15 Cal. 3d 143, 125 Cal. Rptr. 745, 542 P.2d 1337 (1975)
On July 8, 1971, Miss Nancy B. left her apartment in Oakland to walk to a nearby grocery store.1 As she passed a liquor store, she heard catcalls from some men, and Franklin Mayberry, whom she had never seen before, grabbed her arm.2 After she turned to leave, he kicked her, threw a bottle which struck her, and shouted obscenities at her.3
After she entered the grocery store, Franklin suddenly appeared beside her and said something to the effect that she was going to go outside with him and if she did not cooperate she would pay for it.4 Because of her own confusion and fear of Franklin, she accompanied him outside the store, where they remained for approximately 20 minutes.5
Franklin, in a threatening manner, mentioned having sex to Miss B.6 She rejected this, but Franklin told her she was going to have to go with him, and when she refused, struck her in the chest with his fist, knocking her down.7 Franklin directed obscenities at her, held his fist up to her face, and told her she was going to come with him or he would knock every tooth out of her mouth.8 She asked him to leave her alone, but Franklin seized her wrist and said come on.9 In an attempt to buy time, she told Franklin she wanted to purchase some cigarettes, and he agreed.10 Placing his hand beneath her elbow, he accompanied her to a store approximately 100 feet away, where she purchased cigarettes for herself and Franklin.11
After completing the purchase, she sat on a curb, attempted to engage Franklin in conversation and smoked a cigarette.12 He eventually said we are leaving.13 She tried to talk him out of it, and he became angry and ordered her to get up.14 She complied, and he again seized her elbow and started to guide her.15 While walking several blocks, they passed some business establishments, but Miss B. noticed no one on the street.16 Franklin led her to an apartment house and entered ahead of her.17 After they entered his apartment, he barricaded the door behind them.18 Without her consent, he then engaged in several acts of sexual intercourse and oral copulation with her.19
While Miss B. was in the apartment, Booker entered.20 As she attempted to move towards the door, Booker mumbled want some.21 He thereupon seized her and dragged her towards a mattress.22 When she resisted, Booker threw her against the wall and struck her face with his fists.23 During a portion of this incident Booker apparently attempted to strangle her.24 She finally told Franklin, who was observing the fracas, that Booker was going to kill her.25 Franklin thereupon stepped between Miss B. and Booker and pushed her towards the door.26 She broke free and left.27 She went to a friend’s house to get aid but found no one home.28 She then proceeded directly to her apartment.29 She immediately reported the incidents to her apartment manager, and the police were summoned.30
At trial a police officer testified that around 10:40 p.m. on July 8, 1971, he went to Miss B’s address in response to a kidnap-rape call and observed much bruising and swelling on her face, left arm and leg.31 Franklin took the stand in his own behalf and testified as follows: he saw Miss B. about 4 p.m. on July 8, 1971, and engaged her in conversation, after which he accompanied her to the grocery and the store where she purchased cigarettes.32 They then walked to his home.33 He did not threaten her, nor did she protest but accompanied him willingly and agreed to, and did engage in, intercourse.34 He denied seeing Booker hit her, but recalled that Booker entered the apartment while she was there and began laughing.35 She looked upset, said, I’ll fix you, and left.36 Booker’s testimony was that when he returned to his apartment on July 8, 1971, he found Franklin and Miss B. in bed.37 He left the apartment and, upon his return, commenced laughing.38 Miss B. put her hands over her face and left.39 Booker denied having touched her.40
In rebuttal the prosecution presented two witnesses.41 One described bruises on Miss B’s face and arms on the night of July 8, 1971.42 The other testified that she noticed nothing unusual about Miss B’s face on July 7, 1971, but that when the witness observed Miss B. on July 9, 1971, her face was bruised and swollen, one eye was almost shut, and her arm was bruised.43 An information was filed charging Franklin Mayberry and his brother Booker T. Mayberry with various offenses against the prosecutrix (Miss Nancy B.).44 Booker was charged with assault with intent to commit rape.45 Franklin was charged with kidnaping, rape by means of force and threat, assault by means of force likely to produce great bodily injury, and oral copulation.46 Following a joint trial, a jury found defendants guilty as charged on all counts, except that the jury found Franklin guilty of assault, a lesser included offense in the alleged violation of section 245.47
Whether the prosecutrix's testimony was inherently improbable?48
Testimony is inherently improbable only if it asserts that something occurred which it does not seem possible could have occurred under the circumstances disclosed.49 There must be a physical impossibility that the statements are true or their falsity must be apparent without inferences or deductions.50 Conflicts in testimony and matters subject to justifiable suspicion do not justify reversal because credibility determinations belong exclusively to the jury.51
No. Miss B. explained that she did not report the initial assault from the telephone near the grocery store because she planned to call police from her home.52 She explained that she did not physically resist Franklin after the initial encounter because she was afraid of him.53 Although Franklin and Miss B.
were about the same size and there is no evidence he was armed, the jury could conclude her fear was not unreasonable given that she had been threatened, struck, and knocked down.54 Her failure to flee was explained by her stiff leg from arthritis.55 Her failure to seek help from others could be viewed as resulting from fright that prevented clear thinking rather than improbability.56
The prosecutrix's testimony is not inherently improbable, and the judgments on this ground are affirmed.57
A court must instruct on every material question upon which there is any evidence deserving of consideration.60 Instructions on diminished capacity need not be given when the evidence of diminished capacity is minimal or there is no substantial evidence that the defendant was so intoxicated that he could not form the requisite intent.61
No. Miss B.'s preliminary hearing testimony that Booker appeared to be drunk was inconsistent with her trial testimony that she formed no opinion whether he was under the influence of alcohol, rendering the evidence equivocal.62 No other evidence of Booker's intoxication was presented.63 There was no evidence that he was so intoxicated that he could not form an intent to commit rape.64 Under the circumstances the court did not err in refusing to give the instructions.
The trial court did not err in refusing to give diminished capacity instructions, and the judgment against Booker is affirmed on this ground.65
Whether the trial court erred in failing to give a cautionary instruction regarding the prosecutrix's testimony against Booker Mayberry?66
Yes. The court failed to give the cautionary instruction in connection with the assault with intent to commit rape charge against Booker.69 However, the instruction was given for the rape charge against Franklin, thereby apprising the jury of the principle.70 It is unlikely the jury applied a different perspective to the same witness's testimony against Booker.71
In addition, testimony from other witnesses that Miss B. incurred bruises on her face about the time of the assault by Booker tended to corroborate her testimony.72
The failure to give the cautionary instruction was error but was not prejudicial, and the judgment against Booker is affirmed on this ground.73
Whether the prosecution improperly included a charge of great bodily injury in the information against Booker Mayberry?74
Even if it is assumed to be error to include a great bodily injury charge in the information and submit the issue to the jury after the magistrate found no such injury at the preliminary hearing, the error is reviewed for prejudice under the California Constitution.75 Reversal is not required if it is highly improbable that the jury's verdict on guilt was affected by the charge.76
Yes. The prosecution included the great bodily injury charge in the information and the court submitted the issue to the jury.77 The jury was instructed that it must be governed solely by the evidence in determining guilt or innocence.78 It is highly improbable that the verdict on guilt was affected by the great bodily injury charge.79
Any error in including and submitting the great bodily injury charge was not prejudicial, and the judgment against Booker is affirmed on this ground.80
Whether the trial court erred in refusing to give mistake of fact instructions regarding consent for Franklin Mayberry's rape and kidnaping charges?81
Penal Code sections 20 and 26 require a union of act and wrongful intent in every crime unless excluded expressly or by necessary implication.82 A defendant is entitled to mistake of fact instructions on consent if there is evidence deserving of consideration that he reasonably and in good faith believed the victim voluntarily consented to the movement and to sexual intercourse.83 The severe penalties and loss of reputation make it unlikely the Legislature intended to exclude the element of wrongful intent from rape by force or threat and kidnaping.84
Yes. Franklin testified that he saw Miss B. about 4 p.m. on July 8, 1971, engaged her in conversation, accompanied her to the grocery and the store where she purchased cigarettes, and then walked with her to his home.85 He stated that he did not threaten her and that she accompanied him willingly and agreed to and did engage in intercourse.86
Part of Miss B. 's testimony showed equivocal conduct because she put on an act to fool Franklin, failed to physically resist after the initial encounter, and failed to attempt to escape or obtain help, which might have misled Franklin as to whether she was consenting. This evidence was sufficient to support the requested instructions, and the jury's verdicts did not necessarily reject the evidence supporting Franklin's assertion of reasonable good faith belief in consent.87
The trial court erred in refusing to give the mistake of fact instructions, the error was prejudicial, and the rape and kidnaping convictions are reversed.88
Whether the trial court erred in refusing to give an accomplice instruction for the oral copulation charge against Franklin Mayberry?89
If the facts are disputed or susceptible of different inferences, the question whether a witness is an accomplice should be submitted to the jury.90 Failure to give an accomplice instruction is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.91
Yes. Franklin's testimony could be viewed as raising an inference that Miss B. consented to all events including oral copulation.92 Even assuming the requested instruction should have been given, the jury by finding Franklin guilty of kidnaping and rape impliedly found that Miss B. did not consent to the movement or to intercourse.93 It is highly unlikely that the jury would have found she became an accomplice by consenting to oral copulation as part of the same episode.94
Any error in refusing to give the accomplice instruction was not prejudicial, and the oral copulation conviction is affirmed.95
Whether the trial court erred in giving an instruction permitting an adverse inference from Franklin Mayberry's failure to explain or deny evidence?96
A defendant who takes the stand and testifies in his own behalf waives his Fifth Amendment privilege against self-incrimination at least to the extent of the scope of relevant cross-examination.97 An instruction permitting an adverse inference from failure to explain or deny evidence within the defendant's knowledge is proper when the defendant testifies.98
No. Franklin took the stand and freely gave his version of the events on the date of the alleged crimes.99 No claim is made that he failed to explain or deny evidence of any matter beyond the scope of relevant cross-examination.100 The instruction is peculiarly applicable to a defendant, and the court properly sustained objections during Franklin's direct examination while allowing rephrased questions on the same subjects.101
The trial court did not err in giving the adverse inference instruction, and the judgments are affirmed on this ground.102