People v. Bergstrom

BAMATTRE-MANOUKIAN

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. SS091186)

Defendant Carl Raymond Bergstrom was convicted by jury trial of sodomy by force (Pen. Code, § 286, subd. (c)(2)) and committed to state prison to serve a six-year term. On appeal, he contends that the trial court prejudicially erred in (1) admitting evidence of two prior uncharged sex offenses under Evidence Code section 1108, (2) ruling admissible a video of defendant engaging in consensual anal sex, (3) admitting evidence of defendant's prior drug-related misconduct to impeach his trial testimony, and (4) giving an improper instruction on the lack of consent element. His final contention has merit, and we conclude that the trial court's instructional error requires reversal of the judgment.

Defendant has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas corpus petition by separate order.

I. Background

In April 2009, Jane Doe 1 encountered defendant at a bar in Carmel. She knew him professionally, as she worked as a physical therapist and he was a physician. The two of them talked and drank for a while in the bar, and then they went to another bar together. At the second bar, they continued to drink and converse. Defendant invited her back to his home, and she accepted the invitation. He drove her to his house. At his house, he opened a bottle of wine, and they drank wine and talked some more. Defendant hugged her, and she "felt like there was a connection there." They sat on defendant's couch and began embracing and kissing.

Jane Doe 1 testified at trial that, at that point, she "felt like I was starting to fade out." Her "next recollection was . . . becoming aware that I was being sodomized." "It hurt." Her pants and underwear were not on, and she could not recall how she got into this position. Defendant's "penis was in my anus, thrusting." He "pulled my hair," "held my hair," and "held me down somehow on my calves." She tried to "move him off me with my hands, but they were behind my back."

Jane Doe 1 testified that she said: " 'no. No. No.' " and " 'I don't like it.' " "I said 'please stop. Take it out.' " Defendant did not say anything and did not stop. She could hear him "[g]runting" and breathing heavily. Jane Doe 1 felt "intense pain" in her anus. At one point, defendant took his penis out of her anus. Jane Doe 1 "didn't say anything because I didn't know if he was done . . . and I was just trying to breathe . . . ." Defendant then returned his penis to her anus. He was "very forceful when he entered." She said " 'no, no, no,' and he grabbed my hips." Jane Doe 1 tried to move away from him, but he continued to have anal intercourse with her. She felt his hands on her buttocks. She said: " 'I don't like it,' 'it's painful,' 'it hurts,' 'please stop,' 'take it out,' 'take it out.' " Then, "[i]t suddenly stopped." Defendant got up, said nothing, and walked down the hallway.

Jane Doe 1 testified that she pulled her pants up, grabbed two cell phones and a set of keys, and went out the front door. It was dark outside, and she fell down as she fled. She crouched on the ground, trying to hide, and used one of the cell phones to call 911.

Jane Doe 1 suffered injuries from her fall and from hiding in the bushes.

Defendant also testified at trial about his encounter with Jane Doe 1. His testimony about that evening did not significantly differ from that of Jane Doe 1 up to the point when the two of them were sitting on defendant's couch. Defendant testified that Jane Doe 1 did not appear to be tired. They began kissing and embracing. "It was very passionate." He touched her breast, and she began rubbing his penis. He slid down his pants, and she began having oral sex with him. She was "aggressively" engaged in these activities. Jane Doe 1 moved to the floor on her knees in front of him and continued to orally copulate him. Defendant reached around and fondled her buttocks. He asked her " 'can I do you,' " and she stopped, which he took as an affirmative response. Defendant "went around behind her." "She was on her knees, on the floor. Her torso was on the pillow of the couch . . . ." He removed his sweater and pulled down his pants.

First, defendant put his finger in her vagina, and she made "moaning sounds," which he took as a positive response. He removed his finger and put his penis in her vagina. She continued to make what he took to be "sounds of pleasure." They engaged in vaginal intercourse for "quite a while." While they were having vaginal intercourse, defendant put his thumb on her anus and "was kind of massaging her anus for a while." This was his "way of communicating . . . can we explore this so to speak . . . ." He proceeded to insert his thumb into her anus. She continued to make "moaning, sexual noises." Defendant removed his thumb and asked Jane Doe 1: " 'do you want to try it.' " She said nothing and did not move.

Defendant testified that he removed his penis from her vagina, put saliva on it, and inserted it into her rectum. After a few "slow thrusts" of his penis, Jane Doe 1 said " 'stop, stop, stop.' " "[L]ike 'slow down' or 'don't' - or, you know, 'wait a minute here,' you know, that's what - that's what I understood that to be." Defendant testified that he thought she wanted him to "slow down." He did not think that she was refusing to engage in anal sex. He stopped and removed his penis. Jane Doe 1 did not move or say anything else after he had done so. Defendant put his penis back into her vagina, resumed vaginal intercourse, "and everything seemed great." Jane Doe 1 was again "moaning as if she liked it."

After a couple of minutes, he resumed massaging her anus with his thumb and possibly again put his thumb into her anus. "I was unclear what she meant by 'stop.' You know, I thought it was maybe like don't go so fast . . . ." "I said to her 'do you want to try again?' " She did not respond. He took his penis out of her vagina, put saliva on it, and started to slowly insert his penis into her anus again. When his penis was "about a third of the way in," "she said 'stop, get that out of here.' " He immediately removed his penis from her anus. Jane Doe 1 "jumped up," pulled up her pants, grabbed his coat and cell phones and ran out of the house. Defendant denied that he had held Jane Doe 1 down while they were having sex or that he had pulled her hair. He testified that he did not ejaculate at all during his sexual activities with Jane Doe 1.

After Jane Doe 1 left the house, defendant came out of the house and called out to her while she remained in hiding and waited for the police. He looked around and then went back inside. When the police arrived, they saw defendant inside his house through a window. He soon exited the house and spoke to the police.

Jane Doe 1 told the sexual assault examiner that she thought defendant had ejaculated "because otherwise he wouldn't have stopped, . . . but she didn't know for sure." The sexual assault examiner noted injuries to Jane Doe 1's anal area. No semen was found in Jane Doe 1's anal area, vaginal area, or underwear, which meant that defendant had not ejaculated. Jane Doe 1's anus hurt for two weeks after this event.

Tests revealed that defendant's blood alcohol level at the time of the event was .26, and Jane Doe 1's blood alcohol level was .31. Jane Doe 1 was also under the influence of Valium, an antianxiety drug, and Lexapro, an antidepressant, which may cause drowsiness. Jane Doe 1's DNA was found on defendant's penis and scrotum.

Defendant was charged by information with sodomy by force (Pen. Code, § 286, subd. (c)(2)). Over defendant's objections at trial, the prosecution introduced evidence of two prior uncharged sex offenses and evidence that defendant possessed a cell phone video of himself engaging in consensual anal sex. After the trial court ruled that evidence of defendant's possession of cocaine for sale was admissible to impeach him, defendant testified on direct examination that he had purchased cocaine and offered to sell or give some of it to a friend. The defense adduced evidence that Jane Doe 1's blood alcohol level was at such a high level that her "judgment," "memory," and "ability to communicate" would be "affected." A defense expert testified that a sexual assault examiner cannot tell whether the sexual conduct was consensual or not because injuries are common in both consensual and nonconsensual sex. She stated that the risk of injury during consensual anal sex is "very high." The defense expert estimated that anal sex causes injury 80 to 90 percent of the time. On rebuttal, the sexual assault examiner testified that anal injuries are found in examinations after anal sex about 50 percent of the time. At the prosecutor's request, and over defense objections, the trial court inserted language regarding the meaning of "legal consent" into the instruction on the charged forcible sodomy offense.

The jury returned a guilty verdict. The court denied defendant's new trial motion and sentenced him to a six-year prison term. He timely filed a notice of appeal.

Defendant's new trial motion was based on the court's alleged instructional error regarding consent and on the admission of evidence of the uncharged prior sex offenses.

II. Discussion
A. Prior Uncharged Sex Offenses

Defendant contends that the trial court prejudicially erred in admitting evidence of two prior uncharged sex offenses and in instructing the jury regarding those prior offenses.

1. Background

The prosecution sought an in limine ruling on the admissibility of evidence of two prior uncharged sex offenses under Evidence Code section 1108.

One of the incidents involved Jane Doe 2. The prosecutor asserted that Jane Doe 2 would testify that she brought defendant back to her apartment, and he "attacked" her. He "forc[ed] her onto her knees, pulling her hair, and forcibly penetrating her vagina with his penis. [Jane Doe 2] told him to stop, and [he] did not, continuing." Jane Doe 2 had first contacted the prosecution on June 1, 2009 and given a recorded statement. The prosecution repeatedly contacted her thereafter trying to convince her to testify, but she was reluctant and eventually "stopped accepting phone calls." The prosecution sent a subpoena to Jane Doe 2 on July 9, and she contacted the prosecution that day. The following day, July 10, Jane Doe 2 agreed to testify, and the prosecution made its first disclosure to the defense regarding her that day and provided the defense with a copy of her recorded statement from June 1.

During in limine motions, the court sometimes referred to Jane Doe 2 as Jane Doe 3 and vice versa. We refer to these individuals by the designations that were eventually assigned to them at trial.

The other incident involved a woman who at the time of in limine motions was unidentified and who was a friend of Michelle Ramsey. The prosecution proposed that Ramsey would testify that this unidentified woman (later identified as Jane Doe 3) had accompanied Ramsey and her husband to defendant's home, where they consumed alcohol. Ramsey and her husband went to sleep in a bedroom. In the night, Ramsey heard the sounds of sexual activity and heard the unidentified woman "saying 'stop' and 'enough.' " The unidentified woman came into the bedroom where Ramsey and her husband were and slept with them for the rest of the night. The next day, the unidentified woman told Ramsey that she and defendant had been having consensual sex when he "began sodomizing her. She told him 'no,' but he continued."

The defense challenged the admissibility of evidence of both prior uncharged sex offenses. Defendant claimed that this evidence should be excluded because the prosecution had failed to provide timely discovery to the defense and because this evidence was inadmissible under Evidence Code sections 1108 and 352.

When the court considered the discovery issue, it stated that the "only question" before it was "whether or not the late disclosure is cause for any type of exclusion sanction." The court decided that no exclusion sanction was merited because the prosecution had disclosed as soon as Jane Doe 2 indicated her willingness to be a witness. The court told the defense: "If you need time to prepare to meet this in any way, whether it's to address the admissibility of it or to deal with it if it is admitted, that certainly is an option that's open." Defendant's trial counsel replied: "[W]e are not requesting a continuance of this trial." The court repeated: "If you need more time, let's do it now." Defendant's trial counsel responded: "No, I don't need more time now." The court ruled that Jane Doe 2's testimony was admissible under Evidence Code section 1108. "[T]here may be particular aspects of it that we can address specifically; but as a concept, Jane Doe [2] is an incident that fits 1108. The prejudicial impact really is the probative nature of the evidence in this case . . . ." With respect to the incident involving the unidentified woman, the court refused to admit Ramsey's testimony because her statements either were inadmissible hearsay or involved too high a risk of misinterpretation.

On July 16, 2009, in the midst of trial, the unidentified woman contacted the prosecution and disclosed her identity for the first time. The prosecutor spoke with her that evening and recorded the interview. The following day, the prosecutor gave defendant's trial counsel a copy of the recording of the interview. The defense immediately complained to the court about the timing of the prosecution's disclosure of this information. Defendant's trial counsel noted that the defense had been previously given a copy of a police report recounting Ramsey's statements about this incident, but the police report did not contain any identifying information about the unidentified woman.

That police report had been produced as a result of Ramsey's April 23, 2009 telephone call to the police. During that call, Ramsey provided the unidentified woman's first name only and refused to provide additional identifying information about her. The report was referred to the prosecutor's office. The prosecutor's investigator thereafter repeatedly contacted Ramsey, but Ramsey refused to provide any further identifying information. The first name was redacted from the copy of the police report that had been provided to the defense. The trial court did not immediately rule on the defense objection to the timeliness of the prosecutor's disclosure regarding the previously unidentified woman, now referred to as Jane Doe 3.

The trial proceeded. Jane Doe 2 testified that she had known defendant for many years. In 2007, she went to a Carmel bar where her friend Shelly was the bartender. They encountered defendant at the bar. When the bar closed, the three of them went to Shelly's home. They were all drinking alcohol at the bar, and they were "pretty buzzed." At Shelly's house, they drank more alcohol. Defendant asked Jane Doe 2 to have sex with him, and she declined. He continued to ask, and she continued to decline. Jane Doe 2 testified that "[e]verything kind of came to a blur," and defendant pulled her hair and then began having sex with her. She was on her knees, and defendant was behind her holding her by her hair. Jane Doe 2 could not remember any other details except that defendant was "very rough." She testified that Shelly was present during some of the sexual activities. Jane Doe 2 "felt pretty defenseless." Eventually, defendant stopped and left. Jane Doe 2 thought that she did not remember details because she "may have been drugged."

After Jane Doe 2 had testified, the court held a hearing to consider defendant's challenge to the admissibility of evidence of the incident involving Jane Doe 3. At the commencement of this hearing, defendant's trial counsel again complained about the timeliness of the prosecutor's disclosure. The court responded: "Well, the first thing we do is we ask how much time you need?" Defendant's trial counsel replied: "I'm not going to ask the Court for any time." He also conceded that "I'm not going to win the due diligence issue." Nevertheless, he argued that "the evidence comes so late it leaves the Defense unable to prepare." The prosecutor noted that the defense had been provided with Ramsey's statement more than a month prior to trial. The defense also argued that this evidence should be excluded under Evidence Code section 352 because the event had occurred so long ago, and there was no corroborating evidence. The court overruled the defense objections and ruled that the evidence regarding the incident with Jane Doe 3 was admissible.

Jane Doe 3 thereafter testified that she first met defendant at a party in December 2006. A few months later, in February or March 2007, her friend Ramsey arranged for Jane Doe 3 to join Ramsey, her husband, and defendant for a double-date. They met up at a Carmel restaurant, where they had dinner and drank wine. After dinner, they moved on to another restaurant and had drinks there. Defendant invited them back to his house, and they went there. At defendant's home, they had more drinks. Jane Doe 3's memory of the evening was "a little foggy" at that point. "[I]t's kind of a blur to me . . . ." She thought that "possibly I had been given something." "I don't remember anything until briefly I was performing oral sex on [defendant]." "[A]nd then I don't really remember a whole lot until the sodomy incident." When she sensed that defendant was "penetrating me anally," she began "kind of yelling and saying 'stop, that's enough, no more,' and trying to sort of crawl away from him." Defendant was behind her, "holding onto" her. Defendant did not stop, but "kept going." She eventually "got away," went into the room where Ramsey and her husband were sleeping, and asked to sleep with them. The next morning, Jane Doe 3 told Ramsey what had happened. She did not notify the police because she did not want her children to find out. Jane Doe 3 did not know Jane Doe 1, but she knew Jane Doe 2, whom she had met a few times through Ramsey.

Ramsey testified that, after she went to sleep at defendant's house, she was awakened by the sound of Jane Doe 3 saying " '[e]nough.' " "[S]oon after," Jane Doe 3 came and asked to sleep with Ramsey and her husband. The next morning, Jane Doe 3 told Ramsey that defendant had sexually assaulted her. Ramsey was also acquainted with Jane Doe 2.

The defense called Jane Doe 2's friend Shelly Yellich to testify. Yellich recalled the occasion when Jane Doe 2 had come to her home with defendant. She had neither seen nor heard anything amiss on that evening. Jane Doe 2 had made no complaint to Yellich about defendant. Defendant testified that Jane Doe 2 had made no complaints when the two of them had sex on Yellich's couch.

Defendant also testified about the evening he spent with Jane Doe 3. He testified that the two of them began kissing on the couch, and then they moved to the rug in front of the couch to be more comfortable. While they were still on the couch, she orally copulated him. He and Jane Doe 3 removed their clothes and engaged in vaginal intercourse, which she seemed to enjoy. They then "switched positions" so that she had her back to him and he was behind her. They resumed having vaginal intercourse. After a while, he pulled his penis out of her vagina and "touched her anus with it." He was hoping to have anal sex, an act he enjoys, with Jane Doe 3. He slightly penetrated Jane Doe 3's anus with his penis. She "bucked up and jerked and squirmed, and she said 'that hole is not for that, get out of there.' " Defendant "[i]mmediately" "pulled back, and that was the end of it." Jane Doe 3 said " 'I'm out of here' " and left the room.

2. Timeliness of Disclosure

Defendant contends that the court abused its discretion in overruling his objections to the timeliness of the prosecution's disclosures regarding the uncharged prior sex offenses.

Penal Code section 1054.1 requires the prosecutor to disclose to the defense, if the information is in the prosecutor's possession, "[t]he names and address of persons the prosecutor intends to call as witnesses at trial" and "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial." (Pen. Code, § 1054.1, subds. (a) & (f).) "[W]itnesses whom the prosecutor intends to call at trial" means witnesses whom the prosecution " ' "reasonably anticipates it is likely to call." ' " (People v. Riggs (2008) 44 Cal.4th 248, 305.) The prosecutor must make these disclosures "at least 30 days prior to the trial . . . ." (Pen. Code, § 1054.7.) However, if the information "becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately." (Pen. Code, § 1054.7.) Evidence Code section 1108 expressly requires a prosecutor to comply with these provisions with regard to evidence of uncharged sex offenses. (Evid. Code, § 1108, subd. (b).)

Defendant's claim can succeed only if the prosecutor reasonably anticipated that she was likely to call Jane Doe 2 and Jane Doe 3 as witnesses at trial prior to her disclosures. However, defendant never demonstrated that this was so, and the record is to the contrary.

The prosecutor explained to the trial court that Jane Doe 2 had shunned all contact with the prosecutor after giving a statement on June 1 and did not express any willingness to testify at trial until the very day that the prosecutor disclosed her identity and statement to the defense. As soon as Jane Doe 2 reconnected with the prosecutor, the prosecutor swiftly made the requisite disclosures. The trial court could have concluded that the prosecutor did not reasonably anticipate calling Jane Doe 2 as a witness at trial in light of Jane Doe 2's refusal to communicate and therefore had no discovery obligations with regard to her until Jane Doe 2 renewed contact and agreed to testify.

As to Jane Doe 3, it is undisputed that the prosecutor did not have in her possession the identity of Jane Doe 3 or any statements of Jane Doe 3 until the middle of trial. The police report containing Ramsey's statements was timely disclosed to the defense. Although the first name of Jane Doe 3 had been redacted from that report, this information was insufficient to identify Jane Doe 3. Moreover, the prosecutor plainly did not reasonably anticipate calling Jane Doe 3 as a witness at trial before she had even learned Jane Doe 3's identity or made contact with her. "Until the prosecutor was able to locate the witness she could not 'intend to call' [her] as a witness. (§ 1054.1.) Once she did locate [her] she promptly fulfilled her disclosure duty." (People v. Walton (1996) 42 Cal.App.4th 1004, 1017, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)

Defendant argues that, due to the timing of the prosecutor's disclosures, he had no opportunity to investigate Jane Doe 2 or Jane Doe 3 or to find evidence that might have been used to impeach their testimony. This appellate argument cannot be credited as the trial court repeatedly offered the defense additional time for this purpose, and the defense made an explicit choice to decline these offers.

The trial court did not abuse its discretion in rejecting defendant's claim that the prosecutor had violated her discovery obligations with respect to Jane Doe 2 and Jane Doe 3.

3. Evidence Code Section 352

Defendant contends that the trial court abused its discretion in failing to exclude evidence of the two uncharged sex offenses under Evidence Code section 352.

"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) On appeal, "[t]his court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson).)

A trial court applies Evidence Code section 352 by weighing the probative value of the evidence against the potential for undue prejudice from its admission. (People v. Daniels (2009) 176 Cal.App.4th 304, 316 (Daniels).) "The evaluation of the potential for prejudice must consider numerous factors, including '[the prior sex offense's] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' [Citation.] Other relevant factors include whether the uncharged acts are more inflammatory than the charged conduct, the possibility the jury might confuse the uncharged acts with the charged acts and seek to punish the defendant for the uncharged acts, and the time required to present the evidence of the uncharged acts." (Daniels, at pp. 316-317; People v. Falsetta (1999) 21 Cal.4th 903, 917.)

To conduct the requisite weighing, the trial court's first step was to gauge the probative value of the evidence. The key contested issue in this case was whether defendant continued to have anal sex with Jane Doe 1 after she communicated to him that she was unwilling to participate in that act. Jane Doe 2 testified that defendant proceeded to have sex with her after she repeatedly told him that she did not wish to do so. Jane Doe 3 testified that defendant continued to have anal sex with her after she told him to stop and tried to get away from him. Evidence that defendant had twice before perpetrated sex acts against victims who had expressly notified him of their unwillingness suggested that he was predisposed to ignore expressions of lack of consent and to proceed with sex acts against unwilling victims. Thus, the testimony of Jane Doe 2 and Jane Doe 3 had substantial probative value on the key contested issue in this case.

The next step was for the trial court to the evaluate the potential for prejudice posed by evidence of the two uncharged acts. Defendant argues otherwise, but the prior uncharged acts were quite similar to the charged offense. Although the act described by Jane Doe 2 was vaginal intercourse rather than anal intercourse, Jane Doe 2, like Jane Doe 1, was highly intoxicated, and, as with Jane Doe 1, Jane Doe 2 testified that defendant penetrated her from behind and held her so that she could not escape. Jane Doe 3, like Jane Doe 1, was highly intoxicated, and she testified that, like Jane Doe 1, defendant anally penetrated her from behind and held her so that she could not escape.

Defendant argues that the prior uncharged acts were "remote," but he concedes that they occurred within two years of the charged offense. That is not remote. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276 [offense two years earlier was not remote].) Defendant contends that the evidence of the prior uncharged acts consumed significant time at trial. However, time consumption is only a prejudicial factor in the balance where undue time is consumed. Because the prior uncharged acts had substantial probative value, the consumption of time at trial to hear evidence of them was not undue.

The evidence of the prior uncharged acts was not more inflammatory than the charged offense, and there were no inflammatory details. The prior acts were very similar to the charged offense. Nor was there a less prejudicial alternative to the admission of this evidence. While this evidence was likely to impact the jurors, this impact was not unduly prejudicial but merely the consequence of the probative value of the evidence. The jury was not likely to be confused or misled as this evidence concerned events that occurred at different times and with different people than the charged offense.

Defendant argues that "the degree of certainty" that the prior uncharged acts had been committed and the burden on him to defend against the uncharged acts weighed against the admission of evidence of those acts. When evidence of prior uncharged acts is admitted, and those prior acts did not result in convictions, there will always be less "certainty" than there would be if there had been convictions, and consequently an additional burden on the defendant to defend against the uncharged acts. Nevertheless, these are just two of the relevant factors that a trial court must weigh in balancing probative value against undue prejudice.

Defendant complains that the evidence of the prior uncharged acts was unduly prejudicial because it did not come from independent sources. He relies on the fact that Jane Doe 2 and Jane Doe 3 knew each other and had been exposed to media reports about the charged offense. This circumstance does not detract from the fact that all of the evidence of the prior uncharged acts came from sources independent from those providing evidence of the charged offense. Jane Doe 2 and Jane Doe 3 did not know Jane Doe 1, nor did Ramsey. Jane Doe 1 knew nothing of the prior uncharged acts. Thus, the sources of evidence were substantially independent.

Defendant repeatedly suggests that the trial court failed to engage in the requisite weighing of probative value against undue prejudice. Not so. The trial court made an express reference to the weighing of probative value against prejudice in ruling on the admissibility of Jane Doe 2's testimony, so we can infer that it engaged in the same weighing process when it subsequently ruled on the admissibility of evidence regarding the act involving Jane Doe 3. (People v. Carter (2005) 36 Cal.4th 1114, 1151-1152 [court need not expressly mention weighing process; it may be inferred from the record].)

Since the only prejudicial factors weighing against the substantial probative value of this evidence were the degree of certainty and the burden on defendant in defending against the uncharged acts, the trial court could have reasonably concluded that those factors did not substantially outweigh the probative value of this evidence. Hence, it did not abuse its discretion in admitting this evidence.

4. Instructions Regarding Prior Uncharged Sex Offenses

Defendant contends that the trial court's instructions regarding the prior uncharged sex offenses were prejudicially erroneous because they informed the jury that those offenses could be proved by a preponderance of the evidence. He maintains that a higher standard of proof should apply where the uncharged acts did not result in convictions, but he cites no authority for the proposition that the standard of proof for uncharged acts should vary on that basis. Since the preponderance of the evidence standard has long been upheld for uncharged acts without any restriction based on whether those offenses resulted in convictions (People v. Schnabel (2007) 150 Cal.App.4th 83, 87), there is no basis for finding error in the trial court's instructions in this regard.

Defendant's trial counsel explicitly agreed below that the trial court's instruction was "appropriate."

B. Cell Phone Video

Defendant challenges the trial court's ruling that a video found on his cell phone of him engaging in consensual anal sex with a woman was admissible in the prosecution's case-in-chief. The video was never introduced. Instead, the parties stipulated that such a video existed and that defendant was not seen to ejaculate on the video. Defendant claims that the trial court's ruling that the video was admissible was erroneous and that he was prejudiced by this stipulation, which he argues that he entered into only because the trial court had ruled the video admissible.

1. Background

The prosecution sought admission of "ten video clips [found on defendant's cell phone], all approximately 30 seconds in length, depicting the defendant engaging in what appears to be consensual anal sex with a woman on the couch in the living room of his home." "[T]he woman in the video is still wearing her clothing above the waist, with her pants lowered to her knees, not removed . . . . Some still photographs depicting the same activities were also found on the defendant's cellular phone. The defendant does not ejaculate in any of the videos." The prosecution asserted that these video clips were admissible under Evidence Code section 1101, subdivision (b) to show that defendant "is 'enamored' with anal sex," to show that it was not an "accident" that defendant penetrated the victim's anus, and to "explain the absence of semen . . . ." "These videos clearly show that defendant is capable of engaging in anal sex for several minutes without achieving ejaculation."

Defendant challenged the admissibility of this evidence on relevance grounds. The defense told the court during in limine motions that defendant would testify and admit that he had vaginal and anal intercourse with Jane Doe 1. "The only issue will be consent." The defense did not contend that defendant could not be questioned about the incident depicted in the video. "Judge, I didn't mean to imply or suggest that he can't be asked about what happened [during the incident depicted in the video], whether he had engaged in anal sex in the past, whether he engaged in it for several minutes, and whether he did not ejaculate. And I'm just saying that these videos don't come in. You don't need the videos to -- to prove up those things." (Italics added.)

The court ruled that, "assuming that the foundation can be laid," the video was admissible because it "demonstrates a sexual orientation, I guess, a sexual preference, or a sexual something. . . . [a] particular type of sex . . . that's personal to the defendant, and . . . that has a significant amount of probative value. [¶] . . . [T]he impermissible prejudicial impact doesn't substantially outweigh the probative value of it . . . ." The court ruled that this video could be admitted during the prosecution's case-in-chief. The court subsequently suggested that the video was admissible even if defendant was not the person depicted in it. The court stated that it had not yet watched the video, but it "assume[d]" that the video was "as graphic as [it] can be."

The defense subsequently proposed a stipulation in lieu of the video in order to protect the privacy interests of the woman depicted in the video. This stipulation would include that defendant did not ejaculate during the events shown on the video. Although the defense asked the court to reconsider its ruling that the video was admissible, the court, after watching the video, declined to change its ruling. The parties then agreed to a stipulation in lieu of the video.

The stipulation provided that defendant had "participated in an act of anal sex with an adult female, not Jane Doe" in March 2009 that had been recorded on his cell phone. The video was "ten segmented video clips" with a total length of five minutes. The act was "completely consensual," and the female had consented to the filming of the act. The event had occurred on defendant's couch with the female on her knees and defendant behind her. "The defendant does not ejaculate during any of the video clips."

Initially, a single still photograph taken from the video was going to be introduced into evidence. However, the court subsequently ruled that the photo would not be admitted into evidence.

2. Analysis

Defendant claims that the trial court prejudicially erred in ruling the video admissible because the video lacked any relevance.

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)

The video itself was not admitted into evidence. Because, in advance of the trial court's ruling on the admissibility of the video, the defense conceded that the prosecution could properly elicit from defendant nearly all of the facts that were ultimately included in the stipulation, defendant's evidentiary challenge to the evidence included in the stipulation was not properly preserved for appellate review. The trial court was never asked to rule on the admissibility of the evidence in the stipulation because defendant had conceded that this evidence was admissible. Nor is there any basis for finding that the admission of this evidence during the prosecution's case-in-chief, rather than during the prosecutor's cross-examination of defendant, was prejudicial to defendant. Defendant's appellate claim therefore cannot succeed.

C. Impeachment With Prior Misconduct

Defendant contends that the trial court prejudicially erred in ruling that evidence that defendant had offered to sell cocaine was admissible to impeach him.

1. Background

The prosecution sought an in limine ruling on the admissibility of evidence of defendant's "prior acts of moral turpitude" to impeach him. The proffered evidence was a tape recording of defendant "purchasing cocaine . . . , [and] offering to sell cocaine and/or exchange cocaine for sexual favors . . . ." A transcript of the tape recording contains the following statements by defendant: "Want a line or somethin[g]?" "If you suck my dick, I'll give you half of it . . . (laughing) fuckin' chicks. Want a line?" "I'll give you a line. Want a line?" "I'll sell you some [for $40]." Defendant could also apparently be heard on the tape snorting cocaine.

Although the defense conceded that possession of cocaine for sale involved moral turpitude, it argued that it was "speculation" that defendant's statements on the tape established such an act. The defense also argued that the tape should be excluded as more prejudicial than probative. In addition, the defense objected to portions of the tape recording during which defendant discussed sexual activities and drug use, and urged the court to "sanitize" the recording. The court concluded that the portion of the tape recording showing "possession for sale" and an "offer . . . to sell" and "to [exchange] it for sex . . . involves moral turpitude and is going to be admitted." The court said: "Redacting, that may be an appropriate thing to do."

Near the beginning of defendant's testimony, his trial counsel elicited his testimony that, on an evening in August 2007, he had purchased cocaine for $80 at his office. After he purchased the cocaine, a woman with whom he was in an intimate relationship came by his office. He offered to "share a line" with her, and he "laughingly offer[ed] to share a line [with her] if she would perform a sexual act" with him. Defendant also offered to sell her half of the cocaine for $40. The tape recording was not introduced, and the prosecutor elicited no evidence regarding the tape or the event it recorded.

2. Analysis

Defendant contends on appeal that the trial court prejudicially erred in ruling that a portion of the tape recording was admissible to impeach his testimony. Although he concedes that offering to sell cocaine involves moral turpitude (People v. Castro (1985) 38 Cal.3d 301, 317 [possession of heroin for sale involves moral turpitude]), he argues that the trial court should have excluded this evidence under Evidence Code section 352 because his prior misconduct was not similar to the charged offense and was remote in time.

There are four factors that should be considered in deciding whether evidence of a prior offense offered as impeachment evidence should be excluded under Evidence Code section 352. "These factors are: (1) whether the prior [offense] 'rest[s] on dishonest conduct'; (2) the 'nearness or remoteness of the prior [offense]'; (3) whether 'the prior [offense] is for the same or substantially similar conduct for which the accused is on trial'; and (4) 'what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior [offense]s.' " (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532-1533.)

Defendant's prior misconduct did not involve dishonesty, but it had occurred just two years prior to his trial testimony. Because it was not similar to the charged offense, it did not run the risk of being improperly viewed as propensity evidence. Finally, it was clear that defendant would testify regardless of whether this evidence was admitted at trial. As the proffered evidence was not unduly prejudicial and had some probative value as impeachment evidence, the trial court did not abuse its discretion in ruling it admissible.

D. Consent Instructions

Defendant contends that the trial court prejudicially erred in its instructions to the jury regarding the lack of consent element of the charged offense.

1. Background

The prosecutor emphasized in her opening statement that "Jane Doe [1]'s blood alcohol was very high that night . . . ." She told the jury that Jane Doe 1 would testify that defendant had begun having anal intercourse with her and "did not stop when she told him to." The defense opening statement took the position that defendant had begun having anal intercourse with Jane Doe 1 and "at a certain point" defendant "was able to tell that she didn't like it, and when he was able to tell she didn't like it, he pulled out and got up and walked away." "[A]s soon as he knew" that "she didn't want to have anal sex," "he pulled out."

When Jane Doe 1 testified, she admitted that she had "a problem with alcohol."

The prosecutor asked the court to give a modified version of CALCRIM No. 1030 that would include the following language: "In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, its moral character and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." (Italics omitted.) This language was derived from CALCRIM No. 1002. The defense opposed this request. "It is not appropriate in this case, because this is not a case where Defendant is charged with rape of an intoxicated woman."

At the instruction conference, defendant's trial counsel again objected to the prosecutor's proposed modification of CALCRIM No. 1030. He argued that the modified instruction "injects a different legal theory into the case, one that isn't charged since he wasn't charged with rape of a woman who was so intoxicated that she could not consent." The trial court "viewed [the prosecutor's modified version] as an accurate statement of the law" and granted the prosecutor's request.

Even after the court had instructed the jury and the jury had retired to deliberate, the defense continued to protest this instruction, and asked the court to correct this mistake. The court had taken no action on this request when the jury returned its verdict.

The prosecutor argued to the jury that defendant "is not the kind of man who's going to listen to a woman when she says no." "Even if she says she doesn't, even if she's so drunk she has no idea what's going on, he does not accept that 'no' means no." "We are here because . . . 'no' means no and 'stop' means stop. 'No' does not mean 'maybe,' and 'stop' does not mean 'slow down.' " She pointed out that Jane Doe 1 was "very, very intoxicated" to the point that "she may have passed out at that level of intoxication, and that the pain of being sodomized would have brought her out of that." "And she objected. She said 'no.' She said 'stop it.' 'I don't like it.' 'It hurts.' 'Take it out.' And he did not stop when she said that." He continued for a while before a "brief pause." After he resumed, "again, she tells him 'stop.' 'It hurts.' 'I don't like it.' 'Get it out.' But he doesn't care about her, and he continues . . . ." "And it's, I'm sure, clear to you from the evidence that you saw that the main issue here is consent. There's no dispute that the actual sex act occurred. Jane Doe [1] testified that it was against her will. Defendant testified that she consented. You're going to be instructed on the law of consent. And the law is that 'in order to give legal consent a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is . . . consent given freely and voluntarily by someone who knows the nature of the act involved.' [¶] Jane Doe [1] testified that she was fading out. . . . You heard her blood alcohol likely was a three-one. She has no memory of what happened, but remembers waking up to being forcibly sodomized, held down. And that testimony absolutely does not sound like a statement of someone who is in any position to give legal consent to any kind of sex, but I'll concede that she doesn't remember how this began."

"So let's do this for the sake of argument. Let's give -- give the defendant the benefit of the doubt, say she was competent. And let's say, okay, she allowed the defendant to anally penetrate her. She clearly -- even if you give him all of that, she clearly withdrew that consent, which is her right under the law." "If you believe Jane Doe 1, if you believe her when she said she told him 'no,' 'stop,' 'I don't like it,' 'it hurts,' there's no way that the defendant could actually or reasonably believe that she was consenting." "It was also very interesting to hear that in defendant's world 'stop' does not mean stop. It apparently just means slow down." "The issue here is that he's sodomizing her, she said no, and he continued." "And it's time to tell the defendant that when a woman says 'no,' the law requires that he listen, that he stop."

The defense argued, on the other hand, that "when [defendant] was told no, he stopped." "Ladies and gentlemen, the only issue in this case is consent." Defendant's trial counsel told the jury that the prosecutor was required to prove "that absence of consent was communicated to [defendant], was communicated in an unequivocal way, such a way that a reasonable person, under the same or similar circumstances, a reasonable person would have known that she was withdrawing her consent or that there was an absence of consent." "[Y]ou folks are going to be called upon to resolve the issue of credibility between the two of them." "[D]id he continue with any kind of forcible conduct after this woman communicated to him that she didn't want to engage in this activity any longer?" "[H]e asks, she doesn't object, so he tries it." When she said "no" or "stop," "he immediately withdrew." After returning to vaginal intercourse, he "asked a second time, and she again reacted in the same way, equivocal conduct on her part, at best." "He says he did that [resumed anal intercourse] only after asking again and after he believed that she was consenting to that and that that was okay with her to do that." She told him to stop, and he " ' withdrew immediately.' "

"Now, the District Attorney commented just now, in her statement, that she could very well have passed out during these activities. She is after all a point three one. She could have passed out, and then this isn't really good consent. Well, you know, there's a problem with that. And that is that Jane Doe [1]'s present claim that she doesn't remember anything - and she used the word 'faded.'. . . [¶] . . . [T]o try now to make out a case that she's passed out and therefore she couldn't resist and 'I didn't' -- couldn't consent and all that, well, that flies in the face of all of the statements she made that night . . . ." "So the District Attorney's contention now, this kind of belated contention that well, she was a three-one and therefore she wasn't aware of all these things and she wasn't really consenting under the law, flies in the face of this evidence." "[A]t three-one judgment's impaired. People do things that they wouldn't do when they're sober." He argued that alcohol "causes confusion" and "impairs your ability to communicate." "If Jane Doe [1] has gotten herself so impaired . . . that she can't effectively communicate to him, the doubt left by that goes to [defendant] and he's entitled to a verdict of acquittal." "She's drunk. . . . Her judgment isn't any good. Her ability to perceive, to know what's going on around her, is -- is severely impaired."

After the parties had completed their closing arguments, the trial court instructed the jury. The court told the jury that one of the elements of the charged sodomy offense that the prosecution was required to prove was that "the other person did not consent to the act." The court told the jury: "In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, it's [sic] moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." The court also instructed the jury: "The defendant is not guilty of forcible sodomy if he actually and reasonably believed that the other person consented to the act."

When the court thereafter instructed the jury on the uncharged "crimes of rape," it instructed on both rape by force and "raping a woman while she's intoxicated." The rape of an intoxicated person instructions, but not the rape by force instructions, included the same definition of "legal consent" the court had included in the instructions on the charged forcible sodomy count. However, in the rape of an intoxicated person instructions that language was preceded by the following sentence: "A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent." And, the rape of an intoxicated person instructions told the jury that "defendant is not guilty of this crime of rape if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong." (Italics added.)

2. Analysis

Defendant contends that the trial court prejudicially erred by including in the forcible sodomy instruction a definition of "legal consent" that misdescribed the lack of actual consent element of forcible sodomy in terms of lack of capacity to consent. He maintains that this erroneous instruction permitted the jury to find that the prosecution had proved this element based on evidence of Jane Doe 1's lack of capacity to consent due to her intoxication, rather than requiring proof that she did not actually consent.

"The legal adequacy of an instruction is reviewed independently." (People v. Cole (2004) 33 Cal.4th 1158, 1210.) The language added to the forcible sodomy instruction by the trial court was taken from the definition of "prevented from resisting," which appears in both CALCRIM No. 1002, the pattern instruction for rape of an intoxicated person, and CALCRIM No. 1032, the pattern instruction for sodomy of an intoxicated person. Forcible sodomy and sodomy (or rape) of an intoxicated person are significantly different offenses. Forcible sodomy, of course, requires force, while sodomy of an intoxicated person does not. More importantly, forcible sodomy requires the prosecution to prove both that the victim did not actually consent and that the defendant did not reasonably believe that the victim actually consented. In contrast, sodomy of an intoxicated person requires proof of neither of those elements and instead requires proof that the victim was "prevented from resisting by an intoxicating or anesthetic substance," and that "this condition was known, or reasonably should have been known by the accused." (Pen. Code, § 286, subd. (i).)

The "prevented from resisting" element of sodomy of an intoxicated person is defined in terms of lack of capacity. (People v. Giardino (2000) 82 Cal.App.4th 454, 461-462 ["prevented from resisting" element of rape of an intoxicated person requires proof that victim was "not capable of giving legal consent because of intoxication."].) This definition provides that a person lacks the capacity to give "legal consent" due to intoxication if he or she is not able to "exercise reasonable judgment" and "understand and weigh the physical nature of the act, it's [sic] moral character, and probable consequences." In contrast, a person may actually consent so long he or she acts "freely and voluntarily" and "knows the nature of the act involved." Where a person is intoxicated, he or she may well "know[] the nature of the act" and "freely and voluntarily" consent to it even though the person's intoxication prevents the person from "exercis[ing] reasonable judgment" and "understanding] and weigh[ing] the . . . moral character, and probable consequences" of the act. Thus, a prosecutor may be able to prove that, notwithstanding an intoxicated person's actual consent, that person lacked the capacity to give "legal consent." The trial court's inclusion of the lack of capacity language in the forcible sodomy instruction permitted the jury to find that the prosecutor had proved the lack of consent element even where the person actually consented so long as the person lacked the "reasonable judgment" necessary to weigh the act's "moral character and probable consequences." The forcible sodomy statute does not permit the lack of consent element to be established by proof of a lack of capacity. Consequently, the lack of capacity language that the trial court included in the forcible sodomy instruction was legally improper.

The difference between "actual consent" and "legal consent" may be cognizable to lawyers and judges, but jurors cannot be expected to understand the distinction, particularly without specific instructions addressing the difference between the two concepts.

The Attorney General argues that there is nevertheless no reasonable likelihood that the jury "misconstrued or misapplied the law" on the lack of consent element of forcible sodomy in light of the entire forcible sodomy instruction and the arguments by counsel. She concedes that "it is conceivable that a jury looking only at that [lack of capacity] language could conclude that a victim did not consent . . . by simply finding that the victim could not understand and weigh the physical nature of the act, its moral character and probable consequences." However, she argues that there is no likelihood that the jury would do so because, in order to convict defendant, the jury was also required to find that the prosecutor had proved that defendant "use[d] enough physical force to overcome the other person's will." She queries: "The jury might ask itself, 'how can we find the defendant overcame the victim's will by force, duress or menace, if we believe the victim had no will?"

In her original briefing, the Attorney General suggested that the court "did not err" in including the challenged language in the instruction because there was evidence that Jane Doe 1 was highly intoxicated and "had started to fade out" before the anal sex commenced. She does not repeat this claim in her supplemental briefing on this issue and did not rely upon it at oral argument. The existence of evidence to which this language might relate did not change the nature of the charge, which required lack of actual consent, not lack of the capacity to consent due to intoxication. Thus, the trial court's inclusion of this language cannot be justified by relying on the existence of evidence to which it related. The instructional language was legally improper, not unsupported by the evidence.

When a criminal defendant challenges the propriety of a jury instruction, we inquire " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380 (Boyde).) We evaluate the challenged instruction in the context of all the instructions given by the trial court. (Boyde, at p. 378.) "The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) We will find error only if it is reasonably likely that the jury misunderstood the law. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.)

We begin with the entire instruction given by the trial court on the elements of the charged forcible sodomy offense. "The defendant's charged in Count 1 with sodomy by force, in violation of Penal Code Section 286. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1, the defendant committed an act of sodomy with another person; 2, the other person did not consent to the act; and 3, the defendant accomplished the act by force, violence, duress, or menace. [¶] Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another. Ejaculation is not required. [¶] In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, it's [sic] moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] Evidence that the defendant and the other person dated is not enough by itself to constitute consent. [¶] A woman who initially con[s]ents to an act of sodomy may change her mind during the act. If she does so, under the law, the act of sodomy is then committed without her consent if: [¶] 1, she communicated to the defendant that she objected to the act of sodomy and attempted to stop the act; 2, she communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; and 3, the defendant forcibly continued the act despite her objection. [¶] An act is accomplished by force if a person uses enough physical force to overcome the other person's will. [¶] . . . [¶] The defendant is not guilty of forcible sodomy if he actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented."

The Attorney General's position is that the jury could not have misunderstood the meaning of the lack of consent element because the force element required it to find that defendant "use[d] enough physical force to overcome the other person's will." There are two problems with this argument. While the Attorney General presumes that the jury would have equated "will" and "lack of consent," there is nothing in the instruction given to the jury to suggest that the two terms were to be viewed as equivalent. Moreover, the instruction upon which the Attorney General relies concerned the amount of force used and did not require the jury to find that defendant actually overcame Jane Doe 1's "will," but only that he used "enough physical force" to do so. (Italics added.) Under the entire instruction, the jury could have concluded that defendant used enough force to overcome Jane Doe 1's will, particularly given her intoxicated state, and also that she lacked the capacity to consent due to her intoxication, without actually finding that, or even considering whether, the prosecutor had proved that Jane Doe 1 did not actually consent.

"[E]ven conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim's will, can support a forcible rape conviction." (People v. Griffin (2004) 33 Cal.4th 1015, 1027.)

We also must consider the arguments of the parties in determining whether there was a reasonable likelihood that the jury misapplied the law. The Attorney General suggests that the prosecutor's argument to the jury eliminated any likelihood that the jury would rely on the improper "legal consent" language in the forcible sodomy instruction. The prosecutor's argument to the jury did not primarily rely on Jane Doe 1's lack of capacity to consent. Nevertheless, the prosecutor made repeated references to Jane Doe 1's intoxication, explicitly emphasized and quoted the improper language, and suggested that Jane Doe 1 had lacked the capacity to consent. She told the jury that Jane Doe 1 had been so "very, very intoxicated" that "she has no idea what's going on" and "may have passed out." The prosecutor stated: "You're going to be instructed on the law of consent. And the law is that 'in order to give legal consent a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. . . . [¶] Jane Doe [1] testified that she was fading out. . . . You heard her blood alcohol likely was a three-one. She has no memory of what happened, but remembers being forcibly sodomized, held down. And that testimony absolutely does not sound like a statement of someone who is in any position to give legal consent to any kind of sex . . . ."

While this portion of the prosecutor's argument formed but a small part of her overall pitch to the jury and was not the basis upon which she sought a guilty verdict, it surely did not rebut the improper language in the court's instruction that the jury was told to follow. The jury might well have understood that the improper language in the instruction allowed it to avoid resolving the credibility contest between Jane Doe 1 and defendant by simply finding that Jane Doe 1 was so intoxicated that she lacked the capacity to give "legal consent," thereby establishing the lack of consent element of the offense, which was the only contested element at trial. Accordingly, there was a reasonable likelihood that the jury misunderstood the law regarding the lack of consent element of forcible sodomy.

The improper language could also have influenced the jury's consideration of whether defendant had a reasonable belief that Jane Doe 1 consented. The jury could have concluded that defendant was or should have been aware of Jane Doe 1's intoxication and therefore could not have reasonably believed that she had the capacity to consent, which the improper language equated with actual consent.

The final question is whether the trial court's instructional error was prejudicial. The Attorney General concedes that this type of error violates the United States Constitution and therefore is reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). The Chapman standard of review requires "the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24.) "To say that an error did not 'contribute' to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous." (Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) "To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates, at p. 403.) "[T]he appropriate inquiry is 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [113 S.Ct. 2078, 2081, 124 L.Ed.2d 182], italics original.)" (People v. Quartermain (1997) 16 Cal.4th 600, 621; accord People v. Neal (2003) 31 Cal.4th 63, 86.)

It is not possible in this case to say beyond a reasonable doubt that the jury's lack of consent finding was surely unattributable to the trial court's erroneous instruction on the meaning of consent. While defendant's trial testimony appears difficult to credit on the cold appellate record before us, that is not a valid basis for finding that an error in defining the only contested element of the crime was harmless beyond a reasonable doubt. There is a reasonable possibility that the jury's verdict was in fact attributable to the trial court's instructional error in that this error permitted the jury to return a guilty verdict without resolving the credibility contest between defendant and Jane Doe 1.

The concurring and dissenting opinion (the dissent) is premised on the theory that the trial court's erroneous instruction could not have contributed to the jury's verdict because neither the prosecutor nor the defense attorney explicitly urged the jury to resolve this case based on the erroneous jury instruction rather than on resolution of the credibility contest posed by the conflict between the testimony of Jane Doe 1 and that of defendant. (Conc. & dis. opn., pp. 29, 31-32.) The problem with this theory is that it does not comport with the Chapman standard of review that we are bound to apply to this type of error.

A jury is not restricted by the arguments of counsel but by the trial court's instructions. Here, the trial court's erroneous instruction permitted the jury to reach a verdict on a ground that was not urged by either party but had some evidentiary support in the record. Under the Chapman standard of review, reversal is required unless we can conclude beyond a reasonable doubt that the jury's verdict was surely unattributable to the trial court's erroneous instruction. The dissent assumes that the jury disregarded the erroneous instruction solely because neither counsel urged it. That is not a proper application of the Chapman standard of review. Under the trial court's erroneous instruction, the jury could have decided that, even if it credited defendant's testimony, he had still committed the charged offense. The jury could have reasoned that Jane Doe 1 lacked the capacity to consent due to her intoxication, which would establish the lack of consent element, and that, due to defendant's awareness of her intoxication, he could not have reasonably believed that she consented, which would satisfy the requirement that the prosecution prove that defendant lacked a reasonable belief in consent.

We are not tasked under the Chapman standard of review with assessing the likelihood that the jury acted in this fashion. Instead, we are required to reverse if we cannot say beyond a reasonable doubt that the jury surely did not do so. Here, we cannot meet this demanding standard. While the resolution of such a credibility contest in defendant's favor seems unlikely, that unlikeliness is insufficient to support a finding of harmless error under Chapman's beyond-a-reasonable-doubt standard of review. Consequently, the trial court's instructional error requires reversal.

IV. Disposition

The judgment is reversed.

Mihara, J. I CONCUR: Lucas, J. BAMATTRE-MANOUKIAN, ACTING P. J., Concurring and Dissenting.

Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant Carl Raymond Bergstrom was convicted after jury trial of one count of forcible sodomy. (Pen. Code, § 286, subd. (c)(2).) On appeal, he contends that the trial court prejudicially erred in (1) admitting evidence of two prior uncharged sex offenses under Evidence Code section 1108, and instructing the jury with CALCRIM No. 1191, (2) ruling admissible evidence of uncharged acts as impeachment evidence, and (3) instructing the jury with a modified version of CALCRIM No. 1030.

I agree with the majority opinion's finding that the trial court did not abuse its discretion in admitting the evidence of the two prior uncharged sex offenses and did not err in giving CALCRIM No. 1191. I also reject defendant's arguments regarding the trial court's ruling on the impeachment evidence, as does the majority opinion. However, I write separately because I do not agree with the majority opinion's finding that the trial court prejudicially erred in instructing the jury with a modified version of CALCRIM No. 1030. Assuming that it was error to modify the instruction, I have evaluated the error under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).

Defendant and Jane Doe 1 knew each other professionally and both testified and agreed that on the night defendant was arrested they had been drinking together at bars, they had gone to defendant's home, and they had continued to drink there. Defendant and Jane Doe 1 both testified that two acts of sodomy occurred. Jane Doe 1 testified that she did not consent to either act of sodomy. Defendant testified that Jane Doe 1 either consented to each act of sodomy or he "reasonably believed" that she did. Defendant was charged with one count of forcible sodomy. (Pen. Code, § 286, subd. (c)(2).)

The prosecutor argued that Jane Doe 1 did not consent to either act of sodomy, that "[w]e are here because . . . 'no' means no and 'stop' means stop," and that as to the second act of sodomy, "[t]here was absolutely no consent for this, and no reasonable person could ever think that they could try again after the fuss that she made the first time to end it. [¶] Again, there is no evidence of consent by Jane Doe 1 in this case, unless you think that the defendant's testimony on this is truthful and she's lying about being held down." "[Jane Doe 1] absolutely remembers everything that happened during the sodomy."

Defense counsel argued that "[t]he evidence that's been presented to you is that when Dr. Bergstrom was told no, he stopped. That's the state of the evidence," and that "you folks are going to be called upon to resolve the issue of credibility between the two of them." "[D]id he continue with any kind of forcible conduct after this woman communicated to him that she didn't want to engage in this activity any longer?" Defense counsel further argued that "Carl Bergstrom is not guilty of this crime if he actually and reasonably believed that the other person consented to the act. [¶] Now, he told you that he actually believed that. . . . [H]e says that she actually consented in the ways that he described by her . . . ."

The issue in this case was consent, and to decide this issue the jury had to assess the credibility of Jane Doe 1 and defendant. Based on my careful review of the entire record, Jane Doe 1's and defendant's testimony, the parties' arguments to the jury, and the court's instructions as a whole, I find beyond a reasonable doubt that any error in modifying CALCRIM No. 1030 as the trial court did in this case did not contribute to the verdict obtained. I conclude that the jury reached and decided the credibility of defendant and Jane Doe 1, and reached and decided whether the elements of force, the lack of actual consent, and defendant's lack of actual and reasonable belief in consent were proved beyond a reasonable doubt. Therefore, I would affirm the judgment.

The Victim's Testimony

Jane Doe 1 testified that after an evening in April 2009, spent drinking and talking with defendant, first in two bars and then at defendant's home, she and defendant sat on the couch, embraced and kissed. She remembers feeling like she was "starting to fade out. It was late and I was tired." Her "next recollection was - it was almost like becoming aware or - not awakened, but just - but becoming aware that I was being sodomized." "I remember my face was turned to the left and pressed into the couch. My hands were behind me. My shirt was on and my bra was on. And then I remember the pain." Her shoes, pants, and underwear were off. Defendant "pulled my hair. He held my hair. I believe he held me down somehow on my calves." "[H]is penis was in my anus, thrusting." She does not remember how she got in the position she was in. "I remember trying to move, move him off me with my hands, but they were behind my back." "[T]here's not a lot of strength when you push backwards that way, and I couldn't get him off." She "repeatedly" said " 'no. No. No.' And I said 'I don't like it.' I said 'please stop. Take it out.' " Defendant did not say anything and did not stop. She felt "intense pain" in her anus and she heard defendant "[g]runting" and his "[h]eavy breathing."

Jane Doe 1 further testified that at some point, defendant removed his penis from her anus and rubbed it between her thighs below her vagina. She did not say anything because she did not know "if he was done." Defendant then forcibly penetrated her anus with his penis again. "[A]gain, I said 'no, no, no, ' and he grabbed my hips. And I tried to come forward and move my hips away from him, but he kept coming into me more. And again, my face was just smashed against the couch and I - I couldn't move and I couldn't kick. I - you know, I couldn't push him away. And he kept sodomizing me." "And again, I said, 'I don't like it,' 'it's painful,' 'it hurts,' 'please stop,' 'take it out,' 'take it out.' " Defendant did not immediately stop and she felt his hands on her buttocks. "It suddenly stopped. And my face was still against - the side of my face was still against the couch cushion. And I realized that the pain had stopped, and I kind of looked up and I saw him walking . . . down the hallway." He did not say anything. She does not know if he had ejaculated. She saw that there were two cell phones and a set of keys on the kitchen table. She got up, pulled her pants up, grabbed the phones and keys, and ran out the front door. It was dark out, and she could not see, so she fell. Because she did not know the area, she hid in the bushes, called 911, and waited for the police.

Defendant's Testimony

Defendant testified that when he and Jane Doe 1 sat on the couch, she did not indicate to him that she was "becoming tired or weary or exhausted." "[H]er energy was up." "She was having fun." "We talked a little while longer, and then we started kissing and embracing." "It was very passionate." He pulled his pants down and she had oral sex with him. "[S]he was, you know, aggressively doing it, I guess." "I said to her, I said, 'can I do you,' something like that." "And she didn't say anything but she stopped and let me up." "I went around behind her." "She was on her knees, on the floor. Her torso was on the pillow of the couch, her hands were . . ." "in front of her" "[o]n the couch." He put his finger in her vagina. "I think she started to do some moaning sounds when I did that." He then put his penis in her vagina, and her sounds of pleasure continued. He massaged her anus with his thumb. He was not applying any other bodily pressure on her. She did not "change her body position in any minute way." He then inserted his thumb in her anus. Her body position still did not change and "[s]he was still moaning." She was making the same noises then that she was before.

Defendant further testified that when he removed his thumb he asked her, "do you want to try it." "She didn't say anything, didn't change positions." "I took my penis out of her vagina. I put some saliva on my penis." "I put it on her rectal verge with my right hand, my left hand on her hip, and I slowly entered her rectum with my penis." "I think three or four or five thrusts, slow thrusts, and then she reacted." "She said 'stop, stop, stop' something like that. 'Stop, stop, stop,' real quick like, you know. And I - like 'slow down' or 'don't' - or, you know, 'wait a minute here,' you know, that's what - that's what I understood that to be. So I stopped and pulled my penis out." "She didn't move, didn't say anything." "So I put my penis back in her vagina." While continuing vaginal intercourse, "I took my thumb again - I wasn't sure what that first little comment she made meant. I had said - I took my thumb again and went around her anus." "[S]he didn't say 'don't ever do that again,' you know. She said - it was 'stop, stop, stop,' meaning slow down, . . . and so I pulled out right away. But she didn't turn around and say 'don't ever do that.' She just stood there and she stayed there and I started intercourse with her again and everything seemed just great." "[S]o I put my thumb up again, massaged her anus, and I actually put my thumb in again." "I said to her 'do you want to try again?' " "No response." "Took my penis out and I put it up there. I put some saliva on it and I started slowly entering her anus again." "I got in about a third of the way and she said 'stop, get that out of here,' something like that." "I stopped, and I just pulled back." "She jumped up on her feet and pulled her pants up and then ran to my kitchen, grabbed my coat and my two cell phones on the table, and then ran out the door." "I was shocked . . . ." He pulled his pants up and followed her.

The Responding Officer's Testimony

Carmel Police Officer Chris Johnson testified that around 3:18 a.m. on April 14, 2009, he received a report of a possible rape just outside the city of Carmel, and he and another officer responded to the area. He found Jane Doe 1 sitting in a drainage area in front of a house, crying. Officer Johnson approached Jane Doe 1, identified himself, and took from her the cell phone she was using to talk to dispatch. Although Jane Doe 1 appeared to be intoxicated and upset, the officer could understand her. She said that she had been raped.

The Evidence Code Section 1108 Evidence

Jane Doe 2's Testimony

Jane Doe 2 testified that one night in 2007, after an evening of drinking and talking with defendant, first at a bar and then at a friend's home, he repeatedly asked her about having sexual intercourse. She repeatedly said that she was not interested in sex. Defendant stood behind her. He grabbed the back of her hair and pulled it. She felt very helpless. She was on her knees and he forced himself on her while still behind her. They had sexual intercourse without her consent. She started crying. Defendant finally stopped and left the house. Jane Doe 2 later told their mutual male friend what had happened but she did not report the incident to the police because she wanted to protect her family.

Jane Doe 3's Testimony

Jane Doe 3 testified that she went on an arranged date with her friends and defendant in the spring of 2007. They had dinner and some wine, and later had more wine at another bar. Later, they all went to defendant's house where defendant served them drinks. After that, she does not remember how it happened, but she performed oral sex on defendant and then he penetrated her anus with his penis. She remembers that her friends had already gone to sleep in another room. Her top was still on but her pants and underwear were down and she was lying face down on the floor. Defendant was on top of her. She yelled, "stop, that's enough, no more," and tried to crawl away but defendant did not stop; he "kept going." Finally, she got away and went to where her friends were sleeping. She asked if she could sleep with them and crawled into bed with them. They got up in the morning and left, and she did not see defendant again. Although she told her friend that morning what had happened, she did not contact the police.

Analysis

The court instructed the jury after the close of all the evidence pursuant to CALCRIM No. 1191 that it could consider the evidence of the uncharged offenses only if the People had proved by a preponderance of the evidence that defendant had in fact committed the uncharged offenses and that, even if it decided defendant had committed the offenses, that fact was not sufficient by itself to prove defendant guilty of committing the charged offense; the People still had to prove the charged offense beyond a reasonable doubt.

The Court instructed the jury: "The People presented evidence that the defendant committed the crimes of rape and forcible sodomy that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] . . . If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude the defendant was likely to commit and did commit forcible sodomy of Jane Doe 1 as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider, along with all the other evidence. It's not sufficient by itself to prove that the defendant is guilty of forcible sodomy of Jane Doe 1. The People must still prove the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility."

I agree with my colleagues that the trial court did not abuse its discretion in refusing to exclude Jane Doe 2's and Jane Doe 3's testimony due to the alleged late disclosure by the prosecution of this uncharged offense evidence. I would also find that the trial court did not abuse its discretion in failing to exclude the evidence under Evidence Code section 352, or err in instructing the jury that the uncharged offenses could be proved by a preponderance of the evidence. The prosecutor disclosed the proffered testimony to the defense as soon as the witnesses informed the prosecution that they would testify. (Pen. Code, § 1054.1, subd. (f).) The court then offered defendant a continuance so that he could meet and address both the proffered testimony's admissibility and its rebuttal (Pen. Code, § 1054.5, subd. (c)), but defendant declined all offers of a continuance both before and during the trial. The prior uncharged acts were similar to the charged offense, there was little probability of confusing the jury, the uncharged offenses were not remote or stale, and the evidence had significant probative value. In addition, the court could have found that any undue consumption of time in presenting the evidence was outweighed by the factors that favored admitting the proffered testimony. (Evid. Code, § 352.) Finally, it is settled law that uncharged crimes may be proved by a preponderance of the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 381.)

The Evidence Code Section 1101 Evidence

The court ruled prior to the start of the trial that it would admit cell phone videos proffered by the prosecution that defendant made of himself engaging in consensual anal sex with an unknown woman. The court ruled prior to the parties' opening statements that, should defendant testify, he could be impeached with the part of a tape recording defendant inadvertently made of himself in August 2007 that showed possession for sale of cocaine. The prosecutor did not play the videos of defendant's consensual anal sex for the jury. Rather, after Jane Doe 1's and Jane Doe 2's testimony, but before Jane Doe 3's, the parties presented to the jury a stipulation as to the contents of the videos. The parties stipulated that "on or about March 11, 2009, the defendant . . . participated in an act of anal sex with an adult female, not Jane Doe. The defendant recorded the act via digital video with his cell phone. The digital video is preserved as ten segmented video clips, nine of which are thirty seconds long, one of which is twenty seconds long. The total time of the sex acts depicted is approximately five minutes. The cell phone was seized by the Carmel Police Department and Monterey County Sheriffs on April 14, 2009, as previously described in testimony . . . . [¶] If the female in the videos were called as a witness in this case, she would be sworn and testify that the acts were completely consensual and that she was aware of the filming and consented to the filming thereof, with assurances that no one would ever see the video. [¶] The acts occurred in the defendant's home, on a couch in his living room. For most of the activity shown, the female is fully clothed from the waist up, with her pants and underwear pulled down to her knees. She is positioned on the couch, on her knees, with her torso above the couch, and her arms resting on the back couch cushions, while defendant is on his feet behind her. There is some variation in this as the parties move and adjust their respective positions. The defendant does not ejaculate during any of the video clips."

In addition, the prosecutor did not play any of the tape recording of the cocaine incident for the jury. Rather, defendant testified on direct examination to the contents of the tape recording as it related to the purchase and later offer to sell cocaine without mentioning that there was a tape recording of the incident.

I would find that the court did not prejudicially err in ruling that the cell phone videos and the tape recording of the cocaine incident were admissible. The cell phone videos were relevant evidence (see Evid. Code, § 350) that could rebut the evidence presented by defendant, that is, to show that any anal penetration may not have been slight or nonforceful as, even when defendant engages in prolonged consensual anal sex, defendant does not necessarily ejaculate. However, even assuming that the videos were not relevant to any disputed fact of consequence to the determination of the action (Evid. Code, § 210), I would find that any error in ruling that the videos were admissible did not prejudice defendant. The videos showed defendant in a prolonged consensual act of anal sex with an unknown adult woman who was aware of and consented to the making of the videos. Neither the sexual conduct depicted in the videos nor the making of the videos was unlawful. After the trial court's ruling, the parties stipulated as to the content of the videos and the jury was not shown the videos.

As to the tape recording of the cocaine incident, the court limited its ruling to admit only that portion of the recording that showed defendant possessing cocaine and then offering to sell it. Both possession for sale and sale of a controlled substance constitute conduct involving moral turpitude (People v. Castro (1985) 38 Cal.3d 301, 317; People v. Hunt (1985) 169 Cal.App.3d 668, 674-675), so the recording was admissible impeachment evidence. In addition, the conduct occurred in 2007, the same year as the Evidence Code section 1108 evidence, so it was not remote.

The Modification of CALCRIM No. 1030

The trial court modified CALCRIM No. 1030 over defendant's objection. Even assuming that this was error, I would find that the error was harmless beyond a reasonable doubt. In reaching my conclusion, I applied the standard of review, examined the evidence that was presented and the parties' arguments to the jury, and considered the instructions as a whole.

The Prosecutor's Opening Argument to the Jury

In her opening argument to the jury, the prosecutor argued that defendant "is not the kind of man who's going to listen to a woman when she says no." "Even if she says she doesn't, even if she's so drunk she has no idea what's going on, he does not accept that 'no' means no." "We are here because . . . 'no' means no and 'stop' means stop. 'No' does not mean 'maybe,' and 'stop' does not mean 'slow down.' " Defendant "took what he wanted, anal sex, . . . ignoring [Jane Doe 1's] repeated requests that he stop." "[Jane Doe 1 was] very, very intoxicated. And it's very reasonable to believe that she may have passed out . . . , and that the pain of being sodomized would have brought her out of that. And she described to you coming to the realization of her face being turned to the side, pressed into the couch; that her pants were down, and she was aware of this pain, this intense pain, . . . He was pulling her hair, holding her by her hair, and holding her down somehow on the calves. [¶] And she objected. She said 'no.' She said 'stop it.' 'I don't like it.' 'It hurts.' 'Take it out.' And he did not stop when she said that. She repeatedly told him to stop, that she was in pain. . . . [¶] And this is the point where she describes his penis coming out of her anus and these two thrusts between her legs, . . . and she thinks 'okay. It's over. He's done.' . . . And there he plunges back into her anus, very forcibly, causing her intense pain. [¶] . . . [¶] This is not a long period of time. It's a somewhat immediate transition that she describes. Two thrusts, or maybe a few seconds. And again, she tells him to 'stop.' 'It hurts.' 'I don't like it.' 'Get it out.' But he doesn't care about her, and he continues thrusting in and out of her anus, resulting in horrible, painful injuries."

"Defendant is charged with a single count, just forcible sodomy. The elements of that crime are what must be proved to you beyond a reasonable doubt." "For forcible sodomy - and you will get a copy of all the instructions back there so you don't have to memorized this. [¶] 'To prove that the defendant is guilty of the crime of forcible sodomy the People must prove that: 1, the defendant committed an act of sodomy with another person; 2, that the other person did not consent to that act; and 3, that the defendant accomplished the act by force, violence, duress, or menace.' Jane Doe [1]'s testimony here in court proves every element of the crime charged. [¶] Sodomy is defined as 'penetration of the anal opening, no matter how slight, of one person by the penis of another, and there's no requirement of ejaculation.' And Jane Doe [1] testified that he was holding her down, anally penetrating her. She's saying 'no,' 'stop,' 'get it out,' 'it hurts,' 'I don't like it,' and he continues. [¶] And it's, I'm sure, clear to you from the evidence that you saw that the main issue here is consent. There's no dispute that the actual sex act occurred. Jane Doe [1] testified it was against her will. Defendant testified that she consented. You're going to be instructed on the law of consent. And the law is that 'in order to give legal consent a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is . . . consent given freely and voluntarily by someone who knows the nature of the act involved.'

"Jane Doe [1] testified that she was fading out. It was late, she was tired, she had no memory of anything that happened after kissing the defendant to the point of being sodomized. You heard her blood alcohol likely was a three-one. She has no memory of what happened, but remembers waking up to being forcibly sodomized, held down. And that testimony absolutely does not sound like a statement of someone who is in any position to give legal consent to any kind of sex, but I'll concede she doesn't remember how this began.

"And you may ask yourself well, how do we know that she didn't consent and she just doesn't remember? Think about what she does remember. She remembers being held down, her hair being pulled in such a way that her head is being held down to the side, with her face into the couch, her legs are being held down. She didn't wake up in a consensual situation or position, she woke up in a forced position. . . . There's absolutely no credible evidence of consent. The evidence shows a lack of consent.

"So let's do this for the sake of argument. Let's give . . . the defendant the benefit of the doubt, say she was competent. And let's say, okay, she allowed the defendant to anally penetrate her. . . . [E]ven if you give him all of that, she clearly withdrew that consent, which is her right under the law. [¶] . . . [¶] So in this case, even if you construe the facts most favorably to him, say we don't know how it started, assume for the sake of argument that you're going to take his testimony on that aspect and she doesn't know. . . . [¶] Jane Doe [1] told him 'no,' 'to stop,' 'to get it out,' that she didn't like it. And she told you about trying to pull her body forward and not being able to get away. She told you about trying to move her hands behind her back, trying to reach him, and not being able to. And she clearly communicated her objection to the defendant and tried to make him stop. Any reasonable person would have understood that she did not want to engage in anal sex. And the defendant continued, in the face of her clear objection and by force.

"And then we have the second act of sodomy, after the defendant briefly removes his penis from her anus, and this is after her clear objections, and he plunges back inside of her, causing searing pain and even more pleas to 'stop' and 'get it out.' There was absolutely no consent for this, and no reasonable person could ever think that they could try again after the fuss that she made the first time to end it. [¶] Again, there is no evidence of consent by Jane Doe 1 in this case, unless you think that the defendant's testimony on this is truthful and she's lying about being held down."

"You're going to hear part of an instruction that talks about the defendant's reasonable belief in consent. And essentially the instruction says that if the defendant honestly believed that Jane Doe 1 consented and a reasonable person would also have believed that she consented, then you would find him not guilty. But you only get to this if you believe everything that the defendant testified to. [¶] If you believe Jane Doe 1 when she said she told him 'no,' 'stop,' 'I don't like it,' 'it hurts,' there's no way that the defendant could actually or reasonably believe that she was consenting. No reasonable person would believe that." "The issue here is that he's sodomizing her, she said no, and he continued." "And it's time to tell the defendant that 'no' does mean no; that when Jane Doe [1] told him to 'stop,' she was saying no; that when she told him 'it hurts,' she was saying no; that when she told him she didn't like it, she was saying no; when she told him 'to get it out,' she was saying no; when he had to hold her hair and press her face into the couch, she was saying no; when she was trying to pull her body away from him, she was saying no; and when she to him 'no,' that meant no. And it's time to tell the defendant that when a woman says 'no,' the law requires that he listen, that he stop. [¶] Find him guilty of forcibly sodomizing Jane Doe 1. Thank you."

Defense Counsel's Argument to the Jury

Defense counsel argued to the jury that "[t]he evidence that's been presented to you is that when Dr. Bergstrom was told no, he stopped. That's the state of the evidence." "[T]he burden is on the Prosecutor to prove guilt, if she can, and to prove guilt of every single element of the crime, if she can, and to prove it beyond a reasonable doubt." "Ladies and gentlemen, the only issue in this case is consent. And the only question for you is did the District Attorney prove absence of consent beyond a reasonable doubt? [¶] As a subpart of that concept, the burden on the District Attorney to prove that element, absence of consent beyond a reasonable doubt, . . . and his Honor is going to tell you this, she is also required to prove beyond a reasonable doubt that that 'no,' if it was a no, or that absence of consent was communicated to Dr. Bergstrom, was communicated in an unequivocal way, such a way that a reasonable person would have known that she was withdrawing her consent or that there was an absence of consent."

"[Y]ou folks are going to be called upon to resolve the issue of credibility between the two of them." "[D]id he continue with any kind of forcible conduct after this woman communicated to him that she didn't want to engage in this activity any longer?"

"Two people, who had too much to drink, both of them, decided to get together. They go to that house for some reason. Neither of them has a road map on exactly what's going to occur, in what order. . . . [¶] So the kissing occurs. . . ; then the oral copulation occurs . . . ; then the vaginal sex begins with him behind her; then he uses his thumb, he told you, and massaged her anus. He was listening and he heard sounds from her that he took to be that she was liking this, all of it . . . . He told you that he asked. He told you he asked if he could try it. He didn't get a real affirmative response. [¶] . . . And so he asks, she doesn't object, so he tries it. [¶] As he is doing that for a brief period of time she says 'no, no, no,' 'no, no, no,' or something, . . . or 'stop, stop, stop,' I think were the words, and he immediately withdrew. . . . He stopped. [¶] A few seconds later, what does she do? Does she move? Does she stand up to get away from him? . . . She didn't move away from him. [¶] . . . [¶] . . . She held still. She did not move away from Dr. Bergstrom in any way; not in the slightest did she give any kind of indication, by word or gesture, that she didn't want to continue with this sexual[] activity. [¶] . . . [¶] . . . But remember, Jane Doe [1] faded out and has a complete absence of memory now. So there isn't any evidence that she said no to that second time. There isn't any evidence that she said no to either time. [¶] But everyone agrees he did enter her anus with his penis a second time. He says he did that only after asking again and after he believed that she was consenting to that and that that was okay with her to do that again. When he enters her again in the anus, then she's clear, . . . She says 'no,' 'stop,' or 'enough' or something like that, 'I don't like it' or 'take it out.' Nobody is going to be able to remember exactly what the words are, but he told you 'she made it clear to me she didn't want to do that, I withdrew immediately.' [¶] Now, that's the state of the evidence. If you have a reasonable doubt on that state of the evidence, you have a reasonable doubt on consent, you have a reasonable doubt on whether or not she withdrew consent, you have a reasonable doubt on whether or not she communicated her withdrawal of consent, or if you have a reasonable doubt about whether he continued at all after she communicated her withdrawal of consent, if you have a reasonable doubt on any of those things, you must give the benefit of that reasonable doubt to him and find him not guilty."

"Now, the District Attorney commented just now, in her statement, that she could very well have passed out during these activities. She is after all a point three one. She could have passed out, and then this isn't really good consent. Well, you know, there's a problem with that. And that is that Jane Doe [1]'s present claim that she doesn't remember anything - and she used the word 'faded.' . . . [¶] . . . [T]o try now to make out a case that she's passed out and therefore she couldn't resist and 'I didn't' - couldn't consent and all that, well, that flies in the face of all of the statements she made that night . . . ." "So the District Attorney's contention now, this kind of belated contention that well, she was a three-one and therefore she wasn't aware of all these things and she wasn't really consenting under the law, flies in the face of this evidence." "[A]t three-one judgment's impaired. People do things that they wouldn't do when they're sober."

"Remember, one of the things that the District Attorney has to prove beyond a reasonable doubt is the absence of consent, but she also has to prove beyond a reasonable doubt that withdrawal of consent was communicated to Dr. Bergstrom. If Jane Doe [1] has gotten herself so impaired by her combination of drugs and alcohol that she can't effectively communicate to him, the doubt left by that goes to Dr. Bergstrom and he's entitled to a verdict of acquittal." [¶] . . . [¶] "She's drunk. . . . Her judgment isn't any good. Her ability to perceive, to know what's going on around her, is - is severely impaired."

"Carl Bergstrom is not guilty of this crime if he actually and reasonably believed that the other person consented to the act. [¶] Now, he told you that he actually believed that. He told you all of the ambiguous things that she did. He told you of the questions he asked her and the responses. He told you that when he pulled out the first time, that she didn't move away; and the circumstantial evidence supports that, that she didn't move away, and even she doesn't claim that she did move away. . . . But he says that she actually consented in the ways that he described by her; if not her words, her gestures, and the sounds that she was making were the sounds of pleasure. [¶] He questions whether he reasonably believed that, that she consented. Under the circumstances, given everything that he described; given her condition and his condition and the surrounding circumstances; given the fact that she is in a position on her knees, . . . and she's expressed pleasure in the sounds that she's making, she hasn't moved away, and she didn't refuse when he asked her again; and so you have to ask yourselves, . . . would a reasonable person, under those circumstances, have believed she was consenting or the contrary?"

The Prosecutor's Closing Argument to the Jury

In her closing argument to the jury, the prosecutor argued that "[a]lcohol affects memory. . . . And that explains why Jane Doe 1's memory, she may have given better details at the initial time she's questioned, but later, when she has to rely on memory as to what happened, it's not there and she doesn't remember certain things. Common experience tells you that stress, trauma, fear, all of these things impact a person's memory. The important things, that's what you remember. The things that make an impact, the things that stick with you, the things you focus on, that's what you remember, and she remembers being anally raped by the defendant. [¶] . . . [¶] Jane Doe 1 remembers the most significant and most traumatizing thing that happened to her that night; that she was sodomized, she told him to stop repeatedly, and he did not stop, he continued."

"[T]his case would be a circumstantial case if we had a woman who was unconscious, couldn't speak to us, and couldn't say what happened to her, and she had those same injuries that Jane Doe 1 had, then the Prosecution would have to rely on circumstantial evidence to prove an assault because she couldn't say 'I was raped.' [¶] This is very different. We have a victim coming in here, taking the stand, and saying 'I was forcibly sodomized.' So we're not relying on circumstances, on injuries, to prove what happened. That's just corroboration of the direct evidence of her testimony." "Jane Doe 1 never said that she didn't remember the sodomy. That is not the point where her memory fades. . . . [S]he absolutely remembers everything that happened during the sodomy. That is her strongest memory, there is no doubt in her mind about it, and that is a problem for the Defense because she has such a specific, detailed memory of what happened, of what she was saying to try to make it stop, description of the pain. And to believe the defendant you have to believe that she never said anything of those things, that 'it hurts,' 'get it out,' 'I don't like it.'"

The Instructions

After the parties' arguments, during its instructions to the jury, the court instructed the jury with a modified version of CALCRIM No. 1030 as requested by the prosecutor as follows: "The defendant's charged in Count 1 with sodomy by force, in violation of Penal Code Section 286. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1, the defendant committed an act of sodomy with another person; 2, the other person did not consent to the act; 3, the defendant accomplished the act by force, violence, duress, or menace. [¶] Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another. Ejaculation is not required. [¶] In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, [its] moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] Evidence that the defendant and the other person dated is not enough by itself to constitute consent. [¶] A woman who initially [consents] to an act of sodomy may change her mind during the act. If she does so, under the law, the act of sodomy is then committed without her consent if: [¶] 1, she communicated to the defendant that she objected to the act of sodomy and attempted to stop the act; 2, she communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; and 3, the defendant forcibly continued the act despite her objection. [¶] An act is accomplished by force if a person uses enough physical force to overcome the other person's will. [¶] 'Duress' means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant. [¶] 'Menace' means a threat[,] statement[,] or act showing an intent to injure someone. [¶] The defendant is not guilty of forcible sodomy if he actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented. If the People have not met this burden, you must find the defendant not guilty." (Italics added.)

The court also instructed the jury: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone. [¶] If you determine that Jane Doe 1 had consensual sexual intercourse with the defendant before the act that is charged in this case, you may consider this evidence only to help you decide whether the alleged victim consented to the charged acts and whether the defendant reasonably and in good faith believed that Jane Doe 1 consented to the charged act. Do not consider this evidence for any other purpose." (CALCRIM Nos. 1190 and 1194.)

The italicized language in the instruction above was taken directly from CALCRIM No. 1002 [rape of intoxicated woman or spouse]. The language is also in CALCRIM No. 1032 [sodomy of an intoxicated person]. The language replaced the following language in CALCRIM No. 1030, the pattern instruction: "In order to consent, a person must act freely and voluntarily and know the nature of the act." (See CALCRIM No. 1030.) Defendant objected in the trial court to modification of the instruction with the italicized language, arguing, "it injects a different legal theory into the case, one that isn't charged since he wasn't charged with rape of a woman who was so intoxicated that she could not consent; to our mind . . . that kind of issue about whether she's so intoxicated that she can or cannot consent was not relevant." The court "viewed [the instruction] as an accurate statement of the law," and overruled the objection.

When the court instructed the jury on the uncharged crimes, it instructed on both forcible rape (CALCRIM No. 1000) and rape of an intoxicated woman (CALCRIM No. 1002). Pursuant to CALCRIM No. 1002, the court instructed in relevant part: "A person may be guilty of raping a woman while she's intoxicated, in violation of Penal Code Section 261(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1, the defendant had sexual intercourse with a woman; 2, he and the woman were not married to each other at the time of the intercourse; 3, the effect of intoxicating anesthetic or controlled substance prevented the woman from resisting; and 4, the defendant knew, or reasonably should have known, that the effect of an intoxicating anesthetic or controlled substance prevented the woman from resisting. [¶] . . . [¶] A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] The defendant is not guilty of this crime of rape if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong."

The Parties' Contentions

In his opening brief on appeal, defendant argues that "legal consent differs from actual consent and that the crime he was charged with requires actual consent." "Inclusion of this legal consent language in the [CALCRIM No.] 1030 instruction invited juror confusion. In effect, what the prosecution succeeded in doing with this hybrid instruction was to allow the jury to convict upon a finding that the complainant was incapable of giving legal consent because of her intoxication. Thus, they were relieved of getting to the elements of 'force,' 'actual consent' and defendant's 'reasonable belief thereof."

In response to our request for supplemental briefing on this issue, defendant contends that he was charged with forcible sodomy (Pen. Code, § 286, subd. (c)(2)), not with sodomy of an intoxicated person (Pen. Code, § 286, subd. (i)). "Injecting the legal consent language of CALCRIM [No.] 1032 (sodomy of an intoxicated person) [which uses the same language as CALCRIM No. 1002] into CALCRIM [No.] 1030 (forcible sodomy) not only was legally incorrect, it effectively eliminated an element of the offense which 'conflict[s] with the overriding presumption of innocence which the law endows the accused and which extends to every element of the crime.' " He argues that the modification of the instruction introduced a different standard of consent, which "functionally changed the charge into a charge of sodomy of an intoxicated person, thus violating [his] due process rights." "The prosecution's burden of proof was impermissibly lightened because it never had to prove the lack of actual consent. Instead, the modified instruction allowed the jury to find Jane Doe 1 did not have the 'ability' to consent, by virtue of her intoxication. Because the jury never had to decide 'actual consent,' it did not reach the issue of 'force.' The jury also never got to the issue of defendant's 'actual and reasonable belief' of Jane Doe [1']s consent because, again, the jury was told it could find she lacked the ability to consent in the first place." "With these elements removed from the jury's consideration, the only issue left for them to decide was whether Jane Doe 1 was too intoxicated to be capable of consenting to the act. This is what the prosecutor urged them to find and this is what the trial court told them they legally could do." In addition, "[b]ecause the trial court did not rule that the 'legal capacity' language of CALCRIM Nos. 1002 and 1032 would be included in the forcible sodomy instruction until the morning of closing arguments," defendant was precluded from presenting a defense that he actually and reasonably believed that Jane Doe 1was capable of consenting.

The Attorney General contends in response to defendant's opening brief that the instruction as modified was not erroneous. "We acknowledge the instruction only spoke of 'legal consent,' and did not use the words 'actual consent,' but that is just semantics that would have had no significance for the jury." "Here, the jury would have known from the plain language of the instruction that it could not convict [defendant] of forcible sodomy if [Jane] Doe 1 actually consented; i.e., freely and voluntarily engaged in the sodomy with knowledge of the nature of the act. Because the evidence showed that [Jane] Doe 1 may have been intoxicated to the point of unconsciousness near the time the sodomy began, . . . the court did not err in telling the jury that in order to be able to consent a person 'must be able to exercise reasonable judgment.' " "And, contrary to [defendant's] view, nothing in the plain language of the instruction told the jury that if it found no consent because Jane Doe 1 could not give it due to intoxication (that is, if, in the words of the modified instruction, she was not 'able to understand and weigh the physical nature of the act, its moral character, and probable consequences'), that the jury's inquiry was over. The jury knew from the entirety of the modified CALCRIM [No.] 1030 that they still had to find that [defendant] accomplished the sodomy by force, violence, duress, or menace, and that [defendant] did not reasonably believe [Jane] Doe 1 consented."

In response to our request for supplemental briefing, the Attorney General contends that, "[a]t worst the language at issue might have led to some jury confusion. But when the argument of the prosecutor is factored in, as it must be, there is no reasonable likelihood the modified CALCRIM [No.] 1030 left the jury with an incorrect definition of consent." "[T]he modified CALCRIM [No.] 1030 required a finding of force for a conviction to lie, and the jury knew that it had to find all the elements of the charged crime in order to return a conviction. Not only did the prosecutor argue that [defendant] was guilty because he used force to overcome Jane Doe 1's will, but when the prosecutor argued that [Jane] Doe 1's intoxication had perhaps left her without the capacity to consent, that argument was in the context of [defendant's] initial penetration of [Jane] Doe 1's anus. The prosecutor clearly argued that the forcible sodomy—the crime—commenced when [defendant] continued with the sodomy, through force, after [Jane] Doe 1 had become aware of what was taking place and repeatedly told him 'no.' There is simply no way to reasonably conclude that the jury in the present case ultimately determined that any intoxication on the part of Jane Doe 1 could substitute for a finding that [defendant] accomplished the sodomy by using 'enough physical force to overcome [Jane Doe 1's] will.' " The Attorney General further argues that "the evidence of [defendant's] guilt of forcible sodomy was so overwhelming the jury would have convicted him of forcible sodomy even in the absence of any instructional error."

The Standard of Review

"We review defendant's claims of instructional error de novo. [Citation.] 'In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] . . . . " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." [Citation.]' [Citation.]" (People v. Johnson (2009) 180 Cal.App.4th 702, 707; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

"When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 777; People v. Young (2005) 34 Cal.4th 1149, 1202.) In making this determination, we "must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (Young, supra, at p. 1202.)

Generally speaking, "an instructional error that improperly describes or omits an element of an offense . . . is not a structural defect in the trial mechanism" requiring automatic reversal. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Rather, misinstruction on the elements of an offense is subject to a harmless error analysis under the Chapman standard of review. (Chapman, supra, 386 U.S. 18, 24; Neder v. United States (1999) 527 U.S. 1, 9; People v. Cox (2000) 23 Cal.4th 665, 677, fn. 6.) "The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman, supra, 386 U.S. at p. 24.) 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error.' [Citation.]" (People v. Neal (2003) 31 Cal.4th 63, 86.)

Analysis

"In prosecutions under Section . . . 286, . . . in which consent is at issue, 'consent' shall be defined to mean positive cooperation, in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (Pen. Code, § 261.6.) This is the definition for "legal consent" in the instruction the court gave to the jury in this case: "Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." Citing People v. Giardino (2000) 82 Cal.App.4th 454 (Giardino), defendant contends, however, that his offense requires "actual consent" not "legal consent."

In Giardino, the defendant was convicted of rape by intoxication (Pen. Code, § 261, subd. (a)(3)), and oral copulation by intoxication (Pen. Code, § 288a, subd. (i)). He argued on appeal in part that the trial court erred by refusing to instruct the jury that lack of consent is an element of those charges. The appellate court disagreed. In doing so, the court stated: "In the context of rape and other sexual assaults, 'consent' is defined as the 'positive cooperation in act or attitude pursuant to an exercise of free will.' (Pen. Code, § 261.6.) To give consent, a 'person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.' (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as 'actual consent.'

By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had 'sufficient capacity' to give that consent. [Citations.] For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. [Citations.] Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent." (Giardino, supra, 82 Cal.App.4th at pp. 459-460, fn. omitted.)

In this case, defendant was charged with sodomy by the use of force, not sodomy by intoxication. However, there was evidence that the victim, Jane Doe 1, was intoxicated at the time of the charged offense. Apparently, for that reason, the trial court instructed the jury regarding both "legal consent" and "actual consent" as described by the Giardino court. The court modified CALCRIM No. 1030, the pattern instruction on sodomy by force, by inserting language on consent from CALCRIM No. 1002, the pattern instruction on rape of an intoxicated person, the same language that is used in CALCRIM No. 1032, the pattern instruction on sodomy of an intoxicated person. The trial court also instructed the jury pursuant to CALCRIM No. 1030 that to find defendant guilty, it must find both that defendant used force, that Jane Doe 1 did not consent, and that defendant did not actually and reasonably believe that she consented.

Regarding legal consent, the trial court instructed: "In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, a person must be able to understand and weigh the physical nature of the act, [its] moral character, and probable consequences." Regarding actual consent, the court instructed: "Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." Rather than instructing on legal and actual consent, the court should have simply instructed in this case: "In order to consent, a person must act freely and voluntarily and know the nature of the act." (See CALCRIM No. 1030.) I would strongly caution trial courts that rarely should trial courts ever modify CALCRIM pattern instructions, as the trial court did in this case over defendant's objection.

Assuming that the court erred in this case by modifying the pattern instruction, I have evaluated the assumed error under the Chapman standard and I conclude that any error was harmless beyond a reasonable doubt.

The prosecution's theory of the case was that defendant committed forcible sodomy by not stopping and removing his penis from Jane Doe 1's anus when she told him "no" and "please stop" and "take it out." The prosecution's theory was that there was no consent because, even if Jane Doe 1 originally consented to defendant's anal penetrate of her anus with his penis, and even if she was initially too intoxicated to be capable of giving consent to the anal penetration, she understood the physical nature of the act, its moral character, and its probable consequences at the time she withdrew any consent she had given and communicated her withdrawal of consent to defendant repeatedly, but he did not stop and he forcibly continued.

The prosecutor argued to the jury that there was no dispute that acts of sodomy occurred and that the main issue in the case was consent. She argued that there was no credible evidence of consent; that Jane Doe 1 clearly communicated her objection to defendant and tried to make him stop but defendant continued over her objection and with force. She argued that Jane Doe 1 may have passed out due to intoxication, but the pain of defendant's anal penetration brought Jane Doe 1 out; that Jane Doe 1 realized defendant was pulling her hair and holding her down; that Jane Doe 1 told defendant to stop and to take his penis out, but he forcibly continued; that when defendant finally did withdraw his penis, he inserted it again; and that when Jane Doe 1 again told defendant to stop, he did not stop.

The defense theory was that defendant actually and reasonably believed that Jane Doe 1 consented to the anal intercourse, and that he stopped it as soon as she withdrew her consent. The defense theory was that there was no evidence that she told him no before he penetrated her anus with his penis either time, and that he withdrew his penis immediately after she told him no both times.

Defense counsel argued that the only issue in the case was consent, and that the jury was going to be called upon the resolve the issue of the credibility of defendant and Jane Doe 1. Counsel argued that there was no evidence that Jane Doe 1 told defendant that he could not try anal sex, but the evidence showed that when Jane Doe 1 told defendant to stop, he did so. Counsel argued that both defendant and Jane Doe 1 had had too much to drink; that defendant tried anal sex and, after a brief period of time, Jane Doe 1 said to stop; that when she did not move or say anything more, defendant tried again; and that she again said no so defendant removed his penis from her anus immediately. Counsel argued that defendant "actually and reasonably believed" there was consent because Jane Doe 1 did not verbally object to the two penetrations and did not move away between the two acts. Counsel also argued that defendant must be found not guilty if the jury had a reasonable doubt that either Jane Doe 1 withdrew consent and communicated it, or that defendant continued after she communicated her withdrawal of consent.

The court correctly instructed the jury that in order to find defendant guilty of the charged offense, it must find a lack of consent. (Pen. Code, §§ 286, subd. (c)(2); 261.6.) The court correctly instructed the jury that sodomy is committed without consent if a person communicated an objection and attempted to stop the act but defendant forcibly continued despite the objection. The court correctly instructed the jury that sodomy is committed by force if enough physical force is used to overcome the victim's will. The court correctly instructed the jury that defendant is not guilty of forcible sodomy if he actually and reasonably believed that consent was given. And, the court correctly instructed the jury that the People had the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented and that, if the People had not met this burden, the jury must find defendant not guilty. The court also gave the jury a unanimity instruction regarding the two alleged acts of forcible sodomy (CALCRIM No. 3500), and instructed the jury that it must judge the credibility of the witnesses (CALCRIM No. 226), that it could find defendant guilty based on Jane Doe 1's testimony alone (CALCRIM No. 1190), and that it could consider the evidence of the uncharged offenses for the limited purpose of determining defendant's credibility (CALCRIM No. 1191).

"You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness's behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] What was the witness's attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Did the witness admit to being untruthful? [¶] Has the witness engaged in conduct that reflects on his or her believability? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject. [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
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Given the prosecution's theory of the case, the defense theory of the case, Jane Doe 1's and defendant's testimony, the parties' arguments to the jury, and the court's instructions as a whole, the issue before the jury was whether Jane Doe 1 withdrew any consent she had given or that defendant reasonably believed she had given for the acts of sodomy, whether she communicated her withdrawal of consent, and whether defendant forcibly continued despite Jane Doe 1's objections.

Due to its significance, I repeat the key testimony of Jane Doe 1 and defendant on the issue of consent. Jane Doe 1 testified that she "fade[d] out." Her next recollection was of being aware of being sodomized by defendant. He was pulling her hair and holding her down. She tried to move to get him off of her but she could not get him off. She repeatedly said "no, No. No." "I don't like it." "Please stop. Take it out." Defendant did not say anything and did not immediately stop. She felt "intense pain" in her anus and she heard defendant "grunting" and his "[h]eavy breathing." At some point, defendant removed his penis from her anus and rubbed it between her thighs below her vagina. She did not say anything because she did not know "if he was done." Defendant again forcibly penetrated her anus with his penis. She could not move or push defendant away. She again said, "no, no, no." "I don't like it." "Please stop." "take it out." Defendant did not immediately stop, and she felt him grab her hips. She tried to move away but she could not do so. Then, he suddenly stopped and walked away without saying anything. She immediately ran outside, hid in the bushes, and called 911.

Defendant testified that he reasonably believed that Jane Doe initially consented to the anal intercourse and that he withdrew his penis from her anus as soon as she told him no. He testified that when he removed his thumb from her anus he asked her, "do you want to try it." "She didn't say anything, didn't change positions." "I took my penis out of her vagina. I put some saliva on my penis." "I put it on her rectal verge with my right hand, my left hand on her hip, and I slowly entered her rectum with my penis." "I think three or four or five thrusts, slow thrusts, and then she reacted." "She said 'stop, stop, stop' something like that. 'Stop, stop, stop,' real quick like, you know. And I - like 'slow down' or 'don't' - or, you know, 'wait a minute here,' you know, that's what -that's what I understood that to be. So I stopped and pulled my penis out." "She didn't move, didn't say anything." "So I put my penis back in her vagina." While continuing vaginal intercourse, "I took my thumb again - I wasn't sure what that first little comment she made meant. I had said - I took my thumb again and went around her anus." "[S]he didn't say 'don't ever do that again,' you know. She said - it was 'stop, stop, stop,' meaning slow down, . . . and so I pulled out right away. But she didn't turn around and say 'don't ever do that.' She just stood there and she stayed there and I started intercourse with her again and everything seemed just great." "[S]o I put my thumb up again, massaged her anus, and I actually put my thumb in again." "I said to her 'do you want to try again?' " "No response." "Took my penis out and I put it up there. I put some saliva on it and I started slowly entering her anus again." "I got in about a third of the way and she said 'stop, get that out of here,' something like that." "I stopped, and I just pulled back."

In order to convict defendant of forcible sodomy, as defense counsel argued, the jury had to judge the credibility of both Jane Doe 1 and defendant, and it had to determine whether he forcibly continued the act of sodomy despite her many objections or whether he had an actual and reasonable belief that she actually consented. Therefore, the jury had to decide the issue of actual consent, the issue of force and the issue of whether defendant actually and reasonably believed that Jane Doe 1 consented. To have convicted defendant of forcible sodomy in this case, the jury had to have rejected defendant's testimony that he actually and reasonably believed that Jane Doe 1 was consenting to the acts of sodomy. Pursuant to the instructions given, as defense counsel argued, if the jury had found that Jane Doe 1 was so incapacitated that she could not "effectively" communicate her withdrawal of consent to defendant, and that defendant actually and reasonably believed that she consented, then "the doubt left by that goes to Dr. Bergstrom and he's entitled to a verdict of acquittal," and the jury would have found defendant not guilty of forcible sodomy.

The majority posits that the jury "might well have understood that the improper language in the instruction allowed it to avoid resolving the credibility contest between Jane Doe 1 and defendant by simply finding that Jane Doe 1 was so intoxicated that she lacked the capacity to give 'legal consent,' thereby establishing the lack of consent element of the offense, which was the only contested element at trial." (Maj. opn., ante, at p. 31.) Based on my review of the entire record, I find that the record does not support the majority's position. Jane Doe 1's testimony does not support this statement. Defendant's testimony does not support this statement. The prosecutor's theory of the case does not support this statement. The defense theory of the case does not support this statement. Rather, defense counsel argued that "[i]f Jane Doe [1] has gotten herself so impaired by her combination of drugs and alcohol that she can't effectively communicate to him, the doubt left by that goes to Dr. Bergstrom and he's entitled to a verdict of acquittal."

The prosecution's theory of the case, which, as I have discussed, was that defendant forcibly continued his acts of sodomy after Jane Doe 1 told him to stop. The case was not tried by either side on the theory that Jane Doe 1's intoxication prevented her from resisting, as a case involving the rape or sodomy of an intoxicated person would be. (See CALCRIM Nos. 1002, 1032.) Instead, both parties focused their arguments on the issue of credibility and on whether defendant removed his penis from Jane Doe 1's anus immediately after she communicated to him that she was withdrawing any consent she may have given or he may have reasonably believed she had given to anal intercourse. The jury was correctly instructed that in order to convict defendant, it must find that the prosecution had proved beyond a reasonable doubt that defendant did not actually and reasonably believe that Jane Doe 1 consented, and that defendant used force.

Therefore, after carefully examining the entire record, considering the instructions as a whole, assuming that the jurors are intelligent persons, capable of understanding and correlating all the instructions given, and interpreting the instructions so as to support the judgment, as we must (People v. Johnson, supra, 180 Cal.App.4th at p. 707; People v. Ramos, supra, 163 Cal.App.4th at p. 1088), I conclude that the jury reached and decided the credibility of defendant and Jane Doe 1, and reached and decided whether the elements of force, the lack of actual consent, and defendant's lack of actual and reasonable belief in consent were proved beyond a reasonable doubt. Accordingly, I find beyond a reasonable doubt that any error in modifying CALCRIM No. 1030 as the trial court did in this case did not contribute to the verdict obtained. (Chapman, supra, 386 U.S. at p. 24.) And, as I find no prejudicial error in the giving of the modified version of CALCRIM No. 1030, I also find no prejudicial error in the giving of CALCRIM No. 1002 in relation to the uncharged offense of rape of an intoxicated person. I would affirm the judgment.

BAMATTRE-MANOUKIAN, ACTING P.J.