victim defense in California

2023Code, § 261, subd. (a)(3); CALCRIM No. 1002; People v. Giardino (2000) 82 Cal.App.4th 454, 460 [“if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape”]; id. at p. 471 [“the actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant”]; cf. People v. Dancy (2002) 102 Cal.App.4th 21, 36 [as to rape of an unconscious person who cannot resist, consent (or even belief in advance consent)

2017(See *195 Giardino , supra , 82 Cal.App.4th at p. 471 , 98 Cal.Rptr.2d 315 ["Because ... the actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant"].) Second, although it is not an element of forcible rape that the defendant believed the victim did not consent, it is an element of sodomy (or rape) by intoxication that the defendant knew or reasonably should have known the victim was *112 incapable of consenting.

2023Code, § 261, subd. (a)(3); CALCRIM No. 1002; People v. Giardino (2000) 82 Cal.App.4th 454, 460 [“if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape”]; id. at p. 471 [“the actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant”]; cf. People v. Dancy (2002) 102 Cal.App.4th 21, 36 [as to rape of an unconscious person who cannot resist, consent (or even belief in advance consent)

2015(See § 261, subd. (a)(3); CALCRIM No. 1002; People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ] [“if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape”]; id. at p. 471 [“the actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant” (italics added)]; cf. People v. Dancy (2002) 102 Cal.App.4th 21, 36 [ 124 Cal.Rptr.2d 898 ] [as to rape of an unconscious person w

2018"It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense." ( People v. Armitage (1987) 194 Cal.App.3d 405 , 420, 239 Cal.Rptr. 515 ; see also People v. Harris (1975) 52 Cal.App.3d 419 , 427, 125 Cal.Rptr. 40 ["A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause"].) For the same reasons, Civil Code section 1714, subdivision (a) (everyone is responsible for injury caused to another unless that person "brought the injury upon himself or herself") and Civil Code section 1

2018"It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense." ( People v. Armitage (1987) 194 Cal.App.3d 405 , 420, 239 Cal.Rptr. 515 ; see also People v. Harris (1975) 52 Cal.App.3d 419 , 427, 125 Cal.Rptr. 40 ["A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause"].) For the same reasons, Civil Code section 1714, subdivision (a) (everyone is responsible for injury caused to another unless that person "brought the injury upon himself or herself") and Civil Code section 1

2016The value of stolen or damaged property shall be the replacement cost of like property … .” (§ 1202.4, subd. (f)(3)(A.) A defendant is entitled to a restitution hearing “to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt.” (People v. Holmberg (2011) 195 Cal.App.4th 1310 , 1319–1320, citing People v. Gemelli (2008) 3 161 Cal.App.4th 1539, 1542 (Gemelli).) “Section 1202.4 does not, by its terms, require any particular kind of proof.

2016The value of stolen or damaged property shall be the replacement cost of like property … .” (§ 1202.4, subd. (f)(3)(A.) A defendant is entitled to a restitution hearing “to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt.” (People v. Holmberg (2011) 195 Cal.App.4th 1310 , 1319–1320, citing People v. Gemelli (2008) 3 161 Cal.App.4th 1539, 1542 (Gemelli).) “Section 1202.4 does not, by its terms, require any particular kind of proof.

2025The claim of provocation cannot be based on events for which the defendant is culpably responsible.”]; and, People v. Johnston (2003) 113 Cal.App.4th 1299, 1312 [“ ‘If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked.

2014In such case, he is deemed to have acted with malice and would be guilty of murder.’ ” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1312 (Johnston.) E.

2021(See § 207, subds. (a)-(d); People v. Rhoden (1972) 6 Cal.3d 519, 526 [“section 207 provides … distinct definitions … of conduct constituting” kidnapping].) General or simple kidnapping is defined in section 207, subdivision (a), which states “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or 3 The grandmother had failed to identify a picture of Nieto prior to trial. 4 The bloodstains were found on the victim’s shirt, shorts, and inside her underwear. 3. holds, detains, or arrests any person in this state, and carries the person into another country, st

2021(See § 207, subds. (a)-(d); People v. Rhoden (1972) 6 Cal.3d 519, 526 [“section 207 provides … distinct definitions … of conduct constituting” kidnapping].) General or simple kidnapping is defined in section 207, subdivision (a), which states “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or 3 The grandmother had failed to identify a picture of Nieto prior to trial.

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2021For this reason, the People’s reliance on Veale, supra, 160 Cal.App.4th 40 , People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon ), disapproved by Soto, supra, 51 Cal.4th at p. 248 , footnote 12, to the extent it suggested that consent of a victim is a defense to the charge, and Cochran, supra, 103 Cal.App.4th 8 is misplaced.

2021For this reason, the People’s reliance on Veale, supra, 160 Cal.App.4th 40 , People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon ), disapproved by Soto, supra, 51 Cal.4th at p. 248 , footnote 12, to the extent it suggested that consent of a victim is a defense to the charge, and Cochran, supra, 103 Cal.App.4th 8 is misplaced.

2018"It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense." ( People v. Armitage (1987) 194 Cal.App.3d 405 , 420, 239 Cal.Rptr. 515 ; see also People v. Harris (1975) 52 Cal.App.3d 419 , 427, 125 Cal.Rptr. 40 ["A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause"].) For the same reasons, Civil Code section 1714, subdivision (a) (everyone is responsible for injury caused to another unless that person "brought the injury upon himself or herself") and Civil Code section 1

2018"It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense." ( People v. Armitage (1987) 194 Cal.App.3d 405 , 420, 239 Cal.Rptr. 515 ; see also People v. Harris (1975) 52 Cal.App.3d 419 , 427, 125 Cal.Rptr. 40 ["A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause"].) For the same reasons, Civil Code section 1714, subdivision (a) (everyone is responsible for injury caused to another unless that person "brought the injury upon himself or herself") and Civil Code section 1

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

2014(See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 63, p. 111 [“gullibility of the victim is no defense” to theft by false pretenses; crime occurs even if “the representations are so preposterous that no reasonable person would rely on them”]; People v. Bresin (1966) 245 Cal.App.2d 232, 237 [“ ‘ “[T]he guilt of the accused does not depend on the degree of folly or credulity of the party defrauded.” ’ ” (quoting People v. Gilliam (1956) 141 Cal.App.2d 749, 752 )]; People v. Katzman (1968) 258 Cal.App.2d 777, 785 [“Ignorance or negligence of the victim is not a

1997HQ The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.” 4 At the time the defendant in Hernandez committed his crimes, section 667.8 provided, “ ‘Any person convicted of a felony violation of Section 261, 264.1, 286, 288, 288a or 289 who, for the purpose of committing such sexual offense, kidnapped the victim in violation of Section 207, shall be punished by an additional term of three years.’ (Stats. 1983, ch. 950, § 1, pp. 3418-3419.

1994In People v. *9 Hernandez (1988) 46 Cal.3d 194 [ 249 Cal. Rptr. 850 , 757 P.2d 1013 ], we held that section 667.8, which at the time provided for an "additional term of three years" for any person convicted of a felony violation of various sexual offenses, "who, for the purpose of committing [that] sexual offense, kidnapped the victim in violation of Section 207," was an enhancement, not a substantive offense. (46 Cal.3d at pp. 200, 207-208.) We observed that "an enhancement `means an additional term of imprisonment added to the base term.'" ( Id. at p. 207, quoting Cal. Rules of Court, rule 4

2026(People v. Paz (2000) 80 Cal.App.4th 293, 301 [§ 288, subd. (c)(1)]; People v. Middleton (2023) 91 Cal.App.5th 749 , 766 [§ 236.1, subd. (f)]; People v. Branch (2010) 184 Cal.App.4th 516, 518, 522 [§ 266i, subd. (b)(2)]; People v. Lopez (1969) 271 Cal.App.2d 754, 760-762 [Health & Saf.

2015(People v. Paz (2000) 80 Cal.App.4th 293, 300 .) Defendant argues that preventing him from raising the defense of a reasonable, good faith belief regarding E.’s age violated equal protection because it is a defense to other crimes involving sexual contact with minors, including unlawful sexual intercourse with a minor (§ 261.5).

2025Similarly, in People v. Venegas (1970) 10 Cal.App.3d 814 , the defendant shot the victim at a bar, but there was no evidence that he brought the gun to the bar, as opposed to taking the victim’s gun during a struggle moments before the shooting.

2020(Ibid.; see People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412-1413 (Ratcliff) [section 654 did not apply where defendant committed two robberies one hour and a half apart, and half hour later, was still in possession of the handgun]; People v. Bradford (1976) 17 Cal.3d 8, 13 [section 654 applied where defendant wrested away an officer’s revolver and then immediately used it to shoot at the officer]; People v. Venegas (1970) 10 Cal.App.3d 814, 821 [section 654 applied where evidence showed that defendant obtained gun from the victim during a struggle moments before shooting the victim in a ba

2013(People v. Mancebo (2002) 27 Cal.4th 735, 743-745 ; former § 667.61, subd. (i).) When the crimes were 58 committed in February 2005, the statute provided that “‘[f]or the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.’” (People v. Mancebo, supra, at p. 743 ; former § 667.61, subd. (i).) The last sentence of the operative amended information stated: “The District Attorney of the County of Riverside

2013(People v. Mancebo (2002) 27 Cal.4th 735, 743-745 ; former § 667.61, subd. (i).) When the crimes were 58 committed in February 2005, the statute provided that “‘[f]or the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.’” (People v. Mancebo, supra, at p. 743 ; former § 667.61, subd. (i).) The last sentence of the operative amended information stated: “The District Attorney of the County of Riverside