People v. Munoz CA6

Filed 1/7/22 P. v. Munoz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048181
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 17CR02586)

v.

RODRIGO MUNOZ,

Defendant and Appellant.

A jury convicted defendant Rodrigo Munoz of forcible rape. He argues the trial
court committed reversable error when it failed to instruct the jury on mistaken consent.
He also argues that counsel rendered ineffective assistance by failing to request the
mistaken consent instruction, and that counsel was separately ineffective for not
requesting an instruction regarding good character evidence. Finding no trial court error
and no prejudicial deficiency in counsel’s performance, we will affirm the judgment.
I. BACKGROUND
Jane Doe reported in 2016 that defendant forced her to have sexual intercourse in
2012 when they were both 19 years old. Officers recorded a lengthy pretext call Doe
made to defendant, and in 2017 he was charged with forcible rape (Pen. Code, § 261,
subd. (a)(2); count 1) and forcible sodomy (Pen. Code, § 286, subd. (c)(2); count 2).
Trial was held in 2020. Defendant was found guilty of forcible rape and not guilty of
forcible sodomy. He was sentenced to a three-year prison term.
 According to evidence at trial, defendant and Doe met in late 2009, when they
were 17 years old. Defendant lived with his family, and Doe lived with her parents in a
nearby town. Both were raised in the Jehovah’s Witnesses faith, which disapproved of
premarital sexual intimacy and encouraged chaperoned dating. Doe was a baptized
member of the religion; defendant was not. In 2010, defendant contacted Doe through
social media and in 2011 they started a relationship. Doe’s and defendant’s recollections
of the relationship diverge at that point, and they testified to vastly different accounts of
their relationship before, during, and after the 2012 rape.
Doe’s Version of Events
Doe described the relationship before having intercourse as being “boyfriend” and
“girlfriend,” talking to each other romantically, but not being “intimate.” She and
defendant did not “date.” They spent time in groups, were alone in a mall once or twice,
and held hands and kissed once in 2012. She never “made out” with defendant or took
off her clothes. Defendant knew that Doe adhered to her faith. Defendant was
possessive and did not want her “talking to anybody, [] especially guys.” At one point he
asked if she wanted to have sex, which he knew was not something she would do as a
baptized Jehovah’s Witness, and she told him no. Around April or May 2012 she told
him she did not want to talk anymore. She attended his high school graduation in
June 2012 because she way trying to be a good friend, but they were no longer “talking
romantically.”
After not seeing each other for a month, defendant came to Doe’s home
unannounced on July 3, 2012, and had forced, nonconsensual intercourse with Doe. She
had nonconsensual sex with him four or five more times in July, although those times she
did not resist him physically and “let it happen.” One of those instances involved anal
penetration. She confessed to a church elder at the end of July that she had sex one time,
and she was censured by a committee of church elders. After the elders learned from

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defendant’s church elders that the two had engaged in intercourse multiple times, Doe
was “disfellowshipped” for lying.
Doe resumed a relationship with defendant in the fall of 2012, and they had
intercourse a few more times before Doe again ended the relationship because “all he
wanted” was sex. He “left her alone completely” when she told him she had a problem
with what he was doing, and warned if he contacted her again, she would go to the police
with “proof of everything.” She later found out she was pregnant with defendant’s child,
delivered a premature baby girl in May 2013, and resumed a relationship with defendant
for the sake of their child. She felt like her plans for the future had been ruined, she had
disappointed her parents, and “the only thing [she] could do was just stay with him, or
try, for [the child], not for [her].” When she brought up the July 3 incident, defendant
told her to “forget it” and “get over it” because “things are different” now that they had a
daughter. She tried to “get over it,” but defendant was sexually aggressive and
possessive, and she again ended the relationship in 2014.
Doe described instances of defendant stalking her in 2015, including messaging
things like “ ‘I know you’re not home. Where are you?’ ” and “ ‘Confess your sins … or
I’ll do it.’ ” In late 2015 she reported defendant’s stalking behavior to the police, but did
not mention the 2012 rape because “it had been a while back,” and she “didn’t know
there was anything that could be done.” She applied for a domestic violence restraining
order in November 2015, in which she stated “On July 3rd, 2012 … he sexually abused
of me (sic), I was in a fragile situation and he took advantage of me and forced me into
it.”
In April 2016, Doe and defendant attended the same social function, where
defendant told Doe she was “going to pay” for what she was doing, he was “ ‘going to hit
[her] where it will hurt [her] the most,’ ” and she was “ ‘going to regret it.’ ” That is
when she decided to report the rape. Around that time, she told her parents everything
that had happened, and the two families met. Doe’s father confronted defendant about
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raping Doe. Defendant stayed quiet and did not deny it. Child support was not discussed
at that meeting. Doe was unaware of any child support action at that time, and she did
not threaten to report the rape if defendant refused to drop the support case.
Defendant’s Version of Events
Defendant testified that once he and Doe started dating, they went to the movies
two or three times a week, where their sexual intimacy progressed from kissing to digital
vaginal penetration. Later they spent time in vehicles where they undressed and engaged
in penile vaginal contact. During one of those instances, Doe asked defendant whether he
had a condom, which shocked him. They sent love letters to each other. Letters were
admitted in evidence from the first half of 2012 in which Doe expressed her love for
defendant and her desire to marry him.
The first time defendant and Doe had sexual intercourse was June 5, 2012, their
one-year anniversary. (We note that defendant assigned an earlier date to the charged
events than recounted by Doe, who described them as occurring on July 3, 2012.
However both Doe and defendant described the incident as taking place in Doe’s
apartment and as the first time she had ever had intercourse. We perceive no ambiguity
in the record arising from the date discrepancy, and defendant has not raised the issue on
appeal.) Defendant testified the sex was consensual, and Doe provided a condom. They
continued having consensual intercourse into August, at which time they agreed to “break
[their] relationship” in order to “fix [their] relationship with God” by “confessing their
sins” to their respective church elders. After righting themselves with their churches,
they would “start dating legit.” At one point they had sex in Doe’s father’s truck “doggie
style,” and defendant accidently penetrated Doe’s anus. It was dark, she pulled away, he
apologized, they hugged, got dressed, and talked about their relationship. Doe wanted to
tell their parents they were still having sex and were going to run away. Defendant told
her he had just started working and did not have money saved. Doe was furious that
defendant would not speak to her parents, defendant realized he had fallen short of her
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expectations, and their relationship ended. But they had more sex later that year in
October and November.
Doe contacted defendant after their daughter was born. They “kept seeing each
other” after defendant met his daughter, and his relationship with Doe “progressed” to
being “together” again. Text messages from May and June 2014 show the two in an
amorous relationship, with Doe expressing her love for defendant. The relationship
ended when Doe no longer wanted to accept money from him. Defendant maintained
weekly visits with his daughter for a year or two, but Doe’s family started to make
visiting more difficult, and defendant saw his daughter less and less.
In April 2016, defendant had not seen his daughter in several months. He told
Doe he was going to file a child support application, but he was still in love with her and
wanted to work things out informally. About the same time, defendant attended a social
function where Doe’s mother would not let him dance with his daughter. Defendant
became upset and told Doe that she was “going to pay” for that. On April 17, he filed an
application to determine child support (which he understood as a means “to have more
custody” with his daughter), and the county opened a support case on May 3. Doe
phoned him upset about the application, and Doe’s father convened a meeting. Doe and
her father accused defendant of “taking [Doe] at force” and defendant was shocked.
They discussed the DNA testing required to establish paternity, and the amount of child
support Doe would receive. Doe and her father asked defendant to drop the child support
case, and Doe threatened to report that he forced her to have sex if he continued with the
application. Defendant’s parents testified that Doe and her father wanted defendant to
withdraw the child support case, and Doe said she would claim defendant abused her if
he did not comply.

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 II. DISCUSSION
A. MISTAKEN CONSENT DEFENSE
Defendant argues substantial evidence supported a mistaken consent defense, and
the trial court committed prejudicial error by failing sua sponte to instruct the jury on the
defense.
Our Supreme Court in People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry) held
that a defendant who holds a reasonable and bona fide belief that a victim voluntarily
consented to asportation and sexual contact does not have the wrongful intent necessary
to be convicted of kidnapping and rape. (Id. at p. 155.) The court later described a
Mayberry defense as having both a subjective and an objective component. (People v.
Williams (1992) 4 Cal.4th 354, 360 (Williams).) The subjective component is satisfied
where the defendant “adduce[s] evidence of the victim’s equivocal conduct on the basis
of which he erroneously believed there was consent.” (Id. at p. 361.) The objective
component is satisfied where the defendant’s belief regarding consent was formed in
circumstances society will tolerate as reasonable. (Ibid.)
When warranted by the evidence, a trial court has a sua sponte duty to give a
mistaken consent instruction. (Mayberry, supra, 15 Cal.3d at pp. 156–157.) Specifically,
the instruction must be given when there is “substantial evidence of equivocal conduct
[on the part of the victim] that would have led a defendant to reasonably and in good faith
believe consent existed where it did not.” (Williams, supra, 4 Cal.4th at p. 361; People v.
Salas (2006) 37 Cal.4th 967, 982 [“a defendant has a right to have the trial court, on its
own initiative, give a jury instruction on any affirmative defense for which the record
contains substantial evidence”].) Conversely, there is no basis for the instruction where
“the only evidence from the defendant is unequivocal consent and from the victim
nonconsensual forcible sex.” ( People v. May (1989) 213 Cal.App.3d 118, 125 (May).)
Substantial evidence to support the instruction exists where the evidence “ ‘if believed by
the jury, [is] sufficient to raise a reasonable doubt’ ” as to guilt. (Salas, at p. 982.) On
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appeal, a reviewing court considers the evidence in the light most favorable to the
appellant. (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
The evidence in Mayberry warranted mistaken consent instructions for kidnapping
and rape because Mayberry’s testimony “could be viewed as indicating that he
reasonably and in good faith believed that [the victim] consented to accompany him to
the apartment and to the subsequent intercourse,” and the victim also testified to
equivocal behavior on her part. (Mayberry, supra, 15 Cal.3d at p. 156.) Mayberry
testified that he saw the victim; engaged her in conversation; accompanied her to the
grocery store and to a store where she purchased cigarettes; and she accompanied him
willingly to his home where they had consensual sex. (Id. at p. 149.) The victim testified
that Mayberry, whom she did not know, approached her on the street as she was walking
to the grocery store. (Id. at p. 147.) He accosted her and shouted obscenities. (Ibid.) He
then confronted her in the store, told her she was going to go outside with him, and she
would “ ‘pay for it’ ” if she did not cooperate. (Ibid.) She left with him because she was
confused and scared and did not see a store security guard. (Ibid.) They spent several
minutes outside the store before walking to another store where, after buying cigarettes,
the victim “ ‘put on an act’ ” and tried “ ‘to fool’ ” Mayberry to facilitate an escape.
(Id. at pp. 147–148.) She “ ‘tried to talk him out of it’ ” as they sat on a curb, after which
she walked with him several blocks to his apartment without resisting. (Id. at p. 148.)
After 15 minutes in Mayberry’s apartment during which she unsuccessfully tried to
persuade him to change his mind, Mayberry had sex with her without her consent. (Ibid.)
The Supreme Court explained that the victim’s “ ‘act’ and admitted failure physically to
resist him after the initial encounter or to attempt to escape or obtain help might have
misled him as to whether she was consenting.” (Id. at p. 156.)
The evidence also supported a mistaken consent instruction in May. The victim
and May met in a bar, drank together, left together, went to two more bars where they
continued drinking, and then went to an apartment May shared with his father, where
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they engaged in oral sex. (May, supra, 213 Cal.App.3d at pp. 122–123.) The victim
testified that she felt an attraction to May when she left the first bar with him. (Id. at
p. 122.) When they arrived at his apartment, May told her to go to the bedroom and
disrobe. She followed him to the kitchen where she wielded a knife and told him “no.”
May took the knife from her hand, slapped her face, and led her to the bedroom where
she disrobed and complied with his sex demands because she felt she had no choice. (Id.
at p. 123.) She dressed and left the apartment when May left the bedroom to take a phone
call. (Ibid.) May testified that they left the bar together because the victim offered him
sex for money; they drank and flirted with each other for several hours; and she became
upset when he refused to pay her for the sex. (Id. at pp. 123–125.) May’s father testified
that May and the victim entered the apartment holding hands and whispering; the two
drank a beer in the kitchen; the victim led May to the bedroom where they spent 15 or 20
minutes and exited together; and the father neither saw nor heard anything unusual. (Id.
at p. 124.)
Substantial evidence in that case would have permitted a jury to find that May had
a good faith, albeit mistaken, belief that the victim had consented to the sexual acts. The
victim willingly accompanied May to the apartment after “several hours of merriment,”
she failed to leave the apartment when May told her to go to his bedroom, she did not
verbally object while in the bedroom, and an inference could be drawn from the
testimony of May’s father that the victim had willingly participated in the sexual
encounter. (May, supra, 213 Cal.App.3d at p. 126.)
In contrast to Mayberry and May, the evidence in Williams did not support a
mistaken consent instruction. (Williams, supra, 4 Cal.4th at pp. 365–366.) The
defendant and victim in Williams met at a homeless shelter in San Francisco. (Id. at
p. 357.) Williams invited the victim for coffee “ ‘with no strings attached,’ ” and they
spent the morning walking and conversing. (Ibid.) The victim testified that Williams
asked her if she would like to watch television, and she thought he was inviting her to a
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friend’s house. She did not think he was suggesting sex because he had told her he had a
daughter about her age. (Ibid.) They entered a building where Williams rented a room
and Williams asked the clerk for a sheet, at which point the victim realized they were in a
hotel. (Ibid.) The victim testified the sexual encounter occurred only after Williams
blocked her attempt to leave the room, punched her in the eye, pushed her onto the bed,
ordered her to take off her clothes, and told her he did not like to hurt people. (Id. at
p. 362.) Williams testified that the victim initiated the sexual contact in the hotel room,
fondled Williams to overcome his impotence, and inserted his penis into her vagina.
(Ibid.) The Williams court observed “if ‘defense evidence is unequivocal consent and the
prosecution’s evidence is of non-consensual forcible sex the [Mayberry] instruction
should not be given,’ ” and the “wholly divergent accounts create no middle ground from
which Williams could argue he reasonably misinterpreted [the victim]’s conduct.” (Id. at
p. 362.) Williams’s testimony that the victim fondled him and inserted his penis inside
her, if believed, established actual consent. (Ibid.) The victim’s testimony—that she was
blocked from leaving the room, punched, pushed on the bed, ordered to undress, and
threatened—would preclude any reasonable belief in consent. (Ibid.)
We find the testimony here distinguishable from Mayberry and May, and
analogous to Williams. Defendant described the encounter as Doe providing unequivocal
consent: Defendant testified that he contacted Doe as he approached her apartment; she
opened the door; they embraced; briefly talked; and started “making out” on the sofa.
After 30 seconds or a minute, Doe gave defendant an inviting “little look” and they
together moved from the sofa to the bed as they continued kissing. They both undressed;
they started “doing first just the tip”; Doe retrieved a condom from the windowsill and
offered to put it on defendant’s penis. Defendant was embarrassed and nervous; he knew
it was Doe’s first time; and he put the condom on himself. The intercourse started with
her on top, but her legs started to shake so they switched positions. They had brief
intercourse with him on top, until she asked him to stop, at which time he “pulled away”
9
and they started cuddling. She did not push him away or cry, and he did not use force.
The prosecutor asked defendant in his mind how many seconds of unwanted sex would
amount to rape. Defendant responded, “It never happened, so how would I know.”
Doe testified that the sex was forced and without her consent. Defendant came to
her apartment unannounced and was aware of her views against premarital sex. She
opened the door because she thought it was one of her parents who had just left for work,
and she was surprised to see defendant. He said he wanted to talk, came inside, and told
her he loved her. He “started to get too close,” she “got up,” he “cornered” her and
started kissing her in a forceful way. She kissed him back at first, thinking it would calm
him down. But it didn’t and she stopped responding to the kissing. Defendant grabbed
her and pushed her onto the bed. “And he just went on top of me, and I was pushing him
and was telling him to stop, but he didn’t.” He “started grabbing [her] hand” and tried to
pull down her pajamas, and she “was fighting through the whole time.” She “was telling
him to stop” and “asking him, ‘[w]hat are you doing?’ ” He did not answer. He held her
hands and pulled down her pants and forced himself into her. At that point she stopped
moving and was “just crying and crying,” and “he just kept going until he stopped.”
Afterwards, he hugged her and said he was sorry.
In Mayberry, the victim herself offered evidence of equivocal conduct. She put on
an act to fool Mayberry in public, and did not attempt to flee or seek help as she walked
with him. (Mayberry, supra, 15 Cal.3d at p. 156.) In May both the victim and the
defendant’s father offered evidence of equivocal conduct. The victim acknowledged that
wielding a knife instead of leaving could have been viewed by May as joking, and May’s
father’s testimony supported an inference that the victim behaved as if she were a willing
participant in the sexual encounter. (May, supra, 213 Cal.App.3d at p. 126.) In contrast
here there was no substantial evidence of equivocal conduct which defendant could have
reasonably mistaken for consenting to intercourse. If believed, defendant’s testimony—
that he and Doe “made out,” moved to the bed and undressed together, and that Doe
10
provided and offered to apply a condom—would establish actual consent. If believed,
Doe’s account—that after kissing defendant she physically and verbally resisted as he
pinned down her arms and pulled down her pants—would preclude any reasonable belief
of consent. As in Williams, the “wholly divergent accounts create no middle ground from
which [defendant] could argue he reasonably misinterpreted [Doe’s] conduct.”
(Williams, supra, 4 Cal.4th at p. 362.)
Defendant argues substantial evidence supports a mistaken consent instruction
because after he arrived at Doe’s apartment, she kissed him and “acquiesced when he did
other things”; he could have reasonably misinterpreted Doe’s “look” to mean a desire to
have sex; he and Doe agree that she told him to stop; and “[a] reasonable juror could have
concluded that [he] did stop more or less immediately, though it might have seemed
longer to Doe.” We acknowledge Doe’s testimony that she initially “kiss[ed] him back.”
But in light of all the testimony, that is not sufficient evidence of equivocal consent to
sexual intercourse. Doe testified that she stopped kissing defendant and actively resisted
him both verbally and physically up to the moment he penetrated her, at which time she
started to cry. Had the jury believed defendant’s testimony that he “pulled away” as soon
as Doe asked him to stop, it would have necessarily rejected Doe’s testimony about
actively resisting and it would have returned a not guilty verdict. Crediting defendant’s
version of the events leads to a defense of actual consent, not mistaken consent.
Although a jury is entitled to accept some portions of a witness’s testimony and
reject others (CALCRIM No. 226; People v. Wickersham (1982) 32 Cal.3d 307, 328),
defendant has not shown a “middle ground” on which to argue he reasonably
misinterpreted Doe’s conduct. Their completely disparate accounts present questions of
credibility, not evidence of mistake.
We agree that a defendant’s state of mind is often shown through circumstantial
evidence, which may prevail over even the defendant’s own testimony. (May, supra,
213 Cal.App.3d at p. 127.) Defendant points to Doe’s “motive to minimize her role and
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shift blame” to preserve her standing with her family and church. But this too is a
challenge to Doe’s credibility, not circumstantial evidence of her equivocation. Even if
the jury believed that Doe and defendant had done “more than kiss” before the charged
incident; that Doe and defendant had frequent consensual sex after the incident; that Doe
wanted more from the relationship than defendant was able to give; and that Doe’s
decision to report the rape was motivated by defendant’s decision to assert his parental
rights, none of that evidence establishes mistake on the date in question. Nor does the
36-minute pretext call provide a basis for mistaken consent. At times in the call
defendant appears to acknowledge forcing himself on Doe; at other times he takes the
position that he stopped when Doe asked him to stop. At the beginning of the call
defendant responded, “are you really serious about that?” when Doe told him she was
thinking about reporting “what happened in 2012 when everything started, when, um,
you forced me to have relations with you.” Defendant replied with, “It didn’t even last
10 seconds,” and insisted that he pulled away when Doe “pushed me … [and] said stop
three times.” Never on the lengthy call did he or Doe suggest that he had misunderstood
some act or conduct on Doe’s part as consent.
For the reasons we have explained, we find no trial court error or due process
violation in not giving a mistaken consent instruction. We therefore also reject
defendant’s alternative argument that trial counsel was constitutionally ineffective for
failing to request the instruction.
B. CHARACTER DEFENSE INSTRUCTION
Defendant argues trial counsel was ineffective for not requesting CALCRIM
No. 350 regarding evidence introduced about a defendant’s character. 1 According to

1
CALCRIM No. 350 provides, “You have heard character testimony that the
defendant (is a person/ [or] has a
good reputation for in the
community where (he/she) lives or works). [¶] Evidence of the defendant’s character for
can by itself create a reasonable
12
defendant, the instruction was necessary because the prosecution introduced evidence of
his stalking Doe and having unwanted sex with her, and the jury was instructed on
evidence of uncharged domestic violence, uncharged forcible rape, and uncharged
forcible sodomy to show that he was “disposed or inclined” or “likely” to commit the
charged offenses. (Evid. Code, §§ 1108, 1109.) Defendant presented one character
witness, a woman he dated and with whom he had sex around the time he first had sex
with Doe; she testified that defendant had a character for nonviolence. The jury was not
instructed on how to use character evidence in particular.
Ineffective assistance requires a showing that counsel’s performance was
deficient, and the defendant was prejudiced by the deficiency. (Strickland v. Washington
(1984) 466 U.S. 668, 687.) Even if counsel should have requested the instruction, we see
no resulting prejudice based on the instructions as given. To prove prejudice, a defendant
must affirmatively show a reasonable probability of a more favorable result but for trial
counsel’s errors. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” (People
v. Williams (1997) 16 Cal.4th 153, 215.) Defendant’s character witness testified that she
had a three-year relationship with defendant which started when she was 15 and
defendant was 17. Their families were close and had known each other since she was
small. She was sexually intimate with defendant throughout the relationship and had

doubt [whether the defendant committed ]. However, evidence of the defendant’s
good character may be countered by evidence of (his/her) bad character for the same trait.
You must decide the meaning and importance of the character evidence. [¶] [If the
defendant’s character for certain traits has not been discussed among those who know
(him/her), you may assume that (his/her) character for those traits is good.] [¶] You may
take that testimony into consideration along with all the other evidence in deciding
whether the People have proved that the defendant is guilty beyond a reasonable doubt.”
(CALCRIM No. 350.)
13
sexual intercourse with him. In her opinion, defendant had a character and reputation for
nonviolence.
The jury was instructed to “impartially compare and consider all the evidence that
was received throughout the entire trial” and to “decide whether a fact in issue had been
proved based on all the evidence.” The character evidence was not so complex that the
jurors would have difficulty assessing the information and relating it to the disputed
issues in the case. In closing argument, trial counsel contrasted the former girlfriend’s
testimony—that she and defendant were sexually active for three years and defendant had
a reputation for nonviolence—with Doe’s testimony that she and defendant were actively
involved in a dispute over their daughter and that he was “the most violent person in the
world.” Nothing prevented jurors from giving the good character evidence all the weight
they believed was appropriate. Even crediting the former girlfriend’s testimony, it did
not impeach Doe’s testimony as to the charged incident, which was corroborated by
evidence of her demeanor at work the morning of the assault, her statement to a friend
later that week, and statements made by defendant in the pretext phone call.
C. CUMULATIVE PREJUDICE
As we have explained, the trial court was not required to give a mistaken consent
instruction, and we see no prejudice resulting from the instructions as given. We
therefore reject defendant’s argument that the cumulative impact of individual errors
deprived him of a fair trial under the federal Constitution. Our examination of the entire
record shows no miscarriage of justice (Cal. Const., art. VI, § 13) or due process
violation.
III. DISPOSITION
The judgment is affirmed.

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 ____________________________________
Grover, Acting P.J.

WE CONCUR:

____________________________
Lie, J.

____________________________
Wilson, J.

H048181 - The People v. Munoz