People v. Portilla
| Decision Date | 17 May 2021 |
| Docket Number | B304075 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE ANDRES ROBLES PORTILLA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA119870)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.
Adrian K. Yeung for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Jose Andres Robles Portilla appeals the judgment entered following a jury trial in which he was convicted on one count of forcible sodomy. (Pen. Code, § 286, subd. (c)(2)(A).)1 The trial court sentenced appellant to a prison term of eight years. Appellant contends (1) the trial court improperly refused to instruct the jury with the mistake of law defense (CALJIC No. 4.36.1); (2) the evidence is insufficient to support the conviction; and (3) because the court's imposition of a restitution fine, criminal conviction and court operations assessments, and other statutory fines and fees without a determination of appellant's ability to pay violates appellant's constitutional rights, the fines, fees, and assessments must be stricken in accordance with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We disagree and affirm the judgment of conviction.
Appellant and Y.P. became friends while working together at a restaurant. Their relationship eventually became sexual. Y.P. recalled telling appellant that she did not perform oral or anal sex.
On the night of December 29, 2018, Y.P. and appellant had alcoholic drinks with friends at two local bars. Later, at Y.P.'s apartment, she and appellant listened to music and drank beer in her bedroom. After a time, they went outside and smoked a cigarette before reentering the bedroom. Y.P. suggested they go to the sofa bed in the living room because the bedroom had bunkbeds.
Appellant sat on the sofa bed and Y.P. stood in front of him. The two of them started kissing. Before they became intimate,Y.P. told appellant she was on the last day of her menstrual period. Appellant said it was okay. They removed their clothes. Y.P. positioned herself on hands and knees on the sofa bed. Appellant knelt behind her and stroked his penis. After rubbing it against her buttocks, appellant inserted his penis into her vagina. After a couple of thrusts, appellant removed his penis. Appellant then placed his penis on Y.P.'s anus and attempted penetration. As soon as Y.P. "felt the pressure," she said, "What are you doing?" and told appellant twice to stop. When appellant did not stop, Y.P. fell forward on her chest. Appellant was still on his knees.
Y.P. twisted her body, attempting to turn over, but appellant was on top of her.2 Y.P. tried to push herself up and told appellant to get off her, but he did not respond. Appellant grabbed Y.P. by the shoulders, spread her legs with his knees, and pulled her toward him as he forced his penis about half-way into her anus. Y.P. was crying in pain and kept telling him to stop. But the more she told him to stop, the more appellant penetrated her anus. Y.P. continued to cry and clutched the blanket, as appellant sodomized her about five times. By that point, Y.P. had become silent, just wanting it to be over.
Appellant stopped and got off Y.P. She went into the bedroom, wrapped herself in a towel, lay on her bed, and cried. Appellant entered the bedroom, fully dressed, and apologized. Y.P. told him to leave her home. Appellant, again, apologized. Y.P. said she never wanted to see appellant again and repeatedly demanded that he leave. Appellant told her, Y.P. said, "You know you just raped me." Appellant responded, "Yes, I know," and said he was going "to call the cops." Appellant called 911 and reported he "had raped somebody."3
Police officers arrived and found appellant pacing in the carport of the apartment building. He appeared to be nervous. Appellant acknowledged he had called the police because he and Y.P. had sexual intercourse and she was crying afterward. Appellant said he felt bad. The officers spoke to Y.P., who appeared to be in shock. She told them appellant had raped her.
Later, during a police interview, appellant admitted Y.P.'s report that he had "anal sex with her against her will," "forcibly against her will," was "true."4 Appellant further stated, "I decided to put it [his penis] in her butt."
A sexual assault examination revealed Y.P. sustained multiple lacerations in her anus consistent with blunt force trauma. She experienced pain in her anus for about a week.
Appellant testified in his defense that he and Y.P. had engaged in consensual vaginal intercourse that night, during which she moaned but did not say anything else. At some point when they were having sex, Y.P. dropped to her chest and appellant fell on top of her. She began to cry and appellant stopped having intercourse. Y.P. then left for the bedroom. Appellant got dressed and went into the bedroom to ask why Y.P. was crying. Y.P. accused him of "basically raping" her by penetrating her anus. Appellant repeatedly denied it and decidedto call the police because he was being accused of something he knew was wrong.
Appellant denied he had previously discussed anal sex with Y.P. or engaged in anal sex with her that night; they had vaginal intercourse. Appellant also testified he told the 911 operator and a police officer that he had committed rape and sodomy because that is what he had been accused of by Y.P.
During the discussion of jury instructions, defense counsel requested the jury be instructed with CALJIC No. 4.36.1, "Ignorance or Mistake of Law—When a Defense."5 The trialcourt noted that "sodomy is a general intent crime" and expressed skepticism the instruction was warranted, "particularly that last paragraph: In order for an actual mistake of law to be a defense, the mistake must be one that shows the absence of that required specific intent." Counsel responded, "Or mental state." The court asked, "What mental state is required for a general intent crime?" Counsel answered, Counsel then referred to the Use Note for CALJIC No. 4.36.1, which he urged supported giving the instruction where the information contains both general intent and specific intent crimes, which are both mental states.6 The court, looking to the instructions for mental state (CALJIC No. 3.31.5), general intent (CALJIC No. 3.30), and specific intent (CALJIC No. 3.31), observed they are each defined differently and denied the request.
In closing argument, the prosecutor maintained appellant forcibly sodomized Y.P. without her consent. Defense counsel argued to the jury that appellant (1) believed they were engaging in consensual vaginal sexual intercourse; (2) unknowingly inserted his penis into Y.P.'s anus, and (3) stopped when he was able to hear her withdraw her consent by crying.
The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'torefrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' " (People v. Saddler (1979) 24 Cal.3d 671, 681.) The " 'principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation has been held to include giving instructions on defenses that are supported by substantial evidence and are not inconsistent with the defendant's theory of defense. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Moreover, where the jury has been fully instructed on the applicable legal principles pertinent to a case, the trial court is not required to give instructions sua sponte that elaborate or "pinpoint" the defendant's theory of the case absent a request. (People v. Dennis (1998) 17 Cal.4th 468, 514.) On appeal, we independently review whether the trial court erred by failing to instruct on a defense. (See People v. Waidla (2000) 22 Cal.4th 690, 733, 737.)
Appellant contends the trial court prejudicially erred by failing to instruct the jury with CALJIC No. 4.36.1. He argues the instruction concerns "mental state," which is different from general and specific intent. Appellant posits: Appellant maintains without CALJIC No. 4.36.1, he was prevented from arguing he "did not hear and therefore did notknow [Y.P.'s] consent had been withdrawn." Thus, if the jury found Y.P. "withdrew consent, then appellant [was] automatically guilty."
Appellant misperceives CALJIC No. 4.36.1. The instruction states it applies when a mistake of...
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