People v. Dominguez

Decision Date28 August 2006
Docket NumberNo. S130860.,S130860.
Citation39 Cal.4th 1141,140 P.3d 866,47 Cal.Rptr.3d 575
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Fernando DOMINGUEZ, Defendant and Appellant.

WERDEGAR, J.

We address in this case three separate claims of error. First, we consider whether the trial court erred when it failed to instruct the jury, sua sponte, that a reasonable yet mistaken belief the victim consented to have sexual intercourse was a defense to a charge of rape. (People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal. Rptr. 745, 542 P.2d 1337.) Because defendant did not request such an instruction, rely on that defense, or present substantial evidence to support the defense, no duty to instruct arose and the Court of Appeal correctly so ruled.

Second, we revisit an area of criminal law in which recent Court of Appeal opinions suggest consistency has eluded the appellate courts: When is the forced movement, or asportation, of a victim sufficient to permit conviction of aggravated kidnapping? Contrary to the Court of Appeal, we conclude defendant's forced movement of the victim here was sufficient to satisfy the asportation requirement.

Finally, we once again address the circumstances in which a person who commits a serious felony can be liable for murder under the felony-murder rule when a coparticipant in the felony is the actual killer. (See People v. Cavitt (2004) 33 Cal.4th 187, 14 Cal.Rptr.3d 281, 91 P.3d 222; People v. Pulido (1997) 15 Cal.4th 713, 63 Cal.Rptr.2d 625, 936 P.2d 1235.) As we explain, we conclude, contrary to the Court of Appeal, that any error in the trial court's failure in this case to instruct the jury on nonkiller liability under the felony-murder rule was harmless.

We therefore affirm in part and reverse in part the judgment below.

FACTS

Early in the morning of August 23, 1997, Officer Edward Escamilla was on patrol in Hollister when he encountered victim Irma Perez sitting on the curb with two men; a third man wandered away from the group as Officer Escamilla approached. Perez appeared intoxicated, but the men did not. When he inquired about her condition, Perez replied she was fine and said they were waiting for a taxi. Officer Escamilla ran a warrant check on the two men, defendant Fernando Dominguez and Lionel Salcedo, but they were not subject to any outstanding warrants. Escamilla later saw defendant, Salcedo and Perez enter a taxi.

Rafael Gutierrez testified he drove a taxi and picked up the victim and three men in Hollister around 2:00 a.m. on August 23. He drove them to the San Benito labor camp, where two of the men exited the cab. When no one volunteered to pay the fare, Gutierrez started to drive back to town with the third man and Perez still in the cab. When the man said he would pay, Gutierrez stopped the cab and the man gave him $10. Perez got out of the taxi and began walking back to town, away from the labor camp. The man who had paid the fare (the third man) also got out and followed Perez. After pausing to write in his logbook, Gutierrez drove back to town, passing Perez on Southside Road. The third man had almost caught up to her. Gutierrez also saw one of the men who had exited his cab at the labor camp walking towards Perez from the direction of the camp.

Three days later, an agricultural worker discovered Perez's body in a shallow grave in a walnut orchard about 250 feet from Southside Road. Police observed drag marks in the dirt leading from a spot near the roadway to the location where the body was found. Sergeant Stephens testified he observed two sets of shoe prints alongside the drag marks, suggesting two people had dragged the victim into the orchard where she eventually was found. The victim was naked from the waist down, and her brassiere was pulled up over her chest and another piece of clothing was wrapped around her neck. Further investigation revealed her jeans and underpants had been buried in another part of the walnut grove, at the bottom of an embankment near Southside Road. Police also found her shoes in the orchard.

On learning the victim had been seen at the Smokehouse Bar in Hollister with defendant, Jose Martinez and Lionel Salcedo the night of August 22-23, police went to the labor camp where defendant and Martinez lived, only to find they had left that day and not returned. Police located the two late that night, walking on a rural road. Defendant initially gave police a false name; he later admitted his identity but denied knowing anything about Perez. He subsequently changed his story and admitted he had been with Perez the night in question but denied having sex with her or knowing anything about her death.

Forensic evidence determined Perez had been beaten and choked to death and that she had been forcibly raped, causing substantial bruising to her posterior vaginal wall and cervix. Police determined that semen found in her vagina came from two different donors. A DNA analysis identified one donor as Carlos Quesada, the father of her children, with whom she was living at the time, and the other as defendant. Martinez was excluded as a possible donor. Quesada testified he and Perez had engaged in consensual sex the morning preceding her murder.

Martinez died of natural causes before trial. Defendant testified in his own defense. He claimed he had had consensual sex with Perez before leaving her with Martinez. He specifically denied raping or killing her. The jury convicted defendant of murder (Pen.Code, § 187),1 kidnapping for rape (former § 208, subd. (d), now § 209, subd. (b)) and rape (§ 261, subd. (a)(2)). The Court of Appeal affirmed the conviction for rape but reversed the kidnapping and murder convictions. We granted the People's petition for review.

DISCUSSION
I. The Jury Was Properly Instructed on Rape2

Defendant contends the trial court erred by failing to instruct the jury, even in the absence of a request, that a reasonable though mistaken belief in consent was a defense to a charge of rape, the so-called Mayberry instruction. (People v. Mayberry, supra, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337 (Mayberry).) Applying settled principles of law, we find no error because defendant neither relied on a Mayberry defense nor presented substantial evidence to support one. His defense was solely one of consent in fact.

A.

Defendant testified he and Perez got out of the taxi and began walking down Southside Road. As they walked and conversed, he told Perez he wanted to have sex with her. She at first declined, saying she did not know him, but she eventually relented, and the two had sex by the side of the road. Defendant testified he did not force her; she engaged in intercourse of her own free will. The forensic evidence, however, showed that before her death Perez suffered significant bruising of her vaginal walls and cervix. In addition, police found blood on her jeans.

Defense counsel did not request that the court give CALJIC No. 10.65,3 the Mayberry instruction, or its equivalent,4 and no such instruction was given.

B.

In the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises "`only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Barton (1995) 12 Cal.4th 186, 195, 47 Cal.Rptr.2d 569, 906 P.2d 531; see also People v. Maury (2003) 30 Cal.4th 342, 424, 133 Cal.Rptr.2d 561, 68 P.3d 1.)

Defendant can satisfy neither prong of this test. At trial, he testified that after some initial hesitation, Perez consented to have sex with him and the ensuing act was consensual and voluntary. In closing argument, defense counsel argued defendant "had voluntary sex with this lady" and that, considering all the circumstances, the jury should conclude the victim consented to have sex. The defense presented no evidence suggesting the victim had refused to consent but defendant reasonably believed she had consented, nor did defense counsel present any argument relying on this theory. Accordingly, we conclude defendant did not rely on a Mayberry defense at trial.

Defendant also fails the second prong of the test because the evidence supportive of a Mayberry defense was insubstantial at best. As we explained in People v. Williams (1992) 4 Cal.4th 354, 14 Cal.Rptr.2d 441, 841 P.2d 961, 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." (Id. at pp. 360-361, 14 Cal.Rptr.2d 441, 841 P.2d 961, fn. omitted.) The right to a Mayberry instruction in the absence of a...

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