People v. Braslaw

• Decision Date: 30 January 2015
• Docket Number: A138325
• Citation: 233 Cal.App.4th 1239,183 Cal.Rptr.3d 575
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven M. BRASLAW, Defendant and Appellant.

233 Cal.App.4th 1239

183 Cal.Rptr.3d 575

The PEOPLE, Plaintiff and Respondent,

v.Steven M. BRASLAW, Defendant and Appellant.

A138325

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

Filed January 30, 2015

As Modified February 17, 2015

Rehearing Denied February 25, 2015

Review Denied April 15, 2015

Certified for Partial Publication.^*

Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene´ A. Chaco´n and Laurence K. Sullivan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Banke, J. Defendant Steven M. Braslaw, following a jury trial, was found guilty of raping an intoxicated person ( Pen.Code, § 261, subd. (a)(3) ).¹ On appeal, he contends the trial court should have given further jury instructions on a defendant's belief in the victim's capacity to consent and should have instructed on attempted rape. He also claims his counsel was ineffective in failing to object to alleged prosecutorial misconduct. In the published portion of this decision, we conclude there was no instructional error. In the unpublished portion, we reject the claim of ineffective assistance. We therefore affirm the judgment.

I. BACKGROUND

Defendant and Jane Doe² were classmates at a vocational school in St. Helena. Doe lived in a school dormitory. Defendant lived off-campus in a house notorious for wild parties.

In January 2012, Doe and her former roommate, M.H., attended a party at defendant's house. Doe became "really drunk." One moment she was hanging out with friends; the next thing she recalled was being unclothed in a shower.

M.H. testified Doe, while playing a drinking game, had "hit a wall," sat down and stopped talking, M.H.'s boyfriend took Doe upstairs so she could sleep. Doe then vomited, and M.H., the boyfriend, and defendant assisted with cleanup. M.H. and her boyfriend got Doe undressed and into the shower. Doe, according to M.H. was "completely gone"—just dead weight, not really aware of anything. Defendant was also drunk, but his level of intoxication was not comparable to Doe's, as defendant was coherent and functional.

While in the shower, Doe saw M.H. and the boyfriend leave the bathroom, and saw that defendant had entered. Defendant, also unclothed, came into the shower and asked if it was "gonna be awkward." Doe recalled saying "no" and being confused about what defendant intended to do, but thought he might help her bathe. She remembered nothing else in detail about what happened in the shower. Afterwards, M.H. dressed Doe in a sweater, nothing more, and placed her in a spare trundle bed in the boyfriend's bedroom. Doe had no recollection of being dressed in the sweater or placed in the bed.

M.H. and her boyfriend then retired to his bed. Although the lights in the bedroom were out, M.H. saw defendant enter the bedroom and "collapse" or "flop" (not crawl) onto Doe's bed. M.H. asked her boyfriend to get a condom. Overhearing, defendant asked, in what M.H. perceived as a joking tone, if he could have one too. The boyfriend got out of bed, asked if Doe and defendant were okay, and returned to bed with a condom. M.H. and her boyfriend began having sex when, "[a] short amount of time" later, M.H. heard Doe scream "no, no, no." M.H. got up and saw defendant "jump" back, heard him say something like "okay, okay, I'll stop," and saw him run out of the room.

Doe had no recollection of anything going on in the bedroom until "looking up" and seeing defendant "on top of me." He was "moving back and forth," and she felt his penis inside her vagina. She recalls "crying and just like—he left."

Doe did not, immediately following the encounter with defendant, discuss being penetrated—for example, penetration did not come up when she subsequently spoke to M.H., or when she phoned her then fiance´e, who is now her domestic partner. But the next day, when Doe visited a sexual assault nurse examiner for a sexual assault response team (SART) exam, she told the nurse she had been penetrated. The nurse found evidence of abrasions in Doe's posterior fourchette that were consistent with a "mounting injury," but also consistent with Doe having certain types of intercourse with her fiance´e. The nurse also noted Doe was experiencing pain from urination.

In September 2012, the district attorney filed an information charging defendant with rape of an intoxicated person ( § 261, subd. (a)(3) ) and attempted rape of an unconscious person ( § 261, subd. (a)(4) ). On the district attorney's motion, the trial court dismissed the attempted rape charge, and the remaining charge went to the jury. Defendant was convicted, and the trial court sentenced him to three years in state prison.

II. DISCUSSION

Defendant raises three contentions on appeal: (1) the trial court should have instructed the jury a defendant is not guilty of rape of an intoxicated person if he reasonably believed the person had the capacity to consent; (2) the trial court should have instructed the jury on attempted rape of an intoxicated person; (3) and defendant's counsel should have objected to the prosecutor's assertion in closing argument that defendant was no longer presumed innocent.

A. Reasonable Belief in Capacity to Consent

The trial court instructed the jury with a version of CALCRIM No. 1002, which sets forth the elements of rape of an intoxicated person.

In reading the instruction, the trial court told the jury such rape has the following elements: (1) defendant had sexual intercourse with a person; (2) defendant and the person were not married; (3) the effects of intoxicants prevented the person from resisting; and (4) "defendant knew or reasonably should have known that the effect of an intoxicating substance prevented [his alleged victim] from resisting." (See § 261, subd. (a)(3) ["Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator [¶] ... [¶] (3) [w]here [the] person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused."].) The court further instructed that an intoxicating substance prevents resistance when it prevents the giving of legal consent—that is, "consent given freely and voluntarily by someone who knows the nature of the act involved."

Over defendant's objection, the trial court omitted a bracketed, optional portion of CALCRIM No. 1002, which reads:

The defendant is not guilty of this crime if he actually and reasonably believed that the [alleged victim] was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the [alleged victim] was capable of consenting. If the People have not met this burden, you must find the defendant not guilty. ( CALCRIM No. 1002.)

The trial court found the evidence insufficient to support instructing the jury on defendant's reasonable-belief-in-the-capacity-to-consent theory.

We generally review a trial court's denial of a requested instruction as a matter of law. ( People v. Larsen (2012) 205 Cal.App.4th 810, 824, 140 Cal.Rptr.3d 762.)

The trial court did not err in refusing to give the optional language of the instruction. The key evidence defendant marshals in support of his reasonable-belief-in-the-capacity-to-consent theory does not show a reasonable belief in Doe's capacity to consent. Defendant recounts how Doe, who was already so drunk she had vomited and had "hit a wall," had been put into the bathroom shower by her friends to cleanup. After the friends left, defendant, naked himself, entered the shower and asked if it was "gonna be awkward," and Doe responded "no." Defendant contends this exchange was sufficient for him to reasonably believe Doe was giving consent to intercourse sometime later that night.

Even apart from the fact such a construction of the shower exchange is manifestly unreasonable, whether defendant believed Doe was consenting to intercourse sometime later in the evening is irrelevant if he did not also reasonably believe she was capable of giving consent to intercourse despite her intoxication. It is a reasonable belief in the victim's capacity to consent, not the consent, that provides a defense to rape of an intoxicated person. (See § 261, subd. (a)(3) ; CALCRIM No. 1002 ; People v. Giardino (2000) 82 Cal.App.4th 454, 460, 98 Cal.Rptr.2d 315 ["if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape"]; id. at p. 471, 98 Cal.Rptr.2d 315 ["the actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant, " (italics added) ]; cf. People v. Dancy (2002) 102 Cal.App.4th 21, 36, 124 Cal.Rptr.2d 898 [as to rape of an unconscious person who cannot resist, consent (or even belief in advance consent) is irrelevant if defendant knows the victim is unconscious].) Defendant points to no evidence regarding a belief in Doe's capacity to consent.

Even if there was an evidentiary basis for giving the additional language regarding actual and reasonable belief in the capacity to consent, the trial court's decision to omit it was not prejudicial error in light of the adequacy of the instructions it did give. ( People v. Ramirez (2006) 143 Cal.App.4th 1512, 1529, 50 Cal.Rptr.3d 110 ( Ramirez ).) In Ramirez, as here, the defendant faced a charge of rape of an intoxicated person. The jury was similarly instructed on the elements of the crime, including the fourth element, which requires proof the defendant "knew, or reasonably should have known, that [the alleged victim ] was unable to resist due...