Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL028341, Ronald P. Kreber, Judge.
Phillip I. Bronson, 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, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The juvenile court erred when it denied the minor’s request to permit evidence concerning the complaining witness’s sexual activities just prior to the alleged rape. Those activities directly relate to the level of intoxication and the capacity of the complaining witness to resist the minor shortly thereafter, and are also crucial to whether or not her condition was known, or reasonably should have been known by the minor. We reverse the findings of the juvenile court.
I FACTS
The petition alleges one count, a felony, rape by use of drugs by Simon S., the minor. The minor was 17 at the time of the incident. At the end of the hearing, the court said: “And the court would find that that felony count has been proved to be true beyond a reasonable doubt.”
B.D.
When B.D. was 16 years old, she met the minor. Usually, when they were together, other people were present. One time, during the summer of 2007, the two “hung out” alone at B.D.’s house. They kissed each other. Between that time and the time of the incident involved here, they “hung out” a few times, “but it was with [other] people.”
In November 2007, B.D and some friends went to the minor’s house for a “kickback” after B.D. and her parents “had gotten into an argument.” At the minor’s house, there was alcohol and there were no adults. B.D. received a text message from her mother which called her a vulgar and insulting name. As a result of that text message, B.D. “took [her] anger out the wrong way” and drank Crown Royal alcohol out of a shot glass with no mixers. She said she had more than five and less than 10 drinks. When she was asked if she consumed eight shot glasses of Crown Royal, she responded, “That sounds about right.” She drank them “one right after the other,” all over “give or take maybe a minute or 30 seconds” of each other.
She said she was “drunk.” When she was asked to describe what that meant, she said: “Not really aware of what’s going on. Um, hard to walk and understand just surroundings.”
She said she did not remember what happened after she drank the alcohol. She was asked what was the next thing she remembers after drinking the alcohol, and said: “The next thing I remember was being in the bathroom with Simon.” She was on the bathroom counter and the minor was “thrusting.” When she was asked to explain what she meant, she said the minor was penetrating her “in my vagina” with his penis.
She testified she “pushed him off and told him to stop.” She explained her thought process: “I specifically remember actually having to comprehend what was going on, and I knew in my head that I didn’t want it, so I told him to stop.” Counsel asked: “Okay. So you do actually recall a thought process going on in your head where you actually comprehended what was going on? B.D. said: “Very slowly, but yeah.”
B.D. does not “exactly recall” what the minor did then, but she remembers walking away. She walked out of the bathroom and into the bedroom and saw Jason B. in the bedroom, but the next thing she remembers is waking up in Simon’s bed in the middle of the night. She “went blurry again.”
When B.D. woke up in the morning, she was in the minor’s bed next to the minor. Five others were asleep on the floor of the bedroom. She recalls that the night before she was wearing a striped sweater and jeans, but in the morning, she was wearing a T-shirt belonging to the minor and no underwear.
Under cross-examination, B.D. said she “was a little bit attracted to” Rob K. “considering [she] used to date his twin brother.” She explained: “I didn’t really have feelings towards him until I was drunk and he pretty much seemed like the same person as Steve.”
B.D. was asked what she remembered about being with Rob K. She responded: “I just remember seeing his face. That’s all.” She said that was after she “consumed the eight ounces of Crown Royal.” She also confirmed that “the only amount of alcohol [she] had that day was the eight ounces of Crown Royal.” She said before November 2007, she had never been drunk.
Counsel asked B.D. if she talked with Rob K. “after this incident went down.” She said she did. The next question was: “And during that phone call, you told Rob [K.] that you knew you had sex with Rob [K.] that very same night, right?” The court sustained a relevance objection.
B.D. was asked about a prior allegation of rape on June 15, 2007, when B.D. told the police she met an adult male college student on the Internet and that he forced his way into the living room and raped her. Afterward, he supposedly scratched a vulgar word across her stomach with a fork. On cross-examination, she admitted she told the police she “made up the entire story to get the attention of a former boyfriend.” She also admitted she was trying to get the attention of her parents, and that she was having “psychological issues.”
Exhibits A and B are pages from B.D.’s Internet profile. One statement reads: “Happiest When [I’m] with my friends... [having] sex... and partying....” While acknowledging the statement was there to be seen by “anybody that got on the Internet,” she said the page was a joke.
With regard to the allegation against the minor here, B.D. said she has “a specific recollection of actually pushing him off” her. She “guess[es]” he complied and got away from her. She has a specific recollection of getting off the counter. She specifically recalls walking out of the bathroom. She has a specific recollection of walking into the bedroom. She specifically remembers getting into bed. She was asked if she had “a specific recollection of having the mental ability to say stop,” and she responded: “Well, it took me awhile to comprehend what was going on and to state what I really wanted.” Counsel followed up with the question: “And after you began this mental process of comprehending what was going on, you had a specific recollection of saying stop, correct?” B.D. answered: “Yes.”
When she got home, B.D. called her best friend who “came over.” The friend, Taylor, suggested that B.D. call Justin B. because she had troubling remembering all that happened the previous night. Justin B. helped her remember what happened. B.D. also spoke with Jason B. “to help [her] figure out what went on that night.”
A detective arranged for B.D. to telephone the minor. She asked the minor if they had sex, and the minor said, “Yes.” The detective told B.D. to ask the minor if he realized that she did not want to have sex with him. The minor told her he did not realize that. He said “there was nothing that [she] did to make him think that [she] did not want to have sex with him.
Rob K.
Rob K. said he was playing video games upstairs with B.D. at the minor’s home, and “she was like rubbing my back and kind of flirting with me.” She went downstairs for a while. Rob K. went to sleep. He described what happened next: “And then, like, they were kind of noisy downstairs. And then she comes upstairs, lays on top of me, and then we —” He added: “She was just like kind of touching me.” At that point, Rob K. had no idea she had been drinking.
When Rob K. was called to the stand, he gave a different last name, but both parties use the name Rob K., so we do, too.
B.D. suggested the two of them “go in the other room.” The two went to the loft, were “very close” and “in very close proximity,” and still Rob K. did not “observe or smell anything that led [him] to conclude she was drunk.” She did not seem impaired and “she was not walking around in, like, a drunk manner.”
Because of the court’s ruling, discussed below, defense counsel avoided asking Rob K. about what he and B.D. actually did in the loft. Counsel asked: “Now, however long it took while you were in the loft, did you return with her, or did you return by yourself?” Rob K. answered: “Well, we were in the loft, and like we were done, and we got our clothes on, and then that’s when like we — like, I just — I don’t remember if we walked together, but I remember we were getting clothes on together.” He said B.D. did not “stumble, stagger, or have any difficulty getting her clothes on.”
Rob K. took a shower and then “that’s when [he] saw her, like, kind of laying in the middle....” He explained he meant she was laying in the “middle of Justin and Steve....” He continued: “ [L]ike she was trying to like, grab them. Like, trying to get — like, I don’t know, like, how to explain it. But she was, like — kind of like trying to touch them. Trying to lay with them, I guess.” Rob K. said B.D. then “like crawled over to, like, Derek’s spot, and she threw up.” He thinks she vomited “multiple times.” The minor helped her: “She was on the toilet, and she was throwing up into the toilet, and he was, like, standing next to her, asking if she was okay.” At that time, Rob K. was also in the bathroom changing.
Jason B.
Jason B. and B.D. are neighbors. He was present at the minor’s home on the night of the incident involved here. His brother, Justin, was also there. When he was asked to describe B.D.’s condition that night, he said: “She looked pretty tipsy.” He was asked to state what he meant by “tipsy,” and said: “Well, tipsy is like when you’re like — you’re like in between drunk and like sober,” and that she did not appear drunk. Her speech “appeared to be normal.” He said B.D. was flirting with Rob K., the minor and “pretty much everybody involved.”
When B.D. came out of the bathroom, Jason B. asked her if she wanted to sleep on the floor with the rest of them. B.D. told him she wanted to sleep in the minor’s bed. He said B.D. looked kind of “shocked” when she came into the bedroom. When he was asked to explain what he meant, he said: “Well, a little in her eyes. Kind of like — kind of clueless. But I don’t know. She looked pretty sober, though.” But after Jason B. reviewed what he told the police, he said she came out of the bathroom laughing and appeared to be fine. Jason B. said the next morning he saw B.D. get out of bed and go over to where Rob K. was sleeping and tell him, “I’m sorry.”
Derek S.
Derek S. was 17 when he testified. He saw B.D. consume alcohol. He said: “You can obviously tell that she was intoxicated.” Later he said: “Well, you knew she was pretty drunk when she was throwing up and slurring her words.” Derek S. saw B.D. and Rob K. go “into the loft area” and “spent some time in there together.”
Steven K.
Steven K. and Rob K. are twins. He also attended the get together at the minor’s house. He has known the minor since they were in the “like, 8th grade.” He thought that the minor and B.D. were dating.
Steven K. did not have any alcohol to drink that night. He said that about three minutes before she threw up, B.D. “was fine,” and then: “[L]ike, I was already laying — I think we were all watching a movie. And then she comes in, and then she, like, kind of tries to lay on me. And I was like — I put my hands up to, like, stop her.” He said she appeared to be trying to come on to him. After that, according to Steven K., “she laid on Derek.” He said, “When she threw up, I realized she was pretty drunk,” and he did not notice any signs of intoxication before that.
Interview of the Minor
Detective Joey Ramirez has been a police officer with the City of Orange for 18 years. In November 2007, he was assigned to the Youth Services Bureau. He interviewed the minor. The transcript of Ramirez’s interview of the minor is part of the record on appeal.
The minor said he had “like one shot and I had half a beer and then ah a cup with Crown Royale and Canadian Dry” to drink on the night of the incident. He said he “heard” B.D. “drank a lot” that night. The minor said the drinking started “around ten” and B.D. “drank all what she was gonna drink” by “[t]en thirty, eleven.”
When he was asked how did B.D. seem at “eleven,” the minor said she was “still okay.” When he was asked to explain what that meant, he said, “She was fine. She was walking on her own she wasn’t wobbling around she wasn’t stumbling. She-was pretty a-aware conscious of what was going on.” He said her speech was “fine.”
B.D. became “a little wobbly.” It was at this point that B.D. started throwing up, and he took her to the bathroom. He said she had “throw up all over” and he told her he was “gonna have to take your clothes off” and B.D. “shook her head like go ahead.” He took his clothes off too. They both got in the shower. The minor “picked her up under her armpits” and helped her into the shower.
When they got out of the shower, she was sitting on the counter, and, according to the minor: “I was like-and um-what I said I don’t know what she said but I-that’s we ended having sex and then in the middle of it she’s all I can’t do this. Um I didn’t know what she meant by that I-I can’t do this like it’s just morally I sh-shouldn’t be doing this or I just can’t do this [cuz] I’m so drunk and then she gets up and she walks outside and then she puts some of my clothes on. She goes to bed and that was it.”
When the minor was asked what made him think it was okay for him to have sex with B.D., he responded: “She did not okay give me a second. Um. What happened was we got out of [the] shower she [was] sitting on the counter and ah you know I don’t recall asking her but I don’t recall her um struggling or fighting me or and I was like are you okay and well she’s all yeah she’s okay. I mean I know there was alcohol involved we were both intoxicated and but when she did want to stop I stopped. Is-I let her leave. Let her go to bed. So I don’t know what else I can do.”
The minor said he has always been attracted to B.D., and that he got excited when he was drying her off. He stated “and she’s always like led me on and stuff so. Dude man I clears-I got clues,” and added; “And then-I think she’d always-she’d come over she’d stand next to me she’d like sit on my lap sometimes. She’d ah like rub my neck stuff like that um make funny faces at me um yeah. I met her like in the beginning of the summer.”
Ramirez asked the minor: “Okay, so you’re drying her off you get excited you get an erection and then what?” Minor responded: “And then I put her on the counter. She sits on the counter I mean it’s ah I mean I kinda had to help her [cuz] she had just-sometimes when [we’re] in the shower she’d just drop all her weight and I’d have to catch her and it was really hard. So, and I don’t remember, I can’t recall the time that we started having intercourse but all I can tell you we had sexual intercourse.”
According to the minor, B.D. “gets up herself, tells me she can’t do this, walks out herself, puts clothes on herself and goes to bed. And then we wake up the next morning and she’s fine she’s all oh my head hurts so much um I remember her calling mom, everybody leaves she stays behind and she calls her mom, picks her up and then that’s when it was like [inaudible] was okay and the next day she calls me tells me she’s not feeling well asked me I used a condom, I was like no, but I was like but I didn’t even ejaculate in....”
The minor said he asked B.D. if it was okay. Ramirez asked him to explain, and the minor said, “like a minute into it and I was like is this okay and she shakes her head and goes ah hum.” He said he felt “connected to her [cuz] she was ah she was she was kinda like hugging me in a way I thought she was hugging me when I was helping her on the counter.” He added: “She was awake.” He also said: “[S]he kissed me back. I kissed her [and] she [kissed] me back.” He said while they were having intercourse, she kissed him.
James R.
In 2007, B.D. was his girlfriend for about six months. He was asked if he had an opinion about B.D.’s character or honesty, and said: “No honesty. She scared me on the honesty factor, sir.”
James R. said she made a false allegation of pregnancy to him. He explained the circumstances: “As soon as I said that I was going to go back to my girlfriend, she — she — within 24 hours, she came out with a pregnancy allegation. And I had to make a plan with my girlfriend, Jamie, to — this is kind of confusing. [¶] I had to make a plan with Jamie so I could somehow be friends and stay with [B.D.], to make her feel safe that I wasn’t going to leave her, and within 48 hours of telling [B.D.], ‘hey, you know, I’m going to stay with you because you’re pregnant and all,’ she said, ‘you know what, I had a miscarriage, and everything is okay.’ And I broke up with her.”
The minor used to come over to James R.’s house every day. According to James, B.D. “would flirt with him and snuggle with him — like, snuggle and cuddle, things like that, and they’d feel each other up.”
Amber S.
Amber S., a senior in high school, has known the minor for about three years. They saw each other every day. She said: “And to females, he’s always respectful. He’s treated them with dignity, and he’s always there. He’s the first person there whenever anybody is having problems or if anybody needs help.”
Toxicologist
Darrell Clardy is a forensic toxicologist. He has testified over 2,000 times.
When asked what happens to somebody who ingests a large amount of alcohol over a short period of time, he opined: “If it’s strong alcohol, say, hard alcohol, drinking shots or something, on an empty stomach, that would irritate the stomach lining, and the pyloric valve will shut down, and the alcohol will sit on the stomach for a long period of time, and the person will not be affected by the alcohol until the muscle relaxes and the alcohol goes into the small intestine.” That process “could be an hour or two hours.”
When alcohol is absorbed into the blood stream, it is absorbed in the small intestine. Eventually it gets to the brain when it starts to affect mental and physical processes. But in order for it to affect the central nervous system, “it has to leave the stomach.”
Clardy was asked to assume these facts: “Consuming eight to ten shots of Crown Royal, one right after the other; [¶] Then 15 minutes of spending time upstairs in a room, messing around with a man who did not notice any symptoms of intoxication; [¶] Then spending an additional 15 to 30 minutes in a loft area with the same man, in extremely close proximity, who did not notice any evidence of mental or physical impairment; [¶] Then following that episode, there’s a 20-minute interval when this man who is in close proximity to this female does not see her because he’s taking a shower; [¶] Then he comes out of the shower, and within three minutes, he sees her throw up substantially on more than one occasion; [¶] And then shortly after she throws up, she is assisted into the bathroom, where a sex act takes place.” He was also asked to assume the female weighed 110 pounds.
Clardy was asked his opinion “as to how much alcohol that was consumed, of Crown Royal, was affecting her central nervous system by the time she got into the bathroom?” He answered: “Very little.” He said the percentage of alcohol in Crown Royal is 40 percent, and he explained: “Given the hypothetical facts that you presented me with, the alcohol did go into her stomach, a significant amount. It had no impact for approximately 45 minutes. There was no impact. There was no symptoms of intoxication noted, no mental or physical impairment noted over that period of time. For all purposes, it appears she appeared normal and not affected by alcohol in any way. [¶] That would be consistent with the pyloric valve being shut and the alcohol sitting in the stomach and having no impact. [¶] About 23 minutes later, she’s observed throwing up. The alcohol does irritate the stomach lining, and people throw up when the stomach gets upset. So most of the alcohol would have left the body in the regurgitation, the throwing up. [¶] Therefore, the amount of alcohol that would be in her system would not be much. She might be somewhere between a.02 and a.08, at the most, because some of the alcohol may have been absorbed after the 45 minutes. But not much. Most of it would have been thrown up.” Clardy said the hypothetical woman could well be described as tipsy afterward.
II DISCUSSION
The minor filed a motion to introduce evidence of the sexual conduct of the complaining witness. His lawyer clarified the request in that he was not “trying to get in all the other incidents that are out there, but this particular incident” involving Rob K. In a sealed portion of the record, defense counsel’s declaration provides quite explicit detail regarding what he expects testimony will reveal about the interactions between B.D. and Rob K. while the two were alone in the loft area shortly before the incident involved here.
During his cross-examination of B.D., defense counsel asked to speak with the court outside the presence of the witness. Counsel said: “Your Honor, the offer of proof — and I got this from the district attorney’s discovery — is that within a couple minutes before she had this alleged encounter with my client, she’s having consensual sex with Rob [K.] [¶] And between the time she had sex with Rob [K.], which is entirely consensual, there was no additional consumption of alcohol, there’s certainly not an opportunity for her to get any drunker, and she does have an awareness of that. [¶] And why that’s particularly important is because it goes to the two elements that are alleged in this [Penal Code, section] 261 [subdivision] (a)(3) charge, whether or not this alcohol prevented her from resisting, and whether or not [the minor] knew or reasonably should have known that the effects of the drugs or alcohol preventing her from resisting.”
The court denied the request to cross-examine B.D. about the consensual nature of sex with Rob K. But the court noted “I think it’s going to come up again,” and made its denial without prejudice.
After the prosecution rested, defense counsel made an offer of proof regarding what Rob K. was expected to say: “He’s going to testify to — that immediately before [B.D.] threw up on the guys out in the location of ‘DS,’ he was in the loft area having consensual sex with [B.D.], and during that period of time, she did not appear to be affected by alcohol in any way. [¶] Everything she was doing was consensual. She had no mental impairment, and was fully capable of saying, ‘stop,’ ‘don’t,’ ‘no,’ or words to that effect if she didn’t want to engage in consensual sex. She was physically able to resist any unwanted sex, and she was the one who was initiating it during this period of time that she spent in the loft. And during that period of time, she was conscious. [¶] As a matter of fact, there was no apparent mental impairment or physical impairment during the sexual event that took place in the loft.”
We presume “DS” is refers to Derek S.
After counsel made the offer of proof, he argued that Rob K. was “stone sober” and that if someone who is sober is not able to recognize that a person is incapacitated with alcohol, minor would have been unable to recognize B.D.’s incapacity to resist. Counsel expanded: “[B.D.] has made it very clear that she — her sexual activity with Mr. [Rob K.] was not a rape. That’s why she desires no prosecution. If she’s so adamant about that, she probably has more awareness than she’s professing to this court under penalty of perjury.”
When the court told Rob K. he could leave subject to recall, defense counsel again argued vigorously to the court “according to prosecution discovery, B.D. said she did not want any prosecution on Rob, because she remembers being awake, but never told Rob ‘no’ or ‘stop,’ and she had no other reason why she desired no prosecution of Rob.”
The court denied the defense motion, calling it a “sidetrack.” Defense counsel tried again: “Just from a defense perspective... when somebody is up there claiming amnesia that the amnesia is selective amnesia, and it — just because a person claims they don’t recall, it’s difficult to prove the fact that they do recall, unless you get down into some indirect issues to show that they have recall of events immediately surrounding the areas where they claim they don’t have. And then all of a sudden, the recall goes sideways on them. That’s the only way to prove these ‘I don’t recall’ statements coming from the complaining witness.”
The court said the argument would be continued later. Later the court denied the motion again.
A criminal defendant has a right under the United States Constitution to present a defense. (Chambers v. Mississippi (1973) 410 U.S. 284, 294.) The fundamental premise of due process requires that a party be afforded an opportunity to examine and respond to evidence, which may deprive him or her of life, liberty, or property. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.) The complete exclusion of evidence intended to establish an accused’s defense may impair his right to due process of law; the exclusion of evidence on a minor or subsidiary point does not. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
“(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.” (Pen. Code, § 261, subd. (a)(3).)
Evidence Code section 1103 reads: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶]... [¶] (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.” Evidence Code section 782 sets forth the procedure to be used when evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness.
“The defense may offer evidence of the victim’s sexual conduct to attack the victim’s credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.” (People v. Chandler (1997) 56 Cal.App.4th 703, 708.) “By narrowly exercising the discretion conferred upon the trial court in this screening process, California courts have not allowed the credibility exception in the rape shield statutes to result in an undermining of the legislative intent to limit public exposure of the victim’s prior sexual history. [Citations.]” (Ibid.) “A trial court’s ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. [Citation.]” (Id. at p. 711.)
“Legal capacity is the ability to exercise reasonable judgment, i.e., to understand and weigh not only the physical nature of the act, but also its moral character and probable consequences. [Citations.]” (People v. Giardino (2000) 82 Cal.App.4th 454, 466.)
In the case before us, B.D.’s capacity to resist was called into question when defense counsel offered to prove that shortly before she had sex with the minor, she had sex with Rob K., that she was in full control of her faculties when she was with Rob K. and that she acknowledged she consented to the acts. Thus, it is clear the minor did not seek to probe into B.D.’s prior sexual conduct as such, but only into her capacity to resist and her physical and mental appearance during prior sexual activity almost contemporaneous in time.
Her credibility was called into question numerous times during the hearing. For example, B.D. said that after drinking the alcohol, the next thing she remembers is being in the bathroom with the minor. Yet defense counsel offered to prove that B.D. acknowledged she consented to having sex with Rob K. shortly before having sex with the minor. Also, B.D. testified how she had feelings for Rob K. after she drank the alcohol. But a little later she said the only thing she remembered about being with Rob K. was: “I just remember seeing his face. That’s all.” Plus, a witness testified he saw B.D. get out of bed the morning after and go over to where Rob K. was sleeping and tell him, “I’m sorry.” Nonetheless, the court did not permit questions about whether or not B.D. remembered having sex with Rob K. or her capacity to resist Rob K. Nor did the court permit counsel to question Rob K. about what happened in the loft.
In addition to inconsistencies regarding B.D.’s capacity while having sex with both Rob K. and the minor, there was evidence she made a prior false allegation of rape. We note she told the police she was trying to get attention from her parents when she made the prior false allegation, and that the instant incident followed an argument with her parents. We also note that immediately before B.D. began binging at the minor’s house, she received an insulting and vulgar text message from her mother. There was also evidence she made false allegations about being pregnant when a previous boyfriend tried to break up with her.
We agree with the minor that in light of the evidence of prior falsehoods concerning sexual activities, examination regarding B.D.’s capacity to resist while she was with Rob K. is essential to his defense that she did have the capacity to resist while he was having sex with her. We also agree that an examination of these details is crucial to his defense regarding the reasonableness of his judgment that B.D. had the capacity to resist.
Numerous other bits of testimony raised credibility issues and other issues with regard to B.D.’s reliability as a witness. Defense counsel was able to bring out that, even though she claimed to be “not really aware of what’s going on,” B.D. did have a specific recollection of telling the minor to stop, and she acknowledged her thought process was working, albeit slowly. She acknowledged that when she told the minor to stop, he did. She had a specific recollection of getting off the counter, a specific recollection of walking out of the bathroom, a specific recollection of walking into the bedroom and a specific recollection of getting into the minor’s bed. Also, B.D. admitted calling two other persons, who had been at the minor’s house the night before, to help her reconstruct the previous night’s activities, which had to raise questions about what really happened and what was later reconstructed. Additionally, B.D.’s specific recollections are in accord with the expert’s testimony that she had very little alcohol in her system. The expert said a hypothetical person in the same situation as B.D. could well be described as tipsy after throwing up as she did. All of these circumstances underscore the necessity for a full and complete examination of the circumstances when B.D. and Rob K. were he was alone in the loft.
We recognize that ordinarily the relevance of past sexual conduct of an alleged victim of the rape is slight at best. (People v. Blackburn (1976) 56 Cal.App.3d 685, 690.) The situation here is atypical, however, in that there was an offer of proof that the alleged rape was committed at the same place as, and close in time, to consensual sex between the complaining witness and another person, and the offer of proof included evidence she had the capacity to resist during the consensual act. In order to meet its burden, the prosecution had to prove B.D. was prevented from resisting because she was intoxicated and that her condition was known, or reasonably should have been known by the minor, and these are the precise issues the minor was attempting to address with his offer of proof. These are not minor or subsidiary points.
We also recognize the Legislature has restricted the admissibility of sexual conduct evidence to protect victims. (People v. Jordan (1983) 142 Cal.App.3d 628, 633.) But in this instance, the matter is being conducted in juvenile court where the proceedings are closed to the public and the judge has the discretion to exclude other witnesses and observers. (In re McM. (1980) 105 Cal.App.3d 187, 190.)
Excluding the proffered evidence under the circumstances in this record, where the complaining witness contradicted herself several times about what she did and did not remember, and where her credibility was a hotly disputed issue, deprived the minor of due process and was an abuse of discretion. Because the excluded testimony went to the heart of two of the elements of the crime, that B.D. was too intoxicated to resist and that the minor was aware of her level of incapacity, the court’s denial of the minor’s right to present his defense was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
III DISPOSITION
The judgment is reversed. The matter is remanded for a new hearing; therefore, it is not necessary to analyze the minor’s other issues.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.