Filed 9/16/26 P. v. Merino CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052488, H052650
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. 23CR001232,
24CR002411)
v.
ANGEL JERONIMO MERINO,
Defendant and Appellant.
Defendant Angel Jeronimo Merino was convicted by jury of raping an
unconscious woman (Pen. Code, § 261, subd. (a)(4)), and the trial court sentenced him to
six years in prison. In a separate case, he pleaded no contest to assaulting a fellow inmate
while in jail awaiting trial on the rape charge. (Id., § 245, subd. (a)(4).) He received a
concurrent six-year prison sentence in that case.
Merino now appeals from both convictions. He challenges the rape conviction on
several grounds including alleged ineffective assistance of counsel and instructional error.
Assuming reversal of the rape conviction, he also requests reversal of the assault
conviction in the interest of justice, contending he pleaded no contest only to obtain a
concurrent sentence. Alternatively, appointed counsel requests independent review of the
record in the assault case under People v. Wende (1979) 25 Cal.3d 436 (Wende).
As we will explain, we reject Merino’s arguments in the rape case and decline to
conduct a Wende review in the assault case. We will therefore affirm both judgments.
I. BACKGROUND
A. THE RAPE CASE (H052488)
1. The Encounter Between Jane Doe and Merino
On the night of February 4, 2023, Merino and Jane Doe both attended a party at
the home of Doe’s then-boyfriend O.S.1 Doe did not know Merino before that night.
O.S.’s sister and uncle were also there, as were some friends. The group left O.S.’s house
to go to a bar where bands were performing. Doe said she drank between six and 10
beers while at the bar, and others were also drinking alcohol. She testified that she did
not interact with Merino at the bar.
The group returned to O.S.’s house around 4:00 a.m. on the morning of February
5. Some people kept drinking, but Doe “just wanted to sleep” because she “was very
drunk.” She wanted O.S. to come to bed with her and argued with him when he said he
wanted to keep drinking instead. They argued for about 30 minutes before Doe went
outside, intending to call a taxi and leave. O.S.’s sister and uncle followed Doe outside,
calmed her down, and persuaded her to stay. Merino also came outside to smoke, and
Doe asked him for a cigarette. After Doe finished smoking the cigarette Merino gave
her, the group went back inside.
Doe testified that she changed into pajamas, went to bed with O.S., and fell asleep.
At some point after falling asleep, Doe noticed O.S. leave the bedroom; she did not know
what he was doing. The next thing Doe remembered was Merino raping her. She was on
her back and was no longer wearing clothes; she did not recall them being removed.
Merino was on top of her, “having sex with” her and fondling her breasts. Doe was “in
shock” and felt “paralyzed.” Eventually, she pushed Merino off of her and he left the
room.
1
Consistent with rule 8.90 of the California Rules of Court, we refer to certain
witnesses by their initials.
2
In Doe’s estimation, the rape took place around 5:00 a.m. Five to ten minutes
after Merino left the room, he came back and told Doe they “needed to talk because of
what had happened.” Doe “told him to get out.” She stayed in the bedroom, put her
clothes back on, and cried. Around 6:00 a.m., she tried calling O.S. but he did not
answer. When O.S. eventually returned to the room, Doe did not tell him what had
happened. O.S. went to sleep until Doe woke him up to take her to work for her 8:00
a.m. shift. Doe later told O.S. on February 6 that Merino had raped her.
Doe left work early around 10:00 a.m. on the morning of February 5 because she
was not feeling well. She went to her house, where she lived with her sister O.A. When
O.A. came home, she found Doe “crying uncontrollably” on the living room couch. That
seemed “strange” to O.A. because Doe was supposed to be at work and rarely expressed
her emotions. O.A. asked Doe what was going on. Doe would not answer at first, but
O.A. continued pressing until Doe divulged she had been raped. O.A. then asked Doe
who had raped her, but Doe would not answer. Doe later told O.A. that Merino had
raped her. O.A. helped Doe obtain a contraceptive pill and told Doe she should report the
rape to police.
2. The Police Investigation
Doe contacted police on February 6, and an officer interviewed her around 9:00
p.m. that night. The officer then interviewed Merino around 10:00 p.m. in a parking lot
outside his home. The interview was conducted in Spanish; body camera footage of the
interview was played at trial, and the jury was provided with an English translation.
Merino acknowledged having sex with Doe. He said Doe approached him while he was
going to the bathroom. According to Merino, Doe demanded that he have sex with her or
else she would scream and accuse him of “abusing” her. Merino told the officer that Doe
“started to kiss” him and he went along with it. He said Doe then guided him to the
bedroom, where they had sex. After interviewing Merino, the officer interviewed Doe
two more times. Doe told the officer she went straight to bed after returning to O.S.’s
3
house, and the officer did not recall Doe mentioning her argument with O.S. in any of the
interviews.
On February 13, Merino voluntarily visited a police station for a second interview.
As with the first interview, the second interview was conducted in Spanish; the jury was
again shown video footage of the interview and provided with an English translation.
The investigating officer and his supervisor, a sergeant, spoke to Merino in an interview
room. At the outset of the interview, the officers told Merino that the door was “locked
for privacy” but Merino could “leave at any time” if he wanted to. Merino replied, “No
problem.” The officers then began asking Merino questions about the night of his
encounter with Doe. Merino again said Doe had approached him while he was going to
the bathroom and demanded to have sex with him. He explained that before that
interaction, Doe had fought with O.S. and considered leaving but ultimately stayed and
went to bed instead. Merino said O.S. had accompanied Doe to the bedroom but “came
out again” about 30 minutes later.
The officers asked Merino about the bar the group had visited on the night of the
incident. Merino recalled drinking “about 10” beers at the bar and said the other
members of the group were “all drinking” as well. He and a few others, including O.S.,
continued drinking after returning to O.S.’s house. At some point after O.S. had come
back out of the bedroom, Merino asked O.S. if he could use the bathroom. According to
Merino, that was when Doe first approached him and demanded sex. When the officers
asked why Doe did that, Merino said he did not know and speculated that Doe “was
angry since she argued with her boyfriend.” Merino described Doe as “40%” or “50%”
drunk but “conscious.”
Midway through the interview, the officers told Merino they had “a lot of
information” including “video” and knew “what happened.” Merino maintained that Doe
was “awake” and “climbed on top of” him during their encounter. He then added that
earlier that night, he had entered O.S.’s bedroom while Doe was in there to ask her how
4
to turn on the bathroom light. Merino said he then returned to the living room, where he
continued drinking before falling asleep. In Merino’s telling, he later woke up and asked
O.S. for permission to use the bathroom; that was when Doe left the bedroom and
propositioned him. He said Doe “grabbed” him and they “went to bed.”
The officers asked Merino, “what if we have information that you entered the
bedroom when she was asleep?” After Merino denied doing so, the officers said “we
know you came in when she was asleep” and asked Merino to “explain that.” Merino
then said he had entered the bedroom while Doe was “on her side” in bed with her eyes
open. The bedroom door was open and the light in the room was off. Merino said he
“got close to” Doe and sat on the edge of the bed, then he “grabbed her” and she “woke
up” or “turned around.” In Merino’s words, Doe told him she was cold and “that’s when
we started doing what we did.”
Describing Merino’s account as inconsistent, the officers asked him for
clarification. The officers also said to Merino, “The door is open. You know how you
got in. You can go out at any time. You understand that, right?” Merino confirmed that
he understood. He then explained that he had entered the bedroom twice, first to ask Doe
about the bathroom light and again later when he sat next to her on the bed. The second
time was when they had sex. Merino said Doe “started kissing” and “climbed on top of”
him. After they finished, Doe “just laid there on the bed” and told Merino to “get out
already.”
The officers asked Merino, “And this thing about her finding you in the bathroom,
that did not happen?” Merino said it did not. He continued to deny having sex with Doe
while she was asleep. The officers read Merino his Miranda2 rights and again asked
whether Doe had been asleep when Merino had sex with her. Merino answered, “I did
have sex, but I don’t know if she was asleep.” He described having sex with Doe as “a
2
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
5
bad thing” and suggested, “maybe it happened because I was under the influence of
alcohol.” The officers replied, “So, the alcohol told you that it caused you to come into
the room when the light was off, everyone was asleep, she was asleep, and you climbed
on her.” Merino said, “Yes.”
3. Verdict and Sentencing
The jury found Merino guilty of raping an unconscious woman. (Pen. Code,
§ 261, subd. (a)(4).) Merino waived a jury trial on alleged circumstances in aggravation,
and the trial court found two such allegations true: that the victim was particularly
vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and the manner of the offense indicated
planning, sophistication, or professionalism (id., rule 4.421(a)(8)). The prosecution
dismissed an allegation that Merino took advantage of a position of trust or confidence to
commit the offense. (Id., rule 4.421(a)(11).) As to Doe’s vulnerability, the prosecutor
argued that she “was asleep in a safe spot, with her boyfriend, where she thought she
would go to sleep that night and wake up the next day a normal person.” The prosecutor
continued: “Instead, the defendant took advantage of her vulnerability as she slept,
passed out, knowing that she had had a lot to drink that night, knowing that she was
passed out, and took advantage of her in that situation. She was not able to resist, to
fight, to confront him. I think that is the definition of a vulnerable victim.”
At the sentencing hearing, the trial court found two mitigating circumstances
applied: that Merino had no prior criminal record (Cal. Rules of Court, rule 4.423(b)(1))
and was under 26 years old at the time of the crime (id., rule 4.423(b)(6)). Considering
the factors in aggravation and mitigation, the court sentenced Merino to the middle term
of six years in prison.
B. THE ASSAULT CASE (H052650)
While in jail awaiting trial on the rape charge, Merino was charged in a separate
case with assault by means likely to cause great bodily injury. (Pen. Code, § 245, subd.
(a)(4).) It was also alleged that Merino personally inflicted great bodily injury. (Id.,
6
§ 12022.7, subd. (a).) According to the probation report, Merino and two others attacked
a fellow inmate. Merino punched the victim in the head and face during the attack, and
the victim suffered a three-inch gash on his forehead.
Days after being found guilty of rape, Merino pleaded no contest to the assault
charge and admitted the allegation that he personally inflicted great bodily injury. The
plea agreement specified that Merino’s sentences in the two cases would be served
concurrently. Consistent with the plea agreement, the trial court sentenced Merino to the
middle term of three years (Pen. Code, § 245, subd. (a)(4)) and imposed a three-year
sentencing enhancement (id., § 12022.7, subd. (a)) for a total term of six years to be
served concurrently with Merino’s six-year sentence in the rape case. Merino was
awarded 175 days of presentence custody credit in the assault case, representing 153
actual days and 22 days of conduct credit under Penal Code section 2933.1.
II. DISCUSSION
A. MERINO’S STATEMENTS TO THE POLICE
Merino asserts trial counsel was ineffective in not moving to suppress the
statements he made in his second interview with police, contending those statements
were involuntary and obtained in violation of Miranda.
To establish ineffectiveness of trial counsel in violation of a defendant’s right to
counsel under the Sixth Amendment to the United States Constitution, a defendant must
show both that counsel’s performance was deficient and that he was prejudiced by the
deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687–688.) Deficient
performance is rarely found if there was a tactical reason for trial counsel’s conduct. (See
People v. Cruz (1980) 26 Cal.3d 233, 255–256 [“except in rare cases, an appellate court
should not attempt to second-guess trial counsel as to tactics”]; People v. Bolin (1998)
18 Cal.4th 297, 317 [affirming conviction when alleged failure to object “may well have
been ‘an informed tactical choice within the range of reasonable competence’ ”].) To
prove prejudice, a defendant must affirmatively show a reasonable probability that, but
7
for his trial counsel’s errors, the result would have been different. (Strickland, at pp.
693–694.) While deficient performance may be shown by counsel’s failure to bring a
meritorious motion, a defendant “must do more than show the motion would have been
meritorious” to show prejudice. (People v. Gonzalez (1998) 64 Cal.App.4th 432, 438.)
The defendant “must show, in addition, the motion would have been successful.” (Ibid.)
As we will explain, Merino has not shown that trial counsel’s performance was deficient
or that he was prejudiced by the alleged deficiency.
1. Miranda
To safeguard the constitutional privilege against self-incrimination, a defendant’s
statements made in a custodial interrogation cannot be admitted at trial unless the
defendant was advised of the right to remain silent. (Miranda, supra, 384 U.S. at pp.
468–469.) The right to a Miranda advisement attaches whenever a person is in custody
and is subject to express questioning or its functional equivalent. (Rhode Island v. Innis
(1980) 446 U.S. 291, 300.)
A suspect is in custody for Miranda purposes if “a reasonable person in the
suspect’s position during the interrogation [would] experience a restraint on his or her
freedom of movement to the degree normally associated with a formal arrest.” (People v.
Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera).) Factors to be considered include
“whether contact with law enforcement was initiated by the police or the person
interrogated, and if by the police, whether the person voluntarily agreed to an interview;
whether the express purpose of the interview was to question the person as a witness or a
suspect; where the interview took place; whether police informed the person that he or
she was under arrest or in custody; whether they informed the person that he or she was
free to terminate the interview and leave at any time and/or whether the person’s conduct
indicated an awareness of such freedom; whether there were restrictions on the person’s
freedom of movement during the interview; how long the interrogation lasted; how many
police officers participated; whether they dominated and controlled the course of the
8
interrogation; whether they manifested a belief that the person was culpable and they had
evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation.” (Id. at p. 1162.) “No
one factor is dispositive. Rather, we look at the interplay and combined effect of all the
circumstances to determine whether on balance they created a coercive atmosphere such
that a reasonable person would have experienced a restraint tantamount to an arrest.”
(Ibid.)
Merino contends he was in custody during his second interview with police, much
of which took place before a Miranda advisement was given, and that trial counsel was
ineffective in failing to seek exclusion of his statements on that basis. His argument fails
for two reasons. First, counsel may have had a legitimate tactical reason for not
challenging admission of the statements. In his first interview with police, which took
place after police approached him outside his home, Merino denied raping Doe but
provided only a sparse account of their sexual encounter that could be viewed as
inherently implausible insofar as it minimized his role in the encounter. By contrast, the
second interview took place after Merino visited the police station voluntarily to provide
additional information. Much of the information he provided, including his account of
Doe’s argument with O.S. (which Doe had not mentioned in her interviews with police),
was consistent with Doe’s testimony at trial. He eventually acknowledged that he, not
Doe, initiated the encounter but continued to describe Doe as a willing participant. And
until the officers advised him of his Miranda rights, he consistently denied that Doe was
asleep at any point during the encounter.3
3
After the Miranda advisement, Merino made an arguably ambiguous admission
about Doe’s consciousness that does not change our analysis of the Miranda issue. He
now contends the admission was involuntary, and we address that argument separately.
9
Counsel could have believed that Merino’s voluntary participation in the second
interview and the content of his statements from that interview reflected positively on his
credibility or negatively on Doe’s, and therefore concluded that admission of the
statements would make a guilty verdict less likely. As the Attorney General notes,
counsel’s closing argument was at least consistent with a belief that the second interview
was helpful to Merino’s case. Referring to that interview, counsel argued that Merino
“went and talked to them because he was just wanting to cooperate” and remained
“consistent” even in response to the officers’ “confusing” questions. Counsel also raised
a voluntary intoxication defense, which was supported by Merino’s statements in the
second interview that he drank “about 10” beers at the bar and continued drinking after
returning to O.S.’s house. On this record, we cannot say counsel did not make a tactical
choice to allow admission of the statements or that the choice to forgoe a suppression
motion was necessarily unreasonable.
Second, even assuming counsel lacked a tactical reason for agreeing to admission
of the statements, Merino was not prejudiced because a suppression motion would not
have been successful. Merino emphasizes that several Aguilera factors, such as the
purpose and location of the interview as well as some of the officers’ questions, weigh in
favor of a finding that he was in custody. But those factors are outweighed here by
others. Merino voluntarily agreed to speak with police, and the officers did not suggest
to him that he was under arrest or otherwise in custody. Instead, the officers told him
twice during the interview that he was free to leave at any time. Both times, Merino
indicated he understood that he was free to leave. Although the officers were in uniform
and the door to the interview room was closed, Merino was not handcuffed or otherwise
physically restrained during the interview. Two officers spoke to him in a conversational
manner for roughly 50 minutes using, for most of the interview, open-ended questions
before advising him of his Miranda rights, and Merino spent much of that time simply
providing his account of the night in question. The officers did eventually challenge the
10
veracity of Merino’s account, implying it was contradicted by both his own statements
and nonexistent video evidence, and some of the officers’ questioning after that point
could be interpreted as accusatory. But under the totality of these circumstances, a
reasonable person having been told twice that he could leave would have felt free to do
so.
Merino is correct that “even where a suspect voluntarily goes to a police station
for an interview, if ‘once there, the circumstances become such that a reasonable person
would not feel free to leave, the interrogation can become custodial.’ ” (People v.
Saldana (2018) 19 Cal.App.5th 432, 455–456 (Saldana).) He is also correct that “ ‘mere
recitation of the statement that the suspect is free to leave or terminate the interview …
does not render an interrogation non-custodial per se.’ ” (Id. at p. 457.) But this case is
distinguishable from Saldana and from People v. Torres (2018) 25 Cal.App.5th 162
(Torres), on which Merino heavily relies. In Saldana, the investigating detective
informed the suspect once at the outset of a police station interview that he was free to
leave and was not under arrest “ ‘right now.’ ” (Saldana, at pp. 436–437.) The detective
then proceeded to aggressively question the suspect for 30 minutes about allegations of
child sexual abuse, disregarding the suspect’s repeated denials and pressing him to tell
the “ ‘truth’ ” (i.e., confess) until he complied. (Id. at pp. 456–458.) Under those
circumstances, the Saldana court concluded a reasonable person would no longer have
felt free to leave at the time of the confession. (Id. at pp. 457–458.)
In Torres, the suspect agreed to an interview in an unmarked patrol vehicle after
the detectives told him he was not under arrest, was free to leave, and did not need to
speak with them. (Torres, supra, 25 Cal.App.5th at p. 167.) When the suspect agreed to
provide his saliva for a DNA test, the detectives falsely represented the test would be
completed in minutes and would confirm he had sexually abused a child. (Ibid.) The
detectives then used interrogation techniques to pressure the suspect to confess: they
described several items of false evidence, asked confrontational and accusatory leading
11
questions, repeatedly rejected the suspect’s version of what occurred, gave the suspect
choices about his conduct and character and limited the suspect to selecting one of those
choices, and minimized the accusations against the suspect by classifying his conduct as a
mistake. (Id. at pp. 167–170.) The detectives also told the suspect that they would let
him go home once he told the truth. (Id. at p. 169.) The Torres court held that a
reasonable person confronted with these techniques “would not have felt at liberty to
terminate the interrogation, open the car door, and leave.” (Id. at p. 179.)
Here, unlike Saldana and Torres, the officers spent a significant portion of the
second interview asking Merino clarifying questions and attempting to resolve apparent
inconsistencies in his account rather than confronting him with accusations of guilt.
When Merino continued to deny Doe’s allegations, the officers did eventually respond by
pressing further and insinuating during the latter portion of the interview that they knew
he was lying about certain details. But they did not imply, as did the detective in
Saldana, that the interview could lead to an arrest. (See Saldana, supra, 19 Cal.App.5th
at p. 457 [detective’s comment that Saldana would not be arrested “ ‘right now’ ” was
“somewhat ominous” and suggested “Saldana might well be arrested later”].) Nor can
we say that the officers utilized the same combination of interrogation techniques that the
Torres court determined favored a finding of custodial interrogation. Additionally, the
officers did not suggest to Merino that he could not leave the interview until he admitted
culpability. Even as their questioning became more accusatory, the officers never
insisted that Merino was guilty and did not minimize the allegations against him to invite
a confession. And while not dispositive, it is nonetheless notable that the officers
reiterated to Merino that he was free to leave rather than continue with the interview,
which advisement Merino confirmed that he understood. Considering these distinctions,
12
the interview at issue in this case did not involve comparable hallmarks of custodial
questioning that led to the decisions in Saldana and Torres.4
2. Voluntariness
Merino also contends counsel should have attempted to exclude as involuntary his
one-word answer (“Yes”) when asked whether he had “ ‘climbed on’ ” Doe while she
was asleep. He asserts that statement was the product of coercive interrogation tactics
and thus inadmissible. When the voluntariness of a statement is properly raised in the
trial court, the prosecution bears the burden to show by a preponderance of the evidence
that the admission was voluntarily made. (People v. Carrington (2009)
47 Cal.4th 145, 169.) A statement is involuntary if “defendant’s choice to confess was
not ‘essentially free’ because his will was overborne.” (People v. Memro (1995)
11 Cal.4th 786, 827.) “Promises and threats traditionally have been recognized as
corrosive of voluntariness.” (People v. Neal (2003) 31 Cal.4th 63, 84.) Determination of
whether Merino’s admission was voluntary “depends upon the totality of the
circumstances.” (Carrington, at p. 169.) On appeal, the reviewing court applies “an
independent standard of review, doing so ‘in light of the record in its entirety, including
“all the surrounding circumstances—both the characteristics of the accused and the
details of the [encounter.]” ’ ” (Neal, at p. 80.)
Although Merino’s admission was arguably ambiguous, as it consisted of a single
one-word response to the officers’ multi-part question about what alcohol had “told” or
“caused” Merino to do, it was certainly not helpful to Merino on its own. Were the
4
Before oral argument, Merino submitted a notice of new authority pursuant to
rule 8.254 of the California Rules of Court in which he suggests that the decision in
People v. NavaAdame (2025) 116 Cal.App.5th 1, supports his claim that a suppression
motion would have been successful. However, NavaAdame involved very different facts.
There, the court held that the interrogation became custodial once the officer employed
“sudden pointed accusations combined with a barrage of interrogation techniques in a
series of confrontational monologues.” (Id., at p. 19.) NavaAdame is therefore
distinguishable and does not change our decision in this case.
13
statement indeed involuntary, we would thus agree with Merino that competent counsel
could be expected to seek its exclusion. But reviewing the record independently, we
conclude the statement was not involuntary. Merino faults the officers for falsely
suggesting they had video footage of the incident and for stating or implying numerous
times that Doe had been asleep when Merino entered the bedroom and had sex with her,
despite Merino’s insistence to the contrary. He acknowledges that such interrogation
techniques are not inherently unlawful (see Frazier v. Cupp (1969) 394 U.S. 731, 739)
but contends they were coercive under the circumstances, relying primarily on In re Elias
V. (2015) 237 Cal.App.4th 568. That case involved a 13-year-old juvenile suspect and
does not support an argument that Merino, a 25-year-old adult at the time of the
interview, was coerced so as to render his statement involuntary. It is also
distinguishable on other grounds. Unlike the officers here, who spent much of the second
interview asking clarifying questions, the detective in Elias V. “posited Elias’s guilt
quickly and dispositively.” (Id. at p. 582.) She “repeatedly referred to Elias’s guilt as an
established fact and displayed interest only in confirming details,” asking “relentless”
questions that assumed guilt. (Ibid.) Here, although the officers suggested midway
through the interview that they knew Doe had been asleep when Merino approached her,
their questioning lacked the “aggressive nature and persistence” that rendered the
juvenile suspect’s confession involuntary in Elias V. (Id. at p. 583.)
In a supplemental brief, Merino also suggests the officers implicitly promised him
that he could end the interview and leave only if he gave them the answer they were
seeking: that he had sex with Doe while she was asleep. That characterization is not
supported by the record. Midway through the interview, the officers said: “So, look.
We’re standing here right now. We already know what happened. We know the
situation. We’re here to … [¶] … Just to give you a chance to talk to you. The door is
open. You know how you got in. You can go out at any time. You understand that,
right?” Merino confirmed that he understood, and the officers continued: “But we do
14
know a lot about what happened, okay? [¶] … We know what happened and how it
happened. We just want to know why. Uhm, your story is different. We can start from
the beginning, okay?” Merino then proceeded to again recount the night of the incident,
continuing to deny that Doe was asleep during the sexual encounter. Eventually, after
being advised of his Miranda rights, he answered “Yes” when prompted: “So, the alcohol
told you that it caused you to come into the room when the light was off, everyone was
asleep, she was asleep, and you climbed on her.”
Merino notes that both before and after reminding him that he could end the
interview and leave, the officers told him they already knew “what happened.” But the
officers did not condition Merino’s ability to leave on his confirmation of what they
believed to be true. Instead, they told Merino he could “go out at any time.” Given that
express language and Merino’s confirmation that he understood, as well as Merino’s
continued denials after that point, we see no indication that Merino believed he could end
the interview only by agreeing with the officers that Doe was asleep. Nor do we see any
indication that, following the officers’ Miranda advisement, Merino believed his
admission would not be used against him and would instead allow the interview to end
without further consequence. Under the circumstances, Merino has not shown trial
counsel was constitutionally ineffective in not challenging the voluntariness of his
admission.
B. ALLEGED INSTRUCTIONAL ERROR
In his opening brief, Merino contends the trial court had a sua sponte duty to
instruct the jury on a consent defense under People v. Mayberry (1975) 15 Cal.3d 143. In
a supplemental brief, he argues in the alternative that trial counsel was ineffective in
failing to request such an instruction. CALCRIM No. 1002, which sets forth the standard
jury instruction pertaining to rape of an intoxicated woman, also provides for an optional
instruction on the following “[d]efense”: “The defendant is not guilty of this crime if he
actually and reasonably believed that the woman was capable of consenting to sexual
15
intercourse, even if that belief was wrong. The People have the burden of proving
beyond a reasonable doubt that the defendant did not actually and reasonably believe that
the woman was capable of consenting. If the People have not met this burden, you must
find the defendant not guilty.” Merino analogizes rape of an intoxicated woman to rape
of an unconscious woman and asserts the jury in this case should have been instructed
with similar language.
We reject Merino’s argument for reasons explained in People v. Lujano (2017)
15 Cal.App.5th 187 (Lujano). That case concerned the crime of sodomy against an
intoxicated victim, which includes as an element that the defendant knew or reasonably
should have known the effect of an intoxicating substance prevented the victim from
resisting. (Pen. Code, § 286, subd. (i).) CALCRIM No. 1032, which sets forth the
standard jury instruction on that offense, also includes optional language substantially
similar to that found in CALCRIM No. 1002. The Lujano court held it was not error to
refrain from instructing the jury with the optional language, even when requested by the
defense, because that language simply restates an element of the offense “by (1)
reformulating that element in the negative and (2) incorporating the definition of
‘prevented from resisting.’ ” (Lujano, at p. 193.) “The optional language thus does no
more than pinpoint a key component of the defendant’s case by restating other parts of
the instruction that are required.” (Ibid.) “And even when the optional language is not
only supported by substantial evidence but also requested by the defendant, the court may
decline to give it because it ‘ “merely duplicates other instructions.” ’ ” (Id. at p. 194.)
“The Mayberry defense—that the defendant actually and reasonably but
mistakenly believed that the victim consented—is a defense to a charge of forcible rape.”
(Lujano, supra, 15 Cal.App.5th at p. 194.) Because “the victim’s lack of consent is an
element of that offense but the defendant’s belief in the absence of consent is not an
element, the Mayberry defense is an affirmative defense, not merely the negation of an
element of the offense.” (Ibid.) Merino was charged not with forcible rape but with rape
16
of an unconscious woman, which requires that the victim “is at the time unconscious of
the nature of the act, and this is known to the accused.” (Pen. Code, § 261, subd. (a)(4).)
“Thus, unlike the Mayberry defense, the defense at issue here”—that Merino did not
know Doe was unconscious, and thus unable to consent—“is merely the negation of an
element of the offense.” (Lujano, at p. 195.) The trial court had no sua sponte duty to
instruct the jury on that defense, nor can we conclude counsel was constitutionally
ineffective in not requesting an additional instruction that simply restates an element of
the charged crime. To the extent Merino also argues he was entitled to an instruction on
a proposed defense that he believed Doe consented to having sex while unconscious and
not simply that he was unaware of her incapacity to consent, we reject that argument as
well because neither actual consent nor a belief that consent was given are defenses to
rape of an unconscious woman. (People v. Dancy (2002) 102 Cal.App.4th 21, 34–35.)
C. ALLEGED SENTENCING ERROR
Merino argues the trial court abused its sentencing discretion by imposing the
middle term of six years rather than the lower term of three years for rape of an
unconscious woman. (Pen. Code, § 264, subd. (a).) Although that contention is forfeited
because the alleged error was not raised below and did not result in an unauthorized
sentence, or a sentence that “could not lawfully be imposed under any circumstance in
the particular case” (People v. Scott (1994) 9 Cal.4th 331, 354), we will consider its
merits given that Merino alternatively asserts ineffective assistance of counsel.
The trial court relied on two aggravating factors in sentencing Merino to the
middle term, including that the victim was particularly vulnerable. (Cal. Rules of Court,
rule 4.421(a)(3).) In support of a finding that Doe was particularly vulnerable, the
prosecutor had argued that Merino “took advantage of her vulnerability as she slept,
passed out, knowing that she had had a lot to drink that night, knowing that she was
passed out, and took advantage of her in that situation.” The prosecutor said Doe “was
not able to resist, to fight, to confront him.” Treating that portion of the prosecutor’s
17
argument as establishing the sole basis for the trial court’s factual finding that Doe was a
particularly vulnerable victim, Merino contends the court improperly treated an element
of the offense (Doe’s unconsciousness) as an aggravating factor. But the prosecutor did
not simply argue that Doe was unconscious; she also stated that Doe was asleep in her
boyfriend’s bedroom, a location where she would have undoubtedly felt safe. Thus, in
finding the vulnerability factor true, the trial court did not rely only on Doe’s
unconsciousness.
Penal Code section 1170, subdivision (b)(6) creates a presumption in favor of the
lower term under certain circumstances, including where the defendant was under age 26
at the time of the offense and youth was a contributing factor in the offense. Merino
asserts that presumption applied in his case. He further contends, assuming the trial court
wrongly treated Doe’s vulnerability as an aggravating factor, that the only other
applicable aggravating factor (Cal. Rules of Court, rule 4.421(a)(8)) was insufficient to
overcome the presumption. We reject his argument for two reasons. First, as we have
explained, the court properly found Doe to be particularly vulnerable and was thus
entitled to rely on her vulnerability as another aggravating factor. Second, the
presumption in favor of the lower term did not apply here because the trial court did not
and was not required to find that Merino’s youth contributed to the offense. The court
did consider Merino’s age as a mitigating factor at the sentencing hearing. (Id., rule
4.423(b)(6).) But that does not equate to a finding that Merino’s youth “was a
contributing factor in the commission of the offense” (Pen. Code, § 1170, subd. (b)(6)),
as would be required to create a presumption in favor of the lower term. Nor does
Merino point to anything in the record that would require such a finding. The court did
not abuse its discretion in sentencing Merino to the middle term.
D. REQUEST FOR WENDE REVIEW (H052650)
Having rejected Merino’s challenges to his rape conviction and sentence, we do
not consider whether reversal of that judgment would also require reversal in the assault
18
case. Alternatively, appointed counsel requests independent review of the record in the
assault case under Wende, supra, 25 Cal.3d 436. Counsel states that she has notified
Merino of his opportunity to submit written argument on his own behalf. Merino has not
done so.
The Wende procedure “requires the court to conduct a review of the entire record
whenever appointed counsel submits a brief which raises no specific issues or describes
the appeal as frivolous.” (Wende, supra, 25 Cal.3d at p. 441.) Here, “a review of the
entire record is not necessarily required” because counsel has filed a brief raising a
specific issue. (Id. at p. 442; accord, People v. Woodard (1986) 184 Cal.App.3d 944,
946.) We decline to conduct a Wende review under these circumstances.
III. DISPOSITION
The judgments are affirmed.
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______________________________________
Adams, J.
WE CONCUR:
____________________________________
Lie, Acting P. J.
____________________________________
Wilson, J.
H052488, H052650
People v. Merino