238 Cal. App. 4th 166
Cal. Ct. App.2015Background
- Defendant Thomas Vukodinovich, a 73-year-old bus driver for a nonprofit serving individuals with disabilities, had regular access to client L., a 49‑year‑old woman with a mental age of about 3–4 and an IQ of 37.
- From 2009–2012 defendant engaged in repeated sexual acts with L. (intercourse, oral copulation, digital penetration), usually on the bus after other clients were dropped off; L. sometimes said “no” and was told to be quiet.
- L. had limited comprehension of sex, was partially blind, could not read or write, could not drive, and relied on defendant for transportation.
- Defendant admitted the sexual acts but claimed L. initiated and consented; prosecution proceeded solely on the theory that L. was incapable of giving legal consent due to developmental disability.
- Jury convicted defendant on multiple counts (sexual intercourse, attempted intercourse, oral copulation, digital penetration) and he was sentenced to 14 years.
- On appeal defendant raised privacy (Lawrence) and sufficiency-of-evidence challenges to the incapacity theory, evidentiary claims about excluding L.’s sexual history, cumulative error, and an ex post facto challenge to a $280 restitution fine; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutes criminalizing sex with persons incapable of consent violate privacy | State: statutes protect vulnerable persons and are a valid exercise of state power | Vukodinovich: Lawrence protects private sexual conduct of consenting adults, so these statutes unconstitutionally infringe privacy | Rejected — Lawrence does not apply to persons incapable of consenting; statutes valid to protect developmentally disabled persons |
| Sufficiency of evidence that L. lacked legal capacity to consent | People: L.’s cognitive deficits, dependence on defendant, limited understanding of sex show incapacity | Defendant: L.’s statements that she wanted sex and past sexual talk show capacity | Held: Substantial evidence supported incapacity (mental age/IQ, dependence, limited sex understanding); apparent consent not dispositive |
| Exclusion of evidence of L.’s sexual history and right to present a defense | People: many proffered incidents were irrelevant, hearsay, or untimely; court properly limited evidence | Defendant: excluding prior incidents (1990, 1991 report, 2000/2002 incidents) prevented him from impeaching L. and showing capacity | Held: No abuse of discretion; some incidents excluded as irrelevant/untimely/hearsay; trial record contained other impeachment and sexual‑history evidence so Sixth Amendment claim fails |
| Imposition of $280 restitution fine — ex post facto challenge | People: sentencing court presumed to know discretion and applicable law; fine authorized | Defendant: fine matched 2013 minimum, not the lower minimums in effect at offense dates, so ex post facto error | Held: No violation shown on silent record; court authorized to impose $280; ex post facto claim rejected |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (constitutional protection for private, consensual sexual intimacy between adults does not extend to cases involving incapacity, minors, coercion, or public conduct)
- People v. Boggs, 107 Cal.App. 492 (Cal. Ct. App. 1930) (mental deficiency may render consent legally ineffective)
- People v. Mobley, 72 Cal.App.4th 761 (Cal. Ct. App. 1999) (jury may infer incapacity despite some apparent assent where vulnerable victims were befriended and directed by defendant)
- People v. Thompson, 142 Cal.App.4th 1426 (Cal. Ct. App. 2006) (substantial evidence supported incapacity for a developmentally disabled victim with limited understanding of sex)
- People v. Souza, 54 Cal.4th 90 (Cal. 2012) (restitution fines are punitive and ex post facto protections apply; fines assessed under statute version applicable to offense date)
- People v. Carpenter, 15 Cal.4th 312 (Cal. 1997) (trial court has discretion to admit or exclude expert testimony and underlying hearsay relied upon by experts)
- People v. Gutierrez, 174 Cal.App.4th 515 (Cal. Ct. App. 2009) (presumption that trial court is aware of applicable law; silent record does not establish sentencing error)