## Facts

- Carlos Morales Hernandez broke into Jane Doe’s home early one morning while she slept with her two-year-old daughter.
- Hernandez knew the victim from church and the neighborhood but had no prior direct relationship with her.
- Hernandez was intoxicated and carried a two-foot metal exercise bar.
- He entered the bedroom, threw the victim’s phones out of reach, claimed he had killed a policeman, and threatened that if she did not submit within 10 minutes “something bad” would happen.
- He touched the victim’s legs and repeatedly told her to quiet her crying child.
- The victim attempted to placate him by saying she would feed the child and then he could do what he wanted, intending to reduce danger to herself and her daughter.
- Hernandez sodomized the victim and then vaginally penetrated her after she moved to the floor to keep her child from seeing.
- After the assault, the victim contacted the child’s father, who called police.
- Hernandez told police he had desired the victim, was high, threatened her, and lied about killing someone to scare her; he claimed she consented after he threatened her only once.
- A jury convicted Hernandez of rape and sodomy, and he received an enhanced sentence under Penal Code § 667.61 based on a finding that the offenses occurred during a burglary.
- On appeal, Hernandez challenged (1) denial of a Mayberry mistake-of-consent instruction and (2) the lack of a unanimity requirement as to which sex offense he intended when entering for the burglary-based One Strike aggravator.

## Issues

1. Whether substantial evidence supported instructing on a reasonable, good-faith mistake of fact as to the victim’s consent (Mayberry) for rape and sodomy.
2. Whether the burglary-based aggravating circumstance under Penal Code § 667.61 required jury unanimity on which specific sex offense (rape, sodomy, or both) Hernandez intended at the time of entry.

## Decision

- The Court of Appeal affirmed the convictions and the One Strike sentence.
- The trial court properly refused the Mayberry instruction because the record lacked substantial evidence that any belief in consent was objectively reasonable.
- The jury was not required to unanimously agree on the specific intended sex offense for the burglary-based aggravator; unanimity that Hernandez entered intending to commit at least one qualifying sex offense was sufficient.

## Legal Principles

- A Mayberry instruction is warranted only if there is substantial evidence that the defendant both honestly believed the victim consented and that the belief was reasonable under the circumstances.
- Coercive circumstances—such as unlawful entry, isolation of the victim, display of a weapon, and threats—can defeat the objective reasonableness required for a mistake-of-consent defense.
- For the burglary-based aggravator under Penal Code § 667.61, jurors must unanimously find entry with intent to commit a qualifying sex offense, but need not unanimously identify which qualifying sex offense was intended, consistent with the burglary unanimity exception.

## Conclusion

The court held that the coercive home-invasion circumstances made any claimed belief in consent objectively unreasonable, and it further held that the One Strike burglary aggravator does not require juror unanimity on whether the defendant intended rape or sodomy at entry so long as the jurors unanimously find intent to commit at least one qualifying sex offense.


People v. Hernandez, 180 Cal. App. 4th 337, 103 Cal. Rptr. 3d 101 (Cal. Ct. App. 2009)