Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2006022058 of Ventura, Allan L. Steele, Judge
[] (Retired Judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
David P. Snyder appeals the judgment entered after a jury convicted him of sexual penetration of an intoxicated person (Pen. Code, § 289, subd. (e)), and rape of an intoxicated person (§ 261, subd. (a)(3)). The trial court sentenced him to six years in state prison. He contends (1) the court erred in admitting certain expert testimony; (2) the court erred in allowing a witness to offer an opinion as to the victim's veracity; (3) the court violated its duty to supplement the jury instructions on sexual penetration and rape of an intoxicated person; and (4) cumulative error. We affirm.
Further undesignated statutory references are to the Penal Code.
Appellant was also charged with rape of an unconscious person, in violation of section 261, subdivision (a)(4). The court declared a mistrial as to that count after the jury was unable to reach a verdict. The record does not reflect whether the count was subsequently dismissed.
STATEMENT OF FACTS
Prosecution Evidence
On November 19, 2005, 20-year-old Christy T. invited her boyfriend, Phillip Weeks, to have dinner and watch a movie at her house in Ventura. Christy wanted Weeks to stay the night, but he left. From about 7:00 p.m. until about 8:00 p.m., Christy drank four shots of Tequila and took half of a Soma tablet. At some point, she received a text message from Dorian Dehgnanmanesh inviting her to go to "the street races." At about 10:00 p.m., Dehgnanmanesh arrived with Jose Vasquez, who lived across the street. Christy knew Vasquez but did not consider him a friend.
Soma, the trade name for cardisoprodol, is a muscle relaxant prescribed for the treatment of muscle pain and back disorders.
Dehgnanmanesh drove to a convenience market, where they purchased a tall can of malt liquor. Christy drank the malt liquor as Dorian drove to appellant's house. About 30 minutes later, Dehgnanmanesh drove Christy and Vasquez to the street races. Shortly thereafter, they drove to a gas station where appellant "showed up" in a van. Christy, who was tired and was feeling the effects of the alcohol and Soma, told Dehgnanmanesh she wanted to go home. Dehgnanmanesh told her that appellant and Vasquez would take her home, so she got into the van along with Vasquez.
As appellant was driving, Christy called Weeks on her cell phone and asked him to pick her up at the In-N-Out restaurant in Ventura. Vasquez asked Christy for her phone, and she gave it to him. Christy noticed that appellant was not driving in the direction of her house and said, "I want to go home." No one responded. Appellant drove to his house, and the three of them went inside.
The next thing Christy remembered was lying on the bed as appellant began having sex with her. When Christy said "no," her "mouth got covered." She also recalled someone was holding her arms down. Appellant got up, then Vasquez began having sex with her. The next thing she remembered after that was getting dressed and walking out of the house. Vasquez was there when she left, but appellant was not. Christy looked for her cell phone but was unable to find it.
Christy walked to a gas station and called Weeks. The night before, Weeks had waited for Christy at the In-N-Out restaurant for about 45 minutes and had repeatedly called her on her cell phone. Weeks had also received a text message from Christy that night that said, "baby, help." When Weeks asked her "what the hell happened" that night, Christy tearfully replied, "They had sex with me. I was raped."
Weeks picked up Christy. She told him she thought that her cell phone was still at the house where she had been raped, and gave him directions to appellant's house. When they arrived, Vasquez came out and handed Christy her phone. Neither of them spoke. After they drove away, Christy began sobbing and told Weeks that Vasquez was one of the men who raped her. Christy told Weeks she did not want to report the incident to the police and that she just wanted to go home and take a shower. Weeks called the police.
The police spoke to Christy as she sat in Weeks's car. Christy directed one of the deputies to appellant's house. When they arrived, appellant and Vasquez were both standing on the front lawn. Christy identified them as the men who had raped her. After Christy spoke with a detective at the police station, she was taken to a medical facility for an examination.
Christy was interviewed that afternoon at her house by Ventura County Sheriff Deputy Mario Aguilar. He testified that Christy smelled of alcohol and appeared to be under the influence. She said she had been raped by two men and that one of them had covered her mouth while the other held her arms down. She also gave general physical descriptions of both men.
That same day, appellant was taken into custody and was interviewed by Detective Alberto Miramontes. After appellant waived his right to an attorney, he told the detective that Christy was "all fucked up" and "couldn't fucking go anywhere" when he met her the previous night. Christy kept asking him where her boyfriend was and fell down. Appellant believed she was too drunk to be out in public, so he offered her a ride home. He acknowledged that Christy was highly inebriated when he put her in his van.
Appellant told Detective Miramontes that he and Christy engaged in consensual sex at his house. He denied that Vasquez was in the room at the time and claimed, "I didn't see him put his dick inside her. I didn't look at his dick." He also said that Christy woke up in the middle of the night and began hysterically asking where her boyfriend was. Appellant tried to calm her down and told her that if she left she could be arrested for being drunk in public. Christy got up to leave and fell down.
Appellant acknowledged taking photographs of his sexual acts with Christy, and gave the detective permission to retrieve the cell phone that contained them. He described one of the photographs as depicting him digitally penetrating Christy's vagina, although he claimed he did not know who had taken it. Appellant admitted that another photograph depicted his erect penis and Christy's vagina.
Blood and urine samples were taken from Christy at about 2:00 p.m. the day after the incident. Testing was negative for alcohol and gamma hydroxybutyric acid or GHB, commonly known as "the date rape" drug. The results were positive for carisoprodol, the generic name for Soma, and meprobamante, a breakdown product of the drug. Janet Anderson-Seaquist, a supervising forensic scientist for the Ventura County Sheriff's Department Forensic Sciences Laboratory, testified it was possible that a person of Christy's height and weight who drank four shots of Tequila before 9:00 p.m. and then drank a tall can of malt liquor and consumed half of a Soma tablet "could pass out" by 1:00 a.m. She also would expect that the individual's blood alcohol level would be zero by about 7:30 a.m.
Dea Boehme, also a supervising forensic scientist, testified over objection that GHB "has a very short half-life, so typically a dose of GHB is gone in just a few hours." Memory lapses are a common sign of the drug, which is typically a liquid that can be "slipped" into the drink of an unsuspecting victim. Christy's blood, which was drawn at 2:00 p.m. the day after the night in question, did not contain any trace of GHB. The drug remains in urine for a longer period of time, but the urine sample must be collected less that 12 hours after the drug is administered.
Defense Case
John Treuting, a toxicologist, opined that if a person of Christy's weight and age who had been drinking since age 13 consumed four shots of Tequila at 8:00 p.m., within 20 to 40 minutes her blood alcohol level would peak at approximately.11 percent by weight. Her consumption of a tall can of malt liquor at 10:30 p.m. "would create a little bit of a spike" in the blood alcohol level. The blood alcohol level would then drop to.03 by 12:45 a.m., and to zero at 3:00 a.m.
Appellant testified in his own behalf. At the time of trial, he was a 32-year-old married father of four. At the time of the incident, he was separated from his wife and had been out of work for about two months. Appellant had met Vasquez at a party appellant held at his house about a week prior to the incident. Appellant had another party on the night of November 19, when Vasquez introduced him to Christy and Dehgnanmanesh. The three of them only stayed for about 15 minutes. Appellant did not see Christy drinking at that time, and she did not appear to be drunk.
Later that night, Vasquez called appellant and asked if he could pick him up at the Shell gas station on Harbor Boulevard. Appellant, who had not been drinking that night, agreed. When he arrived in his van, Dehgnanmanesh approached him and Vasquez and said something like, "I can't get her out of the car. I don't want to take her home. I don't want to drive." Appellant told Christy that he could drive her home or she could call someone to pick her up. Christy replied that she was trying to reach her boyfriend. She ultimately accepted his offer for a ride and got in the back seat of his van as Vasquez sat in the front passenger seat.
Appellant asked Christy for directions to her house, but she did not respond. He could see that she was either talking on her cell phone or sending a text message. He then told her that she could spend the night at his house and that he would take her home in the morning. She responded, "yeah, that will be fine."
As Christy was walking into appellant's house, he took a picture of her rear on his cell phone. After they were inside, Christy used the bathroom adjacent to appellant's bedroom and then sat down on his bed. Appellant sat down next to her and engaged in "small talk." Christy told appellant he was "cute," and he said she was also cute. They started kissing and eventually began removing each other's clothing. Appellant showed Christy his camera phone and asked, "Is this cool? Do you mind if I take your picture?" She "just stood up, smiled at me, pulled her pants down, along with her underwear and pushed her rear-end out kind of like a pose." Appellant took a picture, then started rubbing her clitoris. Christy told him to "lick" her, which led to oral sex followed by intercourse. Christy never pushed appellant away or did anything else that would have led him "to believe that she didn't want to be doing this." She actually "was telling me what she wanted me to do." They continued to have sex for about an hour. When appellant was ready to ejaculate, he asked Christy, "should I come inside you?" and she said yes.
About 25 minutes before appellant ejaculated, Vasquez "kind of peeked his head in" the door and Christy said, "hey, Joey, come here." Vasquez came in and appellant left the room and went to the kitchen. Vasquez came out of the room and asked appellant for his phone because Christy "wants me to take some pictures." Vasquez then asked appellant to "come take a picture of me." Appellant went in and "took a picture of him having sex with Christy," then left the room. About 40 minutes later, Vasquez came out and said, "she's asking for you." Appellant went in and Christy motioned for him to lie down next to her. The two of them engaged in sexual intercourse again and then fell asleep.
In the morning, Christy woke up and started looking for her cell phone. When appellant offered her his phone, she replied "I can't use that phone" and asked where the nearest phone was. He said that would be the In-N-Out restaurant, but noted it was 4:30 on a Sunday morning. Christy decided to stay and the two of them went back to sleep. Shortly thereafter, Christy aroused him and they had sexual intercourse again. They slept for another hour and forty minutes. Appellant woke up, got dressed, and went to McDonald's. When he returned 25 minutes later, he talked to Vasquez at the front door. He did not see Christy when he went back inside. Shortly thereafter, the police arrived and arrested him.
DISCUSSION
I.
Expert Testimony Regarding GHB
Appellant contends the court erred in admitting expert testimony regarding the "date rape drug," GHB. He argues the evidence should have been excluded as irrelevant because there was no other evidence from which the jury could have found that Christy had consumed GHB on the night in question. He further argues that even if the evidence was relevant, his trial attorney provided constitutionally ineffective assistance by failing to move for its exclusion under Evidence Code section 352. The People respond that appellant either abandoned or forfeited his right to challenge the evidence by failing to object to it at trial; (2) the evidence is relevant; and (3) any error in its admission was harmless. In his reply brief, appellant asserts that any failure of his attorney to object amounted to ineffective assistance of counsel.
We need not decide whether appellant's objections were sufficient to preserve at least some of his claim with regard to the admission of the GHB evidence, whether the challenged evidence was relevant, or whether McNamara provided ineffective assistance by failing to raise an objection under Evidence Code section 352. Even if appellant could establish that the evidence was erroneously admitted, the error would be harmless because it is not reasonably probable he would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818; People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary errors under state rules of evidence evaluated under "standard of review... announced in [Watson], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension"]; Strickland v. Washington (1984) 466 U.S. 668, 694 [defendants claiming ineffective assistance of counsel must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"].) The evidence appellant challenges essentially established that GHB is known as the "date rape" drug, can cause memory loss, and has a half-life of only a few hours. It was also established that no trace of the drug was found in Christy's system. As appellant acknowledges, in her closing argument the prosecutor told the jury that she had failed to prove Christy was under the influence of GHB during the time she was with appellant. The record is also devoid of any evidence from which a reasonable juror could have found beyond a reasonable doubt that Christy had ingested GHB on the night of the incident, much less that appellant had either participated in administering the drug to her or was aware that she was under the influence of the drug.
Moreover, appellant effectively conceded the truth of facts that were sufficient to sustain his conviction. To convict appellant of both sexual penetration of an intoxicated person and rape by intoxication, the jury had to find that he engaged in penetration and intercourse with Christy either knowing or having reason to know she was so intoxicated that she was unable to knowingly consent. (§§ 261, subd. (a)(3), 289, subd. (e).) It is undisputed that Christy drank at least four shots of Tequila and took a muscle relaxer the night she had sex with appellant. When appellant was interviewed by Detective Miramontes the day after the incident, he characterized Christy as being so "fucked up" that she "couldn't fucking go anywhere." He recalled that she had fallen down and kept asking for her boyfriend, who was not there. He also stated he had offered to give her a ride home because he believed she was too drunk to be by herself in public, and that she was highly intoxicated when he put her in his van. While he claimed that they had engaged in consensual sex, he believed she was still too drunk to be out in public when she later woke up and began hysterically asking where her boyfriend was. He also noted that she fell down when she got up to leave. Appellant nevertheless chose to engage in sexual intercourse with Christy again after she returned to the bed. Appellant's claim that Christy did nothing to indicate she did not want to have sex with him is also belied by Christy's testimony that she said "no" when she first realized what was happening. In light of this evidence, any error in admitting the evidence regarding GHB was harmless.
II.
Deputy Aguilar's Opinion of Christy's Veracity
Appellant claims the court erred in allowing Deputy Aguilar to testify that he believed Christy was telling the truth when she told him "that she couldn't take care of herself and possibly was intoxicated" when appellant had sex with her. He argues the testimony amounts to an improper lay opinion on Christy's veracity. The People respond that appellant forfeited this claim by failing to object, that the testimony was nevertheless proper, and that any error in admitting it was harmless.
We agree with appellant that he preserved the claim with a proper and timely objection. We also agree with appellant that the deputy's opinion was improper.
The prosecutor asked Deputy Aguilar, "So knowing that [Christy] said she was raped, you did have reason to believe that she could not take care of herself between the hours of midnight and 6 a.m.; correct?" Defense counsel objected to the question as calling for a response that was beyond both the scope of cross-examination and the deputy's expertise. This objection is sufficient to preserve appellant's claim that the deputy offered an improper lay opinion on Christy's veracity.
"Lay opinion about the veracity of particular statements by another is inadmissible on that issue.... With limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but lay views on veracity do not meet the standards for admission of expert testimony. A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' (id., § 800, subd. (b)), i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.] Finally, a lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence (Evid. Code, § 780, subd. (e)), nor does it bear on any of the other matters listed by statute as most commonly affecting credibility (id., § 780, subds. (a)-(k)). Thus, such an opinion has no 'tendency in reason' to disprove the veracity of the statements. (Id., §§ 210, 350.)" (People v. Melton (1988) 44 Cal.3d 713, 744.)
Christy's veracity was not a proper subject of Deputy Aguilar's expertise. The record does not establish him to be an expert on assessing credibility, and nothing about his stated observations, training or experience put him in a better position than the jury to determine whether Christy was telling the truth. The deputy may have been qualified to testify that Christy was visibly intoxicated when he interviewed her in the afternoon on the day following the incident, and perhaps even that she had been intoxicated several hours. That does not mean, however, that he was qualified to infer from this that Christy had been so intoxicated that night that she was incapable of consenting to engaging in sex with appellant. Deputy Aguilar went even one step further, stating that he believed Christy's claim that she had been raped. This, of course, was the ultimate issue of fact to be decided by the jury.
According to the People, appellant's claim that Deputy Aguilar offered an improper opinion on the veracity of the victim "is deceptive because the officer did not opine that she was truthful about being raped but that she was truthful about her inability to resist, even more specifically as Officer [sic] Aguilar testified 'that she couldn't take care of herself and possibly was intoxicated at the time that it happened.'" This is a distinction without a difference. It also misses the point when the challenged statement is considered in the context in which it was made. In the immediately preceding question, the deputy was asked whether he had reason to believe that Christy had been able to take care of herself "knowing that [she] said she was raped." The prosecutor then essentially repeated the question in asking whether the deputy's observations "plus what [Christy] said with regards to her being raped" led him to believe she had been unable to care for herself. The deputy responded, "Based on what she had told me and what I had seen when I contacted her initially, I did feel that she was being truthful about her statement in that she couldn't take care of herself and possibly was intoxicated at the time that it happened." (Italics added.) Appellant's characterization of the deputy's testimony is accurate.
On this record, however, we conclude that error in admitting Deputy Aguilar's testimony was harmless. As we have noted, appellant's own testimony was sufficient to sustain the finding that Christy was too drunk to consent to the acts he engaged in with her. Moreover, the jury was instructed that it was for them alone to decide whether Christy was telling the truth about being raped. (CALCRIM No. 226.) We presume the jury understood and followed this instruction. (People v. Young (2005) 34 Cal.4th 1149, 1214.) Because it is not reasonably probable that appellant would have achieved a favorable result had Deputy Aguilar not offered an opinion on Christy's veracity, the error occasioned by its admission was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Melton, supra, 44 Cal.3d at p. 745 [applying Watson standard of review to error in admitting opinion of witness veracity].)
III.
Instructional Error
Appellant contends the court violated its sua sponte duty to supplement the jury instructions on rape of an intoxicated person (CALCRIM No. 1002) and sexual penetration of an intoxicated person (CALCRIM No. 1047) with language from CALJIC No. 1.23.2 stating that the crime requires proof that the victim's intoxication did more than merely reduce her sexual inhibitions. We disagree.
The jury was instructed with CALCRIM No. 1002 as follows: "To prove that the defendant is guilty of [rape of an intoxicated person], the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The effect of an intoxicating & anesthetic substance prevented the woman from resisting; [¶] AND [¶] 4. The defendant knew or reasonably should have known that the effect of an intoxicating & anesthetic substance prevented the woman from resisting. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. [¶] A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty."
As given, CALCRIM No. 1047 provided: "To prove that the defendant is guilty of [sexual penetration of an intoxicated person], the People must prove that: [¶] 1. The defendant committed an act of sexual penetration with another person; [¶] 2. The penetration was accomplished by using a foreign object; [¶] 3. The effect of an intoxicating & anesthetic substance prevented the other person from resisting the act; [¶] AND [¶] 4. The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting the act. [¶] Sexual penetration means penetration, however slight, of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, or gratification. [¶] A person is prevented from resisting if she is so intoxicated that she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] A foreign object, substance, instrument, or device includes any part of the body except a sexual organ. [¶] The defendant is not guilty of this crime if he actually and reasonably believed that the person was capable of consenting to the act, even if the defendant's belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty."
Appellant forfeited any claim of instructional error by failing to object to the accuracy or sufficiency of that instruction, or propose an additional or supplemental instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) For the same reason, he forfeited his claim that instructional error prejudiced his constitutional right to a fair trial. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 165.) The nature of appellant's claim belies his assertion that he actually challenges the instruction as legally incorrect.
In any event, the claim fails. CALJIC No. 1.23.2 provides in pertinent part that "an essential element of the crime is that the alleged victim was prevented from resisting the act by an intoxicating substance. 'Prevented from resisting' means that as a result of intoxication, the alleged victim lacked the legal capacity to give 'consent.' Legal capacity is the ability to exercise reasonable judgment, that is, to understand and weigh not only the physical nature of the act, but also its moral and probable consequences. [¶] In making this determination, you should consider all the circumstances surrounding the act, including the alleged victim's age and maturity. It is not enough that the alleged victim was intoxicated to some degree, or that the intoxication reduced the person's sexual inhibitions. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. Instead the level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue."
CALJIC No. 1.23.2 is derived from People v. Giardino (2000) 82 Cal.App.4th 454, 466-467. In Giardino, the jury was instructed with CALJIC No. 10.02, which, in pertinent part, defines rape of an intoxicated person as sexual intercourse with a person who is "prevented from resisting by any intoxicating... substance... and this condition was known or reasonably should have been known by the accused...." The court in Giardino concluded that CALJIC No. 10.02 inaccurately suggests to the jury that the victim's consent rather than her capacity to give consent is critical and that "prevented from resisting" refers to physical resistance rather than mental incapacity to resist. (Giardino, supra, at pp. 462, 466.) The court held the jury should have been instructed that "prevented from resisting" required the jury to determine whether the victim lacked the legal capacity to consent because she lacked the ability to exercise reasonable judgment. (Id. at p. 466.) The court also explained that the level of intoxication must be greater than that which simply reduces sexual inhibitions. (Id. at pp. 466-467.)
CALJIC Nos. 10.02 and 1.23.2 were replaced by CALCRIM No. 1002, which includes language consistent with the principle expressed in Giardino that rape of an intoxicated person concerns a victim's mental capacity to consent. CALCRIM No. 1002 provides that a "person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved." Although the instruction does not include the language from CALJIC No. 1.23.2 regarding a reduction of the victim's sexual inhibitions, it makes clear the jury must find that the victim's level of intoxication was sufficient to negate the exercise of the reasonable judgment necessary for legal consent. Jurors are able to resolve the factual issue of whether a given victim was too intoxicated to resist sexual intercourse without further instruction. (See People v. Linwood (2003) 105 Cal.App.4th 59, 68-71.) Appellant's claim accordingly fails.
Appellant also claims CALCRIM Nos. 1002 and 1047 are rendered ambiguous by their reference to "moral character" and "probable consequences." This claim is also forfeited because appellant did not ask the trial court to modify the instructions in the manner he now asserts. The claim in any event fails. As the People note, appellant's challenge of this language is disingenuous in that CALJIC No. 1.23.2, which he claims the court should have given, contains virtually identical language.
Moreover, appellant's argument is based on a faulty premise. He believes the terms "moral character" and "probable consequences" are problematic because they refer to an undefined standard of morality and unspecified consequences. Considered in context, the instructions merely state that a person is unable to consent to an act unless he or she is "able to understand and weigh the physical nature of the act, its moral character, and probable consequences." In other words, the person must be able to understand the nature, moral character, and probable consequences of the act from his or her own perspective, not some universal standard of morality. Contrary to appellant's suggestion, the instruction in no way invites jurors to morally judge the alleged victim's actions based on their own concepts of morality. It merely explains that the person is incapable of legally consenting to the act if the ingestion of an intoxicating substance has rendered him or her incapable of fully appreciating the nature and consequences of that act. Appellant also overlooks the fact that the defendant cannot be found guilty unless the prosecution proves beyond a reasonable doubt that he or she knew or reasonably should have known that the person had ingested an intoxicant that rendered him or her incapable of exercising reasonable judgment. Because the terms "moral judgment" and "probable consequences" do nothing to render the instruction as a whole ambiguous or misleading, appellant's claim of instructional error in that regard fails.
IV.
Cumulative Error
Appellant asserts that the cumulative effect of the claimed errors combined to deprive him of a fair trial. Because we reject all of appellant's claims, the claim of cumulative error also fails. (People v. Avila (2006) 38 Cal.4th 491, 608.)
CONCLUSION
Despite all the discussion about GHB, opinion testimony on the victim's credibility, and the instructions, the case was a pure credibility contest -- and even at that there was little factual dispute. The essential fact in issue was the degree to which the victim was intoxicated. The fact of intoxication and the nature of the sexual acts were hardly contested. There is substantial evidence that supports the jury's conclusion that the victim's degree of intoxication both precluded her from resisting and was known to appellant.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.