Brief Bank # B-859 (Re: F 10.33 n3 [Unlawful Penetration By Foreign Object — Lack Of Consent, Intoxicants, Unconsciousness, Etc.: Jury Must Find Fraud “In Fact” (PC 289(d),(e))].)
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Date of Brief: July 2000
PETER J. HUGHES (Bar #024324)
A Professional Corporation
1010 Second Avenue, Suite 1917
San Diego, CA 92101
619/234-6695
Attorney for Defendant DOE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
PEOPLE OF THE STATE OF CALIFORNIA, Case No. SCD000000
D.A. No. PC000000
Plaintiff,
vs.
JOHN DOE,
Defendant.
____________________________________/
MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT OF ACQUITTAL
1. Counts 1 and 3, alleging violations of Penal Code Section 289(d):
The only evidence of the essential element of penetration required for conviction of Counts 1 and 3 is the testimony of each of the complaining witnesses. Both of them have now testified that the defendant inserted one or more fingers into their vaginas. It is therefore crystal clear that both witnesses/victims were conscious of the essential nature of the act performed, that is, penetration of their vagina by defendant’s fingers.
The unequivocal import of their testimony is that they were in fact clearly conscious of the “nature of the act” performed by defendant, but were misled with respect to the motivation and the reason for their vaginas being penetrated. Reduced to the essentials, both witnesses have testified that by his statements and conduct defendant represented to each of them that what he was doing was part and parcel of the procedure for which they voluntarily met with him. They were both misled, not with respect to the nature of the act of penetration but with respect to the reason it was being done. What the prosecution has proved, therefore, is fraud in the inducement, not fraud in the fact as required in order for there to be a violation of Penal Code Section 289(d).
In the first place, it is clear from the language of the statute itself that the charged offense specifically requires fraud in the fact. That phrase is expressly articulated in Section 289(d), and is also set out in CALJIC 10.33 (paragraph c). The statute with which we are concerned was amended in 1993, at a time when the legislative history demonstrates that the major attention was to the question of spousal rape. Nevertheless, the language and phraseology is of significance because it post-dates the decision in Boro v. Superior Court (01/25/85) 163 Cal.App.3d 1224 (hearing denied April 4, 1985). That decision held, pursuant to a petition for writ of prohibition, that a count charging rape accomplished by an act of sexual intercourse where the person was unconscious of the nature of the act is not sustained as a matter of law where the victim’s participation in the intercourse was predicated on a belief fraudulently induced by petitioner that the sex act was medically necessary to save her life. Of particular significance is that the court clearly marked a distinction between fraud in the inducement and fraud in fact, finding that fraud in fact was required under the then-provisions of Penal Code Section 261, defining an act of sexual intercourse accomplished with a person who is “at the time unconscious of the nature of the act.” The provisions of then-section 261 did not spell out, as do the current sections, that fraud in the fact is expressly required (P.C. 261(4)(c) and P.C. 289(d)). There is no way that the unequivocal language in the current statute, under which defendant is being prosecuted, which specifies the requirement of fraud “in fact,” can be judicially amended to add the disjunctive addition of ‘or in the inducement.’
It is particularly significant that the Boro decision was in 1985 and the amendment by which the Legislature enacted the language of current section 289(d) was in 1993. That choice of words in and of itself is significant. In any event it must be assumed that the Legislature had in mind the Boro distinction between inducement and fact when they chose the language of 289(d).
We presume the Legislature in amending a law “is deemed to be aware of statutes and judicial decisions already in effect and to have enacted the new [version] in light thereof.” (People v. Hernandez (1988) 46 Cal.3d 194, 201, 249 Cal.Rptr. 850, 757 P.2d 1013, disapproved on another point in People v. King (1993) 5 Cal.4th 59, 78, fn. 5, 19 Cal.Rptr.2d 233, 851 P.2d 27.) “[W]e do not construe statutes [or their subdivisions] in isolation, but rather read every statute [and subdivision] ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” (People v. Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.)
People v. Mobley (May 18, 1999) __ Cal.App.4th __ (1999 WL 352988).
Indeed, the distinction between fraud in the inducement and fraud in the fact was not spawned by the Boro decision but has consistently and regularly been part of jurisprudence.
On the issue of consent, from an analytic standpoint, there are two kinds of fraud: fraud in the fact and fraud in the inducement. The distinction between the two is as follows: in fraud in the fact, the victim is fraudulently induced to consent to the doing of act X; the perpetrator of the fraud, in the guise of doing act X, actually does act Y; in fraud in the inducement, the victim is fraudulently induced to consent to the doing of act X and the perpetrator of the fraud does commit act X.
Fraud in the fact, it has been said, vitiates consent. (See 1 Witkin, Cal. Crimes, § 290.) It appears equally reasonable to say that where there is fraud in the fact, there was no consent to begin with. Consent that act X may be done is not consent that act Y be done, when act Y is the act complained of.
On the other hand, fraud in the inducement does not vitiate consent. (Witkin, Op. cit. supra.)
People v. Harris (1979) 93 Cal.App.3d 103, 113-114.
The prosecution may argue that the alleged victims were “incapable of resisting” because they were “not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.” The evidence, however, in no way supports the this argument. Again, it is clear that each victim knew her vagina had been penetrated by defendant’s finger or fingers. Hence, each victim was clearly aware, knowing, perceiving, and cognizant of the essential character of the offending act.
Penal Code section 261.6 does not impinge on the viability of fraud in the inducement precluding a conviction:
The People, however, direct our attention to Penal Code section 261.6, which in their opinion has changed the rule that fraud in the inducement does not vitiate consent. That provision reads as follows: “In prosecutions under sections 261, 286, 288a or 289, in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation in act or attitude pursuant to an act of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”
We find little legislative history for this section beyond that contained in the 1982 Summary Digest, to wit:
Existing law proscribes certain forms of sexual conduct, such as oral copulation under specified circumstances and penetration of the genital or anal openings of another person by a foreign object, as specified.
This bill would revise the above provisions; provide that penetration of the genital or anal openings of another by a foreign object by force and violence, in concert with another, is punishable by imprisonment for 5, 7, or 9 years, establish the crime of sexual battery, as defined; and define the term “consent” for the purpose of designated prosecutions in which consent is at issue.
In addition, the author of a Pacific Law Journal article has concluded that the statute was enacted in response to People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, in order to provide an explicit definition of consent to be used in prosecutions in which consent was at issue. (Review of 1982 Legislation, 14 Pac.L.J., 547, 548, fn. 8.) Section 261.6 was enacted as a part of Chapter 1111, Statutes of 1982, which amended various substantive sex crime statutes and created the crime of sexual battery. (§ 243.4.)
If the Legislature at that time had desired to correct the apparent oversight decried in Mathews [v. Superior Court (1981) 119 Cal.App.3d 309] [Footnote 1] [FN5] — it could certainly have done so. But the Attorney General’s strained reading of section 261.6 would render section 261, subdivision (5) meaningless surplusage; and we are ” ‘exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary'”. (People v. Olsen (1984) 36 Cal.3d 638, 647, 205 Cal.Rptr. 492, 685 P.2d 52.)
FN5. It is not difficult to conceive of reasons why the Legislature may have consciously wished to leave the matter where it lies. Thus, as a matter of degree, where consent to intercourse is obtained by promises of travel, fame, celebrity and the like — ought the liar and seducer to be chargeable as a rapist? Where is the line to be drawn?
Boro v. Superior Court, supra, 163 Cal..App.3d at 1229-1230.
Separate and distinct but equally fatal to the prosecution’s case is the lack of any evidence whatsoever that either of the complaining witnesses/victims was “incapable of resisting” as explicitly required by Penal Code Section 289(d). “Incapable” is defined in Webster’s New Universal Unabridged Dictionary (1989) as “not capable … not having the necessary capacity or power to perform some specified act or function … without ordinary capability or ability; incompetent …” On the clear meaning or import of the word “incapable” itself, the evidence is insufficient as a matter of law to conclude that the testimony of either complaining witness establishes that essential fact.
That being so, on this issue in and of itself defendant is entitled to a motion of acquittal with respect to Counts 1 and 3.
2. Count 2, Sexual Battery in Violation of Penal Code Section 243.4(a):
The evidence wholly fails to show that the witness Ms. A was restrained within the meaning of the requirements delineated in this section of the penal code. Penal Code section 243.4 provides that: “(a) Any person who touches any part of another person while that person is unlawfully restrained by the accused … and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.”
On this issue, CALJIC 10.37 is instructive in two ways. First, the restraint, whether physical or controlling of another’s liberty by words, acts, or authority, must be “without consent …” of that person. Second, the touching itself must be “against the will of the alleged victim.”
Just as with the 289(d) charge, it is clear that the witness Ms. A was submitting to defendant’s actions because she considered them part of the procedure to which she had agreed. The fraud, therefore, was in the inducement, not in the fact, and the previously cited authority that fraud in the inducement does not vitiate consent, rendering the proof adduced by the People as to Count 2 insufficient as a matter of law.
Thus, a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose. The “unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.” (People v. Pahl, supra, 226 Cal.App.3d at p. 1661.)
People v. Arnold (1992) 6 Cal.App.4th 18, 28 (emphasis added).
Dated: July 12, 2000 Respectfully submitted,
_________________________________
PETER J. HUGHES
Attorney for Defendant DOE
FOOTNOTE:
Footnote 1: In Mathews, a concurring opinion “decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in section 261, subdivision (5) and then-section 268” (People v. Boro, supra, 163 Cal.App.3d at p. 1229).
PETER J. HUGHES (Bar #024324)
A Professional Corporation
1010 Second Avenue, Suite 1917
San Diego, CA 92101
619/234-6695
Attorney for Defendant DOE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
PEOPLE OF THE STATE OF CALIFORNIA, Case No. SCD000000
D.A. No. PC000000
Plaintiff,
vs.
JOHN DOE,
Defendant.
__________________________________/
MEMORANDUM IN SUPPORT OF NECESSITY OF SUBMITTING FRAUD IN THE
INDUCEMENT INSTRUCTION TO THE JURY IF MOTION FOR ACQUITTAL NOT
GRANTED
The court’s attention is drawn to the comment in the use note to CALJIC 10.33 that:”The words ‘in fact’ following fraud have been placed in brackets. It would seem that the distinction between fraud in fact and fraud in the inducement would be a legal issue for the court.”
This is patently erroneous if it suggests that the issue of whether fraud is in the inducement or in the fact should not be submitted to the jury. In order for the offense to be committed, the jury must find beyond a reasonable doubt that there was fraud “in fact.” That is specifically set out in Penal Code Section 289(d) as an essential element of the offense. Indeed, CALJIC 10.33 lists “unconscious of the nature of the act” as element number 2 to be proved, and in an earlier portion of the instruction defines “unconsciousness of the nature of the act” as meaning the victim was incapable of resisting “due to the perpetrator’s fraud in fact” (paragraph c).
In People v. Flood (1998) 18 Cal.4th 470, the court ruled that informing the jury – in conformity with the uncontradicted evidence – that the police officers in their police car were peace officers, effectively removed this element of the crime from the jury’s consideration, thus constituting a violation of the federal due process clause. (Id. at pp. 480-481.) This is so because a defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (Id. at p. 481.) Put another way, as the court stated in Sullivan v. Louisiana (1993) 508 U.S. 275 at page 277, “although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.”
The statute expressly predicates liability upon the perpetrator’s fraud in fact. Because this is a requisite element of the charge, it cannot be a legal question solely for the court. Failure to require a jury determination of every element of the offense violates the defendant’s rights to trial by jury and due process. (Sixth and Fourteenth Amendments; see People v. Cummings (1993) 4 Cal.4th 1233, 1312-1314.)
Dated: July 12, 2000 Respectfully submitted,
______________________________
PETER J. HUGHES
Attorney for Defendant DOE
PETER J. HUGHES (Bar #024324)
A Professional Corporation
1010 Second Avenue, Suite 1840
San Diego, CA 92101
619/234-6695
Attorney for Defendant DOE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
PEOPLE OF THE STATE OF CALIFORNIA, Case No. SCD000000
D.A. No. PC000000
Plaintiff,
vs.
JOHN DOE,
Defendant.
_________________________________/
DEFENDANT’S REQUESTED JURY INSTRUCTIONS
Defendant JOHN DOE hereby requests that the court give the jury the attached jury instructions.
Dated: July 12, 2000 Respectfully submitted,
__________________________________
PETER J. HUGHES
Attorney for Defendant DOE
Defendant’s Requested Jury Instruction #1
Defendant is accused in Counts 1 and 3 of having committed the crime of unlawful penetration by a foreign object in violation of section 289, subdivision (d) of the Penal Code.
Every person who for the purpose of sexual arousal or gratification causes the penetration, however slight, of the genital opening of another person by any foreign object, including a finger, and that other person is at the time unconscious of the nature of the act and this is known to the person committing the act, is guilty of the crime of unlawful penetration by a foreign object in violation of Penal Code Section 289, subdivision (d).
The words “foreign object, substance, instrument, or device” include any part of the human body, except a sexual organ.
“Unconscious of the nature of the act” means the alleged victim was incapable of resisting because she was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
In order to prove this crime, each of the following elements must be proved:
1. A person caused the genital opening of an alleged victim to be penetrated, however slightly, by a foreign object; and
2. The alleged victim was at the time unconscious of the nature of the act by reason of the defendant’s fraud in fact; and
3. The unconsciousness was known to the person committing the act; and
4. The penetration was done with the purpose and specific intent to cause sexual arousal, gratification, or abuse.
CALJIC 10.33 UNLAWFUL PENETRATION BY FOREIGN OBJECT – UNCONSCIOUSNESS (PEN. CODE § 289, SUBD. (D) [Adapted]
Defendant’s Requested Jury Instruction #2
As noted, an essential element of the offense charged is fraud in fact. In order to convict the defendant, you must find that the victim was unconscious of the nature of the act because of the defendant’s fraud in fact.
Fraud in fact is different from fraud in the inducement. If the victim was conscious of the nature of the act, that is, penetration of her vagina by the defendant’s finger, but she had been misled with respect to the purpose for which the act of penetration was being done, then that would constitute fraud in the inducement, not fraud in the fact as is required in order for the defendant to be guilty of the offenses charged.
Defendant’s Requested Jury Instruction #3
An example of fraud in fact and fraud in the inducement:
If a doctor is conducting a gynecological examination of a female patient and she is expecting that the doctor will insert an instrument or his finger into her vagina, but in the course of the examination the doctor inserts his penis, that constitutes fraud in the fact because the patient had not agreed at any time prior to or during the examination that that type of penetration could be accomplished.
On the other hand, if a doctor tells a patient that she has a serious medical condition that can be effectively treated only by her having intercourse with a person who has taken certain medications, and based on such representation she agrees to and in fact engages in sexual intercourse with such person, that is not fraud in fact but rather fraud in the inducement.
The applicable law therefore provides that fraud in fact negates consent to the act done, whereas fraud in the inducement does not negate the existence of consent because there is in fact consent given, although it is based on fraudulent representations.
Defendant’s Requested Jury Instruction #4
With respect to “consent,” you are further instructed:
If an alleged victim submitted to the penetration of her vagina because she believed that such penetration was a part of the examination that the defendant was performing, then the alleged victim is deemed to have consented and the defendant is not guilty of the offense of penetration by a foreign object even though the alleged victim’s belief was mistaken. The prosecution bears the burden of proving beyond a reasonable doubt that the alleged victim did not submit to the penetration of her vagina under the belief that such penetration was part of the examination that the defendant was performing.
Defendant’s Requested Jury Instruction #5
With respect to unlawful restraint as an element of the sexual battery charge alleged in Count 2, you are further instructed that:
If the alleged victim submitted to the touching of intimate part of her body because she believed that such touching was a part of the examination that the defendant was performing, then the alleged victim is deemed to have consented and the defendant is not guilty of the offense of sexual battery even though the alleged victim’s belief was mistaken.
Defendant’s Requested Jury Instruction #6
The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on any improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.
CALJIC 17.41.1, JUROR MISCONDUCT
