People v. Miranda , 132 Cal. Rptr. 3d 315 ( 2011 )

Opinion

KRIEGLER, J.

We hold that substantial evidence supports the jury’s findings that the 15-year-old sexual assault victim, who suffered from cerebral palsy resulting in severe communication difficulties combined with physical disabilities, was mentally incapable of consenting to the sexual offenses committed upon her by defendant. Defendant’s additional contentions regarding insufficiency of the evidence, prejudicial exclusion of evidence of a prior false accusation of sexual assault, instructional error, and denial of equal protection in requiring lifetime registration as a sex offender, are also unmeritorious. We affirm.

Defendant and appellant Robert Frank Miranda was convicted of the following offenses upon Jane Doe, a person physically or mentally incapable of giving consent: count 1—attempted rape (Pen. Code, §§ 664, 261, subd. (a)(1));¹ count 2—oral copulation (§ 288a, subd. (g)); and count 3—sexual penetration (§ 289, subd. (b)). The trial court sentenced defendant to 11 years in state prison.

FACTS

Prosecution Evidence

Fifteen-year-old Jane Doe slept in a trailer with her father and 13-year-old brother, Vincent, on a Sunday night in October 2008. Someone sleeps with Jane for her safety, because she has cerebral palsy that results in numerous seizures. After the father left for work between 4:00 and 5:00 a.m. on Monday morning, defendant, who is grandfather to Jane and Vincent, entered the trailer. Defendant directed Vincent to one of the beds, while defendant got into bed with Jane. Vincent believed defendant came to the trailer to take care of his sister.

Vincent soon heard the sound of a female moaning. Defendant was under the blankets, .which were moving, with Jane beneath him. When the blankets moved off defendant, Vincent saw defendant with his head close to “her privates,” between her knees, licking her. Defendant’s head moved up and down, and a bit later, Vincent saw defendant’s fingers entering a split in the boxer shorts worn by Jane in the area of her “privates.” Defendant asked Jane several times if she liked that. Vincent definitely saw defendant’s fingers touching his sister, but he could not actually see if defendant’s tongue touched her “privates.” Vincent thought defendant, who was wearing boxer shorts, had an erection. Defendant put the blankets back over himself and was again on top of Jane. About 15 minutes later defendant’s wife came home, after dropping off other grandchildren at school. After defendant walked out of the trailer, Vincent noticed a salty, fishy smell in the trailer. Vincent asked Jane if defendant had done anything. She made a gesture which Vincent understood to mean he should not say anything because defendant would get mad.

Direct examination of Jane before the jury consumed six pages of reporter’s transcript. A number of leading questions were asked, as permitted by the trial court, without objection by defense counsel.² With the exception of three answers, Jane’s verbal responses on direct examination were one word consisting of a single syllable.³ At least seven of her answers were inaudible or unintelligible.

Jane testified she would tell the truth in court, and when asked if she would lie, she moved her head from left to right, which the prosecutor described as indicating “no.” The trial court explained to the jurors that they were in “the best position” to see what was happening and to “use your own evaluation” as matters were described for the record. Using a blue marking pen and a simple diagram of a young girl, Jane made shaky markings on the girl’s breasts and vagina to indicate where she had been touched by defendant. On a similar diagram of a boy, she placed marks just below the mouth and on the area of the penis to indicate what body parts defendant had used to touch her. When asked if defendant used his mouth to touch her, she stuck out her tongue and nodded “yes.” She held up 10 fingers when asked if defendant had touched her more than once.

The cross-examination of Jane by defense counsel, also consisting of six pages in the reporter’s transcript, followed the same pattern as her direct testimony. The majority of her verbal answers consisted of one word and one syllable. On a few occasions she gave two-word answers (“Yeah. Yeah” or “Yeah. Right.”). She gave one three-word answer—“I don’t know.” There were at least 10 questions to which there was either an inaudible or unintelligible response. Jane testified that the molestation occurred in 2008, but she first told someone in March 2009.⁴ Defendant was wearing boxer shorts. She saw defendant’s penis, which was big.

In his testimony, Vincent described Jane as walking “a little bit slower,” but he can talk and interact with her. Jane’s brain cannot make her tongue work when she talks due to her cerebral palsy. She goes to a special education school, where she is a sophomore, although Vincent does not know what she is being taught or at what level.

Detective John Selby, a deputy sheriff for 27 years (including 13 years in the special victims bureau), was the investigating officer. He reviewed the report of the sexual assault, after Jane first reported the abuse by defendant to a teacher. The deputy who took the report interviewed Jane and Vincent. Detective Selby arranged for them to be interviewed at the Children’s Advocacy Center “because of the condition of . . . our victim.” The center specializes in forensic interviews in a nonintimidating setting, outside the presence of uniformed law enforcement officers. The interviews were observed by the detective and prosecutor. Detective Selby did not conduct a followup interview, because the interview statements of Jane and Vincent were consistent with the initial report in the case. The report said Jane was wearing pajama bottoms, not boxer shorts. Jane was not subjected to a physical exam. The specialists in sexual assault examinations recommended against a physical examination due to the passage of time between the incident and the report.

Defense Evidence

Defendant and his wife confirmed that the children’s father slept with the children in the trailer on Sunday night, he left for work early in the morning, and due to her cerebral palsy, Jane is not allowed to sleep alone because she has seizures. Defendant went to the trailer, wearing pajamas or sweatpants, to make sure Jane was okay after her father went to work. It was early in the morning and defendant did not want her to be unattended if she had a seizure.

When he entered the darkened trailer, defendant found Jane on the sofa bed where she slept with her father, and Vincent was in the back bed with the curtains closed. Defendant climbed into bed with Jane, facing the wall, leaving room for her to get up if she wished. One time Jane jumped out of bed, defendant asked if she was okay, and she said yes and returned to bed. She next awoke when Vincent got up and said he was going to eat. Defendant remained with her in the trailer until 7:00 to 7:15 that morning.

Defendant did not sexually molest his granddaughter. Jane, who has been in therapy her entire life, was being manipulated into saying she was molested. He never did anything to her, and he does not know why Vincent testified as he did, other than not wanting to move in with defendant.⁵

Defendant was impotent in October 2008. It was not possible for him to have an erection due to diabetes and radiation treatment for cancer. Defendant did ask a doctor for Viagra, but it did not help. This would be documented in his medical records.⁶

Defendant’s wife saw defendant at approximately 7:00 a.m., when she went to ask if he would like a cup of coffee. Jane was asleep in the trailer, but Vincent had already come into the living room of the house. Defendant’s wife left briefly around 7:45 to 7:50 a.m. to take other grandchildren to school. When she returned five minutes after dropping off the children at school, defendant was in the house with Vincent and Jane.

Jane and Vincent were supposed to go home on Sunday, but their mother failed to cooperate in picking them up, which was not unusual, so they stayed over to Monday. Defendant had a telephone conversation with their mother, in which he said he was tired of her not showing up and she was a bad mother who had abandoned her children. Defendant eventually took the children to Victorville, where they were picked up by their mother.

Defendant’s wife found two empty beer cans stuffed under the dryer in the trailer, as well as a water bottle containing what she thought was two ounces of tequila. She did not believe these items were left there by the children’s father, as he had no reason to hide alcoholic containers, and he usually drinks beer, not tequila.⁷ The items were left in the trailer and photographed in March or April 2009 by an investigator.

Vincent’s mother had spoken to defendant about Vincent coming to live with him because she could not control him. Defendant told Vincent if he was going to live with him he would have to follow all the rules, including doing his homework before going out to play. April 2009 was the first time defendant heard anything about molestation allegations in a phone conversation with Jane’s mother. Defendant told her he had had nothing to do with that and he would not do that to her.

DISCUSSION

I. Sufficiency of the Evidence

Defendant argues the evidence was insufficient in various respects. He contends no evidence was presented that Jane lacked the capacity to consent to the sexual offenses due to a mental disorder. He also contends there was insufficient evidence that he attempted an act of sexual intercourse with Jane or that he penetrated her with his fingers. We hold that none of the challenges to the sufficiency of the evidence has merit.

A. Standard of Review

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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) 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.” (Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 99 S.Ct. 2781].) 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.” (Id. at pp. 318-319.)

The same standard of review applies to cases relying on circumstantial evidence. “[T]he judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932-933 [251 Cal.Rptr. 467, 760 P.2d 996].) We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. (People v. Johnson[, supra,] 26 Cal.3d [at p.] 576 . . . .)” (People v. Millwee (1998) 18 Cal.4th 96, 132 [74 Cal.Rptr.2d 418, 954 P.2d 990].)

B. Capacity to Consent⁸

Defendant contends the evidence is constitutionally insufficient in all three counts to support a finding that Jane lacked the capacity to consent due to a mental disorder. The Attorney General does not argue that there is substantial evidence of mental incapacity, as argued by the prosecutor at trial, but instead contends there is substantial evidence of Jane’s lack of physical capacity to consent.⁹ We hold the record contains substantial evidence that Jane lacked the mental capacity to consent to the charged sex acts with defendant.

All three convictions in this case—attempted rape, oral copulation, and sexual penetration—were based on the theory that Jane was “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent” (§§ 261, subd. (a)(1), 288a, subd. (g), 289, subd. (b); see § 664). The jury was instructed that an element of each charged offense was Jane’s incapacity to consent.¹⁰ Defendant argues that “although the prosecution’s evidence establishes a disability, no evidence whatsoever was introduced that Jane was incapable of giving consent—‘positive cooperation in an act or attitude pursuant to an exercise of free will’ (§ 261.6)—a requisite element of the crimes of which defendant was convicted.”

The existence of capacity to consent is a question of fact. (People v. Griffin (1897) 117 Cal. 583, 585 [49 P. 711] (Griffin), overruled on other grounds in People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673].) 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 same determination at some point.’ (People v. Cratsley (1995) 86 N.Y.2d 81, 87 [629 N.Y.S.2d 992, 653 N.E.2d 1162], fn. omitted.)” (People v. Thompson (2006) 142 Cal.App.4th 1426, 1439 [48 Cal.Rptr.3d 803] (Thompson).) “There is a nationwide consensus that expert testimony on this issue is not required. (Com. v. Fuller (2006) 66 Mass.App.Ct. 84, 89-92 [845 N.E.2d 434], app. den. 447 Mass. 1102 [848 N.E.2d 1211]; State v. Perkins (2004) 2004 WIApp. 213 [277 Wis.2d 243, 689 N.W.2d 684], review den. 2005 WI 1 [277 Wis.2d 153, 691 N.W.2d 354]; Jackson v. State (Alaska Crim.App. 1995) 890 P.2d 587, 589-592; State v. Summers (1993) 70 Wn.App. 424, 428-429 [ 853 P.2d 953]; State v. Kingsley (N.D. 1986) 383 N.W.2d 828, 830-831; Wilkinson v. People (1929) 86 Colo. 406, 412-413 [282 P. 257].)” (Thompson, supra, at p. 1437; see People v. Lewis (1977) 75 Cal.App.3d 513, 519 [142 Cal.Rptr. 218] [lack of capacity to consent “does not call for any particular type of clinical diagnosis”].)

The jury’s determination of Jane’s capacity to consent necessarily depended upon the jurors’ subjective assessment of her demeanor, as her demeanor as a witness was highly probative of her mental condition. The demeanor of witnesses is rarely reflected in the record. (People v. Navarette (2003) 30 Cal.4th 458, 516 [133 Cal.Rptr.2d 89, 66 P.3d 1182].) “As a reviewing court, we confront a cold record without the trial court’s benefit of observing firsthand the appearance and demeanor of the witness.” (People v. Lewis (2001) 26 Cal.4th 334, 359 [110 Cal.Rptr.2d 272, 28 P.3d 34].) The jury implicitly found Vincent and Jane to be credible witnesses, “and we must give proper deference to such findings.” (Ibid.)

“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.’ (Dyer v. MacDougall (2d Cir. 1952) 201 F.2d 265, 269, fn. omitted.)” (People v. Adams (1993) 19 Cal.App.4th 412, 438 [23 Cal.Rptr.2d 512].)

Defendant argues “the only evidence was that Jane suffered from cerebral palsy and seizures, that she had difficulty speaking, and that she attended a school with special education.” There is direct evidence of these facts, but it is an incomplete assessment of the totality of the evidence. The record contains strong circumstantial evidence that Jane’s mental condition prevented her from having the ability to consent “ ‘at the time’ ” of the offenses. (Thompson, supra, 142 Cal.App.4th at p. 1440, italics omitted [“The relevant statutes require proof that the victim was ‘at the time incapable ... of giving legal consent . . . .’ ”]; see §§ 261, subd. (a)(1), 288a, subd. (g), 289, subd. (b).)

One of the strongest circumstances indicating that Jane lacked the mental capacity to consent is that she did not respond to defendant’s questions asking if she liked what they were doing during the sexual assault. The jury could rationally conclude that a 15-year-old girl who had the ability to appreciate what was taking place would express some reaction to a surprise sexual assault from her grandfather in a small trailer, with her brother nearby, in the early hours of the morning. Jane’s lack of response certainly suggests that she did not have the capacity to understand the consequences of defendant’s acts or the ability to voluntarily consent to them. From her failure to react, the jury could infer she did not simply have difficulty speaking, but that her mental capabilities, in the circumstances of the offenses, prevented her from being capable of giving consent.¹¹

A further indication of Jane’s lack of capacity to consent is found in her childlike description at trial of the sexual assault. The best she could do to explain what happened was to place shaky marks on simple diagrams to indicate where and how she was touched by defendant, and hold up 10 fingers when asked about how she was touched by defendant. The impression left by her testimony was that she lacked the understanding required of one capable of giving consent and defendant knowingly took advantage of that disability. The jury could reasonably infer that an inability to articulate what happened demonstrated that Jane was not capable of appreciating what took place or freely and voluntarily participating in the acts. (State v. Orftega-Martinez (1994) 124 Wn.2d 702, 714 [881 P.2d 231] [in assessing whether a victim was capable of understanding the nature or consequences of sexual intercourse at the time 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”].)

■Jane’s difficulty in answering questions at trial further supports the inference that she lacked the mental capacity to consent to defendant’s conduct. The bulk of her brief testimony consisted of one-word answers in response to leading questions. She did not answer some questions and made unintelligible responses to others. Jane at times relied on gestures to answer questions. A reasonable jury could infer from her difficulty in processing what was asked of her at trial and formulating responses to the questions that she lacked the mental capacity to consent to the acts committed by defendant.

We add to these circumstances the direct evidence supporting Jane’s incapacity to consent. The direct evidence established she was a 15-year-old cerebral palsy victim¹² who had trouble walking and talking. As described by her brother, the disease caused her brain to prevent her tongue from working properly. Jane attended special education and needed assistance at night due to her seizures and proclivity for getting up. Her condition caused the investigating officer to have her interviewed at the Children’s Advocacy Center instead of being interviewed by the detective or prosecutor.

Defendant argues there was evidence Jane could communicate with her brother and was a high school sophomore, indicating she had the mental capacity to consent. This is no more than a request that we reweigh the evidence, which we will not do. As required, we view the evidence in the light most favorable to the judgment, drawing all inferences in support of the verdicts. Based on our summary of the evidence, the jury could infer that Jane was “prevented from legally consenting” because she was “unable to understand the act, its nature, and possible consequences.” (Judicial Council of Cal. Crim. Jury Instas. (2009-2010) CALCRIM Nos. 1004, 1020, 1049.) Although our conclusion does not require additional support, we point out that this result is consistent with the observations of the parties at trial regarding Jane’s mental capacity.

Numerous references to Jane’s substantial disabilities were made at trial by the trial court, the prosecutor, and defense counsel. While 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 Jane’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 very same conduct.

Prior to trial, the trial court commented that “Jane cannot possibly give consent.” At a competency hearing before trial, the court noted Jane’s inability to communicate verbally and her use of gestures and body movements. The court stated the jurors would be able to see how she responded to questions, but the record itself would be “fairly sketchy.” To accommodate Jane’s disabilities, the court intended to allow leading questions and would try to describe her actions so there would be some indication in the record as to what the jury was observing. At sentencing, the court described Jane as “one of the most vulnerable victims I have seen in a long time.” (See State v. Soura (1990) 118 Idaho 232, 238 [796 P.2d 109] [trial court’s description of victim’s demeanor was “[t]he most striking evidence in support of the trial court’s determination that there was substantial evidence to support the jury’s finding that the woman could not legally consent to sexual intercourse”].)

Defense counsel’s observations on the record were also consistent with Jane’s lack of capacity to consent. After the pretrial competency hearing, defense counsel noted the court reporter’s struggle to understand Jane’s testimony. After trial, defense counsel complained of his inability to effectively cross-examine Jane, describing her answers as mostly grunts of “yes” or “no.” At no point during trial did defense counsel question the notion that Jane lacked the capacity to consent.

The prosecutor’s argument to the jury reviewed Jane’s condition and the manner in which she testified, as reflecting her lack of capacity to consent. He pointed out that Jane had cerebral palsy and attended special education. The prosecutor emphasized that the jurors had seen her struggle to communicate on the witness stand, and that she used hand movements to try to communicate. The prosecutor told the jury Jane “clearly did not have the capacity to consent, because she can’t understand the consequences of what was taking place.”

The trial court and trial counsel made these assessments based on their individual conclusions as to Jane’s demeanor as it reflected on her mental capacity to consent. The instructions given in this case directed the jury to engage in the same reasoning process by considering Jane’s demeanor in assessing her capacity to consent. The jury was instructed to “consider anything that has a tendency reasonably to prove or disprove the truthfulness of the witness” including the “ability of the witness to . . . communicate any matter about which the witness has testified” and the “demeanor and manner of the witness while testifying.” (CALJIC No. 2.20; see Evid. Code, § 780, subds. (a), (c).) The jury was also instmcted that in “evaluating the testimony of a person with a developmental disability, or cognitive, mental, or communication impairment, you should consider all of the factors surrounding the person’s testimony, including his or her level of cognitive development.” (CALJIC No. 2.20.2.) The jurors, the trial court, and both counsel reached the same conclusion in this case—Jane lacked the mental capacity to give consent. Substantial evidence supports that determination.

C. Attempted Rape and Sexual Penetration

Defendant separately argues there is insufficient evidence to support the convictions of attempted rape and sexual penetration. As to the attempted rape conviction, defendant contends there is no evidence he removed his boxer shorts or intended to insert his penis in Jane’s vagina. The sexual penetration evidence is insufficient, according to defendant, because there is no evidence he did anything other than rub Jane’s pubic area. Both arguments lack merit.

The crime of attempted rape has two elements—a specific intent to rape and a direct but ineffectual act done toward its commission. (People v. Scott (2011) 52 Cal.4th 452, 488 [129 Cal.Rptr.3d 91, 257 P.3d 703] (Scott); People v. Guerra (2006) 37 Cal.4th 1067, 1129-1130 [40 Cal.Rptr.3d 118, 129 P.3d 321].) The necessary specific intent may be inferred from the circumstances of the charged offense. (Scott, supra, 52 Cal.4th 452, 488; Guerra, supra, 37 Cal.4th 1067, 1129-1130.) Evidence that defendant got into bed with Jane while wearing boxer shorts, his acts of oral copulation and digital penetration, the up and down movements Vincent observed under the blankets as defendant was on top of Jane, defendant’s questions to Jane asking if she liked what he was doing, and his erection all support a strong inference of an intent to rape and a direct but ineffectual act toward that end. The prosecution was not required to prove that defendant actually attempted to penetrate Jane with his penis to prove attempted rape. (Scott, supra, at p. 488 [“ ‘An actual element of the offense, however, need not be proven. ...’”].) Defendant’s factual claim at trial of impotence does not bar his conviction. (People v. Hillery (1974) 10 Cal.3d 897, 901, fn. 3 [112 Cal.Rptr.524, 519 P.2d 572].)

Defendant’s claim of insufficient evidence of sexual penetration in violation of section 289 fares no better. The testimony of one witness is sufficient to prove any fact. (Evid. Code, §411.) Vincent testified he was certain defendant’s fingers were touching Jane’s private parts as his hand was “moving up and down, and she moaning.” Jane held up 10 fingers to describe how defendant had touched her. The jury could infer from these facts that defendant penetrated Jane with his fingers.

II. Failure to Instruct on the Definition of Legal Consent

The trial court instructed that in order to convict defendant the jury had to find Jane was “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this incapacity is known or reasonably should be known to the person committing the act. . . .” (CALJIC Nos. 10.02 (attempted rape), 10.11 (oral copulation), 10.32 (sexual penetration).) The CALJIC instructions do not define “legal consent.” (See Griffin, supra, 117 Cal. at p. 585 [“It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences.”].) Defendant argues the CALJIC instructions are deficient,¹³ and the trial court was required under the due process provisions of the state and federal Constitutions to define “legal consent,” even in the absence of a defense request. The Attorney General, citing general language in People v. Smithey (1999) 20 Cal.4th 936, 980 [86 Cal.Rptr.2d 243, 978 P.2d 1171] (Smithey), agrees the court was obligated to provide further definition of “legal consent” without a request from defendant, but argues the error is harmless.

We hold that because Jane’s mental capacity to give “legal consent” was not a contested issue and no issue of actual consent was presented, the trial court had no obligation to provide further definition of “legal consent.” We further hold that the plain meaning of incapacity to give “legal consent” because of a mental disability does not have a technical definition requiring further instruction in the absence of a defense request or jury inquiry as to the meaning of the phrase. Finally, any error in failing to provide further instruction in this case was nonprejudicial under state and federal constitutional standards of review.

A. Discussion of Jury Instructions in the Trial Court

After the completion of testimony, the trial court and counsel discussed a package of jury instructions submitted by the prosecutor, including CALJIC No. 1.23¹⁴ (“Consent”—Defined). The court asked, “How does consent fit into our particular package?” The prosecutor replied that he did not need the instruction but had included it in case the jury needed clarification, even though consent was not an element of the charges.

Later, the trial court asked both counsel if they “had a chance to think about consent?” Defense counsel stated, “I don’t think it applies.” The prosecutor then said, “That’s fine.” The court agreed, stating, “All right. I don’t think it does, either. If you get a brilliant mind flash overnight, let us know. It’s just as easy to put it back in.” The next day, the court engaged in further discussion of jury instructions. At no time did the defense request an instruction defining “legal consent.” As noted in our earlier discussion of the sufficiency of the evidence, the defense did not assert at trial that Jane was capable of giving legal consent.

B. The Obligation to Further Define “Legal Consent”

The premise of defendant’s argument is the use of the word “legal” before the word “consent” suggested to the jury that the phrase meant something other than the ordinary meaning of consent. We have no reason to believe the jury would have attached any significance to the qualifier of “legal” to the word “consent.” The plain language of the instruction simply asked the jury to determine if Jane was incapable of giving consent in the manner required by law because of a mental disability. As we explain, the essential elements of legal consent are found in the statutory definition of consent, and as a consequence, no further instruction was required.

Under Griffin, “legal consent” consists of the intelligence to understand (1) the act, (2) its nature, and (3) its probable consequences. The elements of actual consent in section 261.6 overlap with the Griffin definition of “legal consent”—actual consent requires that the victim act with positive cooperation and knowledge of the nature of the act involved. Both definitions therefore include cognitive understanding of the nature of the acts involved. The instructions properly focused the jury’s attention on this element of the charged offense—that Jane was incapable of giving “legal consent.” No further definition of “legal consent” was required under the circumstances of this case.

Our Supreme Court has held that the common understanding of consent is more favorable to a defendant than the legal definition. (People v. Martinez (2010) 47 Cal.4th 911, 955 [105 Cal.Rptr.3d 131, 224 P.3d 877].) Given the reasoning of Martinez, and the common elements of “legal consent” and actual consent, the trial court had no sua sponte duty to provide additional instruction in a case in which the defense did not contest Jane’s incapacity to consent, the jurors expressed no confusion about the meaning of “legal consent,” and they did not request further instruction on the meaning of the phrase. (Ibid. [“Nothing indicates that the jury was confused or required a definition of ‘consent.’ ”].) Instruction in the statutory language was sufficient.

“As we explained in People v. Poggi (1988) 45 Cal.3d 306 [246 Cal.Rptr. 886, 753 P.2d 1082], ‘[t]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the [trial] court need do no more than instruct in statutory language.’ (Id. at p. 327; see also People v. Rogers (1971) 5 Cal.3d 129, 138 [95 Cal.Rptr. 601, 486 P.2d 129]; People v. Page (1980) 104 Cal.App.3d 569, 577 [163 Cal.Rptr. 839].)” (People v. Estrada (1995) 11 Cal.4th 568, 574 [46 Cal.Rptr.2d 586, 904 P.2d 1197] (Estrada); see Smithey, supra, 20 Cal.4th at pp. 980-981.)

In Estrada, review was granted “to resolve a conflict in the Courts of Appeal over whether a trial court has a sua sponte duty to define the phrase ‘reckless indifference to human life’ when instructing a jury regarding a felony-murder special-circumstance allegation against a defendant who is not the actual killer.” (Estrada, supra, 11 Cal.4th at p. 572.) Estrada held that “ ‘reckless indifference to human life’ is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term ‘indifference,’ referring to ‘the state of being indifferent,’ is that which is ‘regarded as being of no significant importance or value.’ (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [‘regard’ is synonymous with ‘consider, evaluate, judge’].)” (Estrada, supra, 11 Cal.4th at p. 577.)

Smithey, supra, 20 Cal.4th 936, cited by respondent, involved an argument that further definition of the phrase “maturely and meaningfully reflected” was required in connection with instructions on deliberate and premeditated murder. “The words in the phrase ‘maturely and meaningfully reflected’ are commonly understood terms that convey the same meaning in both section 189 and our decision in People v. Wolff [(1964)] 61 Cal.2d [795,] 821 [40 Cal.Rptr. 271, 394 P.2d 959]. Therefore, the trial court had no obligation to provide further clarification of the statutory language. (People v. Estrada, supra, 11 Cal.4th at p. 581.)” (Smithey, supra, 20 Cal.4th at pp. 980-981.)

People v. Poggi, supra, 45 Cal.3d at page 327 (Poggi) reaches a similar conclusion. The defendant in Poggi argued that the instruction, “ ‘the murder was committed while the defendant was engaged in the commission of a rape, robbery, burglary, or any or all of these offenses’ ” required further explanation of the meaning of the italicized clause. (Ibid.) Our Supreme Court disagreed, holding the instruction was taken verbatim from the statutory language, no request for amplification was made by the defendant, and the jury did not need additional guidance in understanding the instruction. (Ibid.)

The phrase “legal consent” certainly has no more technical a meaning than the phrases “reckless indifference to human fife” in Estrada, “maturely and meaningfully reflected” in Smithey, and “ ‘the murder was committed while the defendant was engaged in the commission . . ” of a crime in Poggi. (See also People v. Rodriguez (2002) 28 Cal.4th 543, 546-550 [122 Cal.Rptr.2d 348, 49 P.3d 1085] [further definition of “recurring access” in § 288.5 not required]; People v. Richie (1994) 28 Cal.App.4th 1347, 1360-1362 [34 Cal.Rptr.2d 200] [“willful” and “wanton” as used in Veh. Code, § 2800.2 need not be further defined by the court].) There is no reason to believe the jury would have understood “legal consent” to have meant anything other than the law requires the capacity to understand what is happening and the nature and consequences of the act.

Defendant relies on People v. Giardino (2000) 82 Cal.App.4th 454 [98 Cal.Rptr.2d 315] for the proposition that the trial court was obligated to provide a definition of “legal consent.” In Giardino, the jury in a prosecution for rape of a person prevented from resisting by an intoxicating substance requested a definition of the word “resistance.” Giardino held that the failure to further define the term, beyond telling the jury to use its common sense, was an inadequate response requiring reversal. Giardino is clearly distinguishable because it involved the failure to provide a response to the jury’s request for further instruction during deliberations. Here, not only was there no request for a definition of “legal consent” by the jury during deliberations, the issue of Jane’s capacity to give “legal consent” was not disputed by defendant at trial. Giardino provides no support for defendant’s position.

C. Harmless Error

Assuming further definition of “legal consent” was required sua sponte, the error was harmless under federal and state law standards of review. This case never involved a dispute over Jane’s capacity to consent. This case was about whether the charged acts occurred. Further instruction on Jane’s capacity to consent would have focused attention on Jane’s condition, with no possible benefit to defendant. Given the state of the evidence, and the issues in dispute at trial, there was no reasonable possibility or probability of a result more favorable to defendant had the jury been further instructed on the meaning of “legal consent.” (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

III. Exclusion of Evidence

Defendant argues the trial court violated his state and federal constitutional rights¹⁵ to cross-examine witnesses when it excluded evidence of a prior false complaint of sexual abuse by Jane pursuant to Evidence Code section 352. The evidence was relevant and admissible, according to defendant, to challenge Jane’s credibility. Defendant contends the proposed impeaching evidence was not weak and could have been established by testimony from Jane’s father that the allegations were false. Proof of the falsity of the prior complaint would not have consumed an undue amount of time, nor would the issue have confused the jury.

A. Background

The prosecution filed a pretrial motion to exclude evidence of Jane’s prior sexual history, specifically referring to evidence that she was the subject of an earlier sexual abuse investigation. According to the motion, “Information obtained in a report generated by Riverside County DPSS-CPS indicates that Jane is listed as a victim and Jane’s father is listed as a suspect. DPSS concludes in the report that ‘Substantial Risk of Sexual Abuse is Unfounded.’ The date of the alleged incident is March, 2006.” The prosecution asked for exclusion of evidence of the incident under Evidence Code section 352. According to the prosecutor, it was Jane’s mother who made the complaint to a social worker in Missouri who contacted Riverside County authorities. The prosecutor told the trial court, “There is no indication in the report that Jane, herself, made any allegations or statements against her father.” The prosecutor argued if questioning on this subject were permitted, it would confuse the jury and lead to an undue consumption of time.

Defense counsel argued that the context of the prior false complaint was similar to that in this case. The prior complaint was made after Jane’s parents divorced. Jane’s father had custody of her and Vincent. Before the false complaint was resolved, the mother took the children and moved to Denver. In defendant’s case, Vincent was having trouble in school and there was talk of him living with his father in the grandparent’s home. Shortly after that was discussed, Jane’s sexual assault report against defendant was made. Defense counsel’s interpretation of the two incidents was that both were motivated by the mother, who had a financial interest in maintaining custody of the two children. Counsel said he had “a copy of that report if the court wants to see and review it,” and he insisted that Jane had made the complaint against her father. The report of the prior complaint of sexual abuse is not in the appellate record.

The prosecutor disputed defense counsel’s interpretation of the report, again stating the statements in the report came from Jane’s mother to a social worker in Missouri, who then contacted Riverside authorities to investigate. The prosecutor also argued the social worker’s conclusion that the claim was unfounded was merely the opinion of the author of the report, but it did not mean there was no sexual abuse. The prosecutor disputed that there was any “nexus” between the prior incident and this case.

Defense counsel said he wanted Jane’s mother to testify about the prior report of sexual abuse, asserting the mother would testify that her daughter told her about the abuse. If the mother denied that, the social worker would be called to testify about the mother’s statement containing Jane’s statement of abuse. The father would testify the sexual abuse did not happen.

The trial court ruled the evidence inadmissible, questioning its relevance, the clarity of the evidence, and the number of layers of statements that would be required to fully develop the point. The next day, defense counsel raised the issue again by calling the opinion in People v. Tidwell (2008) 163 Cal.App.4th 1447 [78 Cal.Rptr.3d 474] (Tidwell) to the attention of the court, to support admission of a prior false complaint by Jane. After argument from the parties, the court discussed Tidwell in detail, finding that it did not compel a different ruling.

The trial court first distinguished Tidwell on the basis that the defense in Tidwell was that the victim consented to the sex acts, but “[i]n our particular case, there is no consent issue. Jane cannot possibly give consent.” In addition, the court noted there was a corroborative witness to Jane— Vincent—who would testify to what he observed. In the court’s view, the entire line of questioning would consume an undue amount of time and mislead the jury as to the principal points of the case.

B. Analysis

Evidence of a prior false report of molestation or rape is relevant to the credibility of the victim. (Tidwell, supra, 163 Cal.App.4th at p. 1457, citing People v. Franklin (1994) 25 Cal.App.4th 328, 335 [30 Cal.Rptr.2d 376], People v. Adams (1988) 198 Cal.App.3d 10, 18 [243 Cal.Rptr. 580].) Prior rape complaints do not reflect on credibility unless proven to be false. (People v. Bittaker (1989) 48 Cal.3d 1046, 1097 [259 Cal.Rptr. 630, 774 P.2d 659] (Bittaker); Tidwell, supra, at p. 1457.) The trial court has discretion under Evidence Code section 352¹⁶ to exclude evidence of prior reports of sexual assault if proof of the falsity of the prior complaint “would consume considerable time, and divert the attention of the jury from the case at hand.” (Bittaker, supra, at p. 1097.)

In Bittaker, “[d]efense counsel sought to impeach [a victim] by evidence that she had made false charges of sexual molestation against two other men. The trial court upheld an objection under Evidence Code section 352. Its ruling is not an abuse of discretion. The value of the evidence as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two long-past sexual incidents which never reached the point of formal charges.” (Bittaker, supra, 48 Cal.3d at p. 1097.)

Tidwell involved charges of sexual assault of a 21-year-old deaf woman with a learning disability. (Tidwell, supra, 163 Cal.App.4th at p. 1449.) The defense was consent. (Id. at p. 1450.) The defense sought to impeach the victim with evidence of prior false complaints of rape. (Id. at p. 1452.) Although “the evidence was relevant and admissible pursuant to Evidence Code section 1103, the trial court did not abuse its discretion by excluding the evidence because the evidence was weak on the issue of [the victim’s] credibility and would require an undue consumption of time.” (Id. at pp. 1456-1457.)

“Although there was some evidence that [the victim] made inconsistent statements, there was no conclusive evidence that her prior rape complaints were false. The defense was unable to obtain evidence from the men that [the victim] accused, and inferences could be drawn either way from the circumstances of the prior incidents and [the victim’s] statements concerning the incidents. In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that [one of the men involved in a prior complaint] had raped another female student. We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the victim’s] prior complaints.” (Tidwell, supra, 163 Cal.App.4th at p. 1458.)

Application of the Evidence Code section 352 factors in this case demonstrates the trial court did not abuse its discretion in excluding the evidence. The probative value of the proffered evidence was questionable, as the prosecutor insisted the report from Riverside County contained no statements from Jane, and although defense counsel argued otherwise, he never quoted a statement from her from the report (which, as noted earlier, is not in the appellate record). Second, the prior complaint, if made by Jane, would only be relevant if false, and no clear showing of falsity was made. The conclusion that the claim was unfounded was an opinion of a social worker, and the admissibility of that conclusion is doubtful. Not only was the evidence showing a prior false complaint uncertain, but delving into the issue had the potential for confusing the jury and consuming an undue amount of time. According to defense counsel, the current and prior complaints had a connection to the divorce of Jane’s parents and issues of child custody, matters far afield from the charges in this case. The trial court also considered the existence of Vincent as an independent witness to the charged offenses, which distinguished the case from the typical scenario of a one-on-one sexual assault, in which victim credibility is often determinative. Because the trial court’s ruling was not an abuse of discretion under Evidence Code section 352, defendant’s constitutional claim also fails. (People v. Panah (2005) 35 Cal.4th 395, 484, fn. 32 [25 Cal.Rptr.3d 672, 107 P.3d 790]; People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015 [95 Cal.Rptr.2d 377, 997 P.2d 1044].)

IV. Violation of Equal Protection of the Law by Ordering Registration Under Section 290

For the first time on appeal, defendant argues the order that he register for life as a sex offender under section 290 for sexual offenses against a person incapable of giving legal consent violates equal protection of law under the reasoning of People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier). According to defendant, he is similarly situated to defendants convicted of consensual sex offenses with minors who, due to their ages, are incapable of giving consent.

Every person convicted of attempted rape in violation of sections 664 and 261, oral copulation in violation of section 288a, and sexual penetration under section 289 is subject to mandatory lifetime registration as a sex offender. (§ 290, subds. (b)-(c).) Thus defendant fell within the class of offenders required to register as a sex offender for life.

Hofsheier involved a 22-year-old male defendant who pled guilty to oral copulation with a 16-year-old girl in violation of section 288a, subdivision (b)(1) and was ordered to register for life as a sex offender under section 290. The defendant argued lifetime registration violated his right to equal protection of law “because a person convicted of unlawful sexual intercourse with a minor (§ 261.5) under the same circumstances would not be subject to mandatory registration.” (Hofsheier, supra, 37 Cal.4th at p. 1193.) The Supreme Court agreed. “We now hold, in accord with the decision of the Court of Appeal in this case, that to subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws. We direct the Court of Appeal to remand the case to the trial court, however, to exercise its discretion to determine whether defendant should be required to register as a sex offender under section 290, subdivision (a)(2)(E).” (Id. at p. 1193.)

The reasoning of Hofsheier has been applied in various situations. (E.g., People v. Thompson (2009) 177 Cal.App.4th 1424, 1431 [100 Cal.Rptr.3d 57] [mandatory lifetime registration for sodomy with a 17 year old violates equal protection because unlawful sexual intercourse with the same victim provides for discretionary registration]; People v. Ranscht (2009) 173 Cal.App.4th 1369, 1375 [93 Cal.Rptr.3d 800] [mandatory lifetime registration for sexual penetration of a 13-year-old girl violates equal protection as compared to discretionary registration for conviction of unlawful sexual intercourse of a victim of the same age]; People v. Luansing (2009) 176 Cal.App.4th 676, 678 [97 Cal.Rptr.3d 836] [lifetime registration violates equal protection as to defendant convicted of oral copulation of a person age 16 in violation of § 288a, subd. (b)(2)]; People v. Hernandez (2008) 166 Cal.App.4th 641, 651 [83 Cal.Rptr.3d 29] [same as to victim age 14]; People v. Garcia (2008) 161 Cal.App.4th 475, 481-482 [74 Cal.Rptr.3d 681] [denial of equal protection to impose mandatory lifetime registration on defendant convicted of oral copulation of victim age 14 in violation of § 288a, subd. (b)(2)].)

Other cases have distinguished Hofsheier and found no equal protection violation when lifetime registration is required by section 290 for offenses committed upon minors. (See, e.g., People v. Kennedy (2009) 180 Cal.App.4th 403, 409-410 [103 Cal.Rptr.3d 161] [attempted exhibiting harmful matter to a minor in violation of §§ 664, 288.2, subd. (b)]; People v. Cavallaro (2009) 178 Cal.App.4th 103, 115 [100 Cal.Rptr.3d 139] [lewd and lascivious acts on a victim age 14 or 15 and the defendant 10 or more years older, in violation of § 288, subd. (c)(1)]; People v. Manchel (2008) 163 Cal.App.4th 1108, 1115 [78 Cal.Rptr.3d 194] [oral copulation of a victim age 15 and the defendant over the age of 21 in violation of § 288a, subd. (b)(2)]; People v. Anderson (2008) 168 Cal.App.4th 135 [85 Cal.Rptr.3d 262] [lewd act on a child age 14 or 15 by a person at least 10 years older in violation of § 288, subd. (c)(1)].)¹⁷

Defendant’s equal protection claim does not survive the first level of equal protection analysis. “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549]; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654].)” (Hofsheier, supra, 37 Cal.4th at p. 1199.) In Hofsheier, the court held that “section 288a[, subdivision] (b)(1) and section 261.5 both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors ‘are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.’ (People v. Nguyen [(1997)] 54 Cal.App.4th [705,] 715 [63 Cal.Rptr.2d 173].)” (Hofsheier, supra, at p. 1200.)

We reject defendant’s suggestion that his conduct with Jane was consensual because there is “no evidence that the victim did not willingly engage in activities with appellant.” Attempted rape, oral copulation, and sexual penetration of a person incapable of giving legal consent due to mental, developmental, or physical disability, regardless of the age of the victim, are violent, nonconsensual crimes, which bear no relationship to the allegations in Hofsheier. There is no evidence that the “activities” in this case were consensual.

Defendant argues the inability to consent under the law is the same for minors who engage in consensual sex acts and victims who lack the capacity to consent. Defendant thus attempts to demonstrate that he is similarly situated with a person who engages in consensual sexual conduct with a minor. Defendant oversimplifies the issue.

“[W]hen the Legislature amended the rape statute in 1970 to exclude the act of sexual intercourse with a minor, and then created the separate crime of unlawful sexual intercourse with a minor (§ 261.5), it ‘implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations.’ (People v. Tobias (2001) 25 Cal.4th 327, 333 [106 Cal.Rptr.2d 80, 21 P.3d 758].) The existence of such consent, of course, is the distinction between the crimes. Nonconsensual sexual intercourse with a minor still constitutes rape, and carries a higher penalty.” (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620 [1 Cal.Rptr.3d 261], fn. omitted (Hillhouse).)

While some offenses, such as unlawful sexual intercourse, prohibit consensual sexual conduct with minors, crimes committed upon victims incapable of giving consent “do turn upon the issue of consent, and specifically ‘legal’ consent.” (Hillhouse, supra, 109 Cal.App.4th at p. 1620.) Minors are treated differently from adults because they have not reached the level of maturity presumed of adults, they tend to be more vulnerable, and less likely to think in long-range terms. (Id. at p. 1621.) “It is for those reasons that our laws governing sexual contact with minors make it irrelevant, as a general rule, whether the minor consented.” (Ibid.)

As a result, crimes against those legally incapable of consenting “contain different elements . . . than the provisions governing sexual contact with minors. If the prosecution proves only that the'sexual contact occurred with a victim who was under a certain age, but not that he or she was suffering from an impairment that precluded legal consent, the crime falls within the latter statutory definition. However, if the evidence demonstrates the victim was unable to give legal consent due to a disability, and the defendant knew or should have known that, then the crime falls within the statutes protecting mentally disordered or disabled victims, without regard to their age.” (Hillhouse, supra, 109 Cal.App.4th at p. 1621.)

Hillhouse makes clear that defendant, who committed acts upon a victim incapable of giving consent due to a mental disability, is not similarly situated to a defendant who engages in consensual sexual conduct with a minor. Crimes against those incapable of defending themselves are among the most serious under the law. The requirement that defendant register for life as a sex offender under section 290 does not violate equal protection.

DISPOSITION

The judgment is affirmed.-

Turner, P. 1, concurred.

1 Statutory references are to the Penal Code unless otherwise stated.

2 Examples of some of the leading questions on direct examination included the following: “You’re going to promise to tell us the truth today, right?”; “The person just talking was the judge, right?”; and “This is a picture of a little girl, right?”

3 The three exceptions were “Yeah, Vincent,” referring to her brother, “Yeah. A girl,” and “Yeah. Bob—Bob—he—,” referring to defendant.

4 The dates were established through the following questions and answers on cross-examination:

“Q Now you—this happened sometime in October?

“A Yeah.

“Q Of 2008; correct?

“A Yeah.

“Q Is that right?

“A Yeah. Right.

“Q And you told somebody—-you didn’t tell anybody, did you?

“A Yeah.

“Q Well, is the first person you told your teacher in March of 2009?

“A Yeah.

“Q So between October and March 2009, you didn’t tell anybody, did you?

“A (No audible response.)”

5 Vincent testified in the prosecution case that his father had talked about him going to live with his grandparents due to problems at school. Vincent was having some problems in school at that time, but he did not intend to live with his grandparents.

6 No medical records were introduced at trial.

7 In his testimony, Vincent denied drinking alcoholic beverages in the trailer.

8 The defense at trial was that there was no improper contact between defendant and Jane, not that Jane had the capacity to consent or that she did consent. The prosecutor argued to the jury that Jane lacked the mental capacity to consent, but defense counsel strategically did not address or contest this element of the charged offenses in argument. Suggesting that Jane had the capacity to consent, in light of her condition as revealed at trial, had the potential of being construed as an attack on an already sympathetic victim, a strategy unlikely to curry favor with jurors.

9 We need not address the Attorney General’s contention that Jane was prevented from consenting due to her physical condition. Our determination that there is substantial evidence the victim was incapable of consenting due to her mental disabilities, as argued by the prosecution below, is a complete response to defendant’s challenge to the sufficiency of the evidence. Our resolution of the substantial evidence issue should not be construed as meaning there was insufficient evidence of physical incapacity preventing consent—that is simply an issue we need not reach in this appeal.

The concurring opinion agrees, after expressing discomfort over the amount of proof presented by the district attorney, that there is substantial evidence Jane had a mental disability that prevented her from giving legal consent. Having resolved the case on that issue, our colleague’s additional discussion on the issue of physical incapacity preventing legal consent is unnecessary to resolve the appellate contention. In any event, the concurring opinion does not articulate a legal definition of physical incapacity negating legal consent, and it concludes only that the evidence is “questionable,” which provides no answer to defendant’s contention that the evidence is insufficient.

10 The jury received CALJIC Nos. 10.02, 10.11, and 10.32 defining the charged offenses, including the element that the alleged victim was incapable of giving legal consent “because of mental disorder or developmental or physical disability.”

11 A sexual assault victim is not required to react to a defendant’s unexpected attack and may fail to do so out of fear. (See People v. Inquez (1994) 7 Cal.4th 847, 858 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [sufficient evidence of rape by fear when victim, frozen by fear, did not react to unexpected attack].) The inferences to be drawn from a victim’s reaction or lack of reaction to a sexual assault vary from case to case. Here, the jury could have inferred Jane’s failure to react indicated she did not appreciate the consequences of what was taking place, which supports a finding that Jane lacked the mental capacity to consent.

12 We emphasize that we do not hold that Jane’s cerebral palsy equates with incapacity to consent. There is no evidence in the record to support such a conclusion. To be clear, we hold that the totality of evidence regarding Jane’s mental condition supports the rational conclusion that at the time of the offenses she was prevented from consenting.

13 Defendant contrasts the CALJIC instructions with CALCRIM Nos. 1004, 1019, and 1049 (defining the crimes at issue here), which defendant points out properly define the inability to give legal consent as a condition in which the victim is “unable to understand the act, its nature, and possible consequences”). The completeness of the CALCRIM instructions on this subject does not establish that the CALJIC instructions were erroneous or prejudicial under the circumstances of this case.

14 Consistent with the language of section 261.6, which is to be given in cases in which consent is in issue, CALJIC No. 1.23 provides as follows: “To consent to an act or transaction, a person (1) must act freely and voluntarily and not under the influence of threats, force or duress; (2) must have knowledge of the true nature of the act or transaction involved; and (3) must possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person. [1] [Merely being passive does not amount to consent.] Consent requires a free will and positive cooperation in an act or attitude.”

15 The Attorney General argues defendant forfeited his constitutional claims by failing to specifically assert them in the trial court. While it is true defense counsel did not specifically mention the Sixth Amendment in argument, the defense position was clearly stated that he had the right to question witnesses about the alleged prior false report of sexual abuse. We deem that sufficient to preserve the constitutional issue.

16 Evidence Code section 352 provides as follows: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

17 People v. Luansing, supra, 176 Cal.App.4th 676, People v. Garcia, supra, 161 Cal.App.4th 475, People v. Hernandez, supra, 166 Cal.App.4th 641, and People v. Manchel, supra, 163 Cal.App.4th 1108 were each disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, footnote 4 [106 Cal.Rptr.3d 239, 226 P.3d 348].