California Court of Appeal Oct 23, 2023 No. E079594Unpublished
Filed 10/23/23 P. v. Vicente CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079594
v. (Super.Ct.No. RIF2003251)
SANTOS VICENTE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and A.
Natasha Cortina, Deputy Attorney Generals, for Plaintiff and Respondent.
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A jury found defendant and appellant Santos Vicente guilty of rape and sodomy
of a child under 14 years old and more than seven years younger than defendant (Pen.
Code, § 269, subds. (a)(1) & (a)(3))1; and two counts of a lewd act upon a child under
14 years old (§ 288, subd. (a)). The trial court sentenced defendant to prison for a term
The People charged defendant with: aggravated sexual assault of a child, in the
form of rape (§ 269, subd. (a)(1)) (Count 1); aggravated sexual assault of a child, in the
form of sodomy (§ 269, subd. (a)(3)) (Count 2); and two counts of a lewd act upon a
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child (§ 288, subd. (a)) (Counts 3 & 4) as lesser included offenses of Counts 1 and 2.
The trial court denied defendant’s request for a statutory rape instruction.2
Defendant’s theory of the case was that the 13-year-old victim consented. In
closing argument to the jury, defendant’s trial counsel argued, “Count 3 and Count 4,
288(a), if you notice there is no issue in regards to whether consent was rendered. It’s
not an element. It’s not something you can consider. It doesn’t matter. When you have
sex with somebody who’s under 14 and you have the elements that are present in Count
3 and Count 4, that means that a crime was committed. [¶] Count 1 and Count 2, the
critical issue here [is consent].” Defense counsel continued, “And it wasn’t rape. And
it wasn’t sodomy. But there was sex. There’s no issue there. You’re not here to
determine that. It happened. [¶] So hold [defendant] accountable for what he did do
wrong, what he is responsible for, which is Count 3 and Count 4.”
2. ANALYSIS
Defendant contends the trial court violated his right of due process because
defendant’s theory of the case was that the victim consented to intercourse and sodomy,
and, by omitting instructions for statutory rape (§ 261.5, subd. (a)) and sodomy with a
minor (§ 286, subd. (b)(1)), the trial court only instructed the jury on the People’s theory
of the case. Defendant asserts, “[T]he trial court unfairly forced the jurors to either
accept the prosecutor’s theory of the case, or to acquit [defendant].”
2 “[S]tatutory rape is a lesser included offense of aggravated sexual assault/forcible rape under the statutory elements test.” (People v. Vasquez (2021) 63 Cal.App.5th 107, 113.)
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A defendant’s due process “right to present a defense ‘would be empty if it did
not entail the further right to an instruction that allowed the jury to consider the
defense.’ ” (Bradley v. Duncan (2002 9th Cir.) 315 F.3d 1091, 1099.) Lack of consent
is not an element of a lewd act upon a child (§ 288, subd. (a)). (People v. Soto (2011)
51 Cal.4th 229, 238.) When instructing the jury on the offense of a lewd act upon a
child (§ 288, subd. (a)), the trial court informed the jury, “It is not a defense that the
child may have consented to the act.” (CALCRIM No. 1110.)
Lack of consent is an element of aggravated sexual assault of a child. (§§ 261,