ARGUMENT
I. THE TRIAL COURT ERRONEOUSLY INSTRUCTED ON A CIVIL NEGLIGENCE STANDARD IN A CRIMINAL CASE WITH A MENS REA OF GENERAL INTENT
A. Summary Of Argument
The trial court gave a general intent instruction, CALJIC No. 3.30, followed by instructions on the substantive charges which permitted the jury to convict on a “knew or reasonably should have known” standard of ordi- nary (civil) negligence. The instructions are set out in the footnote below.
This was prejudicial error. As this Court’s opinion in People v. Lara (1996) 44 Cal.App.4th 102 [Yegan, J.] makes clear, a general intent crime cannot be committed by negligence (id. at p. 107), let alone civil negligence. The only mental state equivalent to general intent is conscious disregard of a known risk. (Id. at pp. 107-108.) But “conscious disregard” is not the equivalent of . . . negligence.” (Id. at p. 108.) Appellant’s jury was instructed in language of negligence. That was legal error. [Footnote 1]
That the trial court gave the jury a legally deficient instruction on an essential element is itself reversible error. Furthermore, on this record, a properly instructed jury could have–and in appellant’s view, almost certainly would have–reached the conclusion that Mr. Doe acted without actual knowledge of a key element of the offense, Ms. Roe [**complaining witness–ed.**] being so intoxicated that she was robbed of all of her judgment and did not have the legal capacity to say “no.” There were numerous other factors showing prejudice as well, discussed later in this Argument.
B. Reviewability
Legally erroneous instructions which affect substantial rights are reviewable without requirement of objection below. (Pen. Code, § 1259; see, e.g., People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Jones (1998) 17 Cal.4th 279, 312; In re Matthew C. (1993) 6 Cal.4th 386, 396, fn. 10; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6; People v. Hannon (1977) 19 Cal.3d 588, 600.) Section 1259 embodies the law that a trial court has ultimate responsibility for fulfilling the judicial duty of correctly instructing in a criminal case. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127-1128; People v. Tapia (1994) 25 Cal.App.4th 984, 1030-1031.) Review is thus appropriate.
“The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Here, the issue is the trial court’s instruction on the mental state required for the charged offenses. Mental state is an element of a charged offense (People v. Vogel (1956) 46 Cal.2d 798, 801), and accordingly comes within the sua sponte instructional requirement. (See also People v. Aubrey (1999) 70 Cal.App.4th 1088, 1106 [instructional requirement also necessitated by state and federal due process clauses].)
The result is the same without reference to sua sponte instructional requirements. Whenever a court instructs a jury, it must instruct correctly. (People v. Montiel (1993) 5 Cal.4th 877, 942; People v. Malone (1988) 47 Cal.3d 1, 49.) If the trial court gave erroneous instructions on a key matter such as mental state, the error is reviewable. (Ante, p. .) Moreover, with an underinclusive instruction on the elements, there may be no assurance the jury actually found an omitted element, as is required for the state and federal constitutional rights to a jury trial and due process of law. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281.)
(In the alternative, if arguendo it were necessary, appellant also requests review for Sixth Amendment ineffective assistance in not objecting to overbreadth of the instructions permitting conviction of uncharged offenses, and not proposing an instruction to counteract this. (Strickland v. Washington (1984) 466 U.S. 668.) [Footnote 2] Prejudice would be clear, as possibilities for conviction of an uncharged offense were many, and evidence of the charged offense was not strong. (See post, Parts I(E)(2) and VI; People v. Burnett (1999) 71 Cal.App.4th 151, 182-183.) But there is no need to go there. Appellant asks that the matter be reviewed on the merits.)
C. Legal Standards
1. Evidence Must Be Taken Favorably To Party Claiming Instructional Error
As is required for all instructional error claims, the evidence is taken in a light most favorable to the claim of instructional error. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644.)
A recent opinion by Justice Croskey restated that standard: “With respect to our review of issues relating to . . . an issue [of legal instructional error], as well as the question of their prejudicial impact, we do not view the evidence in a light most favorable to the successful [respondent] and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the [appellant] and rendered a verdict in [appellant’s] favor on those issues as to which it was misdirected.” (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156; see also Henderson, supra, 12 Cal.3d at p. 673 [contrary claim would be “misconceived and devoid of merit”].) Thus on an instructional error claim, the facts are construed in an appellant’s favor; that is “the customary rule of appellate review.” (Logacz, 71 Cal.App.4th at p. 1152, fn. 2, and Krotin v. Porsche Motor Cars North America, Inc. (1995) 38 Cal.App.4th 294, 298 [Boren, P.J.], both quoting Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633.)
2. Elements Of Charged Offenses
Appellant was charged with, and convicted of, rape in violation of Penal Code section 261(a)(3) [Count One], and the equivalent offense in the criminal sodomy statute, a violation of section 286(i) [Count Two]. Those were the offenses on which the trial court instructed. (RT 772-773.) Since the statutes are identically worded for purposes of this Argument, appellant will discuss section 261(a)(3); the same discussion applies to section 286(i).
The essential elements of a violation of Penal Code section 261(a)(3) include intoxication so severe as to rob a person of his or her judgment, rendering him or her incapable of giving legal consent. (People v. Giardino (2000) 82 Cal.App.4th 454, 461-462 [“Giardino“].) “It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victim’s sexual inhibitions.” (Id. at p. 466.) “Instead, the level of intoxication and the resulting mental impairment must be so great that the victim could no longer exercise reasonable judgment concerning that issue [of giving consent].” (Id. at pp. 466-467.) Since the only legal issue is capacity to consent, lack of actual consent is not an element of the offense. (Id. at pp. 460-462, 464.) [The trial court’s instructional error on that subject is discussed in Arguments II and III of appellant Poe’s AOB, pp. 29-40.]
D. Discussion
Rape, which was charged against appellant in Count One, is a general intent crime. (People v. Osband (1996) 13 Cal.4th 622, 685-686.) So is criminal sodomy, which was charged against appellant in Count 2. (People v. Davis (1995) 10 Cal.4th 463, 519.) For a general intent crime, willfully (intentionally) performing the act proscribed by law suffices for conviction. (People v. Osband, supra, 13 Cal.4th at pp. 685-686.)
However, “[e]xcept in those rare circumstances where strict criminal liability may be imposed, even a general intent crime ordinary requires scienter, i.e., guilty knowledge of the facts which make the act a crime. [Citations.]” (People v. Laster (1997) 52 Cal.App.4th 1450, 1468, and cases cited.) “A knowledge requirement, however, is different from a specific intent requirement. [Citations.]” (Id., and cases cited)
That requirement of knowledge in a general intent crime dovetails with the definition of general intent. General intent means an intent to commit the prohibited act (People v. Hood (1969) 1 Cal.3d 444, 456-457), i.e., intent to commit the act which is proscribed by the relevant law. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 1438-1439; People ex rel. State Air Resources Board v. Wilmhurst (1999) 68 Cal.App.4th 1332, 1346-1347.)
A person could not have an intent to commit the act proscribed by the relevant law–and thus, could not have general intent–if he or she lacked knowledge of the facts which brought his or her actions within that law. (See, e.g., People v. Rubalcava (2000) 23 Cal.4th 323, 331-332; People v. Coria (1999) 21 Cal.4th 868, 879; People v. Laster, supra, 52 Cal.App.4th at p. 1468; In re Jerry R., supra, 29 Cal.App.4th at p. 1441.) [Footnote 3]
The various subdivisions of section 261, the rape statute, do not create different crimes. They are the same crime; they merely set forth different methods of committing it. (People v. Collins (1960) 54 Cal.2d 57, 59; People v. Mummert (1943) 57 Cal.App.2d 849.) However, the accusatory pleading must put the accused on notice of which subdivision is charged. (People v. Collins, supra, 54 Cal.2d at pp. 59-60.) In this case, appellant was charged only with violating sections 261(a)(3) and 286(i). (CT 368-369.)
As discussed above, the mental state consistent with a general intent crime is knowledge of the facts which bring an act within the prohibitions of the charged offense. (Ante, p. .) Thus, had the trial court given correct instructions, the jury would have known that appellant could only be properly convicted if he acted with general intent. General intent, in turn, would have required knowledge of the facts underlying the offense.
In this case, knowledge of the facts that would have made Mr. Doe’s actions a crime would have meant knowledge of the facts underlying section 261(a)(3)–i.e., knowledge Ms. Roe was so grossly intoxicated that she no longer had the rational judgment required for consent; and thus, that she lacked the mental capacity to consent to a sex act. (See discussion of People v. Giardino, ante, p. ; see also discussion in RAOB 31-32.) Thus, the instructions should have permitted the jury to convict only if appellant had actual knowledge–or its legal equivalent, conscious disregard–that Ms. Roe was so intoxicated as to destroy her capacity to give consent.
Unfortunately, that wasn’t what happened. Although the trial court correctly gave general intent instructions (RT 772:4-11), it followed them with the “knew or reasonably should have known” language. (RT 772:24-773:3, 773:12-13, 773:23-24, 774:11-12.) (See ante, fn. .)
“Knew or reasonably should have known” is language of negligence; it is the standard for ordinary (civil) negligence. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112, fn. 2; Moeller v. Fleming (1982) 136 Cal.App.3d 241, 243-244; People v. Martin (1989) 211 Cal.App.3d 699, 711-712 [Gilbert, J.]; see also In re Jorge M. (2000) 23 Cal.4th 866, 891-892, 894 [dis. opn. of Kennard, J., joined by Baxter, J.]; id. at p. 887, fn. 11 [maj. opn.].) By contrast, general intent is a standard of intent, a synonym for willfulness. (In re Jerry R., supra, 29 Cal.App.4th at p. 1438; Hale v. Morgan (1978) 22 Cal.3d 388, 396.) Intent or willfulness is not a synonym for negligence. (People v. Lara, supra, 44 Cal.App.4th at p. 107.)
It is potentially misleading and thus inappropriate to use “knew or reasonably should have known” in a context where the standard of law is general intent (willfulness)–whether the audience is legally sophisticated lawyers and judges, or lay jurors–for the very reason that “knew or reasonably should have known” is a negligence standard. (See Broadman v. Comm. on Jud. Performance (1998) 18 Cal.4th 1079, 1092.)
Moreover, apart from the fact that a “reasonably should have known” negligence standard is much below general intent (actual knowledge), it is also a different type of standard. “Reasonably should have known” is an objective standard, while general intent–actual knowledge–is a subjective standard. (People v. Lara, supra, 44 Cal.App.4th at p. 108.)
Realistically, appellant understands why the trial court–and probably everyone else in the case–might have accepted “knew or should have known” instructions uncritically: That is the language in the statutes of the charged offenses (Pen. Code, §§ 261(a)(3), 286(i)), and that language was picked up by CALJIC (Nos. 10.02 and 10.27). In most cases, statutory language is an acceptable way to instruct a jury. “The general rule provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof.” (People v. Failla (1966) 64 Cal.2d 560, 565.)
But: “[T]hat rule is always subject to the qualification that ‘An instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court.” (Id.) Thus, where statutory language is incomplete or misleading in describing elements of a crime, such an instruction can be error; for then, a jury needs the court’s guidance to know the statute has a legal meaning it wouldn’t know otherwise. (Id.; accord, e.g., People v. Prettyman (1996) 14 Cal.4th 248, 266-267; Brown v. Smith (1997) 55 Cal.App.4th 767, 785.)
That is the problem here: The instructional language “knew or reasonably should have known” made the required mens rea seem like ordinary negligence, when by law the greater mens rea of general intent and actual knowledge was required. Perhaps the conflict between general intent and a “knew or should have known” standard should have been apparent, especially in light of this Court’s Lara opinion. On the other hand, it may be hard to resist following language that is in both the statute and CALJIC. But in the end, the trial court does have ultimate responsibility for ensuring the jury is properly instructed on the elements of charged offenses. (Ante, p. .)
In short, we have the following:
(1) The trial court gave general intent instructions on both counts, rape and sodomy, consistent with the fact that both rape and sodomy are general intent crimes. But then:
(2) The trial court gave “knew or reasonably should have known” instructions on both counts, which permitted the jury to convict on both counts based on no more than ordinary (civil) negligence.
As this Court held in Lara, those two standards are incompatible. There is no such thing as “negligent general intent.” The trial court erred.
E. Prejudice
1. The Lara Standard; The Guiton Standard; Chapman Error
The error is prejudicial for reasons akin to the similar error in Lara:
Appellant’s state of mind, i.e., whether he acted with general intent or not, was [a] key issue in the case. Pursuant to People v. Green (1980) 27 Cal.3d 1, a conviction must be reversed if one of the People’s theories of the case is “legally incorrect” and the reviewing court cannot determine which theory the jury rested its verdict upon. (Id., at p. 69; see also People v. Harris (1994) 9 Cal.4th 407, 419.) The “Green rule,” however, has been questioned by our Supreme Court. (Id., at p. 419, fn. 7.) Pursuant to the latest direction from our Supreme Court, reversal for misinstruction on the elements of an offense is governed by the harmless beyond a reasonable doubt standard. (People v. Swain (1996) 12 Cal.4th 593, 607.) Under either standard, appellant is entitled to reversal and new trial. We have no way of determining whether the jury found that appellant acted with general criminal intent or with [ordinary] negligence.[] We cannot say that this misinstruction was harmless beyond a reasonable doubt. Appellant is entitled to a trial without reference to [a standard of] negligence.[]
(People v. Lara, supra, 44 Cal.App.4th at pp. 110-111.)
This should be dispositive by itself. The judgment should be reversed.
(Were it relevant, appellant would submit that the part of the “Green rule” relevant here is governing law, as it also emanates from a recent opinion of our Supreme Court. For cases such as this one, where a jury was given two different legal theories supported by evidence but one was legally erroneous, the Supreme Court reaffirmed Green in People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129. That is also the standard Lara; since it is from our Supreme Court, this Court was right in doing so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Published opinions uniformly join Lara in using the Guiton standard in cases such as this, with instructions on one legally correct and one legally incorrect theory, with either verdict supportable by evidence. (People v. Sanchez (2001) 86 Cal.App.4th 970, 980; People v. Smith (1998) 62 Cal.App.4th 1233, 1238; People v. Barnes (1997) 57 Cal.App.4th 552, 553-554; People v. Llamas (1997) 51 Cal.App.4th 1729, 1740-1741; People v. Farley (1996) 45 Cal.App.4th 1697, 1709-1710; People v. Maurer, supra, 32 Cal.App.4th at pp. 1128-1129.)) [Footnote 4]
Appellant is entitled to a trial without reference to a negligence standard. (Lara, 44 Cal.App.4th at p. 111.) There would be a strong likelihood of acquittal in such a trial. (See next section; also post, Part VI.)
However, Chapman (or Guiton/Swain) error is, expressly, not based on what might happen in a hypothetical error-free retrial. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281; see Chapman, supra, 386 U.S. at pp. 23-24.) What matters is that appellant was tried under the wrong law, which made conviction far easier than the correct law would have, and the evidence would have supported acquittal under the correct law.
That is Chapman error. The judgment should be reversed.
2. Same Result (Different Analysis) Under Watson
Still, the defense case on this issue–either for reasonable doubt, or actual innocence–was strong, so there would have been prejudice even under the lesser Watson standard. Under Watson, “trial error is usually deemed harmless . . . unless there is a ‘reasonabl[e] probab[ility]’ that it affected the verdict.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [quoting People v. Watson (1956) 46 Cal.2d 818, 836].)
Our Supreme Court recently clarified that standard: “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital, supra, 8 Cal.4th at p. 715 [citing Watson, 46 Cal.2d at p. 837].)
a. Absence Or Minimal Nature Of Evidence Of Actual Knowledge Of Incapacity To Consent
[**Section deals with evidence in the specific case — Omitted**]
b. Prosecution Argument Capitalizing On Error
In addition, the prosecution capitalized on the error in rebuttal argument, by repeatedly arguing that the defendants’ stated beliefs or accounts were “unreasonable.” (RT 856-858.) “Unreasonableness” was the same erroneous negligence standard on which appellant’s jury was instructed. (Ante, fn. .) When the prosecution capitalizes on an error in closing argument, that further indicates prejudice. (People v. Baker (1999) 74 Cal.App.4th 243, 253; People v. Gomez (1999) 72 Cal.App.4th 405, 419.) It is still more so if done in rebuttal, since the defense cannot respond. (People v. Perez (1962) 58 Cal.2d 229, 245.)
c. Other Instructions Not Curing The Error, And If Anything Exacerbating It
Nor did it help that the trial court instructed under People v. Mayberry (1975) 15 Cal.3d 143 (reprinted below). [Footnote 5] If anything, that instruction only made matters worse by restating the erroneous negligence standard.
The jury instructions on the elements used a “knew or reasonably should have known” standard–i.e., that appellant “knew or was unreasonable in not knowing” the underlying facts. If the jury found that mental state “element,” the Mayberry instruction would then be inapplicable by its terms; if appellant acted unreasonably for purposes of an “element,” a fortiori he acted unreasonably for a Mayberry instruction. An instruction based on “reasonableness” can hardly cure an erroneous standard of “reasonableness” in another instruction. That also reflects the law: Since ordinary negligence–“reasonably should have known”–is legally defined in terms of reasonableness (see, e.g., Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 132-133), anyone who is guilty of negligence a fortiori has not acted reasonably, and therefore cannot benefit from a Mayberry instruction.
Moreover, an error in an instruction is not “cured” by another instruction, unless the “curative” instruction specifically explains the erroneous original; mere contradiction in instructions is not enough. (Francis v. Franklin (1985) 471 U.S. 307, 322; Yates v. Evatt (1991) 500 U.S. 391, 401, fn. 6.) The Mayberry instruction couldn’t have cured the legally deficient civil negligence instruction because the former didn’t purport to explain or override the latter. If anything, it made it worse, as above.
d. Based On Totality Of Evidence
[**Section deals with evidence in the specific case — Omitted**]
II. THE COURT ERRONEOUSLY FAILED TO INSTRUCT ON THE REQUIRED MENS REA, INSTEAD INSTRUCTING ON A CIVIL NEGLIGENCE STANDARD THAT ISN’T A CORRECT MENS REA FOR MAJOR SEX CRIMES
A. Overview
This Argument and the next Argument address the mens rea issue from a somewhat different perspective, one of analyzing the statutes themselves. Both Arguments focus on the statutory language “knew or reasonably should have known”–a negligence standard–in Penal Code sections 261(a)(3) and 286(i), the charged offenses in Counts 1 and 2.
In this Argument, appellant shows that the mens rea for this offense is at least gross (criminal) negligence; and for that reason alone, the trial court erred prejudicially in permitting conviction based on ordinary (civil) negligence. (Cf. People v. Simon (1995) 9 Cal.4th 493, 496-497, and briefing therein [because trial court gave no mens rea instruction, defendant needed only to show the requisite mens rea was at least gross (criminal) negligence for reversal, and did not have to establish what the correct mens rea actually was].) In the next Argument, appellant will show the required mens rea is actually intent and knowledge. Either suffices for reversal.
The error is reviewable for the reasons ante, p. . The instructional error standard of review, ante, p. applies.
B. Basic Legal Standards
There is a major difference between ordinary (civil) negligence and gross (criminal) negligence. (People v. Peabody (1975) 46 Cal.App.3d 43, 47; People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591.) “[I]n the criminal context, ordinary negligence sufficient for recovery in a civil action will not suffice; to constitute a criminal act the defendant’s conduct must go beyond that required for civil liability and must amount to a ‘gross’ or ‘culpable’ departure from the required standard of care.” (Williams v. Garcetti (1993) 5 Cal.4th 561, 573 [citations omitted].) “We have defined criminal negligence as aggravated, culpable, gross, or reckless, that is, … such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to [demonstrate] … an indifference to consequences.” (Id. at pp. 573-574 [citations omitted].)
“In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” (Pen. Code, § 20.) “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (People v. Vogel, supra, 46 Cal.2d at p. 801.) There are a few well-known exceptions for “public welfare offenses,” which “usually involve light penalties and no moral obloquy or damage to reputation.” (Id.) Obviously, rape and sodomy aren’t among them.
The crimes charged against Mr. Doe, rape and sodomy of a grossly intoxicated person (Pen. Code, §§ 261(a)(3) and 286(i)), are not the usual crimes of rape that are defined by a victim’s lack of actual consent. (People v. Giardino, supra, 82 Cal.App.4th at pp. 459-464.) Rather, this type of offense involves a victim’s lack of capacity to give legal consent, due to severe intoxication making the victim incapable of exercising the judgment necessary for consent. (Id. at pp. 461-462.)
This offense, like any other offense designated as a major sex crime, is not one of strict liability. It could not be, given the huge penalty and drastic direct and collateral consequences (lifetime sex offense registration, inclusion on a publicly available database, major employment consequences, and so forth) for a conviction of any form of rape.
The trial court’s instructions permitted the jury to convict Mr. Doe of violation of sections 261(a)(3) and 286(i) on a mental state almost as thin –ordinary (civil) negligence. That is the plain meaning of the instructions here, and in particular CALJIC Nos. 10.02 and 10.23 [given at RT 772-773]: Without at least a gross negligence instruction, “knew or reasonably should have known” is a standard of ordinary (civil) negligence. (See ante, p. , and cases cited; see also post, p. .)
However, the least mens rea required for a violation of section 261(a)(3) or 286(i) has to be gross (criminal) negligence. It could hardly be less, because (i) Penal Code section 20 doesn’t permit it; (ii) settled canons of statutory construction don’t permit it either; (iii) there is nothing to suggest that the Legislature intended to permit it; (iv) rape is not a “public welfare offense” for which the usual criminal mens rea can be disposed of; and (v) any other result would lead to an irrational and absurd statutory scheme which would punish lesser offenses far more severely than greater offenses which require gross negligence, and which involve consequences far more serious than “negligent rape” (namely, death).
C. Discussion
1. An Ordinary (Civil) Negligence Standard For A Charge Of Rape Of An Intoxicated Person Violates Penal Code Section 20, As Authoritatively Interpreted By Our Supreme Court
Penal Code section 20 prohibits a conviction of an offense based on any mens rea less than gross (criminal) negligence. The only exceptions are for “public welfare” [malum prohibitum] offenses. (Vogel, 46 Cal.2d at p. 801, fn. 2; People v. Simon, supra, (1995) 9 Cal.4th at p. 521.) Obviously, a crime that is called rape and punished as rape is not such an exception. Rape is a major felony. A proper criminal scienter is required. (See also Pen. Code, § 26; Somers v. Superior Court (1973) 32 Cal.App.3d 961, 969-970.)
That should be dispositive. But “[i]n addition, Penal Code section 26 provides that a person
is incapable of committing a crime where an act is performed in ignorance or mistake of fact negating criminal intent . . . .” (People v. Coria, supra, 21 Cal.4th at p. 876.)
Penal Code section 261(a)(3), and its proscription against one form of rape, does not expressly state a mens rea of at least gross (criminal) negligence. However, our Supreme Court has construed other statutes that also lack an express gross negligence standard to require at least that mens rea. Two well-known cases are People v. Vogel, supra, 46 Cal.2d at pp. 801-802, and People v. Simon, supra, 9 Cal.4th at pp. 521-522.
“As a matter of law, ordinary negligence, sufficient for recovery in a civil trial, will not suffice to establish culpable negligence in a criminal trial. (People v. Thurmond (1985) 175 Cal.App.3d 865, 873; People v. Peabody, supra, 46 Cal.App.3d at p. 47.) For this reason alone, Penal Code section 261(a)(3), and its counterparts such as section 286(i), cannot be construed as permitting criminal culpability on ordinary (civil) negligence. The trial court’s instructions erroneously permitted conviction on this deficient standard.
2. Principles Of Statutory Construction Yield The Same Result
The same result is reached by applying standard principles of statutory construction.
Section 261(a)(3) (and its Count Two counterpart section 286(i)) are subject to at least three possible interpretations as to mens rea: (a) Ordinary (civil) negligence, based on the phrase “knew or reasonably should have known” (see ante, p. ); (b) Gross (criminal) negligence, based on Penal Code section 20 and basic precepts of criminal law operative in every case (People v. Vogel, supra, 46 Cal.2d at p. 801; ante, p. ); and (c) General intent/knowledge, a standard which is operative in general intent crimes, such as both charged offenses here (ante, p. , and cases cited). Appellant defers further discussion of intent/knowledge to the next Argument, and deals with ordinary (civil) negligence vs. gross (criminal) negligence here.
Since these statutes have more than one possible meaning, appellant turns to standard principles of statutory construction. (Srukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 777-778.) Appellant can think of at least five strongly pointing to at least a gross (criminal) negligence standard:
i. The Legislature is presumed to know existing law, and to enact statutes in light of that law. (People v. Hernandez (1988) 46 Cal.3d 194, 201; Estate of McDill (1975) 14 Cal.3d 831, 838.)
In this case, the relevant amendment to section 261(a)(3)–the one which first added the “knew or reasonably should have known” language–became operative in September 1994. (Stats. 1993-94, 1st Ex. Sess., ch. 40 (A.B. 85X), § 1.) In 1994, the existing law in the area relevant here was Penal Code section 20, and opinions construing it such as People v. Vogel, supra. Since it is presumed the Legislature enacted section 261(a)(3) in light of that law (section 20 and Vogel), and since there is no contrary indication anywhere, it must be presumed the Legislature wasn’t trying to create a rape crime with a mens rea below that of section 20 and Vogel.
ii. Statutes must be construed harmoniously with each other, and with the entire legislative scheme of which they are a part. (People v. Pieters (1991) 52 Cal.3d 894, 899; People v. Gonzalez (1990) 51 Cal.3d 1179, 1221.) That requires harmonizing section 261(a)(3) with section 20 if it can reasonably be done. It can, for the reasons herein.
iii. Statutes providing for serious punishments and lengthy prison terms are not construed as permitting criminal conviction based on anything less than criminal negligence, because of the significant constitutional questions such treatment would raise. (People v. Simon, supra, 9 Cal.4th at p. 522.) Once again, the Legislature cannot be presumed to have intended a crime of “rape by ordinary negligence.”
iv. If the meaning of a criminal statute is in doubt, it is construed favorably to the accused. That is a principle of both state law and the Fourteenth Amendment. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530; United States v. Bass (1971) 404 U.S. 336, 348.)
v. Statutes are construed to prevent absurd or anomalous consequences (Catalayud v. State of California (1998) 18 Cal.4th 1057, 1072; People v. Pieters, 52 Cal.3d at pp. 898-899), significant constitutional ques- tions (People v. Simon, supra, 9 Cal.4th at p. 522), and unconstitutionality. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788.)
Conversely, appellant is unaware of any principle of statutory construction which would work in favor of an ordinary (civil) negligence standard. Nor has the Legislature given any indication–momentarily leaving aside the mere use of the phrase “knew or should have known”–that it intended a civil negligence standard for a crime of rape. The very phrase “rape by civil negligence” is an oxymoron.
Furthermore, there would be no basis for claiming that section 261(a)(3) somehow has its own civil negligence mens rea (presumably along with section 261(a)(1)), while all the other subdivisions of section 261 require a far greater mens rea of general intent, for the simple reason that the subdivisions of section 261 all define the same crime of rape. (See ante, p. , and discussion post, p. .) Since five subdivisions in section 261 clearly require general intent, there is no plausible basis for saying the other two create a new crime of “rape by civil negligence.”
3. Since Rape Is Not A Malum Prohibitum, “Regulatory”/”Public Welfare” Offense, Conviction Cannot Be Permitted Based On A Mens Rea Less Than Gross (Criminal) Negligence
In a recent criminal case in the securities area, our Supreme Court held that crimes other than regulatory/public welfare crimes “are subject to the requirements of Penal Code section 20.” (People v. Simon, supra, 9 Cal.4th at p. 521.) Section 20 requires either intent or gross (criminal) negligence. The exception for regulatory/public welfare crimes “has not been applied in this state to offenses which . . . do not involve conduct which threatens the public health or safety and are punishable with lengthy prison terms.” (People v. Simon, supra, 9 Cal.4th at p. 521.)
Far more so here. Simon was a “white-collar crime” case with charges that carried a penalty of 2, 3 or 5 years in prison, or alternative misdemeanor. This case involves a charged heinous crime of ancient origin, rape, with much greater prison terms (3, 6, 8 years); no alternative misdemeanor; serious felony status; lifetime registration; etc. (See also post, section (4).) It is clearly not within the regulatory/public welfare exception.
Accordingly, Simon is a fortiori. The required mental state under section 261(a)(3) isn’t as low as ordinary negligence.
In that context, appellant can find only a handful of California statutes–outside the series of sex crime statutes at issue here–which use a “know or should have known” standard for criminal culpability. In caselaw, all are considered to be “public welfare” or “regulatory” offenses involving either (i) a trade or business involving the public welfare, an area subject to greater criminal regulation with lesser mens rea (see, e.g., People v. Martin, supra, 211 Cal.App.3d 699 [construing H. & S. Code, § 25189, subd. (c)]; People v. Cramblit (1978) 84 Cal.App.3d 437, 443-444 [construing Pen. Code, § 496a]), or (ii) an inherently dangerous instrumentality presenting a grave threat to public safety, which at times may also be subject to greater criminal regulation with lesser mens rea. (In re Jorge M., supra, 23 Cal.4th at pp. 887-888 [construing Pen. Code, § 12280, subd. (b)].) None have more than minimum felony penalties. (See ibid.)
None of these offenses come close to the huge penalties, registration requirement, major focus on personal culpability, social obloquy, and other drastic consequences of an offense called “rape,” such as that of which appellant was convicted. Indeed, it is doubtful that rape “would qualify as a regulatory or public welfare offense whatever the penalty.” (People v. Martin, supra, 211 Cal.App.3d at p. 714; cf. People v. Speegle (1997) 53 Cal.App.4th 1405, 1415 [misdemeanor cruelty to animals is malum in se and results in social obloquy, so required mens rea cannot be as low as civil negligence].) It certainly isn’t one with the huge penalties it does carry.
Appellant agrees with this Court’s analysis in another case where a defendant challenged a jury instruction with a simple negligence standard:
“[T]o constitute a criminal act the defendant’s conduct must go beyond that required for civil liability and must amount to a ‘gross’ or ‘culpable’ departure from the required standard of care. [Citations.] . . .
“The only exceptions to this general rule are so-called ‘public welfare’ or ‘malum prohibitum ‘ crimes which . . . are most often based upon the violation of statutes purely regulatory in nature and involving widespread injury to the public. [Citation.]”
(People v. Martin, supra, 211 Cal.App.3d at pp. 712-713.) This Court went on to hold that although the Legislature didn’t make the regulatory offense in that case a strict liability offense, it could have. So the standard of ordinary (civil) negligence was permissible. (Id. at pp. 714-715.)
Needless to say, a crime treated as a major sex crime, called “rape” or the equivalent, is not a mere regulatory or “public welfare” offense. It thus is not an offense for which civil negligence is a permissible mens rea.
4. Interpreting Rape Under Section 261(a)(3) Or Sodomy Under Section 286(i) To Require Only Civil Negligence Would Create Absurd Results Of Dubious Constitutionality
Finally, there is the sheer absurdity and irrationality of what the law would be, if this statute permitted conviction on ordinary (civil) negligence. As noted above, statutes are construed to prevent anomalous consequences, significant constitutional questions, or unconstitutionality. (Ante, p. .) Furthermore, the Legislature is presumed to know its existing statutes and caselaw, and to enact laws in light of them. (Ante, p. .)
To discuss the constitutionality problems here, appellant uses a comparison to the ultimate gross negligence offense, killing a human being with gross negligence. That is involuntary manslaughter, under Penal Code section 192. (People v. Stuart (1956) 47 Cal.2d 167, 173-174.) Causing the death of a human being is the worst possible consequence for a crime.
By contrast, as serious as the consequences may be of sexual activity with a person too intoxicated to have the capacity to consent, its consequences are nowhere near as serious as death. (Cf. Coker v. Georgia (1977) 433 U.S. 584, 599 [death penalty for rape violates Eighth Amendment; though rape is a terrible crime, it does not compare with unjustified taking of human life with same mens rea {murder}].) It would make no sense to have the latter punished far more severely than the former, especially if the latter were perceived as requiring a lesser mens rea than the former, such as ordinary (civil) negligence.
The crime of involuntary manslaughter under section 192, with its mens rea of criminal negligence, has several relevant characteristics here:
(1) It provides for a prison term of 2-3-4 years.
(2) It is not necessarily a “serious felony” under section 1192.7. (See People v. Brown (1988) 201 Cal.App.3d 1296, 1303-1304 [when involuntary manslaughter is only a serious felony if that is based on section 1192.7(c)(8), personal infliction of great bodily injury]; compare People v. Oliver (1989) 210 Cal.App.3d 138, 144-151 [involuntary manslaughter con- viction on theories which did not involve personal infliction of great bodily injury]; People v. Le Grant (1946) 76 Cal.App.2d 148, 152-154 [similar].)
(3) It need not be a crime of moral turpitude, and thus cannot be used for impeachment. (People v. Solis (1985) 172 Cal.App.3d 877, 887.)
(4) It doesn’t require any form of registration with law enforcement agencies.
(5) It doesn’t put the offender into a state database easily available to the public.
(6) It doesn’t create any presumptions against probation.
Appellant now compares those characteristics of grossly negligent homicide above, to the equivalent characteristics of violation of section 261(a)(3). The prison term and related consequences of grossly negligent homicide–despite its far greater consequence of death–are much less than of a violation of section 261(a)(3), in that section 261(a)(3):
(1) Provides for a much greater prison term than involuntary manslaughter, 3-6-8 years as against 2-3-4 years;
(2) Is always a “serious felony” under section 1192.7 (subd. (c)(3)) (and thus a “strike”), which involuntary manslaughter is not;
(3) Is a crime of moral turpitude (People v. Mazza (1988) 175 Cal.App.3d 836, 843-844), unlike involuntary manslaughter which is not;
(4) Imposes requirements of mandatory lifetime registration with law enforcement authorities (Pen. Code, § 290, subd. (a)(2)(A)), unlike involuntary manslaughter which does not;
(5) Puts the convicted person into the publicly available database of sex offenders (Pen. Code, § 290.4, subd. (a)(1)) who are deemed to put the community “at risk” (id., subd. (e)(1)), whereas there is no such database of involuntary manslaughterers; and
(6) Imposes extra restrictions and conditions on granting probation (Pen. Code, § 1203.067), which involuntary manslaughter does not.
And yet, if ordinary negligence were to suffice for this crime of rape, a violation of section 261(c)(3) would have a lesser required mens rea than involuntary manslaughter–ordinary (civil) negligence for having sexual intercourse with a person too intoxicated to consent, as against criminal (gross) negligence for killing a human being.
Appellant respectfully submits that this would create an utterly absurd and irrational statutory scheme, if it were law. Unlawful sexual intercourse leads to results significantly less detrimental than death. Yet this theory of law would punish unlawful sexual intercourse far more severely than causing death, with the same mens rea. And according to the trial court’s instructions, it would do so with a lesser mens rea of simple negligence, a mens rea otherwise used only for “public welfare” offenses.
Conversely, as described ante, p. , there is one other crime in California (leaving aside the sex offense crimes discussed here) which might be described as malum in se, but requires only a mens rea of ordinary negligence: Vehicular manslaughter, in violation of section 192(c)(3). Once again, the consequence of that crime, death, is far worse than the consequence of violating section 261(a)(3).
Yet vehicular manslaughter–ordinary negligence causing death–is a misdemeanor. (Pen. Code, § 193, subd. (c)(2).) Once again, if one assumes section 261(a)(3) could be violated by ordinary negligence, then negligently causing death would be a misdemeanor; while with the same mens rea, “negligent sexual intercourse” would be a major sex felony punishable by up to 8 years in prison, with all of the attendant collateral consequences (lifetime registration, listing on a highly scrutinized public database, “strike” treatment, etc.). That would be even more absurd.
Furthermore, it appears from appellant’s reading that an unjustified and unexcused homicide committed with ordinary (civil) negligence that doesn’t involve a vehicle is not a crime at all. It is wrongful death, relegated to the civil courts. But again, according to the instructions here, sexual intercourse with a person too intoxicated to have the capacity of consent, based on the same mens rea of ordinary (civil) negligence, is the heinous crime of rape leading to 3, 6 or 8 years in prison, lifetime registration, and all the other consequences attendant to a rape conviction. A punishment scheme couldn’t be much more arbitrary and irrational than that. (Cf. Coker v. Georgia, supra, 433 U.S. at p. 599 [death penalty for rape violates Eighth Amendment as grossly disproportionate; though rape is a terrible crime, it does not compare with unjustified taking of human life with same mens rea {murder}].) [Footnote 6]
The Legislature could not have intended such absurd and irrational re- sults. Laws are not construed to create absurd consequences. (Ante, p. .)
If this one were, the statutory scheme would be unconstitutional. It violates the Eighth and Fourteenth Amendment, and corresponding California provisions, to have a sentencing scheme which punishes a lesser offense more severely than a greater offense. (People v. Schueren (1973) 10 Cal.3d 553, 560-561; Roberts v. Collins (4th Cir. 1976) 544 F.2d 168, 169-170; Hobbs v. State (1969) 252 N.E.2d 498 [253 Ind. 195]; Dembowski v. State (1968) 240 N.Ed.2d 815 [251 Ind. 250]; Cannon v. Gladden (1955) 281 P.2d 233 [203 Or. 629]; Solem v. Helm (1983) 463 U.S. 277, 291-293; State v. Koch (2000) 169 Ore. App. 223, 230 [7 P.3d 769, 772]; see also generally, e.g., United States v. Bajakajian (1998) 524 U.S. 321, 336-337 [Eighth Amendment bar against grossly disproportionate punishment]; In re Lynch (1972) 8 Cal.3d 410, 423-424 [California bar against disproportionate punishment].) Thus in the alternative, appellant argues unconstitutionality on those grounds. But he shouldn’t have to. There is nothing to suggest the Legislature intended to create a crime of “civilly negligent rape.”
D. The Error Was Prejudicial
A mental state of at least gross (criminal) negligence is an essential element of both charged offenses. The trial court’s failure to instruct on that essential element is constitutional error.
Appellant Poe’s opening brief contains an excellent discussion of the standards of prejudice in cases involving a failure to instruct on an essential element of a charged offense, and why the failure is reversible error in a case of this nature. (RAOB 22-25, 26 [1st two pars.].) Appellant Doe incorporates that discussion here by reference. The error is reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281.)
The same result obtains using the constitutional harmless error standard under Chapman v. California, supra, 386 U.S. at pp. 23-24. Under Chapman, constitutional error is reversible unless the People can show there was no reasonable possibility that the error contributed to the jury’s actual verdict–i.e., that the error was “harmless beyond a reasonable doubt.” (Chapman, 386 U.S. at pp. 23-24; Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-281; Fahy v. Connecticut (1963) 375 U.S. 85, 86-97.) The common claim of “overwhelming evidence,” though factually unsupportable here, is legally impermissible anyway in the context of constitutional error; in fact, it is precisely the California standard that Chapman rejected. (Id. at pp. 23-24; Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-279.)
The People cannot show the absence of such a reasonable possibility in the omission of an essential element, for the very reason that the essential element was omitted. The jury was never told it was required to find this essential element, so there is nothing to indicate it did. Mens rea was obviously an extremely important issue in this case, and there was plenty of evidence to place it in dispute, or at least raise a reasonable doubt (or more). That is reversible error under Chapman. (See, e.g., People v. Pierson (2001) 86 Cal.App.4th 983, 994-995.) However, the error is reversible under any standard, for the reasons ante, p. -. The judgment should be reversed.
III. THE TRIAL COURT ERRED PREJUDICIALLY IN GIVING A NEGLIGENCE INSTRUCTION BECAUSE THE SCIENTER REQUIRED WAS GENERAL INTENT/KNOWLEDGE
A. Discussion
Having said all of that, appellant submits that the correct mens rea isn’t gross negligence either. It is actual knowledge of the facts that bring the conduct within the criminal statute charged; or its legal equivalent, conscious disregard–a form of knowledge–of those facts. That is the mens rea which this Court held is required for battery, in People v. Lara, supra, 44 Cal.App.4th at pp. 107-108. Rape is as much a general intent crime as bat- tery. (Ante, p. .) It can’t be committed by mere negligence, civil or criminal.
The error is reviewable for the reasons ante, p. . The instructional error standard of review, ante, p. applies.
The trial court’s instructions permitted conviction on a negligence standard (“knew or reasonably should have known”) because that is the language in the CALJIC instruction. The CALJIC instruction, in turn, took the language from the statute. As noted above, at times it might not be prudent–or legally proper–to take instructional language directly from a statute, when the statute standing alone connotes a different standard from the one the law requires. (See ante, p. .)
Even a literally unambiguous statute will not be interpreted to frustrate a legislative purpose or create absurdities. (People v. Pieters, supra, 52 Cal.3d at pp. 899, 901-902; People v. Mendoza (2000) 23 Cal.4th 896, 910-911.) Here, since the rest of section 261 requires general intent, it makes no sense to say this subdivision (and subd. (a)(1)) requires only negligence.
This Court’s opinion in People v. Lara, supra, 44 Cal.App.4th 102, is instructive again. In Lara, the charged offense was battery, a general intent crime. (Id. at p. 107.) Here, the charged offenses were rape and criminal sodomy, both of which are also general intent crimes (see ante, p. , and authority cited) that–though much more serious–are essentially aggravated forms of battery (unconsented touching). Analytically for purposes here, however, they are the same: Because they are general intent crimes, they require actual knowledge–or its equivalent, conscious disregard–of the facts that bring the conduct within the statute. (See ante, p. , and authority cited; People v. Lara, supra, 44 Cal.App.4th at p. 110.)
Appellant has already discussed in Part I(D) (ante, pp. et seq.) how a general intent crime requires actual knowledge (or its equivalent); it cannot be committed by mere civil negligence, a mental state that includes imputed knowledge (“knew or reasonably should have known”).
That discussion applies equally to general intent vs. criminal negligence. One can substitute “gross (criminal) negligence” for every iteration of “ordinary (civil) negligence” in that discussion, and the discussion is just as accurate. In a general intent crime, knowledge of the underlying facts is required. Thus, no form of negligence suffices.
It also follows the settled law that when a statute criminalizes “traditionally lawful conduct,” the statute is construed to require knowledge of the facts that turn the otherwise lawful conduct into a crime. (People v. Rubalcava, supra, 23 Cal.4th at pp. 331-332; People v. Coria, supra, 21 Cal.4th at pp. 880-881.) Here, sexual acts between consenting adults is “traditionally lawful conduct.” Thus section 261 requires actual knowledge of the facts that would make the conduct unlawful–namely, the second person’s lack of capacity to consent.
In short, this general intent crime requires knowledge of the facts that fall within the crime charged. “Knew or should have known” doesn’t suffice, whether that is part of a civil negligence standard, or a criminal negligence standard. By whatever name, negligence is not general intent. And rape and criminal sodomy are general intent crimes. (Ante, p. .)
For that reason alone, sections 261(a)(3) and 286(i) should be construed as what they are, general intent crimes.
B. Construing Section 261 As A Whole
The same result is obtained by examining the entire statute (section 261) as a whole, in order to understand the mens rea required by any and all of its component parts. Statutes should be construed as a whole. (People v. Rayford (1994) 9 Cal.4th 1, 21-22.)
The crime of rape in section 261 is divided into seven separate subdivisions not because of any intent to commit seven different crimes–the Legislature had no such intent–but rather, to make clearer what the various types of rape are. In other words, although section 261 is divided into seven subdivisions, it creates only one offense. (See ante, p. , and authority cited.) That too indicates it has only one type of mens rea. (The same analysis holds true for the portions of sections 286, 288a and 289 which contain major sex crimes that carry the same punishment as rape; 3, 6 or 8 years in prison, serious felony status, etc. (See ante, Part II(C)(4).)
Rape is a general intent crime. (People v. Osband, supra, 13 Cal.4th at pp. 685-686.) “Except in those rare circumstances where strict criminal liability may be imposed, even a general intent crime ordinary requires scienter, i.e., guilty knowledge of the facts which make the act a crime.” (People v. Laster, supra, 52 Cal.App.4th at p. 1468.)
Appellant will now discuss the seven subdivisions.
1. Subdivision (a)(2)
By its very nature, the crime of rape proscribed by section 261(a)(2) involves “guilty knowledge of the facts which make the act a crime.” If a person obtains sexual intercourse by force or fear, then by definition, he knows what he is doing (assuming no insanity or unconsciousness). A person engaging in a sex act which is rape by force or fear can hardly be ignorant of the facts showing he used force or fear to get it.
This also corresponds to the general intent mens rea of “willfulness.” (People v. Bell (1996) 45 Cal.App.4th 1030, 1043.) “Willfulness” doesn’t require any intent beyond that required to do the proscribed act. (People v. Calban (1976) 65 Cal.App.3d 578, 583-584.) But it does require intent to do the proscribed act, which requires knowledge of the facts that make it proscribed. (See ante, p. .) “[R]ape . . . invariably includes an act of intentional outrage against another.” (People v. Gayther (1980) 110 Cal.App.3d 79, 89.) In other words, it is an intentional use of force or fear as a means of taking sexual intercourse. (Cf, e.g., People v. Flynn (2000) 77 Cal.App.4th 766, 772 [same, for taking of property by force or fear].)
2. Subdivisions (a)(6) and (a)(7)
Sections 261(a)(6) and (a)(7) are similar; both involve intercourse obtained by a threat of harmful consequences. Obtaining something by threat of consequences is akin to obtaining it by force or fear; a threat is a form of imposing fear. Subdivision (a)(6) involves rape by a threat of physical harm or restraint, and subdivision (a)(7) involves essentially rape by extortion. Both are legal equivalents of force or fear. (Pen. Code, §§ 518, 519; People v. Phillips (1935) 10 Cal.App.2d 457, 458; People v. Goodman (1958) 159 Cal.App.2d 54, 61.) Both require intent, which includes knowledge of the facts underlying the threats. (Cf. People v. Fernandez (1994) 26 Cal.App.4th 710, 717 [same for felony false imprisonment by threat].) Obviously, these subdivisions cannot be violated by mere negligence.
3. Subdivision (a)(5)
Section 261(a)(5) is what one might call a form of “rape by fraud,” although the type of fraud is very limited. (People v. Harris (1979) 93 Cal.App.3d 103, 115-116.) When there is culpable fraud, it requires a culpable intent, and thus knowledge of the underlying facts. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666.)
4. Subdivision (a)(4)
Section 261(a)(4) also requires a defendant’s knowledge of the underlying facts, because the first sentence of the statute says so.
5. Subdivisions (a)(1) and (a)(3)
That leaves only subdivisions (a)(1) and (a)(3), both of which have the same sentence structure, and both of which use the phrase “know or reasonably should have known.” The question is whether these subdivisions permit conviction based on negligence, even though the language of the other five subdivisions of section 261–including its most traditional and well-known, subd. (a)(2)–clearly requires knowledge of the underlying facts, precluding conviction based on negligence.
Construing section 261 as a whole, subdivisions (a)(1) and (a)(3) cannot have a mens rea of negligence. If they did, it would mean that though the seven subdivisions of section 261 define the same crime, that same crime requires general intent and knowledge for 5 of 7 of its parts, but mere negligence for the other 2 of 7. That is an inherent contradiction. If the acts in seven subdivisions are all the same crime, they must all require the same mens rea (absent specific statutory language not present here).
Thus, construing section 261 as a whole, the result is the same: It defines a general intent crime, requiring knowledge of the underlying facts.
C. A Negligence Standard For This General Intent Crime Would Create Absurd, And Unconstitutional, Results The Legislature Should Not Be Presumed To Have Intended
This discussion is akin to that in Part II(C)(4). (See ante, pp. -.)
To summarize briefly here: The most serious crime with a mens rea of gross (criminal) negligence is involuntary manslaughter. (Pen. Code, § 192, subd. (b).) Involuntary manslaughter carries a prison term of no more than 4 years, is not inherent a “serious felony,” has no restrictions on probation, doesn’t result in lifetime registration or listing in a closely watched public database, etc. By contrast, if section 261(a)(3) could be violated by gross (criminal) negligence, then “grossly negligent involuntary sexual intercourse” would carry a prison term of up to 8 years, would always be a “serious felony,” would result in major restrictions on probation, lifetime registration, listing in a public database, etc.
It would be unconstitutionally disproportionate to punish unlawful sexual intercourse over twice as harshly as unlawfully causing death, when the two are committed with the same mens rea, gross negligence. (Cf. Coker v. Georgia, supra, 433 U.S. at p. 599.) A court should not assume the Legis- lature meant to enact statutes raising such constitutional questions. (People v. Simon, supra, 9 Cal.4th at p. 522.) Such a statutory scheme would also be absurd and irrational, and a court should not assume the Legislature intended such a result. (People v. Mendoza, supra, 23 Cal.4th at pp. 910-911.)
D. How “Knew Or Should Have Known” Can Be Confused With An Intent/Knowledge Standard
1. Supreme Court Authority
Recently in another context, the California Supreme Court recognized that it has inappropriately used the phrase “knew or should have known” as a synonym for “knew or consciously disregarded,” in a setting where no form of negligence–be it civil or criminal–is a correct legal standard. (Broadman v. CJP, supra, 18 Cal.4th at pp. 1091-1092; see also In re Brian F. (1985) 167 Cal.App.3d 672, 675 [using “knew or should have known” and “knew or consciously disregarded” as synonymous].) Perhaps even more confusing, the Court’s use of “knew or should have known” over those 25 years was meant to state a mens rea of willfulness. (Broadman, supra, 18 Cal.4th at pp. 1091-1092.) As discussed above, a mens rea of willfulness precludes a negligence standard. (People v. Lara, supra, 44 Cal.App.4th at p. 107.)
When the problem was pointed out, the Supreme Court acknowledged that “the phrase ‘should have known,’ because of its association in other contexts with a negligence standard, is potentially misleading and should be avoided.” (Broadman, supra, 18 Cal.4th at p. 1092.) That is beyond dispute. However, the Court had been using the “potentially misleading formulation” of “knew or should have known” as a synonym for “knew or consciously disregarded” for over 25 years. Each time, it did so in a paragraph in which it also said the legal standard in question, willful misconduct, required malice or bad faith. Cases are collected in the footnote below. [Footnote 7]
One certainly would not conclude that a judge could be charged with the highest form of misconduct, willful misconduct which requires malice, based on mere negligence. Yet, for over 25 years, “knew or should have known” was the language used by the Supreme Court for this most serious form of judicial misconduct, until the Court recognized in 1998 that it looked too much like a negligence standard.
If the Supreme Court can do it for 25 years, so can the Legislature. As in the Supreme Court opinions above, section 261(a)(3)’s use of the phrase “knew or reasonably should have known” does not have a single self-evident meaning; and as enacted, does not refer to any form of negligence.
Nor would it necessarily do so. To say that a person “knew or should have known” something really only begs the question: Why should he or she have known it? Or, put differently: What quantum of information must be available to the person before the legal system makes the normative conclusion that a person “should” know something?
In the Supreme Court’s CJP cases described above, the phrase “should have known” was used in a context which made it equivalent to actual know- ledge. It carried the meaning that a person “should have known” something if the reason he failed to know it was because he deliberately turned a blind eye to it. Failure to acquire knowledge of a fact by consciously disregarding it is the legal equivalent of knowing the fact. (Lara, supra, 44 Cal.App.4th at pp. 107-108.) That is applicable to section 261(a)(3) as well.
All of which brings appellant full circle. The standard of willfulness in Broadman, bad faith or malice amounting to knowledge or conscious disregard of the facts, precludes use of a negligence standard. Yet for 25 years, the Supreme Court itself used “knew or should have known” as a synonym for “knew or had conscious disregard for.” Linguistically, these have been used as legitimate synonyms; legally, that would be confusing.
Appellant submits that is exactly what the Legislature did in section 261(a)(3). There is no such thing as “negligent rape,” and nothing to indicate the Legislature intended such a radical concept within section 261. Section 261 defines a single general intent crime.
2. Other General Intent Statutes Using “Knew Or Reasonably Should Have Known”
Another potential source of confusion comes from similar language in other statutes. There are several statutes which define general intent crimes but have statutory language such as “knew or reasonably should have known.” One example is battery on a peace officer in violation of section 243(b). Battery is a general intent crime. (People v. Lara, supra, 44 Cal.App.4th 102), yet the language of section 243(b) includes a mens rea of “knew or reasonably should have known, that the victim is a peace officer.”
The difference is that in those statutes, “knew or reasonably should have known” is used in addition to general intent, as two different mental states operating simultaneously. The substantive crime, battery, is one of general intent and knowledge. (Ante, Part I(D).) However, once a person commits an intentional criminal act, he can also be liable for its reasonably foreseeable consequences. (E.g., People v. Mitchell (1964) 61 Cal.2d 353, 362.) If it is reasonably foreseeable that the victim of a battery is a peace officer, the defendant can be convicted of battery on a peace officer, even if he doesn’t actually know who the victim is.
Allowing conviction for rape of a grossly intoxicated person on mere negligence is entirely different. “Negligent rape” would create original crimi- nal liability, for what is otherwise “traditionally lawful conduct.” (People v. Rubalcava, supra, 23 Cal.4th at pp. 331-332.) Here, mens rea doesn’t in- crease culpability for an act already a crime; rather, it is what makes the act a crime. Especially for a heinous crime such as rape, the mens rea difference between criminality and noncriminality cannot be based on mere negligence.
One can understand why the Legislature might have been confused when “knew or reasonably should have known” is often a statutory standard in general intent crimes. By contrast, there is nothing to indicate the Legislature intended to intersperse two crimes called “negligent rape” with five other rape subdivisions which require intent, and deem them all the same crime. In such a situation, the Supreme Court’s analysis in People v. Pieters, supra, 52 Cal.3d at pp. 899-900 is the only sensible one. The Legislature did not intend to create a crime of “negligent rape.”
E. The Instructional Error Is Prejudicial
The error in instructing the jury on a legally inadequate mens rea is prejudicial for the reasons ante, Part II(D). The judgment should be reversed.
IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT ON KNOWLEDGE OF THE UNDERLYING FACTS AS AN ELEMENT OF THE CHARGED OFFENSES
Based on Parts I and III above, this error follows as a matter of course. As previously discussed, knowledge of the facts that made the conduct a charged offense was an element of both charged offenses.
When knowledge is an element of a charged offense, the trial court is obligated to instruct on it sua sponte. (People v. Reynolds (1998) 205 Cal.App.3d 776, 780; People v. Mijares (1971) 6 Cal.3d 415, 243.) That stems from the requirement that the jury be instructed sua sponte on all elements of a charged offense (People v. Cummings, supra, 4 Cal.4th at p. 1311), and also the Sixth and Fourteenth Amendment requirement that the jury’s verdict actually reflect a verdict on all elements. (See, e.g., Sullivan v. Louisiana, supra, 508 U.S. at pp. 297-281.)
The error is reviewable for the reasons ante, p. . The instructional error standard of review, ante, p. applies.
The error in instructing the jury without an essential element is preju- dicial for the reasons ante, Part II(D). The judgment should be reversed.
V. IF ARGUENDO APPELLANT CAN STAND CONVICTED BASED ON NEGLIGENCE, THEN THE PUNISHMENT SCHEME FOR THE OFFENSE IS UNCONSTITUTIONAL, AND SHOULD BE REDUCED TO THE MAXIMUM PUNISHMENT THAT IS CLEARLY CONSTITUTIONAL
Appellant has shown, ante, Parts II(C)(4) and III(C), that section 261(a)(3) cannot be construed to create a crime of “negligent rape,” as it would yield an irrational and arbitrary punishment scheme in violation of the state and federal Constitutions. But if arguendo this Court were not to re- verse the convictions, it would still have the unconstitutional penalty scheme.
Under Penal Code section 1260, an unconstitutional sentence must be reduced to no more than the maximum constitutional sentence. (People v. Schueren, supra, 10 Cal.3d at pp. 561-562.) Here, that is no greater than the sentence for the worst possible crime–homicide–with the same mens rea. If criminal negligence were the standard, the sentence for “criminally negligent rape” could not exceed that of criminally negligent homicide (involuntary manslaughter), a felony punishable by 2, 3 or 4 years, with far fewer conse- quences than a major sex crime (including no registration). (Ante, Part II(C)(4).) If civil negligence were the standard, then no punishment is permis- sible (see ante, Part II(C)(4)), and appellant should stand acquitted because “civilly negligent rape” is no more a crime than “civilly negligent homicide.”
While this Court has the power to reduce the punishment itself (Pen. Code, § 1260), it shouldn’t here if the convictions remain intact, as there is no way to know what the sentencing court would do if it had this Court’s ruling in front of it. That should be addressed by the sentencing court.
Appellant would also submit that lifetime sex offender registration and public database placement for a crime of “rape by negligence”–any kind, but especially “rape by civil negligence”–are disproportionate under Article I, section 17 of our Constitution. These are forms of punishment within the meaning of Article I, section 17. (In re Reed (1983) 33 Cal.3d 914, 922.)
Using the factors set forth in Reed (at p. 920), registration for this “offense” is even more drastically out of proportion to such as “offense” than the misdemeanor in Reed, which at least involved real scienter. Moreover, appellant is wholly unaware of any jurisdiction that has a registration requirement for “rape by negligence” (especially civil negligence). In fact, he has never heard of such a crime anywhere.
In particular, ordinary negligence is a civil tort standard, not a standard of criminal rape. A lifetime criminal penalty is obviously disproportionate to a civilly negligent wrong.
For these reasons, the cause should be remanded for resentencing.
FOOTNOTES:
Footnote 1: The court gave CALJIC No. 3.30:
“In the crimes of rape and sodomy, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” (RT 772.)
The court then gave CALJIC No. 10.02 for Count One, in pertinent part (emphasis added):
“Every person who engages in an act of sexual intercourse with another person not the spouse of the perpetrator, when that other person is prevented from resisting by any intoxicating or anesthetic substance, and this condition was known or reasonably should have been known by the accused, is guilty of the crime of rape in violation of Penal Code section 261, subdivision (a)(3). [¶] In order to prove this crime, each of the following elements must be proved: . . . . three. The alleged victim was prevented from resisting the act by an intoxicating substance; [¶] And, four. This condition was known, or reasonably should have been known by the accused.” (RT 772-773.)
The court then gave CALJIC No. 10.23 for Count Two, in pertinent part (emphasis added):
“Every person who commits an act of sodomy with another person, and the other person is prevented from resisting by any intoxicating substance, and this condition was or reasonably should have been known by the accused, is guilty of the crime of unlawful sodomy in violation of Penal Code section 286 subdivision (i). . . . [¶] In order to prove this crime, each of the following elements must be proved . . . . Two. The alleged victim was prevented from resisting the act by any intoxicating substance. [¶] And three. This condition was, or reasonably should have been known by the accused. (RT 773-774.)
Footnote 2: The record does not show a tactical reason for defense counsel’s failure to object to instructions which lowered the prosecution’s burden of proof below that required by law. Nor could there plausibly be any. (See, e.g., People v. Beardslee (1991) 53 Cal.3d 68, 88.)
Footnote 3: That has nothing to do with whether the defendant has knowledge of the law. Mistake of law is usually not a defense to a general intent crime. (People ex rel. State Air Resources Bd. v. Wilmhurst, supra, 68 Cal.App.4th at pp. 1346-1347.) Knowledge of the facts that bring the defendant’s conduct within the law, however, is quite a different matter.
Footnote 4: The Guiton standard is merely a correct application of Chapman v. California (1967) 386 U.S. 18, 23-24 in this particular context. When a jury is given conflicting legal standards which are both supported by substantial evidence (including substantial evidence to raise a reasonable doubt, see People v. Hill (1998) 17 Cal.4th 800, 831-832), it cannot be concluded with certainty that the defendant’s actual jury used the correct legal standard, no matter what a reviewing court thinks the “right result” should be. That is Chapman error. (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-281.)
The Chapman standard was also the standard used in People v. Swain, supra, 12 Cal.4th 593, which was cited by this Court as its authority in Lara, supra, 44 Cal.App.4th at p. 111. Swain reached the same result, on the same analysis, as would an application of Guiton: Because the trial court instructed the jury on a legally erroneous implied malice theory along with the legally correct express malice theory, and there was evidence to support conviction on either, there was no way to tell which theory the jury used, and thus the conviction had to be reversed. (Swain, 12 Cal.4th at p. 607.) Thus the Guiton standard is merely a context-specific application of the Chapman/Swain standard. (Accord People v. Sanchez, supra, 86 Cal.App.4th at p. 980 [citing Swain and Guiton, and the Smith case cited next]; People v. Smith, supra, 62 Cal.App.4th at p. 1238 [citing Guiton, Swain and Chapman]; People v. Maurer, supra, 32 Cal.App.4th at p. 1128 [citing Guiton and Chapman].)
Footnote 5: The instruction was: “In the crimes of rape and sodomy, criminal in- tent must exist at the time of the commission of the crimes. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse or so- domy. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge.” (CALJIC 10.65, given at RT 774.)
The underscored language, “good faith belief,” is certainly correct and doesn’t contradict the essential element of intent/knowledge in a general intent crime. However, the boldfaced language, “reasonable…belief,” is the “reasonableness” language of negligence that is the source of the very error discussed in this Part.
Footnote 6: How irrational is it? It is so irrational that if defendant D and victim V (for this illustration, both are assumed to be male) get very drunk in a bar one night; they go outside; and D punches V as a gesture of friendship, causing the stuporous V to fall and hit his head, and resulting in death by negligence, D has committed no crime, and at most has to call his insurance carrier or minister. But if instead of punching V and killing him, D thinks–negligently–that V is a gay man who made a pass at him, and D unzips V’s pants and begins to insert a finger into V’s anus, but withdraws immediately when V says “no,” D can be thrown into prison for several years with all the consequences of a major sex crime. (See § 289, subd. (e).)
Footnote 7: See Dodds v. CJP (1995) 12 Cal.4th 163, 172-173 [“knew or should have known” equated with bad faith]; Adams v. CJP (1995) 10 Cal.4th 866, 877-878 [“knew or should have known” equated with “malice or bad faith”], see also id. at p. 910; Kennick v. CJP (1990) 50 Cal.3d 297, 313-314 [“knew or should have known” equated with “bad faith or malice”]; Kloepfer v. CJP (1989) 49 Cal.3d 826, 857 [same, with bad faith]; Ryan v. CJP (1988) 45 Cal.3d 518, 531 [same, with “bad faith or malice”]; Furey v. CJP (1987) 43 Cal.3d 1297, 1305 [same; malice equivalent to bad faith]; Gubler v. CJP (1984) 37 Cal.3d 27, 45-46 & fn. 7 [same, with “bad faith entail[ing] actual malice”]; Gonzalez v. CJP (1983) 33 Cal.3d 359, 365 [same, with bad faith as equivalent to malice]; Wenger v. CJP (1981) 29 Cal.3d 615, 622, fn. 4 [same, with bad faith]; Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 695 [same, with bad faith entailing actual malice, “quintessentially a concept of specific intent, requiring consciousness of purpose as an antecedent to . . . acting maliciously or corruptly”]; Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 794-795 [to like effect]; McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531-532 [same, with bad faith]; Geiler v. CJQ (1973) 10 Cal.3d 270, 286 [same, with bad faith, calling the misconduct in question “the most insidious kind of lawlessness”].)
