Daniels

Defendant Sammy Daniels was convicted by jury trial of kidnapping for rape (Pen. Code, § 209, subd. (b)(1)), and allegations of numerous prior convictions (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12) and prison priors (Pen. Code, § 667.5, subd. (a)) were found true. He was committed to state prison for a term of 28 years to life consecutive to a 21-year term. On appeal, he contends that the trial court prejudicially erred in (1) admitting evidence that he had committed a prior rape in 1990, (2) excluding defense expert testimony on alcoholic blackouts, (3) misinstructing the jury on the elements of kidnapping for rape where the victim was incapacitated, and (4) imposing a $40 court security fee rather than a $20 court security fee. The Attorney General concedes that the court erred in regard to the court security fee. We conclude that Penal Code section 209, subdivision (b)(1) extends to a taking and asportation of an incapacitated person to commit rape where the perpetrator uses only the amount of force necessary to effect the taking and asportation of an incapacitated person, rather than “something more” than that amount of force. We therefore find no instructional…

I respectfully dissent.

Introduction

It goes without saying that a gentleman does not take advantage of a lady who has had too much to drink. He who does so is no gentleman, and is deservedly held up to general contempt. But if the lady accedes to his advances, or appears to do so, he is not guilty of rape, and if he persuades her to accompany him in the hope that she will accede, he is not guilty of kidnapping for rape.

Defendant has been sentenced to spend the rest of his life in prison on evidence that could quite reasonably be taken to show no more than that he prevailed upon a young woman, who had had too much to drink, to accompany him, presumably with the objective—in his mind anyway—of sexual intercourse. I would not quarrel with this result if a properly instructed jury had found on substantial evidence, after a fair trial, that the young lady was a veritable patient etherized upon a table, or at least in such a stupor as to be manifestly only semiconscious. But the evidence here was heavily compromised by the fact that the only evidence of such a condition came from the young woman herself. No one else testified about what happened between the time she left her…

Defendant Sammy Daniels was convicted by jury trial of kidnapping for rape (Pen. Code, § 209, subd. (b)(1)), and allegations of numerous prior convictions (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12) and prison priors (Pen. Code, § 667.5, subd. (a)) were found true. He was committed to state prison for a term of 28 years to life consecutive to a 21-year term. On appeal, he contends that the trial court prejudicially erred in (1) admitting evidence that he had committed a prior rape in 1990, (2) excluding defense expert testimony on alcoholic blackouts, (3) misinstructing the jury on the elements of kidnapping for rape where the victim was incapacitated, and (4) imposing a $40 court security fee rather than a $20 court security fee. The Attorney General concedes that the court erred in regard to the court security fee. We conclude that Penal Code section 209, subdivision (b)(1) extends to a taking and asportation of an incapacitated person to commit rape where the perpetrator uses only the amount of force necessary to effect the taking and asportation of an incapacitated person, rather than "something more" than that amount of force. We therefore find no…