Opinion
B296699
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN FELICIANO, Defendant and Appellant.
Spolin Law and Aaron Spolin for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Acting Senior Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. SA088567 APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn Solorzano, Judge. Affirmed. Spolin Law and Aaron Spolin for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Acting Senior Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Brian Feliciano of rape by an intoxicating substance under Penal Code section 261, subdivision (a)(3). On appeal, defendant argues: (1) insufficient evidence supports the jury's finding that he knew or reasonably should have known that the victim was prevented from resisting him because she was intoxicated; and (2) section 261, subdivision (a)(3), is unconstitutionally vague. We affirm.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
The People charged defendant in an amended information with rape of an unconscious person (§ 261, subd. (a)(4); count 2) and rape by an intoxicating substance (count 3). A jury found defendant guilty of rape by an intoxicating substance and acquitted him of rape of an unconscious person. The court sentenced defendant to three years in prison.
The People also charged co-defendant, Ruben Lopez-Apodaca (Lopez), with rape of an unconscious person (count 1). Lopez pled no contest to count 1 before trial.
Defendant appeals.
FACTUAL BACKGROUND
1. The People's Case
1.1. The Underlying Incident
In April 2014, defendant, Lopez, and Gabriel Anaya, undergraduate students at UCLA, lived together in an apartment in Westwood. B.Z. is Anaya's distant relative.
On the evening of April 15, 2014, B.Z. and her friend, Duli Park, went to a bar in Beverly Hills. After B.Z. had a few cocktails, Anaya drove her and Park to a party at his apartment. As they drove, B.Z. felt "buzzed, like dizzy," and "really chatty." According to Anaya, B.Z. was "pretty tipsy" and "swaying a little bit" as she walked, her speech was "loud, very erratic," and she was "slurring her words quite a bit."
Around 9:15 p.m., B.Z., Park, and Anaya arrived at the apartment, where several people were hanging out, including defendant and Lopez. Anaya introduced B.Z. to defendant, who was "interested" in B.Z. B.Z. told Anaya that she wasn't into defendant and did not want to "hook up" with him.
Shortly after arriving at the party, B.Z. took several shots of hard liquor and smoked marijuana. B.Z then became "bored," sat on the couch, and sent a text message to her ex-boyfriend. Around the same time, B.Z. started to go "in and out of consciousness." According to Anaya, B.Z. looked "really drunk" and "out of it." As B.Z. sat on the couch, defendant started kissing her. B.Z. testified she was too drunk to understand what was going on around her or to make defendant stop kissing her.
B.Z. could not recall who was kissing her on the couch, but other witnesses saw defendant kissing her. Defendant also admitted to law enforcement that he kissed B.Z. while she sat on the couch.
About an hour after B.Z. got to the apartment, everyone but B.Z. and defendant left to go to a different party. Defendant and B.Z. then moved to defendant's bedroom and took off their clothes. When he returned later that night, Anaya saw defendant and B.Z. in defendant's bedroom "hooking up." Defendant later told Anaya he stopped hooking up with B.Z. after he realized she was "too drunk" and on her period. Defendant then left the apartment to go to the other party. Defendant did not return to his apartment that night. While defendant was at the other party, Lopez went back to Anaya's apartment and had sex with B.Z. while she was unconscious.
The next morning, B.Z. woke up naked in defendant's bedroom; Lopez was sleeping on a different bed in the same room. B.Z. didn't know why she was naked or where her clothes were, and her vagina was "very sore." B.Z. had inserted a tampon in her vagina the previous night, but she couldn't find it. B.Z. believed "somebody had done stuff to [her] body, but [she] didn't know who." B.Z. had no recollection of anything that happened the previous night from around the time she sat on the couch. B.Z. called a rape crisis hotline and 911.
1.2. The Investigation
When police officers arrived at Anaya's apartment, they took Lopez into custody and drove B.Z. to a rape treatment center at UCLA's Santa Monica Hospital. B.Z. told the treating nurse that she had not had sex with anyone in the five days before she went to the party at Anaya's apartment. The nurse removed a tampon that had been wedged "real high" inside B.Z.'s vagina. The nurse also swabbed several areas of B.Z.'s body, including her vagina, cervix, neck, and breasts, as well as the tampon retrieved from inside her body.
According to the nurse, B.Z. suffered abrasions and lacerations to her labia that were unlikely to result from consensual sex. Rather, B.Z.'s injuries were consistent with those a woman would suffer if she was too intoxicated to lift her pelvis to enable a penis to enter her vagina without using excessive force. In the nurse's opinion, a woman likely would not suffer the type of injuries B.Z. sustained by first having consensual sex with one person, followed by nonconsensual sex with another person.
The swabs taken from the interior and exterior of B.Z.'s vagina, her cervix, her neck and breasts, and the tampon recovered from inside her body all tested positive for semen. The swabs taken from the interior and exterior of B.Z.'s vagina, her cervix, and the tampon, as well as the swabs taken from B.Z.'s neck and breasts, contained semen that matched defendant's DNA. The swab taken from the exterior of B.Z.'s vagina also contained semen that matched Lopez's DNA.
In November 2014, Silvia Corral, a detective with the Los Angeles Police Department, interviewed defendant on UCLA's campus. Defendant told Corral that he had ignored her attempts to contact him before the interview because he didn't want to implicate himself in a police investigation.
When asked about the incident on April 15, 2014, defendant stated he knew B.Z. drank alcohol before she got to the party. B.Z. was "a little unstable" and "slurring her words a bit." When everyone else left the apartment to attend another party, defendant stayed behind with B.Z. They started to kiss before moving to defendant's bedroom, where they removed their clothes. Defendant was about to touch B.Z.'s vagina when he noticed she was on her period. Defendant claimed he immediately ended the encounter because he was "grossed out." Defendant let B.Z. sleep on his bed while he went to the other party. Defendant denied having sex with B.Z.
2. Defendant's Case
Michael Nam, defendant's friend, was also an undergraduate student at UCLA. Nam attended the party on April 15, 2014, where he met B.Z. for the first time. B.Z. did not appear intoxicated when she arrived at the party, but Nam later saw her take three to six shots of vodka. In between B.Z. taking shots of vodka, Nam saw her and defendant sitting on the couch together. According to Nam, "[B.Z.] would take a shot, go talk to [defendant], and then come back and take a shot." Defendant took some shots of vodka with B.Z. Although she eventually became "pretty drunk," B.Z. didn't appear to be "sloppy drunk" or "out of it."
While they were sitting on the couch, B.Z. looked like she was flirting with defendant. At some point, B.Z. and defendant started kissing, which lasted for about 30 minutes. Nam thought B.Z. "enjoy[ed]" kissing defendant.
Dr. Bryan O'Connor, an emergency room doctor, testified as a defense expert on alcohol-induced amnesia or "black outs." "Blacking out" and passing out from alcohol consumption are not the same. While "blacking out," a person may appear to function normally, but their brain is not "encoding," or remembering, information. When a person passes out from alcohol consumption, they are unconscious and nonresponsive. A person's genetic makeup and the rate of alcohol and marijuana consumption can affect how quickly the person will experience a "blackout" while drinking.
Dr. O'Conner also explained that a person's weight plays a large role in determining how quickly that person will become intoxicated. The less a person weighs, the less alcohol that person needs to consume to reach a certain blood-alcohol level. Signs of intoxication include: slurred speech, giddiness, euphoria, forgetfulness, an unsteady gait, and a lack of coordination.
DISCUSSION
1. Substantial evidence supports defendant's conviction.
Defendant argues insufficient evidence supports his conviction for rape by an intoxicating substance. Defendant does not dispute that he had sex with B.Z. or that she was intoxicated when they had sex. Rather, defendant contends only that the People failed to prove he knew, or reasonably should have known, that B.Z. was incapable of legally consenting to sex because she was intoxicated. As we explain, substantial evidence supports defendant's conviction.
When a defendant claims insufficient evidence supports his conviction, we review the entire record in the light most favorable to the judgment to determine whether any rational trier of fact could have found the evidence proved the elements of the crime beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) We draw all reasonable inferences in favor of the judgment and do not resolve credibility issues or evidentiary conflicts. (Ibid.) " ' "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." ' [Citations.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.) Thus, before we may set aside the judgment, it must be clear " ' "that upon no hypothesis whatever" ' " is there sufficient evidence to support it. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
To establish a violation of section 261, subdivision (a)(3), the People must prove: (1) the defendant engaged in an "act of sexual intercourse ... with a person not the spouse of the perpetrator"; (2) the victim was "prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance"; and (3) the defendant knew, or reasonably should have known, the effect of the intoxicating, anesthetic, or controlled substance prevented the victim from resisting. (§ 261, subd. (a)(3).) "[S]ection 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication." (People v. Giardino (2000) 82 Cal.App.4th 454, 462 (Giardino).)
After he had sex with B.Z., defendant told Anaya that he had stopped hooking up with her because she was "too drunk." Defendant also saw B.Z. consume several shots of hard liquor before they started to hook up, and defendant told law enforcement that B.Z. was "a little unstable" and "slurring her words a bit" around the time they hooked up, behavior that indicated B.Z. was intoxicated. (See People v. Linwood (2003) 105 Cal.App.4th 59, 70 (Linwood) [common recognizable indicators of intoxication include slurring of speech and unsteadiness].) Moreover, other people who were at the party, including Nam, testified that B.Z. took several shots of liquor and showed signs of intoxication before she hooked up with defendant. Based on this evidence, a reasonable juror could find that defendant knew or reasonably should have known that B.Z. was incapable of legally consenting to have sex with him because she was intoxicated.
Defendant contends the jury's finding was unsubstantiated because there was some evidence that could support an inference that he had no reason to know B.Z. was too intoxicated to legally consent. Specifically, defendant points to evidence that no one at the party, including Anaya, Nam, or Park stopped defendant from hooking up with B.Z. or expressed any concern that B.Z. could not consent to sex because she was too drunk. Defendant also relies on Dr. O'Connor's testimony that a person can "black out" from drinking too much alcohol but appear to other people to have normal cognitive behavior. Defendant's argument is misguided.
We must view the evidence in the light most favorable to the judgment. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) As we explained above, the People presented evidence supporting an inference that defendant knew or reasonably should have known that B.Z. was too intoxicated to consent to sex. Consequently, even if the evidence defendant relies on could support a contrary finding, we are not permitted to resolve such evidentiary conflicts on appeal. (People v. Young (2005) 34 Cal.4th 1149, 1181.) 2. Section 261 , subdivision (a)(3), is not unconstitutionally vague.
Defendant next contends that section 261, subdivision (a)(3), is impermissibly vague. According to defendant, the provision is unconstitutional because "[a] jury cannot reasonably be expected to determine whether a defendant reasonably should have known whether a person's level of intoxication prevented that person from resisting." As defendant acknowledges, a nearly identical challenge to section 261, subdivision (a)(3), was rejected in Linwood. We agree with the Court of Appeal's decision in Linwood.
In rejecting the same argument raised by defendant in this case, the Linwood court explained that using a standard of reasonableness in a criminal statute does not render the statute unconstitutionally vague if the standard's " 'meaning can be objectively ascertained by reference to common experiences of mankind.' [Citations.]" (Linwood, supra, 105 Cal.App.4th. at p. 67.) The court looked to other statutes using similar "reasonable knowledge" standards that courts have upheld in the face of vagueness challenges. For instance, the court examined People v. Rodriguez (1986) 42 Cal.3d 730 (Rodriguez) and People v. Brown (1988) 46 Cal.3d 432, where the California Supreme Court upheld a statute that requires the defendant knew, or reasonably should have known, that the victim was a police officer. (Linwood, at p. 68.) The Linwood court also cited People v. Smith (1993) 13 Cal.App.4th 1182, where the reviewing court rejected a challenge to a sentence enhancement that applied if the defendant knew or reasonably should have known that the victim was 65 years or older. (Linwood, at p. 68.)
The court in Linwood then turned to section 261, subdivision (a)(3), to determine whether a jury could conclude a defendant reasonably should have known the victim's intoxication prevented her from legally consenting to sex. The court held the statute's " 'reasonable knowledge' " standard was sufficiently definite to pass constitutional muster. (Linwood, supra, 105 Cal.App.4th at pp. 68-69.) Citing Rodriguez, the court explained that the reasonable knowledge standard applied in section 261, subdivision (a)(3), is constitutional because jurors are capable of resolving "the factual issue of whether a defendant reasonably should have known that a given victim was too intoxicated to resist an act of sexual intercourse." (Linwood, at p. 68.) This is because we presume " 'the average juror has the ability to cull from everyday experience a standard by which to assess the ability of a defendant to know the status of his or her victim.' [Citation.]" (Ibid.)
Defendant argues Linwood was wrongly decided because the court did not base its decision "on any quantifiable measurement of intoxication ... [and thus,] there is no 'standard for police enforcement and for ascertainment of guilt.' [Citation.]" This argument is misguided. The court in Linwood identified several indicators that a jury may use to determine whether a defendant should have known the victim was intoxicated. As the court observed, "There are commonly recognizable indications of a person's intoxication, including an odor of alcohol, slurring of speech and unsteadiness, that enable one to reasonably determine if another no longer has the ability to resist." (Linwood, supra, 105 Cal.App.4th at p. 70.) Indeed, these are virtually the same indicators of intoxication identified by defendant's expert, Dr. O'Connor.
Defendant next contends the issue of vagueness created by section 261, subdivision (a)(3)'s reasonable knowledge standard is compounded by CALCRIM No. 1002's reference to morality in defining legal capacity to consent as the ability to "exercise reasonable judgment ... [by] understand[ing] and weigh[ing] the physical nature of the act, its moral character, and probable consequences." This language, however, does not come from section 261, subdivision (a)(3). Accordingly, it has no relevance to the issue of whether the statute itself is unconstitutionally vague. For that reason alone we would reject defendant's argument since he does not raise a separate claim of instructional error.
In any event, defendant's argument lacks merit. Defendant argues CALCRIM No. 1002's reference to "moral character" renders section 261, subdivision (a)(3), unconstitutionally vague because the instruction provides an unworkable standard for jurors to apply since "some people are very religious and may believe that any pre-marital sexual contact is unconscionable. Others believe that men and women are free to engage in sexual contact without regard to any moral standards whatsoever." But the issue section 261, subdivision (a)(3), requires a jury to resolve is whether the defendant knew or reasonably should have known the victim was too intoxicated to exercise reasonable judgment, not whether, had the victim been sober, she might have consented to sexual intercourse in light of her moral standards. Indeed, the standard is an objective one, viewed from a reasonable person's perspective. Nothing in the statute requires the defendant or jurors to divine the victim's personal moral views. (See Giardino, supra, 82 Cal.App.4th at p. 464 ["[T]he statute requires only that the level of intoxication be such that the victim is incapable of exercising the judgment required to decide whether to consent to intercourse."].)
In sum, we conclude section 261, subdivision (a)(3), defines the mens rea requirement for rape by an intoxicating substance with sufficient definiteness to withstand constitutional scrutiny.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------