective for failing to request such instruction.
A. Lack of Consent
When instructing on kidnapping relevant to the section 667.61 sentencing allegations, the trial court used standard CALCRIM instructions to set forth the required elements, stating that the prosecution must prove: (1) the defendant took, held or detained the victim by the use of force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the victim or made her move a substantial distance; and (3) (for aggravated kidnapping) the movement of the victim substantially increased the risk of harm to her beyond that necessarily present in the crimes of forcible oral copulation and/or rape by a foreign object. (See CALCRIM Nos. 3175, 3179, 1215.) The trial court did not include the portion of the CALCRIM instructions stating that the prosecution must prove the absence of the victim's consent to the movement. (See CALCRIM Nos. 3175, 1215 [setting forth kidnapping requirement that prosecution must prove the victim "did not consent to the movement"].)
The trial court has a sua sponte duty to instruct on all the elements of the charges, including enhancement allegations. (People v. Clark (1997) 55 Cal.App.4th 709, 714-715 .) Normally, instructing the jury in the language of a statute defining a crime is sufficient. (People v. Estrada (1995) 11 Cal.4th 568, 574.) Section 207, subdivision (a) defines the crime of kidnapping as occurring when a person is taken "forcibly, or by any other means of instilling fear . . . ." In People v. Majors (2004) 33 Cal.4th 321, 331, the California Supreme Court observed that "the concepts of consent and force or fear with regard to kidnapping are inextricably intertwined." That is, force or fear exists when physical force is used or " 'the victim feels compelled to obey' " orders to move, and lack of consent exists when the movement is " 'against the will of the victim.' " (Id. at pp. 326-327.) Both concepts turn on compulsion, which is the gravamen of the offense of kidnapping. (Id. at pp. 327, 331.)
Notwithstanding the intertwined nature of force or fear and lack of consent, courts have suggested that lack of consent may be a distinct factor that must be proven by the prosecution. (See In re Michele D. (2002) 29 Cal.4th 600, 609; People v. Jones (2003) 108 Cal.App.4th 455, 462.) Assuming, without deciding, that the trial court had a sua sponte duty to amplify the kidnapping instructions beyond the statutory elements by including instruction on lack of consent, or that reasonably competent defense counsel would have requested this instruction, the error was harmless under any standard of review. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-325 [harmless beyond a reasonable doubt standard applies to failure to instruct on elements of enhancement that increases the penalty beyond the prescribed statutory maximum for the offense]; People v. Dickey, supra, 35 Cal.4th at p. 907 [reasonable probability of different outcome standard for ineffective representation].) An error is harmless beyond a reasonable doubt if there is no reasonable possibility that it might have contributed to the jury's verdict. (People v. Archer (2000) 82 Cal.App.4th 1380, 1394; People v. Lewis (2006) 139 Cal.App.4th 874, 885, 887.)
We have no doubt that the jury in this case understood that the movement was required to be nonconsensual. Based on the ordinary meaning of the words, the jury would know that the use of force or fear refers to conduct by the defendant that coerces the victim to do something that he or she does not want to do. Further, as reflected in the parties' closing arguments to the jury, it is apparent the jury knew that it was imperative that the prosecution show a nonconsensual encounter in order to support guilty verdicts on the sex offenses, as well as true findings on the kidnapping sentencing allegations. The jury was given a lack of consent instruction for the sex offenses, and both parties focused their closing arguments on the issue of whether the encounter between the defendant and A.T. was or was not consensual. The case was presented to the jury in a manner that analyzed the entire encounter between Sanchez and A.T. to determine if it was voluntary or involuntary in nature, which included the kidnapping portion of the interaction.
We are satisfied beyond a reasonable doubt that the jury understood that if the prosecution failed to show the movement was nonconsensual, it had not established the force or fear element necessary for true findings on the kidnapping allegations. There is no reasonable possibility the trial court's failure to explicitly refer to lack of consent might have contributed to the jury's true findings on these allegations.
B. Mistake of Fact Defense
A trial court has a sua sponte duty to instruct on a defense if it is supported by substantial evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054.) The duty to instruct does not arise if there is any evidence, no matter how weak, to support the defense; rather, the evidence must be sufficient to deserve consideration by the jury. (People v. Williams (1992) 4 Cal.4th 354, 361.) The trial court should give the instruction if the defendant is relying on the defense or if it is not inconsistent with the defendant's theory of the case. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148; People v. Montoya, supra, 7 Cal.4th at p. 1047.) When there is evidence to support the instruction, the trial court should not measure its substantiality by weighing witness credibility and should resolve any doubts as to sufficiency in favor of the defendant. (People v. Barnett (1998)17 Cal.4th 1044, 1145.)
A reasonable and bona fide belief that the victim voluntarily consented to accompany the defendant is a defense to kidnapping. (People v. Mayberry (1975) 15 Cal.3d 143, 155.) If there is substantial evidence raising a reasonable doubt that the defendant harbored a reasonable and good faith but mistaken belief of consent, the instruction should be given. (People v. Williams, supra, 4 Cal.4th at pp. 361-362 [discussing mistake of fact defense to rape].) The defense has a subjective and an objective component. (Id. at p. 360.) The subjective component requires the defendant to honestly and in good faith believe the victim consented, and requires "evidence of the victim's equivocal conduct on the basis of which [the defendant] erroneously believed there was consent." (Id. at pp. 360-361.) The objective component requires that the defendant's mistake regarding consent be reasonable under the circumstances. (Id. at p. 361.)
If there is no evidence of equivocal conduct by the victim—i.e., if the defense evidence shows unequivocal consent and the prosecution's evidence shows nonconsensual force—the mistake of fact instruction should not be given. (People v. Williams, supra, 4 Cal.4th at p. 362.)In People v. Dominguez, supra, 39 Cal.4th at p. 1149, the court concluded there was no requirement to instruct on mistake of fact because the defendant merely testified that the victim did in fact consent to a sexual encounter, whereas the prosecution's evidence showed a forceful, nonconsensual encounter. Dominguez reasoned that "these contrasting scenarios 'create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victim's] conduct.' " (Ibid., brackets in Dominguez;accord People v. Williams, supra, 4 Cal.4th at p. 362 .)
1. No Duty to Instruct on Mistake of Fact
Here, Sanchez testified that he and A.T. began kissing at her apartment and that A.T. agreed to leave the apartment with him because she did not want her daughter to observe their behavior. This testimony, if believed, points solely to actual consent by A.T. In contrast, A.T. testified that she left the apartment with Sanchez because Sanchez stated he had a gun, and that as she was leaving the apartment Sanchez threatened to kill her if she tried anything or ran. This testimony, if believed, points solely to force or fear. Contrary to Sanchez's assertion, the fact that he did not actually restrain A.T. and A.T. did not scream, seek help, or run away while being escorted to Sanchez's apartment does not suggest she engaged in equivocal conduct. Again, the jury either believed his claim that she wanted to accompany Sanchez to his apartment, or believed her claim that she went because of his threats. If the jury believed his testimony that she was voluntarily accompanying him, there was nothing equivocal about her failure to scream or seek help. Alternatively, if the jury believed her testimony, Sanchez cannot claim he reasonably but mistakenly thought she voluntarily accompanied him after he told her he had a gun and threatened to kill her if she tried anything or ran. Further, the fact that Sanchez never actually displayed a gun does not alone show A.T.'s conduct in accompanying him was equivocal. Absent some circumstance suggesting the gun threat was not meant to be taken seriously, Sanchez could not have reasonably believed A.T. voluntarily complied in the face of the gun threat merely because a gun was not displayed.
In sum, Sanchez has not cited to any evidence in the record showing equivocal conduct by A.T. which could suggest that he mistakenly believed she had consented to go to his apartment when in fact she had not. To the contrary, akin to the circumstances in Dominguez, all the evidence pointed to actual consent (Sanchez's version) or no consent at all (the victim's version). Absent some evidence in the record suggesting that Sanchez was mistaken about the victim's consent, the trial court was not required to sua sponte give the mistake of fact instruction. (People v. Dominguez, supra, 39 Cal.4th at pp. 1147-1148.)
Sanchez suggests that the trial court was required to give the instruction merely because he was relying on the mistake of fact defense. He points to defense counsel's closing argument statements to the jurors that even if they found there was no actual consent, they should consider whether he actually and reasonably believed there was consent because there was no struggle or resistance by the victim. Although the California Supreme Court has at times used language suggesting that reliance on a defense might be sufficient to trigger the duty to instruct even in the absence of evidentiary support for the defense (see People v. Dominguez, supra, 39 Cal.4th at p. 1148), in People v. Shelmire, supra, 130 Cal.App.4th 1044, the court concluded this is not the rule intended by our high court. Shelmire held that a defendant's reliance on a defense does not dispense with the requirement that the defense be supported by substantial evidence to warrant instruction on the defense. (Id. at pp. 1058-1059.) The Shelmire court explained, "It defeats the policy judgments of the courts and the Legislature to allow a defendant to receive an instruction on a defense, and to allow a jury to excuse criminal conduct, when the defendant purports to rely on a defense for which substantial evidence does not exist." (Id. at p. 1059.)
In Dominguez, the court used a disjunctive statement frequently employed to define the duty to instruct, stating "In the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises ' "only if [1] it appears that the defendant is relying on such a defense, or [2] 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. Dominguez, supra, 39 Cal.4th at p. 1148.) The court then evaluated the two prongs separately, and concluded neither was satisfied in the case before it. (Id. at pp. 1148-1149.)
The duty to instruct based on a defendant's reliance on a theory of defense is designed to ensure instructions on alternative theories of defense supported by the evidence even if inconsistent with the defendant's primary theory of defense. (See People v. Elize (1999)71 Cal.App.4th 605, 610-616.) Shelmire's conclusion that the reliance rule does not obviate the evidentiary requirement rule is consistent with People v. Williams, supra, 4 Cal.4th at pages 361-362, in which our high court set forth, and applied, the rule that a requested mistake of fact instruction should not be given unless there is substantial evidence to support the defense. (Accord People v. Panah (2005) 35 Cal.4th 395, 484.)
We agree with Shelmire that the mere fact that the defendant is relying on a defense does not mean the trial court is required to instruct on the defense if it has no support in the evidence. The requirement that there be an evidentiary foundation to create a duty to instruct applies to all defenses, whether relied upon by the defendant or not. Because there was no substantial evidence to raise a reasonable doubt that Sanchez mistakenly believed A.T. consented to go with him to her apartment, the trial court was not required to instruct on the mistake of fact defense, and defense counsel did not provide ineffective representation by failing to request the instruction.
2. No Prejudice
Alternatively, assuming arguendo the trial court was required to give the mistake of fact instruction based on the fact that A.T. did not try to get help or escape while going to Sanchez's apartment (see People v. Williams, supra, 4 Cal.4th at p. 364 [mistake of fact instruction may be warranted even if equivocal conduct occurs after force], we conclude the error was not prejudicial even if the harmless beyond a reasonable doubt standard applies. (See People v. Demetrulias (2006) 39 Cal.4th 1, 23-24.) As stated, Sanchez testified about a completely consensual encounter; indeed, he stated that A.T. initiated the sexual activity at her apartment and he presented no facts suggesting he might have misunderstood her intentions. Conversely, A.T. described a completely coercive encounter. Although she did not actively resist at her apartment and she testified she wanted to leave her apartment to protect her children, she did not describe any facts that could have reasonably led Sanchez to believe she was going with him because she wanted to be with him. Thus, the jury was merely called upon to decide whether Sanchez or the victim was telling the truth, and was not presented with nuanced facts about whether Sanchez might have been mistaken about what was occurring as she walked with him to his apartment.
Further, the jury was instructed on mistake of fact for the sexual offenses, and it credited A.T.'s version of events. There is nothing in the facts suggesting the jury might have credited Sanchez's version during the kidnapping, but credited A.T.'s version during the sexual offenses. Again, this case turned on which witness the jury believed in their divergent descriptions of an entirely consensual encounter versus an entirely coercive encounter. Under these circumstances, the record shows the trial court's failure to instruct on the mistake of fact defense did not contribute to the jury's true findings on the kidnapping allegations.
III. Deadly Weapon Use
Sanchez contends the jury's true finding on the deadly weapon (knife) use allegation for the count 5 attempted rape conviction must be reversed because the phrase "dangerous weapon" was erroneously included in the instruction and verdict form for this allegation. The enhancement was charged under section 12022.3, subdivision (a), which provides for an additional 3-, 4- or 10-year sentence if the defendant used a "a firearm or a deadly weapon" in the commission or attempted commission of certain sexual offenses. Although section 12022.3 refers to a deadly weapon, the jury was instructed it could find the allegation true if Sanchez used "a deadly or dangerous weapon" during the commission of the offense. Likewise, the verdict form provided to the jury states he used a "deadly or dangerous weapon" in the commission of the offense.
The phrase "deadly or dangerous weapon" was defined for the jury as "any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." Sanchez asserts a dangerous weapon is not necessarily a deadly weapon, and based on the instructions and the verdict form the jury could have found he merely used a dangerous weapon and failed to find he used the deadly weapon required to support the section 12022.3 enhancement.
We agree with Sanchez that the trial court should not have included the term "dangerous" in the instruction, but instead should have tracked the statutory language which refers solely to a deadly weapon. However, the error was harmless because notwithstanding the inclusion of the dangerous weapon term, the jury was properly instructed on the elements necessary to establish the deadly weapon allegation. Absent a contrary statutory definition, deadly weapon means an inherently deadly or dangerous instrument or an instrument that is used in a manner capable of producing and likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; People v. Brookins (1989) 215 Cal.App.3d 1297, 1307; People v. Russell (1943) 59 Cal.App.2d 660, 665; see also People v. Steele (1991) 235 Cal.App.3d 788, 792.) Based on CALCRIM No. 3145, this is the definition the jury was given to evaluate the deadly weapon enhancement. Thus, the jury was correctly instructed on the elements of the deadly weapon enhancement even though the phrase "deadly or dangerous weapon" was used.
Although the Bench Notes to CALCRIM No. 3145 recommend deletion of the term dangerous weapon when the enhancement statute refers solely to a deadly weapon, the instruction does not alter the definition of deadly weapon when the dangerous weapon term is deleted. CALCRIM No. 3145 states: "A deadly [or dangerous] weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." The bench notes for this instruction state: "Give all of the bracketed 'or dangerous' phrases if the enhancement charged uses both the words 'deadly' and 'dangerous' to describe the weapon. [Citations.] Do not give these bracketed phrases if the enhancement uses only the word 'deadly.' (Pen. Code, § 12022.3.)"
As pointed out by Sanchez, some courts have discussed a distinction between a deadly weapon and a dangerous weapon, and have commented that a dangerous weapon is not necessarily a deadly weapon. (See, e.g., People v. Brookins, supra, 215 Cal.App.3d at p. 1306; People v. Raner (1948) 86 Cal.App.2d 107, 110-113; see also In re Christopher R. (1993) 6 Cal.4th 86, 93-94.) In Brookins, the court concluded that a sentence enhancement requiring a prior conviction of robbery with a deadly weapon could not be sustained based on a showing that the defendant had committed a robbery with a firearm, absent a showing that the firearm was loaded or used as a bludgeon. (Brookins, supra, 215 Cal.App.3d at pp. 1300, 1304-1308.) Similarly, in Raner, the court concluded that a probation restriction based on commission of robbery with a deadly weapon did not apply in a case where the defendant committed the robbery with an unloaded rifle, absent evidence that the rifle was used or threatened to be used as a bludgeon. (Raner, supra, 86 Cal.App.2d at pp. 110-113.) In contrast, in In re Christopher R. the court concluded a minor was shown to have committed a robbery with a deadly or dangerous weapon based on the fact that the robbery was committed with a gun, because even an unloaded gun is at least dangerous. (In re Christopher R., supra, 6 Cal.4th at pp. 93-94; accord Raner, supra, 86 Cal.App.2d at p. 111 [unloaded rifle supported finding of first degree robbery based on use of deadly or dangerous weapon because unloaded gun is dangerous weapon that can be used as bludgeon].)
The general principle that can be gleaned from these cases is that an instrument that is not inherently deadly or dangerous (i.e., an unloaded gun) is a deadly weapon only if it is used in a deadly or dangerous fashion. Although such an instrument is not necessarily a "deadly" weapon, it can be classified as "dangerous" given its potential to be used in a deadly or dangerous fashion. (People v. Brookins, supra, 215 Cal.App.3d at p. 1306; People v. Raner, supra, 86 Cal.App.2d at pp. 111-113; see also People v. Skeirik (1991) 229 Cal.App.3d 444, 463; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 539.) Thus, in a case requiring use of a deadly or dangerous weapon, the mere potentiality for dangerous or deadly use suffices (In re Christopher R., supra, 6 Cal.4th at pp. 93-94), whereas in a case requiring use of a deadly weapon, there must be a showing that the instrument is inherently dangerous or deadly or that the defendant used the instrument in a deadly or dangerous fashion (People v. Brookins, supra, 215 Cal.App.3d at pp. 1306-1308; People v. Raner, supra, 86 Cal.App.2d at pp. 110-113).
An inherently deadly or dangerous weapon is an instrument that is deadly or dangerous in the ordinary use for which it is designed, whereas other instruments may be deadly or dangerous because they may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. (People v. Graham (1969) 71 Cal.2d 303, 327-328; People v. Aguilar, supra, 16 Cal.4th at p. 1029.)
None of these cases concern an erroneous use of the phrase "dangerous weapon" in an instruction pertaining to a deadly weapon enhancement, and there is nothing in their analysis that detracts from the well-established definition of a deadly weapon as an instrument that is inherently deadly or dangerous or that is used in a manner capable of producing and likely to produce death or great bodily injury. To the contrary, several of these cases confirm this standard definition of deadly weapon. (People v. Lochtefeld, supra, 77 Cal.App.4th at p. 538-539; People v. Brookins, supra, 215 Cal.App.3d at p. 1307; People v. Skeirik, supra, 229 Cal.App.3d at p. 463.)
Here, the jury was instructed that it could not find the deadly weapon enhancement true unless the instrument was "inherently deadly or dangerous or . . . used in such a way that it was capable of causing and likely to cause death or great bodily injury." (Italics added.) This instruction did not suggest that the jury could find the enhancement true based on a finding that the knife was a "dangerous" weapon in the sense that it was merely potentially dangerous. Rather, the instruction properly informed the jury of the essential requirement for a deadly weapon finding based on an instrument that is not inherently deadly or dangerous—i.e., that the instrument was used in a deadly or dangerous fashion. Because the jury was properly instructed on the elements necessary for a deadly weapon finding, there was no prejudice from the inclusion of the "dangerous" term in the jury instructions and verdict form.
Sentence on the Deadly Weapon Enhancement
In its briefing on appeal, the Attorney General states that the trial court incorrectly sentenced Sanchez to five years for the deadly weapon use allegation for the count 5 attempted rape conviction, whereas the authorized sentences for this allegation are 3, 4, or 10 years. (§ 12022.3, subd. (a).) The Attorney General states the matter should be remanded for resentencing on this enhancement. Sanchez posits there is no need for a remand, because the record reflects that the trial court merely misspoke and intended to impose the 10-year term for this enhancement, and that its reference to the five-year term pertained to a section 12022.8 enhancement accompanying count 5.
We agree with Sanchez's interpretation of the record. The authorized sentences for the section 12022.3 deadly weapon enhancement are 3, 4, and 10 years, whereas the authorized sentence for the section 12022.8 (personal infliction of great bodily injury enhancement during sex offense) enhancement is five years. The probation report and the Attorney General's sentencing memorandum recommended the upper 10-year term for the section 12022.3 enhancement and listed the five-year term for the section 12022.8 enhancement. When making its sentencing choices, the trial court first stated the five-year term for the section 12022.3 enhancement would be added to count 5, and then stated it was selecting the upper term of 10 years for the section 12022.3 enhancement. It is clear that the trial court meant to add the five-year term for the section 12022.8 enhancement and to select the 10-year term for the section 12022.3 enhancement. Apparently because of this confusion, the abstract of judgment erroneously lists five years for the section 12022.3 enhancement and 10 years for the section 12022.8 enhancement, whereas the sentence terms should be listed in reverse order. Accordingly, we order correction of the abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect that the sentence enhancements on count 5 attempted rape are 10 years for section 12022.3 and five years for section 12022.8. A copy of the corrected abstract of judgment shall be transmitted to the Department of Corrections and Rehabilitation.
WE CONCUR: O'ROURKE, J., AARON, J.