Filed 5/3/13 P. v. Perez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E053474

v.                                                                       (Super.Ct.No. RIF10004062)

JOSE LUIS RAMIREZ PEREZ,                                                 OPINION

         Plaintiff and Respondent.



         APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

Affirmed.

         David M. Morse, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Donald

W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Jose Luis Ramirez Perez is serving a prison term of 39 years to life,

after a jury convicted him of all five charges resulting from his numerous rapes of his

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stepdaughter over a period spanning approximately ten years. Defendant argues his

conviction for forcible rape, which occurred after his stepdaughter turned 18, should be

reversed because the trial court should have, sua sponte, instructed the jury on the

defense of reasonable belief in consent. As discussed below, we affirm the conviction.

                                 FACTS AND PROCEDURE

       Defendant is Jane Doe‟s stepfather and the father of her three brothers. Defendant

began living with the family when Jane Doe was in elementary school. Defendant was

the disciplinarian in the house. Jane Doe testified that when she was in elementary

school defendant would hit her in the head with a closed fist when she would get in

trouble. Another time when she was in junior high he hit her with a belt after she broke a

statue. She hated him for hitting her as she was growing up. Defendant would also beat

Jane Doe‟s mother in front of her. Jane Doe testified she was “scared of” defendant.

       Defendant started sexually abusing Jane Doe when she was 10 or 11 years old.

Defendant would make Jane Doe undress and then he would rub lotion all over her body,

including her private parts. He sodomized her many times over the years, sometimes

more than once in a day. Jane Doe did not like this and would try to move, but defendant

would get angry and tell her to “hold still.” The frequent sodomy would cause Jane Doe

to bleed. Beginning when Jane Doe was in 7th or 8th grade, defendant began to orally

copulate Jane Doe. When she was in 8th grade defendant began to vaginally rape Jane

Doe. The sexual abuse continued regularly and frequently throughout Jane Doe‟s time in

high school and until she was 20 years old.




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       Jane Doe learned about the human body during class at middle school, and that

was when she first knew that what defendant was doing was wrong. She did not say

anything to defendant because she was “scared.” When asked why she did not tell her

mother at this time, Jane Doe testified that she was both scared of defendant and afraid

her mother would not believe her.

       As Jane Doe got older, she stopped crying or trying to get away from defendant

during the abuse, as she had sometimes done when she was younger, because “I just

thought it would be better to just let him do what he wanted so he wouldn‟t get angry.”

Jane Doe testified that defendant has a temper, and that when he lost his temper he would

raise his voice to her mother and hit her mother and throw things.

       During Jane Doe‟s senior year in high school, her mother and defendant lost their

house in Corona to foreclosure. Defendant moved back to Orange County and Jane Doe,

her mother and her brothers moved in with her grandmother.

       Jane Doe turned 18 during her senior year in high school. She quit high school to

work full time at her fast food job. She testified: “I just couldn‟t wait to be 18 so I could

move out of the house and be away from him.” However, Jane Doe did not move out

because defendant told her that if she did move, he would not allow her to see her two

youngest brothers, ages seven and four. Later, when Jane Doe was age 18 or 19,

defendant also told her that if she did not want to continue having sex with him, she

would have to pay back all the money he had spent raising her.

       In December of 2007, when Jane Doe was 18 years old, there was an altercation

between defendant, Jane Doe, and her mother. At that time defendant and Jane Doe‟s


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mother were separated. As they were leaving an animal shelter, defendant wanted Jane

Doe to ride with him in his car rather than in her mother‟s car. Jane Doe refused and

locked herself in her mother‟s car. Defendant became angry and aggressive. He took a

knife out of his pocket and banged it against the car window in an effort to break it. Jane

Doe ran out the back of the car and into the animal shelter. She told one of the

employees about how defendant had been abusing her since childhood. She also told her

mother for the first time. Her mother called defendant on her cell phone and asked

defendant why he had done it. She then told Jane Doe to speak with defendant on the

phone. Defendant was very angry and said that he was going to kill Jane Doe. She took

the threat seriously. The animal shelter employee called police. Jane Doe was

interviewed by police officers. They asked Jane Doe to place a pretext call to defendant

so they could record him talking about the abuse, but Jane Doe was too afraid to do it.

Jane Doe did not follow up with additional efforts by the police to contact her.

       After the day at the animal shelter, defendant ceased abusing her for about a

month. Defendant would call Jane Doe‟s mother and her mother would try to get her to

talk to defendant so he could apologize. Eventually Jane Doe agreed to meet defendant at

a gas station so he could tell her how sorry he was. He then talked her into following him

back to his home in Orange. Either that time or shortly afterward, defendant began

abusing Jane Doe again. Jane Doe testified that she was afraid defendant would kill her

if she did not go along, because he had threatened to do so when he found out she had

reported him to the police and told her mother.




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       When Jane Doe was 19 years old she told defendant she was going to move to

Texas. He told her that if she did she would never see her brothers again. Also when

Jane Doe was 19 she told defendant that she did not want to continue having sex with

him. He told her if she did not he would get her fired from her fast food job. The job

was very important to Jane Doe—she left high school to work full time at that job and

had continued to work there for five years. He also continued telling her that if she did

not want to continue having sex with him he would make her pay back everything he had

spent on her growing up. When she was 20 years old, defendant threatened to have her

mother‟s car repossessed. Also at about that time defendant threatened to send some

guys over to Jane Doe‟s boyfriend‟s house to beat him up if she did not continue having

sex with defendant.

       The last time defendant and Jane Doe had sex was on November 28 or 29, 2009.

Jane Doe testified that she had gone to his apartment and they were talking on the couch.

Defendant told her she need to accept how things were, that they needed to go back to the

way they had been before, and that she had five minutes to decide. Jane Doe eventually

agreed and they went into the bedroom and had sex. She did not want to. The same

thing happened the next day.

       On December 1, 2009, Jane Doe had a relative take her to the sheriff‟s department

to report the abuse. During the interview, defendant texted Jane Doe 10 to 20 times with

messages such as “Don‟t do anything stupid” and “No matter where you go or what you

do, you know I‟m watching you.” The deputy had Jane Doe place a pretext call to

appellant in which he admitted to having abused her, but claimed it was not until she was


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14 years old, and asked for forgiveness. A tape recording of this call was played for the

jury. The jury also heard a recording of defendant‟s police interview in which he

admitted to sodomizing Jane Doe, but claimed it happened when she was about 14 years

old. He also admitted to having sex with her, but claimed it happened when she was 16

years old. He also admitted to having told Jane Doe that he had friends who could get

information about her boyfriends, but stated he just wanted to scare her so she would not

talk to them. Defendant stated that he had had sex with Jane Doe twice in his current

apartment, where he had lived for about one month.

       On January 7, 2011, the People filed a second amended information charging

defendant in counts 1 and 2 with aggravated sexual assault of a child under age 14 (Pen.

Code, § 269, subd. (a)(3)),1 in count 3 with a lewd and lascivious act on a child under age

16 (§ 288, subd. (c)(1)), in count 4 with sodomy on a child under age 16 (§ 286, subd.

(b)(2)), and in count 5, forcible rape (§ 261, subd. (a)(2)).

       On January 14, 2011, the jury found defendant guilty on all counts.

       On April 29, 2011, the trial court sentenced defendant to a determinate prison term

of nine years and four months, to be followed by an indeterminate term of 30 years to

life, as follows: the upper term of eight years on count 5, plus eight months consecutive

on count 3 and eight months consecutive on count 4, to be followed by 15 years to life on

count 1 and a consecutive term of 15 years to life on count 2. This appeal followed.




       1   All section references are to the Penal Code unless otherwise indicated.


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                                        DISCUSSION

       Defendant contends that, as to the forcible rape charge, the trial court prejudicially

erred by failing to give the jury, sua sponte, the portion of Judicial Council of California

Criminal Jury Instruction, CALCRIM No. 1000, the instruction on forcible rape, that sets

forth the defense of reasonable belief in consent. Specifically, he argues there was

substantial evidence to support a finding that defendant maintained a reasonable and good

faith, albeit mistaken, belief that Jane Doe consented to each act of sexual intercourse that

took place between December 2007 and December 2009, after she became 18 years old.

The portion of CALCRIM No. 1000 at issue is as follows: “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.”

       “[A] defendant‟s reasonable and good faith mistake of fact regarding a person‟s

consent to sexual intercourse is a defense to rape. [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. . . . [¶] . . . [T]he objective component . . . asks whether the defendant‟s

mistake regarding consent was reasonable under the circumstances.” (Id. at pp. 360-361,

fn. omitted.) “[I]n determining whether [an] instruction [on this defense] should be

given, the trial court must examine whether there is substantial evidence that the


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defendant honestly and reasonably, but mistakenly, believed that the victim consented to

sexual intercourse.” (Id. at p. 361.) “ . . . [T]he instruction should not be given absent

substantial evidence of equivocal conduct that would have led a defendant to reasonably

and in good faith believe consent existed where it did not.” (Id. at p. 362.)

       In this case, despite defendant‟s arguments to the contrary, substantial evidence

was not presented to warrant an instruction on reasonable belief in consent. In other

words, the record does not show the kind of equivocal conduct on the part of the victim to

merit the challenged instruction.

       We examine the record for substantial evidence of equivocal conduct leading up to

the final incident at defendant‟s Riverside apartment in November 2009, including the

evidence to which defendant points in his appellate briefs. First, defendant points to Jane

Doe‟s testimony that she would send defendant text messages saying that she liked him,

that she wanted to see him, that she had “desires”. However, Jane Doe was very clear on

the witness stand that she sent these messages only because defendant told her he wanted

to receive messages like this from her. “Because there were times where he would tell

me, How come I never hear from you, that he wanted—so he told me that he wanted to

start hearing things like that from me.” When asked why she did as he told her she

answered, “„Cause I didn‟t want to get him angry or just have him be mad at

everybody.‟” Defendant points to his statements in his interview with police that

defendant would send him such texts, including naked pictures of herself, and that she

had told him in person that she wanted to be with him, but that he had told her he was




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still with her mother. The trial court was entitled to ignore these self-serving statements

that were made, not even as a witness under oath, but during an interview with police.

       Second, defendant points to Jane Doe‟s testimony that she had once discussed

with defendant going Christmas shopping together and what he was going to get her for

Christmas. We hardly think such a discussion can reasonably be taken in good faith as

consent to intercourse.

       Third, defendant points to Jane Doe‟s testimony regarding an incident, just prior to

the first time she reported the sexual abuse in December 2007, where defendant asked her

to have sex with him in the back of her car in a parking lot after she finished work, and

she had said, “Well, I don‟t care, whatever.” Based on the relationship between

defendant and Jane Doe at that point—that he had for years been raping her and

physically punishing her when she did not comply—one could not reasonably conclude

from Jane Doe‟s description of the events that a reasonable person in defendant‟s position

would have believed she freely consented to the intercourse. A reasonable inference can

be made that refusing his advances would bring retribution to Jane Doe in the form of

continued physical punishment.

       Finally, Jane Doe‟s testimony about the threats defendant resorted to in the later

years of the abuse makes it clear that defendant knew, subjectively and objectively, that

he could only obtain her participation in their sexual acts by use of coercion. As Jane

Doe testified, defendant threatened to cut off contact with her beloved little brothers, to

get her fired from her long-time fast food job upon which she depended for her

livelihood, to make her pay back the money he had spent on her support as a child, to


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have her mother‟s car repossessed, and to have some guys go over and beat up her

boyfriend. These threats are plainly acts of coercion, and belie any claim that defendant

reasonably believed Jane Doe had sex with him willingly.

       The evidence here is not the sort of equivocal conduct referred to in Williams that

could reasonably and in good faith have been relied upon to form a mistaken belief on

defendant‟s part of Jane Doe‟s consent to the acts of sexual intercourse. Our review of

the record shows no substantial evidence of equivocal conduct warranting an instruction

as to reasonable and good faith, but mistaken, belief of consent to that act.

                                           DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                       P. J.


We concur:

McKINSTER
                           J.

CODRINGTON
                           J.




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