Boro v. Superior Court

• Decision Date: 25 January 1985
• Citation: 163 Cal.App.3d 1224,210 Cal.Rptr. 122
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel Kayton BORO aka Jerry K. Russo, Emmett Boro, Dan Borghello, Petitioner, v. SUPERIOR COURT, San Mateo County, Respondent, PEOPLE of the State of California, Real Party in Interest. A027892.

Page 122

210 Cal.Rptr. 122

163 Cal.App.3d 1224

Daniel Kayton BORO aka Jerry K. Russo, Emmett Boro, Dan Borghello, Petitioner, v. SUPERIOR COURT, San Mateo County, Respondent, PEOPLE of the State of California, Real Party in Interest.

A027892.

Court of Appeal, First District, Division 1, California.

Jan. 25, 1985.

Hearing Denied April 4, 1985.

Vincent J. O'Malley, Allen & O'Malley, San Mateo, for petitioner.

James P. Fox, Dist. Atty., Redwood City, for respondent.

John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for real party in interest.

NEWSOM, Associate Justice.

By timely petition filed with this court, petitioner Daniel Boro seeks a writ of prohibition to restrain further prosecution of Count II of the information on file against him in San Mateo County Superior Court No. C-13489 charging him with a violation of Penal Code section 261, subdivision (4), ¹ rape: "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused." ²

Petitioner contends that his motion to dismiss should have been granted with regard to Count II because the evidence at the preliminary hearing proved that the prosecutrix, Ms. R., was aware of the "nature of the act" within the meaning of section 261, subdivision (4). The Attorney General contends the opposite, arguing that the victim's agreement to intercourse was predicated on a belief--fraudulently induced by petitioner--that the sex act was necessary to save her life, and that she was hence unconscious of the nature of the act within the meaning of the statute.

In relevant part the factual background may be summarized as follows. Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as "Dr. Stevens" and said that he worked at Peninsula Hospital.

"Dr. Stevens" told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.

"Dr. Stevens" further explained that there were only two ways to treat the disease. The first was a painful surgical procedure--graphically described--costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, "Dr. Stevens" explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, non-surgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the "doctor" suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the non-surgical alternative and consented to intercourse with the mysterious donor, believing "it was the only choice I had."

After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted "Dr. Stevens" by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called "Dr. Stevens" to give him her room number.

About a half hour later the defendant "donor" arrived at her room. When Ms. R. had undressed, the "donor," petitioner, after urging her to relax, had sexual intercourse with her.

At the time of penetration, it was Ms. R.'s belief that she would die unless she consented to sexual intercourse with the defendant: as she testified, "My life felt threatened, and for that reason and that reason alone did I do it."

Petitioner was apprehended when the police arrived at the hotel room, having been called by Ms. R.'s supervisor. Petitioner was identified as "Dr. Stevens" at a police voice lineup by another potential victim of the same scheme.

Upon the basis of the evidence just recounted, petitioner was charged with five crimes, as follows: Count I: section 261 subdivision (2)--rape: accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. Count II: section 261, subdivision (4)--rape "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused. Count III: section 266--procuring a female to have illicit carnal connection with a man "by any false pretenses, false representation, or other fraudulent means, ..." Count IV: section 664/487--attempted grand theft. Count V: section 459--burglary (entry into the hotel room with intent to commit theft).

A section 995 motion to set aside the information was granted as to Counts I and III--the latter by concession of the district attorney. Petitioner's sole challenge is to denial of the motion to dismiss Count II.

The People's position is stated concisely: "We contend, quite simply, that at the time of the intercourse Ms. R., the victim, was 'unconscious of the nature of the act': because of [petitioner's] misrepresentation she believed it was in the nature of a medical treatment and not a simple, ordinary act of sexual intercourse." Petitioner, on the other hand, stresses that the victim was plainly aware of the nature of the act in which she voluntarily engaged, so that her motivation in doing so (since it did not fall within the proscription of section 261, subdivision (2)) is irrelevant.

Our research discloses sparse California authority on the subject. A victim need not be totally and physically unconscious in order that section 261, subdivision (4) apply. In People v. Minkowski (1962) 204 Cal.App.2d 832, 23 Cal.Rptr. 92, the defendant was a physician who "treated" several victims for menstrual cramps. Each victim testified that she was treated in a position with her back to the doctor, bent over a table, with feet apart, in a dressing gown. And in each case the "treatment" consisted of the defendant first inserting a metal instrument, then substituting an instrument which "felt different"--the victims not realizing that the second instrument was in fact the doctor's penis. The precise issue before us was never tendered in People v. Minkowski because the petitioner there conceded the sufficiency of evidence to support the element of consciousness.

The decision is useful to this analysis, however, because it exactly illustrates certain traditional rules in the area of our inquiry. Thus, as a leading authority has written, "if deception causes a misunderstanding as to the fact itself (fraud in the factum ) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, p. 1079.)

The victims in Minkowski consented, not to sexual intercourse, but to an act of an altogether different nature, penetration by medical instrument. The consent was to a pathological, and not a carnal, act, and the mistake was, therefore, in the factum and not merely in the inducement.

Another relatively common situation in the literature on this subject--discussed in detail by Perkins (supra, at p. 1080) is the fraudulent obtaining of intercourse by impersonating a spouse. As Professor Perkins observes, the courts are not in accord as to whether ... the crime of rape is thereby committed. "[T]he disagreement is not in regard to the underlying principle but only as to its application. Some courts have taken the position that such a misdeed is fraud in the inducement on the theory that the woman consents to exactly what is done (sexual intercourse) and hence there is no rape;

other courts, with better reason it would seem, hold such a misdeed to be rape on the theory that it involves fraud in the factum since the woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery. Her innocence seems never to have been questioned in such a case and the reason she is not guilty of adultery is because she did not consent to adulterous intercourse. Statutory changes in the law of rape have received attention earlier and need not be repeated here.

(Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, pp. 1080-1081, fns. omitted.)

In California, of course, we have by statute ³ adopted the majority view that such fraud is in the factum, not the inducement, and have thus held it to vitiate consent. It is otherwise, however, with respect to the conceptually much murkier statutory offense with which we here deal, and the language of which has remained essentially unchanged since its enactment (as section 261, subdivision (5), now subd. (4)) in 1872).

The language itself could not be plainer. It defines rape to be "an act of sexual intercourse" with a non-spouse, accomplished where the victim is "at the time unconscious of the nature of the act ..."( § 261, subd. (4).) Nor, as we have just seen, can we entertain the slightest doubt that the Legislature well understood how to draft a statute to encompass fraud in the factum ( § 261, subd. (5)) and how to specify certain fraud in the inducement as vitiating consent. ⁴ Moreover, courts of this state have...