Opinion
G044346 Super. Ct. No. 09CF1199
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR MENDOZA, Defendant and Appellant.
Edward J. Haggerty, 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, Pamela Ratner Sobeck and Sharon L. Rhodes, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Edward J. Haggerty, 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, Pamela Ratner Sobeck and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Salvador Mendoza guilty of rape, two counts of unlawful sexual intercourse with a minor, and two counts of rape of an incompetent person. We affirm.
I
FACTS
The jury found defendant guilty of forcible rape between August 1, 2008 and August 31, 2008 (Pen. Code, § 261, subd. (a)(2); count one), rape of an incompetent person between September 1, 2008 and May 7, 2009 (§ 261, subd. (a)(1) count two), rape of an incompetent person on May 8, 2009 (count three), unlawful sexual intercourse with a minor between September 1, 2008 and May 7, 2009 (§ 261.5, subd. (c); count four), and unlawful sexual intercourse with a minor on May 8, 2009 (count 5).
All undesignated statutory references are to the Penal Code.
S.M. was born in June 1992. Defendant was born in December 1981.
S.M. attended high school in Santa Ana. Lucy Mendoza was a friend of S.M.'s mother. S.M. used to go to Mendoza's house about once a week while S.M. was still in high school. There she met defendant, one of Mendoza's brothers. Defendant lived with his sister. S.M., who was 16 years old at the time, said she liked defendant and would "hang out" with him "like every day" for about a week. They started out as friends and he became her boyfriend. They held hands, hugged, and kissed. She said they dated for several months.
S.M. said she had sex with defendant more than 10 times. She said they had sex near Centennial Park by a bike path, underneath an overpass. They usually had sex near the park, but the first time was at defendant's house. She was on the bed in his bedroom. Defendant was hugging and kissing her when he pulled down her pants. S.M. asked him what he was doing, and told him, "I don't want sex." He asked why, and she told him, "Because it's bad to do sex a lot of times." He told her it was not bad. She repeated that it was. She told defendant "a lot of times" that day that she did not want to have sex. Defendant took S.M.'s clothing off of her. She closed her legs, covered her vagina with her hands, and again told defendant she did not want to have sex. S.M. was afraid. Defendant opened her legs and had intercourse with her.
S.M. would sometimes sneak out of her house to see defendant and lied to her mother about where she was going. S.M. said she said "yes" to having sex on other occasions, but also said she told the police she sometimes told defendant she did not want to have sex and that the statement she made to the police was true. She told the police defendant said that he would leave her and find another girlfriend if she did not have sex with him. That was part of the reason she agreed to have sex with defendant. On cross-examination S.M. said she had sex with defendant because she liked him.
Defendant asked S.M.'s parents for their permission to date S.M. They said no, and he cried. S.M. and defendant planned on getting married once she turned 18.
The last time they had sex was by the bike path at Centennial Park. S.M. had skipped school that day to be with defendant. The police went to S.M.'s house to talk to her later that day.
Guadalupe P. is S.M.'s mother. S.M. is the oldest of five children. According to her mother, S.M. is not typical of a teenager her age, either mentally or developmentally. When S.M. was about five years old, one could not understand what she was saying. Her mother noticed S.M.'s mental and developmental abilities were not what they should be. S.M. has been aggressive ever since she was a little girl; she would hit other children. She did not understand what she was told about not striking other children.
S.M. attended special classes in high school. She has been in special classes since she was three years old. Her mother said S.M. does not have the mental ability of a girl her age, because she will do something even when told not to. Her mother said she believes sometimes S.M. understands what she is told and other times her mother does not know if S.M. understands.
S.M.'s mother said S.M. may hit, shove, scratch or pinch a person that makes her angry. She will fight back if angry. She may even throw things. Other times she cries and says, "No more, no more." According to mother, S.M.'s major problem is that she is difficult to understand when speaking.
S.M.'s mother said S.M. can cook beans, she does her own makeup, buys her own clothes, and chooses the clothing she is going to wear that day. She graduated from high school, worked at the Dollar Store, and was able to take the bus to and from work.
Officer Wendy Beatley of the Santa Ana Police Department interviewed S.M. in May 2009. S.M. looked younger than 16 years old. S.M. said she was in a relationship with defendant and they engaged in sexual intercourse. She said they had sex 20 times and that the first time was forced.
That same day Beatley spoke with defendant. Defendant initially denied having sex with S.M. He later admitted dating her for about a year, that she had told him she was 16 years old, and that they had had sex. He said that they had had sex three times, and then changed his answer to 10 times. The last time was that day in Centennial Park. He also admitted the first time was in August 2008. He remembered S.M. saying something about not wanting to have sex with him. He said he may have forced her a little bit.
Adrianna San Ramon-Ball, a forensic interviewer for Orange County Social Services interviewed S.M. in May 2009. San Ramon-Ball thought S.M. suffered from some developmental delay. The interview ended in a manner not typical of interviews with a 16-year old girl. S.M. began to cry, got up, and walked out of the room.
Charlotte Smith is a school psychologist for the Newport Mesa School District and tests children for special education. She is familiar with S.M. S.M. was in a moderate to severe special education class in ninth grade. Students in moderate to severe special classes "need a great deal of assistance through their day, and the majority of them are under the category of mental retardation, eligibility category of mental retardation or autism." In 2007, S.M. was classified as mentally retarded. To be so classified, the student must be significantly below average in the area of adaptive and life skills. Her IQ fell into the mildly to moderately retarded range. When Smith tested S.M. at the age of 14 years old, S.M.'s age-equivalent intelligence was that of a seven or eight year old. Ninety-nine percent of people have a higher IQ than S.M. When one has the level of S.M.'s intelligence, there are concerns about whether the person can safely cross a street and "stranger danger."
Smith said that on another intelligence test, the Test of Nonverbal Intelligence (TONI-3), S.M. tested in the range of mild retardation. Using this test, S.M.'s age intelligence equivalent would be that of a nine year old, but Smith does not use it with the moderate to severe class because students tend to score higher on the low end of the scale.
Defense Evidence
Jeff Johnson is a service coordinator for the Orange County Regional Center. He was S.M.'s case manager in 2007. In that capacity he observed S.M. in her group home in March 2007. He saw how she interacted with peers, the staff, and with him. He observed her check in after school. There were times S.M. was aggressive toward her peers, which was not typical for someone her age.
He described the afternoon activities in the group home. "Each day, they had different activities that the children would participate in ranging from snack time, cleaning up, washing their face if they needed to from the day, and then an activity, whether it was to go down to the park for the afternoon or something along those lines." Johnson said S.M. usually followed instructions.
Jose Macias became S.M.'s case manager in May 2007, when S.M. returned to live with her parents. He sees her "anywhere between two to three times" a year. When he first met her in 2007 while she was living in the group home, she was very friendly and did not know her boundaries. He was asked if he had determined S.M.'s needs. He answered: "Yeah. You can . . . pretty much tell when a consumer can do certain things and when they can't do certain things. Our spectrum is so broad, some are total care dependent, and like her, she's a little bit higher functioning. She's able to move on her own two feet, use her hands. She's verbal. So if she needs help, she can tell mom or whoever is the care provider, I need help in this area. You can pretty much gather information on that." Macias said she needed "a lot of verbal prompts, reminders." She can make a purchase if someone is with her. She knows the difference between coins and bills, but getting the correct change may be difficult for her.
Roberto Flores de Apodaca (Flores), Ph.D., a licensed psychologist, teaches psychology full-time at Concordia University and practices forensic psychology. The defense retained Flores to conduct intelligence testing on defendant. He gave defendant the TONI-3 IQ test. Defendant scored in the third percentile with a score of 72. Those with scores of 69 or below are considered mentally retarded. Defendant's score does not indicate mental retardation. According to Flores, the score puts defendant "in a range between mental retardation and low average." The score indicates defendant has borderline intellectual functioning. An individual with defendant's score has significant limitations on the ability to learn new material. Flores did not find any evidence that defendant had a mental defect or disorder under Axes I, II, or III of the Diagnostic and Statistics Manual.
Rebuttal Evidence
Beatley testified she did not have difficulty understanding defendant when he spoke with her. She said there was nothing in his demeanor to cause her to suspect he suffered from any mental impairment or to believe he was "a little slow."
II
DISCUSSION
A. Challenges to Section 261, Subdivision (a)(1)
1. Vagueness
Section 261, subdivision (a)(1) makes it unlawful to have sexual intercourse with a person who "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." In any prosecution under this section, "the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disorder rendered the alleged victim incapable of giving consent." (Ibid.) Defendant contends this subdivision is unconstitutionally vague. (See City of Chicago v. Morales (1999) 527 U.S. 41, 52-56; Kolender v. Lawson (1983) 461 U.S. 352, 357-358.) According to defendant, the vagueness results from the statute's use of the phrase "known or reasonably should be known." The California Supreme Court has rejected the same challenge to section 190.2, subdivision (a)(7), which makes it a special circumstance for one to intentionally kill a peace officer engaged in the performance of his or her duties when the defendant "knew, or reasonably should have known" the officer was so engaged. (People v. Brown (1988) 46 Cal.3d 432, 444-445; People v. Rodriguez (1986) 42 Cal.3d 730, 779-782.)
The very language defendant argues makes subdivision (a)(1) of section 261 unconstitutionally vague has been held to prevent a statute prohibiting oral copulation of one who is incapable of consenting due to "a mental disorder or developmental or physical disability" from being vague. (People v. Thompson (2006) 142 Cal.App.4th 1426, 1438.) And, in People v. Linwood (2003) 105 Cal.App.4th 59, the court rejected the same challenge defendant makes here in connection with subdivision (a)(3) of section 261. (Id. at pp. 67-70.) That subdivision prohibits sexual intercourse with one "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." (§ 261, subd. (a)(3).) Defendant cites no authority holding the challenged language unconstitutionally vague. Accordingly, we have no reason to depart from the undivided authority holding a requirement that the defendant know or reasonably should have known a given fact does not render a criminal statute unconstitutionally vague.
2. Section 261, Subdivision (a)(1) Does Not Criminalize Mere Negligence.
Defendant argues inclusion of the phrase "reasonably should be known" in section 261, subdivision (a)(1) announces a civil standard of negligence inconsistent with section 20's requirement that there exist a union of "act and intent, or criminal negligence" in every crime. From this premise, he concludes the statute violates due process, "[i]nasmuch as the higher standard of criminal negligence is a fundamental principle of American criminal jurisprudence . . . ."
In People v. Linwood, supra, 105 Cal.App.4th 59, Division One of this court rejected the same argument in connection with a defendant's conviction for rape of an intoxicated person (§ 261, subd. (a)(3)). (Id. at pp. 70-71.) As that court correctly observed, rape is a general intent crime which "'requires no further mental state beyond willing commission of the act proscribed by law.' [Citation.]" (Id. at p. 70.) As to the crime of rape where the victim lacks the capacity to consent due to a mental disorder or disability (§ 261, subd. (a)(1)), unconsciousness (§ 261., subd. (a)(4), or a level of intoxication that prevents resistance (§ 261, subd. (a)(3)), the statutes require the accused "either must have known or reasonably should have known of the victim's particular condition that precluded consent." (People v. Linwood, supra, 105 Cal.App.4th at p. 71.) We agree that rather than eliminating a criminal mens rea, the statute "sets a standard of knowledge or constructive knowledge." (Ibid.)
We also note that like section 288, which proscribes lewd touching of a child under 14 years of age, section 261, subdivision (a)(1) seeks to protect those individuals incapable of consenting to sexual activity. (People v. Soto (2011) 51 Cal.4th 229, 248, fn. 11 [discussing § 288].) However, unlike section 288, which does not allow a defense of the defendant's reasonable, good faith belief the victim was at least 18 years old and consented to the act (People v. Olsen (1984) 36 Cal.3d 638, 645), section 261, subdivision (a)(1) permits a defense of consent if the defendant did not know and a reasonable person would not have known the victim was incapable of consenting. We do not view the existence of this defense as creating a constitutional flaw in the statute. B. Evidentiary Issues
Defendant claims the court erred in admitting evidence that he had been required to attend alcohol classes and that he followed through and attended the classes. He also claims the court erred in excluding from evidence the opinion of S.M.'s former case manager as to her level of functioning. We review the trial court's evidentiary rulings for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586; People v. Mixon (1982) 129 Cal.App.3d 118, 127 [admission of lay opinion evidence is within trial court's discretion].)
Johnson, S.M.'s former case manager, testified in the defense case. After stating he was a service coordinator for the Regional Center of Orange County, that he was S.M.'s former case manager and observed her behavior at a group home in March 2007, defense counsel asked Johnson's opinion of S.M.'s "level of functioning." His answer — that she "was a high functioning young lady" — was stricken based upon a lack of foundation.
Thereafter, Johnson testified he observed how S.M. interacted with peers in the group home, with staff, and with himself. When defense counsel again asked the same question, the court again sustained an objection and explained to counsel that the reason was the word "functioning" implied an expertise on Johnson's part. Johnson then testified to his observations of S.M.'s interactions, including the fact that she was more assertive than most of the people in the group home.
A lay witness may give an opinion "as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800.) Any such opinion must be based on the witness's own perception. (People v. McAlpin (1991) 53 Cal.3d 1289, 1306.) "A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' [citation], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]" (People v. Melton (1988) 44 Cal.3d 713, 744.)
Although the court permitted S.M.'s mother to state her opinion regarding S.M.'s mental disability and Macias testified S.M. was higher functioning than others who were the subject of the regional center's oversight, it did not permit Johnson to testify to his opinion of S.M.'s level of functioning. When the question was first posed, Johnson had testified only to the fact that he knew who S.M. was, that he had been her case worker, and had observed her behavior for some undefined period of time in 2007. This sparse amount of information was insufficient to support a lay opinion as to S.M.'s level of functioning. The only additional evidence admitted prior to asking Johnson's opinion the second time, was that he had observed her interact with himself, peers and staff, and had formed an opinion of her level of functioning. Thereafter Johnson testified he was trained to form an opinion as to the level of functioning of a client. Although the court sustained the prosecutor's objection, the court did not foreclose a lay opinion and offered suggestions as to questions that could be lead to a lay opinion.
Even were we to find the court erred, any such error would be harmless here. Although Johnson was not permitted to testify S.M. was "high functioning" in his opinion, he was permitted to testify to what he observed of S.M.'s conduct that caused him to have an opinion. "I observed her most days coming home from school, checking in with staff, playing with her peers. There were times that she would be aggressive towards them, and as far as being typical for someone her age, no, just because most people her age wouldn't be aggressive toward their peers physically, but that was the nature of the group home that she resided in was designed to take — for behaviorally involved children." He described what S.M. was expected to do at the group home. "Each day, they had different activities that the children would participate in ranging from snack time, cleaning up, washing their faces if they need to from the day, and then an activity, whether it was to go down to the park for the afternoon or something along those lines." "High functioning" in connection with these activities — such as washing one's face when told to do so — would not be likely be interpreted by jurors to mean the individual is capable of making life decisions.
Additionally, there was other evidence that S.M. functioned at a higher level than some who receive services. Macias testified there is a very broad spectrum of individuals who receive services and that some are "total care dependent." Compared to those, he concluded S.M. was "a little bit higher functioning" because she is able to walk, use her hands, and is verbal. Any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant next argues the court erred in permitting the prosecutor to ask Dr Flores if his opinion regarding defendant's functioning level would change if he knew defendant had been required to attend alcohol education classes and fulfilled that requirement. We review that decision for an abuse of discretion. (People v. Adan (2000) 77 Cal.App.4th 390, 394.)
Prior to cross-examining Flores the prosecutor stated an intent to ask the doctor whether his opinion about defendant's mental capabilities would change if he knew defendant had been required to attend certain alcohol classes and that he followed through and attended the classes. The record from defendant's second driving under the influence conviction apparently indicated he completed the 12 hours of alcohol education classes he was ordered to complete.
The prosecutor then asked Flores on cross-examination whether his opinion concerning defendant's low IQ and limitations in learning new materials would change if he knew that defendant had been required to attend alcohol education classes and he carried through and attended the classes. Flores said it would not. There was no mention of criminal convictions or proceedings, and no mention of who required the attendance.
"[T]he scope of cross-examination of an expert is especially broad . . . ." (People v. Lancaster (2007) 41 Cal.4th 50, 105.) In addition to the cross-examination to which any other witness would be subject, cross-examination of an expert may be "aimed at determining whether the expert sufficiently took into account matters arguably inconsistent with the expert's conclusion." (People v. Ledesma (2006) 39 Cal.4th 641, 695; Evid. Code, § 721.)
Defendant does not argue the evidence was irrelevant. (Evid. Code, §§ 350, 351 ["[e]xcept as otherwise provided by statute, all relevant evidence is admissible].) Rather, he argues the admission of the evidence violated Evidence Code section 352, subdivision (b) because the evidence was more prejudicial than probative. His parade of horribles allegedly brought about by asking this question is unsupported by the evidence. There is no reason to believe the jury assumed defendant was ordered by a court to complete alcohol classes as a result of a conviction or that defendant had an alcohol problem and thus was a person of low moral character who was "more likely" to have committed the charged crimes.
Although the relevance of the question and its answer was not great, it was not outweighed by the purely speculative prejudice assumed by defendant. Accordingly, the court did not err in admitting this evidence. C. Instructional Issues
1. CALCRIM No. 331
The jury was instructed pursuant to a modified version of CALCRIM No. 331: "In evaluating the testimony of a person with a developmental disability, consider all of the facts surrounding that person's testimony, including his or her level of cognitive development. [¶] Even though a person with a developmental disability may perform differently as a witness because of his or her level of cognitive development, that does not mean he or she is any more or less credible than another witness. [¶] You should not discount or distrust the testimony of a person with a developmental disability solely because he or she has such a disability." (Italics added.)
Whether the trial court erred in instructing the jury is a question of law which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We reject defendant's multiple challenges to the instruction.
Defendant contends the instruction effectively told the jury that S.M. was a witness with a developmental disability. As he was charged with having sexual intercourse with one incapable of consenting (§ 261, subd. (a)(1); counts two and three) based upon a developmental disability, he contends the instruction acted as a finding that S.M. had a developmental disability and thus undermined the presumption of innocence and lightened the prosecution's burden to establish each element beyond a reasonable doubt. (See gen. Sandstrom v. Montana (1979) 442 U.S. 510, 523 [conclusive presumption would conflict with presumption of innocence]; In re Winship (1970) 397 U.S. 358, 362-363 [proof beyond reasonable doubt constitutionally compelled].) The instruction did not have this effect because it cannot be interpreted as having informed the jury S.M. had a developmental disability.
The jury was instructed that not all instructions may apply. "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200.) Thus, taking the instructions as a whole, CALCRIM No. 331 would be understood by a reasonable juror to apply only if the jury first determined a witness had a developmental disability. Then and only then did the credibility advisement contained in CALCRIM No. 331 become relevant. Because a reasonable juror would not have interpreted the instruction to mean the court found S.M. was a witness with a mental disability, the instruction did not relieve the prosecution of its burden of proving every element of the charged offense beyond a reasonable doubt and did not deny defendant due process.
Neither did CALCRIM No. 331 improperly bolster S.M.'s credibility, denying defendant his right of confrontation, to present a defense, due process, and his right to a jury trial. We have rejected these arguments before in People v. Catley (2007) 148 Cal.App.4th 500 [witness with cognitive impairment] and are offered no persuasive reason to reconsider our earlier decision.
Further, in addition to CALCRIM No. 331, the jury was also instructed on witness credibility pursuant to CALCRIM No. 226. Together, these instructions fully informed the jury in regard to judging the credibility of witnesses. CALCRIM No. 331 informed the jury that it should not simply reject a witness's testimony because the witness has a developmental disability. It does not, however, purport to imbue the testimony of a developmentally disabled witness with any more credibility than any other witness. It merely informs the jury that it should not disregard the testimony of a developmentally disabled witness based solely upon the witness having a disability, just as a jury should not disregard the testimony of a child based solely on the fact that the witness is a child. (People v. McCoy (2005) 133 Cal.App.4th 974, 978-980 [rejecting the same constitutional challenges addressed to jury instruction on evaluating a young child's testimony].) The instruction did not require any particular inference from the testimony of any witness found to be developmentally disabled. (Cf. People v. Harlan (1990) 222 Cal.App.3d 439, 456 [holding CALJIC 2.20.1 did not violate right of confrontation].) Moreover, the district attorney's argument could not have led the jury to a contrary conclusion. His sole comment on this issue was: "Just because a witness comes in with a disability, they shouldn't be discounted or distrusted just because of that."
"In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness's behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] What was the witness's attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject. [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
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The jury was free to judge S.M.'s testimony as it would any other witness, using the factors set forth in CALCRIM No. 226. CALCRIM No. 331 does not restrict the factors the jury may use in evaluating the testimony of a witness with a developmental disability. The instruction merely informs the jury that it should not discredit the witness simply because the person is different, i.e., has developmental disability. Indeed, as the jury was instructed pursuant to CALCRIM No. 226, it "must judge the testimony of each witness by the same standards . . . ." Accordingly, the instruction cannot reasonably be interpreted as permitting a finding of guilt based upon less than proof beyond a reasonable doubt. Thus, the instruction did not violate defendant's right to a fair trial.
However, even if we were to find the instruction was erroneously given, any such error would be harmless under any standard. Whether S.M. was developmental disabled was not contested by defendant. Rather, his defense was S.M. could lawfully consent notwithstanding her disability, and if she could not, whether given his intelligence he should have reasonably known she was incapable of consenting.
2. Reasonable and Good Faith Belief in Ability to Legally Consent
Defendant was found guilty in counts two and three with having sexual intercourse with a female who was incapable of consenting due to a developmental disability. (§ 261, subd. (a)(1).) In connection with those verdicts defendant argues the court erred in failing to instruct the jury on the defense of "a reasonable, good faith belief in the ability to give lawful consent." (People v. Giardino (2000) 82 Cal.App.4th 454, 472.) He argues the jury should have been instructed: "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 defendant not guilty."
The duty to sua sponte instruct a jury on a defense arises "'if it appears that the defendant is relying on such a defense, or there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 469.) The duty to instruct upon on a reasonable mistake of fact — the ability to consent — "is predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. [Citations.]" (People v. Williams (1992) 4 Cal.4th 354, 360, fns. omitted.)
Although defendant did not testify, his defense was that he did not know and, due to his low mental functioning, did not have reason to know S.M. was incapable of consenting. His attorney argued to the jury that in determining whether defendant knew or reasonably should have known S.M. was incapable of consenting, they had to keep in mind that defendant himself was borderline retarded and "for all [defendant] knows in his limited . . . intellectual functioning or being borderline retarded, [S.M.] acted like she loved him." "For all he knows, she [was] just like him. He does not have an average person's ability to judge. He does not think like an average person. An average person may see her disability, but [defendant] is not an average person because of his borderline retardation." Defendant clearly relied upon the defense.
On appeal, defendant argues someone in his position could have a reasonable, good faith belief S.M. was capable of consenting because "[s]he went to school, held a job, handled money, shopped and cooked." Assuming defendant knew S.M. went to school — she had skipped school to be with him the last time they had sex — there is no evidence he knew she had a job, handled money, shopped, or could cook beans, the limit of her cooking ability. But even assuming one in his position could have entertained a reasonable, good faith belief in S.M.'s ability to consent, the jury was instructed that it could only convict if it found beyond a reasonable doubt that defendant did not have such a belief. The jury was not only instructed of the elements of the crime of rape of a disabled woman pursuant to CALCRIM No. 1004, including the fact that the prosecution had to prove the defendant knew or reasonably should have known S.M. had a mental disability that prevented her from legally consenting, a pinpoint instruction was given on the issue of reasonable, good faith belief in consent. Immediately after being informed the prosecution had the burden of proving beyond a reasonable doubt the defendant acted with the requisite mental state, the jury was instructed: "[T]he People must prove that the defendant knew or reasonably should have known that the alleged victim had a developmental disability that prevented her from legally consenting. If the People have not met this burden, you must find the defendant not guilty of rape of a disabled person."
These instructions adequately informed the jury relative to defendant's defense and thus did not violate his right to due process. Accordingly, any error in failing to instruct in the terms urged by defendant was harmless. (People v. Moye (2009) 47 Cal.4th 537, 541 [error in failing to instruct is subject to the Watson (People v. Watson, supra, 46 Cal.2d at p. 836) standard].)
3. CALCRIM No. 362
The jury was instructed pursuant to CALCRIM No. 362: If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." Defendant contends this instruction denied him due process under the state and federal Constitutions because the inference of guilt from the false statement lacked a rational basis. "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]" (Francis v. Franklin (1985) 471 U.S. 307, 314-315.)
Similar challenges to CALJIC 2.03, the predecessor to CALCRIM No. 362 have been repeatedly rejected. (People v. Jackson (1996) 13 Cal.4th 1164, 1222-1224.) We have previously addressed and rejected similar arguments and perceive no reason to reconsider our decisions in this regard. (People v. Flores (2007) 157 Cal.App.4th 216, 221-222.)
The jury was entitled to consider the fact that when defendant was interviewed about his relationship with S.M., he initially denied having sex with her and subsequently not only admitted having sex with S.M., he admitted she was 16 years old at the time, and that he used force the first time. As we noted in People v. Flores, supra, 157 Cal.App.4th 216, the instruction "'"advise[s] the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution[s] that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instruction[] do[es] not address the defendant's mental state at the time of the offense and do[es] not direct or compel the drawing of impermissible inferences in regard thereto." [Citation.]' [Citation.]" (Id. at p. 221.) D. Prosecutorial Misconduct
"[O]n claims of prosecutorial misconduct our state law standards differ from those under the federal Constitution. With respect to the latter, conduct by the prosecutor constitutes prosecutorial misconduct only if it '"'"so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process."'"' [Citations.] By contrast, our state law considers it misconduct when a prosecutor uses '"'"deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' [Citations.] . . . 'A defendant's conviction will not be reversed for prosecutorial misconduct' that violates state law, however, 'unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.)
During argument to the jury, the prosecutor displayed a PowerPoint presentation. One of the slides depicted a map of the states of California and Nevada, although neither state was labeled. To the left of California was the word "Ocean" and inside the outline of Nevada was a dollar sign. The top of the slide bore the heading "Use Common Sense." His use of the slide consisted entirely of the following: "Let me give you an example of you being able to use your common sense in an everyday manner. I'm going to describe to you a state. It's one of the 50 states in the United States, and I know some things about this state, and I want to see if you can determine what state I'm talking about. The state looks like this (indicating). I also know there is a body of water on the left of the state. I don't know the name of that ocean. It's an ocean but I forget the name. I also know on the other side of the state, there is a state where you can win a lot of money, more likely lose a lot of money." Defendant's attorney objected and the jury was immediately excused. Thereafter the court held a hearing outside the presence of the jury.
The trial court held the prosecutor's example was indistinguishable from the use of a puzzle to demonstrate reasonable doubt condemned in People v. Katzenberger (2009) 178 Cal.App.4th 1260, and sustained the objection, prohibiting the prosecutor from continuing with his argument in connection with the slide. When he resumed his argument, the prosecutor simply stated it was important for the jury to use common sense. Defendant contends his convictions must be set aside due to prosecutorial misconduct.
In Katzenberger, the prosecutor argued the concept of reasonable doubt and to illustrate her point, she presented a PowerPoint presentation that started with a blue screen upon which six different puzzle pieces of a picture came onto the screen sequentially. The picture was "immediately and easily recognizable as the Statute of Liberty." (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1264.) The prosecutor then argued that reasonable doubt did not require all the pieces of the puzzle to know what was depicted by the picture. (Id. at p. 1265.) The appellate court agreed with Katzenberger that the prosecutor's PowerPoint presentation "misrepresented the 'beyond a reasonable doubt' standard." (Id. at p. 1266.) "The prosecutor's use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt." (Id. at p. 1268.) However, having found the prosecutor engaged in misconduct, the court found the error harmless under any standard. (Id. at p. 1269.)
Here, the prosecutor's attempted use of the slide was nipped in the bud by the court. Thereafter, the prosecutor was left with merely urging the jury to use its common sense. Moreover, the prosecutor did not mention the standard of proof in connection with presentation of the slide. Even were we to find misconduct in the prosecutor's brief use of the diagram prior to the objection, it did not infect the trial with unfairness so as to result in a denial of due process, any more than had the prosecutor argued "if an object looks like a duck, walks like a duck and quacks like a duck, it is likely to be a duck." (In re Deborah C. (1981) 30 Cal.3d 125, 141 (conc. opn. by Mosk, J.).) Neither was there a reasonable probability defendant would have received a more favorable result without the prosecutor's brief, curtailed to comments. (People v. Watson, supra, 46 Cal.2d at p. 837.)
Defendant argues his attorney was ineffective in failing to request an admonition to the misconduct. Having found defendant was not prejudiced by the purported misconduct, his claim of ineffective assistance of counsel is moot.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
O'LEARY, J.
MOORE, J.