PEOPLE v. JASON

Filed 9/15/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Story continue from Part I ………

Under these cases, there was substantial evidence that Renee was incapable of giving legal consent. Indeed, defendant concedes that “there would appear to be no meaningful distinction“ between the facts in Mobley and the facts in this case. Renee could not cook, use a bus, or do simple arithmetic. She was even more seriously disabled than the victims in Mobley, in that she could not hold down a real job, handle money, or cast an independent vote. She conversed at the level of a 9 or 10 year old and read at the level of a 7 or 8 year old. Although she had attended high school, she, like the victim in Boggs, was not really qualified for a diploma.

Also like the victim in Boggs, Renee had some idea of what sexual intercourse was, including that it could result in pregnancy. However, her understanding was on the same level as the children’s rhyme, “First comes love, then comes marriage, then comes a baby in a baby carriage.” She did not understand that sex could result in disease. Although she had had some kind of sexual experience with John, the group home required that her mother be notified, and it had occurred with her mother’s knowledge and consent. The “sex” apparently did not consist of intercourse, as John was unable to get an erection. Renee testified that John touched her buttocks; however, she drew a distinction between a “butt” and a “vagina.” Thus, the “sex” apparently did not consist of digital penetration or masturbation, either. The jury could therefore reasonably find that Renee was unequipped to consent to sexual penetration with a foreign object. Moreover, she had never heard of oral sex or a “blow job”; thus, the jury could also reasonably find that she was unequipped to consent to oral copulation, either.

Defendant points out that Renee understood the concept of rape, which she defined as “[w]hen a man wants to have sex” but she “wasn’t ready to have sex” with him. The fact that she knew what consent (or lack of consent) was, however, did not conclusively prove that she was able to give it.

Similarly, defendant notes that he was found guilty of sexual battery, which requires a sexual touching “against the will of the person touched . . . .” (Pen. Code, § 243.4, subd. (a).) He argues that a person who can have “the ‘will’ not to be sexually touched cannot be viewed as being incapable of giving consent to be sexually touched.” We disagree. Even a severely disabled person may object to a sexual touching because he or she finds it unpleasant -- a “bad touch”; this does not necessarily mean he or she could give legal consent. Moreover, as Mobley illustrates, a developmentally disabled person may give “assent” to a sexual touching, so that it is not against his or her will, yet be unable to give legal consent.

Defendant argues that the prosecution should be required to present expert testimony that the victim is incapable of giving legal consent. It does not appear, however, that there was any expert testimony in Griffin. There is a nationwide consensus that expert testimony on this issue is not required. (Com. v. Fuller (2006) 66 Mass.App.Ct. 84, 89-92 [845 N.E.2d 434], app. den. 447 Mass. 1102 [848 N.E.2d 1211]; State v. Perkins (2004) 277 Wis.2d 243, 250-259 [689 N.W.2d 684], review den. 277 Wis. 2d 153 [691 N.W.2d 354]; Jackson v. State (Alaska App. 1995) 890 P.2d 587, 589-592; State v. Summers (1993) 70 Wash.App. 424, 428-429 [853 P.2d 953]; State v. Kingsley (N.D. 1986) 383 N.W.2d 828, 830-831; Wilkinson v. People (1929) 86 Colo. 406, 412-413 [282 P. 257].) In Boggs, an expert testified that the victim could not “‘protect herself from the ordinary vicissitudes of life’” (People v. Boggs, supra, 107 Cal.App. at p. 494), but it did not take an expert to come to the same conclusion about Renee.

Defendant, of course, through Dr. Kurland, presented expert testimony that Renee was capable of giving legal consent. Dr. Kurland, however, had little or no credibility. He had never met Renee. He based his opinion, more or less exclusively, on the fact that she had signed three consent forms. Her mother, however, had also signed two of the three forms. On the stand, Renee could read the search consent form out loud but could not understand it. She could neither read nor understand the sexual assault examination consent form.

Dr. Kurland admitted that he “ha[d] no idea” whether Renee understood the forms. When told that she did not, he said, “[I]t doesn’t surprise me,” but “it doesn’t change my opinion.” He explained: “That’s always been my opinion when I read signed documents, that whoever signed it knew what he was signing. And that’s what I’m held to when I sign something.” (Italics added.) Thus, the jury could wholly disregard his opinion.

Finally, defendant argues that the prosecution should be required to prove that the victim was so “grossly disabled” as to be “unable to make choices of any kind”; otherwise, the statutes involved violate due process, because they are too vague to give notice of what is prohibited. The relevant statutes, however, require not only that the victim be “incapable . . . of giving legal consent,” but also that “this is known or reasonably should be known to the person committing the act . . . .” (Pen. Code, §§ 288a, subd. (d), 289, subd. (b).) Defendant does not claim that there was insufficient evidence that he knew or should have known that Renee was incapable of giving legal consent.

This “knew or should have known” standard prevents the statutes from being unconstitutionally vague. In In re Jorge M. (2000) 23 Cal.4th 866, the Supreme Court held that Penal Code section 12280, subdivision (b), prohibiting possession of an assault weapon, was not unconstitutionally vague. It construed the statute as requiring that the defendant either knew or should have known that the weapon had those characteristics that made it an assault weapon within the meaning of the statute. (Jorge M., at pp. 869-870.) It concluded: “In cases where the information reasonably available to a gun possessor is too scant to prove he or she should have known the firearm had the characteristics making it a defined assault weapon, the possessor will not be subject to section 12280(b) as construed here. This is sufficient to protect against any significant possibility of punishing innocent possession.” (Id. at p. 886.) Here, similarly, if there is insufficient evidence that the defendant either knew or should have known that the victim was so mentally impaired as to be incapable of giving legal consent, he or she will be entitled to an acquittal.

For much the same reason, People v. Linwood (2003) 105 Cal.App.4th 59 held that a closely analogous statute -- Penal Code section 261, subdivision (a)(3) -- is not unconstitutionally vague. That statute prohibits sexual intercourse with “a person . . . prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, [when] this condition was known, or reasonably should have been known by the accused.” The court explained: “‘”There is no formula for the determination of reasonableness.” Yet standards of this kind are not impermissively [sic] vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind.’ [Citation.]” (Linwood, at p. 67, quoting People v. Daniels (1969) 71 Cal.2d 1119, 1129, quoting Go-Bart Importing Co. v. United States (1931) 282 U.S. 344, 357 [51 S.Ct. 153, 75 L.Ed. 374].)

It continued: “Can a jury determine whether a defendant reasonably should have known that a person’s level of intoxication was such as to prevent him or her from resisting an act of sexual intercourse? Yes. As our Supreme Court said . . . , in countering the argument that ‘the reasonably should have known’ language of the statute was too vague a standard: ‘This argument is troubling only if one believes the average juror is unable to ascertain and apply the meaning of “reasonably should have known” in the instruction reiterating the statutory language. We doubt this is the case. . . . Moreover, the average juror has the ability to cull from everyday experience a standard by which to assess the ability of a defendant to know the status of his or her victim.’ [Citation.] Similarly, we conclude jurors are able to resolve the factual issue of whether a defendant reasonably should have known that a given victim was too intoxicated to resist an act of sexual intercourse. [Citation.]” (People v. Linwood, supra, 105 Cal.App.4th at p. 68, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 782.)

A lay juror is equally able to resolve the same issue with respect to a victim’s mental disability. “The question whether a person possesses sufficient resources -- intellectual, emotional, social, psychological -- to determine whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point.” (People v. Cratsley (1995) 86 N.Y.2d 81, 87 [629 N.Y.S.2d 992, 653 N.E.2d 1162], fn. omitted.)

It could, of course, be argued that Linwood is distinguishable on either of two grounds. First, it could be argued that a perpetrator is in a better position to assess a victim’s ability to resist than a victim’s ability to consent (or to refuse consent). However, because resistance by the victim is not an element of rape or similar sexual offenses (see People v. Barnes (1986) 42 Cal.3d 284, 302-303), the ability to resist and the ability to refuse consent are essentially one and the same. (People v. Avila (2000) 80 Cal.App.4th 791, 798.) Second, it could be argued that an average person is more familiar with the effect of intoxication on the ability to consent than he or she is with the effect of retardation on the ability to consent. Even if so, between everyday experience and the evidence that will be presented on this issue at a trial, a juror can cull the applicable standard for whether the defendant knew or should have known that the victim was unable to consent.

Defendant argues, however, that if Renee was incapable of giving legal consent, then it must be a crime not only for defendant, but for anyone (including John) to have sex of any kind with her. At trial, when the prosecutor was confronted with this argument, she replied that John was probably too developmentally disabled to have the necessary mens rea. That is not at all clear from the record, which indicates that John functioned at a somewhat higher level than Renee did. The argument, in any event, goes beyond just John.

We do not agree, however, that Renee’s incapacity to consent in this case necessarily debars her from all future consensual sexual activity. The relevant statutes require proof that the victim was “at the time incapable . . . of giving legal consent . . . .” (Pen. Code, §§ 288a, subd. (g), 289, subd. (b), italics added.) “It is important to distinguish between a person’s general ability to understand the nature and consequences of sexual intercourse and that person’s ability to understand the nature and consequences at a given time and in a given situation.” (State v. Ortega-Martinez (1994) 124 Wash.2d 702, 716 [881 P.2d 231].) For example, in Mobley, the expert testified that the victims would be unable to give legal consent to sexual activity under the particular circumstances -- “homosexual advances in a threatening environment.” (People v. Mobley, supra, 72 Cal.App.4th at p. 779.) Here, it is relevant that defendant was one of Renee’s caretakers and that he exploited her vulnerability, the very type of harm the statute seeks to guard against. (See People v. Cratsley, supra, 86 N.Y.2d at p. 88.) It is also relevant that she was, in fact, unable to express either consent or refusal; instead, she convinced herself that she was asleep. Finally, we note that, even assuming Renee would be incapable of giving legal consent under any circumstances, that fact would not render the statute vague in any way.

We therefore conclude that there was sufficient evidence that Renee was incapable of giving legal consent. We further conclude that the requirement that the victim must be “incapable . . . of giving legal consent” is not unconstitutionally vague.

III

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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