Filed 10/16/18 P. v. Guzman CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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On January 31, 2015, defendant Connor Guzman and his friend, Jordan Harris, went to the victim’s home. Also present was the victim’s friend, Malik Albanez. Over the course of the evening, defendant and the victim ingested a significant amount of alcohol. Defendant also ingested a large quantity of cocaine. In the early morning hours, the victim, who according to Albanez was “heavily intoxicated, ‘incoherent,’ and ‘pretty much unconscious,’ ” went to bed alone in her bedroom after providing defendant and Harris with bedding so they could sleep in the living room. The victim fell asleep almost immediately and slept soundly. Albanez repeatedly checked on the victim due to her state of intoxication. At some point, defendant entered the victim’s bedroom and got on the bed next to the victim. Albanez checked on the victim again while defendant was in the room and, although Albanez was unable to wake the victim by shaking her and calling her name, he determined she was breathing normally and did not appear to need medical intervention. When Albanez went to check on the victim shortly thereafter, he discovered her bedroom door was locked. He returned 30 minutes later and the door was unlocked. Albanez entered the room and saw defendant next to the victim, whose shirt was pulled up around her neck exposing her breasts and who was not wearing any pants. Defendant was pretending to sleep.

The next morning, defendant exited the victim’s bedroom appearing anxious to leave. Harris asked, “What did you do?” Defendant replied, “I hit it raw. Yeah, I busted inside her.” Defendant and Harris immediately left the victim’s home. Albanez woke the victim, who discovered she was no longer wearing the pants or underwear she had worn to bed. When she looked under the covers and discovered blood on the sheets, she began to cry.

The police interviewed Albanez, who confirmed the victim was intoxicated at the time of the assault and stated defendant knew the victim was unconscious and unable to provide consent. Officers collected a DNA buccal swab from defendant and a vaginal swab from the victim. Tests revealed defendant was the source of male DNA detected in the vaginal swab taken from the victim.

Defendant was charged with rape of an intoxicated person and rape of an unconscious person.

On January 11, 2017, defendant pled guilty to rape of an intoxicated person in exchange for dismissal of the second count subject to a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. Defendant stipulated to the factual basis for his plea as derived from the probation report.

After considering witness testimony and argument from counsel, the court denied probation and sentenced defendant to the middle term of six years in state prison. The court imposed fees and fines and awarded defendant 376 days of presentence custody credit (188 actual days plus 188 conduct credits).

Defendant filed a timely notice of appeal. He did not request a certificate of probable cause.

Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Murray, J.

/s/

Renner, J.