P. v. Bettancourt
Filed 11/12/13 P. v. Bettancourt CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROGER ANTHONY BETTANCOURT,
Defendant and
Appellant.
H038815
(Monterey
County
Super. Ct.
No. SS120451)
Defendant Roger Anthony Bettancourt
reversed because the court refused to instruct the jury on the defense of his reasonable
but mistaken belief in the victim's consent to sexual intercourse, in
accordance with People v. Mayberry
(1975) 15 Cal.3d 143 (Mayberry). We find no error and therefore must affirm
the judgment.
Background
The victim, 18-year-old A.,
testified at trial. She was defendant's
half-sister; they had the same father. A.
lived in Tacoma, Washington with her boyfriend, M., whom she married a few months before
trial. Defendant lived in Salinas with his mother, S., and her boyfriend, J. In December 2011, defendant invited A. to
visit him in January for his birthday.
Defendant and S. bought A. a plane ticket, and she arrived on January
11, 2012, with the intention of staying until January 14, the day after his
birthday.
When she first arrived at their
home, A. put her duffel bag in defendant's closet because she did not know
where she was going to sleep, but later she was offered J.'s daughter's room to
sleep in that night. The next day she
spent the day with D., another half brother; defendant's friend, Alex; and
defendant. Around 10 or 11 p.m., S. took D. home and Alex drove home, and by
11 or 12 p.m.,
only defendant, S., and A. were there. At
trial A. admitted that she had been drinking that night, but she was
"still in control of [her] senses" enough to decide whether she was
going to have sex with her brother.
After D. and Alex left, A. and defendant
stayed in his room, "messing around on Facebook and talking." A. told defendant that she had had an ovarian
cyst, and she was concerned that she would not be able to get pregnant. Defendant assured her that she was too young
to have kids anyway. Then (or possibly
before that) he asked her to "do him a favor." A. said, "It depends on what it
is." The favor was "to have
sex with him." Defendant explained
that he had been in prison for a long time,
sex, and he wasn't sure if his thing worked." A. said no.
She remained in his room, thinking this might be "just a strange
request and that would be the end of it."
At one point, after midnight, A. was
tired and lay down on her side on defendant's bed. Defendant lay down next to
her and hugged her. She "didn't
think anything of it." But then
defendant held her down, with her hands above her head, and pulled her pants
and underwear down to her upper thighs. A.
struggled to pull them back up and to get away, but defendant was on top of
her, holding her face down. A. was
yelling and calling him names, but defendant put his hand around her mouth and
told her to shut up. The struggle
continued; defendant twice put his penis inside her vagina while she continued
to try to get away. A. believed that
defendant was trying to get it into her anus also; she "could feel it"
pressing on both her vagina and her anus.
Eventually A. was able to stand
up. Defendant blocked the door. She hit him to get him out of her way, and he
pushed and hit her in the face. A.
started yelling again, calling him names; and S. began knocking on the
door. When the door opened, A. ran out
of the room. S. asked her what had
happened; while crying, A. told her she wanted to go home and that her brother
had had sex with her. S. asked A. if she
wanted to call the police, but A. said no, she just wanted to go home. She asked S. to get her belongings from
defendant's room; then S. drove her to the airport, stopping to pick up S.'s
mother. On the way, S. called the
airline to change A.'s flight.
A. had called M. from S.'s house,
and he picked her up from the airport in Seattle/Tacoma that morning. She was feeling sick then and did not want to
talk about what had happened, but the next day she told him that her brother
had raped her.
title="">[3] M. was angry; he took A. to the police
department, and after an interview there, she was taken to the hospital for an
examination. A. learned then that she
was seven weeks pregnant.
Defendant presented a very different
story to the jury. He stated that when A.
arrived at his house, his mother showed A. around and indicated where she could
sleep. Defendant and A. did not talk
much that night, but the next day, January 12, his friend Alex picked them up
to go shopping. They later picked up D.
and the four of them "hung out" at defendant's house. By the time both Alex and D. had left, it was
close to 11 p.m. While D. was there, the
three drank beer, and defendant and A. continued drinking after D. and Alex left.
He described "messing around"
on the computer and talking, as had A.. They
alternated positions, with one sitting at the computer and one on the bed. Eventually, though, both were on the
bed. Defendant had his arm around her,
assuring her that there was a chance she could have a baby but that it was best
to wait till she was older. Defendant
told A. about a girl he "had feelings for." Defendant asked her if she would do him a
favor and have sex with him; when she said no, they continued their
conversation. Both were
"buzzing" from the beer, but not drunk.
A. finished the cigarette she was
smoking and the beer she had been drinking, and stated that she "wanted to
do something." She was seated on
the bed; he was standing. At this point,
according to defendant, it was about an hour after his request for sex and
after the conversation about the ovarian cyst.
A. then "laid [sic] down
on her side and kind of had sex. And she
said I had guessed right as to what she was thinking of doing." A. did not say no; she did not try to stop him
in any way; she helped him remove her clothes; and she encouraged him during
intercourse by saying, " 'Oh, yeah,' 'keep going,' and words like
that." Defendant pulled out before
ejaculating so that he would not get her pregnant, and instead "aim[ed]
more towards [her] underwear," to avoid getting semen on his sheets. A. got up after that and used the restroom;
she seemed happy, but there was no conversation.
When she came back into the room, she
lay down on her side next to defendant. They began "having sex again and that's
when she stated [M.'s] name, and from there she flipped out. She told me to stop, I stopped, got back up. The two began arguing about M., and A. started
"socking" him. A. said she wanted
to go home, and about 10 minutes or so later, his mother knocked on the door
and he opened it. When A. left to use S.'s
phone, defendant slammed the door and stayed inside until they returned. S. and A. then used defendant's computer to
check departing flights while he went somewhere else in the house. Later, at their request, he removed A.'s
belongings from the closet and put them outside the door. Then he shut his door again and went to sleep.
On cross-examination by the
prosecutor, defendant provided more details.
He explained that initially A. was lying on her side, facing away from
him, and he lay down right next to her with her back to his front. Then, he said, he began pulling her pants
down and "she finished the rest."
He pulled down his own pants, and then, according to defendant, "I inserted
my penis inside her vagina, and she kept leading me on." When the court asked specifically what she
said, defendant answered, "She didn't say nothing at that time, but
moments later—" and the court stopped him.
At this point her pants "were almost all completely off, and from
there I inserted and she laid [sic] on
her stomach and we just continued."
"Almost all completely off" turned out to be mid-thigh; but
later A. herself kicked her pants completely off. During most of the penetration A. was on her
stomach, making "sexual noises" to encourage him, while defendant lay
on top of her with his hands above his head.
While they were having sex the
second time, defendant explained, A. said M.'s name, repeatedly, yet casually,
in a "normal tone of voice."
But then defendant told her he did not like M. and said derogatory
things about him. He was "pretty
angry" because he had learned from A.'s mother that M. had threatened to
kill some of his family. It was then
that defendant and A. "started fighting"; she was angry about what he
had said about M., and "she started saying that I raped her . . .
because I was talking bad about her boyfriend." During the fight defendant defended himself
against A.'s punches. At one point he
grabbed her arm and threw her on the bed. When she tried to "swing some
more punches," he "socked her" on the side of her face to make
her "relax."
For the next five minutes the two
exchanged more angry words, cursing at each other with raised voices until his
mother came to the door to ask him to turn down the music. A. was still angry, and she told S. that she
wanted to go home, but she was composed.
Defendant had "a little bit" of regret about having had sex
with his sister, but only "because of her saying 'M[.]' and the fight."
Defendant was charged by information
with one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count
of attempted sodomy by use of force (Pen. Code, §§ 664, 286, subd. (c)(2)). The information also contained an allegation
that defendant had served a prior prison term for grand theft of a person.
(Pen. Code, §§ 487, subd. (c); 667.5, subd. (b).) At trial the court denied a request by the
defense to instruct the jury in accordance with Mayberry. The jury found defendant guilty of the rape charge but
hung on the attempted sodomy count.
Defendant requested a court trial on the Penal Code section 667.5
allegation, which the court found to be true.
The court sentenced defendant to a nine-year prison term, consisting of eight
years for the rape and one year for the prior prison term. This appeal followed.
Discussion
Defendant's sole contention on
appeal is that the trial court prejudicially erred by declining to give the
requested Mayberry instruction. In Mayberry,
the California Supreme Court held that a mistaken belief that the victim
consented to sexual intercourse, if reasonable and in good faith, is a defense
to rape because it is incompatible with the wrongful intent necessary for the
crime.
In People v. Williams (1992) 4
Cal.4th 354 our Supreme Court summarized the essential features of the
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." (People
v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted; see also
911, 954 [where defendant claimed lack of contact with victim, no evidence
existed to permit inference that he reasonably mistook her conduct for consent].)
Defendant contends that the
requisite equivocal conduct by A. existed here, thus providing sufficient
evidence that he "reasonably mistook her conduct for consent." (People
v. Martinez, supra, 47 Cal.4th at p. 954.)
He argues that he could have reasonably misinterpreted her intent when, after
he expressed the wish to have sex with her, A. "stretched out on his bed and let [him] lie down against her, her
back to his front, hugging her." He
points to his own testimony as demonstrating that A.'s conduct "induced
him to believe that she was consenting to sexual conduct." As he now summarizes that testimony,
"after he explicitly made known to her that he wished to have sex with
her. . . she laid [sic] back on his
bed, lying half on her side and half on her stomach. She said, 'I feel like doing something,' and
was undisputedly not resisting when appellant hugged her and snuggled up
against her as they both lay on their sides.
Even more, according to appellant, A. indicated that she had consented
to having sex with him by telling him that he had read her mind."
Defendant's argument, however, is
misleading. First, even by his own account, after his invitation to have sex A.
did not immediately lie down on the bed and say she felt like doing something. Defendant himself testified that it was about
an hour after his request when A.
said she wanted to "do something."
She was still sitting on the
bed at that point. Second, our measure
of the evidentiary support for a Mayberry
defense is whether defendant had a reasonable and good faith belief in the
victim's consent if her testimony is
believed.
Defendant nonetheless maintains
that the jury might have concluded that defendant reasonably believed that A.
had changed her mind because she lay down on the bed "in a provocative
position" and allowed him to lie down next to her and hug her. Given the multiple inconsistencies in A.'s
testimony, he argues, the jury had multiple reasons for discrediting portions
of A.'s testimony: For example, two other
people in the house had not heard screaming or fighting; neither of them saw or
heard her crying; she was "untruthful" about her marital status; and
she was inconsistent about whether she had been drinking that night. Defendant speculates that the jury might have
believed that A. "tailored her testimony so as to conform to the demands
of a controlling, self-admitted jealous and suspicious boyfriend or
husband."
Defendant's argument is answered by
the Supreme Court's explanation in Williams. There, the defendant testified that the
victim, Deborah, initiated sexual contact and assisted him in penetrating
her. Deborah, by contrast,
"testified that the sexual encounter occurred only after Williams blocked
her attempt to leave, punched her in the eye, pushed her onto the bed, and
ordered her to take her clothes off, warning her that he did not like to hurt
people. This testimony, if believed, would preclude any reasonable belief of
consent. These wholly divergent accounts create no middle ground from which
Williams could argue he reasonably misinterpreted Deborah's conduct." (People
v. Williams, supra, 4 Cal.4th at p. 362; see also People v. Dominguez (2006) 39 Cal.4th 1141, 1149 [defendant's
testimony that victim in fact consented, without evidence that he mistakenly
believed she consented, provided contrast to prosecution evidence with no
middle ground].)
In this case, as in
divergent." According to defendant,
A. not only did not resist, but encouraged and even assisted him in
accomplishing sexual intercourse. By
contrast, A.'s description of the events was of unequivocal resistance: During the act she continuously struggled to
free herself from him, and she tried to yell but was silenced by defendant's
hand over her mouth. There is no middle
ground here. If A.'s testimony is
believed, there is nothing in her description of the minutes following the
"hugging" that would lead a reasonable person in defendant's position
to believe she consented to having sexual intercourse with him. Her testimony establishes that she resisted
him throughout the act, whereas his conveyed a picture of her welcoming and
encouraging his conduct, even to the point that they had sexual intercourse
twice.
Thus, A.'s testimony affords no
inference of equivocal conduct, nor other substantial
evidence supportive of this defense.
The trial court properly declined to instruct the jury on the
Disposition
The
judgment is affirmed.
_______________________________
ELIA,
J.
WE CONCUR:
________________________________
RUSHING, P. J.
________________________________
PREMO, J.
name="_ftn1" title="">[1]
Defendant introduced himself at trial as Anthony Roger Bettancourt. The
inconsistency with the charging documents and other trial records is
immaterial.
name="_ftn2" title="">[2]
Defendant himself testified that he had been incarcerated for grand theft, and
he had been released from custody for two or three months when A.'s visit took
place. He later clarified that he was
released from San Quentin in November 2011.
