What is the Presumption of Mandatory Culpability?

In the Clara Shortridge Foltz Criminal Courts Building (“CCB”), Santiago Gonzalo Canales was convicted of several sex offenses involving his stepdaughter and his niece for over a decade.  Both were under the age of 14 during the abuse.

Mr. Canales touched his niece from age 7 to 13 in inappropriate ways but did not penetrate her vagina.  He would give her money almost every time after touching her.  

However, he penetrated his stepdaughter’s vagina with his penis and fingers and touched her in other inappropriate ways.  Mr. Canales began molesting her at about age 11 until age 16.  He also gave her money and told her not to tell anyone.

At trial, he testified that he never did anything sexual with either girl.  

He was charged with and the jury found him guilty of a lewd act (Penal Code § 288(a)) on his niece when she was seven years old; continuous sexual abuse of a child (Penal Code § 288.5(a)), his niece, between 2009 and 2013; a lewd act (Penal Code § 288(a)), his niece, during the two years following 2013 when she was 12 or 13; and continuous sexual abuse (Penal Code § 288.5(a)) of his stepdaughter between 2002 and 2003 when she was 11 to 13 years old.

Judge James Dabney sentenced Mr. Canales to 60 years to life in prison, consisting of four consecutive sentences of 15 years to life.

Mr. Canales then appealed the convictions to the Second Appellate District court on three grounds that this article will cover.  He also made a fourth argument in his appeal, but abandoned it.  

He first argued that CALCRIM 1120 should have required the jury to find he had a heightened mental state for the element of committing “substantial sexual conduct” to be found guilty of violating Penal Code § 288.5.  He argued that since continuous sexual abuse of a child may be proven by showing substantial sexual conduct, lewd and lascivious conduct, or both.  To commit lewd and lascivious conduct, one must have a high level of intent to cause sexual arousal of another.  Therefore, to commit substantial sexual conduct, Mr. Canales argued, he must have the same high level of intent and the jury must find this.  

The Second Appellate District rejected this argument, explaining that the presumption of mandatory culpability requires interpreting criminal statutes to presume a wrongful intent requirement even where the statute is silent. People v. Vogel (1956) 46 Cal. 2d 798, 801-802.  

The Second Appellate District then explained in Vogel, supra, a jury convicted Mr. Vogel of bigamy.  Mr. Vogel’s defense was that he had a bona-fide and reasonable belief that his first wife had divorced him before he married the second woman.  The case went up to the California Supreme Court, where Chief Justice Roger Traynor explained, “as in other crimes, there must be union of act and wrongful intent.  So basis 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 801-802.

Applying this to Mr. Canales, the Second Appellate District commented that although neither Penal Code § 288.5 nor its accompanying jury instruction given, CALCRIM 252, required a jury to find defendant guilty if he committed the prohibited act with wrongful intent, which requires intentionally doing a prohibited act, the intention needed for this act is minimal.  It only requires a voluntary act, which was accomplished by Mr. Canales in this case.

Moreover, since Mr. Canales offered no morally innocent reasons for such touching, the presumption of mandatory culpability applied and this ground for appeal was denied.

Second, he argued that CALCRIM 252 misapplied the terms “general intent” with “specific intent.”  Interestingly, the Second Appellate District agreed with this argument from Mr. Canales, but found the error was harmless, so it denied his appeal on this ground.

Third, he argued and the People agreed, that the One Strike Law does not apply to him because he completed the crime of continuous sexual abuse, as alleged, before it was added as a qualifying crime subject to One Strike Sentencing under Senate Bill 1128.  As to this fourth argument, the Second Appellate District Court agreed and remanded the case to the trial court for resentencing.