The People v. Mackey

• Decision Date: 31 January 2011
• Docket Number: No. 204278,No. A124752,A124752,204278
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ARVIN MACKEY, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.ARVIN MACKEY, Defendant and Appellant.

No. A124752

No. 204278

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Filed 1/31/11

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

DefendantArvin Mackey appeals the judgment convicting him of rape by force and forcible sexual penetration and sentencing him to six years in prison.At trial, the jury was instructed that defendant was not guilty of the crime if he"actually and reasonably believed that the woman consented" to the sex acts.He contends that the court erred in failing sua sponte to instruct the jury that it should consider his mental impairment in deciding whether a reasonable person would have believed the victim consented and further that in evaluating the reasonableness of such a belief it should consider his mistake of fact as to the victim's age.We find no instructional error and shall affirm the judgment.

Factual and Procedural History

Defendant was charged with one count of rape (Pen. Code, § 261, subd. (a)(2)¹), one count of kidnapping to commit rape (§ 209, subd. (b)(1)), forcible oral copulation (§ 288a, subd. (c)(2)), and forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)).The information alleged further that counts one, three and four were committed under circumstances subjecting defendant to sentencing under the One Strike Law (§ 667.61, subds. (a)(d)(2), (a)(e)(1), (a)(e)(4).)

At trial, the prosecution presented evidence of the following facts:

On October 3, 2007, around 6:30 a.m., the 15-year-old victim was approached by defendant as she was on her way to school.Defendant waived from his car window and asked her name and how old she was.The victim told him her name and that she was 15 years old.Defendant got out of his car and began walking next to her.He asked for her phone number.She initially refused, but then gave him a false phone number.When the victim refused defendant's offer to drive her to school, he lifted his shirt to show her the handle of a handgun tucked in his waistband.He grabbed her wrist and the back of her neck and forced her into his car.

Defendant told the victim he would take her to school but first needed to stop for gas.He demanded that the victim give him $5 for gas.She initially refused, but then gave him the money.After they left the gas station, defendant unzipped his pants and forced the victim to touch his penis while he drove.He took her to a house where he raped and forcibly penetrated her with his fingers and forced her to orally copulate him.When the victim screamed and struggled, defendant became angry and told her he loved her.

Defendant ultimately drove the victim to school.As they arrived, however, defendant saw a security guard and drove away.Defendant told the victim he would bring her back later when the guard was gone because he did not want her to get in trouble for being late to school.They went to another gas station and two banks before defendant dropped the victim at the corner of 24th and Mission Streets.Before he would let her go, defendant demanded that the victim give him another $10.After leaving the car, the victim took the bus to her brother's school where she called her mother.When she returned home, she told her mother what had happened and her mother took her to the hospital where she reported the crime to a nurse and later to a police officer.

Defendant's recorded statement to the police was played for the jury.In it, he denied having sex with the victim and claimed that he did not know she was in highschool.At trial, defendant testified that when he met the victim in the morning she told him she was going to school.When he offered her a ride she initially refused, but after talking for a moment she agreed and got in the car with him.After stopping at a gas station, he took her to her high school.He was surprised when the victim went along with his request to touch his penis while they were in the car.Once they arrived at her school, she said she did not want to go to school and would rather go with him, so they left.They went to a house where she willingly engaged in sexual activity with him.Thereafter, they went to two different banks and another gas station, before he dropped her off on Mission Street.He was shocked when the police later told him she had accused him of raping her.He claimed the victim had not told him how old she was and that based on the way she looked and acted he believed she was 18 years old.

An expert witness testified that defendant was impaired intellectually, with an IQ of 69, which placed him in the bottom 2 percent of the population.He explained that defendant's level of intellect is "congruent with people who are mildly mentally retarded."The expert was quick to qualify, however, that he was not concluding that defendant was mildly mentally retarded.Rather, he was "saying that... his intelligence or his cognitive ability level came out in that range" and that "when you get a score at that level, that's an impaired intellectual ability finding."

In closing argument, defendant's attorney argued that the victim consented to the sexual encounter and that she fabricated the criminal charges to avoid being disciplined when her mother learned she had not been to school.He made no argument regarding an honest and reasonable but mistaken belief that the victim had consented and he disavowed any "mental state defense."Counsel asserted that defendant's disability should be considered only for the limited purpose of evaluating his conduct during the police interrogation.

The jury found defendant guilty of rape and forcible sexual penetration, not guilty of kidnapping to commit rape, and the one strike allegation not true.The court declared a mistrial as to the forcible oral copulation charge.The court imposed concurrent six-year midterm sentences for both convictions.Defendant filed a timely notice of appeal.

Discussion

1.The court did not err in failing sua sponte to instruct the jury that it should evaluate the reasonableness of defendant's belief that the victim had consented from the point of view of a reasonable person with defendant's mental capacity.

"Under People v. Mayberry(1975)15 Cal.3d 143, a defendant who entertains both a reasonable and bona fide belief that the victim voluntarily consents to engage in the sexual offense does not have the necessary wrongful intent to be convicted of the crime.[Citations.]The rationale is simple: one who labors under a mistake of fact that negates the existence of any criminal intent cannot be convicted of a crime."(People v. Castillo(1987)193 Cal.App.3d 119, 124(Castillo).)Consistent with this rule, the jury was instructed that defendant is not guilty of rape "if he actually and reasonably believed that the woman consented to the intercourse.The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented.If the People have not met this burden, you must find the defendant not guilty."(CALCRIM No. 1000.)The jury was similarly instructed with respect to consent as a defense to forcible sexual penetration.(CALCRIM No. 1045.)Defendant contends the court erred in failing sua sponte to instruct that the reasonableness of his belief that the victim consented should be determined "from the standpoint of a person with a mental disability."We disagree.

Defendant's contention that the objectively reasonable person standard should be modified to take mental disabilities into account has repeatedly been rejected by California courts.In Castillo, the court held that the defendant's moderate retardation was not relevant to whether he raped the victim under a reasonable but mistaken belief that she consented.(Castillo, supra, 193 Cal.App.3d at pp. 124-125.)The court observed that "[m]ental deprivation... never has been considered an attribute of the reasonable man."(Id. at p. 124.)The court relied in part on People v. Gutierrez(1986)180 Cal.App.3d 1076, 1083, in which the court held that expert testimony concerning a defendant's delusion that her children were evil birds was not admissible to establish that she acted under a reasonable mistake of fact in inflicting corporal injury upon them.The courtnoted that one who commits what would otherwise be a crime under the influence of a mental disorder or condition "may represent a continuing threat" to society and "may be blameworthy to some degree, although perhaps not as much as a completely sane individual."(Id. at pp. 1083-1084.)The defendant's mental condition, the court observed, is taken into account by making available a plea of not guilty by reason of insanity, by admitting evidence of insanity to negate specific intent where that is an element of the offense, and by permitting consideration of the defendant's impairments in mitigation of sentence.(Id. at p. 1084.)"This carefully balanced system,"the court continued, "would be subverted, and the legitimate ends of criminal justice frustrated," if "irrational delusions... could provide a complete defense to general intent crimes by presenting them under the label of mistake of fact."(Ibid.)

More recently, in People v. Jefferson(2004)119 Cal.App.4th 508, 519, the court rejected the argument that the reasonable person standard should be the standard of a mentally ill person like the defendant in that case."By definition, a reasonable person is not one who hears voices due to severe mental illness.In blunt fashion, our Supreme Court long ago defined a reasonable person as a 'normal person.'[Citation.]...