People v. Portilla CA2/2

Filed 5/17/21 P. v. Portilla CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B304075

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA119870)

JOSE ANDRES ROBLES PORTILLA,

Defendant and Appellant.

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.
FACTUAL BACKGROUND
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,

1Subsequent undesignated statutory references are to the
Penal Code.

2
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, “I’m sorry. I’m

2Y.P. was five feet two inches tall and weighed 130 pounds.
Appellant was approximately six feet tall and weighed 200
pounds.

3
dumb. I know what I did.” 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 decided

3 The audio recording of the 911 call was played for the jury
and a transcript was provided.
4The audio recording of this interview was played for the
jury and a transcript was provided.

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to 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.
DISCUSSION
I. The Trial Court Properly Refused to Instruct the
Jury with the Mistake of Law Defense
A. Relevant proceedings
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 trial

5 CALJIC No. 4.36.1 provides: “It is the general rule that
when a person voluntarily commits an act or engages in conduct
which the law declares a crime, it is no defense that [he] [she]
was unaware that the act or conduct was unlawful or that [he]
[she] believed it to be lawful. [¶] [It is no defense to the crime[s]
of _____ [, and ____ ], that the perpetrator acted under a mistake
of law.] [¶] However, there is an exception to this general rule,
namely, where a [specific intent] [or] [mental state] is an
essential element of the crime, an actual mistake of law may
negate that [intent] [or] [mental state]. The crime[s] of ____ [,
and ____ ] require the existence in the mind of the perpetrator of
[a] certain [specific intent[s] [or] [mental state[s]] included in the
definition of the crime[s] set forth elsewhere in these
instructions]. 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] [or] [mental state]. In other words, the
defendant must have had an honest belief that the conduct
engaged in was lawful.”

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court 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, “It’s a general intent crime. It’s still
an intent whether you call it specific or general intent.” 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.
B. Relevant legal principles
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 ‘to

6 The Use Note for CALJIC No. 4.36.1 reads in pertinent
part: “This instruction can be used when mistake of law may
constitute a defense to a crime. It may be used where the
information contains both general intent crimes and specific
intent crimes or only specific intent crimes.”

6
refrain 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.)
C. CALJIC No. 4.36.1 was properly rejected
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: “To find appellant
guilty, the jury had to find or believe that appellant’s state of
mind was such that he knew [Y.P.] had withdrawn her consent.
If appellant is mistaken in this belief, then an ‘honest’ belief on
his part leads to his exoneration, pursuant to this instruction.”
Appellant maintains without CALJIC No. 4.36.1, he was
prevented from arguing he “did not hear and therefore did not

7
know [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 law negates a
specific intent (see People v. Howard (1984) 36 Cal.3d 852, 862–
863; People v. Vineberg (1981) 125 Cal.App.3d 127, 137; People v.
Urziceanu (2005) 132 Cal.App.4th 747, 779) or a mental state (see
People v. Noori (2006) 136 Cal.App.4th 964, 977–978) that is an
essential element of the crime. The instruction makes clear that
it does not apply to general intent crimes, ignorance of the law
being no excuse. (See People v. Stewart (1976) 16 Cal.3d 133,
140; People v. Cole (2007) 156 Cal.App.4th 452, 483.)
Forcible sodomy is a general intent crime. (People v.
Warner (2006) 39 Cal.4th 548, 557; People v. Whitham (1995) 38
Cal.App.4th 1282, 1293.) The only intent required is the intent to
engage in the proscribed sexual act itself. (See People v. Davis
(1995) 10 Cal.4th 463, 518, fn. 15.) That does not mean the
required intent is simply to have anal sex, but rather, to have
anal sex “against the victim’s will [without the victim’s consent]
by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury.” (§ 286, subd. (c)(2)(A); see People v.
Giardino (2000) 82 Cal.App.4th 454, 460; People v. Guerra (2006)
37 Cal.4th 1067, 1130, overruled in part on other grounds in
People v. Rundle (2008) 43 Cal.4th 76, 151 [discussing forcible
rape].) Thus, the trial court correctly rejected defense counsel’s
request to charge the jury with CALJIC No. 4.36.1.
Although appellant claims he was entitled to a mistake of
law instruction, his argument suggests a mistake of fact defense.
Unlike a mistake of law, where a person knows the facts but is

8
mistaken as to their legal consequences, with a mistake of fact, a
person understands the facts to be other than what they actually
are. (People v. LaMarr (1942) 20 Cal.2d 705, 710.) A reasonable
mistake of fact can be asserted as a defense to a general intent
crime. (People v. Noori, supra, 136 Cal.App.4th at pp. 976–977.)
It applies to section 286, subdivision (c)(2)(A) if there is
substantial evidence the defendant honestly and reasonably, but
mistakenly, believed the victim voluntarily consented to sodomy.
(See People v. Castillo (1987) 193 Cal.App.3d 119, 125–126;
CALJIC No. 10.65.) Here, appellant’s defense theory was not
that he honestly and reasonably believed Y.P. had consented to
sodomy, but that he did not know he was sodomizing her and
mistakenly believed she had consented to what he thought was
vaginal sexual intercourse and was unaware she had withdrawn
her consent until she was crying.7 As the jury was instructed,
the burden was on the prosecution to prove appellant was
intentionally sodomizing Y.P. against her will and by the use of
force.
Further, contrary to appellant’s contention, defense counsel
was able to argue the issue of withdrawn consent. He first
acknowledged to the jury that Y.P. withdrew her consent.
Counsel then argued appellant was unaware Y.P. had withdrawn
her consent until he heard her crying, and he responded by
stopping. Counsel argued under CALJIC No. 1.23.1 appellant’s

7We note defense counsel did not request a CALJIC
No. 4.45 instruction on the accident or misfortune defense, which
amounts to a claim that the defendant acted without forming the
mental state (general intent) necessary to make his or her actions
a crime, but, here, there was insufficient evidence to support the
defense.

9
lack of awareness before that point was reasonable under the
circumstances, meaning appellant was not intentionally acting
against Y.P.’s will by continuing his conduct. Whether
appellant’s lack of awareness was an “honest mistake” is part and
parcel of reasonableness and, in any event is of no consequence
because no evidence was presented that Y.P. ever consented to
anal intercourse.
Finally, appellant also contends that even if the instruction
were not given, “a pinpoint instruction could have been drafted
that considered the element of mistake on the issue of consent.”
Appellant has forfeited this issue for failing to request such an
instruction from the trial court. (People v. Young (2005) 34
Cal.4th 1149, 1202.)
II. Substantial Evidence Supports the Sodomy
Conviction
Appellant contends the evidence was insufficient to convict
him of sodomy in the absence of the CALJIC No. 4.36.1
instruction applied to the withdrawal of consent. This is not a
challenge to the sufficiency of the evidence, but a repetitive claim
of instructional error, which we have concluded is without merit
for the reasons discussed. Nonetheless, because appellant has
framed the issue as a challenge to the sufficiency of evidence, we
address it on that basis.
A. Relevant legal principles
To prove the crime of forcible sodomy (§ 286, subd. (c)(2)(A))
the prosecution must prove (1) the defendant engaged in an act of
sodomy with an alleged victim; (2) the victim did not consent to
the act, and (3) the act was accomplished by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
to the victim or another person. Sodomy, in turn, “is sexual

10
conduct consisting of contact between the penis of one person and
the anus of another person. Any sexual penetration, however
slight, is sufficient to complete the crime of sodomy.” (§ 286,
subd. (a).)
Assessing appellant’s substantial evidence claim, “ ‘we
review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Avila
(2009) 46 Cal.4th 680, 701; see People v. Watkins (2012) 55
Cal.4th 999, 1019–1020.) We draw all reasonable inferences in
favor of the verdict and presume the existence of every fact the
jury could reasonably deduce from the evidence that supports its
findings. (People v. Maciel (2013) 57 Cal.4th 482, 515; People v.
Kraft (2000) 23 Cal.4th 978, 1053.) Unless a witness’s testimony
is physically impossible or inherently improbable, the testimony
of a single witness is sufficient to support a conviction. (People v.
Young, supra, 34 Cal.4th at p. 1181.) “In deciding the sufficiency
of the evidence, a reviewing court resolves neither credibility
issues nor evidentiary conflicts.” (Ibid.; see People v. Maury
(2003) 30 Cal.4th 342, 403.) Rather, “ ‘it is the exclusive province
of the . . . jury to determine the credibility of a witness and the
truth or falsity of the facts,’ ” and it is not for us to substitute our
judgment for that of the jury’s. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) Finally, the trier of fact may rely on inferences to
support a conviction where “those inferences are ‘of such
substantiality that a reasonable trier of fact could determine
beyond a reasonable doubt’ that the inferred facts are true.”
(People v. Rios (2013) 222 Cal.App.4th 542, 564.)

11
 B. There was sufficient evidence to support the
finding appellant acted against Y.P.’s will
Sufficient evidence supported the sodomy conviction,
particularly as it relates to the element of consent. The evidence
is uncontroverted that Y.P. never consented to engage in sodomy.
Y.P. testified to having previously told appellant that she did not
perform anal sex. On the night of the incident, Y.P. demanded
repeatedly that appellant stop penetrating her anus, attempted
to turn her body to push him off her, and cried out in pain. Y.P.’s
testimony, the blunt force trauma she suffered, and appellant’s
admissions constituted ample evidence she was sodomized
against her will and by force.
III. Appellant’s Dueñas Claim Lacks Merit
At sentencing, the trial court imposed a $2,400 restitution
fine, a $2,400 stayed parole revocation fine, a $30 criminal
conviction assessment, a $40 court operations assessment, a $300
sexual offender program fund fee, a $60 criminal fine surcharge,
and $930 in court costs. Appellant contends the trial court’s
imposition of statutory fines, fees, and assessments was
unconstitutional under Dueñas, supra, 30 Cal.App.5th 1157. The
trial court imposed the fines, fees, and assessments without
objection from appellant one year after Dueñas was decided.
Despite his failure to raise this claim in the trial court and
the absence of any evidence or concern over his ability to pay,
appellant nevertheless asserts he is entitled to remand to enable
the trial court to determine his ability to pay. Appellant has
forfeited any challenge to the fines and fees imposed at
sentencing. (People v. Aguilar (2015) 60 Cal.4th 862, 866 [failure
to object to imposition of fees at sentencing forfeited the issue for
appeal]; People v. Avila (2009) 46 Cal.4th 680, 729 [defendant’s

12
failure in the trial court to assert his inability to pay a restitution
fine over the statutory minimum forfeited the challenge].) In any
event, we reject the claim on the merits.
We decline to extend Dueñas’s broad holding beyond the
extreme facts in that case, which are not present here. Dueñas
was a disabled, unemployed, and often homeless mother of two
young children. Over the course of several years she served jail
time because she could not pay the fines imposed in connection
with various misdemeanor Vehicle Code offenses. (Dueñas,
supra, 30 Cal.App.5th at pp. 1160–1162.) Applying a due process
analysis to the particular facts before it, the appellate court
concluded that “[b]ecause the only reason Dueñas cannot pay the
fine and fees is her poverty, using the criminal process to collect a
fine she cannot pay is unconstitutional.” (Dueñas, at p. 1160.)
This case plainly does not implicate the same due process
concerns at issue in the factually unique Dueñas case. Unlike the
defendant in Dueñas, there is no indication here that appellant
suffers from a disability, that he has been unable to pay court
assessments in the past, that he lacks savings or assets that
could be sold, or that he needs to devote his limited resources to
vital childcare needs. At sentencing, appellant was 24 years old
and gainfully employed prior to trial. There is nothing in the
record to indicate he lacks the ability to obtain the funds for
payment of his obligations in the future. And unlike the
defendant in Dueñas, appellant does not face incarceration
because of an inability to pay court-imposed fines, fees, and
assessments. (See Dueñas, supra, 30 Cal.App.5th at p. 1163.)

13
 In People v. Hicks (2019) 40 Cal.App.5th 320, 322 (Hicks),
review granted November 26, 2019, S258946,8 we concluded that
Dueñas was wrongly decided and rejected its holding that “due
process precludes a court from ‘impos[ing]’ certain assessments
and fines when sentencing a criminal defendant absent a finding
that the defendant has a ‘present ability to pay’ them.” (Accord,
People v. Petri (2020) 45 Cal.App.5th 82, 92; People v. Aviles
(2019) 39 Cal.App.5th 1055, 1067–1068; People v. Caceres (2019)
39 Cal.App.5th 917, 923, 926–927; People v. Kingston (2019) 41
Cal.App.5th 272, 279–282; People v. Kopp (2019 38 Cal.App.5th
47, 96–97, review granted Nov. 13, 2019, S257844.)
Here, as in Hicks, “imposition of these financial obligations
has not denied [appellant] access to the courts,” nor has their
imposition resulted in his incarceration. (Hicks, supra, 40
Cal.App.5th at p. 329.) And nothing prevents appellant from
trying to satisfy these obligations through future earnings. (Id.
at pp. 327, 329.)

8 The California Supreme Court ordered briefing deferred
pending decision in People v. Kopp, S257844, which presents the
following issues: “(1) Must a court consider a defendant's ability
to pay before imposing or executing fines, fees, and assessments?
(2) If so, which party bears the burden of proof regarding the
defendant’s inability to pay?” (People v. Hicks, S258946
[as of Apr. 20, 2020], archived at
.)

14
 Moreover, the restitution fine is classified as a form of
punishment. (People v. Souza (2012) 54 Cal.4th 90, 143.) Its
imposition without regard to present ability to pay therefore does
not violate appellant’s due process rights because it is “not a user
fee imposed on court access.” (People v. Son (2020) 49
Cal.App.5th 565, 592.) As the United States Supreme Court has
recognized, due process is implicated only where a defendant,
who has no ability to pay, is imprisoned for failure to pay a
punitive fine. (See Bearden v. Georgia (1983) 461 U.S. 660, 665,
667–668 [103 S.Ct. 2064, 76 L.Ed.2d 221]; Tate v. Short (1971)
401 U.S. 395, 398 [91 S.Ct. 668, 28 L.Ed.2d 130] [“ ‘the
Constitution prohibits the State from imposing a fine as a
sentence and then automatically converting it into a jail term
solely because the defendant is indigent and cannot forthwith pay
the fine in full’ ”].)
Finally, the fines and fees imposed in this case are not
excessive. Appellant was convicted of forcible sodomy. He took
advantage of his romantic partner during an otherwise
consensual sexual encounter. He forcibly performed anal
intercourse despite his partner’s repeated demands that he stop
and caused her to suffer deep lacerations to her anal region and
protracted pain. Appellant was sentenced to state prison. On
this record, we do not find the statutory fines, fees, and
assessments to be “ ‘grossly disproportional to the gravity of
[appellant’s] offenses.’ ’’ (Cooper Indus. v. Leatherman Tool
Group, Inc. (2001) 532 U.S. 424, 434 [121 S.Ct. 1678, 149 L.Ed.2d
674].)

15
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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