People v. Acevedo

Citations: 166 Cal. App. 3d 196; 212 Cal. Rptr. 328; 1985 Cal. App. LEXIS 1823Docket: B003090

Court: California Court of Appeal; March 27, 1985; California; State Appellate Court

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Carlos Chacon Acevedo was convicted of two counts of rape under California Penal Code § 261, subd. 2, and appeals the conviction on several grounds. He contends that the trial judge made several errors: failing to instruct the jury on lesser included offenses (attempted rape and assault with intent to rape); not clarifying that the jury could not consider both offenses simultaneously; allowing evidence related to one victim to influence the jury's perception of the other; providing misleading jury instructions regarding the defendant's good faith belief in the victim’s consent; and asserting that the mandatory prison sentence for rapists using force violates equal protection principles.

The facts of the case detail two separate incidents involving Acevedo. In the first, he assaulted Josefina P., a Mexican citizen illegally in the U.S., during a driving lesson. After threatening her and using physical force, she complied out of fear. She did not report the incident immediately due to distrust of authorities. In the second incident, he attempted to assault Esperanza C., a Colombian mother, during a driving lesson after inviting her to his home under false pretenses. He physically restrained her but she managed to escape with her child. The appellate court affirmed the judgment, disagreeing with Acevedo’s claims.

Josefina overheard Esperanza discussing an incident involving Acevedo while waiting for an appointment for her child. The two women shared their experiences with police. Acevedo presented a different narrative, claiming that Josefina initiated sexual activity by disrobing after he interpreted her discussion of her past marriage as a sexual advance. He denied any acts of violence or threats towards Josefina, asserting that he only engaged in one act of intercourse and did not attempt to kiss Esperanza or show her pornography. The jury convicted Acevedo on two counts of rape against Josefina, but could not reach a verdict on the charge involving Esperanza, which was later dismissed. Acevedo received a mandatory minimum sentence of three years for each rape count, to be served concurrently.

Acevedo argued that the trial judge erred by not instructing the jury on lesser included offenses, claiming that threats he made could have induced Josefina’s compliance, thus negating the occurrence of rape under section 261, subdivision (2), which requires force or fear of bodily injury. The court found this argument unpersuasive, stating that instructions on lesser included offenses are only necessary when evidence raises questions about the elements of the charged offense, not when evidence supports a greater offense. Josefina's testimony indicated she experienced force or fear of immediate bodily injury, fulfilling the requirements for forcible rape. The court noted that disbelief of prosecutorial evidence does not warrant lesser included offense instructions unless there is a valid basis for such an instruction, referencing previous case law to support its conclusion.

Acevedo argues that the trial judge erred by not instructing the jury to consider each offense separately, which is generally required by law. Although the judge failed to do so, the jury appeared to have considered the offenses independently, as evidenced by their failure to reach a consensus on the Esperanza offense while convicting Acevedo for the Josefina offense. Acevedo's speculation regarding the influence of the Esperanza offense on the jury's decision for the Josefina offense does not demonstrate clear prejudice, as it is unlikely a different outcome would have occurred even with the instruction. 

In the referenced case, In re Anthony T., the court reversed a decision due to the trial judge's failure to consider each robbery separately, which was deemed prejudicial. However, in Acevedo's case, no such prejudice is established. Additionally, Acevedo contends that evidence related to the Esperanza offense should not have been admitted or considered in relation to the Josefina offenses, citing evidentiary code. However, since there was no motion to sever the charges or objection to the prosecutor's argument regarding this evidence during the trial, Acevedo cannot raise this issue on appeal.

Lastly, Acevedo claims that the jury instruction on reasonable and good faith mistake regarding consent (CALJIC No. 10.23) was misleading. The instruction states that a defendant can be acquitted if there is reasonable doubt about their belief in consent. Despite Acevedo's criticism, the court finds that the instruction accurately reflected the law regarding consent.

Acevedo contends that consent is not a valid defense in the context of his case, arguing that the prosecution must establish nonconsent as part of its case. He claims the jury instruction on consent is inadequate because it fails to define 'consent,' does not align with the instruction regarding general criminal intent (CALJIC No. 3.30), and creates confusion regarding reasonable doubt. The court disagrees, affirming the instruction's appropriateness. It references People v. Mayberry, where the California Supreme Court ruled that while the prosecution must prove all elements of rape beyond a reasonable doubt, including lack of consent, the defendant holds the burden of demonstrating a good faith belief that consent was given, thus creating reasonable doubt on that issue.

Acevedo acknowledges the Mayberry instruction but argues it is irrelevant due to changes in the rape law since 1975. The court maintains that Mayberry remains relevant under the current legal definition of rape, which is nonconsensual sexual intercourse. The jury was informed that the prosecution needed to prove the act was against the victim's will, equating 'will' with 'consent' as defined in standard dictionaries. The instruction does not alleviate the prosecution's burden to prove the act was against the victim's will, thereby indicating a lack of consent. The court concludes that further definitions would complicate matters unnecessarily.

CALJIC 3.30 clarifies that a defendant in a general intent crime is guilty if they intend to commit a prohibited act, while CALJIC 10.23 allows a defendant to present evidence of a good faith belief in consent. The instruction ensures that a defendant only needs to raise a reasonable doubt regarding their belief in consent, and any potential confusion benefits Acevedo, as it reinforces the principle that a defendant is entitled to the benefit of the doubt, potentially leading to acquittal.

Acevedo argues that California Penal Code section 1203.065, which denies probation to rapists who use force, violates his equal protection rights because it allows for probation for other types of rapists. The court finds this argument unmeritorious, stating that equal protection claims require showing that the state treats similarly situated groups unequally. Section 1203.065 specifically denies probation to rapists who commit violent acts against victims, while allowing probation for those who exploit unconscious victims or deceive their victims. This classification aligns with California law, which primarily restricts probation for violent crimes and serious offenses. 

The court notes that marital rapists may pose less danger to the public and have a higher chance of rehabilitation due to the nature of their crimes, which are often rooted in outdated marital rights beliefs. Thus, once rehabilitated, they can maintain positive family relationships, benefiting society. The court emphasizes that the Constitution does not require equal treatment for different crimes, nor does it necessitate ignoring the circumstances under which a crime was committed. Acevedo fails to demonstrate that there is a disparate treatment of similarly situated individuals. The judgment against him is affirmed, with both concurring judges and a denial of his petition for Supreme Court review on May 23, 1985.