People v. Smith
191 Cal. App. 4th 199
Cal. Ct. App.2010Background
- Victim, a 40-year-old woman, was heavily intoxicated after taking medications and multiple drinks on November 11, 2008.
- Defendant Larry Smith and Bon Grosse assisted in transporting the victim from the Fargo bar to the National Hotel after she became incoherent.
- Hotel desk clerk Rebecca Hunderfund checked the victim into room 38; security video showed the defendant with the victim, including touching her breast over her blouse.
- The victim awoke in the hotel room naked with Smith; tampon later discovered, suggesting sexual activity; she later reported rape at a hospital.
- Judgment: Smith convicted of rape of an intoxicated woman (count I), rape of an unconscious woman (count II), and misdemeanor sexual battery; eight-year upper term on count I with other counts concurrent and stayed; count II later struck on appeal.
- Court modified judgment to strike count II and affirmed as modified; issues included jury instruction adequacy and the interpretation of sexual battery; Supreme Court petition denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are CALCRIM No. 1002 instructions correct for rape of an intoxicated woman? | Giardino requires definition of resisting; incomplete instruction. | CALCRIM No. 1002 is incomplete and misleading. | CALCRIM No. 1002 correctly defines required capacity and resistance. |
| Can there be two rape convictions for a single act of intercourse? | Two separate counts valid despite one act. | Only one rape offense arises from a single act. | Strike the second rape count; only one rape conviction remains. |
| Is there sufficient evidence to sustain a misdemeanor sexual battery on an intoxicated/unconscious victim? | Lack of consent in such contexts undermines sexual touching charges. | Sexual battery should require consent concepts that differ from rape. | Sufficient evidence supports misdemeanor sexual battery under 243.4(e)(1). |
Key Cases Cited
- People v. Giardino, 82 Cal.App.4th 454 (2000) (defined ‘prevented from resisting’ and the degree of intoxication for consent)
- People v. Linwood, 105 Cal.App.4th 59 (2003) (rape statute structure and consent definitions)
- People v. Babaali, 171 Cal.App.4th 982 (2009) (discussed sexual battery by fraudulent representation; majority view disputed)
- People v. Craig, 17 Cal.2d 453 (1941) (one act of intercourse cannot support multiple rape convictions)