The victim’s capacity to consent in a sex offense can be established by the jury’s assessment of the victim’s demeanor. Appellant was convicted of attempted rape, oral copulation, and sexual penetration of his 15-year-old granddaughter who suffered from cerebral palsy. All three convictions were based on the theory that the victim was incapable of giving legal consent to the acts because of a mental disorder or developmental physical disability. The appellate court rejected appellant’s contention that insufficient evidence was presented that the victim lacked the capacity to consent due to a mental disorder. No expert testimony on this issue is required. Here, sufficient circumstantial evidence was presented to establish that the victim lacked capacity to consent: when assaulted, she did not respond to the assailants question as to whether she liked the sexual assault; her description of the assault at trial was childlikeone syllable responses and hand gestures to direct questions; witnesses described her as suffering from cerebral palsy with related seizures, and that she attended special education classes, and had problems walking and talking.
Evidence of a prior false complaint may be excluded under Evidence Code section 352 if its relevance is questionable, it is unclear, and it involves layers of statements to develop its point. Evidence of a prior false report of molestation is relevant to the credibility of the victim. Here, defense counsel sought to introduce evidence that victim was listed as victim and her father as a suspect in a prior molest incident. The appellate court found no abuse of discretion in its exclusion because it was unclear who made the complaint, the prosecutor claiming the victims mother complained to a social worker; there was no showing that it was false; the evidence had a potential for confusing the jury; and there was an independent witness in the present case whereas there was no witness in the prior case.
Lifetime sex offender registration for a person convicted of offenses against a victim incapable of consent does not violate equal protection. The court rejected appellant’s claim that lifetime registration violated equal protection, finding that there was no showing that appellant was in a class similarly situated to the individual for whom there is no lifetime registration. (See People v. Hofsheier (2006) 37 Cal.4th 1185 where defendant was convicted of oral copulation of a 16-year-old-girl.) Unlike Hofsheier, appellant was convicted of violent, nonconsensual crimes.