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People v. Durango4/2/2003
ed she was "incapable of exercising the judgment required to decide whether to consent to intercourse." (People v. Giardino, supra, 82 Cal.App.4th at p. 464.) Young testified that Briana passed out on the couch and "didn't move from that point on." Briana testified the act of intercourse was already in progress when she woke up. Maggie described Briana's whimpering noise as the kind of noise made by someone just waking up. Of course, if Briana was asleep when intercourse began, defendant hardly could have failed to notice. Defendant himself testified Briana was too drunk to get up from the couch to wipe his ejaculate off her body. Earlier, he saw her vomit on two occasions. He also admitted in a subsequent telephone conversation that he took advantage of her because she was drunk. His explanation of that admission - that he wanted to please Young because he believed Young was on another line - was implausible.
Even if the trial court had instructed the jury on the lesser included offense of battery, it is not reasonably probable that a result more favorable to the defendant would have been reached.
The Trial Court Did Not Commit Prejudicial Error By Instructing With CALJIC No. 17.41.1
The court instructed the jury with CALJIC No. 17.41.1, which essentially tells the jury to report to the court any juror expressing an intention to disregard the law, to refuse to deliberate, or to decide the case on an improper basis. Defendant argues that this instruction impermissibly chills juror deliberations, or violates his right to an independent and impartial decision of each juror. Recently, the California Supreme Court held the instruction does not infringe upon a defendant's federal or state constitutional right to a trial by jury, or his state constitutional right to a unanimous verdict. (People v. Engelman (2002) 28 Cal.4th 436.) However, the Court directed that the instruction not be given in future criminal trials because of its potential to unnecessarily intrude into the deliberative process. (Ibid.) While unwise to give the instruction, in the absence of any evidence establishing prejudice, the mere giving of the instruction does not constitute reversible error. Here, there is no indication the jury asked for any assistance, or that any juror was reported for any conduct covered by the instruction, or that the instruction intruded in any way into the deliberative process. In short, the giving of this instruction was non-prejudicial.
The Court Properly Required Defendant to Register as a Sex Offender Pursuant to Penal Code Section 290, and to Provide Blood and Saliva Samples Pursuant to Penal Code Section 296
Lastly, defendant argues the court erred when it required him to register as a sex offender, and to provide blood and saliva samples. Defendant contends the statutory terms utilized in Penal Code section 290 make it "clear" the Legislature intended to exempt rapes not involving the use of force or violence from the requirements of Penal Code section 290.
Penal Code section 290 provides that persons convicted of certain sex offenses are required to register with local law enforcement within five days of entering any city for either permanent or temporary residence, and specifies those persons required to register under the statute. "Any person who, since, July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, or paragraph (1) of subdivision (a) of S
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