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March 3, 2026 Get Citation Alerts Download PDF Add Note

In re M.D. CA1/3

California Court of Appeal

• Citations: None known
• Docket Number: A173215

• Precedential Status: Non-Precedential

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.7K)

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Combined Opinion

Filed 3/2/26 In re M.D. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE

In re M.D., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE, A173215

Plaintiff and Respondent, (Contra Costa County
v. Sup. Ct. No. J22-00465)
M.D.,
Defendant and Appellant.

M.D. appeals from an order declaring him a ward of the juvenile court
under Welfare and Institutions Code section 602 based on a finding that he
committed forcible oral copulation against Jane Doe. (Pen. Code, § 287, subd.
(c)(2)(C), undesignated statutory references are to this code.) He argues there
was insufficient evidence to sustain the forcible oral copulation allegation.
He also contends substantial evidence supported a People v. Mayberry (1975)
15 Cal.3d 143 defense — that he did not possess wrongful intent because he
entertained a reasonable and bona fide belief that Doe consented to sexual
intercourse. We affirm.

1
BACKGROUND
In 2021, Doe was 17 years old and a sophomore in high school. She
dated M.D. for approximately two weeks in December. When they first
started dating, he wanted to “just do it right away” with her. One time while
at school, he directed her to an area that did not have cameras and
repeatedly asked her to orally copulate him. She refused and told her
parents shortly after because she felt uncomfortable and distressed. Doe and
M.D. later broke up.
Around December 2021 or January 2022 — after they broke up — M.D.
and Doe sat and talked near the school library. She wanted to talk more, and
he suggested meeting in a different place. Once there, however, he kept
asking her to orally copulate him. She said no three times, but he ignored
her, looked at his phone, and pushed her head towards his penis so she could
orally copulate him. She did so because he forced her head down painfully,
and she feared he would get mad or upset if she did not comply. She did not
resist when he forced her head down because she “thought it was just normal,
and . . . [she] was going along with it. [She] didn’t want to make him mad.”
Doe reported the incident to a school healthcare worker about one
month later. She had concerns about her safety, about “him showing up to
the school” or “seeing him again.” While they had been in a relationship, he
had not otherwise pushed her head or used physical aggression to make her
orally copulate him.
As relevant here, the Contra Costa County District Attorney filed a
juvenile wardship petition, alleging M.D. had committed one felony count of
oral copulation upon a minor, 14 years of age or older, by means of force,
violence, duress, menace, and fear of immediate and unlawful bodily injury

2
(§ 287, subd. (c)(2)(C)).1 After a contested hearing, the juvenile court found
true the forcible oral copulation allegation. It found Doe’s testimony
credible — that M.D. asked her to orally copulate him, she said no multiple
times, and at one point, he “forced her head down and that she gave in.” The
court noted the force was painful, M.D. had aggression in his voice, and Doe
was afraid of making him mad. It adjudged M.D. a ward of the court, placed
him on probation, and ordered him to reside with his parents.
DISCUSSION
M.D. contends insufficient evidence of force supported the allegation of
forcible oral copulation. “ ‘The standard of proof in juvenile proceedings
involving criminal acts is the same as the standard in adult criminal trials.’ ”
(In re Babak S. (1993) 18 Cal.App.4th 1077, 1088.) When assessing the
sufficiency of the evidence, we “review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Having
engaged in that review, we disagree.
Section 287 provides that “[a]ny person who commits an act of oral
copulation upon a minor who is 14 years of age or older, when the act is
accomplished against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or
another person” is guilty of a criminal offense. (§ 287, subd. (c)(2)(C).) Oral

1 Although the district attorney charged M.D. with three counts of

forcible oral copulation against three different victims, we only address the
facts surrounding one count against Doe. The juvenile court dismissed one
count, and M.D. does not challenge the court’s finding on the remaining
allegation.
3
copulation by force requires “the use of force sufficient to overcome the
victim’s will.” (People v. Guido (2005) 125 Cal.App.4th 566, 576.) The degree
and “ ‘ “ ‘kind of physical force is immaterial.’ ” ’ ” (People v. Griffin (2004)
33 Cal.4th 1015, 1024–1025, italics omitted.) Rather, force “includes
circumstances where the victim did not want to engage in the act and the
evidence does not otherwise establish the victim’s positive cooperation in act
or attitude.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
Sufficient evidence exists here. M.D. aggressively asked Doe to orally
copulate him. She said no three times. He then pushed her head down
towards his penis, causing her pain. She testified that, with “him getting
mad and him trying to force [her] head down,” she “caved in.” The court
could reasonably conclude that the physical movement and pushing of Doe’s
head, despite her objection, was force sufficient to overcome her will. (People
v. Thomas, supra, 15 Cal.App.5th at p. 1072.) That she did not resist or
inform him that he was causing her pain is not determinative, contrary to
M.D.’s assertions. “ ‘[R]esistance is no longer the touchstone of the element of
force.’ ” (People v. Griffin, supra, 33 Cal.4th at p. 1028.) The court was simply
required to determine whether he “used force to accomplish” the oral
copulation against her will, “not whether the force he used overcame [her]
physical strength or ability to resist him.” (Ibid.) That test is satisfied
here — she repeatedly stated she did not want to orally copulate him, but he
nonetheless pushed her head down toward his penis.
M.D.’s arguments fails to persuade. First, he contends consensual
sexual contact with Doe was a common occurrence during their relationship,
thus it is reasonable to infer the late December 2021 incident was also
consensual. Her willingness to meet him in a secluded area, he argues,
further underscores her consent. Not so. A prior dating relationship “is not

4
sufficient to constitute consent if consent is at issue” in a forcible oral
copulation prosecution. (§ 261.6, subd. (b).) And voluntarily meeting an
eventual attacker does not indicate ongoing consent. Forcible oral copulation
occurs when the act “ ‘is accomplished against the will of the victim by
force . . . and it is immaterial at what point the victim withdraws her consent,
so long as that withdrawal is communicated to the [attacker] and he
thereafter ignores it.’ ” (In re John Z. (2003) 29 Cal.4th 756, 762.) Here, Doe
unequivocally expressed her lack of consent by stating three times that she
did not want to orally copulate M.D., who then ignored her wishes.
Second, M.D. argues there was evidence Doe orally copulated him
based on her fear of upsetting him or being ignored, not fear of bodily injury.
And relying on testimony that she orally copulated him after he became mad
and ignored her, he argues the record establishes she began to orally copulate
him before he pushed her head down. This argument ignores the standard of
review. We make all reasonable inferences in favor of the judgment rather
than assessing whether there is substantial evidence to support a contrary
verdict. It is for the juvenile courts “to resolve the inconsistencies and
contradictions” in Doe’s testimony. (People v. Cortes (1999) 71 Cal.App.4th
62, 73–74 [inconsistent and conflicting victim testimony was substantial
evidence to support rape conviction]; People v. Rodriguez, supra, 20 Cal.4th
at p. 11.) As described above, her testimony established sufficient force —
M.D. pushed her head toward his penis after she repeatedly said no. The
court found her testimony credible, a finding we defer to on appeal. (People v.
Covarrubias (2016) 1 Cal.5th 838, 890.)
Finally, M.D. contends insufficient evidence supported the oral
copulation finding because the prosecution failed to demonstrate the absence
of a Mayberry defense — that subjectively, he “ ‘honestly and in good faith,

5
albeit mistakenly, believed [Doe] consented to sexual [conduct]’ ” and
objectively, his “ ‘mistake regarding consent was reasonable under the
circumstances.’ ” (People v. Duarte-Lara (2020) 49 Cal.App.5th 332, 338.)
Although he admits he did not proffer such a defense below, he insists the
prosecution was obligated to disprove its existence.
At the outset, we reject M.D.’s unsupported suggestion that the
prosecution must demonstrate the absence of the Mayberry defense for a
forcible oral copulation finding. The elements of the allegation are: (1) a
“person participated in an act of oral copulation with the victim;” and (2) “the
act was accomplished against the victim’s will by means of force, violence,
duress, menace or fear of immediate and unlawful bodily injury on the victim
or any other person.” (People v. Scott (2000) 83 Cal.App.4th 784, 795, fn. 4.)
For a Mayberry defense, the “defendant bears the burden of raising a
reasonable doubt as to whether he harbored a reasonable and good faith but
mistaken belief of consent.” (People v. Williams (1992) 4 Cal.4th 354, 361
(Williams), italics added.) And “ ‘then only if the prosecution’s proof did not
of itself raise such a doubt.’ ” (Ibid.) Here, the prosecution’s proof raised no
such doubt, and, as M.D. concedes, he did not raise a Mayberry defense at the
hearing.
Nor was there substantial evidence to support the defense. Doe’s
conduct was unequivocal. (Williams, supra, 4 Cal.4th at p. 361 [Mayberry
defense requires defendant to “adduce evidence of the victim’s equivocal
conduct on the basis of which he erroneously believed there was consent”].)
Three times, she responded no to M.D.’s repeated requests to orally copulate
him. She testified that, with “him getting mad and him trying to force [her]
head down” to his penis, she just “caved in.” “No doubt it would offend
modern sensibilities to allow a defendant to assert a claim of reasonable and

6
good faith but mistaken belief in consent based on the victim’s behavior after
the defendant had exercised” force on the person. (Id. at p. 364.)
M.D. further failed to present any evidence — direct or
circumstantial — of his state of mind at the time of the offense. (People v.
Simmons (1989) 213 Cal.App.3d 573, 581.) There was no testimony, for
instance, that “he erroneously deduced consent from [Doe’s] lack of struggle
or failure to attempt to escape, and the substance of his testimony negates
that possibility.” (People v. Burnett (1992) 9 Cal.App.4th 685, 690.) He
simply testified that he and Doe were in a relationship, and the incident was
consensual — he did not force her to orally copulate him. Thus, where his
evidence “is unequivocal consent and the prosecution’s evidence is of
nonconsensual forcible sex,” there is insufficient evidence to establish a
Mayberry defense. (Burnett, at p. 690 [describing evidence that is insufficient
to provide a Mayberry instruction].)
Any possible mistake regarding Doe’s consent was also unreasonable
under the circumstances. (Williams, supra, 4 Cal.4th at p. 361.) Her prior
relationship with him did not make it objectively reasonable to assume the
subsequent oral copulation was consensual, contrary to M.D.’s assertions.
A victim’s prior relationship that includes consensual sexual relations does
not, standing alone, tend to demonstrate the reasonableness of a defendant’s
belief that “she consented to sexual relations on the date of the alleged
offense[].” (People v. Simmons, supra, 213 Cal.App.3d at p. 581.) This is
particularly relevant here, where she testified that she repeatedly refused to
orally copulate him and only “caved in” after her head was forced towards his
penis. “[R]egardless of how strongly a defendant may subjectively believe a
person has consented to sexual intercourse, that belief must be formed under
circumstances society will tolerate as reasonable in order for the defendant to

7
have adduced substantial evidence giving rise to a Mayberry instruction.”
(Williams, at p. 361.) No such circumstances exist here.
Viewing the entire record, it does not clearly appear that “upon no
hypothesis whatsoever is there sufficient substantial evidence to support” the
forcible oral copulation finding.2 (In re Man J. (1983) 149 Cal.App.3d 475,
482.)
DISPOSITION
The judgment is affirmed.

2 In light of this conclusion, we do not address M.D.’s claim that his

trial counsel provided him ineffective assistance because he failed to raise the
Mayberry defense.
8

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RODRÍGUEZ, J.

WE CONCUR:

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TUCHER, P. J.

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FUJISAKI, J.

A173215; In re M.D.

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