Opinion
2d Crim. B320182
05-30-2023
THE PEOPLE, Plaintiff and Respondent, v. BRETT MATTHEW DELIYIANNIS, Defendant and Appellant.
Adrian Dresel-Velasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Blake Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. 19F-08362 Timothy S. Covello, Judge
Adrian Dresel-Velasquez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Blake Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Brett Matthew Deliyiannis appeals from the judgment entered after he was acquitted of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)) but convicted of the lesser included offense of misdemeanor simple assault (id., § 240). The trial court suspended the imposition of sentence. It granted probation on condition that appellant serve 60 days in county jail and register as a sex offender.
All statutory references are to the Penal Code.
Appellant contends the trial court (1) erroneously failed to instruct the jury sua sponte on the defense that he had committed the assault while in a state of unconsciousness caused by involuntary intoxication, (2) abused its discretion in ordering appellant to register as a sex offender, and (3) erroneously imposed a restitution fine of $500 pursuant to section 294, subdivision (b). The People concede that the third contention has merit. We strike the fine and affirm in all other respects.
Facts
After attending a concert, H. Doe went to a friend's house. She arrived "[a] little after 10:00" in the evening. Appellant and his wife were present. Wife's brother lived at the house. Appellant and wife planned to spend the night there.
Before the concert, H. Doe had four alcoholic drinks. At the concert, she had an additional alcoholic drink. She did not drink alcohol after the concert.
H. Doe fell asleep on a couch in the living room of the house. Appellant's wife was seated in a chair next to her. Appellant was on another couch across from H. Doe.
H. Doe was lying on her left side on the couch. After midnight, she was awakened by someone pulling on her pants. She realized that her pants had been unbuttoned, unzipped, and pulled down close to her knees. Her underpants had been similarly pulled down. When H. Doe fell asleep, her pants had been "zipped up and buttoned up."
H. Doe saw appellant lying behind her on the couch. She testified, "[H]e was slightly on top of me slash behind me." His pants were pulled down and his "semi-erect" penis "was touching my butt."
H. Doe sat up. Appellant "got up and walked around the coffee table and laid back on the couch he had been sleeping on." While he was walking, he pulled up his pants. Appellant said nothing to H. Doe, and she said nothing to him. "'He just slowly walked over [to his couch] and laid back down like nothing happened.'" Appellant's wife was still sitting in the chair next to H. Doe.
Appellant testified as follows: He attended the same concert that H. Doe attended. He had "a couple of beers" before the concert, "several at the concert," and "one or two" alcoholic drinks after the concert.
Before falling asleep on the couch, appellant took an Ambien, a prescription sleep medicine. He had no recollection of what happened after he had fallen asleep. The next thing he remembered was being awakened by the police, who "dragged [him] off the couch."
On cross-examination appellant was asked, "For all you know everything [H. Doe] said is true?" Appellant replied, "I guess. I was asleep." "I don't remember this happening is what I am saying."
The Trial Court Had No Duty to Instruct Sua Sponte on the Defense of Unconsciousness
"Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime. [Citations.] 'Unconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed "unconscious" if he or she committed the act without being conscious thereof.' [Citations.] A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).)
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. . . .'" (People v. Salas (2006) 37 Cal.4th 967, 982.) "A criminal defendant has the burden of producing evidence that he was unconscious if he wishes to rely upon that defense." (People v. Froom (1980) 108 Cal.App.3d 820, 830.)
"Here, [appellant] did not . . . rely upon the defense of unconsciousness. No expert testified that [appellant] was unconscious . . .; nor did [appellant] himself testify he was unconscious, but only that he [was asleep and] could not later recall [anything about the alleged assault]. Further, defense counsel during argument did not articulate a theory of unconsciousness." (Rogers, supra, 39 Cal.4th at p. 887.)
During closing argument, defense counsel said appellant had made a good faith mistake of fact - he had mistaken H. Doe for his wife. Counsel stated: "It's true he didn't say I made a mistake that was my wife. I thought it was my wife. That's because he doesn't remember it. It's a theory on this case, because it's reasonable to conclude that, if you're in a dark living room where you don't live, crashed out on a couch after a day of drinking, and after you took an Ambien to help you get to sleep, if you get up in the night, you see a lump over there and you think, honey, and fall into the couch with them. If you believe [H.] Doe's story . . ., then it makes sense that [appellant], in the middle of the night, wound up on the wrong couch. . . . He looked down and said is that my wife? Oh, honey."
Counsel continued: "If . . . someone you've been close to has been highly intoxicated and you've experienced that, it is believable that he just sat up, kind of halfway realized I'm in the wrong spot and went back to his couch." "It absolutely is reasonable to conclude that the circumstantial evidence in this case is reasonable that [appellant] made a mistake. You will have to find him not guilty regardless of any other feelings you have about this case or about Ms. Doe."
In her rebuttal closing argument, the prosecutor contested appellant's mistake of fact defense: "[I]f he legitimately believed that it was his wife when he did this, then why did he stop? Why did he stop trying to have sex with [H.] Doe when she sat up? . . . So it doesn't make sense that he actually believed that [H. Doe] was his wife. [¶] He knew that it was not his wife.... He also didn't say, Oh my gosh, I'm so sorry. He said nothing. His hope, in that moment, was that [H. Doe] wouldn't have realized what was going on. She'd been drinking. Hopefully she goes back to sleep or says nothing, and that[] was [appellant's] plan."
The trial court instructed the jury as follows on mistake of fact: "The defendant is not guilty of Count One, Assault with Intent to Commit Rape[,] if he did not have the intent or mental state required to commit the crime because he did not know a fact or mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as he believed them to be, he did not commit Assault with Intent to Commit Rape as charged in Count One. [¶] If you find that the defendant believed that [H.] Doe was his spouse, . . . he did not have the specific intent or mental state required for Count One, Assault with Intent to Commit Rape."
Appellant's mistake of fact defense was inconsistent with an unconsciousness defense. The mistake of fact defense assumed he was conscious - he knew he was performing a sexual act on a woman, but he was acting under the mistaken belief that the woman was his wife. In view of this inconsistency, the trial court did not have a duty to instruct sua sponte on the defense of unconsciousness. "[T]his limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon." (People v. Sedeno (1974) 10 Cal.3d 703, 716-717, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12; see also People v. Barton (1995) 12 Cal.4th 186, 197 ["to require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant's theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant"].)
Furthermore, the defense of unconsciousness is not supported by substantial evidence. No expert testimony was presented that a combination of Ambien and alcohol could cause a person to commit a sexual assault while asleep. Nor was there expert testimony that appellant's actions were consistent with the actions of an unconscious person. While pulling down H. Doe's pants and underpants, appellant must have exercised care to not awaken her. This would have been a complex task for someone who was unconscious. Appellant had to unbutton and unzip her pants. (See People v. Carlson (2011) 200 Cal.App.4th 695, 704 ["The evidence . . . reflect[s] defendant engaged in more than mere physical movement, thereby dispelling any reliance on an unconsciousness theory"]; People v. Halvorsen (2007) 42 Cal.4th 379, 418 ["The complicated and purposive nature of his conduct . . . suggests" that defendant "did not lack awareness of his actions during the course of the offenses"].) "Defendant's professed inability to recall the event, without more, was insufficient to warrant an unconsciousness instruction." (Rogers, supra, 39 Cal.4th at p. 888.)
In addition, there is no substantial evidence that appellant's alleged unconsciousness was caused by involuntary intoxication. Appellant was convicted of simple assault. "A defendant's voluntary intoxication is no defense to the general intent crime[] of simple assault . . . ." (People v. Finney (1980) 110 Cal.App.3d 705, 712.) "In contrast, involuntary intoxication that results in unconsciousness is a complete defense to a crime. [Citation.] . . . [¶] The question of whether intoxication is voluntary or involuntary focuses on whether the intoxication is induced through the defendant's fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests. If intoxication is the result of the defendant's own fault or the defendant knows or has reason to anticipate the intoxicating effects, the intoxication is voluntary." (People v. Mathson (2012) 210 Cal.App.4th 1297, 1313 (Mathson).)
If the combination of Ambien and alcohol caused appellant to become unconscious, the intoxication was voluntary because it was "the result of [his] own fault." (Mathson, supra, 210 Cal.App.4th at p. 1313.) Appellant knew that he should not mix alcohol and Ambien. During cross-examination, the following colloquy occurred between the prosecutor and appellant:
"Q. Now, when you were prescribed Ambien, your doctor didn't tell you you should not mix that with alcohol?
"A. Yes. It's on the bottle.
"Q. But you're claiming that . . . you did take Ambien after you had been drinking?
"A. Yes.
"Q. After you had been drinking a fair amount?
"A. Yes."
The Trial Court Did Not Abuse Its Discretion
In Ordering Appellant to Register as a Sex Offender
Pursuant to section 290.006, subdivision (a), the court had discretionary authority to order appellant to register as a sex offender if it found he had "committed the offense as a result of sexual compulsion or for purposes of sexual gratification." (Ibid.) The court was required to "state on the record the reasons for its findings and the reasons for requiring registration." (Ibid.) The court stated: "[T]he only assault that could be observed in this case was one that would have been for purposes of sexual gratification, or as a result of sexual compulsion." "There was no other assault other than that of the defendant engaging in a sexual act. And that's why the Court has ordered the [sex offender] registration."
Appellant contends the trial court abused its discretion because it failed to "consider [his] likelihood of reoffending." "[C]ourts must consider all relevant information, including 'the likelihood that the defendant will reoffend,' when determining whether to require registration under section 290.006." (People v. Contreras (2021) 70 Cal.App.5th 247, 255 (Contreras).) But there is no "requirement that sentencing courts make an explicit finding that the defendant is likely to reoffend before ordering discretionary registration under section 290.006." (Ibid.)
We presume the trial court considered appellant's likelihood to reoffend. The court said it had "read and considered the report of the probation officer." The report included a summary of appellant's performance on "the Static-99R, which is an actuarial measure of risk for sexual offense recidivism." The report stated that his "score on the Static-99R was 4 . . ., which means his relative risk level is above average risk, which represents the risk of someone in this score group being charged or convicted of another sexual offense within five years after he is released on probation." (Bold omitted.) (See Contreras, supra, 70 Cal.App.5th at p. 255 ["there was indeed evidence Contreras was likely to reoffend. He scored a '4' on the STATIC-99R, which placed him in the 'above average risk' category for reoffending"].)
Appellant claims his score on the Static-99R was erroneously calculated: "[I]t is impossible for appellant to receive a score higher than 3." Appellant forfeited the claim because he failed to object to the score at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 234 ["It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal"].) We reject appellant's argument that "because the probation report did not show its wo rk [in calculating the Static-99R score], defense counsel cannot be faulted for failing to object." Appellant cites no authority in support of this argument.
People's Concession that Restitution Fine Must Be Stricken
The trial court ordered appellant to pay a $500 restitution fine pursuant to section 294, subdivision (b). The subdivision specifies the offenses for which this fine may be imposed. The subdivision does not specify simple assault, the offense of which appellant was convicted. Accordingly, we accept the People's concession that the $500 fine must be stricken.
Disposition
The judgment is modified to strike the $500 restitution fine imposed pursuant to section 294, subdivision (b). In all other respects, the judgment is affirmed.
We concur: GILBERT, P. J. BALTODANO, J.