A149394
Cal. Ct. App.May 10, 2019Background
- Defendant Tyrone Johnson was convicted by a jury of rape of an intoxicated person (Pen. Code § 261(a)(3)) and sentenced to 8 years; acquitted of kidnapping and forcible rape.
- Victim (Annie) drank heavily at a nightclub, later found debilitated, and woke the next morning sore, partially clothed, with hymenal tearing; hospital exam documented fresh bleeding and complete tearing.
- Surveillance and hotel footage and hotel employees’ testimony corroborated Annie’s intoxication and incapacity.
- Johnson’s account: he met Annie on the street, aided her to a hotel room, engaged in consensual sex while she was (in his view) awake and consenting; he communicated with Annie afterward via texts.
- At trial the court admitted three of Johnson’s recent felony convictions for impeachment; the court gave CALCRIM No. 361 (failure-to-explain) and an optional CALCRIM No. 1002 paragraph on reasonable belief in capacity to consent.
- On appeal Johnson raised instructional challenges (including vagueness and mens rea for § 261(a)(3)), prosecutorial misconduct claims, discovery/sanction issues, admission of prior convictions, ineffective-assistance claims, and challenges to imposition of fines/fees without an ability-to-pay finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/scope of CALCRIM No. 1002 optional language (reasonable belief in capacity to consent) | Instruction correctly states element requiring defendant knew or reasonably should have known victim was prevented from resisting | Johnson: any mistake-of-fact (even unreasonable) under § 26 negates liability; the reasonable-requirement is improper | Court: optional language simply negates an element (knowledge/constructive knowledge); reasonable belief requirement is proper and consistent with precedent (Mayberry line) — affirmed |
| Vagueness of § 261(a)(3) (“reasonably should have been known”) | Statute provides objective reasonableness standard jurors and officers can apply; not unconstitutionally vague | Johnson: phrase is too indeterminate to provide fair notice or to guide enforcement | Court: rejects vagueness challenge; reasonableness standard is constitutionally adequate and comparable to other statutes |
| Mens rea under § 261(a)(3) — civil vs. criminal negligence | Prosecution: statute contains mens rea via knowledge/constructive knowledge; “reasonably should have known” denotes criminal negligence standard | Johnson: formulation imposes mere civil negligence and violates § 20 and due process | Court: follows Linwood; statute imposes general intent plus constructive knowledge tested by objective reasonableness and qualifies as criminal negligence standard — upheld |
| Prosecutorial misconduct (various questions, reference to excluded conviction, inflammatory comments) | Most challenged remarks/questions were curtailed by court or subject to curative instruction; no pattern of misconduct; some claims forfeited | Johnson: prosecutor elicited/mentioned excluded prior conviction, asked argumentative questions, demonized defendant, denigrated defense | Court: no reversible misconduct — single mistaken reference harmless after curative instruction; argumentative questions were sustained/limited; closing remarks were permissible or forfeited |
| Admission of prior convictions for impeachment | Prosecution: convictions relevant to credibility, not unduly prejudicial; trial court exercised 352 discretion | Johnson: battery conviction was similar and prejudicial | Court: admission of three recent felonies for impeachment was within discretion; dissimilarity and other factors mitigated prejudice |
| Discovery/duty-to-disclose pretextual texts; refusal to give CALCRIM No. 306 | Prosecution produced the texts pretrial; did not know texts were pretextual until testimony; jurors learned pretextual nature from testimony | Johnson: late/non-disclosure required jury instruction as sanction | Court: no prejudicial violation; jury already heard pretext testimony and defense could explore it; refusal to give CALCRIM No. 306 not an abuse of discretion |
| Imposition of restitution fine and court fees without ability-to-pay finding (Dueñas) | People: forfeiture not controlling given Dueñas unpredictability; on the merits, Johnson has ability to pay (employment history, prison wages), so any error harmless beyond a reasonable doubt | Johnson: under Dueñas, court must make ability-to-pay finding before imposing fees/fine; he lacked such a finding | Court: decline to find forfeiture; distinguishes Dueñas — on this record Johnson has ability to pay (including prison wages); any error harmless and judgment affirmed |
Key Cases Cited
- People v. Lujano, 15 Cal.App.5th 187 (2017) (discusses Mayberry defense and distinction between negating an element and an affirmative defense)
- People v. Linwood, 105 Cal.App.4th 59 (2003) (upholds § 261(a)(3) construction: "reasonably should have known" provides constructive-knowledge standard and is not vague)
- People v. Williams, 4 Cal.4th 354 (1992) (Mayberry line: mistake-of-fact defense requires an actual reasonable belief for certain rape defenses)
- People v. Rodriguez, 42 Cal.3d 730 (1986) (jurors can assess "reasonably should have known" standards in statutory contexts)
- People v. Cortez, 63 Cal.4th 101 (2016) (limits use of failure-to-explain instructions to situations where defendant could reasonably be expected to have explanatory knowledge)
- People v. Verdugo, 50 Cal.4th 263 (2010) (reciprocal discovery statute and court's discretion to sanction or inform jury for nondisclosure)
- People v. Dueñas, 30 Cal.App.5th 1157 (2019) (held courts must make ability-to-pay finding before imposing certain fees/fines; distinguished on facts here)