Filed 1/27/20 P. v. Hall CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DURLONDA CARCELLE HALL

Defendant and Appellant.

A156717

(Solano County

Super. Ct. No. VCR228626)

A jury convicted Durlonda Carcelle Hall of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)), and found true an allegation she engaged in substantial sexual conduct with a minor under age 14 (§ 1203.066, subd. (a)(8)). The trial court sentenced Hall to state prison. Hall appeals, claiming the court erred by failing to instruct the jury on her only “viable” defense: that she had sexual intercourse “against her will.”

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A.W. (child) is Hall’s nephew. In July 2015, Hall was 51; the child was 13. One evening, the child was sleeping on his grandmother’s couch. His mother was not there. Hall woke the child up and told him to come upstairs and lay down with her in her bedroom. Half asleep and unsure of “what was really going on,” the child complied. With her hand, Hall began rubbing the child’s penis. Then she put the child’s penis in her vagina and had sexual intercourse with him. The child was drowsy and did not realize what was happening.

Hall told the child to get on top of her, and he complied. Hall inserted the child’s penis in her vagina and they had sexual intercourse. Eventually, the child woke up. He “instantly hopped off” of Hall, went to the bathroom, and splashed water on his face. The child returned to the bedroom and asked Hall “why would you do that?” Hall told the child to go to bed. Upset and in disbelief, the child returned to the couch and went back to sleep.

The next morning, Hall tried to apologize. Angry, the child told Hall to get away from him. Later that afternoon, however, the child got an erection upon seeing Hall. He “didn’t know what came over [him]” and he asked Hall to orally copulate him. Smiling, Hall declined. The child did not tell anyone what happened; he tried to deal with it on his own.

About a year and a half later, the child was reprimanded at school for briefly rubbing a classmate’s leg. He and his mother, Monica, discussed respecting women. Monica explained “[i]f it’s not consensual, then you can’t do it.” She asked the child whether he had ever been touched inappropriately and—to her surprise—the child “said yes” and described what Hall had done. He was distraught.

Monica called Hall and told her “I’m upset with you and really angry . . . because you had sex with my son.” Hall replied, “ ‘Yeah, that did happen,’ ” but claimed the child initiated it. She said “ ‘i[t] wasn’t intentional’ ” and that she had tried to avoid it. Monica took the child to the police station and reported the incident.

During a pretext call with Monica, Hall admitted having sex with the child, but claimed he came on to her, “push[ed] up on [her],” and touched her. Hall did not want to have sex, but she eventually acquiesced. She claimed she did the child a favor by showing him how to have sex, but also said the child “ ‘didn’t ask for it,’ ” that he “ ‘didn’t . . . want’ ” it, and that she had fallen “ ‘into the temptation of rape.’ ”

The court instructed the jury on the elements of the offense (CALCRIM No. 1110) and the union of act and intent (CALCRIM No. 252). During closing argument, defense counsel said: “[i]f any part of you believes that [Hall] was forced, then the elements were not proven and that’s reasonable doubt.” In rebuttal, the prosecutor responded: “[t]he defendant being forced is not reasonable doubt. You’re not going to hear it in the law. That’s not an accurate statement. In fact, that is exactly opposite of what the law says, because it’s not a defense. Consent is not a defense. And the fact that she was forced into some act, if you even believe that, it’s not a defense and it’s not a reasonable doubt.”

The jury convicted Hall of committing a lewd act on a child under age 14 (§ 288, subd. (a)) and found true the substantial sexual conduct allegation (§ 1203.066, subd. (a)(8)). The court sentenced Hall to state prison.

DISCUSSION

“ ‘In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.’ [Citation.] That duty extends to “ ‘instructions on the defendant’s theory of the case, including instructions “ ‘as to defenses “ ‘that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” ’ ” ’ ” [Citation.] But ‘ “when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a ‘pinpoint’ instruction relating such evidence to the elements of the offense and to the jury’s duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’ instructions are not required to be given sua sponte and must be given only upon request.” ’ ” (People v. Anderson (2011) 51 Cal.4th 989, 996–997.)

According to Hall, the court was required to instruct the jury that if she did not consent to have sexual intercourse, “she was not guilty of engaging in lewd conduct.” We disagree. The court properly instructed the jury on the elements of the offense, e.g., that the defendant must willfully touch the child’s body with the intent of arousing herself, and that an act is willful when it is done “on purpose.” (CALCRIM No. 1110.) The court also instructed the jury on the required mental state. (CALCRIM No. 252.) Hall offers no persuasive argument that these instructions were insufficient to address her purported defense.

The court had no sua sponte duty to instruct the jury that Hall was forced to perform sexual intercourse with the child. Such an instruction would have been a pinpoint instruction, which “ ‘ “must be given only upon request.” ’ ” (People v. Anderson, supra, 51 Cal.4th at p. 997; People v. Dennis (1998) 17 Cal.4th 468, 514 [defendant has obligation to request additional or clarifying instructions].) Even assuming the court erred by failing to deliver the instruction, there is no reasonable probability Hall would have obtained a more favorable result absent the alleged error. (People v. Pearson (2012) 53 Cal.4th 306, 325, fn. 9.) The court properly instructed the jury and the instructions did not hinder defense counsel from emphasizing during closing argument that Hall did not consent to have sexual intercourse. (See People v. Smithey (1999) 20 Cal.4th 936, 986–987 [no prejudice from counsel’s failure to request pinpoint instruction because the court instructed the jury on the relevant law].)

Moreover, the evidence overwhelmingly supported a finding of guilt. It was undisputed Hall had sex with the child and that she put his penis in her vagina. In a phone call with the child’s mother, Hall admitted the child “ ‘didn’t ask for it,’ ” that he “ ‘didn’t . . . want’ ” it, and that she had fallen “ ‘into the temptation of rape.’ ” Given this compelling evidence, any instructional error was harmless. Having reached this result, we do not address Hall’s contention that trial counsel was ineffective for failing to request the instruction.

DISPOSITION

The judgment is affirmed.

 

_________________________

Jones, P. J.

WE CONCUR:

_________________________

Needham, J.

_________________________

Burns, J.

A156717