Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 06CM3328, Peter M. Schultz, Judge.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On September 1, 2006, the Kings County District Attorney filed an information in superior court charging appellant Robert David Asher and codefendant Jonathan Charles Severs as follows:
Count 1—kidnapping (Pen. Code, § 209, subd. (b)(1));
All further statutory references are to the Penal Code unless otherwise indicated.
Count 2—rape in concert (§§ 264.1, 261, subd. (a)(2));
Count 3—forcible rape (§ 261, subd. (a)(2));
Count 4—rape of an intoxicated person (§ 261, subd. (a)(3));
Count 5—oral copulation (§ 288a, subd. (c)(2));
Count 6—oral copulation of an intoxicated person (§ 288a, subd. (i));
Count 7—forcible rape (§ 261, subd. (a)(2)) (codefendant Severs only);
Count 8—rape of an intoxicated person (§ 261, subd. (a)(3)) (codefendant Severs only);
Count 9—sodomy (§ 286, subd. (i)) (codefendant Severs only);
Count 10—eavesdropping or recording confidential communications (§ 632, subd. (a)); and
Count 11—unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)).
As to counts 1-11, the district attorney alleged codefendant Severs had served a prior prison term (§ 667.5, subd. (b)). As to counts 1-6, 10, and 11, the district attorney alleged appellant had served a prior prison term (§ 667.5, subd. (b)).
On September 5, 2006, appellant and codefendant were arraigned, pleaded not guilty to the substantive counts, and denied the truth of the special allegations.
On September 28, 2006, the court conducted a pretrial conference and appellant and codefendant each declined a prosecution plea offer to one count of forcible rape.
On October 30, 2006, the Kings County District Attorney filed an amended information in superior court charging appellant and codefendant Severs as follows:
Count 1—rape in concert (§§ 264.1, 261, subd. (a)(2));
Count 2—forcible rape (§ 261, subd. (a)(2));
Count 3—rape of an intoxicated person (§ 261, subd. (a)(3));
Count 4—oral copulation (§ 288a, subd. (c)(2));
Count 5—oral copulation of an intoxicated person (§ 288a, subd. (i));
Count 6—forcible rape (§ 261, subd. (a)(2)) (codefendant Severs only);
Count 7—rape of an intoxicated person (§ 261, subd. (a)(3)) (codefendant Severs only);
Count 8—sodomy (§ 286, subd. (i)) (codefendant Severs only);
Count 9—eavesdropping or recording confidential communications (§ 632, subd. (a)); and
Count 10—unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)).
As to count 10 the district attorney alleged appellant had been previously convicted of a Vehicle Code section 10851 violation (§ 666.5). As to counts 1-10, the district attorney alleged codefendant Severs had served a prior prison term (§ 667.5, subd. (b)) and as to counts 1-5 and 10, the district attorney alleged appellant had served a prior prison term (§ 667.5, subd. (b)).
On the same date jury trial commenced.
Appellant and codefendant Severs were tried together and found guilty of various substantive offenses and special allegations. They filed separate appeals.
On November 2, 2006, both sides rested.
On the same date, the court and counsel agreed to treat the charge in count 1 as an enhancement to count 2 and the court directed the prosecutor to prepare verdicts as to count 2 “with a special finding to be found true or not true that the crime was committed in concert within the meaning of Penal Code section 264.1.”
On November 3, 2006, the jury returned verdicts finding appellant guilty of counts 2-5, 9, and 10 of the amended information and finding the forcible rape charged in count 2 to have been committed while acting in concert.
On December 1, 2006, the prosecutor filed a statement in aggravation as to appellant and codefendant (Cal. Rules of Court, rule 4.437).
On February 15, 2007, appellant filed a motion for new trial based upon ineffective assistance of trial counsel. On March 6, 2007, the prosecutor filed written opposition to appellant’s motion for new trial.
On March 7 and 8, 2007, the court conducted a contested hearing on appellant’s new trial motion, took the matter under submission, and denied the motion by minute order on March 9, 2007. The court specifically ruled that appellant had not “met his burden on demonstrating that prior counsel’s deficient performance prejudiced him.”
On March 21, 2007, the court conducted a sentencing hearing in appellant’s case, denied him probation, and sentenced him to a total term of 10 years 8 months in state prison. The court imposed the middle term of seven years on count 2 (rape in concert), a consecutive term of two years (one-third of the middle term) on count 5 (oral copulation), and consecutive term of eight months on count 9 (recording communication without consent), and a consecutive term of one year on count 10 (vehicle theft). The court stayed imposition of judgment on counts 3 and 4 (§ 654) and struck appellant’s prior prison term enhancement because the court used that factor to impose consecutive terms (§ 667.5, subd. (b)). The court awarded appellant 296 days of custody credits, imposed a $2,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered appellant to register as a sex offender (§ 290).
On March 27, 2007, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On July 6, 2006, Lindsay and her friend, Virginia, resided in a house at the Lemoore Naval Station. Lindsay and her husband, a member of the military, were separated and in the process of obtaining a dissolution.
On the morning of July 6, Lindsay took an anti-depressant called Lexapro. Lindsay and Virginia planned to celebrate the latter’s birthday that evening by going to dinner and then visiting some local bars. At 7:00 p.m., Lindsay, Virginia, and the latter’s friend, Michael, went to Applebee’s Restaurant in Hanford. Virginia’s boyfriend, Jonathan, was deployed on a ship in San Diego, and he allowed Virginia and Lindsay to use his pickup truck for transportation during his absence. The trio met two of Virginia’s sisters and several friends at the restaurant. The group shared a large margarita and ate some appetizers. Lindsay said she did not feel the effects of the alcohol at the time she left Applebee’s.
After finishing at Applebee’s, Lindsay, Virginia, and Michael went to the Secrets bar in Hanford, where they drank and socialized. Lindsay consumed two or three strong drinks. Lindsay went outside the bar to smoke a cigarette and encountered appellant and codefendant Severs, who were walking down the street. They asked Lindsay to recommend a bar in the area. She recommended the Bastille Bar and said she would be there later in the evening. However, she did not exchange names or telephone numbers with the two men.
After spending 30 to 45 minutes at Secrets, Lindsay, Virginia, and Michael went to the Bastille Bar to hear a live band. Lindsay testified she was feeling a “little drunk” at this point. Lindsay assumed she and her friends arrived at 8:30 or 9:00 p.m., stayed at the Bastille Bar for several hours, and continued drinking. Virginia thought they stayed until between midnight and 1:20 a.m. Michael thought they left at 11:30 p.m.
During their time at the Bastille, Lindsay saw and socialized with appellant and Severs. Lindsay said she was “drunk” at this point. Lindsay said Severs was flirtatious at the Bastille and kissed her at one point. She admitted flirting back with Severs. At trial, Virginia recalled seeing Lindsay flirt with Severs at the Bastille but said the flirting was not sexual. However, Virginia told Dennis Reed, an investigator with the Kings County District Attorney’s Office, that Lindsay and Severs touched each other a lot when they talked. At one point in the evening, Severs picked up Lindsay and twirled her around. She responded by wrapping her legs around Severs’s waist. At trial, Virginia said she did not hear any sexual discussions between Lindsay and Severs at the Bastille. However, Virginia told Investigator Reed that Lindsay laughed along when Severs made some sexual jokes. Michael said he saw Lindsay talking with Severs at the Bastille but did not see any flirting.
The group decided to go home when Virginia became intoxicated. Lindsay asked whether she could invite appellant and codefendant back to their home for more drinking and talking and Virginia agreed. Lindsay stopped drinking about 30 minutes before the group left the Bastille. She obtained a cellular telephone number for appellant and Severs and someone put the number into Virginia’s cell phone. The group left the Bastille at about 1:20 a.m. Lindsay testified that she acted as the designated driver that evening and stated: “We were all pretty drunk.” Virginia and Michael said Lindsay was not intoxicated and that she drove well on the way home from the Bastille.
Lindsay, Virginia, and Michael drove to a gas station in the pickup truck and appellant and codefendant purchased some beer and followed them in a separate vehicle. Appellant and codefendant parked their vehicle in a guest parking area at the Naval Air Station because they did not have a permit to park on the base. Appellant and codefendant then got into the pickup truck and they all entered the base together. Once they arrived at the residence of Lindsay and Virginia, Lindsay placed the truck keys in her purse and set the purse on the kitchen counter.
Lindsay and the others began to drink beer and Lindsay thought she consumed five or six beers. After about an hour of visiting, Virginia and Michael went to Virginia’s bedroom to go to sleep. Virginia did not see the two guests again until Severs entered her bedroom to ask to borrow her cell phone. Michael remembered Severs entering the bedroom twice that night. On the first occasion, Severs offered Michael a beer but Michael declined. On the second occasion, Severs asked to borrow Virginia’s cell phone because he could not get a signal on his own cell phone. Michael also remembered Severs saying that Lindsay had given appellant and codefendant permission to sleep on the couch.
At some point in the evening, Virginia went to get some water and heard loud music playing on the television in the living room. Virginia turned off the television since Lindsay was not in the room. Virginia said Lindsay usually turned off the television if she was not watching it. Virginia also noticed that Lindsay had closed her bedroom door, something she never did. Virginia said Severs entered her bedroom about 10 to 15 minutes after she turned off the television set. He asked to borrow her cell phone so he could call his boss. Severs told Virginia that Lindsay had said it was okay for them to sleep on the couch and offered to take them to their truck so they could get to work at 6:00 a.m. Severs said he needed to call his boss but his phone was not working and that is why he asked to borrow Virginia’s. According to Virginia, he took her cell phone out of the room, returned the instrument about five minutes later, and thanked Virginia. Shortly after Severs returned Virginia’s phone, she heard the sound of a departing vehicle.
Lindsay, appellant, and codefendant remained in the living room and began to watch a movie on the television. Lindsay felt drunk and left the room briefly. When she returned, Severs asked her to finish her beer and Lindsay complied. About 10 minutes later, Lindsay’s condition deteriorated and she began to feel heavy. Severs began kissing Lindsay on her neck and mouth. Lindsay kissed Severs back at first. When appellant also began to kiss Lindsay on the neck, she became uncomfortable and pulled away. Lindsay said she began to feel heavier and heavier and felt like she could not move. Appellant and codefendant pulled her shirt up and kissed her breasts. Lindsay said she was confused and could not understand what was happening to her.
Appellant and codefendant eventually stood Lindsay up and took her to her bedroom. Lindsay felt incapable of speaking. The two men removed her clothing, lay on the bed with her, and kissed her neck, breasts, and face. The two men told her she was sexy and good looking and undressed down to their boxer shorts. Lindsay said she was unbalanced, confused, and felt unable to talk or move. She also said she could not talk or hold her head up.
Severs began to have genital intercourse with Lindsay. Lindsay was lying on her stomach underneath Severs. At trial, she had difficulty remembering details of the sexual offenses and the order in which they occurred. Lindsay said appellant and codefendant both made her orally copulate them. Each man grabbed her head and pushed it toward his penis. Lindsay resisted by pulling her head back and closing her mouth. She said she never did suck on their penises. According to Lindsay, the men kept saying, “‘Open your mouth, baby, open your mouth.’” During the sexual assault, Severs had sex with Lindsay when she was on her back. At one point, Severs turned to appellant and said it was his turn. Appellant then had sexual intercourse with Lindsay.
During the events in her bedroom, Lindsay saw Severs hold up his cell phone and point it at Lindsay and himself. She thought Severs was using the phone to take pictures of the various sexual acts. Lindsay said she never permitted the men to photograph or videotape her. Lindsay eventually told the men she did not want to have sex with them. The men responded by telling her that she did want to have sex with them. Although Lindsay disagreed and tried to get up, the men would lay her back down on the bed. At some point, Severs was having sex with Lindsay while she lay on her stomach. Severs pulled his penis out of her and reinserted it into her rectum. Lindsay said she felt pain when this occurred but was unable to speak. She also said Severs’s penis remained in her rectum for about five seconds before he reinserted it into her vagina. At trial, Lindsay thought the rectal penetration could have been an accident. She previously told District Attorney Investigator Reed, “‘He just missed and sort of entered the wrong hole.’”
Appellant left the bedroom and returned with some condoms. Lindsay said they resembled the condoms she carried in her purse. Appellant and codefendant put on the condoms, had sexual intercourse with her, and made her orally copulate them. Lindsay recalled the men orally copulating her two times apiece and having sexual intercourse with her two times each. The men eventually dressed, left the bedroom, and had a conversation that she could not understand. Severs returned alone and again had sexual intercourse with Lindsay. During the entire encounter, Lindsay felt very heavy and unable to move. After the last act of intercourse, Severs entered the bedroom between two and four times to check on Lindsay. Lindsay said she was just starting to feel like she could move again when Severs reentered the bedroom alone. Lindsay tried to get up and get dressed. Severs asked her, “‘What are you doing?’” He then wrapped Lindsay in a comforter, laid her down on the bed, and told her, “‘It’s okay. It’s okay. Just go to sleep.’” During this same time, Severs told Lindsay she agreed to have sex with them. She responded by saying she did not agree to it.
A few minutes after Severs left the bedroom for the last time, Lindsay heard the tires of a vehicle squealing in her driveway. Lindsay had never told the two men they could take the truck keys out of her purse and Virginia never gave the men permission to borrow the truck. Lindsay got up, dressed herself, entered Virginia’s bedroom, and said they needed to call 911 because the men had stolen the truck and raped her. Lindsay called 911 and reported that two men had just raped her and taken their truck. Lindsay estimated an hour elapsed between the time the two men entered the bedroom and the time the two men left the house.
Alan Bohannon, a 911 dispatcher at the Naval Air Station, received the emergency call from Lindsay at 2:38 a.m. on July 7, 2006. He transferred the call to Fresno County authorities but remained on the phone line. The prosecution played the recording of the 911 call for the jury.
Brian Alexander, a Navy military police officer, received a call about a stolen vehicle at about 2:40 a.m. on July 7, 2006. Upon receiving the call, the base shut down to incoming and outgoing traffic. Alexander stopped appellant and Severs at the gate and confiscated their cell phones. The military police took the two men into custody. John Gillett, another Navy military police officer, responded to Lindsay’s residence at about 2:38 a.m. When Gillett arrived, he found Lindsay curled up in a fetal position. She was crying and shaking. Lindsay told Gillett she had been raped and their truck had been taken. She also explained she was intoxicated and did not realize what was happening at first. Lindsay showed Gillett a picture of Severs on her MySpace page and said, “It was this guy right here.”
Alison Caldwell, an investigator with Naval Criminal Investigative Services (NCIS), processed the crime scene. Caldwell also met with appellant and codefendant at the NCIS office on the base, photographed appellant, and took custody of appellant and codefendant’s cell phones. Caldwell found recorded images of Lindsay and Severs on one of the cell phones. Caldwell was not certain which phone was taken from which person. Caldwell turned over the cell phones to District Attorney Investigator Reed on July 13, 2006. On July 14, Reed gave the phones to Kings County Computer Forensic Analyst Marlene Dunn for technical examination.
Marlene Dunn accessed both phones on July 17, 2006, and looked for recorded photographic evidence. Dunn made a compact disc (CD) of 14 photographic images that she downloaded from one of the cell phones. Dunn was also able to access three video clips from that same phone. That cell phone also contained a number under the heading “Girls” and that number was reflected on the “recent dialed” and “received calls” lists of the phone. Dunn could not determine whether this cell phone dialed Virginia’s phone number or was dialed by it. The prosecution presented no evidence of any image or video files in the other cell phone.
The prosecution played the video clips during trial. During the clips, a man repeatedly urged Lindsay to put “it” in her mouth and said it will be over after she is done. He said, “It’ll be over after you’re done. No. Stop. You want it to be done right?” “Put it in your mouth real quick and it’ll be all over.”
Sexual Assault Examiner Patti Driscoll examined Lindsay at 6:05 a.m. on July 7, 2006. Driscoll found disrupted tissue in Lindsay’s vaginal area and a reddened area around her cervical opening. Driscoll said the condition of Lindsay’s tissue was consistent with sexual assault because tissue disruption is less likely when intercourse is consensual and the participants are aroused. Driscoll noted that Lindsay’s rectal area was very tender and said she was unable to examine the interior portion because of Lindsay’s pain. In Driscoll’s opinion, Lindsay was tender as a result of the reported anal penetration. Driscoll took a blood sample from Lindsay at 7:55 a.m. on July 7.
In August 2006, appellant sent Lindsay a letter and pleaded with her to “tell the truth” and say the events of July 6 and 7 were “consensual.” Appellant included a picture of his daughter and a sonogram of his unborn son with the letter and Lindsay was upset by the correspondence.
On August 24, 2006, District Attorney Investigator Reed interviewed Lindsay and Virginia. Lindsay told Reed she was having a difficult time remembering and that details came to her over time. Lindsay told Reed she took some Lexapro and “probably” had something to drink before going out on the evening of July 6. She also said she shared a daiquiri at the restaurant. Lindsay also said she had two drinks at the first bar, one or two light beers at the Bastille, and more than three beers once the group returned home. She also told Reed the group stopped at Taco Bell before going back to the base. Lindsay told Reed she was drunk when she got home that evening but not “intoxicatedly drunk.” Lindsay described Severs’s penetration of her anus by saying, “‘He just missed and sort of entered the wrong hole.’”
Bill Posey, a toxicologist with Central Valley Toxicology in Clovis, California, testified that Lexapro is an antidepressant that “has a potential of having an additive central nervous depressant effects when mixed with alcohol.” In Posey’s view, Lexapro taken with alcohol has the potential for increasing the effect of alcohol on an individual. However he noted “most of the studies have indicated that the additive effect is not a profound one. There are warnings against using the drug with alcohol.”
Bill Posey, a toxicologist with Central Valley Toxicology, testified he received Lindsay’s blood sample from NCIS on August 28, 2006. That sample had been drawn by Nurse Driscoll. Posey tested the blood sample from the sexual assault evidence collection kit. He did not detect any drugs or alcohol in the sample. In addition to conducting a standard drug and alcohol screen, Posey looked for chemicals that have a sedative effect when combined with alcohol. Posey said one such substance, gamma-hydroxybutyrate (GHB), can extend the effects of alcohol but typically leaves the blood stream in six hours, depending upon the dosage. Responding to a hypothetical question, Posey said a person who had several drinks between 7:00 p.m. and 1:00 a.m. and then consumed five or six light beers over the next hour would experience a rapid onset of sedation if the last beer contained GHB. He said such a person would feel sluggish or even totally comatose. Posey further testified that GHB metabolizes quickly so that every 13 minutes the individual would feel half of the effects of the drug. Such a person would be expected to come out of the state of sedation very quickly.
On October 30, 2006, Lindsay viewed the photographic CD and three video clips at the District Attorney’s office. Lindsay explained that the image of people on a bed depicted Severs and her in her room. Lindsay also said the three video clips showed the sexual acts that appellant and codefendant committed and included her moaning sounds. The prosecution played the video clips for the jury. The first clip depicted Severs putting his penis in Lindsay’s mouth. The second clip depicted Lindsay and Severs’s penis. Lindsay left the courtroom in tears when the prosecution played the third video clip.
Defense
Appellant did not present documentary or testimonial evidence on his own behalf but chose to rely on the state of the evidence.
DISCUSSION
I.
SUFFICIENCY OF EVIDENCE: COUNTS 3 AND 5
Appellant contends there was insufficient evidence to support his conviction for rape of an intoxicated person as charged in counts 3 and 5 (§ 261, subd. (a)(3)).
He specifically argues:
“[T]he offense charged, rape of a person so intoxicated that she cannot consent, is not supported, as the law requires, by evidence that Lindsey was unable to make the kind of judgment that would enable her to choose between consent and non-consent. [Citation.] Accordingly, this Court should reverse the judgment as to Counts 3 and 5 and order a judgment of acquittal to be entered as to those counts.” (Fn. omitted.)
Counts 3 and 5 of the amended information stated in relevant part:
“COUNT 3
“On or about the 7th day of July, 2006, said defendant(s), JONATHAN CHARLES SEVERS and ROBERT DAVID ASHER did commit a FELONY, namely: violation of Section 261(a)(3) of the Penal Code of the State of California, in that said defendant(s): did unlawfully have and accomplish an act of sexual intercourse with a person, to wit, Lindsey … not his/her spouse, where said person was prevented from resisting by an intoxicating, anesthetic, and controlled substance, and this condition was known, and reasonably should have been known by the defendant(s). [¶]...[¶]
“COUNT 5
“On or about the 7th day of July, 2006, said defendant(s), JONATHAN CHARLES SEVERS and ROBERT DAVID ASHER did commit a FELONY, namely: violation of Section 288a(i) of the Penal Code of the State of California, in that said defendant(s): did unlawfully commit an act of oral copulation upon Lindsey … who was prevented from resisting by an intoxicating, anesthetic and controlled substance and this condition was known, and reasonably should have been known by the defendant(s).”
Section 261, subdivision (a)(3) states:
“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]...[¶]
“(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.”
Section 288a, subdivisions (a) and (i) state:
“(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. [¶]...[¶]
“(i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”
Rape by intoxication and oral copulation by intoxication are committed when the victim is so intoxicated that he or she is incapable of exercising the judgment required to decide whether to consent to those sexual acts. Lack of actual consent—positive cooperation in act or attitude pursuant to an exercise of free will—is not an element of the offenses proscribing sexual intercourse with persons who lack the capacity to give legal consent. The issue is not whether the victim actually consented to sexual intercourse but whether he or she was capable of exercising the degree of judgment a person must have to give legally cognizable consent. In deciding whether the level of the victim’s intoxication deprived the victim of legal capacity, the jury shall consider all the circumstances, including the victim’s age and maturity. Under California law, it is not enough that the victim was intoxicated to some degree or that the intoxication reduced the victim’s sexual inhibitions. Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue. (People v. Giardino (2000) 82 Cal.App.4th 454, 458-460, 462, 466-467.)
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment. The reviewing court must determine whether that record discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The same standard applies when the conviction rests primarily on circumstantial evidence. Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury and not the appellate court that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
We have summarized the record evidence in great detail above and respondent correctly notes that a rational trier of fact could have concluded that appellant had sexual intercourse with a woman who lacked the capacity to give legal consent due to intoxication. Lindsay testified she consumed five or six beers while appellant was in her home. She also said she consumed multiple drinks at several local bars earlier that evening. She testified she finished a beer at the request of codefendant Severs and then her body became heavy and she was unable to move. Lindsay said appellant and Severs had to stand her up from the couch and then take her to the bedroom. Inside the bedroom, appellant and codefendant held Lindsay up while they removed her clothes without any assistance on her part. Lindsay said she was unable to move or hold up her head during the time the men removed her clothing. During one video clip, Severs instructed Lindsay to “put it [a penis] in your mouth.” Lindsay testified that appellant and Severs pushed her head toward their sexual organs. At one point in a video clip, Severs directed Lindsay to “put your legs over here. Put this leg over.”
From the foregoing facts and circumstances, a reasonable jury could conclude that Lindsay was so intoxicated that she was incapable of exercising the judgment required to decide whether to consent to the sexual acts committed by appellant and codefendant Severs. The judgment of conviction on counts 3 and 5 was supported by substantial evidence and reversal is not required.
II.
CLAIMED MUTUALLY CONTRADICTORY THEORIES OF LIABILITY
Appellant contends he was convicted on two mutually contradictory theories of liability with respect to counts 2, 3, 4, and 5 and thereby deprived of federal due process of law.
Appellant specifically argues in relevant part:
“Section 261, subdivision (a)(2) punishes sexual intercourse when it is accomplished against the will of the victim, or, put another way, when the victim withholds her consent. On the other hand the gravamen of the offense set forth in section 261, subdivision (a)(3) is the performance of an act of sexual intercourse with a person whom the defendant knows or reasonably should know to be so intoxicated as to be incapable of consent. [Citation.] The same is true for oral copulation. (See § 228a, subds. (c)(2) and (i).) These offenses are, on their face and as related to the facts of this case, mutually contradictory. Either Lindsey withheld her consent to the sexual acts or she was so intoxicated that ... she was incapable of giving legal consent. [Citation.]
“Inconsistent jury verdicts typically arise when the jury finds a defendant guilty on Charge A but not guilty of Charge B, even though if Charge A was true, it necessarily followed that Charge B was also true. Such inconsistent verdicts are permissible. [Citations.] However, that is not the case where a guilty verdict on one count negatives a fact essential to a finding of guilt on another count, the two guilty verdicts may not stand because they violate the principle of repugnancy, which is defined in this context as criminal charges which are manifestly self-contradictory.” (Fns. omitted.)
In the amended information, the district attorney charged appellant in count 2 with forcible rape (§ 261, subd. (a)(2)), in count 3 with rape of a person who was prevented from resisting by an intoxicating substance (§ 261, subd. (a)(3)), in count 4 with forcible oral copulation (§ 288a, subd. (c)(2)), and in count 5 with oral copulation of a person who was prevented from resisting by an intoxicating substance (§ 288a, subd. (i)). On appeal, appellant submits Lindsay either withheld her consent to the sexual acts (thereby supporting guilty verdicts on counts 2 and 4) or she was so intoxicated that she was incapable of giving legal consent (thereby supporting guilty verdicts on counts 3 and 5). He further submits the jury rendered contradictory verdicts by reaching guilty verdicts on counts 2, 3, 4, and 5. Respondent counters by arguing that a victim of rape and oral copulation may verbally protest a sexual assault and still be so intoxicated that she is incapable of exercising the judgment required to decide whether to consent to the sexual acts.
Generally speaking, “[t]he question of the validity of inconsistent verdicts usually arises when a jury renders two verdicts on two different counts which are contradictory. [Citation.] Understandably, in such cases defendants, like appellant here, take the position that the acquittal is the legally correct verdict while the conviction is not.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656.) The general rule is that inherently inconsistent verdicts are allowed to stand. Each count of a jury verdict stands alone; a verdict of either conviction or acquittal of one has no effect or bearing on another. (§ 954; People v. Santamaria (1994) 8 Cal.4th 903, 911; People v. Becker (2000) 83 Cal.App.4th 294, 298.) “The United States Supreme Court has explained [that] ‘[a] criminal defendant … is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.’” (People v. Lewis (2001) 25 Cal.4th 610, 656, quoting United States v. Powell (1984) 469 U.S. 57, 67; People v. Avila (2006) 38 Cal.4th 491, 600-601; People v. Palmer (2001) 24 Cal.4th 856, 860-861.) Thus, as long as there is substantial evidence to support the conviction, consistency in the verdict is not necessary. (People v. Pahl, supra, 226 Cal.App.3d at p. 1657.)
The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. The gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person’s will that an otherwise lawful act becomes unlawful. (People v. Guido (2005) 125 Cal.App.4th 566, 575-576.) While the absence of the victim’s consent is an element of forcible rape and forcible oral copulation, lack of actual consent is not an element of rape by intoxication or oral copulation by intoxication. (CALCRIM Nos. 1000, 1016; People v. Giardino, supra, 82 Cal.App.4th at pp. 458-460.) As respondent observes, a victim of a sexual crime may be subjected to a sexual act against her will while simultaneously being prevented from resisting her assailants due to her intoxication.
Further, the court instructed the jury in CALCRIM No. 3500 that as to counts 2, 3, 4, and 5, “the People have presented evidence of more than one act to prove that the defendant’s [sic] committed each crime. [¶] You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed.” “‘[T]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’” (People v. Deglado (1993) 5 Cal.4th 312, 331.) In view of CALCRIM No. 3500, we may presume the jury here unanimously identified and agreed upon one sexual act for each of the four charged substantive counts in question (counts 2 and 3 alleging rape and counts 4 and 5 alleging oral copulation). (Evid. Code, § 664 [it is presumed that official duty has been regularly performed].) In other words, from the entirety of the record (summarized in extensive detail above), the jury could have selected individual sexual acts to fit the parameters of forcible rape (count 2), forcible oral copulation (count 4), rape by intoxication (count 3), and oral copulation by intoxication (count 5).
In view of these facts and circumstances, the verdicts of guilt on counts 2, 3, 4, and 5 were not mutually contradictory and reversal is not required.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., DAWSON, J.