Andrews

—Defendant Earnest L. Andrews was convicted by a jury of misdemeanor sexual battery of Elizabeth Doe (Pen. Code, §§ 242-243.4, subd. (e)(1); count 2). The jury also convicted defendant of three felonies (counts 3, 4 and 5) involving a second victim, Juanita Doe. But, as to the first victim (Elizabeth Doe), the jury acquitted defendant of rape (§ 261, subd. (a)(2); count 1) and the lesser included offense of assault with intent to commit rape (§ 220). The court sentenced defendant to seven years in prison.

Defendant asserts three claims of error on appeal. First, he argues the court erred in failing to give an instruction under People v. Mayberry (1975) 15 Cal.3d 143 [ 125 Cal.Rptr. 745 , 542 P.2d 1337 ] (Mayberry) for the misdemeanor sexual battery charge. The proposed instruction would have advised the jury that defendant’s honest and good faith belief that the victim had consented to the sexual contact would require a verdict of acquittal. The Mayberry instruction was given for the rape charge and the lesser included offense of assault with intent to commit rape — offenses of which defendant was acquitted — but was not given for the misdemeanor sexual battery offense.…