Filed 11/16/21 P. v. Spence CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304646
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA458608
v.
ALARIC FRANCIS SPENCE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig Richman, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr. and
David F. Glassman, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
A jury convicted Alaric Francis Spence of rape of an
intoxicated person (Pen. Code, § 261, subd. (a)(3)), and the trial
court sentenced him to six years in prison.1 Spence appeals,
arguing the court prejudicially erred by refusing to instruct
the jury that an actual and reasonable belief that the victim
was capable of consenting is a defense.
Consistent with People v. Lujano (2017) 15 Cal.App.5th 187
(Lujano), we conclude the court did not err because the requested
instruction merely duplicated other instructions that were
properly given. Spence also cannot establish prejudice, because,
in reaching a guilty verdict under the given instructions, the jury
necessarily resolved the factual question posed by the requested
instruction against him. And, in any event, the evidence was
insufficient to give the requested instruction. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts
and the evidentiary support for the requested instruction in the
light most favorable to the defendant, Spence. (People v. Wright
(2015) 242 Cal.App.4th 1461, 1483; see People v. Wilson (1967)
66 Cal.2d 749, 763 [“Doubts as to the sufficiency of the evidence
to warrant instructions should be resolved in favor of the
accused.”].)
An information charged Spence with kidnapping for rape
(§ 209, subd. (b)(1)), rape of an unconscious person (§ 261, subd.
(a)(4)), and rape of an intoxicated person (§ 261, subd. (a)(3)),
all perpetrated against a single alleged victim, C.R.
The evidence at trial showed, on June 22, 2017, C.R.
met with friends for happy hour before attending a concert
1 Statutory references are to the Penal Code.
2
at Staples Center. Around 6:30 p.m., C.R. began drinking at
a restaurant across the street from the concert venue. C.R. and
her friends arrived at Staples Center between 7:30 and 8:00 p.m.,
where C.R. consumed more alcohol and ate a marijuana edible.
At about 10:00 p.m., C.R. texted her boyfriend to say she was
doing well and would be home later.
After the concert, C.R. and a friend took an Uber to a bar
in downtown Los Angeles. They arrived around 11:00 p.m.
Around midnight, they took an Uber to another bar, where C.R.
recalled having another drink and obtaining quarters to play
arcade games. This was the last thing she could remember
from that night.
C.R. and her friends went to another bar later that night,
where C.R. had more drinks. At some point, the bar refused to
serve C.R. more drinks because she was visibly too drunk. She
was swaying from side to side, giggling a lot, and could not walk.
Around 1:30 or 1:45 a.m., C.R.’s friends lost track of her
and could not find her for about 20 minutes. A female employee
eventually found C.R. in the women’s restroom. She was in
one of the stalls with her head over the toilet.
The bar closed at 2:00 a.m. and the group was forced to
leave. C.R.’s friends helped her outside by holding her up on their
shoulders. She could not walk by herself. Outside the bar, C.R.
was “pretty slurry” but became “chatty and somewhat at least
seeming like okay” after 30 minutes or so.
After leaving the bar, C.R. and one of her friends walked
around downtown Los Angeles looking for food. At 2:42 a.m.,
a surveillance camera recorded C.R. running down the street.
Twenty minutes later, C.R. got into Spence’s car.
3
Surveillance video showed C.R. getting into an Uber
driven by Spence at 3:02 a.m. She appeared “wobbly and
confused” and she was slurring her words when she got in
the car.
At 3:53 a.m., surveillance video showed Spence’s car arrive
at a motel. At 4:02 a.m., the video showed Spence carrying C.R.
into a motel room. At 6:15 a.m., Spence left the motel room for
about 15 minutes before returning. He left the motel for good
at 7:00 a.m.
At 7:30 a.m., C.R.’s alarm woke her up. She was naked
from the waist down, wearing no bra or underwear, in “some
motel room” she did not recognize. She felt like something
had been inserted in her vagina and her lower back hurt.
She could not remember what happened and was scared.2
C.R. called her boyfriend, who found her in a motel room
in North Hollywood. Her phone’s Uber data showed she had
requested a ride to her boyfriend’s apartment and the trip ended
there at 3:29 a.m. The driver’s name was listed as “Alaric S.”
2 At 3:19 a.m., C.R.’s male friend texted her to ask whether
she was okay. At 3:20 a.m., he texted her “tell me where you want
me to be please.” Spence emphasizes that, when C.R. awoke, she
thought she possibly had a one-night stand with this male friend.
Spence’s intended insinuation appears to be that C.R. may have
suggested to her male friend that she would have intercourse
with him and, thus, she may also have consented to intercourse
with Spence. Because the crime of rape of an intoxicated person
is premised not on the victim’s lack of actual consent, but rather
on the victim’s lack of capacity to give legal consent, the evidence
Spence emphasizes is irrelevant, regardless of whether it
supports his insinuation. (See Lujano, supra, 15 Cal.App.5th
at p. 194; § 261, subd. (a)(2)–(3); cf. CALCRIM Nos. 1000, 1002.)
4
There were two used condoms inside the motel room’s
trashcan. Otherwise, the room was “extremely clean,” and it
did not appear that anyone slept under the covers of the bed.
DNA retrieved from inside the condoms belonged to Spence.
The motel’s receptionist identified Spence, both in a
photo array and in court, as the person who rented the room.
According to the receptionist, Spence had tried to pay for the
room with a credit card, but ended up paying with cash. He
was short about $30 for the room, but returned later to pay
the balance.
A nurse who specializes in sexual assaults examined C.R.
The nurse concluded C.R.’s condition was consistent with trauma
one could experience during a blackout with alcohol intoxication
and probable sexual assault.
Spence chose not to testify.
The jury convicted Spence of rape of an intoxicated person
and acquitted him on the other counts. The court sentenced
Spence to six years in prison.
DISCUSSION
“ ‘In criminal cases, a trial court must instruct sua sponte
on the “ ‘ “general principles of law relevant to the issues raised
by the evidence,” ’ ” that is, those principles “ ‘ “closely and
openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” ’ ” [Citation.]
By contrast, “ ‘pinpoint’ ” instructions “relate particular facts
to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s
case, such as mistaken identification or alibi. [Citation.] They
are required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given
sua sponte.” [Citation.]’ [Citation.] In addition, the court ‘ “need
5
not give a pinpoint instruction if it is argumentative [citation],
merely duplicates other instructions [citation], or is not supported
by substantial evidence [citation].” ’ ” (Lujano, supra, 15
Cal.App.5th at p. 191; People v. Hill (2015) 236 Cal.App.4th
1100, 1118–1119; People v. Hartsch (2010) 49 Cal.4th 472, 500
(Hartsch); see also People v. Williams (2016) 1 Cal.5th 1166,
1193; People v. Bolden (2002) 29 Cal.4th 515, 558 (Bolden).)
The trial court used CALCRIM No. 1002 to instruct
the jury on the elements of rape of an intoxicated person. As
given in this case, the instruction defined the four elements of
the crime as follows: “1. The defendant had sexual intercourse
with a woman; [¶] 2. He and the woman were not married to
each other at the time of the intercourse; [¶] 3. The effect of an
intoxicating substance prevented the woman from resisting; [¶]
AND [¶] 4. The defendant knew or reasonably should have known
that the effect of an intoxicating substance prevented the woman
from resisting.” (See CALCRIM No. 1002.) Regarding the phrase
“prevented from resisting,” the instruction explained: “A person
is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent,
a person must be able to exercise reasonable judgment. In other
words, the person must be able to understand and weigh the
physical nature of the act, its moral character, and probable
consequences. Legal consent is consent given freely and
voluntarily by someone who knows the nature of the act
involved.” (See ibid.)
Spence requested the court also instruct the jury with
the following optional language from CALCRIM No. 1002: “The
defendant is not guilty of this crime if he actually and reasonably
believed that the woman was capable of consenting to sexual
6
intercourse, even if that belief was wrong. The People have the
burden of proving beyond a reasonable doubt that the defendant
did not actually and reasonably believe that the woman was
capable of consenting. If the People have not met this burden,
you must find the defendant not guilty.”3 The court denied
the request on the ground that there was no evidence Spence
had a “reasonable belief as to consent.”
Spence contends the trial court erred by refusing to give
the jury the optional language he requested. In Lujano, our
colleagues in Division Seven rejected a virtually identical
claim of error on the ground that the optional language merely
duplicates the parts of the given instruction that specify the
scienter element of the offense and define the term “ ‘prevented
from resisting.’ ” (Lujano, supra, 15 Cal.App.5th at pp. 191–192.)
We agree with the Lujano court’s reasoning and likewise
conclude the trial court did not err in refusing to give
the optional language.
The defendant in Lujano appealed a conviction for sodomy
of an intoxicated person. (§ 286, subd. (i).) Like Spence, he argued
the trial court erred by refusing to instruct the jury that an
actual and reasonable belief that the victim was capable
of consenting is a defense to the crime. (Lujano, supra, 15
Cal.App.5th at p. 189.) The trial court instructed the jury with
CALCRIM No. 1032, which—like CALCRIM No. 1002—states
the defendant is guilty only if the prosecution proves “ ‘[t]he
defendant knew or reasonably should have known that the effect
3 The People dispute Spence’s assertion that he requested
the optional language from CALCRIM No. 1002. As it is
irrelevant to our disposition, we will assume Spence made
an adequate request.
7
of [an intoxicating] substance prevented the other person from
resisting.’ ” (Lujano, at pp. 191–192, citing CALCRIM No. 1032;
cf. CALCRIM No. 1002.) Also like CALCRIM No. 1002,
CALCRIM No. 1032 explains that “ ‘[a] person is prevented
from resisting if he or she is so intoxicated that he or she cannot
give legal consent.’ ”4 (Lujano, at p. 192, citing CALCRIM No.
1032; cf. CALCRIM No. 1002.) And, like CALCRIM No. 1002,
there is optional language for CALCRIM No. 1032 that states:
“ ‘The defendant is not guilty of this crime if he actually and
reasonably believed that the other person was capable of
consenting to the act, even if that belief was wrong.’ ” 5 (Lujano,
at p. 192, quoting CALCRIM No. 1032; cf. CALCRIM No. 1002.)
The Lujano court concluded the refusal to give the optional
language was not error, because the language amounted to a
“pinpoint” instruction that “merely duplicates other parts of the
instruction given, namely, the [knew or reasonably should have
known] element and the definition of ‘prevented from resisting.’ ”
4 Like CALCRIM No. 1002, CALCRIM No. 1032 continues:
“In order to give legal consent, a person must be able to exercise
reasonable judgment. In other words, the person must be able to
understand and weigh the physical nature of the act, its moral
character, and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the nature of
the act involved.” (CALCRIM No. 1032; cf. CALCRIM No. 1002.)
5 Like the optional language in CALCRIM No. 1002, the
optional language in CALCRIM No. 1032 states: “The People
have the burden of proving beyond a reasonable doubt that
the defendant did not actually and reasonably believe that
the other person was capable of consenting. If the People
have not met this burden, you must find the defendant not
guilty.” (CALCRIM No. 1032; cf. CALCRIM No. 1002.)
8
(Lujano, supra, 15 Cal.App.5th at p. 192.) The court explained:
“The optional language that Lujano requested restates the
[knew or reasonably should have known] element of the offense
by (1) reformulating that element in the negative and (2)
incorporating the definition of ‘prevented from resisting.’ That is,
instead of saying that the defendant can be guilty only if he knew
or reasonably should have known that the victim was prevented
from resisting, the optional language says that the defendant is
not guilty if he actually and reasonably believed that the victim
was capable of consenting.” (Id. at p. 193.) Because the optional
language did “no more than pinpoint a key component of the
defendant’s case by restating other parts of the instruction that
[were] required,” the trial court had no duty to use the language,
even if substantial evidence supported it. (Id. at pp. 193–194;
see Bolden, supra, 29 Cal.4th at p. 558 [“[A] trial court need
not give a pinpoint instruction if it . . . merely duplicates other
instructions.”]; Hartsch, supra, 49 Cal.4th at p. 500.)
Spence contends Lujano was wrongly decided for two
reasons. First, he maintains the Lujano court incorrectly
construed the optional language in CALCRIM No. 1032 to be
a pinpoint instruction—a holding he claims is “in tension” with
People v. Molano (2019) 7 Cal.5th 620 (Molano). Second, he
argues Lujano incorrectly “implies that the language of the
requested instruction can never, under any circumstances,
add anything to the standard language of the instruction.”
We disagree on both counts.
Lujano is not in tension with Molano. The defendant in
Molano appealed his conviction for murder committed during
a forcible rape—a charge that gives rise to a “sua sponte duty
to give a Mayberry instruction about good faith and reasonable
9
belief in the victim’s consent ‘ “if it appears . . . the defendant
is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case.” ’ ”6 (Molano, supra, 7
Cal.5th at p. 667.) Unlike the charge in Molano, the Lujano court
explained a charge of sodomy (or rape) of an intoxicated person
does not implicate Mayberry, because the elements of the offenses
are critically different: “[A]lthough it is not an element of forcible
rape that the defendant believed the victim did not consent, it is
an element of sodomy (or rape) by intoxication that the defendant
knew or reasonably should have known the victim was incapable
of consenting.” (Lujano, supra, 15 Cal.App.5th at pp. 194–195,
second italics added; see §§ 261, subd. (a)(2)–(3), 262, subd.
(a)(1)–(2), 286, subd. (i); CALCRIM Nos. 1000, 1002, 1032.)
Thus, while the defense described in the optional language
of CALCRIM No. 1032 (and CALCRIM No. 1002) “is merely
[a restated] negation of an element of the offense,” the Mayberry
defense at issue in Molano is an “affirmative defense” that is
not “already covered by the required instructions.” (Lujano, at
pp. 194–195.) The trial court therefore has a sua sponte duty to
give a Mayberry instruction for a charge of forcible rape (as in
Molano), but does not have the same duty to give the optional
language instruction for a charge of sodomy (or rape) of an
intoxicated person (as in Lujano). Unlike an instruction on an
6 In People v. Mayberry (1975) 15 Cal.3d 143, the Supreme
Court held a defendant’s reasonable and good faith mistake
of fact regarding a person’s consent to sexual intercourse is a
defense to rape, because “one is incapable of committing a crime
who commits an act under a mistake of fact disproving any
criminal intent.” (Id. at pp. 154–155.)
10
affirmative defense, the optional language “does no more than
pinpoint a key component of the defendant’s case by restating
other parts of the instruction that are required.” (Lujano,
at pp. 193, 195.) Spence asserts the optional language is a
“Mayberry-type instruction,” but he entirely ignores the critical
differences the Lujano court identified.
Spence also fails to demonstrate that the optional language
adds anything to the standard language of CALCRIM No. 1002.
He argues the optional language “is the only language that
makes clear that the prosecution must disprove the existence of
the defendant’s actual belief in the capacity for consent, whereas
the other language of the instruction, particularly paragraph 4,
permits a conviction if the defendant merely ‘reasonably should
have known’ that the woman was not capable of giving consent.”
This argument ignores that the prosecution overcomes the
defense described in the optional language by proving either that
the defendant did not “actually” believe the victim was capable
of consent, or that the defendant did not “reasonably believe”
the victim was capable of consent.7 (CALCRIM No. 1002, italics
added.) Because CALCRIM No. 1002 already instructs the
jury that the prosecution must prove the defendant “knew or
reasonably should have known that the effect of [an intoxicating]
substance prevented the woman from resisting,” it adds
nothing to instruct the jury that the prosecution must prove
the defendant did not “reasonably believe that the woman was
7 The prosecution overcomes the defense by disproving
either element of the defense because a defendant is not guilty
of the crime only “if he actually and reasonably believed that
the woman was capable of consenting to sexual intercourse, even
if that belief was wrong.” (CALCRIM No. 1002, italics added.)
11
capable of consenting to sexual intercourse.” (Ibid., italics added;
see Lujano, supra, 15 Cal.App.5th at p. 193.) Indeed, People v.
Giardino (2000) 82 Cal.App.4th 454—the case upon which Spence
principally relies—recognized exactly this correlation between
the elements of the offense and the defense described in
CALCRIM No. 1002’s optional language. (See Giardino, at p. 472
[“As section 261(a)(3) itself provides, the accused is guilty only
if the victim’s incapacitating level of intoxication ‘was known, or
reasonably should have been known by the accused.’ An honest
and reasonable but mistaken belief that a sexual partner is
not too intoxicated to give legal consent to sexual intercourse
is a defense to rape by intoxication.” (Italics added.)].)
Because the optional language merely duplicates other
instructions that were properly given, the trial court did not err
by refusing to give the requested instruction. (See Lujano, supra,
15 Cal.App.5th at pp. 193–195; Bolden, supra, 29 Cal.4th at
p. 558.)
For similar reasons, Spence cannot show prejudice under
any standard, even if the trial court was required to instruct
the jury with the optional language. (See Chapman v. State
of California (1967) 386 U.S. 18, 24; People v. Watson (1956)
46 Cal.2d 818, 837.) Omission of an instruction is harmless
beyond a reasonable doubt if “ ‘the factual question posed by
the omitted instruction was necessarily resolved adversely
to the defendant under other, properly given instructions.’ ”
(People v. Wright (2006) 40 Cal.4th 81, 98.) Under the standard
CALCRIM No. 1002 instruction, because the jury found Spence
guilty of rape of an intoxicated person, it necessarily found he
knew or reasonably should have known C.R. was so intoxicated
she lacked the capacity to give legal consent. Thus, the jury
12
“necessarily found any belief by defendant that the victim had
capacity to consent was unreasonable.” (People v. Braslaw
(2015) 233 Cal.App.4th 1239, 1246 [finding “that the defendant
reasonably should have known the victim could not resist (i.e.,
give consent)” under standard CALCRIM No. 1002 instruction
“meant the jury could not also have found, as a matter of logic,
that the defendant had a reasonable belief the victim was capable
of giving consent”]; People v. Ramirez (2006) 143 Cal.App.4th
1512, 1529 [“A belief that the victim was able to resist could not
be reasonable if the perpetrator ‘reasonably should have known’
that the victim was unable to resist.”]; Lujano, supra, 15
Cal.App.5th at p. 196.) Because the jury necessarily resolved the
factual question on reasonable belief in the capacity to consent
against Spence, omission of the requested language was harmless
under any standard. (Lujano, at p. 196.)
Finally, even if the optional language did not merely
duplicate parts of the given instructions, the trial court still
properly refused to give it because there was no evidence that
Spence reasonably believed C.R. had the capacity to consent.
(See Hartsch, supra, 49 Cal.4th at p. 500 [the court “ ‘need not
give a pinpoint instruction if it . . . is not supported by substantial
evidence’ ”]; Molano, supra, 7 Cal.5th at p. 667 [Mayberry
instruction required “ ‘ “if there is substantial evidence
supportive of such a defense” ’ ”].)
Spence concedes “certain facts presented to the jury were
consistent with the notion that a reasonable person in [Spence’s]
situation ‘should have’ known that [C.R.] lacked the capacity to
consent, particularly the fact that [Spence] physically carried
[C.R.] into the motel room and, of course, the fact that [Spence]
had no pre-existing relationship with [C.R.].” However, he
13
maintains other “facts presented to the jury were consistent
with the notion that [Spence] could have reasonably believed
in [C.R.]’s capacity to consent.” Support for this notion, Spence
argues, can be found in “the fact that [Spence] himself had not
been present for any of the drinking and drug use that led up to
[C.R.] getting in his car, the fact that [C.R.]’s level of intoxication
appeared to wax and wane substantially over time, the fact that
[Spence] registered the motel room in his own name, the fact that
he stayed in the motel room until 7 a.m., and the fact that he left
used condoms in the motel room.”
The latter three facts—Spence registering for the motel
room in his own name, staying until 7:00 a.m., and leaving used
condoms—might establish Spence actually believed C.R. had the
capacity to consent, but these facts prove nothing about whether
Spence reasonably held this belief, because they reveal nothing
about what he knew or reasonably should have known before
having intercourse with C.R. The fact that Spence was not
present for C.R.’s drinking or drug use is similarly irrelevant
to what he reasonably believed about her capacity to consent,
particularly in light of the undisputed video evidence showing he
physically carried C.R. into the motel room. Finally, the evidence
that earlier in the night C.R.’s intoxication appeared to wax and
wane proved nothing about what Spence reasonably believed
about her capacity to consent. Spence admits he was not present
when surveillance video showed C.R. running down the street
and there was no evidence that her intoxication “waned” after
Spence physically carried her into the motel. The evidence,
viewed most favorably to Spence, was insufficient to support
a finding that he reasonably believed C.R. was capable of
consenting to intercourse.
14
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
HILL, J.
Judge of the Santa Barbara County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
15