Filed 12/31/15 P. v. Johnson CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139060
v.
JERRY JOHNSON,                                                       (Solano County
                                                                     Super. Ct. No. VCR213845)
         Defendant and Appellant.


         Jerry Johnson was convicted of rape of an incompetent person, with an
enhancement for the infliction of great bodily injury. He contends the legal test to
determine whether a developmentally disabled individual is capable of consenting to sex
is unconstitutional, that the evidence was insufficient to prove his victim lacked the legal
capacity to consent, and that his attorney was ineffective for not moving to strike the
victim’s mother’s testimony about the victim’s comprehension of sex, menstruation and
pregnancy. Johnson also contends the court miscalculated his restitution and probation
revocation fines. We agree that the fines were miscalculated. Johnson’s other arguments
are meritless, so we modify the amount of the fines and affirm the judgment as so
modified.
                                                 BACKGROUND
                                          I. The Victim’s Disabilities
         The victim, born in July 1992, suffers from significant mental disabilities.                              When
she was three or four months old her mother noticed she “wasn’t doing normal things,
like crawling . . . or trying to sit up or anything.” She did not progress like her older

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sisters as she grew older. She could not walk at age two and did not start to talk until she
was about three. She attended special education programs from preschool through high
school. The victim also has vision and hearing problems, weak wrists and a left foot that
turns out when she walks.
       Her mother testified that at age 18 the victim “can’t do the same things that a
normal 18-year-old could do. . . . She can’t drive. She can’t cook. She’s not
responsible.” At the time of trial, when the victim was 20, she still lived with her
mother. She could read numbers from one to ten but was unable to count change, do
subtraction, tie her shoes, read, tell time, or understand measurements. She could not
write a complete sentence and had difficulty adding three plus one. The victim testified
that her older sister was 80 years old and that 80 is younger than 20. When given
something to read, instead of reading the words, she spelled out the letters.
       Her Mother did not explain the relationship between menstruation and pregnancy
to the victim when she first started menstruating because she did not think the victim
would understand. Neither her mother nor her older sister ever discussed “ ‘the birds and
the bees’ ” with the victim or heard her express interest in boys or sex. Her older sister
testified that she never discussed boys, sex or kissing with the victim because she did not
think her sister would understand.
                                          II. The Crime
       After the victim graduated from her high school’s special education program she
attended a transitional program in which she helped out as a teacher’s aide in a class for
developmentally disabled young children. Johnson taught the class and was the victim’s
supervisor. Around Christmas of 2010, her older sister and mother noticed calls from
Johnson on the victim’s cell phone. In January, the victim told her nephew she had a
boyfriend.
       That spring, her mother noticed that the victim’s body was changing. In early
June an obstetric examination confirmed she was approximately four months pregnant.
Her mother contacted police and over the next days made two pretext calls to Johnson,
both of which were recorded and played for the jury. During both calls Johnson avoided

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expressly admitting he had sex with the victim, but he repeatedly assured her mother that
he would take responsibility for the child and would contribute financially if a test
showed him to be the father.
       The victim gave birth by C-section around December 2011. DNA testing revealed
a very high statistical probability that Johnson is the father.
       The defense was that the victim’s pregnancy resulted from a consensual sexual
relationship and that the prosecution failed to prove she lacked the capacity to consent.
The jury found Johnson guilty as charged and found true the great bodily injury
allegation. He was sentenced to nine years in prison and ordered to pay restitution and
parole revocation fines.
       This timely appeal followed.
                                           DISCUSSION
                   I. Evidence the Victim Was Legally Incapable of Consenting
       Penal Code section 261, subdivision (a)1 defines rape as “an act of sexual
intercourse accomplished . . . under any of the following circumstances: [¶] (1) Where 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 . . . [T]he prosecuting attorney shall prove, as an element of the
crime, that a mental disorder or developmental or physical disability rendered the alleged
victim incapable of giving consent.” For purposes of section 261, subdivision (a)(1), a
person is legally incapable of consenting to intercourse when a mental disorder or
developmental or physical disability renders him or her “ ‘unable to understand the act,
its nature, and possible consequences.’ ” (People v. Miranda (2011) 199 Cal.App.4th
1403, 1416 (Miranda); see CALCRIM No. 1004.) Johnson contends the evidence was
insufficient to prove that the victim’s level of disability rendered her incapable of
consenting. We disagree.




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           Further statutory references are to the Penal Code.
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       “In considering an appellate challenge to the sufficiency of the evidence, state law
requires this court to ‘review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence[,] that is, evidence which is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] Under the due process clause of
the Fourteenth Amendment, an appellate court must ‘determine whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt.’
[Citation.] The reviewing court does not address whether it believes the evidence
established guilt beyond a reasonable doubt. ‘Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
[Citation.] This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Once a defendant has been found guilty of
the crime charged, the factfinder’s role as weigher of the evidence is preserved through a
legal conclusion that upon judicial review all of the evidence is to be considered in the
light most favorable to the prosecution.’ ” (Miranda, supra, 199 Cal.App.4th at pp.
1412–1413.)
       We have carefully reviewed the evidence in this case, and it supports the jury’s
finding that the victim lacked the capacity to consent. We have described her mother’s
and sister’s testimony about the victim’s lifelong and profound developmental disabilities
such as her early delays in walking and speech and, as an adult, her inability to read or
write, do even simple math, count change, tie her own shoes, tell time, mix formula, take
care of a baby or drive. The jurors learned that the victim attended special education
programs from preschool through high school, and that she required constant supervision.
The victim appeared uncertain and disengaged at her pregnancy examination, giving one-
word answers and looking at her mother rather than speaking with the doctor .
       The jurors also observed the victim’s testimony. “In assessing whether a victim
was capable of understanding the nature or consequences of sexual intercourse at the time

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of an incident, ‘the jury may evaluate, in addition to that person’s testimony regarding his
or her understanding, other relevant evidence such as the victim’s demeanor, behavior,
and clarity on the stand.’ ” (Miranda, supra, 199 Cal.App.4th at p. 1415.) “ ‘As
explained by Judge Learned Hand, a witness’s “ ‘ “demeanor” ’—is a part of the
evidence. The words used are by no means all that we rely on in making up our minds
about the truth of a question that arises in our ordinary affairs, and it is abundantly settled
that a jury is as little confined to them as we are. They may, and indeed they should, take
into consideration the whole nexus of sense impressions which they get from a witness.
This we have again and again declared, and have rested our affirmance of findings of fact
of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned
the scale.” ’ ” (Id. at p. 1414.)
       That nexus of sense impressions was undoubtedly significant here. The victim’s
trial testimony consisted primarily of one or two word answers or, at the longest,
abbreviated and frequently non-sequitur phrases. She did not know her mother’s name.
She did not know her sister’s age and agreed when asked if her sister was 80. She said 80
was younger than 20. Asked if she knew what math is, the victim responded “Write it.”
She said her best subject was writing, but when the prosecutor asked what sorts of things
she wrote she responded “A pencil” and “I can write my own name.” Asked if she
understood what “the truth” meant, the victim answered “The truth—when you lie—I
mean, when you lie to somebody, don’t believe them”
       The victim gave nonsensical and childlike answers to questions about sex and
reproduction. For example, when the prosecutor asked her what a C-section is, she
answered “It’s like—C-section is, like, when you put the—the—the IV thing in there.”
The following exchange occurred when the prosecutor asked whether there is anything
different about the way little boys and little girls go to the bathroom: “A. Close the door
when you go to the bathroom. [¶] Q. Okay. Do they both pee the same way? [¶] A. Yes.
[¶] Q. Do they both pee out of the same part? [¶] A. No. [¶] Q. What’s different? [¶] A. I
don’t know.” The victim answered “yeah” when the prosecutor asked if she had heard
the words “penis,” “pee-pee,” “breasts” or “boobs,” but when asked what they mean she

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repeated “Close the door when you go to the bathroom.” She did not know how her baby
got into her stomach or how she came out. She did not know how babies are made or
what to do if she wanted to make another baby.
       Defense counsel’s questioning in the same area produced different answers, but
the jury could also reasonably infer from them that the victim was incapable of
comprehending the nature and possible consequences of intercourse. For example: “Q.
You do know what sex is, don’t you? [¶] A. Huh? [¶] Do you know what sex is? [¶] A.
No. [¶] Q. Is that the truth or is that a lie? [¶] A. That’s a lie. [¶] Q. Okay. So do you
know what sex is? [¶] A. No. [¶] Q. Is that the truth or is that a lie? [¶] A. That’s a lie.
[¶] Q. I know it’s embarrassing, . . . [¶] So, you do know what sex is? [¶] A. Kind of.”
When defense counsel asked the victim how the baby came to be in her stomach, she
responded that “[t]he people took it,” but when he followed up by asking if it was
because she had sex with Johnson, she answered “yeah.” When defense counsel asked
what happened when she had her period, she answered, “Your stomach start growling.”
       The evidence that the victim was legally incapable of consenting to sex is also
supported by the observations of the court and counsel. Defense counsel challenged her
competency to testify, and the prosecutor acknowledged that “it was kind of a close call
as to whether competency was established.” At sentencing, the trial court said “it was
clear . . . based on [the victim’s] demeanor, her answers, her responses, that she was
much like a child, in the Court’s mind. . . . [C]learly, mentally, she was not a person who
would be 19 years old. She’s far below that and seemed quite childlike.” The Miranda
court reasoned under similar circumstances that “[w]hile these observations are not
evidence in the sense that they were presented to the jury as proof of facts in dispute, they
serve as an indication of what a juror could reasonably infer regarding [the victim’s]
capacity to consent based upon her demeanor as she testified. If the conclusions of the
trial court and counsel were reasonably drawn from the evidence, the jurors could
rationally reach the same conclusions based on their observations of the very same
conduct.” (Miranda, supra, 199 Cal.App.4th at p. 1416.) Here, as in Miranda, these


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comments are consistent with and confirm substantial evidence that the victim lacked the
capacity to consent.
       Johnson’s arguments do not persuade us otherwise. He maintains that the victim’s
demeanor at trial was insufficient to establish her level of cognition at the time of the
offense: “Without any evidence regarding whether or not developmental disabilities such
as [the victim’s] become more pronounced over the course of time, the jury’s
observations of her conduct in the courtroom did not rise to ‘evidence which is
reasonable, credible, and of solid value’ ” sufficient to prove beyond a reasonable doubt
that she lacked the capacity to consent two years earlier. We disagree. There was ample
evidence that the victim suffered severe cognitive disabilities her entire life, and her
mother gave specific testimony about her daughter’s capabilities at age 18. Using their
common sense and experience (see CALCRIM No. 226), the jury could reasonably infer
from the evidence that her testimony and demeanor on the stand were indicative of her
cognitive level two years earlier.
       Johnson also suggests the evidence was insufficient to prove lack of capacity to
consent because there was no expert testimony on the victim’s cognitive disabilities or
estimate from any witness of her equivalent intellectual age. No such testimony was
necessary. “The existence of capacity to consent is a question of fact. [Citation.] A lay
juror is able to assess the extent of a victim’s mental disability. ‘ “The question whether a
person possesses sufficient resources—intellectual, emotional, social, psychological—to
determine whether to participate in sexual contact with another is an assessment within
the ken of the average juror, who likely has made the determination at some point.”
[Citation.]’ [Citation.] ‘There is a nationwide consensus that expert testimony on this
issue is not required.’ ” (Miranda, supra, 199 Cal.App.4th at pp. 1413–1414.) There was
substantial evidence to support the jury’s verdict.
                                II. Lay Opinion Testimony
       On direct examination, the prosecutor asked the victim’s mother why she did not
explain the connection between menstruation and pregnancy to her daughter when she
first started menstruating. Her mother responded that the victim “wouldn’t have

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understood.” Defense counsel objected that the testimony (which the witness repeated
after the court overruled an initial objection) was inadmissible lay opinion. Following
some colloquy, the court ruled—with defense counsel’s concurrence—that the prosecutor
could ask whether it appeared to the mother that her daughter understood something and
why or why not, but could not elicit her opinion about what she actually understood or
could have understood. Later, the prosecutor asked the victim’s mother why she did not
involve the victim in deciding whether to terminate the pregnancy. Her mother
answered, “At the time [the victim] did not understand.” The court sustained Johnson’s
objection that this was improper lay opinion.
       Johnson now asserts the court should have stricken mother’s initial comments that
the victim “wouldn’t have understood” the connection between menstruation and
pregnancy, and that defense counsel’s failure to move to strike all three statements about
what the victim did not or would not have understood was ineffective assistance of
counsel. We will not decide whether the court erred by not striking the testimony sua
sponte or whether defense counsel was ineffective for failing to so move, because these
statements could not have affected the verdict in light of the overwhelming evidence of
the victim’s profound cognitive deficits. Moreover, the court sustained objections to
mother’s testimony on “whether or not [the victim] would have actually understood” or
“did not understand,” and instructed the jury that “If I sustained an objection, you must
ignore the question.” Viewed in light of this record as a whole, the fact that the answers
were not stricken caused no conceivable prejudice. (People v. Watson (1956) 46 Cal.2d
818, 836; Strickland v. Washington (1984) 466 U.S. 668, 697–698.)
                        III. Constitutionality of Consent Requirement
       Johnson argues section 261, subdivision (a)(1) violates the federal and state
privacy and equal protection rights of disabled adults and their sexual partners, primarily
because, unlike the definition of consent applicable to other rape offenses, the judicially
developed test for a mentally disabled person’s capacity to consent to sex requires that
the individual be able to understand its possible consequences. “By employing a more
stringent definition of ‘consent’ than that which applies to other sex crimes, section 261,

                                             8
subdivision (a)(1) violates the constitutional right to equal protection. . . .” Johnson
further argues that the “criminalization of consensual sex with a developmentally
disabled person, unless that person understands the consequences of their actions in an
abstract intellectual way,” negates constitutional privacy rights. In response, the People
assert these claims were forfeited by Johnson’s failure to raise them in the trial court, that
he lacks standing to assert the rights of developmentally disabled adults, and that he fails
to identify the legal standards necessary to evaluate his arguments. On the merits, the
People argue that for purposes of equal protection analysis Johnson is not entitled to the
same treatment as individuals whose sexual partners are capable of consenting to sexual
activity, and that the right of privacy does not extend to sexual conduct with individuals
who lack that capability.
       Preliminarily, we agree that Johnson’s constitutional claims were forfeited.
(People v. Carpenter (1997) 15 Cal.4th 312, 362, abrogated on another point in People v.
Diaz (2015) 60 Cal.4th 1176, 1189.) “As the United States Supreme Court recognized in
United States v. Olano [1993] 507 U.S. [725,] 731, . . . ‘ “[n]o procedural principle is
more familiar to this Court than that a constitutional right,” or a right of any other sort,
“may be forfeited in criminal as well as civil cases by the failure to make timely assertion
of the right before a tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K.
(2007) 40 Cal.4th 875, 880–881.)
       Johnson’s alternative claim that defense counsel’s failure to raise these claims
constituted ineffective assistance also fails. “To establish a violation of the constitutional
right to effective assistance of counsel, a defendant must show both that his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant . . . .” (People v. Kipp (1998) 18 Cal.4th 349, 366.) Johnson can show neither.
To establish a denial of equal protection, Johnson must show the challenged law treats
two or more similarly situated groups differently. (In re Eric J. (1979) 25 Cal.3d 522,
530; People v. Rhodes (2005) 126 Cal.App.4th 1374, 1383–1384 [equal protection
analysis “ ‘will not proceed . . . if the groups at issue are not “ ‘similarly situated with

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respect to the legitimate purpose of the law’ ” ’ ”].) Johnson contends section 261,
subdivision (a)(1) denies him equal protection because “[n]on-disabled adults who wish
to engage in sexual activity are not required by any rule of law to understand the
consequences of the sexual act in the way that developmentally disabled are required to
understand them.” But there is a reasonable basis for distinguishing between individuals
who have the required intellectual ability to consent and those who do not because, as
Johnson acknowledges, the distinction is meant to “protect those who are profoundly
mentally retarded or impaired from being exploited sexually because of their mental
deficiency.” “ ‘Obviously, it is the proper business of the state to stop sexual predators
from taking advantage of developmentally disabled people.’ ” (People v. Vukodinovich
(2015) 238 Cal.App.4th 166, 173.)
       Johnson’s privacy argument is also meritless. The same contention was recently
rejected in People v. Vukodinovich, supra, 238 Cal.App.4th 166, which reasoned: “Were
we to accept the alternative conclusion that defendant had a constitutional right to engage
in sexual conduct with a person who had developmental disabilities and who lacked the
legal capacity to consent, we would render the state incapable of protecting individuals
with disabilities.” (Id. at p. 173.) We agree. “The right to privacy . . . is not absolute,
and governmental intervention in matters affecting an individual’s right to privacy in
sexual matters has been sanctioned in both criminal and civil law. [¶] . . . [T]he state has
a fundamental right to enact laws which promote public health, welfare, and safety, even
though such laws may invade the offender’s right of privacy.” (Barbara A. v. John G.
(1983) 145 Cal.App.3d 369, 380.) It has properly done so, among other reasons, to
proscribe sexual activity with persons whom society deems too young to be capable of
consent (§ 261.5; see New York v. Ferber (1982) 458 U.S. 747, 756–757), who are
incapable of comprehending the consequences of such activity due to intoxication (e.g.,
People v. Smith (2010) 191 Cal.App.4th 199, 204–205; CALCRIM No. 1002) and, as
here, who are deprived of that ability by a mental disability. (People v. Vukodinovich,
supra, 238 Cal.App.4th 166; People v. Giardino (2000) 82 Cal.App.4th 454, 466.)


                                              10
Defense counsel was not required to assert meritless constitutional challenges to the
states action to protect vulnerable disabled adults from sexual predation.
                                    IV. Restitution Fine
       At sentencing, the trial court ordered Johnson to pay restitution and parole
revocation fines of $2,520 each pursuant to sections 1202.4 and 1202.45. Johnson
asserts, correctly, that the court used the wrong statutory multiplier to calculate the
amount of the fines. The relevant portion of section 1202.4, subdivision (b) provides that
the restitution fine “(1) . . . shall be set at the discretion of the court and commensurate
with the seriousness of the offense. If the person is convicted of a felony, the fine shall
not be less than two hundred forty dollars ($240) starting on January 1, 2012, two
hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars
($300) starting on January 1, 2014, and not more than ten thousand dollars . . . . [¶] (2) In
setting a felony restitution fine, the court may determine the amount of the fine as the
product of the minimum fine pursuant to paragraph (1) multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.”
       Here, the $2,520 recommended by probation and imposed by the court is the
product of multiplying the $280 statutory minimum fine in effect at the time of Johnson’s
sentencing by his nine-year term. However, according to the charging document
Johnson’s offense occurred between February 1 and March 1, 2011. The multiplier then
in effect was $200, not $280. (See former § 1202.4, subd.(b)(1); Stats. 2010, ch. 351
§ 9.) Because restitution fines constitute punishment, the use of the later-enacted
statutory multiplier violates the constitutional rule against ex post facto legislation and is
cognizable on appeal despite the lack of a timely objection. (People v. Souza (2012) 54
Cal.4th 90, 143; People v. Zito (1992) 8 Cal.App.4th 736, 740–742.)
       Both parties agree the appropriate remedy is to reduce the fine to $1,800 (nine
years multiplied by $200). We agree. It is plain from the record that the trial court
intended to use the minimum statutory fine as a multiplier under section 1202.4,
subdivision (b), so there is no reason to remand for the court to clarify its intent. Section

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1202.45 provides that the parole revocation fine must be assessed in the same amount as
the restitution fine, so it, too, must be reduced to $1,800.
                                       DISPOSITION
       The restitution and parole revocation fines are modified to $1,800 each. As so
modified, the judgment is affirmed.




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                                  _________________________
                                  Siggins. J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




People v. Johnson, A139060

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