Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL016909 Joy W. Markman, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
I.
Introduction
The juvenile court declared D.S. (the Minor) a ward of the court under Welfare and Institutions Code section 602 after sustaining the allegations of a wardship petition charging the Minor with rape of an intoxicated woman in violation of Penal Code section 261, subdivision (a)(3). The juvenile court placed the Minor in the custody of the probation department for commitment to juvenile hall for 210 days and imposed other conditions, including participation in a sex offender program, drug testing, and mental health treatment.
The Minor contends the evidence was insufficient to sustain the allegations of rape of an intoxicated woman under Penal Code section 261, subdivision (a)(3). We conclude the evidence substantiated every element of the offense and affirm.
II.
Facts
On July 19, 2005, 15 year old M.B. was at the home of her best friend, 15 year old M.R. M.B. planned to spend the night at M.R.’s house as she often did. Usually during stay overs, M.B. and M.R. used the computer, watched television, and talked. This time, they decided to do something different—drink alcohol. They drank wine from coffee cups. M.B. did not know how much she had. She never had consumed alcohol before and started to feel very sick to her stomach.
M.B. and M.R. went to a Del Taco restaurant, where they met Adam and Poncho. M.B. had nothing to eat at Del Taco. She continued to drink wine and felt sick in her stomach and head. She later told a police detective she drank a whole bottle of wine that evening.
As it started to get dark, M.B., M.R., Adam, and Poncho left together to go to the Minor’s house. The Minor was a friend of M.R.’s. She wanted to go to the Minor’s house because “it was a place to hang out at and probably because he had more alcohol.”
Only the Minor was home when the four arrived at his house. They stayed out in the backyard by the pool, drinking. M.B. could not remember whether she drank any more alcohol. M.R. saw M.B. drink half a bottle of beer. M.R. later told a police detective all of them were drinking heavily.
After a while, the five went inside the house to the Minor’s bedroom. They sat on the bed, and the Minor turned on the television. M.B. felt sick and lay down on the bed. At some point late in the evening, Adam and Poncho left; M.B. did not know the exact time. M.R. and the Minor were still awake, watching television, and talking. M.B., still feeling sick and dizzy, told M.R. she wanted to leave, but M.R. wanted to stay. M.R. asked the Minor to stay in the bedroom. He said he was not going to sleep in the same bed as M.B. and M.R.
M.B. remembered that just before falling asleep, the Minor rubbed her back and asked her, “are you horny.” The Minor continued to rub her back and said, “you guys are too drunk.”
Some time later that night, M.B. woke up while still lying on her stomach. She heard M.R. and the Minor in the same room, talking. M.B., still feeling sick and dizzy, tried to go back to sleep. M.R. was intoxicated, stumbled around the room, and bumped her head against the wall. She eventually fell asleep next to M.B., who was asleep. The Minor sat on the other side of M.B. and watched television.
When M.B. awakened again in the middle of the night or early morning, she noticed the drawstrings on her shorts were untied and her panties were “kind of just not pulled up all the way.” She had slept in similar shorts and panties before and they had never been like that when she woke up. She felt sore both inside and outside of her vaginal area.
M.R. and the Minor were still asleep. M.B. woke up M.R. and told her she wanted to leave. M.R. talked with the Minor for a while before leaving with M.B.
Once out of the Minor’s house, M.B. told M.R. “she felt wetness down there” and her shorts and panties were not the way they were the night before. M.B. thought the Minor had raped her while she was sleeping.
When M.B. arrived home, she noticed a clear fluid coming out of her vagina. She felt “really disgusting” and took a shower. After showering, she put on a robe, and, scared, waited for her mother to come home, unsure whether to tell her what happened.
When M.B.’s mother arrived home about 5:30 p.m., she found M.B. sitting quietly in her robe. The television was on, but she did not seem to be watching it. M.B.’s mother noticed M.B. was not behaving as she normally did and asked her what was wrong. Shaking and scared, M.B. was hesitant at first, but explained where she had been and what she had done the previous night. She said she met a boy, “something happened,” she had “stuff” coming out of her, there was something on her clothes, and she needed to go to the hospital.
M.B.’s mother drove M.B. to the nearest hospital, where a nurse performed a rape examination. The parties stipulated that M.B.’s clothing was analyzed and human sperm cells containing DNA from a single source were recovered from “the inner crotch area of the shorts and the liner of the panties.” The parties stipulated: “The DNA from the pa[n]ties and the standard from [the Minor] was typed by OCSD Forensic Scientist Edward Buse using the Profiler Plus and CoFiler typing system. Minor... was not excluded as the source of the semen on the panties. [¶] The male DNA profile obtained from the panties, which matched [the Minor], is estimated to occur with a frequency more rare than one in one trillion among unrelated individuals in the population groups examined, which included... Caucasian, Black, South West Hispanic and Asian.” The Minor does not dispute his semen was found on M.B.’s shorts and panties. No other results of the rape kit were received in evidence.
III.
Discussion
A. Standard of Review
The substantial evidence principles of review applicable in a criminal case are applicable in a juvenile delinquency proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 809; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088 1089; accord, People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Barnes (1986) 42 Cal.3d 284, 303.)
The trier of fact, not the appellate court, must be convinced of guilt beyond a reasonable doubt; for us, “[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The standard of review is the same when the prosecution relies on circumstantial evidence. (People v. Thomas, supra, 2 Cal.4th at p. 514.) Circumstantial evidence may be sufficient to prove the defendant’s guilt beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
B. The Evidence Substantiates Each Element of Rape of an Intoxicated Woman.
The elements of rape of an intoxicated woman in violation of Penal Code section 261, subdivision (a)(3) are (1) the defendant engaged in “sexual intercourse with a woman”; (2) the defendant and the woman were not married to each other at the time of the intercourse; (3) the effect of an intoxicating, anesthetic, or controlled substance prevented the woman from resisting; and (4) the defendant knew or reasonably should have known the effect of an intoxicating, anesthetic, or controlled substance prevented the woman from resisting.” (CALCRIM No. 1002.)
The Minor argues the evidence was insufficient to establish elements 1, 3, and 4 of rape of an intoxicated woman under Penal Code section 261, subdivision (a)(3). (It is undisputed M.B. and the Minor were not married to each other.) We address elements 1, 3, and 4, in turn.
1. Sexual Intercourse
Sexual intercourse means “any penetration, no matter how slight, of the vagina or genitalia by the penis.” (CALCRIM No. 1002.) Sexual intercourse may be proved by circumstantial evidence. (People v. Holt (1997) 15 Cal.4th 619, 669 (Holt).) “The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8; see also People v. Ogunmola (1987) 193 Cal.App.3d 274, 281, fn. 2.)
The evidence of sexual penetration in this case, though circumstantial, was sufficient. When M.B. woke up, she felt sore both inside and outside of her vaginal area. The drawstring on her shorts was untied, and her panties were twisted to one side and not pulled up all the way. She felt “wetness down there” and noticed a clear fluid coming out of her vagina. On appeal, the Minor does not dispute his semen was found on the inner crotch of M.B.’s shorts and the liner of her panties. Just before M.B. fell asleep, the Minor rubbed her back and asked, “are you horny.”
The Minor argues, “[i]n the absence of forensic evidence consistent with sexual intercourse, or testimony from M[.]B. that she remembered sexual intercourse, or testimony from M[.]R. that she witnessed sexual intercourse, no rational trier of fact could have found that sexual intercourse was proved beyond a reasonable doubt.”
We disagree. In Holt, supra, 15 Cal.4th 619, the California Supreme Court affirmed a conviction for rape without forensic testimony, the victim’s testimony, or any other eyewitness testimony. The defendant in Holt was convicted of raping and murdering the victim. (Id. at pp. 638 639.) Semen was found on the victim’s clothing, but a laboratory analysis found no traumatic evidence of penetration and no semen in the victim’s vagina or anus. (Id. at p. 668.) An emergency room physician who examined the victim testified he observed her vaginal area was red, which could be consistent with either infection or bruising and penetration by an adult penis. (Ibid.) The physician found no other evidence of infection. (Ibid.) The defendant contended this evidence did not support the element of sexual penetration. (Ibid.)
The California Supreme Court concluded otherwise, stating: “That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial. [Citation.] The evidence of penetration in this case was circumstantial—redness in the vaginal area, the absence of evidence of an infection that might account for it, and expert testimony that the redness was consistent with penetration. Other circumstantial evidence... could support an inference that the redness had a different cause.” (Holt, supra, 15 Cal.4th at p. 669.) The court explained that when a trier of fact relies on inferences, the inference must be reasonable, and an inference is not reasonable if it is based on speculation. (Ibid.) The inference apparently drawn by the jury—that defendant accomplished sexual penetration—was reasonable because it was based on evidence that the redness in the victim’s vagina was consistent with penetration by an adult male penis and the defendant’s admission he sexually assaulted the victim. (Ibid.)
The Minor argues this case is unlike Holt because here there was no circumstantial evidence such as redness in the vaginal area to support an inference of penetration. M.B. testified, however, she felt sore both inside and outside of her vaginal area and she noticed clear fluid coming out of her vagina. The condition of M.B.’s clothing when she woke up, the presence of the Minor’s semen on M.B.’s shorts and panties, and M.B.’s testimony she did not consent to sexual contact, at the very least established a sexual assault, as did the defendant’s admission in Holt. M.B.’s complaints of soreness could be attributable to a cause other than penetration, but that was an inference the trier of fact declined to draw. From the evidence in this case, a rational trier of fact could draw the inference the Minor sexually penetrated M.B.
2. Intoxication
In People v. Giardino (2000) 82 Cal.App.4th 454, 462, the court concluded Penal Code section 261, subdivision (a)(3) “proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication.” The Giardino court surveyed case law applying section 261, subdivision (a)(3) and concluded their fact patterns “support the conclusion that the 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.” (People v. Giardino, supra, 82 Cal.App.4th at p. 464.)
The evidence here met that standard. M.B. was only 15 years old and had never before consumed alcohol. She started drinking wine with M.R. in the late afternoon, and continued drinking wine at the Del Taco. M.B. did not eat anything. She later told a police detective she drank an entire bottle of wine. Soon after she started drinking, M.B. felt dizzy and sick to her stomach. At the Minor’s house, M.B. continued to feel sick and dizzy and lay on the bed while the others talked and watched television. She lay on her stomach and did not change position. After the Minor asked M.B. if she felt “horny,” she fell asleep or passed out.
The Minor argues the evidence was insufficient to establish M.B. was intoxicated within the meaning of Penal Code section 261, subdivision (a)(3), “[g]iven unclear evidence of how much alcohol M[.]B. drank, minimal evidence of intoxication, and the fact that any sexual activity occurred long after M[.B.] had stopped drinking.” The Minor cites M.R.’s testimony extensively to assert M.B. drank only an unknown amount of wine before it got dark and half a bottle of beer at the Minor’s home. Given M.B.’s age, the fact she had not consumed alcohol before, and had eaten nothing during the evening, it would not be unreasonable for the trier of fact to draw the inference from the evidence that alcohol rendered M.B. incapable of exercising the judgment required to decide whether to consent to sexual intercourse.
The trier of fact could have decided to disbelieve some or all of M.R.’s testimony. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [“A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so”]; Daly v. Wallace (1965) 234 Cal.App.2d 689, 693 [“‘The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment’”].) When asked whether she watched M.B. to see how much she was drinking, M.R. replied, “I think I did. I don’t really remember.” M.R. testified she was “buzzed” at the Del Taco, continued drinking, and was intoxicated (“like, drunk”) at the Minor’s house. M.R. later told a police detective everyone at the Minor’s house, including M.B. had been drinking heavily. M.B. told the same police detective she drank an entire bottle of wine. M.R. testified that M.B. “like, passed out or, I don’t know, something on the bed.”
The Minor asserts M.B. was capable of giving consent during the middle of the night because she stopped drinking by 9:00 or 10:00 p.m. However, based on M.B.’s age and inexperience with alcohol, the trier of fact reasonably could find M.B. did not regain sufficient sobriety after she ceased drinking to be able to give consent to sexual intercourse later that night. Such an inference would be stronger than a contrary one in light of evidence M.B. drank an entire bottle of wine.
3. Knowledge
Penal Code section 261, subdivision (a)(3) requires proof the defendant knew or reasonably should have known the effect of an intoxicating substance. (CALCRIM No. 1002.) An honest and reasonable, but mistaken belief the victim was able to consent is a defense to rape by intoxication. (People v. Giardino, supra, 82 Cal.App.4th at p. 472.)
The evidence supported a finding the Minor knew or reasonably should have known M.B. was too intoxicated to give consent to sexual intercourse. M.B. told a police investigator she remembered that just before falling asleep on the Minor’s bed, the Minor rubbed her back and asked, “are you horny.” He continued to rub her back and said, “you guys are too drunk.” In addition, M.B. drank half a bottle of beer at the Minor’s house, according to M.R. M.B. felt sick and did not want to be social. When everyone went inside to the Minor’s bedroom, M.B. lay on the bed while the others talked and watched television .M.B. lay in the middle of the bed, on her stomach, silent and motionless, until she fell asleep later that night.
The Minor challenges the sufficiency of the statement “you guys are too drunk,” arguing M.B. could not remember him making that statement, did not testify to it, and its context is unknown. The statement appears in the police investigator’s report, confirmed by the police investigator at trial. M.B. could not remember making that statement, but did not deny making it. The context of the statement, specifically, to whom does “you guys” refer, is a matter left to the trier of fact. A reasonable interpretation of “you guys” is it means M.B., or M.B. and M.R., because it came immediately after the statement “are you horny” made by the Minor while rubbing M.B.’s back.
The Minor also argues there was no evidence M.B. was behaving in an intoxicated way. Reactions to intoxication can vary: Feeling sick and lying face down motionless and quiet can be one of them. Indeed, M.R. testified M.B. “passed out.” The Minor also argues there was no evidence he knew M.B. had been drinking before arriving at his house, the Minor did not know M.B. and could not assess her level of intoxication, and M.R. testified she believed the Minor was not drunk. It is true there was no evidence the Minor knew M.B. had been drinking before she arrived at his house, and he had never met her before. However, M.B. did drink at the Minor’s house, albeit only a half a bottle of beer according to M.R., and the Minor stated, while rubbing M.B.’s back, “you guys are too drunk.” M.R. testified she believed M.B. was not intoxicated, but the trier of fact could disbelieve her testimony.
IV.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J. BEDSWORTH, J.