Filed 8/25/15 P. v. Staunton CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B253615

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA399634)
         v.

MICHAEL STAUNTON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Paul T.
Suzuki, Judge. Affirmed.
         Melanie K. Dorian for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ___________________
       Appellant Michael Staunton pleaded not guilty to the charges in an information
against him. In count 1 he was charged with sexual battery by restraint (Pen. Code, §
2453.4, subd. (a)); in count 2, with assault by a public officer (Pen. Code, § 149); and in
count 3, with false imprisonment by violence (Pen. Code, § 236). A jury found him
guilty as charged. He was sentenced to four years in state prison, the upper term for
count 1. The sentences for counts 2 and 3, the midterm of two years for each, were
stayed. (Pen. Code, § 654.) Staunton appeals. (Pen. Code, § 1237.)

                                       Background
       Staunton worked as one of about 400 sworn peace officers of the Los Angeles
Airport Police, at Los Angeles International Airport. Officer Howard Chambliss worked
for the Airport Police as a security officer, not a sworn peace officer, and therefore did
not carry a gun or have the power to arrest, as police officers did. Staunton and
Chambliss were well acquainted as friends at work.
       On April 12, 2011, Melissa W. was at the airport with Tracy Culp, waiting for
their return flight to Washington. Coming to meet them at the boarding gate were a
friend, Frankeice Jordan, and Jordan’s young daughter Hazel, with whom they had been
visiting in Los Angeles.
       They sat on a bench past the security screening area, opposite a security podium,
at which Melissa noticed Staunton and Chambliss, whom she believed to be “regular
police officers” because of their uniforms, badges, and weapons. After his lunch,
Chambliss had stopped at the podium to talk with Staunton on his way to a visit with
another airport employee whom he had been dating. According to Chambliss, Melissa
was dressed in a short and somewhat revealing white dress. Staunton noticed, and
commented to Chambliss on Melissa’s good looks and attractiveness.
       Staunton, who had been staring at Melissa and Culp, called Melissa over to the
security podium, apparently to sign something on his clipboard; but when she was there
he said he “just wanted to see your sexy ass walk over here”—to which Melissa laughed
nervously. Staunton and Melissa talked for a while, apparently friendly and with some


                                              2
laughter. As Melissa walked back from the podium to her seat, Staunton asked her to
shake her ass, or said he wanted to see her ass jiggle. Melissa walked back to her seat in
a way that Chambliss thought was slow and sexy, shaking her behind (which Melissa
denied). Melissa told her friend she was offended and found the comment “creepy.”
Soon afterward Staunton walked over to Melissa and Culp, making a few jokes about
how officers spend their time looking at pretty ladies—to which Melissa and Culp
laughed, but felt very uncomfortable. Chambliss left to meet his friend. Because
Staunton had been “creeping [them] out,” Melissa and Culp went toward the food court,
where they were soon joined by Jordan and Hazel.
       After they went to their boarding gate, Melissa and her friends were approached
by Staunton, who was talking into his walkie-talkie, saying “I found her.” He told
Melissa in a very stern and official manner that “you need to come with me, Ma’am.”
Although she and Jordan initially thought she had no choice but to go with Staunton, he
then “lightened up,” saying she had been selected to have an airport tour. Jordan told
Hazel to go along with them (seeing that Melissa looked nervous and believing the
child’s presence would keep anything improper from happening), but Staunton sent her
back, saying “no kids”—which made Melissa wonder “what’s going on?”
       Although she had felt very uncomfortable about their earlier conversation, Melissa
went with Staunton without comment. She did not feel she could decline, because he was
a police officer. Jordan told Culp (who then went to look for Melissa), but not wanting to
overreact, she did not notify the police.
       Staunton took Melissa through a number of areas of the airport restricted to the
public (and to which Staunton was not authorized to bring anyone), including elevators
activated by security badges, and areas within the view of security cameras. After going
through a basement storage room filled with boxes or crates, they entered an unused
baggage claim area with suitcases, windows looking out toward the planes, and no
cameras. As they returned to the storage room, Staunton continued to tell Melissa how
beautiful her legs were and to ask if she had a boyfriend; Melissa felt trapped and in
physical danger, but did not know how or where to go.

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       Standing in front of the door as he continued to compliment Melissa’s appearance,
Staunton told Melissa to pull her dress up, saying he was “LAPD” and that she was
subject to search at any time. Melissa complied, feeling intimidated. When she pulled
her dress back down, Staunton came up behind her and pulled it back up. Melissa did not
resist or tell Staunton to stop. Staunton put his hand between her thighs, pushing for her
to open her legs, and rubbed her vagina with his fingers. Melissa was scared, believing
she would be beaten, raped, or both. After about 20 seconds, she said “That’s enough,”
and pulled her dress down.
       At Staunton’s request, Melissa gave him her phone number (believing he might
check to see if it was fake). Staunton offered to take her back upstairs and to buy her
food; she accepted in order to end the encounter. Melissa went back to her boarding gate,
and Staunton returned to the security podium.
       When Melissa approached Culp and Jordan after she had been gone for about 20
to 30 minutes, she was carrying some food, her hair was disheveled, she appeared dazed
and “traumatized,” and she was both laughing and crying. She told Culp and Jordan what
had happened, saying she would not have gone with Staunton except that he was a police
officer. Concerned that she would not be believed because he was a police officer, and
saying she just wanted to go home, Melissa did not want to report the incident. But
Jordan and Culp insisted, convincing her that she was probably not Staunton’s first
victim.
       After being told by an airport ticked agent to find a police officer, and taking some
measures to avoid Staunton, Melissa called the local police station and asked for a female
officer. When Melissa was eventually able to meet with a female officer, she was
uncomfortable with the officer’s attitude and “standoffish” treatment of her and her
friends. She described what had happened, but without saying Staunton had touched her
vagina.
       Back at the boarding gate, Melissa and her friends were approached by two male
officers, one of whom was Staunton’s supervisor. She was taken to a first-class lounge
for a tape-recorded interview. She described the events, but did not mention some details

                                             4
of the incident because she was scared and uncomfortable being interviewed by the
condescending and somewhat disinterested male sergeants. The interview ended after
about 10 minutes, because Melissa had to catch her flight.
       After Melissa arrived home she received two phone messages from Staunton,
which she did not answer. Melissa identified Staunton’s photo about a week later as the
officer who had harassed her and touched her vagina in the airport basement.

                                          Discussion
       Staunton was convicted of sexual battery by restraint, assault by a public officer,
and false imprisonment by violence. On appeal he contends that reversal of his
conviction is required because his constitutional right to a meaningful defense and fair
trial were denied by the trial court’s failure to instruct the jury on the defense of mistake
of fact, an affirmative defense to each of the charged offenses. He contends that although
there admittedly was evidence sufficient to support the prosecution’s theory that Melissa
accompanied Staunton to the airport basement room because of her belief that she was
compelled to accompany him on an airport tour, “there was also substantial evidence that
appellant was honestly and reasonably mistaken about Melissa’s intentions” and her
willingness to participate in and consent to all the alleged sexual conduct. This, he
contends, required the court to instruct the jury, sua sponte, on the defense of mistake in
fact—that he could not be found guilty of the charged offenses if he reasonably believed
that Melissa had engaged in a consensual act with him.
       Penal Code section 201 provides that “In every crime . . . there must exist a union,
or joint operation of act and intent, or criminal negligence,” and the word “intent” in that
provision means “wrongful intent.” Section 26 provides that a person who commits an
act under a mistake of fact disproving any criminal intent is incapable of committing the
criminal offense. (See People v. Vogel, 46 Cal.2d 798, 801, fn. 2.) In People v.
Mayberry (1975) 15 Cal.3d 143, our Supreme Court interpreted these provisions to mean


       1
           All further statutory references are to the Penal Code unless otherwise specified.

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that a mistake of fact on the part of the defendant that is incompatible with the wrongful
intent that is required to prove the offense thereby disproves his criminal intent. (Id. at
pp. 153-157.) Staunton argues in this appeal that there was substantial evidence that he
acted under a reasonable and honestly held belief that Melissa had consented to the acts
with which he was charged, establishing grounds for an affirmative defense of mistake of
fact and requiring the trial court to give the mistake-of-fact instruction, despite his
counsel’s failure to request it.2
       We find Staunton’s contention unfounded. It is unnecessary for us to examine his
contentions that the law would require the court to instruct the jury, sua sponte, on the
mistake-of-fact theory, for as we explain below, the verdict shows unequivocally the
jury’s rejection of the facts that would be required for that defense to apply here. Any
error in the court’s failure to instruct the jury on the mistake-of-fact defense was
unquestionably harmless as a matter of law.3 We therefore must affirm the judgment of
conviction.
       We assume (solely for the purpose of this discussion) that the court’s failure to
instruct the jury on the mistake-of-fact defense was error. But any such error was

       2
         The instruction that Staunton contends should have been given is CALCRIM No.
3406, Mistake of Fact: “The defendant is not guilty of [the charged crimes] if he did not
have the intent or mental state required to commit the crime because he reasonably did
not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant’s
conduct would have been lawful under the facts as he reasonably believed them to be, he
did not commit [the charged crimes]. [¶] If you find that the defendant believed that
[Melissa had engaged in a consensual act with him] and if you find that belief was
reasonable, he did not have the specific intent or mental state required for [the charged
crimes]. [¶] If you have a reasonable doubt about whether the defendant had the specific
intent or mental state required for [the charged crimes], you must find him not guilty of
those crimes.”
       3
         Because the verdicts must be affirmed on each of these two grounds, we do not
address respondent’s contention that the evidence is not sufficient to show Staunton could
have reasonably believed that Melissa consented to his conduct, in light of the undisputed
evidence of his conduct under color of authority. (People v. Maury (2003) 30 Cal.4th
342, 424-425 [substantial evidence of victim’s equivocal conduct justifying reasonable
belief in consent is required to justify mistake-of-fact instruction].)

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unquestionably harmless—and therefore cannot justify reversal of Staunton’s
convictions. (Cal. Const., art. VI, § 13.)
       Under the Chapman standard of review for prejudicial error arising from a
violation of federal constitutional rights, the question is whether the error was harmless
beyond a reasonable doubt—whether the court can conclude beyond a reasonable doubt
that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S.
18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Under the less rigorous Watson standard,
reversal is warranted only if “it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.” (People v. Watson
(1956) 46 Cal.2d 818, 836.)
       The California Supreme Court has not definitively resolved whether an erroneous
failure to instruct on mistake of fact is governed by the Chapman standard of prejudice or
the Watson standard. In People v. Salas (2006) 37 Cal.4th 967, 984 the court assumed,
but did not hold, that the Chapman test applies, finding that even if that standard applies,
the error was harmless beyond a reasonable doubt. While some courts of appeal have
held that the less-rigorous Watson standard applies (e.g., People v. Sojka (2011) 196
Cal.App.4th 733, 738 [Watson standard applies to determine whether erroneous failure to
give mistake-of-fact instruction was prejudicial]; People v. Zamani (2010) 183
Cal.App.4th 854, 856 [same]; People v. Russell (2006) 144 Cal.App.4th 1415, 1431
[error in failure to instruct on mistake-of-fact defense is governed by Watson standard]),
none have actually adopted the more rigorous Chapman standard. One recent case has
declined to resolve which standard applies because the error in that case was prejudicial
under either standard. (People v. Andrews (2015) 234 Cal.App.4th 590, 605-606.)
       We adopt the approach of the Supreme Court in People v. Salas and the Court of
Appeal in People v. Andrews. We need not determine in this case which of these
standards would be required in a case in which the outcome of the issue was
determinative, because here it is not. Here, as in People v. Salas, supra, even if the more
rigorous Chapman standard is applied, any error in failing to give the mistake-of-fact
instruction was harmless beyond any reasonable doubt. (Id. at p. 984.)

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       The count 3 verdict conclusively demonstrates the jury’s rejection of the mistake-
of-fact theory that Staunton was acting under an honest but mistaken belief that Melissa
consented to the conduct for which he was convicted. The conduct underlying all three
counts for which he was convicted took place in the airport basement. The jury found in
count 3 that Staunton “intentionally and unlawfully” restrained, confined, or detained
Melissa in that location, “by fraud or deceit.” That determination demonstrates that the
jury did not believe that Staunton had an honestly held belief (reasonable or not) that
Melissa was engaging in consensual acts with him, for it found that he instead
intentionally used fraud or deceit, knowingly misrepresenting the truth or intentionally
giving her a false impression. The conduct that the jury found is inconsistent and
incompatible with any possibility that he had an honestly held belief in Melissa’s
consent—the mistake-of-fact defense he urges the jury should have been instructed to
consider.4
       Thus, even if the jury had been instructed that he would not be guilty of the
charged offenses if he had a reasonable and honestly held belief that Melissa had engaged
in a consensual act with him, as he argues it should have been, the result would not have
been more favorable to him. The jury necessarily concluded that Staunton did not act
under any honest misimpression about Melissa’s consent; he knowingly misrepresented
the truth to her, or intentionally gave her a false impression in order to get her to the
airport basement, to confine or restrain her there, to reach under her dress and induce her
to spread her legs, and to touch her vagina. Those findings of the jury were wholly
independent of the failure to give the mistake-of-fact instruction. Therefore even if the
court erred by failing to give the mistake-of-fact instruction sua sponte, that error was
necessarily harmless and had no effect on the trial’s outcome.


       4
         Staunton’s counsel did not expressly argue to the jury that Staunton’s conduct
resulted from of an honestly held belief in Melissa’s consent, although he did argue that
her conduct indicated her consent to Staunton’s inappropriate advances. But as we find
above, the jury unequivocally rejected any theory that Staunton’s conduct resulted from
honest misunderstanding.

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                                 Disposition
     The judgment is affirmed.
     NOT TO BE PUBLISHED.




                                               CHANEY, J.


We concur:




             ROTHSCHILD, P. J.




             LUI, J.




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