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People v. Rigby-Fene2/20/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Lofton Rigby-Fene was convicted of rape and granted probation. He appeals, arguing his prosecution for rape denied him equal protection, the trial court erred in failing to instruct that his intoxication was relevant in deciding whether he formed the requisite mental state for the crime and the trial court interfered with the jury's independent deliberations by instructing in the terms of CALJIC No. 17.41.1.
FACTS
On September 7, 2001, Sara B. and friends went to a party. They arrived at approximately 6:30 p.m. and Sara, not an experienced drinker, started drinking shots of rum. Around 10:00 p.m. Sara, her friends and appellant went to a second party. Sara continued to drink heavily and appeared drunk. At approximately midnight Sara obtained a ride home with several men, including appellant. Sara became ill and was told to lie down in the back seat. Once in the back seat she passed out.
The next thing Sara remembered was appellant and another man undressing her in the car. Sara tried to resist but was too drunk to say or do anything. Appellant then raped her. She passed out again. When she awoke another man was having intercourse with her. Sara was able to grab her clothes and get out to the car. Eventually, she called a friend who took her to the police to report the crime . Based on a blood sample taken from Sara later that evening, it was estimated that at the time of the crime she had a blood alcohol level of .17 to .19.
After his arrest Rigby-Fene corroborated much of Sara's account of events. However, when interviewed by police, he maintained that he was uncertain as to whether he had sex with Sara because his recollection was clouded by his consumption of alcohol, NyQuil and marijuana. Eventually, he admitted to having sex but claimed that he asked for Sara's consent first and she responded "Um-hmm."
DISCUSSION
A. Equal Protection
Appellant argues his prosecution for the rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) denied him equal protection. A denial of equal protection can take several forms. (See People v. Superior Court (Perez) 75 Cal.App.4th 394, 403.) Appellant asserts two. He first contends he was denied equal protection when the prosecution charged him but not Sara with rape. He notes evidence that both were drunk at the time of the incident and argues that charging him and not her with the crime was an unequal application of the law based on gender discrimination. Second, appellant argues that since the law of rape in California protects only women and only criminalizes the conduct of men, it denies equal protection on its face.
1. Statutory Denial of Equal Protection
Appellant argues that on its face section 261's definition of rape denies equal protection since it discriminates on the basis of gender. As interpreted by appellant the section allows the prosecution of men but not women for the same activity, i.e., men but not women can commit rape. Appellant misreads the section.
Before 1980, section 261 defined rape as "an act of sexual intercourse, accomplished with a female not the wife of the perpetrator" under five listed circumstances. Each of those circumstances referred to the victim as "she." (§ 261, as enacted in 1872.) Thus, men but not women could commit rape and only women could
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