To warrant a Mayberry instruction, there must be substantial evidence that the defendant honestly and reasonably, but mistakenly, believed the victim consented. Appellant broke into the victim’s house with a two-foot metal bar, told her he killed a police man, and threatened that “something bad” would happen if she did not agree to have sex with him. The woman did so because she thought appellant would hurt either her or her two-year-old child. Appellant was convicted of rape and sodomy and sentence under the One Strike Law (Pen. Code, § 667.61). He argued instructional error occurred as to both counts when the court denied his request for a Mayberry instruction telling the jury it must find him not guilty if he actually and reasonably believed the victim consented. The court held the instruction was properly denied because there was not substantial evidence to support it. The Mayberry defense has both a subjective and an objective component. Even if the facts here supported the subjective component they did not satisfy the objective one. Appellant’s belief of consent was unreasonable under the circumstances.
To trigger the One Strike Law based on burglary as an aggravating circumstance, the jury is not required to agree which specific sex offense was the object of the defendant’s intent when he entered the victim’s residence. As to the one strike allegation, the jury was told it had to decided whether appellant committed the crime during the commission of a burglary with the intent to commit sodomy and/or rape. On appeal it was argued the jury should have been required to unanimously agree on which specific sex offense appellant intended to commit when he illegally entered. The appellate court explained that burglary is one of five possible aggravating circumstances for application of the One Strike Law, and it differs from the others because it requires proof of intent to commit an enumerated sex offense upon entry. But the court found no legally significant difference between the use of the phrase “intent to commit … any felony” in the burglary statute, and the words intent to commit “an offense” in the One Strike Law. Just as with the crime of burglary, the jury does not need to unanimously agree on which specific offense the perpetrator intended to commit at the time of the entry. The burglary exception to the unanimity requirement equally applies to the burglary aggravating circumstance under the One Strike Law.