People v. Howard

Opinion

GARDNER, P. J.

Defendant was on probation for violation of Penal Code section 288. He was found in violation of probation for violation of law, i.e., sodomizing and orally copulating an 18-year-old mentally retarded man.

The victim, nineteen-year-old Kenyon W., acted as though he were five to seven years of age; his reading level was on the first or second grade level; and he spoke as if he were a six- or eight-year-old child. He resided in a home for developmentally disabled persons with the mentality of five- to seven-year olds. The defendant worked at the home where Kenyon lived (an odd occupation for one on probation for sexual perversion). The defendant committed the acts on Kenyon who saw nothing wrong with the sodomy or the oral copulation since both he and the defendant enjoyed it.

[55]

Defendant contends that this factual situation cannot support a finding of violation of law. We do not agree.

Both Penal Code sections 288a, subdivision (f) and 286, subdivision (f) provide that it is a crime to commit the proscribed acts when “the victim is at the time unconscious of the nature of the act and this is known to the person committing the act.” Defendant contends this means that the unconsciousness must be total, i.e., a total unawareness that the physical act is being performed. This is not what the section says and

People

v.

Minkowski

(1962) 204 Cal.App.2d 832 [23 Cal.Rptr. 92] on which defendant relies says no such thing.

Minkowski,

at page 842, says that this element of the crime is “that the victim was at the time unconscious of the nature of the act.” While it is true that the victims in

Minkowski

may have been totally unaware of what was happening (a doctor told two women patients that he was performing medical tests when actually having sexual intercourse with them), the test