(Los Angeles County Super. Ct. No. KA086832) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
We hold that substantial evidence supports the jury's findings that the 15-year-old sexual assault victim, who suffered from cerebral palsy resulting in severe communication difficulties combined with physical disabilities, was mentally incapable of consenting to the sexual offenses committed upon her by defendant. Defendant's additional contentions regarding insufficiency of the evidence, prejudicial exclusion of evidence of a prior false accusation of sexual assault, instructional error, and denial of equal protection in requiring lifetime registration as a sex offender, are also unmeritorious. We affirm.
Defendant and appellant Robert Frank Miranda was convicted of the following offenses upon Jane Doe, a person physically or mentally incapable of giving consent: count 1 -- attempted rape (Pen. Code, § 664/261, subd. (a)(1));*fn1 count 2 -- oral copulation (§ 288a, subd. (g)); and count 3 -- sexual penetration (§ 289, subd. (b)). The trial court sentenced defendant to 11 years in state prison.
Fifteen-year-old Jane Doe slept in a trailer with her father and 13-year-old brother, Vincent, on a Sunday night in October 2008. Someone sleeps with Jane for her safety, because she has cerebral palsy that results in numerous seizures. After the father left for work between 4:00-5:00 a.m. on Monday morning, defendant, who is grandfather to Jane and Vincent, entered the trailer. Defendant directed Vincent to one of the beds, while defendant got into bed with Jane. Vincent believed defendant came to the trailer to take care of his sister.
Vincent soon heard the sound of a female moaning. Defendant was under the blankets, which were moving, with Jane beneath him. When the blankets moved off defendant, Vincent saw defendant with his head close to "her privates," between her knees, licking her. Defendant's head moved up and down, and a bit later, Vincent saw defendant's fingers entering a split in the boxer shorts worn by Jane in the area of her "privates." Defendant asked Jane several times if she liked that. Vincent definitely saw defendant's fingers touching his sister, but he could not actually see if defendant's tongue touched her "privates." Vincent thought defendant, who was wearing boxer shorts, had an erection. Defendant put the blankets back over himself and was again on top of Jane. About 15 minutes later defendant's wife came home, after dropping off other grandchildren at school. After defendant walked out of the trailer, Vincent noticed a salty, fishy smell in the trailer. Vincent asked Jane if defendant had done anything. She made a gesture which Vincent understood to mean he should not say anything because defendant would get mad.
Direct examination of Jane before the jury consumed six pages of reporter's transcript. A number of leading questions were asked, as permitted by the trial court, without objection by defense counsel.*fn2 With the exception of three answers, Jane's verbal responses on direct examination were one word consisting of a single syllable.*fn3 At least seven of her answers were inaudible or unintelligible.
Jane testified she would tell the truth in court, and when asked if she would lie, she moved her head from left to right, which the prosecutor described as indicating "no." The trial court explained to the jurors that they were in "the best position" to see what was happening and to "use your own evaluation" as matters were described for the record. Using a blue marking pen and a simple diagram of a young girl, Jane made shaky markings on the girl's breasts and vagina to indicate where she had been touched by defendant. On a similar diagram of a boy, she placed marks just below the mouth and on the area of the penis to indicate what body parts defendant had used to touch her. When asked if defendant used his mouth to touch her, she stuck out her tongue and nodded "yes." She held up ten fingers when asked if defendant had touched her more than once.
The cross-examination of Jane by defense counsel, also consisting of six pages in the reporter's transcript, followed the same pattern as her direct testimony. The majority of her verbal answers consisted of one word and one syllable. On a few occasions she gave two word answers ("Yeah. Yeah" or "Yeah. Right."). She gave one three word answer -- "I don't know." There were at least ten questions to which there was either an inaudible or unintelligible response. Jane testified that the molestation occurred in 2008, but she first told someone in March 2009.*fn4 Defendant was wearing boxer shorts. She saw defendant's penis, which was big.
In his testimony, Vincent described Jane as walking "a little bit slower," but he can talk and interact with her. Jane's brain cannot make her tongue work when she talks due to her cerebral palsy. She goes to a special education school, where she is a sophomore, although Vincent does not know what she is being taught or at what level.
Detective John Selby, a deputy sheriff for 27 years (including 13 years in the Special Victims Bureau), was the investigating officer. He reviewed the report of the sexual assault, after Jane first reported the abuse by defendant to a teacher. The deputy who took the report interviewed Jane and Vincent. Detective Selby arranged for them to be interviewed at the Children's Advocacy Center "because of the condition of . . . our victim." The Center specializes in forensic interviews in a non-intimidating setting, outside the presence of uniformed law enforcement officers. The interviews were observed by the detective and prosecutor. Detective Selby did not conduct a follow-up interview, because the interview statements of Jane and Vincent were consistent with the initial report in the case. The report said Jane was wearing pajama bottoms, not boxer shorts. Jane was not subjected to a physical exam. The specialists in sexual assault examinations recommended against a physical examination due to the passage of time between the incident and the report.
Defendant and his wife confirmed that the children's father slept with the children in the trailer on Sunday night, he left for work early in the morning, and due to her cerebral palsy, Jane is not allowed to sleep alone because she has seizures. Defendant went to the trailer, wearing pajamas or sweatpants, to make sure Jane was okay after her father went to work. It was early in the morning and defendant did not want her to be unattended if she had a seizure.
When he entered the darkened trailer, defendant found Jane on the sofa bed where she slept with her father, and Vincent was in the back bed with the curtains closed. Defendant climbed into bed with Jane, facing the wall, leaving room for her to get up if she wished. One time Jane jumped out of bed, defendant asked if she was okay, and she said yes and returned to bed. She next awoke when Vincent got up and said he was going to eat. Defendant remained with her in the trailer until 7:00-7:15 that morning.
Defendant did not sexually molest his granddaughter. Jane, who has been in therapy her entire life, was being manipulated into saying she was molested. He never did anything to her, and he does not know why Vincent testified as he did, other than not wanting to move in with defendant.*fn5
Defendant was impotent in October 2008. It was not possible for him to have an erection due to diabetes and radiation treatment for cancer. Defendant did ask a doctor for Viagra, but it did not help. This would be documented in his medical records.*fn6
Defendant's wife saw defendant at approximately 7:00 a.m., when she went to ask if he would like a cup of coffee. Jane was asleep in the trailer, but Vincent had already come into the living room of the house. Defendant's wife left briefly around 7:45-7:50 a.m. to take other grandchildren to school. When she returned five minutes after dropping off the children at school, defendant was in the house with Vincent and Jane.
Jane and Vincent were supposed to go home on Sunday, but their mother failed to cooperate in picking them up, which was not unusual, so they stayed over to Monday. Defendant had a telephone conversation with their mother, in which he said he was tired of her not showing up and she was a bad mother who had abandoned her children. Defendant eventually took the children to Victorville, where they were picked up by their mother.
Defendant's wife found two empty beer cans stuffed under the dryer
in the trailer, as well as a water bottle containing what she thought
was two ounces of tequila. She did not believe these items were left
there by the children's father, as he had no reason to hide alcoholic
containers, and he usually drinks beer, not tequila.*fn7
The items were left in the trailer and
photographed in March or April 2009 by an investigator.
Vincent's mother had spoken to defendant about Vincent coming to live with him because she could not control him. Defendant told Vincent if he was going to live with him he would have to follow all the rules, including doing his homework before going out to play. April 2009 was the first time defendant heard anything about molestation allegations in a phone conversation with Jane's mother. Defendant told her he had nothing to do with that and he would not do that to her.
I. Sufficiency of the Evidence
Defendant argues the evidence was insufficient in various respects. He contends no evidence was presented that Jane lacked the capacity to consent to the sexual offenses due to a mental disorder. He also contends there was insufficient evidence that he attempted an act of sexual intercourse with Jane or that he penetrated her with his fingers. We hold that none of the challenges to the sufficiency of the evidence has merit.
In considering an appellate challenge to the sufficiency of the evidence, state law requires this court to "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Under the due process clause of the 14th Amendment, an appellate court must "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318.) The reviewing court does not address whether it believes the evidence established guilt beyond a reasonable doubt. "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Id. at pp. 318-319.)
The same standard of review applies to cases relying on circumstantial evidence. "[T]he judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. (People v. Johnson[, supra,] 26 Cal.3d [at p.] 576.)" (People v. Millwee (1998) 18 Cal.4th 96, 132.)
B. Capacity to Consent*fn8
Defendant contends the evidence is constitutionally insufficient in
all three counts to support a finding that Jane lacked the capacity to
consent due to a mental disorder. The Attorney General does not argue
that there is substantial evidence of mental incapacity, as argued by
the prosecutor at trial, but instead contends there is substantial
evidence of Jane's lack of physical capacity to consent.*fn9
We hold the record contains substantial evidence that
Jane lacked the mental capacity to consent to the charged sex acts
All three convictions in this case -- attempted rape, oral copulation, and sexual penetration -- were based on the theory that Jane was "incapable, because of mental disorder or developmental or physical disability, of giving legal consent" (§§ 664/261, subd. (a)(1), 288a, subd. (g), 289, subd. (b)). The jury was instructed that an element of each charged offense was Jane's incapacity to consent.*fn10 Defendant argues that "although the prosecution's evidence establishes a disability, no evidence whatsoever was introduced that Jane was incapable of giving consent -- 'positive cooperation in an act or attitude pursuant to an exercise of free will' (§ 261.6) -- a requisite element of the crimes of which defendant was convicted."
The existence of capacity to consent is a question of fact. (People v. Griffin (1897) 117 Cal. 583, 585 (Griffin), overruled on other grounds in People v. Hernandez (1964) 61 Cal.2d 529, 536.) A lay juror is able to assess the extent of 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, fn. omitted.)" (People v. Thompson (2006) 142 Cal.App.4th 1426, 1439 (Thompson).) "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, app. den. 447 Mass. 1102; State v. Perkins (2004) 2004 WI App 213, review den. 2005 WI 1; Jackson v. State (Alaska Crim.App. 1995) 890 P.2d 587, 589-592; State v. Summers (1993) 70 Wn.App. 424, 428-429; State v. Kingsley (N.D. 1986) 383 N.W.2d 828, 830-831; Wilkinson v. People (1929) 86 Colo. 406, 412-413.)" (Thompson, supra, at p. 1437; People v. Lewis (1977) 75 Cal.App.3d 513, 519 [lack of capacity to consent "does not call for any type of clinical diagnosis"].)
The jury's determination of Jane's capacity to consent necessarily depended upon the jurors' subjective assessment of her demeanor, as her demeanor as a witness was highly probative of her mental condition. The demeanor of witnesses is rarely reflected in the record. (People v. Navarette (2003) 30 Cal.4th 458, 516.) "As a reviewing court, we confront a cold record without the trial court's benefit of observing firsthand the appearance and demeanor of the witness." (People v. Lewis (2001) 26 Cal.4th 334, 359.) The jury implicitly found Vincent and Jane to be credible witnesses, "and we must give proper deference to such findings." (Ibid.)
"As explained by Judge Learned Hand, a witness's '"'demeanor'" -- is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale.' (Dyer v. MacDougall (2d Cir. 1952) 201 F.2d 265, 269, fn. omitted.)" (People v. Adams (1993) 19 Cal.App.4th 412, 438.)
Defendant argues "the only evidence was that Jane suffered from cerebral palsy and seizures, that she had difficulty speaking, and that she attended a school with special education." There is direct evidence of these facts, but it is an incomplete assessment of the totality of the evidence. The record contains strong circumstantial evidence that Jane's mental condition prevented her from having the ability to consent "at the time" of the offenses. (Thompson, supra, 142 Cal.App.4th at p. 1440 ["The relevant statutes require proof that the victim was 'at the time incapable . . . of giving legal consent . . . .'"; §§ 261, subd. (a)(1), 288a, subd. (g), 289, subd. (b)].)
One of the strongest circumstances indicating that Jane lacked the mental capacity to consent is that she did not respond to defendant's questions asking if she liked what they were doing during the sexual assault. The jury could rationally conclude that a 15-year-old girl who had the ability to appreciate what was taking place would express some reaction to a surprise sexual assault from her grandfather in a small trailer, with her brother nearby, in the early hours of the morning. Jane's lack of response certainly suggests that she did not have the capacity to understand the consequences of defendant's acts or the ability to voluntarily consent to them. From her failure to react, the jury could infer she did not simply have difficulty speaking, but that her mental capabilities, in the circumstances of the offenses, prevented her from being capable of giving consent.
A further indication of Jane's lack of capacity to consent is found in her childlike description at trial of the sexual assault. The best she could do to explain what happened was to place shaky marks on simple diagrams to indicate where and how she was touched by defendant, and hold up ten fingers when asked about how she was touched by defendant. The impression left by her testimony was that she lacked the understanding required of one capable of giving consent and defendant knowingly took advantage of that disability. The jury could reasonably infer that an inability to articulate what happened demonstrated that Jane was not capable of appreciating what took place or freely and voluntarily participating in the acts. (State v. Ortega-Martinez (1994) 124 Wn.2d 702, 714 [in assessing whether a victim was capable of understanding the nature or consequences of sexual intercourse at the time of an incident, "the jury may evaluate, in addition to that person's testimony regarding his or her understanding, other relevant evidence such as the victim's demeanor, behavior, and clarity on the stand"].)
Jane's difficulty in answering questions at trial further supports the inference that she lacked the mental capacity to consent to defendant's conduct. The bulk of her brief testimony consisted of one word answers in response to leading questions. She did not answer some questions and made unintelligible responses to others. Jane at times relied on gestures to answer questions. A reasonable jury could infer from her difficulty in processing what was asked of her at trial and formulating responses to the questions that she lacked the mental capacity to consent to the acts committed by defendant.
We add to these circumstances the direct evidence supporting Jane's incapacity to consent. The direct evidence established she was a 15-year-old cerebral palsy victim,*fn11 who had trouble walking and talking. As described by her brother, the disease caused her brain to prevent her tongue from working properly. Jane attended special education and needed assistance at night due to her seizures and proclivity for getting up. Her condition caused the investigating officer to have her interviewed at the Children's Advocacy Center instead of being interviewed by the detective or prosecutor.
Defendant argues there was evidence Jane could communicate with her brother and was a high school sophomore, indicating she had the mental capacity to consent. This is no more than a request that we reweigh the evidence, which we will not do. As required, we view the evidence in the light most favorable to the judgment, drawing all inferences in support of the verdicts. Based on our summary of the evidence, the jury could infer that Jane was "prevented from legally consenting" because she was "unable to understand the act, its nature, and possible consequences." (Judicial Council of Cal. Crim Jury Instns. (2009-2010) CALCRIM Nos. 1004, 1020, 1049.) Although our ...