Filed 2/24/15 P. v. Turner CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067260
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12907807)
                   v.

DONALD MICHAEL TURNER, JR.,                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
         Matthew H. Wilson, under appointment by the Court of Appeal, Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Henry
J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Cornell, J. and Franson, J.
       A jury convicted appellant Donald Michael Turner, Jr., of inflicting corporal
injury on a cohabitant (count 1/Pen. Code, § 273.5, subd. (a));1 forcible oral copulation
(count 2/§ 288a, subd. (c)(2)); dissuading a witness (count 3/§ 136.1, subd. (b)(1)); and
assault with intent to commit rape (count 4/§ 220), a lesser included offense of the
forcible rape (§ 261, subd. (a)(2)) charged in count 4.
       On May 10, 2013, the court sentenced Turner to an aggregate 16-year prison term:
the upper term of eight years on his forcible oral copulation conviction; a consecutive
upper term of six years on his assault with intent to commit rape conviction; a concurrent
four-year term on Turner’s inflicting corporal injury on a cohabitant conviction; and a
consecutive middle term of two years on his dissuading a victim conviction.
       On appeal, Turner contends his conviction for forcible oral copulation should be
reversed because the trial court committed instructional error. We affirm.
                                          FACTS
       Sandra R. testified at trial that she met Turner in March 2011, and that they lived
together from June 2011 through September 2011.
       On September 27, 2011, Turner was not home when Sandra arrived home from
work at approximately 5:10 p.m. Sandra was not feeling well so at approximately
5:45 p.m. she changed into a slip and a T-shirt and went to sleep in her bedroom. Later
that evening, she heard Turner’s cell phone say it was 8:05 p.m. and she heard Turner
talking to someone on the phone, saying he was going to go out and get drunk so she
stayed in bed. The next thing Sandra remembered was being woken up when Turner
came into the bedroom, pulled off her blankets, and attempted to take off her slip. Turner
then told her, “[T]ake off your fucking clothes, bitch.… [T]ake off your T-shirt.” Sandra
replied for him to give her a minute. After telling her to spread her legs, Turner put some
saliva on his hand and then on her vagina. Sandra was scared because Turner woke her


1      Unless otherwise indicated, all further statutory references are to the Penal Code.


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up and she did not understand why he was upset with her and was calling her “a fucking
bitch.” She took off her T-shirt because he told her to.
       Turner got on top of Sandra and began having intercourse with her but he was
hurting her so she told him to stop. Turner, however, continued to have intercourse with
her, calling her names, and saying that she was cheating on him. Turner also complained
that she was not home when he got there earlier and that she did not smell like him.
       Sandra continued telling Turner to stop, that he was hurting her, but he did not
stop. She also tried to fight off Turner by pushing on his chest with her arms. This
caused Turner to get madder and he threw Sandra’s legs against the wall, causing her to
cut her foot on a metal picture frame that was hanging there. At that point, Sandra
believed that Turner, who kept yelling and calling her names, was going to kill her.
Turner then pulled Sandra down, sat on her stomach and began punching her in the face
as Sandra used her arms to protect herself. Turner began asking why she had changed
her Facebook status to single. He also told her that she did not love him anymore, that
she was cheating on him, and that she might as well just kill him. After Turner struck
Sandra so hard that she “saw stars,” she decided to agree with whatever he said.
       Sometime after he stopped having intercourse with her, Turner told Sandra,
“[Y]ou don’t know who the fuck you’re laying next to, I could take you to the brink of
death and bring you back.” Turner also told Sandra that she should just slit his throat.
He then went to the kitchen, got a knife from a drawer, and told her he was sharpening it.
This allowed Sandra to get a cell phone from under her pillow but as soon as she finished
dialing 911, Turner walked back into the bedroom and took the phone from her. As
Turner got on the bed, the knife fell on the bed next to Sandra. He then told her, “[A]re
you calling the fucking police, I’m not going to go to prison for something this stupid.”
As Turner began looking through Sandra’s emails, texts, and Facebook page and asking
her about them, Sandra noticed the knife next to her and threw it to the ground. Even




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though she was scared and believed Turner was going kill her, Sandra managed to act
calm.
        Eventually, Turner laid down next to Sandra. Turner then asked Sandra to get his
cigarettes from his motorcycle, which was in the garage, and she went unclothed and got
them. As Turner smoked a cigarette, he told Sandra to place her head on his chest and
she complied because she was scared. Sandra also told him three or four times that she
was not upset and that everything was okay. Turner then told Sandra that he wanted her
to orally copulate him. Sandra told Turner that she really did not want to because her
head hurt. Turner replied, “[W]ell, tell your head to stop hurting.” Turner pushed her
head “down there” and Sandra complied because she believed he was going to hit her if
she did not.2 Afterwards, Sandra laid next to Turner and he told her that she had to “fix
this” because she made him love her, that he forgave her for cheating on him, and that he
wanted her to love him out of respect, not fear. Sandra responded by telling Turner what
she believed he wanted to hear because she was afraid he would kill her if she did not.
Turner then noticed that Sandra’s foot was cut and asked her if she wanted to go to the
hospital. Sandra told him that she did not want to go because she thought Turner was
trying to trick her. Turner went to sleep and Sandra stayed awake thinking of how she
could escape.
        The next morning when Turner woke up, he asked Sandra if she was going to
work and she replied that she was. After Turner left for work, Sandra called her alarm
company to change the alarm code. On the advice of her uncle, Sandra called the police
and had them meet her at a friend’s house.
        Fresno Police Officer Christopher Cooper testified that he responded to the call
and interviewed Sandra. Sandra was shaking and crying while she provided him with a
statement. Officer Cooper noticed that Sandra had a cut on one of her big toes, a red


2       Sandra had orally copulated Turner on previous occasions.


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mark on the left side of her face by her temple, bruising on her right arm, and that she
complained of pain to her neck, chest, and buttocks.
       Officer Cooper further testified that Turner was arrested that day and interviewed
at the police department. Turner admitted that the victim orally copulated him before
they went to bed and that they had “a disturbance” over Facebook because she had
changed her status to single and he was afraid she was seeing other men. He also stated
that he got the knife and gave it to Sandra so she could protect herself from him because
she was scared of him and that he told Sandra she could stab him with it. Turner denied
raping Sandra or throwing her against the wall.
       The defense did not present any witnesses.
                                      DISCUSSION
       During a conference on jury instructions, the trial court refused the defense’s
request to charge the jury on the reasonable though mistaken belief in consent defense
with respect to the oral copulation charge, i.e., that Turner could not be found guilty of
that charge if he honestly and reasonably believed the victim consented to the act of oral
copulation. (See People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).)
       Turner contends the Mayberry instruction should have been given because the
following circumstances provided substantial evidence of the victim’s equivocal conduct
that justified charging the jury with this instruction: (1) the victim was no longer
resisting his advances when the oral copulation occurred; (2) Turner was no longer angry
at that time and his behavior seemed more “‘loving’”; (3) the victim made every effort to
assure him that she loved him and that everything was alright; and (4) she appeared to
consent to an act that she had previously performed during their relationship. Thus,
according to Turner, the court prejudicially erred by its refusal to charge the jury with the
Mayberry instruction with respect to the oral copulation offense. We disagree.

              “In People v. Mayberry, supra, 15 Cal.3d 143, [the Supreme Court]
       held that a defendant’s reasonable and good faith mistake of fact regarding
       a person’s consent to sexual intercourse is a defense to rape. [Citation.]

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       Mayberry is predicated on the notion that under section 26, reasonable
       mistake of fact regarding consent is incompatible with the existence of
       wrongful intent. [Citations.]

              “The Mayberry 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.] [¶] … [¶]

               “In Mayberry, we held that a requested instruction regarding mistake
       of fact was required when ‘some evidence “deserving of ... consideration”’
       existed to support that contention. [Citation.] In People v. Flannel (1979)
       25 Cal.3d 668, 684-685, ... we further explained that a trial court must give
       a requested instruction only when the defense is supported by ‘substantial
       evidence,’ that is, evidence sufficient to ‘deserve consideration by the jury,’
       not ‘whenever any evidence is presented, no matter how weak.’ Thus, in
       determining whether the Mayberry instruction should be given, the trial
       court must examine whether there is substantial evidence that the defendant
       honestly and reasonably, but mistakenly, believed that the victim consented
       to sexual intercourse.” (People v. Williams (1992) 4 Cal.4th 354, 360-361,
       fns. omitted.)

       “To warrant a court’s giving [the Mayberry instruction], the record must
       contain evidence, whether direct or circumstantial, of the defendant’s state
       of mind at the time the offense was committed.” (People v. Maury (2003)
       30 Cal.4th 342, 425.)
       Here, although the prosecution adduced evidence that during a police interview
Turner admitted that the victim orally copulated him, there was no evidence presented
that Turner told the interviewing officer that he believed the victim voluntarily consented
to this sexual act. Further, since Turner did not testify, there is no evidence in the record
that Turner believed that the victim voluntarily consented to orally copulate him, let alone


                                              6
that any of the circumstances he cites were the basis for Turner believing that the victim
consented. Thus, the court was warranted in refusing the Mayberry instruction based on
the absence of this evidence alone.
       Additionally, when Turner ordered the victim to orally copulate him, she initially
refused. Nevertheless, when he insisted she do so, he had to push her head down in order
to get the victim to comply, which she did out of fear that Turner would again assault her
if she did not. Further, prior to ordering the victim to orally copulate him, Turner had
already forcibly raped the victim, punched her in the face numerous times, and thrown
her legs against a wall. He had also verbally abused and threatened the victim, prevented
her from calling 911, taken her cell phone, and sharpened a knife in the kitchen and
placed it next to her on the bed. Given these circumstances, it should have been patently
clear to Turner that the victim was acting under fear and duress in following any of his
instructions. Thus, there was nothing equivocal about the victim’s conduct in complying
with Turner’s directive to orally copulate him or any basis for Turner to harbor an honest
belief that she voluntarily consented to perform any sex act on him. In any event, even if
the record contained substantial evidence that supported a conclusion that Turner
honestly believed the victim consented to orally copulate him, given the circumstances
noted above, his belief would not have been formed under circumstances that society
would tolerate as reasonable. Accordingly, we reject Turner’s contention that the court
erred by its failure to charge the jury with the Mayberry instruction.3
                                      DISPOSITION
       The judgment is affirmed.


3       We also note that of the four circumstances Turner cites in support of his claim
that the victim engaged in equivocal conduct prior to orally copulating him, one of them
is inapplicable. That Turner appeared less angry and that his behavior seemed more
loving did not make the victim’s conduct more equivocal for purposes of determining
whether the victim’s conduct might have led him to honestly, but mistakenly, believe that
she consented to orally copulating him.


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