Opinion
E052188
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. CURTIS LAMONT DUHART, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB1001196)
OPINION
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed with directions.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
Defendant Curtis Lamont Duhart attempted to rape a pregnant woman with a mental disability. A jury convicted defendant on one felony count of a lesser included offense of attempted rape of an incompetent person (§§ 664/261, subd. (a)(1)) and a second misdemeanor count of dependent adult abuse. (§ 368, subd. (c).) The court found true three of defendant's prison prior convictions and his strike prior conviction. The court sentenced defendant to a nine-year prison term.
On appeal, defendant argues there was insufficient evidence concerning the victim's inability to consent and the trial court erred in excluding the victim's sexual history. Defendant also argues insufficient evidence supports his conviction on count 2. He further charges it was prejudicial error to give a special instruction about the victim's pregnancy.
In his reply brief, defendant concedes his argument lacks merit about the insufficiency of evidence to support the trial court's finding that his prior 1990 conviction was a strike. The remainder of defendant's appellate arguments do not justify reversing his convictions. The parties agree the abstract of judgment should be corrected to reflect that defendant was convicted in a jury trial, not a court trial. We affirm the judgment with directions.
II
FACTUAL BACKGROUND
The subject events occurred on March 19, 2010, at 10:00 p.m. Two San Bernardino municipal officers, Douglas Loreman (Loreman) and Brian Wilson (Wilson), approached a gold Chevrolet Suburban parked at Secombe Park. The rear passenger side door was open. Jane Doe and defendant were both naked from the waist down. Defendant lay on top of Jane Doe making thrusting pelvic motions. When defendant noticed the officers, he slid off the back seat and pulled up his pants.
Jane Doe asked the officers if she could get dressed and she told them "[h]e was raping me." Loreman thought Jane Doe's blank expression suggested she might be under the influence of drugs or alcohol. She also seemed scared of the officers. Wilson described her as bewildered, with a "deer in headlights look." Both officers quickly observed that Jane Doe had a developmental disability. She was confused and did not seem to understand what was happening. She had trouble answering questions about her name and date of birth.
A San Bernardino Police Officer, Sherry Vasilis (Vasilis), responded to the scene. Vasilis observed that Jane Doe had poor hygiene. She was not able to answer questions normally.
Jane Doe told Vasilis that defendant had approached her while she was out walking with her cousin and told her to get in his car, which she did. He drove to the park. Jane Doe confirmed that defendant had vaginally penetrated her. Vasilis recovered physical evidence from the scene.
A nurse performed a two-hour sexual assault examination and observed that Jane Doe displayed developmental delays and a flat emotional affect. Jane Doe described what had occurred and denied that defendant had forced her or harmed her. Jane Doe had no injuries and the examination was inconclusive. The examination did establish that Jane Doe was pregnant and had genital warts although she told the nurse no one had ever touched her sexually.
Three other professional people testified about Jane Doe's developmental circumstances. They all agreed that she was extremely compliant and reticent to express opposition or resistance.
In 2009, about a year before the assault, Dr. Edward Frey evaluated Jane Doe when she was 20 years old. He diagnosed her as having various developmental disabilities, including deficits in cognitive, academic, and social adaptive functioning. Her full-scale IQ was 56 and her educational level was first or second grade. Jane Doe was cooperative but inarticulate. Based on the limited nature of his examination, Dr. Frey said he could not express an opinion about whether Jane Doe could consent to sexual intercourse.
Craig Goldsberry (Goldsberry) was a special education teacher who taught Jane Doe for several years. Goldsberry helped Jane Doe make purchases because she could identify currency but had difficulty making change. She was able to ride a bus alone under some circumstances. Her personal hygiene was poor. Goldsberry also instructed Jane Doe about issues of personal safety and sex education. Jane Doe did housekeeping, janitorial, and similar work at Valley College. Sometimes she was overly cooperative and would not assert herself. She was not an independent thinker and she could be easily manipulated.
Vicki Smith (Smith), the consumer services coordinator for the Inland Regional Center, testified that Jane Doe needed lifelong help with daily living, budgeting and paying bills, medical appointments, shopping and preparing meals. Jane Doe needed help with purchases because she could not make change. Jane Doe was uncomfortable and shy in unfamiliar situations.
Jane Doe's testimony at trial was halting and often nonresponsive. She said she did not know why she was in court. She remembered walking with her cousin in March. Defendant pulled up in a car and offered her a ride to her brother's house. She got into defendant's car and he drove to a park instead. Defendant and Jane Doe took off their clothes. Defendant was on top of her. She remembered telling officer Vasilis and the nurse at the hospital truthfully what had happened with defendant in the park.
Jane Doe recognized the word "fuck" but not "rape." She did not know what it means for a man to put his penis in a woman's vagina. She understood that sex could cause pregnancy and a condom was used to prevent pregnancy and disease.
III
VICTIM'S INCAPACITY FOR GIVING CONSENT
Defendant contends there was insufficient evidence that Jane Doe was incapable of giving consent to sexual intercourse. Defendant was charged with one count of rape under section 261, subdivision (a):
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, . . .
"(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. . . . [T]he prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent."
This court has examined the subject crime in detail: "It is a felony to have sex-including intercourse, oral sex, sodomy and digital penetration-with a person who is so developmentally disabled as to be 'incapable . . . of giving legal consent,' provided 'this is known or reasonably should be known to the person committing the act.' (Pen. Code, §§ 261, subd. (a)(1), 286, subds. (g), (h), 288a, subd. (d), 289, subds. (b), (c).) This is true even if the victim purports to consent. (People v. Griffin (1897) 117 Cal. 583, 585, overruled on another point in People v. Hernandez (1964) 61 Cal.2d 529, 536.) Obviously, it is the proper business of the state to stop sexual predators from taking advantage of developmentally disabled people. Less obviously, however, in doing so, the state has restricted the ability of developmentally disabled people to have consensual sex." (People v. Thompson (2006) 142 Cal.App.4th 1426, 1429 [Fourth Div., Div. Two].)
Thompson recognized that "[t]he principle that rape may be committed by having sex with a person so mentally incapacitated as to be incapable of consenting" has a long history under English common law and under California law dating back as far as the original Penal Code of 1872 and to the 1897 decision of the California Supreme Court in People v. Griffin, supra, 117 Cal. at page 585. (People v. Thompson, supra, 142 Cal.App.4th at pp. 1434-1435.)
In Thompson, the victim was born with Down syndrome and was 34 years old with an effective intellectual age between seven and 10 years old. (People v. Thompson, supra, 142 Cal.App.4th at pp. 1430-1431, 1436.) She had attended high school but was not really qualified for a diploma. (Id. at pp. 1431, 1436.) The Thompson victim also had a limited understanding of the nature and consequences of sexual intercourse. (Id. at pp. 1436-1437.)
People v. Thompson, supra, 142 Cal.App.4th at pages 1435-1436, discussed other cases involving incapacity for giving consent. In People v. Boggs (1930) 107 Cal.App. 492, expert witnesses testified the victim had the mind of a 10- or 12-year-old child. (Id. at p. 494.) She could cook and do housework but she finished high school only because her teacher gave her the minimum passing grade although she did not deserve it. (Id. at p. 493.) She could not "protect herself from the ordinary vicissitudes of life." (Id. at p. 494.) The victim understood what sexual intercourse was and that it could result in pregnancy but she did not understand that intercourse could have other serious consequences. (Ibid.) When all the facts were considered together, the Boggs court held the evidence was sufficient to show that the victim was incapable of giving legal consent. (Thompson, at p. 1435, citing Boggs, at p. 496.)
In another case, People v. Mobley (1999) 72 Cal.App.4th 761, 776-779, both victims were developmentally delayed with low IQ's. They could read, dress themselves, hold down a part-time job, handle money and make purchases, vote, use a microwave, and use public transportation. One victim had attended high school and received a certificate of completion. He had taken sex education classes and knew about heterosexual sex. The other victim had been in special education classes. He had had some sex education in school. The Mobley court found there was sufficient evidence that the victims lacked the capacity to give legal consent because an expert witness testified "as to the things the jury must find for either young man to understand and give 'consent' rather than 'assent' for the acts. He found both men to be 'developmentally delayed' to the point that they would have difficulty applying what they learned and in making choices because of their disabilities. . . ." (Mobley, at p. 789; People v. Thompson, supra, 142 Cal.App.4th at p. 1436.)
Under these cases, there was substantial evidence that Jane Doe was incapable of giving legal consent in the present situation. Jane Doe could work and handle money like the Mobley victims but she had the intellectual ability of a first or second grader as in Thompson. Like the victims in Thompson and Boggs, Jane Doe had some idea of what sexual intercourse was, including that it could result in pregnancy. Jane Doe used the word "rape" at the time of the incident but she did not seem to know what it was at trial.
Even if Jane Doe understood consent (or lack of consent), it did not conclusively prove that she was able to give it. All the witnesses regarded her as preternaturally compliant. The jury could reasonably find that Jane Doe was unequipped to consent to intercourse with defendant at night in a parked car in a secluded public location. (People v. Thompson, supra, 142 Cal.App.4th at pp. 1436-1437.) Sufficient evidence demonstrated Jane Doe was incapable of giving legal consent.
IV
THE VICTIM'S SEXUAL HISTORY
In an argument related to the issue of consent, defendant also asserts the trial court erred when not admitting evidence of Jane Doe's sexual relationship with her child's father to show the extent of her knowledge about sexual intercourse and its consequences and that she had the capacity to consent.
According to the forensic medical report dated March 20, 2010, Jane Doe's last menstrual period was in December 2009. In June 2010, Jane Doe told a defense investigator she was five months pregnant and she knew defendant was not the child's father. Jane Doe was visibly pregnant when she testified in July 2010 but the jury was instructed that defendant was not the father.
Under Evidence Code section 1103, the court properly excluded Jane Doe's sexual history. Evidence of sexual conduct generally is not admissible by the defendant to prove the victim's consent. (Evid. Code, § 1103, subd. (c)(1).)
A limited exception allows the admission of sexual history if it is relevant to the issue of the victim's credibility: ". . . Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witness's sexual conduct. [Citations.] Evidence Code section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility. [Citation.] If, after review, 'the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted.' [Citation.] 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.'" (People v. Bautista (2008) 163 Cal.App.4th 762, 781-782; Evid. Code, §§ 782., 1103, subd. (c)(5).) Defendant must also establish a reasonable probability there would have been a different result had the subject evidence been admitted. (People v. Hustead (1999) 74 Cal.App.4th 410, 422.)
Thompson acknowledged that incapacity to consent in a particular case does not necessarily debar a victim from all consensual sexual activity: "'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 Wn.2d 702, 716.)" (People v. Thompson, supra, 142 Cal.App.4th at p. 1440.)
We have already determined in the preceding section that, based on the particular circumstances of this case, Jane Doe lacked the capacity to consent to sexual intercourse, whether or not she purportedly consented. (People v. Thompson, supra, 142 Cal.App.4th at pp. 1429, 1440; People v. Giardino (2000) 82 Cal.App.4th 454, 459-461 [actual consent is not a defense unless victim has the legal capacity to consent].) Even if Jane Doe engaged in consensual sex on other occasions, she could still lack the capacity to consent in the present case. The trial court did not abuse its discretion by excluding evidence of Jane Doe's sexual history because her history was irrelevant to the issue of her legal capacity to consent to have sex with defendant. Accordingly, all of defendant's claims of error based on state law and federal constitutional rights must necessarily fail.
Furthermore, any possible error was harmless either because a more favorable outcome was not reasonably probable or any error was harmless beyond a reasonable doubt. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) Substantial evidence demonstrated that Jane Doe was docile, suggestible, and easily manipulated as recognized by all the witnesses. The jurors could observe for themselves that Jane Doe, although obviously pregnant, had a limited understanding of sexual intercourse. It is not reasonably probable that the jury would have found Jane Doe could legally consent to intercourse although she had engaged in intercourse in the past.
By excluding Jane Doe's sexual history, the trial court did not abuse its discretion or violate defendant's constitutional rights. Any possible error was harmless.
V
DEPENDENT ADULT ABUSE
Defendant challenges the sufficiency of the evidence to support his conviction on count 2, endangerment of a dependent adult. Section 368, subdivision (c), provides:
"Any person who knows or reasonably should know that a person is [a] . . . dependent adult and who . . . willfully causes or permits any . . . dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor."
Defendant argues the record contains no evidence that he exposed Jane Doe to any sexually-transmitted disease or that there was a plausible risk to Jane Doe at such an early stage in her pregnancy. However, even if defendant did not have a disease and Jane Doe's physical health was not actually threatened, defendant fails to acknowledge the risks posed to Jane Doe, a person with developmental disabilities, by a stranger transporting her in a vehicle at night to a secluded part of a public park for the purpose of having unlawful and unprotected intercourse. The municipal officers testified that the park was often used for illegal activities, including drug use and prostitution. Jane Doe was an especially vulnerable person and the situation offered significant potential dangers to her health and safety.
The foregoing constitutes substantial, credible evidence that could reasonably allow a jury to convict defendant of misdemeanor abuse of a dependent adult. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
VI
SPECIAL INSTRUCTION ON PREGNANCY
The court gave the jury a special instruction about Jane Doe's visible pregnancy:
"The complaining witness is pregnant. It is not the defendant's baby.
"Do not discuss that fact as it relates to the complaining witness'[s] testimony.
"You may, however, consider this fact in a very limited way for the limited purpose of considering whether or not the charge in Count 2 Penal Code § 368(c) has been proven beyond a reasonable doubt."
Defendant argues the instruction was misleading or ambiguous and that there is a reasonable likelihood the jury misconstrued or misapplied it. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) In particular, defendant speculates the jurors may have concluded Jane Doe had been the victim of another sexual assault instead of a "consensual sexual relationship with her boyfriend," leading the jurors to feel undue sympathy toward her and causing prejudice to defendant on count 1.
At the outset, we note that defendant's trial counsel did not object to giving the jury an instruction informing the jury Jane Doe was pregnant. Rather, he wanted the jury to know it was factually impossible for defendant to have impregnated Jane Doe because she was already pregnant. To the extent that defendant concurred with the instruction telling the jury Jane Doe was pregnant, the issue is either waived or barred on appeal as invited error. (People v. Davis (2005) 36 Cal.4th 510, 539.)
To the extent the issue is still viable on appeal, we reject defendant's effort to characterize Jane Doe's pregnancy as a product of "a loving and intimate relationship." The record offers no support for this contention except defense counsel's unsupported statement in the motion for new trial that Jane Doe was proud of having a baby. Certainly, nothing suggests the jury had any reason to think that Jane Doe was assaulted by anyone except defendant. The instruction did not invite such prejudicial speculation.
Additionally, as to count 2, defendant contends the special instruction improperly allowed the jury to consider Jane Doe's pregnancy as relevant to the question of whether defendant willfully endangered Jane Doe's health. The instruction was not misleading as to count 2. The instruction properly allowed the jury to evaluate whether Jane Doe's pregnancy lessened or increased the risk caused by defendant's conduct.
We reject defendant's claims of instructional error.
VII
DISPOSITION
Sufficient evidence supports defendant's convictions on counts 1 and 2. The trial court did not err in excluding evidence of Jane Doe's sexual history or in giving the special instruction about her pregnancy. In the absence of any error, there was no cumulative error. (People v. Calderon (2004) 124 Cal.App.4th 80, 93.)
We affirm the judgment but remand to the trial court with directions to the trial court to correct the abstract of judgment to indicate that defendant was convicted in a jury trial, not a court trial and forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
Hollenhorst
Acting P.J.
Miller
J.