P. v. Johnson
Filed 4/25/06 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. MIKE LOGAN JOHNSON, Defendant and Appellant. |
F045564
(Super. Ct. No. F02671627-8)
OPINION |
APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant of rape of an incompetent person (Pen. Code,[1] § 261, subd. (a)(1); count 1), sexual battery on an institutionalized person (§ 243.4, subd. (b); count 3), and misdemeanor elder or dependent adult abuse (§ 368, subd. (c); count 4). The jury deadlocked on a count of forcible rape (§ 261, subd. (a)(1); count 2). The court sentenced defendant to a total prison term of six years.
On appeal, defendant contends the court erred in allowing the prosecution's medical expert to testify that, in his opinion, the victim was incapable of giving legal consent to sexual intercourse. We conclude that, although the expert's opinion improperly stated a legal conclusion, defendant suffered no prejudice. Accordingly, we affirm the judgment.
FACTS
The victim in this case was Dolores,[2] a 53-year-old woman suffering from Huntington's chorea. The disease, with which she was first diagnosed in the early 1990's, caused Dolores to suffer uncontrollable, spastic bodily movements, as well as dementia and speech impairment. Dolores eventually became unable to care for herself and, in June of 2000, was admitted into a convalescent hospital (the Hospital). Defendant worked at the Hospital as a certified nursing assistant (CNA) and helped care for Dolores.
Dolores was a â€
