Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F05097.
BUTZ, J.
A jury convicted defendant Joe Lewis Martinez of two serious felonies against a 22-year-old victim—rape of an unconscious woman (Pen. Code, § 261, subd. (a)(4)—count one) and rape of an intoxicated woman (§ 261, subd. (a)(3)—count two).
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to state prison for the midterm of six years on each count, staying sentence on count two (§ 654).
Defendant appeals. He contends (1) insufficient evidence supports his convictions and (2) counsel rendered ineffective assistance. In supplemental briefing, defendant contends he was improperly convicted of two counts of rape for one act of sexual intercourse. The Attorney General concedes that only one conviction of rape can stand for a single act of intercourse. We agree that only one conviction can stand and shall modify the judgment. We reject defendant’s other contentions.
FACTUAL BACKGROUND
In January 2009, the 22-year-old victim moved to Sacramento to complete an internship offered through her college. The university arranged for the victim to live with three women in an apartment at a complex located in Natomas. About a week after the victim moved in, she met the 26-year-old defendant at the complex gym. Defendant lived in the complex with his mother. The victim thought defendant was nice, but she had a boyfriend and tried to avoid defendant. After running into defendant a number of times, the victim exchanged phone numbers with him. They quickly became friends and visited at their respective apartments. The victim met defendant’s mother. Defendant told the victim that he had children and asked if the victim had any. She explained that she was a virgin and was saving herself for marriage.
On January 20, 2009, the victim invited defendant to a party at her apartment. Later, at defendant’s apartment, they kissed for the first time. Defendant wanted oral sex but she refused. Defendant digitally penetrated her vagina but when he tried to take off her shorts, she said “no” and he stopped.
The next day, defendant ignored the victim; she felt used. The victim suggested they not contact one another.
On January 22, 2009, defendant was very apologetic. The victim agreed to remain friends.
One night, defendant took her to a bar located in Natomas. They had a drink and then returned to his apartment. They kissed and defendant performed oral sex on the victim. Then the victim decided to leave, explaining she just wanted to be friends. Angry, defendant called her by his former girlfriend’s name and accused the victim of “cheating on him” and sleeping with other men. Defendant invited the victim to join him in self-mutilation by cutting. The victim stayed until defendant calmed down and then she left. The next day, the victim told defendant that she did not want to talk to him anymore.
The victim explained to the jury that she was not an experienced drinker, having been drinking for only a year and even then, had not engaged in a lot of drinking. At some point, she had mentioned to defendant that the only times he tried anything was after they had been drinking and she could not understand why.
The victim returned to her college town for a few days and learned that her boyfriend had been seeing other women. The victim returned to Sacramento on January 31, 2009. That evening or very soon thereafter, defendant made dinner for her and they talked. The victim told defendant about her boyfriend’s behavior and that she did not think it was a good idea to have a physical relationship with defendant, explaining that she just wanted to be friends. The victim believed that defendant respected her wish to be just friends because they continued to be friendly and there was no physical contact.
About 8:00 p.m. on Friday, February 6, 2009, the victim got off work early. She planned an evening out with her roommates and had one beer at home with one of her roommates. The victim’s roommates then changed their minds about going out. Defendant sent the victim text messages and offered to take her out and she agreed. She explained to defendant that they were going out as friends and defendant stated he knew. They went to the Press Club. Defendant bought her a Long Island Iced Tea and he had a beer. He did not finish his beer because he “was driving.” After she finished her Long Island, defendant had her finish his beer. She went to the women’s restroom. She apparently took too long because defendant was angry when she came out. She kissed him on the cheek to calm him down and received a hug from him. Defendant bought the victim another Long Island. When she finished it, she felt “really drunk” and “could barely walk.” She slipped and fell, hurting her knee. A bouncer helped her to a couch. Her knee really hurt and she could “barely keep [her] eyes open, ” having never previously been that intoxicated.
About 10:30 a.m. on February 7, 2009, the victim woke up. She was in defendant’s bed. The victim testified that she blacked out and did not remember anything after being placed on the couch in the bar. She did not remember leaving the club, getting into the car, the drive home, or how she got inside defendant’s bedroom. She did not want to go to defendant’s apartment. She discovered that she was naked from the waist down, that her dress and shirt had been pulled down, and that her bra was undone. She found a dried, white, crusty substance on her mouth. She “freak[ed] out” and asked defendant repeatedly if he had had sexual intercourse with her. After denying it four or five times, defendant finally admitted they had had sex. The victim started crying and defendant laughed, saying that he was just joking. She wanted to know the truth. He confirmed that he had sexual intercourse with her but he did not want her to be mad.
The victim denied that she ever consented to sexual intercourse with defendant that night, denied rubbing his groin at the Press Club, and denied referring to him there as her “boyfriend.” She did not recall removing her clothing or defendant removing them for her or having sexual intercourse with him. She did not recall smiling at defendant in his bedroom and had no recollection of a condom on defendant or her helping him remove it. The victim explained she would never have removed a condom in any event because she was not using birth control and was also concerned about sexually transmitted diseases.
The victim left defendant’s apartment crying and feeling upset. She had to be at work that day at 11:00 a.m. She returned to her apartment, changed her clothes and went to work. When her coworkers saw that she was upset, they asked what was wrong. The victim lied and told them that she had “broken up” with her boyfriend. At one point, the victim vomited in the restroom.
After work, the victim went to the UC Davis Medical Center and reported that she had been raped. An officer was called and a sexual assault exam was conducted by a nurse practitioner.
Sacramento Police Officer Roderick Byron responded to the medical center that night and interviewed the victim for 30 to 45 minutes. The victim’s report of the incident was consistent with her trial testimony. Officer Byron had the victim call defendant and the call was tape-recorded. Defendant admitted having had sexual intercourse with the victim, apologized, and said he felt “terrible.” During this conversation, defendant claimed he wore a condom but that she pulled it off. When the victim asked defendant why he did not wait until she wanted sex and was sober, defendant responded that he could not “really ever see that happening.”
Nurse Practitioner Elaine Green conducted the forensic examination. The victim provided a history that was consistent with her trial testimony. Crying, the victim told Green that she (the victim) could not remember anything from the time she was helped to a couch in a bar until she woke up in defendant’s bed the next morning. Green noted abrasions on the victim’s knee and lower lip and a small tear on her anal opening. The victim complained of vaginal pain but did not recall engaging in any sexual acts. Green found seminal fluid on the victim’s left forearm and non-motile sperm in the victim’s vagina. Green opined that her findings were consistent with the victim’s report.
On February 12, 2009, Sacramento Sexual Assault Detective Chris Bernacchi met with the victim to take her complete statement. Her statement was consistent with her trial testimony. Detective Bernacchi had the victim make a “pretext” call to defendant that was tape-recorded. The victim asked defendant why he thought sex was permissible when she had clearly stated that she wanted no physical contact. Defendant responded, “Nothing made [him] feel like it was okay.” Defendant also responded, “I don’t know” and then said, “I don’t think it’s okay” and “I don’t know why I did it.” The victim repeatedly stated that he had raped her while she was “unconscious” and defendant simply responded “I’m sorry” and that he felt “terrible every day of [his] life” and that he had made “a bad choice the other night.”
On March 19, 2009, Detective Bernacchi interviewed defendant over the phone and tape-recorded the conversation. Defendant claimed he and the victim were intoxicated and that he believed the sex was consensual. Defendant claimed that at the bar, the victim called him her “boyfriend” and groped him. He denied that he tried to get the victim drunk. He admitted that when they got to his apartment, the victim appeared to have passed out but he claimed that he thought she was “just playin’ games” or “pretending to be asleep” because “she was like... cracking like these little smiles.” When he pulled on her stockings, she said, “no, Joe, no, ” while at the same time cracking smiles, positioning her body in an inviting manner, and responding favorably to his actions. He removed her clothes, not she, and admitted that she said “no.” He claimed he only had vaginal intercourse with her. He did not know whether the victim was drunk but admitted that she never verbally consented to sexual intercourse. When Detective Bernacchi asked defendant how he felt about the victim’s accusation that he had raped her, defendant responded, “Yeah. I uh—well, I uh—I—I do almost feel, you know, by definition, I mean, yeah, I feel like that’s pretty much what I did.” When Detective Bernacchi advised that the district attorney’s office would decide whether to bring criminal charges, defendant responded, “I—I can definitely see them filing charges. I mean I was honest and yeah, I mean I fuckin’ raped her, dude, you know what I mean? Like, down to definition....”
Defendant did not testify at trial. His mother testified that she heard defendant and the victim return about 1:00 a.m. Later, the mother heard soft giggling and a moan and also saw the victim walk to the hall bathroom without stumbling or tripping. The mother heard the victim leave the next morning and there had been no raised voices.
DISCUSSION
I. One Act of Sexual Intercourse
The evidence reflects that defendant engaged in one act of sexual intercourse with the victim but was charged and convicted of both rape of an unconscious woman (count one) and rape of an intoxicated woman (count two). “[O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code.” (People v. Craig (1941) 17 Cal.2d 453, 458; People v. Smith (2010) 191 Cal.App.4th 199, 205.) Thus, only one rape count can stand and we will modify the judgment accordingly, vacating sentence on and dismissing the count charging rape of an unconscious woman (count one), and lifting the stay on the charge of rape of an intoxicated woman (count two).
Section 261 provides, in relevant part:
II. Sufficiency of the Evidence
Defendant contends insufficient evidence supports his convictions. Because rape of an unconscious woman (count one) will be dismissed, we need only consider whether sufficient evidence supports defendant’s conviction for rape of an intoxicated woman (count two). We conclude overwhelming evidence supports defendant’s conviction.
For rape of an intoxicated woman, the prosecution 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 substance prevented the woman from resisting; AND [¶] 4. The defendant knew or reasonably should have known that the effect of an intoxicating substance prevented the woman from resisting. [¶]... [¶] 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 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....” (CALCRIM No. 1002, italics omitted.)
“[S]ection 261[, subdivision] (a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. [And, ] the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent.” (People v. Giardino (2000) 82 Cal.App.4th 454, 462 (Giardino).)
“In deciding whether the level of the victim’s intoxication deprived the victim of legal capacity, the jury shall consider all the circumstances, including the victim’s age and maturity. [Citation.] It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victim’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.’ [Citations.] Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue. (Giardino, supra, 82 Cal.App.4th at pp. 466-467.)
Here, the victim testified that she drank a beer at her apartment and then went out to a club with defendant where she consumed two Long Island drinks and part of defendant’s beer. She fell at the club, hurt her knee, and was helped to a couch. That was the last thing she remembered until she awoke the next morning in defendant’s bed. She testified that she had never been that intoxicated before, having been barely able to walk. She also testified that she was an inexperienced drinker, being only 22 years of age. When she awoke in defendant’s bed, she was naked from the waist down. Although defendant initially denied several times that they had had sexual intercourse, he finally admitted that they had. Thereafter, in two pretext calls and in an interview with a detective, defendant admitted the act of sexual intercourse. In his interview with the detective, defendant admitted that the victim appeared to have passed out but he believed she was faking. He also admitted that he removed her clothing despite her saying “no.” He also admitted that the victim never consented to sexual intercourse. He claimed that she was moving and making noise but did not claim she was able to carry on a coherent conversation. When asked how he felt about the victim’s accusation that he raped her, defendant never denied it and stated that, “by definition, I mean, yeah, I feel like that’s pretty much what I did.” And when told that the prosecutor would decide whether to bring charges, defendant stated that he believed he could be charged because he “fuckin’ raped” the victim.
Overwhelming evidence supports his conviction for rape of an intoxicated woman. (People v. Johnson (1980) 26 Cal.3d 557, 578 [court reviews the whole record in light most favorable to the judgment for substantial evidence].)
III. Ineffective Assistance of Counsel
Finally, defendant contends that counsel rendered ineffective assistance by failing to move to exclude Detective Bernacchi’s statement of his opinion about an intoxicated person during his interview of defendant. We find no prejudice.
In the tape-recorded phone conversation between Detective Bernacchi and defendant, the following was stated:
“[DEFENDANT]: She was moving, she was makin’ noise, she—I’m pretty sure I had a word, you know what I mean, like somethin’.
“BERNACCHI: And that’s why I’m not sure what’s gonna happen, okay? I understand she’s movin’ and that’s why I’m saying, I don’t know. But there’s been a—this is just in my experience, okay, uh a person who is unconscious still will have certain responses, okay, um especially if—especially if they’ve been drinking. Um, and this comes from working years on the streets. You can even—if you dealt with a person who is drunk on the street and passed out, even when you were tryin’ to pick him [up] and, you know, put him in what we used to call the—the wagon to take him to a detox center, they still will verbalize certain things, but they may not remember what happened. I mean, I had a guy take a swing at me one time. I go, do you remember doin’ that? And the guy’s like, no. So, it’s hard to say and that’s why I’m being honest with you. I don’t know for sure what’s gonna happen, okay? I just collect all the facts and then I turn it over to the DA’s office. Now I’ll be happy to let you know as things progress and I’ll be happy to give you my phone number if you have any other questions, too.”
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
We need not determine whether counsel’s performance was deficient because we can dispose of defendant’s ineffectiveness claim on the ground of lack of prejudice. (Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699].) In assessing prejudice, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695 [80 L.Ed.2d at p. 698].) “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.... [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (Id. at pp. 695-696 [80 L.Ed.2d at pp. 698-699].)
We find no prejudice because, as previously discussed, the evidence for rape of an intoxicated person was overwhelming. Even assuming the detective’s statements during the interview concerning his personal experience with intoxicated people on the street were objectionable, his statements were made during an interview with defendant, were not offered as an expert medical opinion at trial, and did not constitute a legal conclusion on the ultimate issue of consent, contrary to defendant’s arguments otherwise. There was no reasonable probability that the jury would have returned a more favorable verdict had the court stricken the detective’s statements on counsel’s motion.
DISPOSITION
The judgment is modified, vacating the sentence on and dismissing count one, rape of an unconscious woman, and lifting the stay on the six-year prison sentence on count two, rape of an intoxicated woman. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
The recent amendments to sections 2933 and 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit, as he was committed for rape, a serious felony. (§§ 1192.7, subd. (c)(3), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
We concur: ROBIE, Acting P. J., DUARTE, J.
“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
“(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act....
“(2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
“(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.
“(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions:
“(A) Was unconscious or asleep.
“(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.”