Filed 4/11/22 P. v. Paniague CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A164263
v.
RAMON PENA PANIAGUE, (Fresno County
Super. Ct. No. F19906503)
Defendant and Appellant.
Ramon Pena Paniague was convicted of felony oral copulation of an
unconscious person and misdemeanor sexual battery after he entered his
sleeping 19-year-old stepdaughter’s bedroom and sexually assaulted her. He
contends the trial court erred when it failed to instruct the jury on mistake of
fact as to the oral copulation count, as to Paniague’s good character for
appropriate sexual behavior, and on attempted oral copulation of an
unconscious person as a lesser offense of the oral copulation count. His
contentions are meritless, so we affirm.
BACKGROUND
Paniague and Rosario P. moved in together in 2012 or 2013 and
married in 2014. Rosario had four children from prior relationships: Estrella,
1
Brisa, Jesus, and Josue.1 She later had another daughter with Paniague.
Estrella, the oldest, was about 12 years old when Paniague started living
with the family.
Estrella described her relationship with Paniague as “good” and
“respectful” but not close. They argued on rare occasions, but Paniague was
never verbally abusive toward her.
In November 2017, when Estrella was 19, she and her siblings lived in
a three-bedroom house with Paniague, Rosario, her grandmother, and her
uncle Ignacio P.2 According to Estrella, the two youngest children slept in a
bedroom at the back of the house with Rosario and Paniague; Brisa and Jesus
would sometimes sleep in Ignacio’s bedroom and sometimes in the living
room. Estrella usually slept separately in a bedroom at the front of the
house, but Jesus kept his belongings in that room and sometimes also slept
there. Estrella’s bedroom had bunk beds; Estrella slept on the bottom bunk.
To get into her bed, she would have to duck down to avoid the rails from the
top.
On November 10, 2017, Paniague started drinking beer at work around
10:00 a.m. He and Rosario returned home from work around 3:00 p.m. At
some point that afternoon Paniague went with Estrella, Brisa, and their
cousin Angel to a liquor store to buy more beer, but otherwise he stayed
outside by himself drinking until around 7:30 p.m.
Rosario went to bed with the two youngest children around 8:30 p.m.
Estrella, Angel, Jesus, and Brisa were playing Monopoly in the living room.
1We will refer to the family members by their first names to preserve
their confidentiality and avoid confusion. We intend no disrespect.
2 Estrella’s grandmother was away when the relevant events occurred.
2
Paniague joined them around 9:00 or 10:00. He appeared to be intoxicated
and was “getting to the overly intoxicated” point.
Estrella’s boyfriend, Antonio, came by the house at 11:00 p.m., after he
finished work. Estrella was not allowed to have men in the house at night, so
she met him in the front yard; they talked and had sex in his car. Estrella
stayed with Antonio until she went inside the house around 2:00 a.m.
Estrella got in bed but stayed awake for a while. At some point her brother
Jesus came into her room and asked if she wanted him to turn off her light.
She did, so he turned off the bedroom and hallway lights and left Estrella’s
door slightly open.
Estrella was wearing long pajama pants, underwear, and a tank top
and was under a sheet and blanket. She is a deep sleeper and has to set
multiple alarms to get herself up in the morning. Around 3:00 a.m. Estrella
woke up to feel “a large presence over me,” with its weight on her body. She
explained at trial, “I feel like I was in and out of sleep a lot during that time.
I’m not sure if it was my mind trying to protect me. But eventually, I did
wake up fully, um, when I heard a slight noise that was like outside of the
room” and felt a person, like a heavy weight, on top of her, and the person’s
hands and mouth on her breast. Estrella saw a dark figure and
automatically assumed it was her boyfriend Antonio. She pushed him, and
he moved to the end of the bed.
The noise Estrella had heard from outside the room turned out to be
her mother, who was looking for Paniague. Rosario had woken up around
3:00 a.m. and discovered Paniague was not in bed with her, so she went
looking for him. She turned on the kitchen light and searched inside and
outside of the house without finding him. Estrella’s door was open, and there
3
was enough light from the kitchen to see into her room a little bit. Estrella
was in bed; Rosario did not see anyone else in the room.
From her bed, Estrella saw Rosario peeking out of the front door3 and
then briefly felt her standing nearby but did not move or speak because she
still thought Antonio was in her room and did not want to get in trouble.
Once Rosario moved away Estrella started to realize the person in her
bedroom could not be Antonio, who could not have gotten past the family’s
dogs. She then checked her phone and saw that Antonio had texted her “good
night and whatnot.”
Estrella pointed the light from her phone at the intruder and saw it
was Paniague on his knees on the floor by the head of her bed. Shocked,
Estrella told him to get out. Paniague asked, “Estrella, are you sure?” She
responded, “I need you to get out now.” Paniague stood up and left.
Estrella’s tank top was pulled halfway down her breasts. Her pajama
pants and underwear were pulled down to below her knees. She thought she
had been raped because her clothes were off, and she “could feel something
had been like inside” of her, probably a penis. She felt wet inside and outside
of her vagina.
Rosario had by then returned to her own bedroom. She called
Paniague’s phone and heard it ring in the kitchen. She went to look for it
and saw Paniague emerging from Estrella’s bedroom. Rosario asked
Paniague what he was doing there. He said he did not know.
Estrella phoned Antonio but was unable to reach him. She then called
her maternal aunt, Ana, who lived a few minutes away. Estrella was crying
so hard she had difficulty getting the words out, but eventually she told her
3 The door to Estrella’s bedroom was now fully open.
4
aunt Paniague had raped her. Ana said she was coming over and that she
was going to call Ignacio.
When Ignacio got Ana’s call, he got up and found Estrella distraught,
crying, and hyperventilating. She said Paniague had raped her. Rosario
came in and asked Estrella why Paniague had been in her room. Estrella
told her he had come into her room and touched her. Ignacio called the
police.
Rosario confronted Paniague and asked if what Estrella said was true.
Paniague was very drunk. He said it was true and that “he made a mistake
with the rooms” and thought Estrella was Rosario. Rosario told him he could
not have made that mistake because their bedroom was on the opposite side
of the house. She could not believe what had happened. She pushed
Paniague and told him to leave. Police arrested Paniague shortly before 4:00
a.m., less than half a mile from the house. He smelled mildly of alcohol but
showed no obvious signs of intoxication.
Estrella gave a police statement and around 8:30 a.m. underwent a
sexual assault examination. Swabs were taken from her lips, neck, and
vagina. The swab from her lips contained a mixture of three or more people
and was not suitable for comparison. The swab from her neck contained a
mixture of two or more people; the major profile belonged to Paniague, and
the minor profile belonged to Antonio. The vaginal swabs were consistent
with a mixture of Estrella and Antonio. A penile swab from Paniague
contained DNA that was not consistent with Estrella or Antonio, while other
swabs contained only DNA from Paniague and an uninterpretable minor
donor.
Detectives interviewed Paniague around 6:00 a.m. on November 11. A
video recording of the interview was played for the jury. Paniague said he
5
had three beers the previous day to relax and, after initially denying drug
use, said a friend had given him some powder, perhaps “crystal,” which he
used that afternoon. Rosario and Ignacio were already in bed when he went
inside and joined the children around 8:00 p.m.
Paniague eventually fell asleep on a couch. When he woke up
sometime after 10:00 everything was dark. Paniague got confused and “made
a mistake.” Instead of going into his and Rosario’s room, he went into
Estrella’s room, lay down on the bed with her and, thinking she was Rosario,
kissed her on the mouth. “And then [he] remembered . . . she wasn’t my wife.
And [he] told her [he was] sorry.”
Paniague initially denied doing anything else, but, after the detectives
said they had collected his DNA from Estrella, he admitted he had taken her
clothes off and kissed her vagina and breasts. Asked whether Estrella was
asleep or awake, Paniague first said she was asleep, then that he didn’t
know, then that she “was awake” or that she “woke up,” then that “[s]he was
asleep.” He said Estrella helped him remove her clothing, kissed him back
and said she liked it when he kissed her vagina, but he thought that she
believed he was someone else. He repeatedly denied having intercourse with
her. Paniague thought he was in his own room with Rosario until Estrella
called him by Antonio’s name; at that point he realized she was not his wife.
He admitted that Estrella was asleep when he kissed her vagina and breasts.
Defense counsel argued to the jury that the limited DNA evidence
failed to prove the charged offenses; that Estrella was not asleep, but, rather,
did not resist because she thought Paniague was Antonio; that Paniague
thought Estrella was Rosario; and that he did not restrain her.
6
The jury found Paniague guilty of oral copulation of an unconscious
person (Pen. Code,4 § 287, subd. (f), Count 1), acquitted him of sexual battery
by restraint (§ 243.4, subd. (a), Count 2), and convicted him of the Count 2
lesser included offense of sexual battery, a misdemeanor. (§ 243.4,
subd. (e)(1).) The court imposed the midterm of six years in prison on
Count 1 and “credit for time served” on Count 2,5 with 1,580 total days of
custody credit. This appeal is timely.
DISCUSSION
I. Mistake of Fact Instruction
Paniague contends the court’s refusal to instruct the jury on the defense of
mistake of fact as to copulation of an unconscious person (Count 1) violated
his rights to due process and to present a complete defense. We disagree.
A. Background
Paniague’s list of requested jury instructions included CALCRIM
No. 3406 on mistake of fact.6 After the parties rested, the court provided
4 Unless otherwise noted, further statutory citations are to the Penal
Code.
We note that while the court ordered “credit for time served” on
5
Count 2, the accompanying minute order specifies “364 Days at Fresno
County Jail.” A misdemeanor violation of § 243.4 is punishable “by
imprisonment in a county jail not exceeding six months . . . .” Thus, the
364-day sentence as written in the minute order is impermissible. However,
any error is harmless, as Paniague was awarded 1,580 days of custody credit
(790 actual), which exceeded the misdemeanor term and was appropriately
applied to his felony sentence.
CALCRIM No. 3406 provides: “The defendant is not guilty of
6
___________ if (he/she) did not have the intent or mental
state required to commit the crime because (he/she) [reasonably] did not
know a fact or [reasonably and] mistakenly believed a fact.
7
counsel with the instructions it intended to give and conferred with them off
the record. The court’s proposed instructions included CALCRIM No. 3406 as
to sexual battery (Count 2), but not as to oral copulation of an unconscious
person (Count 1).
After the off-record conference, the court and counsel finalized the
instructions on the record. The court asked defense counsel, “[A]re there any
instructions that you had asked for and they’re not included, meaning they’re
excluded, are they deemed withdrawn, if you had asked for it and it’s not
included?” Defense counsel responded, “Yes. The only one is the reference to
good character, which is 350.” After some discussion on the good character
instruction, the court asked defense counsel whether the remaining
instructions she had requested but were omitted from the final instructions
were deemed withdrawn. She responded, “Yes.” The court then confirmed,
without comment or objection from counsel, that “[t]he instructions that are
not part of the final package, that each side is withdrawing it.” Later,
immediately before instructing the jury, the court again asked defense
counsel if she had any further comment on the instructions. She responded
that she did not.
If the defendant’s conduct would have been lawful under the facts as
(he/she) [reasonably] believed them to be, (he/she) did not commit __________
.
If you find that the defendant believed that __________ [and if you find that belief was reasonable], (he/she) did not
have the specific intent or mental state required for __________ .
If you have a reasonable doubt about whether the defendant had the
specific intent or mental state required for __________ , you
must find (him/her) not guilty of (that crime/those crimes).”
8
The court instructed the jury on Count 1 as follows: “The defendant is
charged in Count 1 with oral copulation of a person who was unconscious of
the nature of the act. To prove that the defendant is guilty of this crime, the
People must prove that: One, the defendant committed an act of oral
copulation with another person; two, the other person was unable to resist
because she was unconscious of the nature of the act; and three, the
defendant knew that the other person was unable to resist because she was
unconscious of the nature of the act. [¶] . . . [¶] A person is unconscious of
the nature of the act if she’s unconscious or asleep or not aware that the act is
occurring.”
On Count 2, sexual battery by restraint, the court instructed the jury
on mistake of fact with CALCRIM No. 3406, as follows: “The defendant is not
guilty of Count 2 if he did not have the intent and/or mental state required to
commit the crime because he did not know a fact or mistakenly believed a
fact. If the defendant’s conduct would have been lawful under the facts as he
believed them to be, he did not commit Count 2. [¶] If you find that the
defendant believed that he was in his and Rosario’s bedroom and/or he
believed Estrella to be Rosario, he did not have the specific intent or mental
state required for Count 2, sexual battery by restraint or the lesser included
crime of sexual battery without restraint.”7
B. Analysis
Preliminarily, the alleged instructional error was forfeited for appeal.
While Paniague requested CALCRIM No. 3406 on mistake of fact, his list of
requested instructions did not indicate whether the request was in relation to
No issue is raised, and we express no opinion, as to the
7
appropriateness of this instruction.
9
Count 1, Count 2, or both. Subsequently, after the jury instruction
conference, he raised no objection to the court’s omission of the instruction as
to Count 1; to the contrary, defense counsel affirmed to the court that
Paniague had withdrawn any requested instructions that were not included
in its final packet. He therefore forfeited the issue for appeal. (People v.
Bolin (1998) 18 Cal.4th 297, 328.)
Paniague disagrees, asserting the court was required to instruct sua
sponte on mistake of fact as to Count 1. As we understand the current
argument, Paniague claims he mistakenly thought he was in bed with
Rosario, not Estrella. From that premise he asserts the jury could have
found him not guilty of the oral copulation of an unconscious person because
there was no evidence his wife (unlike Estrella) was a heavy sleeper;
therefore, Paniague could reasonably have expected her to have woken up
when he initiated sexual contact.8 Paniague thus argues his alleged
mistaken belief he was in Rosario’s bed negated the knowledge requirement
of Count 1, e.g., knowledge that the victim, whoever she was, was
8 Paniague articulates a different theory in his reply brief, where he
asserts his mistaken belief that Estrella was Rosario supported an
affirmative defense to Count 1 because he could reasonably believe his wife
had generally consented to sexual activity, whether or not she was
unconscious. We need not address this assertion because theories raised for
the first time in an appellant’s reply brief are forfeited. (Golden Door
Properties, LLC v. County of San Diego 2020) 50 Cal.App.5th 467, 559.) In
any event, this argument fails because “neither a woman’s actual ‘advance
consent’ nor a man’s belief in ‘advance consent’ could possibly eliminate the
wrongfulness of the man’s conduct in knowingly depriving the woman of her
freedom of choice both at the initiation of and during sexual intercourse.”
(People v. Dancy (2002) 102 Cal.App.4th 21, 37 (Dancy).) While Dancy
involved rape of an unconscious person, rather than oral copulation, its
reasoning applies equally here.
10
unconscious. (§ 287, subd. (f); see People v. Wiidanen (2011) 201 Cal.App.4th
526, 531.) Not so. A trial court has no sua sponte obligation to instruct the
jury on a defense theory that, like this one, would negate an element of a
charged offense. (People v. Lawson (2013) 215 Cal.App.4th 108, 111, 118;
People v. Anderson (2011) 51 Cal.4th 989, 996.)
Moreover, even if mistake of fact qualified as a separate affirmative
defense,9 the court was only required to give the instruction sua sponte if it
was supported by substantial evidence. (People v. Salas (2006) 37 Cal.4th
967, 982.) “Substantial evidence is evidence from which a jury could conclude
beyond a reasonable doubt that the lesser offense was committed.
[Citations.] Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.” (People v. Simon (2016)
1 Cal.5th 98, 132.) To assess a record for substantial evidence we must
review the whole record to determine whether it contains evidence that is
reasonable, credible, and of solid value. (People v. Cuevas (1995) 12 Cal.4th
252, 260.
The record here lacks substantial evidence of mistake of fact as to
Paniague’s argued belief that the victim was not unconscious at the time of
the sexual conduct. At most, Paniague equivocated to detectives about his
9 To be clear, here, as in People v. Lawson (2013) 215 Cal.App.4th 108,
118–119, the defense of mistake of fact could only have served to negate the
mental state element of the crime. In re Jennings (2004) 34 Cal.4th 254, on
which Paniague relies, teaches that while a mistake of fact defense is
generally only available if the mistake disproves an element of the offense, it
can also serve as an affirmative defense to a category of strict liability “public
welfare offenses” that do not incorporate a criminal intent element, such as
bigamy or, as, in Jennings, purchasing alcohol for a person under age 21. (Id.
at pp. 276–281.) Oral copulation of an unconscious person is not one of those
“public welfare offenses,” so Jennings is inapposite.
11
knowledge of the victim’s status, first saying he did not know if she was
asleep or awake and then that she was awake, but ultimately admitting she
was asleep and that, to the extent she was aware of what he was doing, he
believed Estrella thought he was Antonio. Estrella testified unequivocally
that Paniague was on top of her with his hand and mouth on her breasts
when she awoke with her pants down and a wet feeling in and on her vagina.
The court was not required to instruct on mistake of fact on this record.
II. Good Character Instruction
Next, Paniague contends the trial court erred in refusing to instruct the
jury on his good character for sexually appropriate behavior. He asserts the
instruction was required because evidence of his prior sexually appropriate
behavior toward Estrella and the other children supported his claim that he
mistakenly believed he was sexually touching his wife rather than Estrella.
A. Background
Estrella testified that Paniague had never acted inappropriately
toward her before the night in question. Ignacio testified he had never seen
Paniague act in a sexually inappropriate manner with Estrella, and Rosario
testified she had never seen him behave inappropriately with any of her
children. Based on this testimony, Paniague asked the court to instruct the
jury with CALCRIM No. 35010 as to his character trait of behaving
10 CALCRIM No. 350 provides: “You have heard character testimony
that the defendant (is a __________ person/ [or] has a good reputation for __________ in the community where
(he/she) lives or works).
Evidence of the defendant’s character for __________ can by itself create a reasonable doubt
12
“appropriately towards Estrella and the other children.” The court declined
to give the instruction but observed that defense counsel could argue to the
jury that neither Estrella, Rosario, nor Ignacio had previously accused
Paniague of sexually inappropriate behavior with Estrella or the other
children.
B. Analysis
Evidence Code section 1101, subdivision (a) states the general rule that
“evidence of a person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion.” Evidence Code section 1102 provides an
exception to this general rule: “In a criminal action, evidence of the
defendant’s character or a trait of his character in the form of an opinion or
evidence of his reputation is not made inadmissible by Section 1101 if such
evidence is: [¶] (a) Offered by the defendant to prove his conduct in
conformity with such character or trait . . . .” “This exception allows a
criminal defendant to introduce evidence, either by opinion or reputation, of
his character or a trait of his character that is ‘relevant to the charge made
against him.’ [Citation.] Such evidence is relevant if it is inconsistent with
[whether the defendant committed __________ ]. However,
evidence of the defendant’s good character may be countered by evidence of
(his/her) bad character for the same trait. You must decide the meaning and
importance of the character evidence. [If the defendant’s character for
certain traits has not been discussed among those who know (him/her), you
may assume that (his/her) character for those traits is good.]
You may take that testimony into consideration along with all the other
evidence in deciding whether the People have proved that the defendant is
guilty beyond a reasonable doubt.”
13
the offense charged—e.g., honesty, when the charge is theft—and hence may
support an inference that the defendant is unlikely to have committed the
offense. In appropriate cases, such circumstantial evidence ‘may be enough
to raise a reasonable doubt in the mind of the trier of fact concerning the
defendant’s guilt.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1305
(McAlpin).)
In McAlpin, supra, 53 Cal.3d at pp. 1306–1309, on which Paniague
principally relies, the Supreme Court applied Evidence Code section 1102 to
hold that lay opinion testimony is admissible to establish a defendant’s
character for not being a sexual deviant if the opinion is: (1) inconsistent
with the charged offense; and (2) based on the witness’s personal observation.
Applying this rule, the court concluded the trial court erred in
excluding opinion testimony that, based on the two lay witnesses’
observations of the defendant’s conduct with their daughters over time, the
defendant was “not a person given to lewd conduct with children.” (McAlpin,
supra, 53 Cal.3d at p. 1309.) The court explained, “[T]he proffered testimony
was intended to prove the relevant character trait not by specific acts of
‘nonmolestation,’ but by the witnesses’ opinion of that trait based on their
long-term observation of defendant’s course of consistently normal behavior
with their children.” (Id. at pp. 1309–1310, italics added.)
This case presents a critically different situation: the evidence
Paniague asserts supported the instruction was not authorized character
evidence in the form of opinion or reputation. In contrast to McAlpin,
Paniague did not seek to introduce character evidence11 and did not ask
Paniague did not move in limine for the admission of potentially
11
admissible character evidence or initially seek related jury instructions.
14
Estrella, Rosario, or Ignacio to opine about his character or reputation for
sexually appropriate behavior. Instead, their testimony was confined to their
observations of “specific acts of ‘nonmolestation,’ ” which McAlpin makes
clear could not be used as proof of a character trait. (McAlpin, supra,
53 Cal.3d at pp. 1309–1310 and fn. 14.) The evidence presented thus did not
support the requested instruction on character evidence.
For the first time in his reply brief, Paniague argues CALCRIM No. 350
was nonetheless required because this “specific acts” testimony was
admissible under Evidence Code section 1101, subdivision (b)12 to support his
mistake of fact defense. But this argument is not properly before us. As we
have already noted at page 10, footnote 8, ante, “arguments raised for the
first time in a reply brief on appeal will not be considered, absent good cause
for failure to present them earlier.” (Nordstrom Com. Cases (2010)
186 Cal.App.4th 576, 583.)
Even so, had Paniague preserved this argument for appeal, it is
unpersuasive. Evidence Code section 1101, subdivision (b) permits evidence
the defendant committed a “crime, civil wrong or other act” as proof of a
material fact, such as motive, intent, or knowledge, “other than [the
defendant’s] disposition to commit such an act.” (Evid. Code, § 1101,
subd. (b), italics added; see People v. Villatoro (2012) 54 Cal.4th 1152, 1159.)
Paniague’s new theory that his family’s prior observation testimony was
12 “Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did
not reasonably and in good faith believe that the victim consented) other than
his or her disposition to commit such an act. (Evid. Code, § 1101, subd. (b).)
15
relevant to prove he mistook Estrella for his wife relies on the related
inference that he does not have the disposition or character to molest his
family’s children, including Estrella. But Evidence Code section 1101,
subdivision (b) explicitly bars the use of “specific acts of ‘nonmolestation’ ”
(McAlpin, supra, 53 Cal.3d at p. 1309) for that purpose. In the absence of
admissible character evidence, the court properly declined to instruct the jury
with CALCRIM No. 350.
III. Instruction on Attempted Oral Copulation as Lesser Included Offense
Although he did not request an instruction on attempted oral
copulation of an unconscious person, Paniague contends the trial court had a
sua sponte duty to instruct the jury on the attempt offense because (1) it is a
lesser included offense of oral copulation of an unconscious person; and
(2) there was substantial evidence to support the instruction. Not so.
Attempt is not a lesser included offense of the completed offense, so the court
had no sua sponte instructional duty. (People v. Braslaw (2015)
233 Cal.App.4th 1239, 1247 (Braslaw) [no sua sponte duty to instruct on
attempt unless it is a lesser included offense and supported by substantial
evidence].)
Braslaw explains the nonintuitive aspect of the relationship between
attempts and completed crimes: “[W]hile it might seem an attempt would
naturally be a lesser included offense, this is not necessarily so. Attempts are
only lesser included offenses if the sole distinction between the attempt and
the completed offense is completion of the act constituting the crime.
[Citation.] If the attempt requires a heightened mental state, as is the case
with attempts of many general intent crimes, the attempt requires proof of an
additional element and is therefore not a lesser included offense. [Citations.]
[‘[W]hen the completed offense is a general intent crime, an attempt to
16
commit the offense does not meet the definition of a lesser included offense
under the elements test because the attempted offense includes a specific
intent element not included in the complete offense’.].” (Braslaw, supra,
233 Cal.App.4th at p. 1248.)
Applying this framework, Braslaw holds that attempted rape of an
intoxicated person is not a lesser included offense of rape of an intoxicated
person. “Rape of an intoxicated person (§ 261, subd. (a)(3))[13] is a general
intent crime. [Citation.] This is so even though there is an additional
knowledge requirement—that ‘the accused either must have known or
reasonably should have known of the victim’s particular condition that
precluded consent.’ [Citations.] In other words, the general intent and
knowledge requirements are separate elements, and the latter does not
transform rape of an intoxicated person into a specific intent crime.
[Citation.] Thus, rape of an intoxicated person requires both (1) intent to
engage in sexual intercourse and (2) either actual knowledge of the
intoxicated victim’s capacity or negligent belief the victim had the capacity to
consent.” (Braslaw, supra, 233 Cal.App.4th at pp. 1248–1249.)
In contrast, attempted rape of an intoxicated person requires an
additional element. “Attempted rape, in accord with section 21a governing
attempts, ‘has two elements: (1) the specific intent to commit the crime of
rape and (2) a direct, although ineffectual, act toward its commission.’
[Citation.] The mere intent to have sexual contact is not a sufficiently
culpable mental state for attempted rape.” (Braslaw, supra, 233 Cal.App.4th
13Pursuant to section 261, subdivision (a)(3), an act of sexual
intercourse is rape “[i]f a person is prevented from resisting by an
intoxicating or anesthetic substance, or a controlled substance, and this
condition was known, or reasonably should have been known by the accused.”
17
at p. 1249, italics added.) Thus, to be guilty of attempted rape of an
intoxicated person, a defendant must not only intend to have intercourse with
a person he knows to be intoxicated; he must intend to have intercourse with
a person incapacitated by intoxication.14 (Id. at p. 1249.) Because the
attempt offense imposes an additional mental state requirement concerning
unconsciousness or intoxication, it is not a lesser included offense of the
completed offense, and there is no sua sponte instruction obligation. (Id. at
p. 1252; see People v. Mendoza (2015) 240 Cal.App.4th 72, 83 [attempted oral
copulation with a child 10 years of age or younger is a specific intent crime
and thus not a lesser included offense of the completed general intent
offense].)
Braslaw’s reasoning is dispositive here. The elements of oral
copulation of an unconscious person are: (1) the defendant committed an act
of oral copulation; (2) the other person was unable to resist because he or she
was unconscious of the nature of the act; and (3) the defendant knew the
other person was unable to resist because he or she was unconscious of the
14 This difference, while somewhat enigmatic, is ensconced in our
jurisprudence. In People v. Fontenot (2019) 8 Cal.5th 57, 66, the Supreme
Court recently elaborated on the “ ‘notoriously difficult . . . to define and
apply’ ” distinction between general and specific intent. Fontenot explains
that a defendant harbors the intent required for a completed general intent
offense if he or she intentionally does the act that constitutes the crime
without regard to his or her purpose for doing it. In contrast, to prove the
specific intent required for an attempt offense the prosecution must also
prove a design or purpose of achieving “a particular—usually harmful—end,”
or, put differently, a mental state that “entails an intent to cause the
resulting harm.” Intent offenses therefore “call[] for a more searching inquiry
into the defendant’s mental state,” which involves consideration of the
difference between “merely committing a physical act intentionally” and
“engaging in goal-oriented, purposive thinking.” Id. at p. 66–67.)
18
nature of the act. (People v. Wiidanen, supra, 201 Cal.App.4th at p. 531;
§ 287, subd. (f).) It is a general intent crime (People v. Molano (2019)
7 Cal.5th 620, 667), and, just as in Braslaw, the knowledge requirement does
not transform it into a specific intent offense. (Braslaw, supra,
233 Cal.App.4th at pp. 1248–1249; see Dancy, supra, 102 Cal.App.4th at p. 36
[“The act prohibited by Penal Code section 261, subdivision (a)(4) is the act of
sexual intercourse with an unconscious person. The statute also contains an
explicit mental state requirement that precludes conviction without proof
that the perpetrator knew of the victim’s unconsciousness. The requisite
general criminal intent is simply the intent to have sexual intercourse with
an unconscious victim”].)
Paniague disagrees. He relies on Dancy, supra, 102 Cal.App.4th at
pages 35–38, to argue rape of an unconscious person requires that the
offender “not only know the person is unconscious, but must also have the
wrongful intent to have intercourse with him or her while he or she remains
unconscious.” By parity of reasoning, he maintains, oral copulation of an
unconscious person must also require the specific, wrongful intent to commit
the offense. We disagree. Dancy expressly states the requisite intent is the
general intent to have sexual intercourse with an unconscious victim; the
characterization of that intent as “wrongful” because an unconscious victim is
incapable of consenting does not convert the offense into one of specific
intent. (Id. at p. 36; see People v. Fontenot, supra, 8 Cal.5th at pp. 66–67 and
p. 18, fn. 14, ante [specific intent required for attempt involves goal-oriented,
purposive thinking and intent to cause resulting harm].) Moreover, although
Dancy, which predates Braslaw and Mendoza and therefore lacks the benefit
of their reasoning, refers to “wrongful” intent, it did so in refuting the
appellant’s claim that the crime is a strict liability offense unless lack of
19
consent is an element (102 Cal.App.4th at p. 37); Dancy does not address the
requisite mens rea of an attempt as a lesser included offense of the completed
offense.15
Consistent with these authorities, we conclude that the heightened
mental state required by an attempted oral copulation of an unconscious
person means the attempt is not a lesser included offense of the completed
offense. The trial court was therefore not required to instruct the jury on the
attempt offense absent a request.
DISPOSITION
The judgment is affirmed.
“[C]ases are not authority for propositions not considered.” (City of
15
Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29,
57.)
20
_________________________
Desautels, J.*
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
A164263 People v. Paniague
*Judge of the Alameda County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
21