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Name: People v. Dillon et al.
Case #: A117853
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 06/16/2009

CALCRIM No. 1045 read in conjunction with CALCRIM No. 890 adequately instructs the jury that if the prosecution failed to prove complainant’s lack of consent, defendant cannot be convicted of assault with intent to commit forcible sexual penetration. Nineteen-year-old Antoinette went to San Francisco with friends to celebrate New Year’s Eve. When her friends went into a hotel for drinks, she stayed outside. While smoking a cigarette, she received a cell phone call from another friend who suggested they meet up near a clock tower. Antoinette set out to meet him but soon became lost. As she was walking, she was approached by the two defendants, Dillon and Hall. According to Antoinette, they would not leave her alone. Dillon grabbed her phone from her, and Hall forcibly restrained her and put his hands in her underpants and may have momentarily penetrated her vagina. Antoinette broke free and ran to a hotel, but Dillon grabbed her by the hair and pulled her away and grabbed her purse from her. At that point, a security guard came to her assistance. A hotel security camera showed Dillon following Antoinette, pulling her hair, and carrying the purse in his hand. Off duty sheriff’s deputies celebrating at the hotel chased Dillon and detained him, and San Francisco police officers detained Hall. Dillon was convicted of grand theft person, assault, and battery, and Hall was convicted of assault with intent to commit penetration. The appellate court rejected Hall’s argument that the trial court erred in failing to include in the assault with intent to commit forcible penetration instruction that consent was an element of the crime. Because the instruction was made in conjunction with the instruction defining the crime of penetration (Pen. Code, sec. 289, subd. (a)(1)), which specifies that the victim’s lack of consent is a necessary element, a reasonable juror reviewing the two instructions would understand that lack of consent also applied to the assault to commit the sexual penetration crime. Unless there is substantial evidence of equivocal conduct by the victim that would cause defendant to have a good faith belief as to consent, the court is not required to give a mistake of fact instructions with respect to defendant’s belief as to consent. (People v. Mayberry (1992) 15 Cal.3d 143.) The court also rejected appellant’s claim that the trial court erred in not giving a Mayberry instruction, finding that the evidence was insufficient to support such an instruction. Mayberry should not be given absent substantial evidence of equivocal conduct that would have led defendant to reasonably and in good faith believe that consent existed where it did not. Here, if Antoinette was not believed, there was no crime. If she was believed, there was nothing she did or said that could have caused Hall to be confused and believe there was consent.