Opinion
B230487
02-14-2012
In re MARVIN N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARVIN N., Defendant and Appellant.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jaime L. Fuster and Robert C. Schneider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GJ28502)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Leventer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jaime L. Fuster and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Minor Marvin N. appeals from the juvenile court's order declaring him a ward of the court under Welfare and Institutions Code section 602, after sustaining allegations that on July 23, 2010, he committed rape of M., an intoxicated person (Pen. Code, § 261, subd. (a)(3)), and on July 30, 2010, he committed forcible rape of M. (§ 261, subd. (a)(2)). Minor was ordered placed in a nine-month camp program, with a requirement he participate in therapy upon release. Minor contends substantial evidence does not support the finding he knew or reasonably should have known that M. was too intoxicated to resist the sexual intercourse, as required by section 261, subdivision (a)(3). We affirm.
Hereinafter, all statutory references are to the Penal Code, unless otherwise indicated.
FACTS
Prosecution Case
A. July 23, 2010
M., age 14, testified that on July 23, 2010, she and her sister, D., spent the night in the one-room apartment of her adult stepbrother, his wife, Jessica, and M.'s stepsister, Evelyn, who lived there. Earlier that day, M. had hung out with minor at the pool of the apartment house, flirting with him and French-kissing him. Knowing he planned to spend the night there and wanting him to be her boyfriend, M. arranged to spend the night, too. Minor, M., D., and Evelyn drank and partied together in the apartment. M. drank three beers and four shots in 50 to 60 minutes. She had never consumed alcohol before. Feeling awkward and dizzy, she sat down on Evelyn's bed, where she resumed kissing minor, but when minor tried to reach for her breast and vagina, M. pushed his hand away three times. M. kept having to catch herself from falling over. She felt she did not know what she was doing and was starting to lose her memory. D. felt M. was "acting weird," and D. believed M. was drunk and did not know what she was doing. Minor drank that evening too, but he was coherent and able to interact. D. told M. to go to sleep. D. lay down next to M. on the bed and they both went to sleep.
Minor is Jessica's cousin.
During the night, minor and M. went to a vacant apartment next door, where minor had sexual intercourse with her. He knew M. had been drinking and was "in bad shape."
Minor gave a statement to the police after his arrest.
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M. had no memory of what happened after D. lay down with her on Evelyn's bed. The next thing she remembered was waking up in the morning in another room (the vacant apartment next door) naked from the waist down, with minor next to her, naked from his waist down. Her vagina hurt. She still appeared to be "kind of drunk." M. believed she had had sex with minor, but she did not remember it or remember why she was in the vacant apartment.
B. July 30, 2010
On July 30, 2010, M. hung out with minor at Jessica's apartment again, drinking and smoking marijuana. She French-kissed minor, because she liked him. She fell asleep on the floor. She awoke in the middle of the night to find minor was taking her clothes off. She told him to stop and tried to fight him off, but she was too weak. He forcibly had sexual intercourse with her.
Defense Case
Jessica, Evelyn, and minor's sister, G., testified. M. was seen drinking alcohol at a party on July 17, 2010. M. was drinking on July 23, but was not intoxicated. At 3:00
a.m., Jessica found M. lying on top of minor in Evelyn's bed. Minor was not undressed. Jessica told M. and D. to sleep in Evelyn's bed and minor to sleep on the floor. The next morning, M. was found asleep in the vacant apartment next door, wearing underpants and shorts and hugging minor. M. wanted to spend the next night at Jessica's, but Jessica refused to let her. M. was in love with minor. Subsequently, after Evelyn posted on MySpace that "[M.] got fucked and dumped by [minor]," M. disclosed to a mandated child abuse reporter that minor had raped her.
DISCUSSION
Substantial Evidence
Minor contends substantial evidence does not support the finding, under section 261, subdivision (a)(3), that he knew or reasonably should have known that M. was too intoxicated to resist the sexual intercourse. We disagree with the contention.
"The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases: we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt." (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)
Section 261 provides, in pertinent part: "(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." "As section 261[, subdivision] (a)(3) itself provides, the accused is guilty only if the victim's incapacitating level of intoxication 'was known, or reasonably should have been known by the accused.' An honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication." (People v. Giardino (2000) 82 Cal.App.4th 454, 472.)
The statute requires knowledge or constructive knowledge that the victim's intoxication prevented resistance. (People v. Linwood (2003) 105 Cal.App.4th 59, 67.) "Imputed knowledge of the risk is tested on an objective basis: '"[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness."' ([Williams v. Garcetti (1993) 5 Cal.4th 561, 574], quoting People v. Watson (1981) 30 Cal.3d 290, 296.)" (People v. Linwood, supra, at p. 67.)
"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." (People v. Linwood, supra, 105 Cal.App.4th at p. 70.)
Based on minor's statement to the police and testimony by both prosecution and defense witnesses, minor witnessed M. drinking heavily that evening. Minor was with M. in the small apartment when, feeling dizzy and awkward, M. had difficulty remaining conscious. M. appeared to be intoxicated. Minor told the police, and D. testified, that minor was not intoxicated; he knew what he was doing. Minor acknowledged he was aware M. was "wasted" when they went to the vacant apartment and had sex. The trial court could reasonably infer from these facts that minor knew or reasonably should have known that M. was intoxicated that night to the point she was unable to make a reasonable judgment about engaging in sexual intercourse with minor.
Minor acknowledges on appeal that M. was drunk. However, he asks us to reweigh the evidence and conclude that he too was drunk and did not actually or constructively observe M.'s intoxicated condition. This is a request that we reweigh the evidence, which we will not do. (People v. Manriquez (2005) 37 Cal.4th 547, 576-578.) As required by the applicable standard of review, we view the evidence in the light most favorable to the judgment, drawing all inferences in support of the verdicts. The evidence was sufficient for the trial court to conclude minor committed rape under section 261, subdivision (a)(3).
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.