Sun. Nov 29th, 2020
Darren Chaker looks at appeal

By Darren Chaker – In a California rape trial, where defense of consent is made, Darren Chaker goes over the court ruling. In a jury trial for attempted rape, when there is substantial evidence of victim’s equivocal conduct that would have led defendant to reasonably and in good faith to believe consent existed when it did not, it is error not to instruct on mistake belief of consent.


Darren Chaker looks at appeal
Darren Chaker reviews California appellate case concerning rape.

Where the defense of consent as a defense to rape in California, Appellant and the victim met each other at a bar. The two struck up a conversation and appellant bought her a beer. Over the evening, they remained with each other, becoming somewhat amorous and continuing to drink. Appellant then accompanied her home. At this point, appellant’s and the victim’s accounts of the following events differed, with appellant testifying that the two engaged in mutual foreplay while the victim testified that when she came out of the bathroom, appellant forced himself on her although she objected.


Darren Chaker notes that evidence was also presented that at the time of the claimed assault, the victim’s blood alcohol level, based on the amount of alcohol she reportedly consumed, would have been approximately .20%. The court failed to instruct on good faith but mistaken belief in consent. The jury was unable to reach a verdict on some of the charged sex offenses, acquitted appellant of attempted sexual penetration by force, but convicted him of attempted rape by force.


The appellate court rejected the Attorney General’s contention that because victim and appellant gave contradictory versions of the incident, and because appellant stopped his advances when she rejected him, appellant was not entitled to a mistaken consent instruction. “A requested instruction regarding mistake of fact [is] required when some evidence deserving of . . . consideration exist[s] to support that contention.” (People v. Mayberry (1975) 15 Cal.3d 143, 157.) The court continued to state:


“The court refused to give requested instructions that directed the jury to acquit Franklin of the rape and kidnaping if the jury had a reasonable doubt as to whether Franklin reasonably and genuinely believed that Miss B. freely consented to her movement from the grocery store to his apartment and to sexual intercourse with him. Franklin contends that the court thereby erred. The Attorney General argues that the court properly refused to give the instructions because “mistake of fact instruction[s] as to consent should be rejected as against the law and public policy.””


Here, the evidence was such that the jury should have been instructed on appellant’s good faith but mistaken belief in consent. The error was prejudicial because if the jury found that appellant had a reasonable belief that the victim consented, he lacked the specific intent for rape.

By Darren Chaker

Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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