Filed 9/9/13 P. v. Moncrea CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

THE PEOPLE,                                                          B238470

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA088032)
         v.
                                                                   ORDER MODIFYING OPINION
ANTHONY DAWAYNE MONCREA,                                           AND DENYING PETITION FOR
                                                                   REHEARING
         Defendant and Appellant.
                                                                         [No change in the judgment]

         THE COURT:
         It is ordered that the opinion filed in the above-captioned matter on August 13,
2013, be modified as follows:
         1. On page 17, line 3 of the last paragraph, the following sentences shall be
deleted:
         “He admitted picking her up and sitting her on the sink after “play[ing]” with her
buttocks. He committed no further sexual touching after placing her on the sink.”


         This modification effects no change in the judgment.

         The petition for rehearing filed by Respondent on August 28, 2013, is denied.



_______________________________________________________________________
      BIGELOW, P. J.             RUBIN, J.             FLIER, J.
Filed 8/13/13 P. v. Moncrea CA2/8 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B238470

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA088032)
         v.

ANTHONY DAWAYNE MONCREA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Joan Comparet-Cassani, Judge. Reversed.

         G. Martin Velez, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.


                                _____________________________________
       A jury convicted Anthony Dawayne Moncrea of sexual battery by restraint.
(Pen. Code, § 243.4, subd. (a).) On appeal, Moncrea argues the trial court erred in
admitting a prior act of sexual assault pursuant to Evidence Code section 1108,1 failing to
instruct in accord with People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), and failing
to instruct on the lesser included offense of misdemeanor sexual battery. We find the
trial court prejudicially erred in failing to instruct on the lesser included offense and
reverse.
                                           FACTS
       In September 2010, D.V. (D.) and Moncrea were both living at the Substance
Abuse Foundation in Long Beach, California. D. had known Moncrea for about one
month, and considered him an acquaintance. D. was a “really friendly,” “huggie-type”
person who was energetic and “nice to everybody.” She was no friendlier with Moncrea
than she was with others at the center. She did not know that he liked her.
       On the day of the incident, Moncrea told D. that he had something to show her but
couldn‟t show her at their present location because there were others around. They
arranged to meet in the “medical room” after D. took her anti-depressant and anti-
psychotic medications. When D. arrived at the medical room, Moncrea was already
waiting there. No one else was around the medical room at this time.
       Upon D.‟s arrival, Moncrea put his arms out and she gave him a hug. Moncrea
then grabbed D.‟s hips and motioned for her to turn around. D. described this interaction
as playful and that Moncrea was not strong-arming her or holding her in place. Moncrea
then tried to bend D. over and pull her pants down by placing two index fingers in the
waistband of her pants. D. took this to mean that Moncrea was trying to have sex with
her, and she pulled up her pants, and told him “No.” She moved away from Moncrea to
leave but was unable to open the door because Moncrea grabbed her by the hips and
pulled her back. D. no longer felt that this interaction was playful when Moncrea did not
let her go.


1
       All further section references are to the Evidence Code except as otherwise noted.

                                               2
       Moncrea proceeded to try to bend her over again, and she continued to try to pull
away. Moncrea picked her up in a bear hug and carried her through a hallway into a
bathroom. During this time, D. tried to get away from Moncrea by squirming, pushing
away, and asking him to let her go. However, she was unable to get away because of
Moncrea‟s comparative size and strength. At the time of the incident, D. and Moncrea
weighed approximately 100 and 200 pounds, respectively.
       After they entered the bathroom, Moncrea set D. down, turned her around by the
sink, and pulled her pants down below her buttocks. With D. facing the sink, Moncrea
took his penis out of his shorts and touched it between her “butt cheeks.” After Moncrea
touched D. with his penis, she was able to pull away by moving forward and pulling up
her pants because Moncrea “wasn‟t really using much force.” D. turned around and told
Moncrea, “No. Stop. I can‟t do this. I have a boyfriend.”
       Moncrea then got on his knees and indicated that he wanted to lick her vagina. D.
told him to stop and mentioned that he was in the perfect position for her to knee him in
the face. Moncrea stood up, picked D. up, sat her on the sink, and asked, “Why?” D.
answered, “I just can‟t. I have a boyfriend.” Moncrea asked D. if they would be able to
“do it” if she didn‟t have a boyfriend. D. said, “I don‟t know; maybe.” D. said “no”
many times throughout the incident. She ran away after Moncrea carried her back into
the hallway and set her down. The next day, D. had a friend report the incident to the
police because the center had not reported it after she had told them about the incident.
       Bobby Rendon, a resident of the Substance Abuse Foundation, was in the
courtyard on the day of the incident and heard D. asking for help. Rendon turned around
and saw Moncrea running away. He heard D. say somebody had tried to rape her. She
was crying and appeared startled and scared.
       Long Beach City Detective Hector Nieves investigated the incident. Detective
Nieves spoke to Aaron Dutcher, who was employed at the Substance Abuse Foundation.
Dutcher said he was near the medical office that day and saw Moncrea and D. enter the
building. He heard the loud voice of a female seeming to need help. Dutcher later saw



                                             3
D. by the gazebo. She was upset and crying. Dutcher overheard D. say Moncrea tried to
rape her.2
       In July 2011, the People filed an information charging Moncrea with felony sexual
battery by restraint. (Pen. Code, § 243.4, subd. (a).) The charge was tried to a jury in
December 2011. The prosecution‟s evidence established the facts summarized above.
In addition, the trial court allowed the prosecution to admit evidence of a prior uncharged
offense by Moncrea to show propensity under section 1108. The facts of the prior
offense are set forth more fully below in discussing Moncrea‟s challenge to the evidence.
Moncrea testified in his own behalf. His testimony is recounted in more detail below in
addressing his claims on appeal; he largely testified that D. consented to his actions. In
rebuttal, Detective Nieves testified he interviewed Moncrea; he admitted D.‟s story was
accurate, except he claimed D. consented. Jacqueline Harper, an employee of the
Substance Abuse Foundation, said she did not call the police even though she heard about
the incident from both D. and Moncrea. Harper said she did not call the police because
she was trying to quell racial tensions in the facility and, in part, because D. did not ask
her to do so.
       Moncrea was found guilty as charged. The trial court sentenced him to state
prison for the midterm of three years.
                                       DISCUSSION
I.     The Evidence of the Uncharged Offense
       Moncrea contends his conviction for sexual battery by restraint must be reversed
because the court abused its discretion in admitting evidence of an uncharged sex offense.
We find the trial court abused its discretion by failing to sanitize portions of the evidence
of the prior act, but find the error harmless.




2
      At trial, Rendon claimed he had no recollection of his conversation with Detective
Nieves or any conversation about Moncrea and D.

                                                 4
       The Governing Law
       Section 1101 states in part: “(a) Except as provided in this section and in Sections
1102, 1103, 1108, and 1109, evidence of a person‟s character or a trait of his or her
character . . . is inadmissible when offered to prove his or her conduct on a specified
occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . . ) other than his or her disposition to commit such an act.”
Section 1108, subdivision (a) provides: “In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant‟s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.”
       Section 1108 is intended in sex offense cases to relax the evidence restraints that
section 1101, subdivision (a), imposes, to assure that the trier of fact may be made aware
of the defendant‟s other sex offenses in evaluating the credibility of the charged offense.
“In this regard, section 1108 implicitly abrogates prior decisions of this court indicating
that „propensity‟ evidence is per se unduly prejudicial to the defense. (See, e.g.,
People v. Alcala (1984) 36 Cal.3d 604, 630-631.)” (People v. Falsetta (1999) 21 Cal.4th
903, 911.) As our Supreme Court stated in People v. Villatoro (2012) 54 Cal.4th 1152:
“[T]he clear purpose of section 1108 is to permit the jury‟s consideration of evidence of a
defendant‟s propensity to commit sexual offenses. „The propensity to commit sexual
offenses is not a common attribute among the general public. Therefore, evidence that a
particular defendant has such a propensity is especially probative and should be
considered by the trier of fact when determining the credibility of a victim‟s testimony.‟
[Citations.]” (Id. at p. 1164.)
       We examine the admission of uncharged sex offenses evidence under section 352.
(§ 1108, subd. (a); People v. Loy (2011) 52 Cal.4th 46, 63; People v. Reliford (2003) 29
Cal.4th 1007, 1012-1013.) Section 352 states: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its


                                              5
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” Our review of a
trial court‟s decision under section 352 is for an abuse of discretion. (People v. Avila
(2006) 38 Cal.4th 491, 578; People v. Cole (2004) 33 Cal.4th 1158, 1195.) “A court
abuses its discretion when its rulings fall „outside the bounds of reason.‟” (People v.
Ochoa (1998) 19 Cal.4th 353, 408, quoting People v. DeSantis (1992) 2 Cal.4th 1198,
1226; and see also People v. Waidla (2000) 22 Cal.4th 690, 714 [accord]; People v.
Fuiava (2012) 53 Cal.4th 622, 663.) “A trial court‟s exercise of discretion under section
352 will be upheld on appeal unless the court abused its discretion, that is, unless it
exercised its discretion in an arbitrary, capricious, or patently absurd manner. (People v.
Williams (2008) 43 Cal.4th 584, 634–635; [People v.] Rodrigues [(1994)] 8 Cal.4th
[1060,] 1124, 1125.)” (People v. Thomas (2012) 53 Cal.4th 771, 806.)
       In People v. Harris (1998) 60 Cal.App.4th 727, 737-741 (Harris), the Court of
Appeal for the Third Appellate District set forth five factors to be considered in making
the sections 1108 and 352 determination. They are the: the inflammatory nature of the
uncharged acts evidence; the probability of confusing the jury; the remoteness in time of
the uncharged act or acts; the consumption of time to introduce the evidence; and the
probative value of the evidence. (See also People v. Hernandez (2011) 200 Cal.App.4th
953, 965-966; People v. Branch (2001) 91 Cal.App.4th 274, 282.) Similarly, in People v.
Falsetta, supra, 21 Cal.4th 903, our Supreme Court held that in ruling on the
admissibility of evidence under sections 1108 and 352: “[Trial courts] must engage in a
careful weighing process . . . . Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its nature, relevance, and
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the



                                              6
defendant‟s other sex offense, or excluding irrelevant though inflammatory details
surrounding the offense. [Citations.]” (Id. at pp. 916-917.)
      The Evidence
      The facts surrounding Moncrea‟s prior sex offense, which occurred four years
before the offense charged in his current case, were as follows: Moncrea was a family
friend of Alexis. At the time of the incident, Alexis and Moncrea were nine and fourteen
years old, respectively. Alexis was playing at her house near her siblings. Moncrea
pulled Alexis into her brother‟s room, pushed her face down on a mattress on the floor,
and laid on top of her. Alexis yelled, “Get off of me,” and Moncrea dragged Alexis
upstairs to her room. Moncrea then pulled down Alexis‟s underwear and “skort” to her
ankles. Moncrea punched Alexis in the stomach in order to pull her pants down.
      Moncrea approached Alexis from behind and went “up and down” on her, and put
his penis in her anus. Alexis began to yell because of the pain, and Moncrea covered her
mouth. Alexis began to kick Moncrea, and he told her to stop or it would take longer.
Alexis pushed Moncrea off her, pulled her pants up, and ran downstairs.
      Moncrea chased after Alexis and stopped her from leaving by slamming the
bedroom door and locking it. Moncrea had a large kitchen knife and chased after Alexis,
who was going to tell her brother what had happened. Moncrea told Alexis that if she
told anyone what happened he would cut her hands off.
      Los Angeles Sheriff‟s Department Sergeant Doug Kimura interviewed Moncrea
about the events with Alexis. Moncrea said he was playing with Alexis when his penis
fell out of his shorts. He was “horny” and touched Alexis‟s buttocks, but only for a few
seconds. He was not certain if her pants were on. Moncrea rubbed Alexis‟ breasts.
He admitted covering Alexis‟ mouth with his hand, punching her in the stomach and
having a knife. However, he said he only jokingly threatened to cut off Alexis‟ pinky.
      At trial in his current case, Moncrea gave a slightly different version of the event.
He said he was playing with Alexis and became aroused. He admitted taking her pants
down against her will, but said his penis did not enter her anus. Moncrea said he
masturbated behind Alexis while she bent over. He admitted he threatened Alexis with a


                                             7
knife, and punched her but said he never cut her. Moncrea acknowledged he victimized
Alexis, and that it was a “very wrong thing to do.” He was sentenced for the incident,
spent time in placement and went to counseling afterward. He testified: “I paid my
dues . . . to her . . . . I went to counseling and did everything I had to do in the situation.”
       After Alexis‟s testimony, the court instructed the jury: “Evidence has been
introduced for the purpose of showing that the defendant and this witness engaged in an
act of sodomy on an occasion other than the crime alleged in this case. If you believe this
evidence, you should consider it only for the limited purpose of tending to show the
disposition or intent of the defendant towards this other person. You must not consider
that evidence for any other purpose. It just goes to disposition or intent.”
       Analysis
       Moncrea argues the evidence of the Alexis incident should have been excluded
because it was “substantially more inflammatory” than the case being tried involving D.
Moncrea claims admission of the evidence was prejudicial because the Alexis incident
involved violent, sexual acts toward a nine-year-old, including punching and a threat of
violence with a knife. We agree in part.
       The Alexis incident was similar to the incident involving D. Both victims were
vulnerable – Alexis was young and D. was in a substance abuse program, and taking anti-
depressant and anti-psychotic medicine. Both victims were acquaintances of Moncrea,
both lived in the same place as Moncrea, both victims were carried by Moncrea to
secluded areas, and there was evidence that force was used to effectuate the assault.
Most significantly, both incidents involved attempts to complete acts of sex in the area of
the buttocks or anus of the victims. Thus, the trial court‟s decision not to exclude all
evidence involving the Alexis incident was not an abuse of discretion.
       Moncrea argues his case is similar to Harris, supra, 60 Cal.App.4th 727. In
Harris, the prior sexual offense was not similar to the charged offenses and was far more
prejudicial than in this case, but it still helps guide our analysis. In Harris, the Court of
Appeal reversed the trial court‟s ruling admitting evidence of a prior offense on the basis
that the defendant's prior crimes were “inflammatory in the extreme.” (Id. at p. 738,


                                               8
italics added.) As the court described the charged incident in Harris: “[A]t worst
defendant licked and fondled an incapacitated woman and a former sexual partner, both
of whom were thereafter on speaking terms with him.” (Ibid.) In the uncharged incident:
“[The defendant] entered [the victim‟s apartment] at night while she was sleeping, beat
her unconscious and used a sharp instrument to rip through the muscles from her vagina
to her rectum, then stabbed her in the chest with an ice pick, leaving a portion of the pick
inside her. Police found her beaten unconscious on the floor, bleeding heavily from the
vaginal area and bleeding from the mouth and nose. Defendant was found hiding nearby
with „blood on his hands, blood on his clothes, blood on his thighs, blood on his penis.‟
When arrested he had a key ring on a finger and one of the keys fit the victim‟s apartment
door.” (Id. at p. 733.) Additionally, the jury was not informed whether the defendant had
been punished for the prior offense, leaving it with a distorted version of the prior case
that caused the jury to be confused and speculate as to the outcome of that case. (Id. at
pp. 738-739.) The appellate court reversed, finding prejudicial error. (Id. at p. 741.)
       Unlike in Harris, in which the two cases were too different to serve a probative
purpose, here Moncrea‟s acts toward Alexis and D. were sufficiently similar to show
propensity under section 1108. In Harris the jury was left to speculate as to the outcome
of the prior offense; here the jury had adequate knowledge of the outcome of the Alexis
incident because Moncrea testified that he had “paid [his] dues . . . with respect [to] going
to jail” and going to counseling.
       But, like Harris, parts of the uncharged act involving Moncrea and Alexis were
highly prejudicial. In the uncharged offense, Moncrea procured a kitchen knife, used it to
cut Alexis on her knee, punched her in the stomach and threatened her with the knife
when she tried to tell her brother what happened. He then told Alexis that he would cut
off her hands if she told anyone about the incident. The evidence of these facts involved
in the Alexis incident could have been excluded from the testimony in Moncrea‟s current
case involving the incident with D., as has been sanctioned by the California Supreme
Court in People v. Lewis (2009) 46 Cal.4th 1255, 1285, footnote 18. The failure to do so



                                              9
was an abuse of discretion because the probative value of punch and knife-related facts
was substantially outweighed by the potential for inflaming the jurors.
       This brings us to the issue of prejudice. We find it was not reasonably probable
that a result more favorable to Moncrea would have been reached absent the error in
failing to limit the scope of the evidence concerning the Alexis incident. (See People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).) Moncrea argues that this error should be
judged under the standard of Chapman v. California (1967) 386 U.S. 18, 24, in which it
must be shown beyond a reasonable doubt that this error did not contribute to the verdict.
The only support Moncrea provides for this argument is a quote from Falsetta stating that
section 352 “provides a safeguard that strongly supports the constitutionality of section
1108.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.) We do not find this convincing as to
the standard of review vis-à-vis the evidentiary ruling at issue and errors of constitutional
magnitude. As a general rule, “[t]he „routine application of state evidentiary law does not
implicate [a] defendant‟s constitutional rights.‟” (People v. Hovarter (2008) 44 Cal.4th
983, 1010, quoting People v. Brown (2003) 31 Cal.4th 518, 545.) Rather, we find that
any such error should be judged by the Watson standard, which looks to see 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. Scheer (1998) 68 Cal.App.4th 1009,
1018-1019 [finding that “the erroneous admission of prior misconduct evidence does not
compel reversal unless a result more favorable to the defendant would have been
reasonably probable if such evidence were excluded”].)
       Applying this test, we find a result more favorable to Moncrea was not reasonably
probable had the punch and knife-related evidence of the Alexis incident been excluded
at the trial of Moncrea‟s offense involving D. Moncrea argues the jury felt compelled to
punish him for the Alexis incident because the jury was not provided any evidence
explaining how the Alexis incident was resolved. We disagree. The jury had sufficient
evidence to understand how the Alexis incident was resolved. Moncrea testified that he
had “paid [his] dues . . . with respect of going to jail,” and that he spent time in placement
for the incident. We find no support for Moncrea‟s speculation that the jury in his current


                                             10
case involving D. felt he needed additional punishment for his actions in the incident
involving Alexis. The trial court instructed the jury that they were to “consider [the
evidence of the Alexis incident] only for the limited purpose of tending to show the
disposition or intent of the defendant towards this other person” and that they “must not
consider that evidence for any other purpose.”
       Moncrea contends the Alexis evidence contributed to his conviction in his current
case because the evidence against him was otherwise too weak to convict him of sexual
battery by restraint. Moncrea points out that D. was flirtatious and playful with him prior
to the incident. Additionally, D. described the initial interaction as playful. Finally,
Moncrea stresses that D. told him that they would, “yes; probably” be able to “do it” if
she did not have a boyfriend. We find this argument unconvincing.
       As for Moncrea‟s interpretation of the incident as playful, playful does not equate
with an invitation to sexual conduct. When D. understood Moncrea‟s intentions were
sexual, she was no longer playful. Even Moncrea acknowledged that, as soon as he
attempted to pull down D.‟s pants, she moved away and said, “No.” As to Moncrea‟s
suggestion that D. expressed a willingness to have sex with him if she did not have a
boyfriend, the record shows D. used the comment about a boyfriend to deter Moncrea‟s
advances. In any event, her comments cannot be construed to be consent at that moment.
       Finally, this case did not boil down to a straightforward, he-said-she-said factual
dispute for the jury to decide. The jury had the benefit of the testimony of two people
who saw D. immediately after the incident. Rendon heard D. crying for help, and heard
her say someone tried to rape her. He noted she was startled, scared, and crying.
Dutcher saw Moncrea and D. enter the building and heard a loud female voice seeming to
need help. He too saw D. after the incident, upset and crying. He heard D. saying
Moncrea tried to rape her. Here, there was an immediate statement about rape heard by
two witnesses, although one (Dutcher) recanted at trial and said he could not remember.
We also consider it significant that Moncrea was seen fleeing the scene. This is not the
actions of a person who had consensual sex; flight from the scene of the crime is shows a
consciousness of guilt. In light of these corroborative facts, we are satisfied that the error


                                             11
in not sanitizing the evidence of the Alexis incident was not prejudicial. We cannot say
that a result more favorable to the Maurico would have followed had the prejudicial
portion of the prior acts been excluded.
II.    Mayberry Instruction
       Moncrea argues the trial court had a sua sponte duty to give an instruction
pursuant to the principles enunciated in the Mayberry case because Moncrea relied on a
mistake of fact defense. He argues his conviction should be reversed because the trial
court erred by not giving this instruction. We disagree.
       At trial, Moncrea testified that, after D. rejected his initial attempt to pull down her
pants, Moncrea turned her around, hugged her, and asked her to see her butt. D. appeared
to laugh, shrug her shoulders, and say “I don‟t know.” Moncrea asked D. to turn around
and touch her toes. D. did so voluntarily, and Moncrea then “play[ed] with her butt.”
Moncrea testified he did not carry D. to the bathroom; he said she walked there
voluntarily. After Moncrea asked whether they would be able to “do it” if she did not
have a boyfriend, she answered “Yes; Probably.” Moncrea did not carry D. out of the
bathroom into the hallway. Instead, she left the room on her own.
       Moncrea argues the Mayberry defense may be applied to the offense of sexual
battery. The People tell us that they are “not aware” of any case in which a court ruled
that the Mayberry defense applies to the offense of sexual battery. We assume without
deciding that Mayberry may be applied in a sexual battery case, but find the instruction
was not warranted under the facts of this case.
       A sua sponte duty to give a Mayberry defense instruction arises “„“only if it
appears that the defendant is relying on such a defense, or 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. Maury (2003) 30 Cal.4th 342, 424 (Maury),
quoting People v. Barton (1995) 12 Cal.4th 186, 195.) The 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.” (People v.
Williams, supra, 4 Cal.4th at p. 362, italics added.) Here, the trial court had no duty to


                                              12
give a Mayberry instruction because there was no evidence of equivocal conduct by D. to
allow Moncrea to reasonably believe that she consented to his sexual touching.
       In Mayberry, a defendant was charged with rape by means of force and threat,
kidnapping and other offenses. (Mayberry, supra, 15 Cal.3d at pp. 146-147.) At trial, the
prosecution presented evidence that the defendant compelled the victim to come to his
apartment and have sexual intercourse with him. (Id. at pp. 147-149.) The defendant
testified that the victim‟s conduct throughout the incident was voluntary. (Id. at p. 149.)
He requested a special instruction that directed the jury to acquit him of rape and
kidnapping if the jury had a reasonable doubt as to whether he “reasonably and genuinely
believed that [the victim] freely consented to her movement [to the apartment] and to
sexual intercourse with him.” (Id. at p. 153.) The trial court declined to so instruct the
jury. In ruling that this was error, our Supreme Court stated: “If a defendant entertains a
reasonable and bona fide belief that [the victim] voluntarily consented to accompany him
and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent
that is a prerequisite . . . to a conviction of either kidnapping [] or rape by means of force
or threat[].” (Id. at p. 155, italics added.)
       As our Supreme Court has subsequently explained: “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.]”
(People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted, italics added.)



                                                13
       Any “playful,” “flirtatious,” or “huggie-type” actions by D. towards Moncrea were
not equivocal conduct indicating consent under the objective element of Mayberry. A
hug is not equivocal conduct indicating consent to sexual activity. While Moncrea may
have interpreted D.‟s behavior to convey sexual interest, such a belief was not formed
under circumstances that may be tolerated as reasonable. Though the testimony of
Moncrea and D. varied in minor aspects as to the initial nature of their encounter, even
Moncrea testified that, when he tried to pull D.‟s pants down, she said, “No, I have a
boyfriend.”
       Even if we consider Moncrea‟s version of events –– that, after he touched his
penis between her butt cheeks, D. had said that, “yes,” they would “probably” have been
able to “do it” if she didn‟t have a boyfriend, this answer did not indicate consent to the
act of sexual contact already accomplished, and we find no evidence of equivocal
conduct by D. to have allowed Moncrea to reasonably believe she consented to his sexual
advances. Therefore, the trial court had no sua sponte duty to instruct on the Mayberry
defense.
       Moncrea relies on People v. Sojka (2011) 196 Cal.App.4th 733 (Sojka) to support
his position. In Sojka, the court found the trial court‟s failure to instruct the jury on the
Mayberry defense was prejudicial. (Id. at p. 740.) In that case, the defendant and the
victim met in a bar. They were friendly with one another over the course of the evening,
socializing with other patrons, drinking and playing pool until about midnight. During
this time period they were “mildly amorous” with one another. The defendant gave the
victim a ride home and they kissed and caressed on the other for approximately 15
minutes. The victim testified she was not apprehensive about the defendant but did not
recall the 15-minute interlude. They went into the victim‟s apartment, and defendant
thought they might have sex. At this point, their accounts of what happened varied.
The victim testified that, after arriving back at her apartment, she went to the bathroom.
When she came out, defendant was completely naked and he forced himself on her.
She said the defendant removed her clothes, digitally penetrated her, and performed oral
sex on her while she continuously objected and resisted. She testified that the defendant


                                              14
left after attempting to have her perform oral sex on him and participate in sexual
intercourse. (Id. at pp. 735-736.) The defendant testified that the victim did not resist his
initial advances, and the two engaged in the sexual acts voluntarily. (Id. at p. 736.)
He testified that he left immediately after the victim resisted his attempts to engage in
sexual intercourse. (Ibid.) The court found: “Given the events that occurred over the
course of the evening, and [the appellant‟s] testimony of what occurred in the victim‟s
apartment, the jury should have been instructed on [the defendant‟s] reasonable good
faith, but mistaken, belief in her consent to sexual intercourse.” (Id. at pp. 737-738.)
       We find Moncrea‟s current case dissimilar. In Sojka, the events prior to the
incident had led the defendant to reasonably believe that the victim might be willing to
have sex with him, i.e., an objective person could have believed the victim might be
willing to have sex. The two spent an evening together during which they were friendly
and affectionate. They both voluntarily went into the victim‟s apartment. Unlike Sojka,
Moncrea‟s mistaken belief that D. consented was not reasonable. They did not spend an
affectionate evening together preceding a sexual encounter after entering the victim‟s
apartment. Moncrea acknowledged that the victim told him no when he started to make
sexual advances.
       Moncrea reliance on People v. May (1989) 213 Cal.App.3d 118 (May) is also
misplaced. In May, the court held that the trial court‟s failure to instruct the jury on the
Mayberry defense was prejudicial to the appellant. (Id. at p. 128.) There, the victim met
the May in a bar and engaged in a pleasant conversation, after which May bought her
drinks. The victim excused herself from their table and went to the restroom to snort
cocaine. May told her he could get her more cocaine and the victim accepted the offer.
She admitted she was attracted to May and left the bar with him. They went to two more
bars and continued drinking. They two then went to May‟s apartment. Again, it is at this
point that the victim and May‟s testimony differed. The victim indicated she rebuffed all
of May‟s advances; May contended they were flirting, giggling and that the victim tried
to orally copulated him in exchange for money. The defendant testified that the two got
into a physical altercation while arguing over payment for the sex act. (Id. at p. 124.)


                                              15
Even the victim‟s version of the sexual encounter did not demonstrate an unequivocal
lack of consent. Further, May‟s father testified that the two came into the apartment
holding hands and whispering. After the victim whispered in May‟s ear, the two went
into the bedroom and exited 15 to 20 minutes later, fully dressed. May‟s father did not
see or hear a confrontation. (Id. at pp. 125-126.) The court found that the trial court
should have provided the Mayberry defense because the jury could have concluded that
the defendant had a reasonable and good faith belief that the victim consented. (Id. at
pp. 127-128.)
       Again, we find Moncrea‟s current case dissimilar. In May, the court found the
victim‟s testimony about the behavior “from the time she met him at [the bar] to their
encounter in the kitchen had all the characteristics of a “„casual pickup.‟” (May, supra,
at p. 125.) Unlike May, there were no extended events leading up to the encounter that
would indicate D. was intending to have sex with Moncrea. Moncrea admitted D. told
him “no” when he attempted to pull down her pants. Because the facts as shown by
Moncrea‟s own testimony showed there was no ambiguous conduct over the course of an
evening leading up to the sexual encounter and because he further acknowledged that D.
indicted she did not want Moncrea to take her pants down, we find that the trial court had
no duty to instruct on the Mayberry defense.
III.   Instruction on Misdemeanor Sexual Battery
       Last, Moncrea argues the trial court prejudicially erred by failing to instruct sua
sponte to instruct on the lesser included offense of misdemeanor sexual battery.
We agree.
       A trial court errs when it “fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.”
(People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman); People v. Avila (2009)
46 Cal.4th 680, 704-705.) In other words, a trial court has a duty to instruct sua sponte
on lesser included offenses “when the evidence raises a question as to whether all of the
elements of the charged offense were present.” (People v. Lewis (1990) 50 Cal.3d 262,


                                              16
276.) However, the court “has no such duty when there is no evidence that the offense
was less than that charged.” (Ibid.) Evidence is substantial for this purpose if it would
cause a reasonable jury to conclude that the defendant committed the lesser but not the
greater offense. (Breverman, supra, 19 Cal.4th at p. 162.) “In deciding whether there is
substantial evidence of a lesser offense, courts should not evaluate the credibility of
witnesses, a task for the jury.” (Ibid.) We apply a de novo standard of review to the trial
court‟s failure to instruct on an assertedly lesser included offense. (People v. Licas
(2007) 41 Cal.4th 362, 366.)
       Both parties acknowledge that misdemeanor sexual battery is a lesser included
offense to felony sexual battery by restraint. The difference between the two charges is
whether the sexual battery occurred “while that person is unlawfully restrained by the
accused or an accomplice.” (Pen. Code, § 243.4(a).) Therefore, if the evidence raises a
question as to whether Moncrea “unlawfully restrained” D. during the incident, then the
trial court had a duty to instruct on the lesser included offense. “„Unlawful restraint‟
occurs when, without consent, a person‟s liberty is controlled by the words, acts or
authority of another.” (CALJIC No. 10.37; and see also CALCRIM No. 935 [“Someone
is unlawfully restrained when his or her liberty is controlled by the words, acts, or
authority of another and the restraint is against his or her will”].)
       Moncrea argues there is a question as to whether he restrained D. during the
incident. We agree. Moncrea‟s testimony was that he never restrained D. during any
sexual touching. He admitted picking her up and sitting her on the sink after “play[ing]”
with her buttocks. He committed no further sexual touching after placing her on the sink.
A trial court does not consider the credibility of witnesses in making the determination of
whether to instruct on a lesser included offense. The jury should have been allowed the
opportunity to consider whether to accept Moncrea‟s version of the events – that he did
not restrain her. We cannot say this error was non-prejudicial. There were only two
people present in the medical room when the assault took place. As to whether unlawful
restraint was used during the assault, this issue is a classic he-said-she-said. The jury



                                              17
may well have believed D. that a sexual battery occurred, but concluded that Moncrea did
not restrain her during the course of the battery.
                                      DISPOSITION
       The judgment is reversed.


                                                      BIGELOW, P. J.
We concur:




              RUBIN, J.




              FLIER, J.




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