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Name: People v. Cordell
Case #: D056302
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/01/2011

An instruction on the defense of mistake of fact as to consent to sexual acts need only be given if the evidence supports a factual scenario where the defense would apply. People v. Mayberry (1975) 15 Cal.3d 143, 155, established a defense when the defendant actually and reasonably believed that the victim consented to charged acts. People v. Williams (1992) 4 Cal.4th 354 clarified when the defense instruction was required. There must be substantial evidence of the subjective component that the defendant honestly and in good faith believed there was consent and the objective component which asks whether the defendant’s mistake of fact was reasonable under the circumstances. In this case there were two factual scenarios: the victim testified that the sex acts were not consensual and followed an assault with a hammer; and, the defendant’s testimony that the acts were consensual and occurred prior to the hammer assault. There was no testimony or argument by defense counsel that Cordell was mistaken based on some equivocal conduct or statements by the victim.
The evidence did not support a conviction for fraudulent conveyance of an access card pursuant to Penal Code section 484e, subdivision (a). The word “convey” is not defined in the statute, but the dictionary meaning suggests a transfer of possession, custody, control or ownership. The statutory scheme sets the offense apart from the fraudulent “use” of an access card which is separately forbidden by Penal Code section 484g. In this case, Cordell used the victim’s access card on four different occasions to purchase goods without the victim’s consent. Based on the plain reading of the relevant statutory provisions, there was only evidence of “use” and not evidence that he “conveyed” the card. The conviction under section 484e, subdivision (a) was reversed.