Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C148306
Jenkins, J.
Codefendants Eric Scott and Johnny Key appeal the judgments and sentences imposed after a jury convicted them of murder and rape, respectively. Defendant Scott contends that his conviction for the murder of Isaac Joseph should be reversed because (1) there was insufficient corroboration of accomplice testimony; and, (2) the trial court committed instructional error in connection with CALCRIM jury instructions 362 and 337. Defendant Key contends that his conviction for the rape of Alondra Goodwin should be reversed because the trial court failed to instruct the jury to acquit on the rape charge if defendant reasonably believed Goodwin consented to sexual intercourse. Having considered each defendant’s contentions, we affirm the judgments.
Procedural Background
The operative pleading is the amended information filed by the Alameda County District Attorney (DA) on June 3, 2005, as further amended and renumbered in court on January 15, 2008, and March 11, 2008. The DA charged defendant Scott in count 1 with the murder of Isaac Joseph, in violation of Penal Code section 187, subdivision (a). In connection with count 1, the DA alleged the special circumstances that Scott committed the murder during a robbery and by means of lying in wait (§ 190.2, subds. (a)(15) and (17)). The DA also alleged in connection with count 1 that Scott personally and intentionally discharged a firearm (§ 12022.53, subds. (c) and (d)).
Further statutory references are to the Penal Code unless otherwise noted.
The DA charged defendants Scott and Key jointly in count 2 with residential robbery of Alondra Goodwin (§ 211) and in count 3 with residential burglary of her apartment (§ 459). In addition, the DA charged defendant Key in counts 4 and 7 with the rape of Alondra Goodwin (§ 261, subd. (a)(2), and in counts 5 and 6 with sexual penetration by a foreign object of Alondra Goodwin (§ 289, subd. (a)(1)). Also, the DA charged Scott in count 8 with the forcible rape of Alondra Goodwin (§ 261, subd. (a)(2)). As to all sexual offenses charged against Key and Scott, the DA alleged they committed the offenses during a burglary (§ 460), that the victim was tied and bound (§ 667.61, subd. (e)(6)), and that they administered a controlled substance by means of force or fear (§§ 12022.75, 667.61, subd. (e)(7), Health & Saf. Code § 11401, subd. (a)). The DA also alleged Scott had suffered a prior serious felony conviction (§§ 667, subd. (a)(1) and 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
Counsel delivered opening statements to the jury in the joint trial of defendants Scott and Key on February 11, 2008. On March 18, 2008, the jury found defendant Scott guilty of first degree murder (count 1), robbery (count 2) and burglary (count 3). The jury also found true the special circumstances allegations that Scott committed murder by lying in wait and during the commission of a robbery, and the allegation that he personally discharged a firearm. The jury found Scott not guilty of rape. Scott admitted the prior offense allegations just before the jury returned to deliver its verdicts.
The jury found defendant Key guilty of residential burglary (count 3) and forcible rape (count 4). The jury also found true the allegations that Key committed the rape in the course of a burglary, that the victim was tied or bound and that he administered a controlled substance to the victim. The jury found Key not guilty on the remaining counts.
The trial court held a sentencing hearing on April 17, 2008. The court sentenced defendant Scott to a term of 25 years to life without possibility of parole for first degree special circumstances murder (count 1). Consecutive to the term imposed on count 1, the court sentenced Scott to two concurrent terms of six years for residential robbery (count 2) and burglary (count 3). The court also imposed on Scott a further consecutive sentence of 25 years to life pursuant to section 12022.53, subdivision (d). Regarding defendant Key, the court sentenced him to a term of 25 years to life for rape (count 4) and to a concurrent term of six years for burglary (count 3). Scott filed a timely notice of appeal on April 21, 2008. Key filed a timely notice of appeal on May 6, 2008.
Facts
A. The Murder
Members of the victim’s family testified regarding the events immediately prior to and following his shooting. Tiffany Joseph testified that in May 2003 she was living in a two-story residence at 1257 MacArthur Boulevard with her younger brother, the victim Isaac Joseph, her mother, her son Lejohn, her sister Shawnte Payne, and her nephew Darius Webster. Her brother Isaac lived downstairs where he had his own bathroom and bedroom. Isaac’s room also had a door that allowed access from his room to the back yard of the house. Isaac normally went in and out of the house via the door from his bedroom into the back yard. Near Isaac’s door is a gate that leads to a driveway along the side of the house.
On May 7, 2003, at about 7:30 p.m., Tiffany was in her bedroom getting her 6-year old son Lejohn ready for bed. Shawnte was with her. Darius, who was 13 at the time, was washing dishes in the kitchen. Tiffany and Shawnte heard the front screen door slam shut and Darius call out. They both ran to the front door to see what happened and Darius said, “Chief just got shot.” Tiffany leaned over the front porch and at the side of the house saw her brother Isaac lying flat on the ground. Tiffany went back into the house, grabbed a towel and ran to her brother. Shawntee ran to a nearby fire station to summon help. Tiffany noticed Isaac was still breathing and saw he had a gun in his hand. Tiffany pried the gun from Isaac’s hand and told Darius to take it into the house. Tiffany was still holding Isaac when the police arrived. Tiffany noticed an orange bag lying close to the gate of the backyard and told Darius to take it away because she knew Isaac sold “weed sometimes” and suspected it contained marijuana. As soon as Darius picked up the bag, a police officer told him to drop it and he did so.
Tiffany also testified about certain of Isaac’s habits and contacts. Tiffany acknowledged that prior to Isaac’s death he was addicted to “Robo,” i.e., prescription-strength Robotussin cough medicine. Tiffany stated that she knew an individual by the name of Ranita Woods. Tiffany said Woods grew up around her family, referred to her father as “uncle” and had known her brother Isaac since he was a baby. On several occasions, Tiffany saw Isaac selling marijuana to Woods. Tiffany further testified that she knew Alondra Goodwin. Tiffany met Goodwin at a birthday party at a nightclub in Oakland on April 11, 2003. Woods was also at the party and Tiffany was introduced to Goodwin through Woods.
The victim’s nephew, Darius Webster, testified that on the evening of May 7, 2003, he was coming back from an errand and saw his uncle Isaac pulling into the driveway. Darius had not seen his uncle in a couple of days so he waited to say hello. Isaac got out of the car alone, and was holding a big red bag as he talked on his cell phone. After exchanging greetings with his uncle, Darius went into the house and began washing dishes. A couple of minutes later, Darius heard “a very low voice say ‘no’ and then... a low pop like a firecracker.” Darius went out to see what was happening. From the front porch, Darius saw his uncle lying on the walkway by the side of the house with a gun in his hand. Darius ran into the house to tell his mother and aunt and then all three ran to assist Isaac. His aunt Tiffany gave Darius the gun that had been in Isaac’s hand and told him to put it away. Darius took the gun and placed it in the kitchen drawer.
Police later recovered the gun from the kitchen drawer.
Defendant Scott first became a suspect in the murder of Isaac Joseph when Kevin Woo found some clothes near the murder scene and Oakland Police Officer Leonel Sanchez recognized the clothes as belonging to Scott. Woo testified that on the evening of May 7, 2003, he was visiting family on Stewart Street in Oakland. Woo heard a helicopter flying around the house. Woo went outside with his wife and brother-in-law to see what was happening. As they were going down the stairs at the front of the house, Woo noticed “some black clothing hidden in the bushes.” Under the circumstances, Woo thought this was suspicious, so he called the police. The police came, asked him a few questions, and collected the clothing.
Officer Sanchez testified that on the day before the murder he was on patrol with Officer Chris Moreno around 21st Avenue and East 23rd Street in an area nicknamed “Murder Dubbs” and also known as “the 20s,” “the Twomps,” and “the Dubbs.” Sanchez came into contact with defendant Scott. Sanchez stated that Scott was wearing a black, three-quarter length pea coat and a shirt with distinctive markings in the form of velvet lettering that looked like it had been ironed on. The lettering read “2500 Dubbs.”
Sanchez further testified that on the day of the murder, he and Officer Moreno responded to a “man-down call” on the 1200 block of MacArthur Boulevard. After helping to secure the scene, Sanchez and Moreno went to a house a few blocks away on Stewart Street after hearing on the radio that a resident had found some clothing in the bushes. A police technician was at the scene when they arrived and had collected the clothes. When the police technician showed them the clothes, Sanchez recognized them as the “exact same shirt” and same pea coat he had observed Scott wearing the day before. Sanchez thought that defendant’s clothing might be linked in some way to the shooting on MacArthur Boulevard, so he passed this information to the homicide sergeant in charge of the investigation. The clothes items found at Stewart Street also included a pair of leather gloves, a knit hat, and one piece of nylon stocking.
Evidence of DNA testing on these items of clothing was presented at trial. DNA found on the piece of nylon stocking matched Scott’s DNA to a likelihood of one in 450 trillion.
Scott was further linked to the murder by Alondra Goodwin, the victim who was allegedly raped by both Scott and codefendant Key. Goodwin testified under a grant of immunity. Goodwin stated that in 2003 she lived in an apartment on 41st Street in Oakland with her five year old son and her boyfriend Chanta Hopkins. In early 2003, Chanta’s best friend was defendant Eric Scott, who was in a relationship with Chanta’s cousin, Ranita Woods. Goodwin, Woods, Hopkins and Scott were a group of friends and saw each other “pretty much every day.”
Goodwin recalled a conversation she heard at Wood’s house between Scott and Woods in May 2003. Scott told Woods he “needed to hit a lick” (rob someone) for money. Scott and Woods began talking about a person Scott could rob. Goodwin knew the man Scott and Woods were talking about but not as a personal acquaintance. Woods told Scott the man was a family friend who had money, sold marijuana and drank “Robo.” Woods said she knew where the man lived and knew his sister Tiffany. Woods described the house on MacArthur Boulevard where the man lived. Woods told Scott that the man lived downstairs by himself and had his own entrance from the driveway at the side of the house. Goodwin knew the house Woods was talking about because she played in that area when she was 12 or 13 years old.
Sometime shortly after this conversation took place, Goodwin drove Scott and Woods past the house on MacArthur Boulevard in the white two-door Pontiac Bonneville owned by her boyfriend Chanta Hopkins. Woods showed Scott the house and pointed out the side-entrance used by the victim. A few days later, Goodwin received a phone call from Woods. Woods told Goodwin “Eric Scott was behind the [victim’s] house and that he was stupid. It was daytime and can I go over there with her... to try to get him [Scott] to come out because he wasn’t answering his phone.” Goodwin picked Woods up in the Bonneville. They drove past the victim’s house slowly playing loud music hoping Scott would hear them and come out, but they did not find him. A couple of hours later, Goodwin received another call from Woods. Woods asked Goodwin to drive back over to the victim’s house because Scott had “shot the guy, and can I go over there and see because she think he was dead.” Goodwin drove back to the house on MacArthur where she saw “caution tape and police.” Goodwin called Woods “and told her what I seen.”
After Goodwin drove by the victim’s house and saw police on the scene, she received a phone call from Scott to come and pick him up nearby at Highland Hospital. When Goodwin picked up Scott, he told her “it went bad, [I] had to kill him.” Scott told Goodwin he confronted the victim and ordered him to “break yourself” (hand everything over) but the victim tried to run. Scott said the victim tripped and fell. Then Scott saw the victim had a gun and shot him in the head. Scott wanted Goodwin to take him back to the scene to pick up some clothing he’d left hidden in a bush near the victim’s house before the police found it and connected it to him. Goodwin refused. Goodwin stated that shortly after the shooting, Scott left for Oklahoma.
The testimony of Troy Collins also linked Scott directly to Isaac Joseph’s murder. Collins was initially charged for Joseph’s murder along with Scott and Ranita Woods. Collins was allowed to plead to the lesser crime of voluntary manslaughter and receive an 11-year prison term in return for his truthful testimony at the trials of both Scott and Woods. Collins testified that in 2003 he lived in an Oakland neighborhood known as “the 20s,” “Twomps,” and “Murder Dubbs.” At that time, Collins had known Scott, Key, Hopkins and Goodwin for several years. One afternoon in May 2003, Scott asked Collins if he wanted to make some money by acting as a lookout while Scott broke into someone’s house to steal marijuana and money. Scott showed Collins a gun and said he was carrying it “for protection.” Scott had the gun in the pocket of a navy colored pea-coat he was wearing. Collins also noticed Scott was wearing a blue shirt with “Dubbs” on one side and “2500” on the other side that Collins had seen Scott wear many times before.
Scott positioned Collins at a vantage point behind some apartments on the corner of 13th Avenue and MacArthur from which Collins could observe MacArthur Boulevard. Scott told Collins to look out for a white Cadillac. Scott then jumped over a fence into the backyard of 1263 MacArthur and then over a second fence into the back yard of 1257 MacArthur. Collins lost sight of Scott when he leaped the second fence. Eventually, Collins saw a white Cadillac drive by on MacArthur Boulevard. Collins ran over to the fence separating 1263 and 1257 MacArthur and told Scott that the Cadillac had just driven past. Scott said, “He always does that,” and moved back towards the back door of the house. As Collins watched, he noticed Scott’s posture change just before a man came into view from the side of the house. Collins heard Scott say something to the man. Scott had a gun in his hand and beckoned the man towards him. The man turned and ran back around the side of the house in the direction in which he had come, and Scott followed him. Collins lost sight of them and then within seconds heard a gunshot. When he heard the gunshot, Collins fled the scene.
B. The Rape
Alondra Goodwin also testified about events leading up to the night she was accosted in her apartment by Scott and Key. Goodwin testified that on May 21, 2003, her boyfriend Chanta Hopkins was arrested at her apartment on 41st Street on drugs and weapons charges. A few days after Hopkins was arrested, Goodwin received a call from Scott asking her to buy him an airline ticket from Oklahoma back to Oakland. When Scott returned to Oakland, he often stayed at Goodwin’s apartment with his girlfriend “Tevoshe” and slept in the front room on Goodwin’s son’s bed. One evening, Goodwin returned from her mom’s house with her son and found “Tevoshe” in the living room. Thinking that “Tevoshe” and Scott would be spending the night there, Goodwin took her son into the bedroom at the rear of the apartment and they went to sleep.
Goodwin testified that the next thing she remembered after going to sleep next to her son that night was “waking up with a gun in my face.” Defendant Johnny Key held the gun. Key shook her awake and told her, “Bitch, get your ass up.” Key walked Goodwin into the living room. Scott was sitting on Goodwin’s son’s bed holding a pair of handcuffs. Scott told Goodwin that he was “spooked” that Goodwin would go to the police and “tell on him about the murder.” Goodwin grew hysterical and tried to run out the door of the apartment. Scott grabbed her and put her in handcuffs with her hands behind her back. Scott and Key then walked her into the bathroom and sat her in the bathtub. A piece of duct tape was placed over her mouth. Goodwin begged for her life and pleaded for Scott and Key not to hurt her because she was a single mom and had to care for her son.
After a while, Goodwin stood up and got out of the bathtub. She was still in handcuffs but had managed to work the duct tape off one side of her mouth. Goodwin opened the bathroom door and went quietly into her room to check on her son. After she saw her son was still asleep, Goodwin moved towards the living room to use the phone, but just at that moment Key saw her.
Key took Goodwin back into the bathroom. Goodwin sat down on the toilet. She pleaded with Key and asked that they leave and not kill her. Key said they weren’t going to hurt her, and that Scott was “just trippin” because he thought Goodwin was going to tell about the murder. At one point, Scott came into the bathroom holding a cup with some water in it. Scott said she had to take some ecstasy pills so she would forget what happened. Scott said he would shoot her if she did not take the pills. Scott held her mouth open and administered the pills while Key held the cup and poured water in her mouth. Goodwin started to feel strange, her mouth locked and her heart started pounding furiously. She asked if she could lie down. Key laid her down on the hallway floor and gave her a blanket. Goodwin vomited on the blanket. After that, the effect of the drugs subsided and Goodwin pretended to be asleep.
Within a few minutes, she felt herself being dragged by the legs into the front room and placed on the bed with her feet dangling over the edge. Goodwin heard the front door close and assumed Scott had left because whenever she peeked open her eyes she only saw Key in the kitchen. After a time, Key came over and started touching her on the breast. He put his fingers in her vagina. Goodwin still pretended to be asleep. Key pulled down her pajama bottoms, lifted up her legs and started having sex with her. Just after Key finished, Scott returned to the apartment and Goodwin heard him say he wanted to have sex with her as well. Goodwin still pretended to be asleep while Scott put on a condom and then had sex with her.
Afterwards, Goodwin felt her pajama pants being pulled back up. Scott and Key dragged her back into her bedroom, laid her back on the bed and took the handcuffs off. Goodwin heard the apartment door close, waited a while to make sure Scott and Key had gone, and then got up and called the police. After the police arrived, Goodwin told them what had happened and went by ambulance to the hospital. Later, Goodwin was interviewed by homicide detectives and told them the truth about the murder on MacArthur Boulevard. During her trial testimony, Goodwin also stated that on the night she was raped the keys to the Bonneville were inside her apartment, but after that night she never saw the keys again. Goodwin also stated that during her ordeal she heard the distinctively loud sound of the Bonneville’s engine as it started up.
Goodwin received a sexual assault examination at the hospital. Evidence was presented at trial regarding DNA testing on the materials collected in the sexual assault kit used in Goodwin’s examination. No DNA consistent with defendant Scott was found in the materials examined. DNA collected from sperm found on the vaginal swabs taken during Goodwin’s examination matched defendant Key’s DNA to a likelihood of one in 27 quadrillion.
The Pontiac Bonneville car driven away from Goodwin’s apartment on the night of the rape was subsequently spotted in Oklahoma City by Sergeant Travis Woods of the Oklahoma City Police Department. Woods testified that on June 11, 2003 at approximately 9:00 a.m., he was on vehicle patrol when he spotted a white Pontiac Bonneville with California tags on it. Woods ran a search on the tags and learned the vehicle had been reported stolen after an alleged rape. Woods pulled the car over and contacted the driver, whom he identified in court as defendant Eric Scott. Woods placed Scott in handcuffs and sat him in the patrol car. Scott told Woods his name was Chanta Hopkins, gave his date of birth as 11-17-82, and said his California driver’s license number was D2004898. Woods ran this information through the police computer system and it checked out as correct for Chanta Hopkins. However, when Woods took Scott to the county jail, he noticed several tattoos on Scott’s body containing the names “Scottie Scott” and “Maurice Scott.” These tattoos led Woods to suspect that Chanta Hopkins was not Scott’s true name. Woods asked Scott several times if he was really Chanta Hopkins and initially Scott insisted that he was Hopkins. Woods told Scott that his true identity would be revealed once he had been fingerprinted. At that point, Scott admitted to Woods that he was in fact Eric Scott, and gave Woods his true date of birth.
C. Defense Case
Scott testified in his own defense. On direct examination, Scott was permitted to deliver his version of events to the jury in narrative form. Regarding Joseph’s murder, Scott said “I wasn’t there.” Scott admitted he owned a pea coat and numerous “Dub shirts” but denied that the clothes found near the scene of the murder were his clothes. Scott claimed Collins was lying about acting as a lookout at Joseph’s house. Scott also denied being at Goodwin’s apartment on the night in question, claiming instead that he and his girlfriend stayed at the International Lodge motel near 14th Avenue. Scott also stated that he and Sergeant Sanchez “have issues” and that Sanchez lied about seeing Scott in clothes matching those found near the scene of the murder.
Discussion
A. The Jury Was Properly Instructed on Rape
Without objection from either defendant, the trial court gave the jury the standard CALCRIM No. 1000 instruction on the rape charges. Defendant Key contends the trial court committed reversible error by failing to include, sua sponte, a Mayberry charge stating: “The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the 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.” Applying settled principles of law, we find no error because Key neither relied on a Mayberry defense nor presented substantial evidence to support it.
People v. Mayberry (1975) 15 Cal.3d 143, 153-156 (Mayberry) [where defendant’s testimony indicated that he in good faith believed the victim consented to sexual intercourse at his apartment, and the victim’s equivocal behavior may have misled defendant “as to whether she was consenting” (id. at p. 156), defendant was entitled to an instruction that the jury should acquit him of rape if they entertained reasonable doubt as to whether defendant “reasonably and genuinely believed that [the victim] freely consented to... sexual intercourse with him” (id. at p. 153)].
See CALCRIM No. 1000, Bench Notes (Defenses — Instructional Duty), which states: “The court has a sua sponte duty to instruct on the defense of reasonable belief in consent if there is ‘substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.’ (See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337].)”
Key did not request a Mayberry instruction. In the absence of such a request, a trial court’s obligation to instruct sua sponte on a Mayberry 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.” ’ (Citations.)” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148 (Dominguez).) Key can satisfy neither aspect of the Dominguez test.
In her opening statement, Key’s counsel refers to tapes the jury would likely hear of Key’s custodial statements to the investigating officer, Sergeant Cruz. Counsel stated, “Mr. Key tells Sergeant Cruz that he was high. He’d been drinking, he bought some weed, and I submit to you that when you examine all the evidence, when you hear from Ms. Goodwin herself, during these sexual touchings, she never said no, she never said stop. [¶] And I submit to you,... that [the prosecutor] is going to have some difficulty proving beyond a reasonable doubt that this was a rape.” Also, at closing argument, counsel spent most of the time painting Goodwin as an unreliable witness whom the jury should not believe. On the rape charge specifically, Key’s counsel said, “Was there Mr. Key’s semen in Ms. Goodwin? I don’t have any trouble with that. Does that mean it was a rape? No. Because you need Ms. Goodwin’s testimony to make that so.”
Key’s counsel argued that Goodwin was lying about the rape and that Goodwin actually consented to have sex with Key. We have reviewed the arguments of counsel and find that they do not expressly or impliedly support Key’s assertion that he was relying upon the theory that Goodwin refused to consent but he reasonably believed she consented to sexual intercourse. Moreover, Key did not testify at trial. Accordingly, consistent with California Supreme Court’s ruling in Dominguez, we conclude that the trial court was not required to instruct the jury sua sponte with the Mayberry charge on account of Key’s reliance on a Mayberry defense. (Cf. Dominguez, supra, 39 Cal.4th at p. 1148.)
Key also fails the second prong of the Dominguez test because the evidence Key now cites as grounds for a Mayberry defense is weak and insubstantial at best. The Mayberry defense “is predicated on the notion that... reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. (Citation.)” (People v. Williams (1992) 4 Cal.4th 354, 360 (Williams).) The defense “has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. (Citations.)” (Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.)
With these legal principles in mind and based upon our thorough review of the record, we conclude Key cannot satisfy the subjective component of the Mayberry defense. The only evidence presented by Key on this point is that in his custodial statement he told Sergeant Cruz, “I [asked] her was it all right to have sex wit’ her and shit. I mean is it possible one day? She was like, ‘Maybe.’ And, so she was woke and everything so I start pullin’ her pants down, and um, she didn’t say nothin’ or nothin’ though. And I stuck my [penis] in her for five minutes, and I wasn’t feelin’ right, so I took it out and pulled her pants up and everything.” However, in response to further questions from Sergeant Cruz, Key then confirmed that when he penetrated Goodwin with his penis she was still handcuffed and had been forced to take ecstasy pills. Sergeant Cruz then asked Key, “Do you think even for a moment that someone on ecstasy and is handcuffed behind [her] back can really give you permission to have sex with her?” Key replied, “No. I’m sorry... nah, of course not.” Thus, defendant’s own words refute the notion that he “honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse.” (Williams, supra, 4 Cal.4th at p. 361.) Therefore, Key fails on the subjective component of the Mayberry defense. (Id. at p. 363 [looking to defendant’s state of mind in vetting the applicability of the Mayberry defense].)
Moreover, even if Key had presented substantial evidence on the subjective component of the Mayberry defense, he would fail on the objective component because any subjective mistake on his part regarding Goodwin’s consent was patently unreasonable under the circumstances. Here, the victim was awakened at gunpoint in the dead of night in her own home while sleeping next to her young son, handcuffed, gagged, forcibly drugged, robbed and threatened with her life. Then she was dragged from the hallway while still in handcuffs and placed on her back on the bed in the living room. The victim pretended that she was unconscious while this was happening. With the victim still feigning unconsciousness, Key pulled down her pajama bottoms, lifted her legs up and had sex with her while she remained handcuffed. Under these circumstances, we find that Key has failed to present substantial evidence in support of his contention that he reasonably, but mistakenly, believed Goodwin consented to sexual intercourse. Accordingly, Key cannot satisfy the objective component of the Mayberry defense. (Williams, supra, 4 Cal.4th at p. 361.)
In sum, we conclude on this record that Key did not rely on a Mayberry defense. Further, even if he did wish to rely on a Mayberry defense, there was insufficient evidence to support it. Therefore, the trial court did not err by failing to instruct sua sponte on the Mayberry defense. (People v. Dominguez, supra, 39 Cal.4th 1141, 1148 [trial court must give a Mayberry instruction sua sponte only if defendant relies on the Mayberry defense or if there is substantial evidence to support it and the defense is not inconsistent with the defendant’s theory of the case] [italics added].)
Because there was insufficient evidence to support a Mayberry defense, we need not decide whether such a defense would have been inconsistent with Key’s theory of the case. Also, because the trial court was not required to instruct sua sponte on a Mayberry defense, Key suffered no violation of his rights under the federal constitution on account of the trial court’s failure to do so.
B. The Evidence Corroborating Accomplice Testimony was Sufficient
Section 1111 states in part: “A conviction [cannot] be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (§ 1111.)
The trial court determined that Alondra Goodwin and Troy Collins were accomplices as a matter of law and instructed the jury accordingly. Defendant Scott contends that his murder conviction should be reversed because the accomplice testimony of Goodwin and Collins lacked sufficient corroboration.
The standards governing corroboration of accomplice testimony are well established: “ ‘To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. (Citation.) “The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient itself to establish every element of the offense charged.” (Citations.) “Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.” (Citation.) “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” (Citation.)’ (Citation.) Finally, ‘[u]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.’ (Citation.)” (People v. Szeto (1981) 29 Cal.3d 20, 27.)
Here, the prosecution produced the following independent evidence tending to connect defendant with the crime and sufficiently corroborate the accomplice testimony of Goodwin and Collins: On the night of the murder, a bundle of discarded clothing was found under a bush in the yard of a home within two blocks of the scene of the murder; among the items of clothing found was a highly distinctive shirt with velvet lettering on it reading “2500 Dubbs”; when Officer Sanchez arrived at the location where the clothing was found, he immediately recognized the shirt with velvet lettering on it as the same one that he had seen Scott wearing the day before the murder; Officer Moreno also testified at trial that Scott was wearing the shirt with the velvet lettering the day before the murder; the items of clothing also included a piece of nylon stocking which was found to contain Scott’s DNA to a probability of one in 450 trillion. Such highly probative circumstantial evidence tends to connect Scott to the murder by placing him within the locus of the crime on the night of the murder, and provides sufficient corroboration for the accomplice testimony. Moreover, and contrary to Scott’s assertion, the probative value of the clothing is not diminished because it was found two blocks from the murder scene. Indeed, that defendant’s clothing was found near the murder scene rather than at the murder scene added to its value as evidence corroborative of accomplice testimony: Based on the location of the clothing, the jury could draw the reasonable inference that upon shooting the victim Scott fled the immediate scene of the crime to avoid apprehension and/or recognition by anyone drawn to the sound of the gunshot, then switched his clothing, two blocks away and safely out of sight of the scene of the crime, in order to elude capture or detection and facilitate his movement away from the general vicinity of the crime. In sum, Scott’s contention that the accomplice testimony lacks sufficient corroboration is without merit.
Scott acknowledged as much on cross-examination when he admitted that on several occasions he had taken clothes off when running from the police so that the police would not recognize him. In Scott’s words, “If they see you, they recognize you. If they see you another block over, they won’t recognize you” because “you got different clothes on.”
C. CALCRIM No. 362
Scott contends the trial court erred by instructing the jury with CALCRIM No. 362 (Consciousness of Guilt: False Statements) as follows: “If a defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant’s guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
We note that Scott did not object to the instruction at trial. Despite his failure to object, Scott may raise his instructional claim initially on appeal to the extent it implicates his substantial rights. (§ 1259; People v. Salcido (2008) 44 Cal.4th 93, 155.) Thus, where a defendant contends an instruction affects a “fundamental constitutional right[], we entertain the claim on its merits.” (People v. Salcido, supra, 44 Cal.4th at p. 155.) Here, Scott contends CALCRIM No. 362 burdened his federal constitutional rights “to testify in his own behalf” and “to a meaningful opportunity to present a defense.” Accordingly, we review his instructional claim on the merits.
Scott contends CALCRIM No. 362 is defective because it does not specify that it applies only to extra-judicial, pre-trial statements, thereby allowing the jury to apply the instruction to statements made in the course of his trial testimony. According to Scott, this allowed the jury not merely to consider factors pertinent to his credibility (as instructed under CALCRIM No. 226), but to apply “a special scrutiny for the testimony of the defendant/witness that goes directly to the question of substantive guilt.” In essence, Scott contends that CALCRIM No. 362 burdened his constitutional right to testify and present a defense because it allowed the jury, if it arrived at an adverse credibility determination under the factors explained in CALCRIM No. 226, to use its adverse credibility determination to infer consciousness of guilt under CALCRIM No. 362. Even if we accepted Scott’s contention that CALCRIM No. 362 allowed the jury to assess his trial testimony in this manner, he would not be entitled to reversal.
Noting this absence in CALCRIM No. 362, the court in People v Beyah (2009) 170 Cal.App.4th 1241 (Beyah) opined: “[W]e doubt that the CALCRIM committee intended CALCRIM No. 362 to be used... to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant’s trial testimony” (id. at pp. 1248-1249), and “invite[d] the CALCRIM committee to clarify its intended use of the instruction,” (id. at p. 1251). The current version of CALCRIM No. 362 clarifies that it applies only to false or misleading statements made “before this trial relating to the charged crime.” (CALCRIM No. 362 (Revised August 2009).)
First, even if the jury applied CALCRIM No. 362 to Scott’s trial testimony, reversal is not warranted because under proper circumstances, the law permits a jury to consider a defendant’s false trial testimony as “evidence of consciousness of guilt.” (See Beyah, supra, 170 Cal.App.4th at p. 1249 [citing cases, including People v. Amador (1970) 8 Cal.App.3d 788 (Amador).) In this regard, “ ‘no inference of consciousness of guilt can be drawn from the mere fact that the jury, in order to convict must have disbelieved defendant’s [testimony]; only where the false statement or testimony is intentional rather than merely mistaken and where such statement or testimony suggests that the defendant has no true exculpatory explanation’ ” may the jury consider defendant’s testimony as evidence of consciousness of guilt. (Beyah, supra, 170 Cal.App.4th at 1249-1250, quoting Amador, supra, 8 Cal.App.3d at pp. 791-792.)
Here, defendant made statements in his trial testimony about the clothes found near the murder scene that the jury could have concluded were intentional fabrications indicating consciousness of guilt. Scott admitted that he owns shirts with “Dubbs” printed on them and owns a pea coat like the one found near the murder scene. However, Scott denied the clothes found at the murder scene belonged to him and denied he had ever worn them. Scott’s statements were directly contradicted by evidence that his DNA was found on the piece of stocking that was among the clothes found near the murder scene, and by the testimony of Officers Sanchez and Moreno that they recognized the clothes found at the murder scene as the same clothes they saw defendant wearing on the day before the murder. Under these facts, the jury was entitled to view Scott’s statements as intentional falsehoods suggesting that he had “no true exculpatory explanation” about how his clothes came to be found near the murder scene. (Beyah, supra, 170 Cal.App.4th at 1250.) Accordingly, the jury was permitted, but not required, to infer that Scott’s intentional false statements indicated consciousness of guilt. (Ibid.)
Second, even if we assume that Scott’s federal constitutional rights were somehow impaired by the fact that CALCRIM No. 362 allowed the jury to infer consciousness of guilt from statements made during the course of his trial testimony, any such error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 18 [jury instruction is harmless if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”].) To infer a consciousness of guilt from defendant’s false trial testimony, the jury must have necessarily disbelieved defendant’s testimony in the face of the evidence presented against him, found him not credible and rejected his defense. Accordingly, it is clear beyond a reasonable doubt that the jury would have found defendant guilty absent the error alleged here. Thus, defendant was not prejudiced by CALCRIM No. 362.
D. CALCRIM No. 337
The trial court gave CALCRIM No. 337 as follows: “When Troy Collins testified, he was in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.” Scott contends this instruction should not have been given because it unduly enhanced the credibility of Troy Collins.
Scott failed to object at trial to the court’s decision to instruct the jury with CALCRIM No. 337. As already noted, a claimed instructional error may be reviewed despite defendant’s failure to object if “the substantial rights of the defendant were affected thereby.” (§ 1259.) Here, Scott suffered no violation of his substantial rights as a consequence of CALCRIM No. 337 as given because there is no reasonable likelihood that the jury interpreted the instruction in light of the entire charge in the manner urged by defendant. (Boyde v. California (1990) 494 U.S. 370, 378; People v. Kelly (1992) 1 Cal.4th 495, 525.)
In the first place, the instruction did not enhance Collins’ credibility by mentioning his custody status. Indeed, the plain language of the instruction shows it to be entirely neutral on that issue because it instructs the jury that “[t]he fact that a witness is in custody does not by itself make a witness more or less believable.” (CALCRIM No. 337 [italics added].) The instruction further tells the jury to “[e]valuate the witness’s testimony according to the instructions I have given you.” Among the instructions given was CALCRIM No. 335 which told the jury that Collins’ accomplice testimony “should be viewed with caution” and examined with “care and caution and in the light of all the other evidence.” The jury was also instructed that in assessing witness credibility it could consider a witness’s bias or personal interest in the result, whether the witness had been convicted of a felony and whether the witness had been promised leniency in exchange for testimony (CALCRIM No. 226 factors). Accordingly, we conclude that there is not a reasonable likelihood that the jury interpreted the instruction in the manner urged by defendant. (People v. Kelly, supra, 1 Cal.4th at p. 525.) Thus, defendant’s substantial rights were not affected by CALCRIM No. 337 as given and therefore his claim of instructional error fails.
Because Scott failed to identify a single prejudicial error, we reject his claim that he was prejudiced by cumulative error. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [“litmus test” of cumulative error analysis is “whether defendant received due process and a fair trial”].)
Disposition
The judgments against defendants Scott and Key are affirmed.
We concur: McGuiness, P. J. Siggins, J.