
    [No. C074871.
    Third Dist.
    June 29, 2015.]
    THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL VUKODINOVICH, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts III, IV, and V of the Discussion.
    
   Opinion

ROBIE, Acting P. J.

Statistics show that 1 percent of the United States population has developmental disabilities. (Note, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity (1997) 83 Va. L.Rev. 799, 801.) Given this percentage, there has been a “movement toward the normalization and mainstreaming of . . . individuals [with developmental disabilities]” in our society. (Id. at p. 799.) “Greater integration into society has created opportunities in education, vocational training, and recreational activities.” (Ibid.) It has “also led to more opportunities to develop consensual intimate relationships that are often positive. While opportunities for consensual relationships have increased, the sexual exploitation and abuse of [individuals with developmental disabilities] continues to be a major problem.” (Ibid.)

Penal laws in California help address this problem by making it a felony to engage in, among other things, sexual intercourse, oral copulation, and digital penetration with a person who “is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.” (Pen. Code, §§ 261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object].) “This is true even if the victim purports to consent.” (People v. Thompson (2006) 142 Cal.App.4th 1426, 1429 [48 Cal.Rptr.3d 803].) These penal laws are at issue in this case.

Here, defendant Thomas Michael Vukodinovich was the 73-year-old bus driver for Yolo Employment Services, a nonprofit agency providing work activity programs, job training, and job retention for individuals with disabilities, who was entrusted with taking clients to and from work. L. was a 49-year-old female client of Yolo Employment Services with a mental age of three or four and an IQ of 37 who rode defendant’s bus. From 2009 through 2012, defendant and L. carried on a sexual relationship, mostly in the bus consisting of sexual intercourse, oral copulation, and digital penetration. The sex acts usually took place when all the other passengers were off the bus, except sometimes the sex acts occurred while a gentleman who could not speak and another gentleman who was often asleep remained on the bus. Defendant told L. to “be quiet” about the sex acts and not to tell anybody because defendant “not wanna fire,” meaning he did not want to be fired. Oftentimes, L. would say she did not want to engage in the sex acts, but defendant persisted. Defendant was prosecuted for the sex acts on the sole theory that L. was incapable of giving legal consent.

The jury found defendant guilty of one count of sexual intercourse, one count of attempted sexual intercourse, five counts of oral copulation, and four counts of digital penetration, all with a person who “is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.” (§§ 261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object].) The court sentenced defendant to 14 years in prison.

In the published portion of this opinion, we reject defendant’s contentions that these penal laws impinge on his and L.’s rights to privacy and there was insufficient evidence of a lack of legal consent to support these convictions. In the unpublished portion of this opinion, we reject defendant’s other contentions.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Prosecution’s Case

L. has been a client of Yolo Employment Services since she was 18 years old. L.’s job, Monday through Friday from 8:30 a.m. to 2:00 p.m., through Yolo Employment Services, was as a warehouse worker for Walgreens, affixing labels to products.

L. could not drive or take public transportation. She lived with one of her sisters, who was her caretaker. L. was partially blind and could not read or write. She could not cook. She could bathe herself and change herself, but she did not consistently select clothes appropriate for the weather. While she had “feelings like any other woman,” talking about “this boy cute” and had communicated in the past with her sister about sex in basic slang terms such as, “dick in the pussy,” before the charged incidents she had never talked to her sister about other types of sex acts.

L.’s source of transportation to and from work was defendant and his bus through Yolo Employment Services. Defendant was L.’s bus driver from 2009 through August 2012. During rides home from L.’s work, defendant would direct L. to move up to the front seat, and then he would have her lie down on the floor and remove her clothes. Defendant would put “[p]inky, two hand” in her “gina.” It felt “[n]ot good.” Sometimes he kissed her breasts and “gina.” Sometimes they engaged in sex acts while the bus was parked at a lake by L.’s house. She told defendant, “No more, Tom, no more, no more, stop.” But defendant would push her to the floor and make her lick his “peanut” and put it in her mouth. L. “[n]o like it in [her] mouth, hurt.” When she told defendant, “no more,” defendant “[a]gain,” “pushed [her] head down.” The “green, green” came out of his penis.

The sex acts usually took place in the afternoons when defendant had dropped off most other clients at their houses. Sometimes remaining in the bus would be a gentleman who could see but could not talk and another gentleman who would usually be asleep. If that gentleman opened his eyes, defendant would stop any sexual activity with L. Defendant told L. to “be quiet” and not to tell anybody because defendant “not wanna fire,” meaning he did not want to be fired. L. did not want defendant to be fired, so she “did quiet” and did not tell anybody.

Once, defendant told L. to sit on his lap while he was in the driver’s seat, and he put “[h]is peanut” in her “gina.” It felt “[n]ot good” and she said, “[S]top. Tom, I said stop.” Defendant did not stop and said “go, go.”

Another time, defendant drove L. to her house and came in. Defendant had to use the bathroom, and when he came out he kissed her and pulled her pants down. He then put his “peanut” in her “gina.”

At trial, on redirect examination, when asked if she wanted to have sex with defendant, L. responded, “A little bit, not a lot.” When asked why she wanted to have sex with defendant, she responded, “It’s good.” When asked whether she wanted defendant to put his finger in her vagina, L. responded, “Yeah, one, not two.”

L.’s sister learned of the sex acts between L. and defendant in June 2012 when a family acquaintance reported seeing the bus parked over a dozen times and defendant and L. interacting in ways that seemed inappropriate (i.e., L. was standing over defendant with her arm around him; L. was rubbing defendant’s shoulders; L. was in between the passengers’ seats and the driver’s seat, and as the family acquaintance approached the bus, L. moved into a passenger’s seat, all the while defendant remained seated in the driver’s seat).

Defendant was interviewed twice by police. He admitted to the sexual acts with L., but said that the acts began when she became “aggressive” toward him. L. “started putting her hands down [his] pants” and after resisting for days, he “gave into it.” He felt “trapped” by L. because he was afraid she would tell everybody what was happening if he said “no” to her advances. L. thought of defendant as her boyfriend and wanted to marry him. L. had conversations with defendant in which she talked about past sexual encounters and from those conversations, defendant thought that L. “apparently . . . enjoys sex and wants it from wherever she can get it.”

L. was interviewed at the multidisciplinary interview center, where adults with developmental disabilities who are alleged sexual abuse victims are interviewed. L. said “this man . . . Tom . . . touchin’ my body . . . and there was . . . dick in my mouth.” “I not want it. Uh, I was afraid.” He put his penis in her “gina” and it felt “[i]n the funny.” Defendant also made her hand touch his “[p]eanut.” When asked what sex meant to her, she said, “The baby. Don’t wanna a baby.”

Dr. Phyllis Williamson was a clinical psychologist who performed a consultation with L. in 1991. Dr. Williamson was the one who assessed L.’s mental age at three or four with an IQ of 37. Someone like her would have a “very concrete, black and white” ability to understand the concept of sex. She would have names for body parts, would be able to say where babies come from, but could not weigh the “pros and cons” in terms of making a decision about whether to have sex. She could explain that a person could get “sick” from having sex, but she could not “really comprehend the consequence of having an STD.” A person like this might want to engage in sexual activities because if she had sexual experiences, she is “going to recognize that as being a pleasurable experience.”

B

The Defense

Sharon McKee, a supervisor at Yolo Employment Services, had known L. for 25 years. She considered L. to be her friend, and L. regularly visited McKee’s house for a couple of days at a time, walking her dog, “hanging] out,” going swimming, going to dinner, and going to the movies. L. had signed legal documents on her own relating to her placements and her Medicaid. McKee has known L. to be untruthful, and L. knows how to “figure out stories to keep herself out of trouble.” They have talked about “private body parts,” which L. referred to as “dick” and “pussy,” and “things of a sexual nature.” L. has talked to her about things of a sexual nature that she has asked McKee not to tell L.’s sisters. After defendant was arrested, L. told her that she and defendant had had sex a lot of times, he did not force her to do anything, she loved him, she wanted to marry him, and she was “terrified that her sisters would find out.”

Another long-term employee of Yolo Employment Services, Alice Tapley, had known L. for almost three decades. She has also known L. to be untruthful, although the incidents of untruthfulness had tapered off in the last 10 years. In 2005, L. accused a bus driver of touching her and another client in a sexually inappropriate way. When the other client said it did not happen, L. admitted she was lying because she was mad at the bus driver and then said she was sorry.

C

The Verdicts

The jury found defendant guilty of 10 sex acts and one attempted sex act. The jury could not reach a verdict on 46 other charged sex acts (oral copulation and penetration by a foreign object), so the court dismissed those counts on the prosecutor’s motion.

DISCUSSION

Defendant appeals from the resulting judgment, contending (1) the statutes criminalizing sexual acts with people incapable of consent due to a developmental disability are unconstitutional because they violate his and L.’s federal and state rights to privacy; (2) there was insufficient evidence that L. lacked legal capacity to consent to the sexual acts; (3) the trial court abused its discretion and violated his right to present a defense when it excluded some evidence of L.’s sexual history; (4) the cumulative effect of the errors prejudiced him; and (5) the trial court violated the prohibition against ex post facto laws when it imposed a $280 restitution fine. Disagreeing with these contentions, we affirm.

I

The Penal Code Sections Criminalizing Sexual Conduct with People Incapable of Consent Do Not Violate Defendant’s Right to Privacy

Defendant contends that the statutes criminalizing sexual conduct with people incapable of consent due to a developmental disability (§§261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object]) are unconstitutional because they violate his federal and state rights to privacy.

In support of his contention, he relies on Lawrence v. Texas (2003) 539 U.S. 558 [156 L.Ed.2d 508, 123 S.Ct. 2472], in which the United States Supreme Court held the “ ‘[petitioners’ criminal convictions for adult consensual sexual intimacy in the home,’ ” which consisted of sodomy, violated “ ‘their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.’ ” (Lawrence, at pp. 564, 578-579 [156 L.Ed.2d at pp. 516, 525-526].)

The United States Supreme Court, however, made clear its decision in Lawrence did not extend beyond protecting the private sexual conduct of two consenting adults: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives.” (Lawrence v. Texas, supra, 539 U.S. at p. 578 [156 L.Ed.2d at p. 525], italics added.)

In fact, “[t]he principle that rape may be committed by having sex with a person so mentally incapacitated as to be incapable of consenting is hardly novel. ‘Under English common law this situation was considered no different from intercourse with an unconscious person . . . .’ [Citation.] In California law, the phrase ‘incapable ... of giving legal consent’ dates back at least as far as the original Penal Code of 1872, which defined rape so as to include ‘an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, ... [¶] ... [¶] [w]here she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent. . . .’ ” (People v. Thompson, supra, 142 Cal.App.4th at p. 1434.)

Were we to accept the alternative conclusion that defendant had a constitutional right to engage in sexual conduct with a person who had developmental disabilities and who lacked the legal capacity to consent, we would render the state incapable of protecting individuals with disabilities. “Obviously, it is the proper business of the state to stop sexual predators from taking advantage of developmentally disabled people.” (People v. Thompson, supra, 142 Cal.App.4th at p. 1429.)

We therefore reject defendant’s contention that the penal laws at issue here designed to protect individuals with developmental disabilities from sexual exploitation, when there is evidence that the victim lacked the legal ability to consent, violate his right to privacy.

II

Substantial Evidence Supported the Jury’s Finding L. Lacked the Legal Capacity to Consent to Sexual Conduct

Defendant contends his convictions must be reversed because there was insufficient evidence that L. lacked legal capacity to consent to the sexual conduct here. We disagree and begin our analysis with a line of cases similar to ours where this issue has been raised and rejected.

As we have noted, legal consent as applied here is defined as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (§ 261.6.) Over a century ago, our Supreme Court explained that “[tjhis degree of intelligence may exist with an impaired and weakened intellect, or it may not.” (People v. Griffin (1897) 117 Cal. 583, 585 [49 P. 711].) Since then, a series of three cases has found sufficient evidence that the victims lacked legal capacity to consent in situations similar to ours.

First, in People v. Boggs (1930) 107 Cal.App. 492 [290 P. 618], this court upheld a defendant’s conviction of rape where the victim had the mental capacity of a 10 or 12 year old and lacked “ ‘sufficient mentality to protect herself from the ordinary vicissitudes of life.’ ” (Id. at pp. 493-494.) The victim testified as follows in response to the question whether she resisted: “ ‘If I didn’t let him do it he would just stand there and wouldn’t let me get anything done and I didn’t want him to stand there all day and not let me get anything done for I was busy and I told him I was busy and had work to do and that I didn’t have time. ... I didn’t want him to stay there all day for I wouldn’t get anything done.’ ” (Id. at p. 494.) While “[i]t [wa]s true that she seemed to know what constitutes the physical act [of intercourse] and that pregnancy might result therefrom, . . . she apparently had little conception of other serious consequences which would follow.” (Ibid.)

Second, in People v. Mobley (1999) 72 Cal.App.4th 761 [85 Cal.Rptr.2d 474], disapproved on other grounds in People v. Trujillo (2006) 40 Cal.4th 165, 181, footnote 3 [51 Cal.Rptr.3d 718, 146 P.3d 1259], the appellate court upheld a defendant’s convictions of unlawful sodomy of two men in their early 20’s. (Mobley, at p. 767.) Both victims had low IQ’s (80 and 75), the cognitive functioning of adolescents (14 year old and 11 year old), and some basic sex education. (Id. at pp. 771, 773-774, 777-779.) One of the victims answered, “ ‘Yep,’ ” when asked if he “agree[d] to have sex with [defendant] freely and voluntarily,” and the other one “agreed he voluntarily did the acts with [defendant].” (Id. at pp. 776, 777.) “More importantly, [however], the jury heard the full testimonies [of the victims],” and the jury “could have reasonably inferred from the prosecution evidence, including [the victims’] direct testimonies, that [they] did not have the capacity to give legal consent at the time the acts of sodomy were committed.” (Id. at pp. 789, 790.) This testimony included that the defendant had befriended both victims (who were best friends) and “explained] to [one of the victims] that friends kiss, go to bed together and engage in sex.” (Id. at p. 775.) “[Defendant] also told [that victim] about the cave [(anal sex)], explaining what it meant and that ‘it was cool’ and ‘would feel good.’ ” (Ibid.) Defendant initiated the cave, directing one of the victims “to take off his clothes, lie on the bed, and do as directed.” (Ibid.) He also told one of the victims not to tell. (Ibid.) Over time, one of the victims “just got used to it and ‘cooperated.’ ” (Ibid.) The other victim testified, “he was confused and had mixed feelings when [the defendant] showed him pornographic videos and asked him to do sexual things. [This victim] did not know whether it was right to stay or go at those times. He agreed he voluntarily did the acts with [the defendant] because ‘[he] was told.’ ” (Id. at p. 777.)

And third, in People v. Thompson, supra, 142 Cal.App.4th 1426, the appellate court found substantial evidence that the victim was incapable of giving legal consent, where she “could not cook, use a bus, or do simple arithmetic. She was even more seriously disabled than the victims in Mobley, in that she could not hold down a real job, handle money, or cast an independent vote. She conversed at the level of a nine or 10 year old and read at the level of a seven or eight year old. Although she had attended high school, she, like the victim in Boggs, was not really qualified for a diploma.” (Thompson, at p. 1436.) “Also like the victim in Boggs, [the victim] had some idea of what sexual intercourse was, including that it could result in pregnancy. However, her understanding was on the same level as the children’s rhyme, ‘First comes love, then comes marriage, then comes a baby in a baby carriage.’ She did not understand that sex could result in disease.” (Thompson, at p. 1436.) It was also “relevant that [the] defendant was one of [the victim’s] caretakers and that he exploited her vulnerability, the very type of harm the statute seeks to guard against.” (Id. at p. 1440.)

Under the reasoning of this line of cases, we also find substantial evidence L. was incapable of giving legal consent during the charged sex acts with defendant. At the time the sex acts were committed, L. was effectively under the control of defendant, who had been entrusted to drive her to and from her job, something she could not do on her own. She had the mental age of three or four and an IQ of 37, putting her in the “moderately [disabled] category.” She was partially blind. She could not read or write. She could bathe herself and change herself, but did not consistently select clothes appropriate for the weather. She could not cook. While she had “feelings like any other woman,” talking about “this boy cute” and had communicated in the past with her sister about sex in basic slang terms such as, “dick in the pussy,” before the charged incidents she had never talked to her sister about other types of sex acts. When L. and her sister would see sexual intercourse on television, L. would tell her sister, “ ‘that’s bad,’ ” prompting her sister to change the channel because it was making L. uncomfortable. When asked by the interviewer at the multidisciplinary interview center what sex meant to her, L. said, “The baby. Don’t wanna a baby.” When asked at trial whether she knew she could “get sick” from having sex, L. responded “Yes,” but then when asked “[w]hat can happen,” she replied only, “Sick.” While defendant points out that on redirect examination L. said she wanted to have sex with defendant, “[a] little bit, not a lot” and that she wanted sex because, “[i]t’s good,” these facts do not prove capacity to give legal consent. What appears to be consent from somebody who lacks capacity to consent is, in effect, nothing at all.

III-V

DISPOSITION

The judgment is affirmed.

Mauro, J., and Duarte, J., concurred.

A petition for a rehearing was denied July 17, 2015, and appellant’s petition for review by the Supreme Court was denied September 9, 2015, S228149. Werdegar, J., did not participate therein. 
      
       Legal consent in these contexts is defined as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Pen. Code, § 261.6.)
     
      
       All further section references are to the Penal Code unless otherwise indicated.
     
      
       L. said the sex hurt because “there was so much of it.” It was McKee’s opinion that L. “wasn’t used to having so much sex.”
     
      
       To the extent defendant raises a violation of L.’s right to privacy, he lacks standing to do so. (See People v. Badgett (1995) 10 Cal.4th 330, 343 [41 Cal.Rptr.2d 635, 895 P.2d 877] [“defendants must allege a violation of their own rights in order to have standing . . .”].)
     
      
       See footnote, ante, page 166.
     