California Court Frees Rapist, Rules Only Married Women Protected by Law

[Quantum Windbag]

( empahasis added)

I am hardly angry at you, I am unsure why you believe such.

Please show where it stated in the law the proscutor charged him with (PENAL CODE
SECTION 261-269) that he had to pretend to be her husband, there were many definitions there.

This is the code he was charged under as stated in the appeal:

CA Codes (pen:261-269)

Did you read the decision? The prosecutor argued that he pretended to be her husband during the trial, that made that a requirement of the crime. He was wrong, and the conviction was overturned.

No, I did not see that he argued such, can you point me to where it says that in the decision? I see a lot of legal and previous case jargon mentioning husband, but I do not see where it said he argued such. Maybe I am blind tonight?

Page 6.

 

[CaféAuLait]

Did you read the decision? The prosecutor argued that he pretended to be her husband during the trial, that made that a requirement of the crime. He was wrong, and the conviction was overturned.

No, I did not see that he argued such, can you point me to where it says that in the decision? I see a lot of legal and previous case jargon mentioning husband, but I do not see where it said he argued such. Maybe I am blind tonight?

Page 6.

I just read page 6 and I do not see where he argued that he pretended to be her husband, because he did not.

The defendant won because of page 10-11 as well and it brings up the obscure case there.


A. Section 261, Subdivision (a)(4) and CALCRIM No. 1003 This is what he was chaged with:

Section 261 defines rape of an unconscious person as follows: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] . . . [¶] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, „unconscious of the nature of the act‟ means incapable of resisting because the victim meets one of the following conditions: [¶] (A) Was unconscious or asleep. [¶] (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. [¶] (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator‟s fraud in fact. [¶] (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator‟s fraudulent representation that the 7 sexual penetration served a professional purpose when it served no professional purpose.” (§ 261, subd. (a)(4).)

All of which he did.

At trial, the jury was instructed before closing arguments with, among other instructions, CALCRIM No. 1003. That instruction states: “The defendant is charged with raping a woman who was unconscious of the nature of the act in violation of Penal Code Section 261(a)(4). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The woman was unable to resist because she was unconscious of the nature of the act; [¶] AND [¶] 4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. [¶] A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” (Italics added.)

( he admitted to police and people there that night, that is exactly what he did)

Defense counsel objected to the last part of the final sentence, arguing that defendant did not trick, lie, or conceal information from Jane. The court indicated that counsel could argue that point to the jury, and overruled the objection.

In the opening portion of the prosecution‟s argument to the jury, the prosecutor argued that Jane was asleep and did not wake up until after defendant was having sex with her. Defense counsel then argued that Jane was awakened when she was moved on the bed, and that she was awake when she kissed defendant and had sex with him, although she may have thought he was her boyfriend Victor. Counsel argued, however, that defendant did not do anything to make her think that he was Victor.

The DA did not argue that he pretended to be her husband, the defense took the obscure law and used it to get him off. If she had been married then this would not have mattered because you can't have sex with a sleeping married woman, this is where the defendant got off because of the obscure line in 1003. Start reading page 10.


Justia :: Criminal Law 1003. Rape of Unconscious Woman or Spouse

Justia :: Criminal Law 1001. Rape or Spousal Rape in Concert


Start reading page 10 and it explains the whole husband thing which relates to cases 20 and 30 years old. He got off because the DA included CALCRIM 1003 in the instruction to the jury before they decided on guilt and the defense stated this could not be a crime of inducement since they can't prove he pretended to be someone else.

http://www.courts.ca.gov/opinions/documents/B233796.PDF

 

[Quantum Windbag]

No, I did not see that he argued such, can you point me to where it says that in the decision? I see a lot of legal and previous case jargon mentioning husband, but I do not see where it said he argued such. Maybe I am blind tonight?

Page 6.

I just read page 6 and I do not see where he argued that he pretended to be her husband, because he did not.

The defendant won because of page 10-11 as well and it brings up the obscure case there.


A. Section 261, Subdivision (a)(4) and CALCRIM No. 1003 This is what he was chaged with:



All of which he did.

At trial, the jury was instructed before closing arguments with, among other instructions, CALCRIM No. 1003. That instruction states: “The defendant is charged with raping a woman who was unconscious of the nature of the act in violation of Penal Code Section 261(a)(4). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The woman was unable to resist because she was unconscious of the nature of the act; [¶] AND [¶] 4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. [¶] A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” (Italics added.)

( he admitted to police and people there that night, that is exactly what he did)

Defense counsel objected to the last part of the final sentence, arguing that defendant did not trick, lie, or conceal information from Jane. The court indicated that counsel could argue that point to the jury, and overruled the objection.

In the opening portion of the prosecution‟s argument to the jury, the prosecutor argued that Jane was asleep and did not wake up until after defendant was having sex with her. Defense counsel then argued that Jane was awakened when she was moved on the bed, and that she was awake when she kissed defendant and had sex with him, although she may have thought he was her boyfriend Victor. Counsel argued, however, that defendant did not do anything to make her think that he was Victor.

The DA did not argue that he pretended to be her husband, the defense took the obscure law and used it to get him off. If she had been married then this would not have mattered because you can't have sex with a sleeping married woman, this is where the defendant got off because of the obscure line in 1003. Start reading page 10.


Justia :: Criminal Law 1003. Rape of Unconscious Woman or Spouse

Justia :: Criminal Law 1001. Rape or Spousal Rape in Concert


Start reading page 10 and it explains the whole husband thing which relates to cases 20 and 30 years old. He got off because the DA included CALCRIM 1003 in the instruction to the jury before they decided on guilt and the defense stated this could not be a crime of inducement since they can't prove he pretended to be someone else.

http://www.courts.ca.gov/opinions/documents/B233796.PDF

\

You read page 6? Did you skip over this sentence?

But as to his first contention, we conclude that under the
peculiar facts of this case, reversal is required because the prosecutor argued an incorrect theory of guilt, the instruction permitted the jury to convict on that theory, and the record does not permit us to find that the jury relied only on the prosecutor‟s correct theory.

That clearly states that the prosecutor argued the wrong theory.

 

[CaféAuLait]

Page 6.

I just read page 6 and I do not see where he argued that he pretended to be her husband, because he did not.

The defendant won because of page 10-11 as well and it brings up the obscure case there.


A. Section 261, Subdivision (a)(4) and CALCRIM No. 1003 This is what he was chaged with:



All of which he did.

( he admitted to police and people there that night, that is exactly what he did)

Defense counsel objected to the last part of the final sentence, arguing that defendant did not trick, lie, or conceal information from Jane. The court indicated that counsel could argue that point to the jury, and overruled the objection.

The DA did not argue that he pretended to be her husband, the defense took the obscure law and used it to get him off. If she had been married then this would not have mattered because you can't have sex with a sleeping married woman, this is where the defendant got off because of the obscure line in 1003. Start reading page 10.


Justia :: Criminal Law 1003. Rape of Unconscious Woman or Spouse

Justia :: Criminal Law 1001. Rape or Spousal Rape in Concert


Start reading page 10 and it explains the whole husband thing which relates to cases 20 and 30 years old. He got off because the DA included CALCRIM 1003 in the instruction to the jury before they decided on guilt and the defense stated this could not be a crime of inducement since they can't prove he pretended to be someone else.

http://www.courts.ca.gov/opinions/documents/B233796.PDF

\

You read page 6? Did you skip over this sentence?

But as to his first contention, we conclude that under the
peculiar facts of this case, reversal is required because the prosecutor argued an incorrect theory of guilt, the instruction permitted the jury to convict on that theory, and the record does not permit us to find that the jury relied only on the prosecutor‟s correct theory.

That clearly states that the prosecutor argued the wrong theory.

Nowhere does it state he argued that he pretended to be her husband as you claimed though.

Do you know what jury instructions are? It explains why the DA adding CALCRIM No. 1003 to the jury instruction on the charges and why it was not allowed. Read CALCRIM No. 1003( exactly what the defendant said he did) then read page 10 through 13 and you will see why the judges said that his including CALCRIM No. 1003 in the jury instructions at the end of the trial before deliberations caused this to be overturned. The defendant took advantage of a 150 year old loophole in CALCRIM 1003 which led to this being overturned.

 

[Quantum Windbag]

I just read page 6 and I do not see where he argued that he pretended to be her husband, because he did not.

The defendant won because of page 10-11 as well and it brings up the obscure case there.


A. Section 261, Subdivision (a)(4) and CALCRIM No. 1003 This is what he was chaged with:



All of which he did.

( he admitted to police and people there that night, that is exactly what he did)

Defense counsel objected to the last part of the final sentence, arguing that defendant did not trick, lie, or conceal information from Jane. The court indicated that counsel could argue that point to the jury, and overruled the objection.

The DA did not argue that he pretended to be her husband, the defense took the obscure law and used it to get him off. If she had been married then this would not have mattered because you can't have sex with a sleeping married woman, this is where the defendant got off because of the obscure line in 1003. Start reading page 10.


Justia :: Criminal Law 1003. Rape of Unconscious Woman or Spouse

Justia :: Criminal Law 1001. Rape or Spousal Rape in Concert


Start reading page 10 and it explains the whole husband thing which relates to cases 20 and 30 years old. He got off because the DA included CALCRIM 1003 in the instruction to the jury before they decided on guilt and the defense stated this could not be a crime of inducement since they can't prove he pretended to be someone else.

http://www.courts.ca.gov/opinions/documents/B233796.PDF

\

You read page 6? Did you skip over this sentence?

But as to his first contention, we conclude that under the
peculiar facts of this case, reversal is required because the prosecutor argued an incorrect theory of guilt, the instruction permitted the jury to convict on that theory, and the record does not permit us to find that the jury relied only on the prosecutor‟s correct theory.

That clearly states that the prosecutor argued the wrong theory.

Nowhere does it state he argued that he pretended to be her husband as you claimed though.

Do you know what jury instructions are? It explains why the DA adding CALCRIM No. 1003 to the jury instruction on the charges and why it was not allowed. Read CALCRIM No. 1003( exactly what the defendant said he did) then read page 10 through 13 and you will see why the judges said that his including CALCRIM No. 1003 in the jury instructions at the end of the trial before deliberations caused this to be overturned. The defendant took advantage of a 150 year old loophole in CALCRIM 1003 which led to this being overturned.

If you go back you will see I clearly stated, more than once, that the prosecutor screwed up. I even have the exact quote from the decision where it says that the reason they have to overturn the conviction is that the prosecutor argued that the defendant impersonated the husband and the trial court allowed the jury to use that theory to convict.

What the **** is your problem?

 

[CaféAuLait]

\

You read page 6? Did you skip over this sentence?

That clearly states that the prosecutor argued the wrong theory.

Nowhere does it state he argued that he pretended to be her husband as you claimed though.

Do you know what jury instructions are? It explains why the DA adding CALCRIM No. 1003 to the jury instruction on the charges and why it was not allowed. Read CALCRIM No. 1003( exactly what the defendant said he did) then read page 10 through 13 and you will see why the judges said that his including CALCRIM No. 1003 in the jury instructions at the end of the trial before deliberations caused this to be overturned. The defendant took advantage of a 150 year old loophole in CALCRIM 1003 which led to this being overturned.

If you go back you will see I clearly stated, more than once, that the prosecutor screwed up. I even have the exact quote from the decision where it says that the reason they have to overturn the conviction is that the prosecutor argued that the defendant impersonated the husband and the trial court allowed the jury to use that theory to convict.

What the **** is your problem?

Your initial claim was:

“The prosecutor elected to charge him with impersonating her husband, not rape. Blame that idiot, not the judge.”

Post 19 here:

http://www.usmessageboard.com/6608948-post19.html

I disagreed with you, showed you he was charged with “rape of an unconscious person through trickery” and you told me I should read my own links because I was wrong. That is what we have been discussing.

 

[Quantum Windbag]

Nowhere does it state he argued that he pretended to be her husband as you claimed though.

Do you know what jury instructions are? It explains why the DA adding CALCRIM No. 1003 to the jury instruction on the charges and why it was not allowed. Read CALCRIM No. 1003( exactly what the defendant said he did) then read page 10 through 13 and you will see why the judges said that his including CALCRIM No. 1003 in the jury instructions at the end of the trial before deliberations caused this to be overturned. The defendant took advantage of a 150 year old loophole in CALCRIM 1003 which led to this being overturned.

If you go back you will see I clearly stated, more than once, that the prosecutor screwed up. I even have the exact quote from the decision where it says that the reason they have to overturn the conviction is that the prosecutor argued that the defendant impersonated the husband and the trial court allowed the jury to use that theory to convict.

What the **** is your problem?

Your initial claim was:

“The prosecutor elected to charge him with impersonating her husband, not rape. Blame that idiot, not the judge.”

Post 19 here:

http://www.usmessageboard.com/6608948-post19.html

I disagreed with you, showed you he was charged with “rape of an unconscious person through trickery” and you told me I should read my own links because I was wrong. That is what we have been discussing.

That was his argument in court, that was the charge the jury convicted him of, this was fault of the the prosecutor. The mere fact that there are other possible charges in the same law does not change the fact that this was the theory the prosecution used.

 

[CaféAuLait]

If you go back you will see I clearly stated, more than once, that the prosecutor screwed up. I even have the exact quote from the decision where it says that the reason they have to overturn the conviction is that the prosecutor argued that the defendant impersonated the husband and the trial court allowed the jury to use that theory to convict.

What the **** is your problem?

Your initial claim was:

“The prosecutor elected to charge him with impersonating her husband, not rape. Blame that idiot, not the judge.”

Post 19 here:

http://www.usmessageboard.com/6608948-post19.html

I disagreed with you, showed you he was charged with “rape of an unconscious person through trickery” and you told me I should read my own links because I was wrong. That is what we have been discussing.

That was his argument in court, that was the charge the jury convicted him of, this was fault of the the prosecutor. The mere fact that there are other possible charges in the same law does not change the fact that this was the theory the prosecution used.

No it was not. He was charged with rape of an unconscious person under Penal Code section 261, subdivision (a)(4).1 and THAT is exactly what the jury found him guilty of. You are misunderstanding the Superior Court's written opinion. They speak of the DA's argument from the 'instruction to the jury" ( which occurs after the trial before sentencing) when he added the instruction from CALCRIM 1003. The DA did not argue she was married. They said on page 6, what you point out "incorrect theory of guilt" and that incorrect theory of guilt was, "he pretended to be her boyfirend". Read pages 1 and 2.

See page 1-2. Here is the decision, what he was charged with AND where the Supreme Court found the DA was wrong, (quoted from the decision):

He was charged with rape of an unconscious person under Penal Code section 261, subdivision (a)(4).1 The jury was instructed with CALCRIM No. 1003, which, as given, stated in part that “[a] woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” (Italics added.)... The prosecutor argued both correct and incorrect theories under which Jane was unconscious: that she was asleep (correct), and that she was not aware of the essential characteristics of the act because defendant deceived her into believing he was her boyfriend (as we explain below, incorrect).

Nowhere did the DA argue that he tricked her into believing he was her husband. The Superior Court used the antiquated part of CALCRIM 1003 to overturn because the defense said the perp could not deceive her under law unless he was pretending to be her husband. So the DA erred according to the court *only* because the DA was arguing that he pretended to be her boyfriend while raping her. EXACTLY what the perp did and admitted to, and the defense used that to overturn.

http://www.courts.ca.gov/opinions/documents/B233796.PDF

 

[Noomi]

Just like the stupid laws of today, when those old laws were passed, they made sense at the time. Most of the really stupid, or unworkable laws happen because of a single incident or circumstance which gets the public's attention. In some cities, it is against the law for a store to provide customers with a plastic bag. Clint Eastwood finally repealed the law in Carmel forbidding eating an ice cream cone in public. A law passed a couple of years ago in Manhattan Beach prohibited any form of exercise in a public park. Santa Monica will shortly pass the same law, although they intend to have a permit allowed for someone who wants to exercise in the park.

The law that this judge relied on actually makes sense. The woman WILLINGLY had sex with the man. She did not say NO. A boyfriend does not carry any legal status as would a husband. Especially in 1872 where a man had a right to have sex with his wife and that right was not transferable. The husband in 1872 had a right to have sex with his wife. No other man had a right to have sex with this man's wife. In 2013 any man can have sex with any woman unless she objects. She did not object.
It was not rape.

I tend to agree with this. While she was taken advantage of, she was also extremely naive, and she has certainly paid for that.

 

[CaféAuLait]

Just like the stupid laws of today, when those old laws were passed, they made sense at the time. Most of the really stupid, or unworkable laws happen because of a single incident or circumstance which gets the public's attention. In some cities, it is against the law for a store to provide customers with a plastic bag. Clint Eastwood finally repealed the law in Carmel forbidding eating an ice cream cone in public. A law passed a couple of years ago in Manhattan Beach prohibited any form of exercise in a public park. Santa Monica will shortly pass the same law, although they intend to have a permit allowed for someone who wants to exercise in the park.

The law that this judge relied on actually makes sense. The woman WILLINGLY had sex with the man. She did not say NO. A boyfriend does not carry any legal status as would a husband. Especially in 1872 where a man had a right to have sex with his wife and that right was not transferable. The husband in 1872 had a right to have sex with his wife. No other man had a right to have sex with this man's wife. In 2013 any man can have sex with any woman unless she objects. She did not object.
It was not rape.

I tend to agree with this. While she was taken advantage of, she was also extremely naive, and she has certainly paid for that.

I can't see how this was being naive and just being taken advantage of to be honest.

The man stated she was asleep when he penetrated her first with his fingers and then his penis, he said he knew she was asleep, he also told cops he knew that she would believe he was her boyfriend. She had been drinking that evening and had fallen asleep with her boyfriend. He left and the other man snuck in snuck into the room. As soon as she fully woke up and realized it was not him she hit him and screamed NO and forced his penis out of her. The man then forced his penis back into her. The whole thing was rape from start to finish.

I am unsure how this is any different from having sex with a woman who was drunk or drugged. She was sound asleep after a night of partying and he raped her. Because she did not immediately realize it was not her boyfriend should not be of any consequence IMO.

And as far as the statement from the other poster where they state a man can have sex with any woman as long as she does not object that is totally wrong. You can't have sex with drunk women, drugged women, they have to be aware and able to consent.

 

[Noomi]

Just like the stupid laws of today, when those old laws were passed, they made sense at the time. Most of the really stupid, or unworkable laws happen because of a single incident or circumstance which gets the public's attention. In some cities, it is against the law for a store to provide customers with a plastic bag. Clint Eastwood finally repealed the law in Carmel forbidding eating an ice cream cone in public. A law passed a couple of years ago in Manhattan Beach prohibited any form of exercise in a public park. Santa Monica will shortly pass the same law, although they intend to have a permit allowed for someone who wants to exercise in the park.

The law that this judge relied on actually makes sense. The woman WILLINGLY had sex with the man. She did not say NO. A boyfriend does not carry any legal status as would a husband. Especially in 1872 where a man had a right to have sex with his wife and that right was not transferable. The husband in 1872 had a right to have sex with his wife. No other man had a right to have sex with this man's wife. In 2013 any man can have sex with any woman unless she objects. She did not object.
It was not rape.

I tend to agree with this. While she was taken advantage of, she was also extremely naive, and she has certainly paid for that.

I can't see how this was being naive and just being taken advantage of to be honest.

The man stated she was asleep when he penetrated her first with his fingers and then his penis, he said he knew she was asleep, he also told cops he knew that she would believe he was her boyfriend. She had been drinking that evening and had fallen asleep with her boyfriend. He left and the other man snuck in snuck into the room. As soon as she fully woke up and realized it was not him she hit him and screamed NO and forced his penis out of her. The man then forced his penis back into her. The whole thing was rape from start to finish.

I am unsure how this is any different from having sex with a woman who was drunk or drugged. She was sound asleep after a night of partying and he raped her. Because she did not immediately realize it was not her boyfriend should not be of any consequence IMO.

And as far as the statement from the other poster where they state a man can have sex with any woman as long as she does not object that is totally wrong. You can't have sex with drunk women, drugged women, they have to be aware and able to consent.

If she was asleep then that changes things, and if she did say no, and he continued, then that also changes things.

It is sad though - she was violated and is still suffering, yet the person responsible walked free.

 

[CaféAuLait]

I tend to agree with this. While she was taken advantage of, she was also extremely naive, and she has certainly paid for that.

I can't see how this was being naive and just being taken advantage of to be honest.

The man stated she was asleep when he penetrated her first with his fingers and then his penis, he said he knew she was asleep, he also told cops he knew that she would believe he was her boyfriend. She had been drinking that evening and had fallen asleep with her boyfriend. He left and the other man snuck in snuck into the room. As soon as she fully woke up and realized it was not him she hit him and screamed NO and forced his penis out of her. The man then forced his penis back into her. The whole thing was rape from start to finish.

I am unsure how this is any different from having sex with a woman who was drunk or drugged. She was sound asleep after a night of partying and he raped her. Because she did not immediately realize it was not her boyfriend should not be of any consequence IMO.

And as far as the statement from the other poster where they state a man can have sex with any woman as long as she does not object that is totally wrong. You can't have sex with drunk women, drugged women, they have to be aware and able to consent.

If she was asleep then that changes things, and if she did say no, and he continued, then that also changes things.

It is sad though - she was violated and is still suffering, yet the person responsible walked free.

Yeah she was asleep, here is what she said and what he said to the police:

This is from the court testimony:

According to Jane, she woke up to the sensation of having sex. She was in adifferent position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away.

Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor,asking him to come back to her house.When Victor got to the house and learned what had happened, he called the police. Deputy Sheriff Peralta and other deputies responded and searched the area, eventually finding defendant crouched down behind some bushes. While being detained in Deputy Peralta‟s patrol car, defendant spoke to another deputy, Deputy Leyn. He admitted that he had gone into Jane‟s room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and startedto have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming.

The People V. Julio Morales


A side note, does your name have a meaning, I think it is a pretty cool name!

 

[OohPooPahDoo]

Damn. That's an odd one.

It makes no sense, unless the intent of the law was to protect the husband and not the woman. I can't even figure why it would have ever been an issue.

Uhh, because in 1872 women who had sex out of wedlock were perceived as worthless whores who will sleep with anyone anyway?

Duh.