Cordell

I.

INTRODUCTION

Defendant Walter Cordell appeals from his convictions and sentence after a jury trial. The jury convicted him of attempted premeditated murder, assault with a deadly weapon, criminal threats, rape, rape with a foreign object, and fraudulently conveying an access card. Cordell contends that the trial court erred in failing to instruct the jury that it could consider whether he had an actual and reasonable, but mistaken, belief that the victim consented to the sexual acts. He also contends that there is insufficient evidence that he “conveyed” an access card within the meaning of Penal Code section 484e, subdivision (a). 1 Finally, he contends that the trial court should have stricken the one-year sentence for his prior prison term rather than staying it.

We conclude that the trial court did not err in refusing to instruct on the defense of mistake of fact because Cordell’s defense was actual consent, not a mistaken belief that the victim consented to the sexual acts, and because there was no substantial evidence of equivocal behavior on the victim’s part *1567 that would warrant the instruction. However, we agree with Cordell that there is insufficient…