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Name: People v. Dominguez
Case #: S130860
Court: CA Supreme Court
District CalSup
Opinion Date: 08/28/2006

The trial court did not err in failing to instruct the jury that a reasonable but mistaken belief that the victim has consented to sexual intercourse is a defense to rape where the defendant did not request such an instruction, did not rely on that defense at trial, and presented no substantial evidence to support the defense. Here, the defense presented was actual consent, not a mistake-of-fact defense, and the trial court did not err in failing to provide a sua sponte Mayberry instruction. (See People v. Mayberry (1975) 15 Cal.3d 143.) Evidence of asportation was sufficient to support a conviction of kidnaping for rape where the jury was properly instructed and evidence showed that the defendant moved the victim into a secluded area down a steep embankment. Finally, although the People conceded that the trial court erred in failing to instruct the jury on nonkiller liability for felony murder, the evidence was harmless under any standard where the facts overwhelmingly demonstrated that the defendant directly and actively participated in the victim’s rape and kidnaping.