California Court of Appeal Jul 9, 2024 No. B328388Published
Filed 7/9/24 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B328388
Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA474486 v.
SANTIAGO GONZALO CANALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Convictions affirmed, sentence vacated, and remanded for resentencing. George Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Supervising Deputy Attorney General, and Stefanie Yee, Deputy Attorney General, for Plaintiff and Respondent. ____________________
Santiago Gonzalo Canales appeals his convictions for lewd acts and for continuous sexual abuse of children. (Pen. Code, §§ 288, 288.5.) All code citations are to the Penal Code. Canales challenges two different jury instructions. The first is CALCRIM No. 1120. Canales argues this instruction did not identify the correct mental states for section 288.5’s offense of continuous sexual abuse. We construe this somewhat complex statute according to a venerable canon of statutory interpretation: the presumption of mandatory culpability. This canon validates CALCRIM No. 1120, which stated the statute’s required mental states in a legally acceptable manner. Canales’s second challenge concerns CALCRIM No. 252. We assume this instruction, as given, was error, but hold the error was harmless. Canales forfeited a third challenge, but, on his fourth point, we agree with both parties: Canales must be resentenced. We remand for this purpose. I Canales sexually abused his stepdaughter and his niece for over a decade. Both were under the age of 14 during the abuse. Canales touched his niece in inappropriate ways but did not penetrate her vagina. He penetrated his stepdaughter’s vagina with his penis and fingers and touched her in other inappropriate ways. A At trial, Canales’s niece, his stepdaughter, and Canales himself testified.
1 The niece, born December 23, 2001, testified Canales sexually molested her from ages seven through 13. Canales first asked her to go upstairs, saying he had something to give her. The niece recalled she was seven but could not remember the exact date. This placed the event after her seventh birthday, which was December 23, 2008, and before her eighth birthday a year later. These dates will assume significance. Upstairs in a bedroom, “it started with just him caressing my body.” Canales kept telling her it was okay. Two days later he caressed her chest and back and gave her two dollars. From then on, Canales continued molesting his niece until she was 13. Canales touched the skin of her vagina, thighs, back, and breasts. He moved his hand when he touched her vagina and touched her back with his penis. When he was done, Canales usually gave her money. Canales touched her breasts almost every time he saw her, which was about twice a week. He rubbed her outer and inner thighs “[a]ll the time.” Canales touched her vagina eight to ten times. “[A]s I grew older, I felt more uncomfortable with what he was doing.” She told him to stop, and he told her it was okay. 2 The stepdaughter, born in 1991, testified she was about 11 when Canales began molesting her. Canales began his abuse of his stepdaughter in 2002. Canales touched his stepdaughter’s vagina under her underwear, put his fingers inside her vagina, and moved them around. Canales told her that it was okay, but that she should not tell her mother. Canales began penetrating his
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stepdaughter’s vagina with his penis. When she was 12 or 13, this happened about once a month. When the stepdaughter turned 14, Canales continued his abuse. The prosecution did not charge Canales with abusing his stepdaughter after she turned 14, but she testified he began orally copulating her at that point. He did this 12 to 15 times. He continued to abuse her sexually until she was almost 16. He gave her money afterwards and told her to hide it. Sometimes he would leave the money in the bathroom after he washed up. She testified, “I felt like a prostitute.” 3 Canales claimed he never did anything sexual with either girl. He denied taking his niece to a room on the second floor and denied touching her inappropriately. He never molested his stepdaughter, never touched her inappropriately, and never had intercourse with her. B The amended information charged Canales with four counts. 1. A lewd act (§ 288, subd. (a)) on his niece during the year following December 23, 2008 (count 1). This was when she was seven years old. 2. Continuous sexual abuse of a child (§ 288.5, subd. (a))—his niece—between 2009 and 2013 (count 2). 3. A lewd act (§ 288, subd. (a)) on his niece during the two years following December 23, 2013 (count 3). This was when the niece was 12 or 13 years of age. 4. Continuous sexual abuse (§ 288.5, subd. (a)) of his stepdaughter between 2002 and 2005 (count 4). The
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stepdaughter was 11 to 13 years old from 2002 to 2005. Counts two and four charged violations of the statute prohibiting continuous sexual abuse of a child. That statute is the focus of Canales’s appeal. C The trial lasted eight days. During closing argument, the prosecution urged jurors to believe the niece, the stepdaughter, and the other prosecution witnesses. Canales’s closing argument was “it didn’t happen.” His attorney contended the prosecution witnesses were inconsistent and unreliable and had incentives to lie. “[W]ithin this family, there’s a lot of bad blood.” The defense argued the prosecution’s version of events did not make sense, which created reasonable doubt. Jurors began deliberating at 2:47 p.m. on the last day of trial. About an hour later, they convicted Canales on all counts and found the multiple victims allegations true. The court sentenced Canales to 60 years to life in prison, consisting of four consecutive sentences of 15 years to life. II Canales makes four arguments. Two lack merit, the third is forfeited, and the fourth is correct. Canales’s first two arguments are about, respectively, CALCRIM No. 1120 and CALCRIM No. 252. Canales’s first argument is about CALCRIM No. 1120. He maintains this jury instruction should have included a heightened mental state requirement for the element of “substantial sexual conduct,” which is a part of section 288.5’s
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offense of continuous sexual abuse of a child. The presumption of mandatory culpability shows Canales’s proposal misinterprets section 288.5. This claim fails. Canales’s second argument is that CALCRIM No. 252 misapplied the terms “general intent” and “specific intent.” We assume this instruction indeed did err, but we hold the error was harmless. Canales forfeited his third argument. Canales’s fourth argument is about his sentencing. The prosecution agrees with Canales on this point, and so do we. We remand for resentencing. A We sketch pertinent law. When construing statutes and reviewing challenges to jury instructions, our review is independent. (E.g., People v. Thomas (2023) 14 Cal.5th 327, 382.) 1 A decision from 1866 instructs us that “to constitute what the law deems a crime there must concur both an evil act and an evil intent. Actus non facit reum nisi mens sit rea.” (People v. Harris (1866) 29 Cal.678, 681 (Harris).) This italicized phrase means an act does not make one guilty unless one’s mind is guilty. (LaFave, Modern Criminal Law: Cases, Comments and Questions (4th ed. 2006) p. 111.) An alternative translation is “[a]n act does not constitute a crime unless there is criminal intent.” (Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 303 (Reading Law).) In 1872, California enacted section 20, which provides that, for every crime, there must exist a union, or joint operation, of act and intent, or criminal negligence.
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The 1866 Harris decision and the 1872 statute express the “ancient requirement of a culpable state of mind.” (Morissette v. United States (1952) 342 U.S. 246, 250 (Morissette).) The culpability requirement is general in Anglo-American criminal law. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a ‘vicious will.’ . . . Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.” (Morissette, supra, 342 U.S. at pp. 250–252, italics added.) Mens rea is profoundly significant, as this case illustrates. Consider the act of touching a child. Parents, teachers, and others touch youngsters every day in socially accepted ways. But to touch a child with the intent of creating sexual arousal is a serious crime. (People v. Martinez (1995) 11 Cal.4th 434, 442 [“any touching” of an underage child committed with the intent to sexually arouse either the defendant or the child is a felony].) The mental state with which an act is done can make a world of difference. The pervasiveness of the requirement of an “evil-meaning” mind means that, even when criminal statutes are written to include no mens rea requirement, “courts assumed that the
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omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” (Morissette, supra, 342 U.S. at p. 252, italics added.) Courts in the last half-century have interpreted criminal statutes by presuming legislators intended their statutes to outlaw only morally culpable conduct. The presumption is legislators do not want to incriminate “morally innocent” conduct. (People v. Vogel (1956) 46 Cal.2d 798, 804 (Vogel).) This canon of statutory interpretation is the presumption of mandatory culpability. (Cf. Reading Law, supra, at p. 303 [describing the “Mens Rea Canon”].) California courts have been applying the presumption of mandatory culpability for generations. Chief Justice Roger Traynor—California’s most esteemed jurist—applied this presumption in 1956. A jury convicted Robert Vogel of bigamy. Vogel protested he was morally innocent because he had a bona fide and reasonable belief his first wife divorced him. (Vogel, supra, 46 Cal.2d at pp. 800–801.) Chief Justice Traynor wrote that, “[a]s in other crimes, there must be a union of act and wrongful intent. So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication. . . . Certainly its exclusion cannot be implied from the mere omission of any reference to intent in the definition of bigamy . . . .” (Id. at pp. 801–802, footnotes omitted, italics added.) Chief Justice Traynor applied the presumption of mandatory culpability: he interpreted the bigamy statute by presuming legislators did not intend their criminal law would ensnare morally innocent people. He quoted the 1866 Harris
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decision: “It is laid down in the books on the subject, that it is a universal doctrine that to constitute what the law deems a crime there must concur both an evil act and an evil intent. Actus non facit reum nisi mens sit rea.” (Vogel, supra, 46 Cal.2d at p. 802.) “Thus, the prosecution makes a prima facie case upon proof that the second marriage was entered into while the first spouse was still living[,] [citations omitted] and his bona fide and reasonable belief that facts existed that left the defendant free to remarry is a defense to be proved by the defendant.” (Vogel, supra, 46 Cal.2d at p. 803.) To interpret the statute in this manner, Chief Justice Traynor wrote, “is consistent with good sense and justice.” (Vogel, supra, 46 Cal.2d at p. 804.) “The severe penalty imposed for bigamy, the serious loss of reputation conviction entails, the infrequency of the offense, and the fact that it has been regarded for centuries as a crime involving moral turpitude, make it extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape.” (Ibid., fn. omitted, italics added.) Vogel’s presumption of mandatory culpability thus protected “morally innocent” people from criminal liability by placing their innocent conduct beyond the statute’s incriminating reach. (Vogel, supra, 46 Cal.2d at p. 804.) In the years since Vogel, the Supreme Court of the United States applied the presumption of mandatory culpability to an array of federal criminal statutes. Important among these is Staples v. United States (1994) 511 U.S. 600 (Staples). Staples aptly summarized the presumption of mandatory culpability.
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“In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of [the criminal statute] in this case. Silence does not suggest that [the Legislature] dispensed with mens rea for the element of [the statute] at issue here.” (Staples, supra, 511 U.S. at p. 619.) Staples does not stand alone. (See United States v. United States Gypsum Co. (1978) 438 U.S. 422, 436–438; Liparota v. United States (1985) 471 U.S. 419, 423–434; Ratzlaf v. United States (1994) 510 U.S. 135, 137, 140–149; Posters ‘N’ Things, Ltd. v. United States (1994) 511 U.S. 513, 517–525; United States v. X- Citement Video (1994) 513 U.S. 64, 69–79; Dean v. United States (2009) 556 U.S. 568, 574–575; Elonis v. United States (2015) 575 U.S. 723, 732–740; cf. Counterman v. Colorado (2023) 600 U.S. 66, 72–82 & fn. 5 (Counterman) [imposing mandatory culpability standard of recklessness on a state statute as a matter of federal constitutional law].) In a recent decision, the California Supreme Court cited the Staples decision when stating the presumption of mandatory culpability. (People v. Hall (2017) 2 Cal.5th 494, 501 (Hall).) Courts “construe criminal statutes against the backdrop of the common law presumption that scienter is required and imply the requisite mental state, even where the statute is silent.” (Ibid. [citing Staples].) The 2017 Hall decision follows a long line of earlier decisions from the California Supreme Court. Our high court has applied the presumption of mandatory culpability in many other instances. ● People v. Simon (1995) 9 Cal.4th 493, 519–522 (Simon) (citing Morissette and Vogel, court adds
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heightened mental state element to statute criminalizing certain sales of securities). ● People v. Coria (1999) 21 Cal.4th 868, 876–880 (Coria) (citing Vogel, Staples, and Simon, court implied a mental state requirement; silence regarding a knowledge element does not mean legislators intended to dispense with it]; id. at p. 880 [goal is to avoid criminalizing “otherwise innocent activity”]; ibid. [“because chemical synthesis ordinarily is ‘traditionally lawful conduct,’ we may infer the Legislature did not intend to eliminate a mens rea requirement . . . that the accused know of the character of the substance being manufactured”). ● In re Jorge M. (2000) 23 Cal.4th 866, 869–870 (Jorge M.) (prosecutors must prove a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements); id. at pp. 872–887 (citing Vogel, Staples, Simon, and Coria, court states that it is not dispositive that the statute contains no mens rea language; court implies such language to protect morally innocent gun possessors). ● People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 & fn. 6 (Rubalcava) (literal words of the dirk or dagger statute would criminalize traditionally lawful conduct, so, citing Staples and Coria, court implied a mental state element: defendants must have the requisite guilty mind, which is that they must knowingly and intentionally carry a concealed
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instrument capable of ready use as a stabbing weapon). ● People v. Garcia (2001) 25 Cal.4th 744, 752–754 (Garcia) (citing Vogel, Simon, Coria, Jorge M., court implied a mental state requirement: proof of a defendant’s actual knowledge of the duty to register as a sex offender). ● People v. Salas (2006) 37 Cal.4th 967, 971–972 (Salas) (legislators could not have meant to impose criminal liability on defendants lacking guilty knowledge of facts that made their the conduct criminal; “Because good faith belief in a security’s exempt status is an affirmative defense, the trial court must instruct the jury about it only when the defense has presented evidence sufficient to raise a reasonable doubt that the defendant knew, or was criminally negligent in failing to know, that the security was not exempt” (italics added)]; id. at pp. 975–978 [citing Vogel, Staples, Simon, Garcia, Coria, and Jorge M., court notes “a one-year felony penalty, let alone a $1 million fine, would argue strongly for a guilty knowledge requirement”). ● People v. King (2006) 38 Cal.4th 617, 620, 622–628 (King) (statute prohibiting possession of short- barreled rifles contained no language about a culpable mental state, but court implied the requirement that prosecutors prove the possessor’s knowledge of the weapon’s illegal characteristics, citing Vogel, Staples, Coria, Jorge M., and Rubalcava).
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● Stark v. Superior Court (2011) 52 Cal.4th 368, 392– 404 (court construes statute to require proof defendants knew, or were criminally negligent in failing to know, their actions and omissions were without lawful authority or were contrary to legal requirements, citing Vogel, Staples, Salas, Simon, Coria, Jorge M., Rubalcava, Garcia, and King); id. at page 395 (this holding is a product of “the evolution of our mens rea jurisprudence”). The presumption of mandatory culpability is the tool that will allow us to evaluate Canales’s claim that CALCRIM No. 1120 misinterpreted the statute. Our next section presents that statute. 2 The key statute outlaws the continuous sexual abuse of a child. (§ 288.5, subd. (a).) This statute provides as follows. “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child. . . .” (§ 288.5, subd. (a), italics added.) “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or
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masturbation of either the victim or the offender.” (§ 1203.066, subd. (b), italics added.) A finger is a foreign object. (People v. Harrison (1989) 48 Cal.3d 321, 327–329.) “Lewd and lascivious conduct” means any touching of an underage child with the intent to sexually arouse either the defendant or the child. (Martinez, supra, 11 Cal.4th at p. 442.) The age requirement—that the child victim be under the age of 14 years—is not in contest in this appeal. We underline two germane features of section 288.5, the offense of continuous sexual abuse of a child. First, the statutory text gives prosecutors three ways of proving continuous sexual abuse: by proof of “substantial sexual conduct”; by proof of “lewd and lascivious conduct”; or by both. This case involved both. We ask readers to take note of these alternatives for proving the continuous sexual abuse offense, for they become significant later. Second, the statutory intent requirements are different for “substantial sexual conduct” and for “lewd and lascivious conduct.” The words of the statute contain no stated intent requirement for “substantial sexual conduct” (which includes vaginal penetrations), but, by cross-reference to section 288, section 288.5 requires that “lewd and lascivious conduct” (including any touching) be accompanied by a high level of intent: “the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” (§ 288, subd. (a).) We sometimes refer to this high level of intent as the intent to cause sexual arousal. The disparity in the statutory intent requirement is the heart of one issue in this appeal. Canales correctly points out
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that CALCRIM No. 1120 did not require the jury to find he penetrated his stepdaughter’s vagina with an intent to cause sexual arousal. B Under the presumption of mandatory culpability, CALCRIM No. 1120 is proper. Canales’s first attack fails. Canales faults the instruction because it permitted the jury to find he engaged in “substantial sexual conduct” with no heightened mental requirement beyond his voluntary decision to perform the physical movements of the act. (§ 288.5, subd. (a).) He argues the jury instructions should have demanded a heightened mental state: that he penetrated his stepdaughter’s vagina for “the purpose of sexual arousal, gratification, or abuse.” By citing People v. Whitham (1995) 38 Cal.App.4th 1282, 1293 (Whitham), Canales suggests that, without this qualifier, the statute could inculpate morally blameless conduct. We treat the Whitham decision after we apply the presumption of mandatory culpability to test Canales’s critique of the jury instruction. As noted, the continuous sexual abuse statute contains no mental state requirement for acts of “substantial sexual conduct” with a child under the age of 14 years. Neither does CALCRIM No. 1120, which lists the elements of the continuous sexual abuse offense. Yet CALCRIM No. 252 includes some requirement. As given in this case, it instructed as follows. The italics are ours. “Union of Act and Intent: General and Specific Intent Together. “The crime and other allegation charged in Counts 1-4 require proof of the union, or joint operation, of act and wrongful intent.
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“The following crime and allegation require general criminal intent: continuous sexual abuse, as charged in Count 2 and 4 and the multiple victims allegation. For you to find a person guilty of these crimes or to find the allegation true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation. “The following crime requires a specific intent or mental state: lewd act upon a child, as charged in Count 1 and 3. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.” This mental state requirement—that Canales intentionally did a prohibited act—mirrors an intent Chief Justice Traynor described in People v. Hood, (1969) 1 Cal.3d 444, 456–457: “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.” An intention to do a proscribed act is a minimal level of intent. It requires only that defendants moved their bodies as a matter of voluntary choice, for actions that are not the product of voluntary choice are not criminal. (See People v. Newton (1970) 8 Cal.App.3d 359, 376 [“unconsciousness is a complete defense to a charge of criminal homicide”]; People v. Freeman (1943) 61 Cal.App.2d 110, 115, 117–118 [epileptic loss of consciousness is a defense, because one is not criminally liable if at the time “he is
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not conscious thereof”]; Model Pen. Code, § 2.01, subd. (1) [people are not guilty of a criminal offense unless their liability is based on conduct that includes a voluntary act]; Kadish & Schulhofer, Criminal Law and Its Processes (6th ed. 1995) p. 175 [“paradigmatic” involuntary acts are when “a person physically forces the movements of another or in which one’s body is in the grip of a spasm or reflex”].) This mental state—requiring only proof that Canales voluntarily inserted his finger or penis into his stepdaughter’s vagina, without any further level of mental culpability—satisfies the presumption of mandatory culpability. Canales does not suggest, nor can we imagine, any morally innocent reason for him to decide to penetrate her. The jury instruction on this point thus was proper, because this aspect of the statute had no potential to inculpate conduct that was “morally innocent.” (Vogel, supra, 46 Cal.2d at p. 804.) According to the presumption of mandatory culpability, the Legislature meant only to include morally culpable actions within this law, and—so far as the evidence in Canales’s case has shown—all actions within its reach indeed are morally culpable. Culpability is mandatory, and it is present in Canales’s case. Having ascertained that the challenged jury instruction satisfied the presumption of mandatory culpability, we turn to the Whitham decision Canales cites. Whitham does not help Canales. Whitham, in effect, wrestled with the presumption of mandatory culpability. The Whitham court confronted a defendant’s argument that the continuous sexual abuse statute could inculpate morally innocent conduct. The defense gave the example of parents who insert a rectal thermometer into their sick child’s rectum. A thermometer
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is a “foreign object” that would “penetrat[e]” the “rectum,” thus apparently violating the literal words of the statute. (§ 1203.066, subd. (b), incorporated by reference into § 288.5, subd. (a).) To prevent extending this statute to this morally innocent parental conduct, Whitham urged the court to imply an intent requirement that the penetration had to be to achieve sexual arousal. (Whitham, supra, 38 Cal.App.4th at p. 1291.) This is the same argument Canales makes in this appeal. The Whitham court rejected this defense argument, just as we reject Canales’s similarly erroneous claim. We explain by delving into the Whitham case. The prosecution accused Sally Ann Whitham of continuous sexual abuse of two girls under 14. This charge invoked the same statute we engage in this appeal: subdivision (a) of section 288.5. The prosecution proved Whitham penetrated the girls’ vaginas with her fingers and the handle of a meat tenderizer mallet. (Whitham, supra, 38 Cal.App.4th at p. 1288 & p. 1289, fn. 8.) Earlier we asked readers to take note of the three alternatives for proving the continuous sexual abuse offense. Now this point becomes significant. The prosecution deliberately avoided charging Whitham with lewd and lascivious conduct and instead elected to proceed solely on a theory of substantial sexual conduct. (Whitham, supra, 38 Cal.App.4th at p. 1288.) The prosecution’s reason for this tactical election was its fear that Whitham could claim, apparently with some plausibility, that she penetrated the girls not for sexual arousal but rather “for punishment and without any sexual purpose.” (Ibid.) The prosecution sought to preempt Whitham’s possible defense that her intent accompanying her
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penetrations was to punish the girls and not to create sexual arousal. (Ibid.) The defense thus argued the court should interpret the continuous sexual abuse statute to include a sexual gratification requirement accompanying the substantial sexual conduct element of the offense. (Whitham, supra, 38 Cal.App.4th at p. 1291.) This is the same argument Canales is making. Recall the statute has no explicit mental state requirement for this portion of the offense. Whitham asked the court to read in a heighted requirement of mental culpability: the sexual gratification intent. The Court of Appeal rejected Whitham’s argument. (Whitham, supra, 38 Cal.App.4th at p. 1292.) “We are satisfied the Legislature intended by section 288.5 to target sexual conduct with a child which is undertaken for the purpose of sexual gratification [citation] or which is otherwise abusive [citation]. Thus, while the hypothetical parent who takes his or her child’s temperature with a rectal thermometer may engage in ‘substantial sexual conduct’ within the literal terms of section 288.5 since the act involves the child’s genitals [citation], such an act without more does not constitute sexual abuse within the scope of the statute.” (Whitham, supra, 38 Cal.App.4th at p. 1294, italics in original; cf. People v. White (1986) 179 Cal.App.3d 193, 205 (White) [many acts of penetration of small children would not violate the statute because they are not done to arouse, gratify, or abuse; these acts include inserting a thermometer, suppository, or some other medicine].) We agree with Whitham’s result, which is consistent with the logic stemming from Chief Justice Traynor’s decision in Vogel and the cases following it. The hypothetical parents with the
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rectal thermometer indeed would trigger concern the statute could criminalize morally innocent conduct and thus would open the possibility the court would imply an exculpatory defense. (See Vogel, supra, 46 Cal.2d at pp. 802-803; Salas, supra, 37 Cal.4th at pp. 971–972.) But that exculpatory defense would be available only if Whitham’s counsel presented evidence the defendant indeed might be morally innocent. (Cf. Salas, at p. 972 [“Because good faith belief in a security’s exempt status is an affirmative defense, the trial court must instruct the jury about it only when the defense has presented evidence sufficient to raise a reasonable doubt that the defendant knew, or was criminally negligent in failing to know, that the security was not exempt” (italics added)].) Whitham presented no evidence of moral innocence. It is not morally innocent to punish young girls by inserting foreign objects into their vaginas. Whitham with her fingers and mallet did not share the moral innocence of the hypothetical parents with their thermometer. (Cf. White, supra, 179 Cal.App.3d at p. 205 [“when a penetration is accomplished for the purpose of causing pain, injury or discomfort, it becomes sexual abuse, even though the perpetrator may not necessarily achieve any sexual arousal or gratification whatsoever”].) The same holds for Canales, who presented no evidence of moral innocence. We thus reject his instructional challenge. By citing Whitham and the parents with the rectal thermometer, Canales suggests that, without this intent qualifier, the statute could inculpate blameless conduct. Like Whitham, however, Canales presented no evidence he penetrated his stepdaughter’s vagina for a blameless reason.
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The presumption of mandatory culpability thus does not require a heightened mental state for Canales’s acts of penetration. Courts presume the Legislature did not seek to criminalize morally innocent conduct, but they likewise presume legislators did not impose superfluous culpability requirements so the “guilty” could “escape.” (Vogel, supra, 46 Cal.2d at p. 804.) The point is to safeguard the morally innocent, not to make it more difficult for prosecutors to achieve a conviction. (Cf. Dean v. United States, supra, 556 U.S. at pp. 575–576 [no need to imply added mental element when other elements ensure defendant is blameworthy].) When a person penetrates a young girl’s vagina with his penis or finger, this act is different in kind than the behavior specified by the element of lewd and lascivious conduct, which involves any willful touching of a child. (Martinez, supra, 11 Cal.4th at p. 442.) Touching children is an everyday and typically innocent event. When done to achieve sexual arousal, however, touching a child does become morally culpable, and criminal as well. (See ibid.) The difference in this conduct—vaginal penetration versus any kind of touching—explains and justifies the difference in the intent requirements for “substantial sexual conduct” and “lewd and lascivious conduct.” Vaginal penetration of a child is blameworthy if the act is voluntary. Touching a child is blameworthy only if done to create sexual arousal. This difference means the trial court’s use of CALCRIM No. 1120 was not error. Canales’s first ground for appeal is without merit.
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C In his second attack, Canales maintains CALCRIM No. 252’s instructions on general and specific intent were “incorrect, incomplete and misleading.” Canales’s argument contains subparts. The first part is an asserted error of commission; the second concerns an error of omission. That is, Canales first contends the trial court committed reversible error by instructing the jury that section 288.5’s offense of continuous sexual abuse is a general intent crime. Second, he faults the court for failing to instruct the jury that some predicate acts for violations of section 288.5 required specific intent. We recount the two parts of Canales’s argument in more detail. First, Canales contends the court erred by telling the jury the offense of continuous sexual abuse is a “general intent” crime. The court used this term “general intent” when reciting CALCRIM No. 252, which we stated above and, for convenience, we repeat here as the court gave it, using italics to emphasize key words. “Union of Act and Intent: General and Specific Intent Together. “The crime and other allegation charged in Counts 1-4 require proof of the union, or joint operation, of act and wrongful intent. “The following crime and allegation require general criminal intent: continuous sexual abuse, as charged in Count 2 and 4 and the multiple victims allegation. For you to find a person guilty of these crimes or to find the allegation true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not
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required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation. The following crime requires a specific intent or mental state: lewd act upon a child, as charged in Count 1 and 3. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.” Canales argues this instruction incorrectly stated the crime of continuous sexual abuse by requiring only general criminal intent. Canales also argues CALCRIM No. 252 “was incorrect in failing to inform the jury that some of the predicate acts for the violations of section 288.5 required specific intent.” The prosecution’s central response to Canales’s argument is that “any error was harmless.” We assume CALCRIM No. 252 was an erroneous statement of the law. The next question is whether the error was harmless beyond a reasonable doubt under the Chapman standard. (Chapman v. California (1967) 386 U.S. 18 (Chapman).) Our Supreme Court’s decision In re Lopez (2023) 14 Cal.5th 562 (Lopez) explains how to analyze instructional error under Chapman. Lopez tells us what to do when a jury instruction misstates or omits an element of the offense. The proper analysis is “whether the jury could have found what it did find without also making the findings necessary for a valid theory. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 598, fn.42, review granted July 27, 2022, S274792.” (Lopez, supra, 14 Cal.5th at p. 589.)
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The reviewing court examines what the jury necessarily did find and asks whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.” In other words, if “ ‘[n]o reasonable jury that made all of these findings could have failed to find’ the facts necessary to support a valid theory, the . . . error was harmless.” (Lopez, at p. 592.) Here, however, there is a twist. The jury was correctly instructed on the proper, specific intent mens rea for the separate counts alleging the commission of lewd and lascivious conduct, and in finding the defendant guilty of those counts, presumably found the facts necessary to support the conviction, including the element of specific intent. Having found the facts necessary to support the necessary specific intent, albeit on a separate count of lewd and lascivious conduct, the error was harmless under Chapman. D Canales forfeited his challenge to the trial court’s unanimity instruction. The trial court gave a unanimity instruction because our law requires state criminal juries to vote unanimously to achieve a valid criminal conviction. When the evidence suggests more than one discrete crime based on the same conduct, either the prosecution must elect among the crimes or the court must instruct the jury to agree on the same criminal act. The requirement of unanimity aims to forestall convictions where there is no single offense all jurors agree the defendant committed. The instruction helps prevent jurors from combining evidence of multiple offenses, none of which has been proved beyond a reasonable doubt, and then concluding beyond a reasonable doubt the defendant must have done something
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sufficient to convict on one count. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Canales bases his unanimity objection on the fact the information accused him of two separate—and separately criminal—lewd acts upon his niece. The charged events were years apart; the information keyed their timing to the niece’s birth date of December 23, 2001. Count one charged Canales lewdly touched his niece when she was seven, which was the interval between December 2008 and December 2009. Count three charged a different lewd act when she was 12 or 13, which was between December 2013 and December 2015. Canales argues the court’s use of the standard CALCRIM unanimity instruction permitted jurors to convict him of both crimes on the basis of just one act. His precise objection is that the court should have edited the standard CALCRIM No. 3500 unanimity instruction to read as follows, with strikeout text showing the words Canales would eliminate and italics showing the words he would add. “3500. Unanimity “The defendant is charged with Lewd Act Upon a Child in Count 1 and 3 sometime during the period of December 23, 2008 to December 22, 2009, and December 23, 2013 to December 22, 2015. “The People have presented evidence of more than one act to prove that the defendant committed this offense these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts “at least one of these acts for count 1 and at least one different act for count 3 and you all agree on which act he committed.”
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Canales forfeited this argument by failing to ask for these changes in the trial court. The court gave Canales a generous opportunity to comment on all proposed jury instructions. After finishing with witnesses, the court excused the jury and held an instruction conference with counsel that covered nine transcript pages. These pages reveal the parties working with the court in a collegial manner. Together, the group went over all the candidate instructions. Canales spoke up about instructions he wanted in or out, or changed. The court proposed giving an instruction about motive, for instance, but Canales asked the court to exclude it. The court replied, “Okay. We’ll take it out.” During this conference, the court specifically directed the parties to consider the instruction on juror unanimity. On this instruction, Canales decided to say nothing. In this cooperative environment, Canales had an unhurried opportunity to offer views at a time the parties and the court could have discussed and resolved every item of controversy. The clarifying edits Canales now suggests would have been acceptable to the prosecution and the court, in all likelihood, for they were consistent with the case the prosecution presented in closing argument. Canales’s silence on the unanimity instruction at the crucial time forfeited his tardy appellate argument. (See People v. Carrasco (2006) 137 Cal.App.4th 1050, 1060–1061 (Carrasco).) Canales unsuccessfully attempts to escape forfeiture by claiming the standard CALCRIM unanimity instruction was legally erroneous in this situation. He frankly concedes he “has been unable to find a case that addresses the precise issue he raises here.” The instruction was “correct in law.” (Carrasco, supra, 137 Cal.App.4th at p. 1060.) Canales urges an unreasonable
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interpretation that is contrary to the way the parties argued the case to the jury. Canales’s proposed interpretation is unreasonable because the instruction’s text, as given, referred to two different counts keyed to two different time periods. It would be illogical to conclude a single event could jump back and forth in time to satisfy the requirements of two counts that were explicitly temporally separate, or that jurors were confused on this score. In context, the instruction is reasonably interpreted as telling the jurors they had to agree on one act in the first time frame to convict on count 1, and they also had to agree on one act in the second time frame to convict on count 3. Canales’s interpretation likewise is contrary to how the prosecution presented the case to jurors. In closing argument and without objection, the prosecution explained the different time intervals the two counts covered and told jurors they had to agree unanimously on at least one act by Canales to satisfy count one and a different one to satisfy count three. Nothing in Canales’s own closing argument departed from the prosecution’s explanation. And the thrust of Canales’s closing was consistent on this point. Canales’s position was total denial, not some distinction between different acts and different time periods. Canales forfeited this argument. During oral argument, Canales’s counsel offered a new and different unanimity argument that he conceded he had not put in any brief. Canales likewise has forfeited this argument, for it is unfair to spring a novel and unbriefed argument on opposing counsel and the court. Oral argument is to explore the arguments that counsel have briefed, not to stage ambushes.
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E The parties agree, and we do too, that the sentence must be vacated and the case remanded for resentencing. (See People v. Hiscox (2006) 136 Cal.App.4th 253, 257–262.) The One Strike law does not apply to Canales, who completed the crime of continuous sexual abuse, as alleged in count four, before it was added as a qualifying crime subject to One Strike sentencing. (See Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 33; People v. Valenti (2016) 243 Cal.App.4th 1140, 1173–1174.) DISPOSITION We affirm Canales’s convictions, vacate his sentence, and remand for resentencing without applying the One Strike law.
WILEY, J.
I concur:
VIRAMONTES, J.
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STRATTON, P. J., Concurring in the result. I concur in the result.
STRATTON, P. J.
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WILEY, J., Concurring. CALCRIM No. 252 could be improved by eliminating the ambiguous and widely criticized terms “specific intent” and “general intent.” These terms are not in the statute. They are judge-made leftovers from the common law, and they are outdated, mischievous, and unnecessary. A better method, tried and true, has been available for many decades. Modern criticism of the categories of “general intent” and “specific intent” has been detailed and has continued for decades. Esteemed critics have bemoaned the inexactitude of classifying crimes by general and specific intent. Half a century ago, Chief Justice Roger Traynor famously wrote that “[s]pecific and general intent have been notoriously difficult terms to define and apply, and a number of textwriters recommend that they be abandoned altogether.” (People v. Hood (1969) 1 Cal.3d 444, 456 (Hood).) Chief Justice Traynor observed assault, for instance, is appropriately characterized as a specific intent crime, but equally well characterized as a general intent crime. (Id. at pp. 457–458.) Courts have echoed the Traynor critique of specific and general intent. (E.g., People v. Hering (1999) 20 Cal.4th 440, 445 [The terms specific and general intent have been difficult to define and apply and even perhaps have proved to be mischievous. “In any event, courts should avoid rote application.”]; People v. Mendoza (1998) 18 Cal.4th 1114, 1126– 1127 (Mendoza) [“The division of crimes into two categories, one requiring ‘general intent’ and one ‘specific intent,’ is both simplistic (some crimes have other required mental states such as knowledge) and potentially confusing.”].)
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“Modern scholars criticize the terminology of general and specific intent on five grounds. “First, [this terminology] is ambiguous: An offender who acted with ‘general intent’ may have acted with (a) no excuse, (b) a proven intent to achieve the actual results of her conduct only, (c) a presumed (rather than proven) intent to achieve the actual results of her conduct, or (d) recklessness or negligence. An offender who acted with ‘specific intent’ may have acted with (a) the culpable mental state required by the definition of an offense, (b) a proven intent to achieve some result beyond that actually achieved, (c) a proven (rather than presumed) intent to achieve the actual results of her conduct, or (d) intent (rather than recklessness or negligence). “Second, a distinction between general and specific intent is not very useful for an offense with more than two elements. Consider burglary, which might be defined as (1) entering the (2) dwelling (3) of another (4) without permission (5) with the intent to commit a felony therein. Which of these five elements must the offender intend? It does no good to say burglary is a specific intent offense, because that implies that the intent to enter is not enough. There are four other elements. Which of these must the offender specifically intend? “Third, the terminology of general and specific intent wrongly implies that intent is the only kind of mental culpability possible. A lawmaker might wish to condition burglary on intending to enter a building and commit a felony, while being reckless or negligent as to whether the building is a dwelling and whether the actor has permission to enter. “Fourth, ‘general intent’ is often a misleading euphemism: an offense that conditions liability on having reasons to expect a
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result or know of a circumstance is a crime of negligence, not intent. If the term ‘general intent’ means culpability for undesired results, it is too imprecise: it does not distinguish between results the actor actually expected and those the actor merely had reason to expect. It also does not distinguish among results that seem certain, probable, or possible. “Fifth, even though the phrase ‘general intent’ need not mean ‘presumed intent,’ it is best avoided because of its historic association with unconstitutional presumptions.” (Kaplan, Weisberg, & Binder, Criminal Law: Cases and Materials (6th ed. 2008) p. 204 (Kaplan).) The critiques are legion. (E.g., Fletcher, Rethinking Criminal Law, (1978) pp. 453–454 [offering three different definitions of specific intent and four of general intent]; 3 Encyclopedia of Crime & Justice (2002) Mens Rea, pp. 996–997 [distinction between specific and general intent “has been largely abandoned” because it “rested upon no coherent conception, which made it difficult to determine reliably into which category an offense fell”]; LaFave, Criminal Law (4th ed. 2003) p. 252 [“Much of the existing uncertainty as to the precise meaning of the word ‘intent’ is attributable to the fact that courts have often used such phrases as ‘criminal intent,’ ‘general intent,’ [and] ‘specific intent’ ”]; id. at p. 253 [“ ‘General intent’ is often distinguished from ‘specific intent,’ although the distinction being drawn by the use of these two terms often varies”]; Dressler, Understanding Criminal Law (2006) p. 146 [“The terms ‘specific intent’ and general intent’ are the bane of criminal law students and lawyers. This is because the terms are critical to understanding various common law rules of criminal responsibility, yet the concepts are so notoriously difficult to
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define and apply”] [footnotes, brackets, ellipses, and quotation marks omitted].) The labels general and specific intent ignore the fact that one crime can have different elements, each of which can have a separate mens rea requirement. The general and specific intent labels are too “simplistic.” (Mendoza, supra, 18 Cal.4th at p. 1127.) This case illustrates that problem. Continuous sexual abuse has different elements, and the different elements have different mental state requirements. This is not unusual. Many offenses have different elements with different mental states. A single intent label for the entire offense—be it “general intent” or “specific intent”—misses this vital point. A clearer and more accurate way to instruct juries would be to attach the particular mental state requirement to the particular element of the crime in a single instruction for that crime and to dispense entirely with the superfluous and ambiguous terms of general and specific intent. When greater precision about “intent” is needed, our Supreme Court has pointed the way in the Cel-Tech case, which looked to the Model Penal Code’s definitions of culpable mental states. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 173 (Cel-Tech) [the Model Penal Code has “defined four distinct culpable mental states”: purpose, knowledge, recklessness, and negligence]; see Model Pen. Code, §§ 2.01, 2.02.) The Supreme Court of the United States likewise looks to the Model Penal Code’s treatment of culpability for precision when interpreting text that poses, but does not answer, questions about a required mental state. (See Counterman v. Colorado
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(2023) 600 U.S. 66, 78–82 & fn. 5; United States v. Bailey (1980) 444 U.S. 394, 403–406; United States v. United States Gypsum Co. (1978) 438 U.S. 422, 444.) This approach to the interpretation of criminal statutes is nothing new. The American Law Institute first propounded this material in 1962. Leading criminal casebooks have taught the culpability approach of the Model Penal Code for decades. (See Kadish and & Schulhofer, Criminal Law and Its Processes (6th ed. 1995) p. 210; Dubber and & Kelman, American Criminal Law: Cases, Statutes, and Comments (2005) pp. v, vii, 176–186; Kaplan, Weisberg, & Binder, Criminal Law: Cases and Materials (6th ed. 2008) pp. xxv, 207–208; Dressler & Garvey, Cases and Materials on Criminal Law (6th ed. 2012) pp. 5, 937–1004; LaFave, Modern Criminal Law: Cases, Comments and Questions (4th ed. 2006) pp. 112, 121, fn. d, Appen. 1–87; Robinson, Criminal Law: Case Studies and Controversies (2005) pp. 24–25, 148, 973-1005; Saltzburg, Diamond, Kinports & Morawetz, Criminal Law: Cases and Materials (2000) pp. 192, 194–205, 873–974; Lee and & Harris, Criminal Law: Cases and Materials (2005) pp. 207–208, 242, 247, 1168–1229; Gardner & Singer, Crimes and Punishment: Cases, Materials, and Readings in Criminal Law (4th ed. 2004) pp. 383, 420–426, App. 1-99; Shatz, California Criminal Law: Cases and Problems (2003) pp. 121, 126-127.) In an appendix, I quote, at tiresome length, editions of standard casebooks from yesteryear to drive home a basic point: law students have been learning the Model Penal Code’s approach to defining elements for a long time. The terms “general intent” and “specific intent” bring undesirable ambiguity into a field where precision is beneficial.
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Judges invented these unfortunate terms in centuries past. (See Hood, supra, 1 Cal.3d at pp. 455-456 & fn. 5.) Circa 1962, the Model Penal Code finished its long effort to create a superior alternative. The scholarly community universally has embraced this alternative as an improvement over the categories of general and specific intent. It would benefit everyone for California law to bid farewell to general and specific intent.
WILEY, J.
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APPENDIX A
● Kadish & Schulhofer, Criminal Law and Its Processes (6th ed. 1995) page 210 (“The following text and commentary of the Model Penal Code on culpability requirements (mental elements) is of great importance and should be studied with care. The significance of the commentary will be increasingly apparent as the student progresses through the materials. It should be reviewed as the need arises”), id. at pages 1127–1195 casebook appen. reprints most of Pts. I and II of the Model Pen. Code). ● Dubber & Kelman, American Criminal Law: Cases, Statutes, and Comments (2005) page v (“Paulsen/ Kadish (and later Kadish/Schulhofer) was the first casebook based on the Model Penal Code and has set the standard for American criminal law teaching ever since”), page vii (“The Model Penal Code concerned itself mostly with the general part of criminal law, and today pretty much everyone teaches—and thinks about—the general principles of American criminal law along the lines of the Code. If one takes the MPC as the baseline of American criminal law, as we do in this casebook, the study of the general part should be fairly straightforward, while noting ‘common law’ and ‘traditional’ variations along the way”), pages 176– 186 (introducing Model Penal Code), pages A-1 – A- 90 (casebook appen. reprints the Model Pen. Code). ● Kaplan, Weisberg, & Binder, Criminal Law: Cases and Materials (6th ed. 2008) page xxv (this book
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“enables students to become familiar with the influential Model Penal Code”), page 207 (“The modern trend in American jurisdictions is to use the categories of culpability adopted and refined by the Model Penal Code”), pages 207–208 (illustrating Model Penal Code’s four culpability states using a hypothetical about a child breaking a vase), pages 1035–1089 (casebook appen. reprints most of Pts. I and II of the Model Pen. Code), pages 1099–1100 (table listing Model Pen. Code citations). ● Dressler & Garvey, Cases and Materials on Criminal Law (6th ed. 2012) page 5 (“In order to bring coherence to the criminal law, the American Law Institute, an organization composed of eminent judges, lawyers, and law professors, set out in 1952 to develop a model code. A decade later, the Institute adopted and published the Model Penal Code and Commentaries thereto. Key portions of the Code ... are set out in the appendix to this casebook. [⁋] The Model Penal Code has greatly influenced criminal law reform”), pages 937–1004 (casebook appen. reprints most of Pts. I and II of the Model Pen. Code). ● LaFave, Modern Criminal Law: Cases, Comments and Questions (4th ed. 2006) pages 112, 121 (“Although this distinction between ‘general’ and ‘specific’ intent has not been without importance in the criminal law, greater clarity may be accomplished by abandoning this terminology, and this has been done in the Model Penal Code and many of the modern recodifications”), page 121 footnote d (“Model
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Penal Code § 2.02, (Tent.Draft No. 4, 1955): ‘[W]e can see no virtue in preserving the concept of “general intent,” which has been an abiding source of ambiguity and of confusion in the penal law’ ”), pages Appendix 1–87 (casebook appen. reprints Pts. I and II of the Model Pen. Code). ● Robinson, Criminal Law: Case Studies and Controversies (2005) pages 24–25 (introducing and explaining Model Penal Code), page 148 (“[T]he Model Penal Code introduced the requirement of culpability as to each element of an offense. ... [⁋] This element analysis approach provides, for the first time, a comprehensive statement of the culpability required for an offense. The earlier conceptions of mens rea were not simply undemanding, they were hopelessly vague and incomplete”), pages 965-1064 (casebook appen. reprints Pts. I and II of the Model Pen. Code). ● Saltzburg, Diamond, Kinports, & Morawetz, Criminal Law: Cases and Materials (2000) page 192 (“the Model Penal Code’s culpability provision was a response to the analytically confused distinctions evolving from common-law notions of mens rea, including the distinction between general and specific intent”), pages 193–206 (explaining and drilling application of the Model Penal Code), pages 873–974 (casebook appen. reprints Pts. I and II of the Model Pen. Code). ● Lee & Harris, Criminal Law: Case and Materials (2005) pages 207–208 (introducing the culpability
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provisions of the Model Penal Code), page 242 (the common law distinction between specific intent and general intent “is better understood as the product of history than of logic”), page 247 (“The Model Penal Code does not employ the specific intent/general intent distinction”), pages 1168–1229 (casebook appen. reprints most of Pts. I and II of the Model Pen. Code). ● Gardner & Singer, Crimes and Punishment: Cases, Materials, and Readings In Criminal Law (4th ed. 2004) page 383 (“A second common law problem with intent has been self-inflicted by the criminal law courts—the alleged distinction between a specific and a general intent”), pages 420–426 (“THE IMPACT OF THE MODEL PENAL CODE”), App. 1-99 (casebook appen. reprints Pts. I and II of the Model Pen. Code). ● Shatz, California Criminal Law: Cases and Problems (2003) page 121 (“The difficulty in categorizing crimes according to whether a culpable mental state element is either subjective or objective has been compounded in California because of the California Supreme Court’s failure to address the issue in those terms. Instead, the court has drawn a distinction between ‘specific intent’ and ‘general intent’ crimes”), page 126 (“In place of specific intent and general intent as used in California law, the Model Penal Code defines four culpable mental states, as follows: [setting forth descriptions of purpose, knowledge, recklessness, and negligence]”).