Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, James F. Rigali, Judge No. 1179462
Susan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Richard John Courson appeals his judgment of conviction for rape by intoxication. (Pen. Code, § 261, subd. (a)(3).) He contends that there was insufficient evidence to support the verdict, and that there was instructional error. We affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Coworkers Courson, victim Brandi B., along with several other people went to a bar at approximately 11:00 p.m. Brandi knew Courson but they had never dated or had any romantic involvement. Brandi, who had not eaten since breakfast, consumed a substantial amount of alcohol and was visibly intoxicated. At the bar, she was flirtatious and sexually provocative with several of her coworkers. By 1:30 a.m., Brandi was stumbling, slurring her words, and unable to stand up. Although she could not recall doing so, she invited her coworkers to her house. Brandi, Courson, and several others arrived at her house at approximately 1:45 a.m. Brandi was unable to walk up the stairs to her apartment without assistance.
Approximately 15 or 20 minutes later, Courson carried Brandi to her bathroom where she vomited for 10 minutes. She was unable to get up by herself or speak coherently, and was "completely out of it." Courson and a friend of Brandi's carried her to her bed, placing a bucket for further vomiting next to her. Brandi vomited or "dry heaved" and was in and out of consciousness.
Courson volunteered to stay with Brandi and the other people left. Brandi remained face down on her bed intermittently vomiting and sleeping. Shortly after the others left, Courson came into the bedroom removed his shoes and pants, got on top of Brandi and had sexual intercourse with her. Brandi remembered hearing "the zipper of his pants [and] the Velcro of his shoes," and heard Courson call her a "nice girl." She also was aware that Courson sexually penetrated her and ejaculated, and heard him "moan and groan." She testified that she was "shocked" and "scared" but physically "incapable of doing anything, except for lying down."
Brandi woke up at approximately 7:00 a.m., and vomited again. She telephoned Courson, who had left his telephone number, to ask where her keys were. Courson told her she had thrown up a lot but nothing had happened between them. Brandi was concerned that she had been raped and went to an urgent care facility where medical personnel collected evidence using a rape kit. Believing Courson had had sex with her, Brandi called him again and Courson denied having done anything.
After initial denials, Courson admitted to the police that he had sexual intercourse with Brandi 30 minutes after the other people had left Brandi's apartment. Courson testified at trial that Brandi expressly consented to sex, and that they talked amiably afterwards.
DISCUSSION
Substantial Evidence Supports Verdict
Rape by intoxication occurs when the victim is so intoxicated that she lacks the mental capacity necessary to give legal consent to sexual intercourse. (People v. Giardino (2000) 82 Cal.App.4th 454, 461-462; § 261, subd. (a)(3).) Courson contends there was no substantial evidence to support such a finding. We disagree.
In reviewing a substantial evidence claim, we view the evidence in the light most favorable to the judgment, and affirm whenever a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) We do not reweigh the evidence or evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here we conclude that the judgment is supported by substantial evidence of "reasonable, credible, and . . . solid value." (People v. Jones (1990) 51 Cal.3d 294, 314.)
Under section 261, subdivision (a)(3) sexual intercourse constitutes rape "[w]here a person is prevented from resisting by any intoxicating . . . substance, . . . and this condition was known, or reasonably should have been known by the accused." A person is "prevented from resisting" if he or she is so intoxicated that he or she lacks the mental capacity to exercise the reasonable judgment necessary to give legal consent. (People v. Giardino, supra, 82 Cal.App.4th at pp. 466-467; see CALCRIM No. 1002.) The person "must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." (CALCRIM No. 1002.)
Substantial evidence supports the finding that Brandi was so intoxicated that she could not exercise the reasonable judgment necessary to give consent and could not understand or weigh the character and consequences of such consent. Evidence establishes that Brandi was extremely intoxicated. She was frequently unable to walk on her own, or get up from the floor after vomiting. She had to be carried to her bedroom after drinking at the bar. Once placed on her bed, she remained face down without movement and vomited repeatedly into a bucket that was placed at the side of her bed. She drifted in and out of consciousness, alternating between sleep and vomiting. This behavior existed both before and after Courson had sexual intercourse with her. She testified that she was "incapable of doing anything, except for lying down."
Courson argues that Brandi's trial testimony established that she knew what was occurring at the time of the sexual intercourse and was able to weigh her options. She testified that she heard Courson unzip his pants and release the Velcro on his shoes, and tell her she was a nice girl, and also testified that she was aware of his mounting her, his sexual penetration, and that she was afraid.
This evidence may show that Brandi was conscious and was aware of what was happening, but Courson was not convicted of sexual intercourse with an unconscious person. (§ 261, subd. (a)(4).) As we shall explain, a victim's purported explicit or implicit consent is relevant to the reasonableness of a defendant's belief in her capacity to consent, but it is not determinative of the capacity to consent. Rape by intoxication may occur when the victim is conscious, physically able to speak, and physically capable of manifesting consent or resistance, but lacks the mental capacity to give legal consent. (People v. Giardino, supra, 82 Cal.App.4th at pp. 462-464.) Here, the evidence supports the conclusion that, although she was able to perceive what was happening to her, Brandi was impaired by alcohol to the degree that she could not respond rationally to the assault either physically or through the exercise of judgment and, therefore, could not give lawful consent.
No Instructional Error
Courson contends that the trial court erred by not instructing the jury, sua sponte, that rape by intoxication requires more than reduced sexual inhibition due to alcohol consumption. We disagree.
The trial court instructed the jury with CALCRIM No. 1002, and Courson waived any claim of instructional error by failing to object to the accuracy or sufficiency of that instruction, or propose an additional or supplemental instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) He also waived his claim that instructional error prejudiced his constitutional right to a fair trial for the same reason. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 165.)
CALCRIM No. 1002 provides in relevant part that rape by intoxication requires:
Even if it had not been waived, Courson's contention would lack merit. He argues that CALCRIM No. 1002 should have been supplemented with language from CALJIC No. 1.23.2 stating that rape by intoxication requires more than intoxication that reduces the person's "sexual inhibitions," and that the "level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue." We disagree, and conclude that the standard CALCRIM No. 1002 instruction fully and accurately states applicable law.
In substantial part, CALJIC No. 1.23.2 provides that "an essential element of the crime is that the alleged victim was prevented from resisting the act by an intoxicating substance. 'Prevented from resisting' means that as a result of intoxication, the alleged victim lacked the legal capacity to give 'consent.' Legal capacity is the ability to exercise reasonable judgment, that is, to understand and weigh not only the physical nature of the act, but also its moral and probable consequences. [¶] In making this determination, you should consider all the circumstances surrounding the act, including the alleged victim's age and maturity. It is not enough that the alleged victim was intoxicated to some degree, or that the intoxication reduced the person's sexual inhibitions. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. Instead the level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue."
CALJIC No. 1.23.2 is derived from People v. Giardino, supra, 82 Cal.App.4th at pages 466-467. In Giardino, the jury was instructed with CALJIC No. 10.02 which, in pertinent part, defines rape by intoxication as sexual intercourse with a person who is "prevented from resisting by any intoxicating . . . substance, and this condition was known or reasonably should have been known by the accused . . . ." Giardino concludes that CALJIC No. 10.02 inaccurately suggests that the victim's consent rather than her capacity to give consent is critical and that "prevented from resisting" refers to physical resistance rather than mental incapacity to resist. (Giardino, supra, at pp. 462, 466.) Giardino holds that the jury should have been instructed that "prevented from resisting" required the jury to determine whether the victim lacked the legal capacity to consent because she lacked the ability to exercise reasonable judgment. (Id., at p. 466.) The court also explained that the level of intoxication must be greater than that which simply reduces sexual inhibitions. (Id., at pp. 466-467.)
CALJIC Nos. 10.02 and 1.23.2 have been replaced by CALCRIM No. 1002 which includes language consistent with the principle expressed in Giardino that rape by intoxication concerns a victim's mental capacity to consent. CALCRIM No. 1002 provides that a "person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved."
CALCRIM No. 1002 does not include that language from CALJIC No. 1.23.2 regarding a reduction in inhibitions from alcohol, but fully explains that the jury must find that the victim's level of intoxication was sufficient to negate the exercise of the reasonable judgment necessary for legal consent. Jurors are able to resolve the factual issue of whether a given victim was too intoxicated to resist sexual intercourse without further instruction. (See People v. Linwood (2003) 105 Cal.App.4th 59, 68-70.)
Courson also contends that the trial court erred by failing to instruct the jury that lack of consent is not an element of the offense and that a reasonable belief that a victim had the mental capacity to consent does not require actual consent. As previously stated, Courson waived any claim of instructional error because he did not object to the accuracy or sufficiency of CALCRIM No. 1002 in the trial court.
Even if it had not been waived, Courson's contention would lack merit. Courson relies upon argument by the prosecutor that Brandi did not consent to sexual intercourse. He claims the prosecutor misstated the law by suggesting that lack of actual consent rather than the lack of capacity to consent is sufficient for a conviction, and argues that the misstatement necessitated a corrective jury instruction.
In substance, Courson is making a prosecutorial misconduct argument that also has been waived by failure to object in the trial court or request an admonition. (People v. Brown (2003) 31 Cal.4th 518, 553.) In addition, where the court properly instructs the jury, and the prosecutor misstates the law, the "error would merely amount to prosecutorial misconduct . . . during argument, rather than trial and resolution of the case on an improper legal basis." (People v. Morales (2001) 25 Cal.4th 34, 43.) As a reviewing court, we presume the jury relied on the instructions, not the arguments of counsel, in reaching its verdict. (Id., at p. 47.)
The trial court overruled a defense objection to a statement by the prosecutor that, even if Courson believed Brandi consented, it is a defense only if a "reasonable, prudent, average person would agree." This objection is not relevant to the prosecutor's purported misstatement of the law regarding the necessity of actual consent.
In any event, the prosecutor did not misstate the law. He correctly stated the elements of the crime, and read most of CALCRIM No. 1002 to the jury. He further emphasized that mental capacity to consent was the critical element of the offense when he stated that "it's not merely that consent is given; even if you believe . . . that somehow Brandi said, 'I want you,' . . . you must actually believe that she was capable of consenting . . . [and] a reasonable, normal, average person would also agree that she was truly capable of giving consent."
Courson interprets language in People v. Giardino, supra, 82 Cal.App.4th at page 471 that "a belief in the existence of . . . actual consent is irrelevant," as making actual consent irrelevant to proof of any element of crime, and as making a belief that actual consent was given irrelevant to the reasonableness of his belief that Brandi had the capacity to consent. He is incorrect. The statement in Giardino means only that actual consent is irrelevant to the jury's determination of mental capacity to consent. A belief in the existence of actual consent, however, is critical to a claim that Courson reasonably believed Brandi had the capacity to give legal consent. It would be absurd for a defendant to claim he "actually and reasonably believed" the victim had the capacity to consent unless the defendant also claimed the victim had given her consent.
There was no such absurdity in this case. Courson's theory was that Brandi willingly consented to sexual intercourse, and he reasonably believed she had the capacity to do so. The prosecution theory was that Brandi neither consented nor had the capacity to consent. Although actual consent is not an element of the offense, evidence of Brandi's circumstances and conduct, including any words of consent or non-consent, are critical to a determination of her level of intoxication and her mental capacity to give consent. Both Courson and the prosecution recognized this fact and presented evidence and argument accordingly.
The judgment is affirmed.
We concur GILBERT, P.J., COFFEE, J.
"1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The effect of (a/an) intoxicating substance prevented the woman from resisting; [¶] AND [¶] 4. The defendant knew or reasonably should have known that the effect of (a/an) intoxicating substance prevented the woman from resisting. . . . [¶] A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty."