People v. Braslaw
233 Cal. App. 4th 1239
| Cal. Ct. App. | 2015Background
- Defendant Steven Braslaw was tried for rape of an intoxicated person (Pen. Code § 261(a)(3)) after a party where the victim (Jane Doe) became extremely intoxicated, was assisted to a shower, later found unclothed and penetrated in a bedroom where defendant was present. The jury convicted; defendant was sentenced to three years.
- The prosecution originally charged both rape of an intoxicated person and attempted rape of an unconscious person; the trial court dismissed the attempted-rape count before trial.
- At trial, the court instructed the jury with CALCRIM No. 1002 (elements of rape of an intoxicated person) but omitted the optional bracketed language that would tell jurors the defendant is not guilty if he actually and reasonably believed the victim had capacity to consent.
- Defendant argued on appeal the court should have given that reasonable-belief-of-capacity instruction, should have instructed on attempted rape as a lesser included offense sua sponte, and that counsel was ineffective for failing to object to a prosecutor remark in closing about the presumption of innocence.
- The Court of Appeal affirmed: it held omission of the optional CALCRIM language was not error (and not prejudicial), attempted rape is not a lesser included offense of completed rape of an intoxicated person, and the prosecutor’s remark did not constitute misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by omitting CALCRIM No. 1002’s optional actual-and-reasonable-belief-in-capacity language | Omission was proper because element four of CALCRIM No. 1002 already requires proof defendant knew or reasonably should have known victim could not resist, addressing mistake-of-fact | Omission deprived defendant of a defense that he actually and reasonably believed victim had capacity to consent | No error: evidence did not support reasonable belief in capacity; even if it did, jury instructions on element four made the optional language unnecessary and omission was not prejudicial (Ramirez reasoning) |
| Whether trial court had sua sponte duty to instruct on attempted rape as a lesser included offense | Attempt might be a lesser included offense under Penal Code § 1159 | Attempted rape should have been presented because jury could have convicted of completed rape only if specific-intent elements were satisfied | No duty: attempted rape requires specific intent distinct from general-intent completed rape, so it is not a necessarily included offense (Bailey framework) |
| Whether defense counsel was ineffective for not objecting to prosecutor’s closing remark that defendant “is no longer presumed innocent” | Remark misstated law and counsel should have objected; failure was ineffective assistance | Prosecutor’s comment was rhetorical and correctly argued that evidence can overcome presumption; no prejudicial misconduct | No ineffective assistance: remark was permissible framing of evidence overcoming presumption and harmless even if imperfect (Booker distinguished Perlaza) |
Key Cases Cited
- People v. Bailey, 54 Cal.4th 740 (establishes elements test for whether an attempted crime is a lesser included offense)
- People v. Ramirez, 143 Cal.App.4th 1512 (holding refusal to give a general mistake-of-fact instruction was not prejudicial where elements instruction necessarily resolved the issue)
- People v. Giardino, 82 Cal.App.4th 454 (explaining that actual consent by an intoxicated person does not preclude conviction if victim lacked legal capacity)
- People v. Linwood, 105 Cal.App.4th 59 (discussing rape of an intoxicated person as a general intent crime and knowledge/reasonableness component)
- People v. Clark, 52 Cal.4th 856 (describing attempted-crime mental-state elements)
- People v. Booker, 51 Cal.4th 141 (addressing prosecutorial comments about presumption of innocence and distinguishing impermissible statements)
- People v. Kelly, 1 Cal.4th 495 (discussed in dicta regarding reduction to attempted rape in certain circumstances)