California Court of Appeals, Third District, Yolo
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Yolo County No. CRF124524, Stephen L. Mock, Judge.
Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
ROBIE, Acting P. J.
Statistics show that 1 percent of the United States population has developmental disabilities. (Note, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity (1997)
83 Va. L.Rev. 799, 801.) Given this percentage, there has been a “movement toward the normalization and mainstreaming of... individuals [with developmental disabilities]” in our society. (Id. at p. 799.) “Greater integration into society has created opportunities in education, vocational training, and recreational activities.” (Ibid.) It has “also led to more opportunities to develop consensual intimate relationships that are often positive. While opportunities for consensual relationships have increased, the sexual exploitation and abuse of [individuals with developmental disabilities] continues to be a major problem.” (Ibid.)
Penal laws in California help address this problem by making it a felony to engage in, among other things, sexual intercourse, oral copulation, and digital penetration with a person who “is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.” (Pen. Code,  §§261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object].) “This is true even if the victim purports to consent.” (People v. Thompson (2006) 142 Cal.App.4th 1426, 1429 [48 Cal.Rptr.3d 803].) These penal laws are at issue in this case.
Here, defendant Thomas Michael Vukodinovich was the 73-year-old bus driver for Yolo Employment Services, a nonprofit agency providing work activity programs, job training, and job retention for individuals with disabilities, who was entrusted with taking clients to and from work. L. was a 49-year-old female client of Yolo Employment Services with a mental age of three or four and an IQ of 37 who rode defendant’s bus. From 2009 through 2012, defendant and L. carried on a sexual relationship, mostly in the bus consisting of sexual intercourse, oral copulation, and digital penetration. The sex acts usually took place when all the other passengers were off the bus, except sometimes the sex acts occurred while a gentleman who could not speak and another gentleman who was often asleep remained on the bus. Defendant told L. to “be quiet” about the sex acts and not to tell anybody because defendant “not wanna fire, ” meaning he did not want to be fired. Oftentimes, L. would say she did not want to engage in the sex acts, but defendant persisted. Defendant was prosecuted for the sex acts on the sole theory that L. was incapable of giving legal consent.
The jury found defendant guilty of one count of sexual intercourse, one count of attempted sexual intercourse, five counts of oral copulation, and four counts of digital penetration, all with a person who “is incapable, because of
a mental disorder or developmental or physical disability, of giving legal consent.” (§§261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object].) The court sentenced defendant to 14 years in prison.
In the published portion of this opinion, we reject defendant’s contentions that these penal laws impinge on his and L.’s rights to privacy and there was insufficient evidence of a lack of legal consent to support these convictions. In the unpublished portion of this opinion, we reject defendant’s other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
L. has been a client of Yolo Employment Services since she was 18 years old. L.’s job, Monday through Friday from 8:30 a.m. to 2:00 p.m., through Yolo Employment Services, was as a ...