Filed 9/11/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                           B269153

       Plaintiff and Respondent,      (Los Angeles County
                                      Super. Ct. No. BA436890)
       v.

ANDRES LUJANO,

       Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Affirmed.
      Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Alene M. Games,
Deputy Attorneys General, for Plaintiff and Respondent.

                      _____________________
                        INTRODUCTION

      A jury convicted Andres Lujano of sodomy of an intoxicated
person (Pen. Code, § 286, subd. (i)), 1 and the trial court sentenced
him to six years in state prison. He appeals, claiming the trial
court prejudicially erred by refusing to instruct the jury that an
actual and reasonable belief that the victim was capable of
consenting is a defense.
      We conclude that the court did not err, because the
requested instruction merely duplicated other instructions that
were properly given. For similar reasons, any error was harmless
because the factual question posed by the requested instruction
was necessarily resolved against Lujano under the other
instructions. We therefore affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

      Lujano was charged with sodomy of an unconscious victim
(§ 286, subd. (f); count 1) and sodomy of an intoxicated person
(§ 286, subd. (i); count 2).
      The victim, Marco M., testified Lujano had lived next door
to Marco’s family for three years, and Marco trusted him. Their
families were close, and Lujano had come to the hospital when
Marco’s baby was born. Marco had talked with Lujano about
Marco’s girlfriend and baby and considered Lujano to be his
friend. Lujano had told Marco (and Marco’s mother) he “ha[d] a
preference for men.” Marco “d[id]n’t judge nobody.”


1     Unless specified otherwise, all further section references
are to the Penal Code.




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       Marco testified that on May 26, 2015, he was sad because
his baby was in the hospital with respiratory problems. Sitting
in his truck in front of his house, he started drinking beer with
his friend Jose at about 8:00 p.m. At around 11:00 p.m., he tried
methamphetamine (provided by Jose) for the first time, and it
made him feel more awake. Jose went home around midnight,
but Marco did not go to sleep that night. Between 8:00 p.m. and
about 5:30 a.m., in addition to the methamphetamine he
ingested, Marco smoked marijuana and drank more than 20
beers. Marco testified he is five feet, five inches tall and weighs
about 130 pounds.
       At about 5:30 a.m. on May 27, Lujano approached Marco in
the truck and asked him if he wanted another beer; Marco had
socialized with and drunk beer with Lujano previously. Marco
said he did want another beer, and Lujano told him to come get it
from his house. Marco went inside Lujano’s home to get the beer
and sat down in the living room while Lujano was in the kitchen
washing dishes. Marco was “pretty intoxicated” and dozed off
sitting on Lujano’s couch.
       Marco testified he woke up because he felt “hard pain” “in
[his] butt.” When he opened his eyes, he saw Lujano’s hands on
top of his hands, he was face down over the side of the couch with
his pants below his waist, and Lujano’s body was on top of him.
When Lujano saw that Marco had opened his eyes, Lujano
immediately stopped, got up, and started putting on his clothes.
Marco got up, said he had to leave, and tried to go through the
front door, but the door required a key to unlock it from the
inside. Lujano could not find his keys and told Marco to go
through the window. He gave Marco $6 and told him not to tell




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anyone. Marco was “still hurting” and “wasn’t able to walk
right.”
       Immediately after climbing through Lujano’s window,
Marco went inside his own house and told his mother what had
happened—that he “got raped.” She started crying and told him
to call 911, which he did at 6:54 a.m. While Marco was still on
the witness stand, the prosecutor played the recording of the 911
call, in which Marco told the operator “my neighbor just raped
me.” Crying throughout the call, Marco said he was drunk and
“just woke up and he was on top of me.” Police officers arrived
about five minutes later, spoke with Marco, and took him to the
hospital. Officers also took Lujano into custody that morning.
        The officers who responded to Marco’s 911 call testified
Marco was crying, his eyes were red, bloodshot, and watery, he
“had a strong odor of alcohol coming from him,” and he
“appear[ed] to be under the influence” when they arrived. He
said he “just got raped by his neighbor.” He told the officers he
went into Lujano’s house for a beer and fell asleep sitting on the
couch, and Lujano was on top of him when he woke up.
       The supervising nurse practitioner who performed Marco’s
sexual assault exam two to three hours after his 911 call testified
Marco had an actively bleeding anal laceration—a “fairly
significant injury.” She noted Marco was “shut down” and had
difficulty talking about what had happened but told her he had
had a lot of alcohol and was going to have a beer at Lujano’s
house but “passed out” on the couch; when he “awoke,” Lujano
was penetrating him. She testified Marco’s examination was
consistent with his report. The parties stipulated that sperm
found on Marco’s anal swab matched Lujano’s DNA profile.




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      Lujano did not testify and called no witnesses. The parties
stipulated to admission of two defense exhibits, which were
toxicology reports indicating that both Lujano and Marco had
ingested alcohol and methamphetamine.
      The jury found Lujano guilty of sodomy of an intoxicated
person (§ 286, subd. (i); count 2) and not guilty of sodomy of an
unconscious person (§ 286, subd. (f); count 1). The trial court
sentenced Lujano to the midterm of six years in state prison.

                          DISCUSSION

A.     Governing Legal Principles and Lujano’s Contention
       “In criminal cases, a trial court must instruct sua sponte on
the ‘“‘general principles of law relevant to the issues raised by the
evidence,’”’ that is, those principles ‘“‘closely and openly
connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’ [Citation.]
By contrast, ‘“pinpoint”’ instructions ‘relate particular facts to a
legal issue in the case or “pinpoint” the crux of a defendant’s case,
such as mistaken identification or alibi. [Citation.] They are
required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given sua
sponte.’ [Citation.]” (People v. Hill (2015) 236 Cal.App.4th 1100,
1118-1119.) In addition, the court “‘need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates
other instructions [citation], or is not supported by substantial
evidence [citation].’ [Citations.]” (People v. Hartsch (2010) 49
Cal.4th 472, 500; see also People v. Williams (2016) 1 Cal.5th
1166, 1193; People v. Bolden (2002) 29 Cal.4th 515, 558.)




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       Here, the trial court used CALCRIM No. 1032 to instruct
the jury on the elements of sodomy of an intoxicated person. As
given in this case, the instruction defined the three elements of
the crime as follows: “1. The defendant committed an act of
sodomy with another person; [¶] 2. The effect of an intoxicating
and/or controlled substance prevented the other person from
resisting; [¶] AND [¶] 3. The defendant knew or reasonably
should have known that the effect of that substance prevented
the other person from resisting.” (See CALCRIM No. 1032.) The
instruction went on to explain that “[a] person is prevented from
resisting if he or she is so intoxicated that he or she cannot give
legal consent. In order to give legal consent, a person must be
able to exercise reasonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the
act, its moral character, and probable consequences. Legal
consent is consent given freely and voluntarily by someone who
knows the nature of the act involved.” (See ibid.)
       Lujano requested that the court also give the jury the
following optional language from CALCRIM No. 1032: “The
defendant is not guilty of this crime if he actually and reasonably
believed that the other person was capable of consenting to the
act, even if that belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe that the other person was
capable of consenting. If the People have not met this burden,
you must find the defendant not guilty.” (CALCRIM No. 1032.)
The court denied the request on the ground that there was
insufficient evidence to support it.
       Lujano contends that the trial court erred by refusing to
give the optional language he requested. We conclude that the




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court did not err, because the optional language is a pinpoint
instruction that merely duplicates other parts of the instruction
given, namely, the third element and the definition of “prevented
from resisting.” In addition, even if omission of the optional
language was erroneous, it was not prejudicial.

B.     CALCRIM No. 1032 Correctly Defines “Prevented From
       Resisting”
       Before addressing Lujano’s claim of error, we must first
address the instruction’s definition of “prevented from resisting,”
because it is necessary to our analysis and there are no published
cases on it.
       The crime of sodomy of an intoxicated person is defined by
section 286, subdivision (i), which provides that “[a]ny person
who commits an act of sodomy, where the victim is prevented
from resisting by an intoxicating or anesthetic substance, or any
controlled substance, and this condition was known, or
reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for three, six, or
eight years.”
       The optional language requested by Lujano—that an actual
and reasonable belief that the victim had the capacity to consent
is a defense—relates to the statutory requirements that (1) the
victim was prevented from resisting by the intoxicating (or other
prohibited) substance, and (2) the perpetrator knew or reasonably
should have known of that condition. There is no case law
interpreting either requirement for purposes of section 286,
subdivision (i).
       There are, however, cases interpreting section 261,
subdivision (a)(3), which defines rape of an intoxicated person in




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terms identical to those used to define sodomy of an intoxicated
person in section 286, subdivision (i). In particular, for the crime
of rape of an intoxicated person, the statutory requirement that
the victim was prevented from resisting by the intoxicating or
anesthetic or controlled substance has been interpreted to mean
that the victim was “not capable of giving legal consent because
of intoxication.” (People v. Giardino (2000) 82 Cal.App.4th 454,
462 (Giardino); see People v. Braslaw (2015) 233 Cal.App.4th
1239, 1244-1245; People v. Smith (2010) 189 Cal.App.4th 1263,
1270-1271.) Giardino based its analysis on California Supreme
Court case law concerning rape of a mentally incompetent
person, as well as Court of Appeal cases dealing with substantial
evidence challenges to convictions for rape of an intoxicated
person. (Giardino, at pp. 461-464.)
       We agree with and need not repeat the thorough analysis
in Giardino, and we conclude that it applies equally to the
identical language in section 286, subdivision (i). Accordingly, we
hold that for purposes of section 286, subdivision (i), the words
“the victim is prevented from resisting by an intoxicating or
anesthetic substance, or any controlled substance” mean that the
victim is not capable of giving legal consent because of
intoxication from the substance or substances in question.
CALCRIM No. 1032 correctly explains that meaning.

C.    The Optional Language Is a Pinpoint Instruction That
      Merely Duplicates Other Parts of the Instruction
      The optional language that Lujano requested restates the
third element of the offense by (1) reformulating that element in
the negative and (2) incorporating the definition of “prevented
from resisting.” That is, instead of saying that the defendant can




                                 8
be guilty only if he knew or reasonably should have known that
the victim was prevented from resisting, the optional language
says that the defendant is not guilty if he actually and reasonably
believed that the victim was capable of consenting.
       The optional language thus does no more than pinpoint a
key component of the defendant’s case by restating other parts of
the instruction that are required. The court has no sua sponte
duty to use the language that Lujano requested, even if it is
supported by substantial evidence, because the issues addressed
are fully covered by the instructions on the third element and the
definition of “prevented from resisting.” And even when the
optional language is not only supported by substantial evidence
but also requested by the defendant, the court may decline to give
it because it “‘merely duplicates other instructions.’” (People v.
Hartsch, supra, 49 Cal.4th at p. 500; People v. Williams, supra, 1
Cal.5th at p. 1193; People v. Bolden, supra, 29 Cal.4th at p. 558.)
The trial court therefore did not err by denying Lujano’s request.
       The parties’ arguments on appeal generally miss these
points because they incorrectly describe the optional language as
an instruction on the “Mayberry defense,” referring to People v.
Mayberry (1975) 15 Cal.3d 143. In Mayberry, the Supreme Court
explained that “there is no rape if a female of sufficient capacity
consents to sexual intercourse.” (Id. at p. 154.) In addition,
because “one is incapable of committing a crime who commits an
act under a mistake of fact disproving any criminal intent” (ibid.),
the Supreme Court went on to hold “that a defendant’s
reasonable and good faith mistake of fact regarding a person’s
consent to sexual intercourse is a defense to rape.” (People v.
Williams (1992) 4 Cal.4th 354, 360; see Mayberry, at p. 155.)
Thus, even if the victim did not in fact consent, if the defendant




                                 9
actually and reasonably but mistakenly believed she consented,
then the defendant is not guilty. (See generally Williams, at
pp. 360-362.)
       The Mayberry defense—that the defendant actually and
reasonably but mistakenly believed that the victim consented—is
a defense to a charge of forcible rape. (Giardino, supra, 82
Cal.App.4th at p. 471.) Moreover, because the victim’s lack of
consent is an element of that offense but the defendant’s belief in
the absence of consent is not an element, the Mayberry defense is
an affirmative defense, not merely the negation of an element of
the offense. (See People v. Williams, supra, 4 Cal.4th at p. 361
[“The defendant bears the burden of raising a reasonable doubt
as to whether he harbored a reasonable and good faith but
mistaken belief of consent,” but “‘only if the prosecution’s proof
did not itself raise such a doubt’”].) Accordingly, if the defense is
supported by substantial evidence, then the court has a sua
sponte duty to instruct on it. (See, e.g., People v. Dominguez
(2006) 39 Cal.4th 1141, 1147-1148; Williams, at p. 362
[explaining that the duty to instruct on the defense arises 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”].)
       The situation with sodomy (or rape) of an intoxicated
person is entirely different. First, a charge of sodomy (or rape) of
an intoxicated person is premised not on the victim’s lack of
actual consent but rather on the victim’s lack of capacity to give
legal consent. (See Giardino, supra, 82 Cal.App.4th at p. 471
[“Because . . . the actual consent of the victim is not a defense to a
charge of rape by intoxication, a belief in the existence of such
actual consent is irrelevant”].) Second, although it is not an




                                 10
element of forcible rape that the defendant believed the victim
did not consent, it is an element of sodomy (or rape) by
intoxication that the defendant knew or reasonably should have
known the victim was incapable of consenting. This difference in
the elements of the crimes derives from their statutory
definitions and is correctly reflected in their respective CALCRIM
instructions. (See §§ 261, subds. (a)(2)-(a)(3), 262, subds. (a)(1)-
(a)(2), 286, subd. (i); CALCRIM Nos. 1000, 1002, 1032.)
       Thus, unlike the Mayberry defense, the defense at issue
here—that the defendant actually and reasonably believed that
the victim was capable of giving legal consent—is merely the
negation of an element of the offense. The court thus does not
have a sua sponte duty to give a separate instruction on the
defense, because the issues are already covered by the required
instructions on the third element of the offense and the definition
of “prevented from resisting.” 2 And, as we have already
explained, the court has no duty to give the optional language
concerning the defense even when requested.
       For all of these reasons, we conclude that the trial court did
not err by not giving the optional language requested by Lujano.




2     The bench notes for CALCRIM Nos. 1002 and 1032
incorrectly state that “[t]he court has a sua sponte duty to
instruct on the defense of reasonable belief the person was
capable of consent if there is sufficient evidence to support the
defense,” citing Giardino. Giardino does not so hold. Rather, it
recognized the existence of the defense. (Giardino, supra, 82
Cal.App.4th at p. 472.) It did not address the issue of whether
there is a sua sponte duty to give a separate instruction on the
defense.




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D.     Failure To Give the Optional Language Was Harmless
       Even if the trial court did err by failing to give the optional
language, we still must affirm the judgment because the error
was harmless under any standard. (See Chapman v. California
(1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [federal
constitutional error is reversible unless it was harmless beyond a
reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 837
[state law error is reversible if it is reasonably probable that the
defendant would have obtained a more favorable result without
the error].)
       Omission of an instruction is harmless beyond a reasonable
doubt if “‘the factual question posed by the omitted instruction
was necessarily resolved adversely to the defendant under other,
properly given instructions.’” (People v. Wright (2006) 40 Cal.4th
81, 98.)
       Because the jury found Lujano guilty of sodomy of an
intoxicated person, the jury necessarily found, under the
instructions given, that Lujano knew or reasonably should have
known that Marco was so intoxicated that he lacked the capacity
to give legal consent. Therefore, the jury “necessarily found any
belief by defendant that the victim had capacity to consent was
unreasonable.” (People v. Braslaw, supra, 233 Cal.App.4th at
p. 1246 [addressing the same issue in a case of rape by
intoxication]; People v. Ramirez (2006) 143 Cal.App.4th 1512,
1529 [“A belief that the victim was able to resist could not be
reasonable if the perpetrator ‘reasonably should have known’ that
the victim was unable to resist”].)
       Because the factual question posed by the omitted language
on reasonable belief in the capacity to consent was necessarily
resolved against Lujano under other, properly given parts of




                                 12
CALCRIM No. 1032, the omission of the requested language was
harmless under any standard. (People v. Braslaw, supra, 233
Cal.App.4th at pp. 1246-1247; People v. Ramirez, supra, 143
Cal.App.4th at p. 1529.)

                         DISPOSITION

      The judgment is affirmed.


                                           MENETREZ, J. *


We concur:



             PERLUSS, P. J.



             ZELON, J.




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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