People v. Patillo CA4/1

INTRODUCTION

A jury convicted Sherod L. Patillo of rape of an intoxicated person (Pen.

Code, § 261, subd. (a)(3)).1 The trial court instructed the jury on the elements of the crime with an unmodified CALCRIM No. 1002 standard instruction, which provided, in relevant part: “A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to . . . understand and weigh the physical nature of the act, its moral character, and probable consequences.” (Underscore added.) Patillo’s sole contention on appeal is that it was prejudicial error for the trial court to include the phrase “moral character” because, as he asserts, the language has no support in case law or statutory law and rendered the instruction unconstitutionally vague. Not so. The standard instruction is derived from People v. Giardino (2000) 82 Cal.App.4th 454, 466 (Giardino), and it has been upheld as correctly stating the law on rape of an intoxicated person. (See People v. Lujano (2017) 15 Cal.App.5th 187, 193 (Lujano); People v. Smith (2010) 191 Cal.App.4th 199, 205 (Smith).) We affirm.

FACTUAL AND PROCEDURAL…