I concur.
Defendant’s contention on appeal as to the insufficiency of evidence that Jane Doe had a mental disorder preventing her from giving legal consent is arguable, although, ultimately I concur in the majority’s opinion. Defendant correctly argues—as the Attorney General concedes—that the trial court erred in failing, sua sponte, to instruct the jury as to the meaning of “legal consent” in Penal Code1 sections 261, subdivision (a)(1), 288a, subdivision (g), and 289, subdivision (b). But that error was not prejudicial.
I. Sufficiency of the Evidence
A. Relevant Legal Principles
The charged crime of rape of an incompetent person consists of “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator .. . [f] [wjhere a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.” (§ 261, subd. (a)(1).) The charged crime of oral copulation of an incompetent person consists of an act of oral copulation where “the victim is at the time *1430incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. .. .” (§ 288a, subd. (g).) The charged crime of sexual penetration of an incompetent person by foreign object consists of an act of sexual penetration when “the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed . . . .” (§ 289; subd. (b).)
“The concept of legal consent, although not often discussed in our case law, was explained as long ago as 1897 and repeated in the same terms in 1977: ‘[LJegal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences.’ (People v. Griffin (1897) 117 Cal. 583, 585 [49 P. 711], overruled on other grounds in People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]; People v. Lewis (1977) 75 Cal.App.3d 513, 519 [142 Cal.Rptr. 218].)” (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620-1621 [1 Cal.Rptr.3d 261];2 see CALCRIM No. 1004 [“Rape of a Disabled Woman”] [“A woman is prevented from legally consenting if she is unable to understand the act, its nature, and possible consequences.” (italics & boldface omitted)]; CALCRIM Nos. 1019 [“Oral Copulation of a Disabled Person”], 1049 [“Sexual Penetration of a Disabled Person”] [“A person is prevented from legally consenting if he or she is unable to understand the act, its nature, and probable consequences.” (italics & boldface omitted)].)3
B. Evidence of Jane’s Incapacity
Prior to testifying before the jury, Jane, who had cerebral palsy, was examined outside of the jury’s presence to determine if she was competent to testify. During the brief examination, she answered most of the questions with one- and two-word answers. She answered other questions with responses that the court reporter described as, “No audible response.” Of these inaudible responses, the trial court observed, “It’s apparent that nonverbal expression is also taking place in addition to the verbal expressions.” The trial court stated, *1431“I think the record should reflect that she is gesturing, certainly with one arm, if not both arms, and her head is swinging around in response to the questions yes or no.”
The trial court found Jane competent to testify, but noted, “It seems—she’s going to be difficult to understand. I understand that. There’s going to be a lot of body movement. There’s going to be a lot of gestures. The jurors are going to be in an excellent position to be able to see what she’s doing and to relate that back to the question. [j[] For the record, again, it’s going to be, in my estimation, a fairly sketchy record as to exactly how it is she’s expressing the various items.” Based on its assessment of Jane’s ability to express herself, the trial court permitted the prosecutor and defense counsel to examine Jane with leading questions during trial.
Jane’s answers to questions during her trial testimony consisted largely of one-word answers and physical gestures. Although Jane testified that she suffered from seizures and thus never slept alone, she did not testify that she had cerebral palsy or provide substantive testimony about any mental disorder or physical disability that would prevent her from giving legal consent. The manner in which Jane testified would allow a reasonable juror to conclude that she had a mental disorder or physical disability that impaired her ability to speak. But the issue is whether that testimony permitted a reasonable juror to conclude that she had a mental disorder or physical disability that rendered her incapable of understanding the acts of sexual intercourse, oral copulation, or digital penetration, or the nature and possible consequences of such acts. (People v. Griffin, supra, 117 Cal. at p. 585; People v. Hillhouse, supra, 109 Cal.App.4th at pp. 1620-1621; People v. Lewis, supra, 75 Cal.App.3d at p. 519.)
Other than Jane, each of the witnesses who testified—Vincent, Detective Selby, defendant’s wife Evelyn, and defendant—testified briefly about Jane’s cerebral palsy or “condition.” None of these witnesses testified that Jane’s cerebral palsy or “condition” rendered her incapable of giving legal consent. None of the witnesses testified that Jane suffered from a mental disorder or a physical disability in addition to cerebral palsy. No witness testified that Jane suffered from a mental disorder or physical disability—whether cerebral palsy or some other condition—that rendered her incapable of understanding the acts of sexual intercourse, oral copulation, or digital penetration, or the nature and possible consequences of such acts. There was no expert testimony.
In his opening statement to the jury, the prosecutor stated that Jane “suffers from cerebral palsy. She has the mental capacity of a second grader.” No evidence was presented, however, that Jane had the mental capacity of a second grader. Prior to the prosecutor’s opening statement, the trial court *1432explained to the jury that an opening statement is not evidence, but an outline of what the prosecutor expected the evidence to show.
The prosecution did not present any evidence as to what cerebral palsy is, whether it affects a person’s cognitive ability, and, most importantly, how it affected Jane’s cognitive ability. (See People v. Mobley (1999) 72 Cal.App.4th 761, 768-771, 777-779 [85 Cal.Rptr.2d 474] [prosecution presented extensive evidence of the victim’s functioning mental state through the testimony of family members and a psychologist who evaluated the victim], disapproved on another ground in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3 [51 Cal.Rptr.3d 718, 146 P.3d 1259].) The only evidence presented to the jury concerning the effect cerebral palsy had on Jane was Vincent’s testimony that it impaired Jane’s ability to speak and walk and Evelyn’s testimony that it impaired Jane’s fine motor skills and caused Jane to have seizures. That Jane received special education, by itself is of no significance. Special education can be given to those with physical disabilities or learning disabilities. In view of this record, the question arises as to whether there is sufficient evidence from which a reasonable juror could infer that Jane lacked the capacity to give legal consent.
The Attorney General argues that element is satisfied where, as here, there is sufficient evidence of a physical disability that prevents a victim from giving legal consent. The Attorney General points to evidence that Jane suffered from cerebral palsy and her ability to speak was limited; she suffered from seizures; she received special education services because of her disability; she testified by means of leading questions and physical gestures, and had difficulty putting more than two words together; and while molesting her, defendant “had to repeatedly ask her if she liked what he was doing.” But, physical impairment is not the equivalent of a lack of capacity to consent.
The Attorney General’s claim with respect to Jane’s limited ability to speak and the manner in which Jane communicated appears to suggest that legal consent referred to in the applicable statutes concerns a victim’s ability to articulate consent. The “legal consent,” according to our Supreme Court, “presupposes an intelligence capable of understanding the [sexual] act, its nature, and possible consequences.” (People v. Griffin, supra, 117 Cal. at p. 585;4 see People v. Hillhouse, supra, 109 Cal.App.4th at pp. 1620-1621; People v. Lewis, supra, 75 Cal.App.3d at p. 519.) CALCRIM follows this definition of legal consent by providing a person is “prevented from legally *1433consenting if [he or] she is unable to understand the act, its nature, and possible consequences.” (CALCRIM Nos. 1004, 1019, boldface omitted; see CALCRIM No. 1049.)
Whether or not the charged offenses concern a physical disability, without regard to mental capacity, it is questionable if there is sufficient evidence of such an incapacitating physical disability here. A person can have the ability to give consent even though he or she responds to questions with one- or two-word answers and with physical gestures. The Attorney General does not explain the asserted connection between seizures and an inability to give consent. The Attorney General also fails to explain how defendant’s repeated inquiries of Jane about whether she enjoyed being sexually assaulted by her grandfather concerns her ability physically to give legal consent.
Regardless of Jane’s physical condition, there is sufficient evidence that Jane lacked the mental capacity to consent. The jury was not instructed specifically to consider demeanor in determining mental capacity. But, in other contexts, demeanor is an appropriate factor to consider when mental conditions are in issue. (See People v. Rogers (2006) 39 Cal.4th 826, 847 [48 Cal.Rptr.3d 1, 141 P.3d 135] [incompetency].) And it has been said that sufficient evidence of the mental incapacity of a sex victim “may be based on the jury’s assessment of the victim’s testimony and demeanor.” (Jackson v. State (Alaska Ct.App. 1995) 890 P.2d 587, 591 [defendant’s conviction for sexual intercourse with female whom defendant knew to be “ ‘mentally incapable’ ” of consent was supportable, despite absence of expert testimony as to woman’s mental condition, because woman’s testimony revealed her incapacity]; see Regan v. Hoffner (E.D.Mich. 2002) 209 F.Supp.2d 703, 711 [as to sex crime victim’s mental capacity, “[t]he jury was able to make this determination on the basis of the complainant’s appearance, demeanor, behavior, and testimony at trial”]; State v. Juarez (1993) 19 Kan.App.2d 37 [861 P.2d 1382, 1385] [“when the capacity of a mentally deficient individual to consent to a sexual act is at issue, the jury is capable of determining whether that individual is able to understand the nature and consequences of engaging in such an act. In reaching its determination, the jury should evaluate the individual’s behavior in normal social intercourse as well as consider any expert testimony concerning the individual’s mental deficiency.”]; State v. Hitch (Minn.Ct.App. 1984) 356 N.W.2d 820, 821 [in connection with issue of capacity to consent to sex, “The jury observed complainant on the witness stand. They listened to her testify, and were entitled to reach their conclusions based on her obviously limited communication skills, her demeanor, and her use of childlike vocabulary.”]; Wilkinson v. People (1929) 86 Colo. 406 [282 P. 257, 259] [“The victim was present in court and testified; the jury had the opportunity of seeing her, and were capable of judging as to her mentality, and determined that she did not have the mental capacity to give legal consent.”]; see also People v. Thompson *1434(2006) 142 Cal.App.4th 1426, 1437 [48 Cal.Rptr.3d 803] [expert testimony not required to determine capacity to give legal consent].)
I recognize that it is difficult to determine the sufficiency of evidence when the issue is based almost entirely on demeanor. The problem is compounded here by the failure of defense counsel to focus on the issue of capacity, but that may have been a tactical decision. And, of course, the prosecution has, as a matter of due process, the burden to prove each element of the offense charged. (People v. Kobrin (1995) 11 Cal.4th 416, 419 [45 Cal.Rptr.2d 895, 903 P.2d 1027].) Moreover, I am concerned that a mere physical impairment might erroneously be equated with a lack of mental capacity.5 Nevertheless, based on the testimony and demeanor of Jane and the evidence about her, and despite my qualms about the sufficiency of the evidence as to an element of the crime charged,6 I concur as to the determination of the sufficiency of the evidence contention.
II. Instructional Error
A. Sua Sponte Duty to Instruct
I agree with the Attorney General that the trial court erred by failing, sua sponte, to define the phrase “legal consent.” “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Middleton (1997) 52 Cal.App.4th 19, 30 [60 Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3 [3 Cal.Rptr.3d 676, 74 P.3d 771].) “That obligation comes into play when a statutory term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988 [129 Cal.Rptr.2d 861, 62 P.3d 97].) “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574 [46 Cal.Rptr.2d 586, 904 P.2d 1197]; accord, People v. Roberge, supra, 29 Cal.4th at p. 988.)
“The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient *1435when the defendant fails to request amplification.” (People v. Poggi (1988) 45 Cal.3d 306, 327 [246 Cal.Rptr. 886, 753 P.2d 1082].) But that general rule does not apply “ ' “when the jury would have difficulty in understanding and applying the statute. Under such circumstances, a court must give additional guidance and clarification on its own motion.” ’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465-466 [98 Cal.Rptr.2d 315].)
Sections 261, subdivision (a)(1), 288a, subdivision (g), and 289, subdivision (b) all include the element that the victim was “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.” (Italics added; see also People v. Mobley, supra, 72 Cal.App.4th at p. 784.) As discussed, the term “legal consent” is understood to refer to “an intelligence capable of understanding the act, its nature, and possible consequences.” (People v. Griffin, supra, 117 Cal. at p. 585; see People v. Hillhouse, supra, 109 Cal.App.4th at pp. 1620-1621; People v. Lewis, supra, 75 Cal.App.3d at p. 519.)
The Attorney General correctly observes as follows: “Here, even though the language of CALJIC No. 10.02 follows section 261, subdivision (a)(1), CALJIC No. 10.11 follows section 288a, subdivision (g), and CALJIC No. 10.32 follows section 289, subdivision (b), it appears that the term ‘legal consent’ is used in a technical sense peculiar to the law. (See People v. Griffin, supra, 117 Cal. at p. 585; People v. Lewis, supra, 75 Cal.App.3d at p. 519.) Thus, the trial court should have given an instruction as to its meaning even in the absence of a request. (People v. Smithey (1999) 20 Cal.4th 936, 980 [86 Cal.Rptr.2d 243, 978 P.2d 1171].)”
Jurors might well understand the meaning of “consent.” But when that word is modified by the word “legal,” a jury of lay people cannot be expected to understand such a term. The use of the modifier “legal” before the word “consent” suggests a meaning different from the ordinary meaning of “consent.” Section 261.6 dealing with when consent is an issue defines the word “consent”—not “legal consent.” “When the Legislature uses different words as part of the same statutory scheme, those words are presumed to have different meanings.” (Romano v. Mercury Ins. Co. (2005) 128 Cal.App.4th 1333, 1343 [27 Cal.Rptr.3d 784].)
In People v. Martinez (2010) 47 Cal.4th 911 [105 Cal.Rptr.3d 131, 224 P.3d 877], the court dealt with a charge of forcible rape under section 261, subdivision (a)(2). The issue was whether defendant and the victim had consensual sex. (People v. Martinez, supra, 47 Cal.4th at p. 954.) The court *1436said, “We need not decide whether this evidence or counsel’s arguments required the trial court to supply CALJIC No. 1.23.l’s definition of consent because any error was harmless beyond a reasonable doubt. [Citation.]” (Id. at p. 955.) The court suggested that the common meaning of consent may not require a further definition, but concluded by saying that there was no prejudice. Thus, the court was dealing with actual consent in the context of a forcible rape—not the capacity to consent, i.e., legal consent. And the court never determined if the failure to further define consent was error or not.
The term “legal consent” requires more elucidation in this case than such terms as “ ‘reckless indifference to human life’ ” (People v. Estrada, supra, 11 Cal.4th at p. 572), “ ‘maturely and meaningfully reflected’ ” (People v. Smithey, supra, 20 Cal.4th at pp. 980-981), “ ‘while the defendant was engaged in’ ” (People v. Poggi, supra, 45 Cal.3d at p. 327, italics omitted), and “recurring access” (People v. Rodriguez (2002) 28 Cal.4th 543, 546-550 [122 Cal.Rptr.2d 348, 49 P.3d 1085]). Those terms, while perhaps not common, do not suggest a meaning that can only be understood by reference to statutes or professional works as does the term “legal consent.” To use the word “legal” suggests a technical meaning. Thus, the trial court’s failure to define further “legal consent” constituted error.
B. Prejudice
“To determine whether the error was prejudicial we must decide what instruction the court should have given.” (People v. Bland (2002) 28 Cal.4th 313, 335 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) Here, the instruction that should have been given would have been something like CALCRIM Nos. 1004, 1019, and 1049, defining the crimes charged here and providing that a victim is “prevented from legally consenting” because of the inability “to understand the act, its nature, and possible consequences.”
In instructing the jury about the charged crimes, the trial court included the element that the “alleged victim was incapable of giving legal consent, because of a mental disorder, or development or physical disability.” The prosecutor argued to the jury that Jane “clearly did not have the capacity to give consent, because she can’t understand the consequences of what was taking place.” And defendant never argued or dealt with Jane’s consent or capacity to consent. Under these circumstances, the instructional error here was not prejudicial under either the federal harmless-beyond-a-reasonable-doubt standard (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; see generally People v. Concha (2010) 182 Cal.App.4th 1072, 1085-1090 [107 Cal.Rptr.3d 272] [instructional error subject to harmless *1437error analysis]; People v. Lewis (2006) 139 Cal.App.4th 874, 885-895 [44 Cal.Rptr.3d 403] [analysis of harmless error rules]) or California’s “reasonably probable” standard (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]).
Accordingly, I would affirm the judgment.
A petition for a rehearing was denied November 8, 2011, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied January 11, 2012, S198006.
All statutory references are to the Penal Code unless otherwise noted.
Other states have evaluated the capacity to consent in varying ways. (See State v. Mosbrucker (2008) 2008 ND 219 [758 N.W.2d 663, 666-667]; Note, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity (1997) 83 Va. L.Rev. 799, 812-817.)
The trial court instructed the jury with California Jury Instructions, Criminal (2008 ed.) (CALJIC). Unlike the Judicial Council of California, Criminal Jury Instructions (2011) (CALCRIM), the CALJIC instructions do not define “legal consent.” The trial court did not instruct the jury on the meaning of legal consent. Defendant contends the trial court’s failure was error. The Attorney General concedes the error, but argues that the error was harmless. I discuss this issue post.
At the time of People v. Griffin, supra, 117 Cal. at page 585, former section 261, subdivision (2) provided that rape includes, “Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.”
See Christy Brown, My Left Foot (1954 Seeker & Warburg; 1998 Harper Collins) (autobiography of Irish author, painter, and poet, which was made into an Academy Award-winning film).
I fully recognize the abhorrence of the acts found by the jury.