Metropolitan News-Enterprise


Thursday, January 3, 2013


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Court Throws Out Rape Conviction Based on Impersonation

Panel Says Posing as Another to Have Sex With an Unmarried Woman is Not Rape


By JACKIE FUCHS, Staff Writer


A man who obtains an unmarried woman’s consent to sex by impersonating her boyfriend cannot be found guilty of rape, this district’s Court of Appeal held yesterday.

In an opinion Justice Thomas L. Willhite Jr. characterized as “reluctant,” a unanimous panel said that it was compelled to reach that conclusion “because of historical anomalies in the law and the statutory definition of rape,” which makes sexual intercourse by impersonation a rape only when the victim is married and the perpetrator impersonates the victim’s spouse.

Prosecutors alleged that in 2009, Julio Morales entered the dark bedroom of the victim and had sexual intercourse with her while she was either asleep or mistaken in her belief that it was her boyfriend who had climbed into bed with her.

After a jury trial, Morales was found guilty of rape of an unconscious person under Penal Code Sec. 261(a)(4).

“Jane Doe,” then 18, and her boyfriend, identified only as Victor, had gone into her bedroom one night after a party, turned off the light, and lay down on her bed, according to testimony. She asked him to spend the night, but he declined because he had something to do the next morning.

They talked about having sex, but decided not to since he did not have a condom and they never engaged in unprotected sex.  While he was still there, she fell asleep, and shortly afterward he left.

According to the prosecution, she woke up five to 10 minutes later to find someone having sex with her. When she realized it was not her boyfriend, she tried to push the man away, but Morales allegedly grabbed her thighs and pushed his penis back into her vagina.

Morales testified that he started to have sex with the woman, but said he did not know she was asleep and that he stopped as soon as she realized he was not her boyfriend.

Jury Instructions

Before closing arguments, Los Angeles Superior Court Judge Robert Higa gave the jury instructions that included CALCRIM No. 1003, concerning the rape of an unconscious person.  Jurors were told that “[a] woman is unconscious … if she is … asleep … or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.”

The defense objected to the last clause, arguing that Morales did not trick, lie, or conceal information from Jane Doe. Higa overruled the objection, saying that counsel could argue the point to the jury.

The prosecution argued two theories to the jury of why Jane Doe was unconscious: (1) that she was asleep, and (2) that Morales had concealed his identity from her.

On appeal, Morales asserted that Higa erred when he instructed the jury that it could convict based on the defendant’s alleged concealment of his identity.

The panel agreed, saying that under “the peculiar facts of this case,” reversal was necessary because the justices could not tell whether the jury had convicted Morales because the victim was asleep—a correct theory—or that Morales had concealed his identity—an incorrect one.

The prosecutor’s second theory was contrary to California law because it involved fraud in the inducement rather than fraud in the fact, Willhite explained.

Fraud in the fact occurs when the defendant obtains the victim’s consent to perform one act, but instead engages in another act.  In such a situation, consent is absent.

By contrast, fraud in the inducement takes place when the defendant makes misrepresentations to the victim in order to get her consent for a particular act, and then proceeds to carry out that very act.

The question of whether one who impersonates another in order to accomplish sexual intercourse commits fraud in the fact or fraud in the inducement is “one that has vexed courts for more than a hundred years,” Willhite wrote. Courts have historically been reluctant to impose criminal liability for the latter since the victim consented to the particular act performed, albeit under false pretenses.

Definition of ‘Unconscious’

Under Penal Code Sec. 261, a victim is “unconscious of the nature of the act” in circumstances including when the victim “[w]as not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.”

That statutory definition is, the panel said, reflected in the last part of CALCRIM No. 1003.  As such, Willshite wrote, a juror easily could conclude that the identity of the sexual partner is an essential characteristic of an act of sexual intercourse.

But while that might be a reasonable interpretation of the language of the statute, he said, the principles of statutory construction prohibit such a conclusion.  Penal Code 261(a)(5) defines rape to include the situation in which a victim submits “under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief.”

Willhite said that the panel was compelled to interpret Sec. 261(a)(4), which covers the situation in which the victim is “at the time, unconscious of the nature of the act, and this is known to the accused” in a way that does not render subdivision (a)(5) superfluous.

“Therefore, we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person under section 261, subdivision (a)(4),” he wrote.

Given “the unusual facts of this case,” the panel directed the court on retrial to delete the last portion of CALCRIM No. 1003, because “[o]n the evidence presented, and under the current state of the law, that provision of the instruction does not apply.”

Although not necessary to resolve the appeal, the panel also addressed Morales’ claim that Higa erred by failing to give instructions that would have allowed the jury to consider his good faith, but mistaken, belief that Jane Doe had consented to sexual intercourse with him, saying the issue was likely to arise on retrial.

It concluded that the defendant’s belief as to the victim’s consent was not relevant, because it is his knowledge that the victim was unconscious and his intent to engage in an act of sexual intercourse with an unconscious person that makes that act a crime under Sec. 261(a)(4). If the jury believed the defendant thought Jane Doe was awake and conscious while she was engaging in sexual intercourse, it could not find defendant guilty of rape of an unconscious person, so no other instruction was necessary.

Presiding Justice Norman L. Epstein  and Justice Nora M. Manella concurred in the opinion.

Deputy Attorneys General Linda C. Johnson and Elaine F. Tumonis represented the prosecution on appeal. Edward H. Schulman represented Morales, by appointment.

The case is People v. Morales; 1 S.O.S. 12.


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