Penal Code 288 and Battery by Darren Chaker

In People v. Gray (2011) 199 Cal.App.4th 167 [131 Cal.Rptr.3d 674] it was decided every lewd act is also a battery, therefore the court has a sua sponte duty to instruct on battery (Pen. Code, sec. 242), as a lesser included offense of a lewd and lascivious act (Pen. Code, sec. 288, subd. (a)). This form of battery would likely not be able to be expunged. Battery encompasses the slightest touching, with a general intent, so long as it is harmful or offensive. Any touching of a child for the purpose of sexual arousal would also be a touching that is harmful or offensive and constitute a battery. In this case, the defendant's touching of the victim met both definitions and was such that no reasonable jury would conclude the touching was merely offensive. The instructional error was not prejudicial in this case and therefore it was harmless error.

The imprecise testimony from the five-year-old witness as to the date of the offense rendered a sentence under the One Strike law a violation of ex post facto prohibition. Penal Code section 667.61, the One Strike law, went into effect on November 30, 1994. The information alleged certain counts occurred between January 1, 1994 and May 1, 1996. The increased punishment could not be applied to those offenses because the evidence at trial did not prove the offenses were committed after the effective date. The child gave inconsistent testimony and admitted she wasn't really sure about dates. The jury was not asked to render verdicts which would establish the date of the offenses. Four counts were remanded for resentencing without the application of section 667.61.

Continuous sexual abuse, a violation of Penal Code section 288.5, could not be sentenced under the One Strike law when the offenses occurred long before section 288.5 was added to the list of offenses subject to the greater punishment. Section 288.5 was added to section 667.61 and qualified for the greater sentence effective September 20, 2006. Sentences for continuous abuse which ended in 1995, as to one count, and 1998 as to another count, had to be reversed and remanded for resentencing without application of section 667.61.

The defendant's testimony about DNA evidence was properly excluded under Evidence Code section 352. The defendant's proffered testimony was not hearsay but was offered to demonstrate the defendant's consciousness of innocence in agreeing to cooperate and to provide DNA to the investigator. The trial court had discretion to find the slight probative value was outweighed by the risk of confusing issues. The defense was not precluded from presenting a consciousness of innocence defense through other admissible testimony.

© 2011 Darren Chaker. All Rights Reserved.

Lifetime Sex Offender Registration by Darren Chaker

Darren Chaker reflects on another new sex offender case in People v. Miranda (2011) 199 Cal.App.4th 1403 [132 Cal.Rptr.3d 315].

Here, the court decided if the victim's capacity to consent in a sex offense can be established by the jury's assessment of the victim's demeanor. Appellant was convicted of attempted rape, oral copulation, and sexual penetration of his 15-year-old granddaughter who suffered from cerebral palsy. All three convictions were based on the theory that the victim was incapable of giving legal consent to the acts because of a mental disorder or developmental physical disability.

The appellate court rejected appellant's contention that insufficient evidence was presented that the victim lacked the capacity to consent due to a mental disorder. No expert testimony on this issue is required. Here, sufficient circumstantial evidence was presented to establish that the victim lacked capacity to consent: when assaulted, she did not respond to the assailant’s question as to whether she liked the sexual assault; her description of the assault at trial was childlike–one syllable responses and hand gestures to direct questions; witnesses described her as suffering from cerebral palsy with related seizures, and that she attended special education classes, and had problems walking and talking.

Evidence of a prior false complaint may be excluded under Evidence Code section 352 if its relevance is questionable, it is unclear, and it involves layers of statements to develop its point. Evidence of a prior false report of molestation is relevant to the credibility of the victim. Here, defense counsel sought to introduce evidence that victim was listed as victim and her father as a suspect in a prior molest incident. The appellate court found no abuse of discretion in its exclusion because it was unclear who made the complaint, the prosecutor claiming the victim’s mother complained to a social worker; there was no showing that it was false; the evidence had a potential for confusing the jury; and there was an independent witness in the present case whereas there was no witness in the prior case.

Lifetime sex offender registration for a person convicted of offenses against a victim incapable of consent does not violate equal protection. The court rejected appellant's claim that lifetime registration violated equal protection, finding that there was no showing that appellant was in a class similarly situated to the individual for whom there is no lifetime registration. (See People v. Hofsheier (2006) 37 Cal.4th 1185 where defendant was convicted of oral copulation of a 16-year-old-girl.) Unlike Hofsheier, appellant was convicted of violent, nonconsensual crimes.

© 2011 Darren Chaker. All Rights Reserved.