P. v. Yliz

Filed 4/12/07 P. v. Yliz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029736

Plaintiff and Respondent, (Santa Cruz County

Superior Court

v. No. F06788)

GILBERT DANIEL YLIZ,

Defendant and Appellant.

_____________________________________/

Defendant was convicted by jury trial of three counts of forcible sexual penetration (Pen. Code, 289, subd. (a)(1)), one count of forcible oral copulation (Pen. Code, 288a, subd. (c)(2)) and one count of misdemeanor trespassing (Pen. Code, 602.5). The trial court committed him to state prison for a term of 24 years. On appeal, his sole contention is that the trial court prejudicially erred in excluding evidence of one of the victims prior inconsistent statements. We conclude that the error was not prejudicial and affirm the judgment.

I. Factual Background

Cheryl S. (the victim) and her husband Doug S. lived in a house in a rural area of Aptos, where they had resided since 1990. Their daughter Katie S. lived with them in this house until she moved away in September 2000 at the age of 18 to attend college in Southern California. Katies bedroom, before she left for college, was at one end of the long, 4,000 square-foot, one-story home, and the master bedroom was at the other end. Katie met defendant in October 1997 when she was 15 years old. Defendant was about two years older than she. They began a dating relationship that included sexual intercourse, and he was her boyfriend for less than a year. Doug and Cheryl first met defendant when, at their invitation, he came to a party at their home in December 1997. They invited defendant to their home a second time for dinner on his birthday. On a third occasion, defendant and his brother visited the home. After Katie had been seeing defendant for a while, Doug and Cheryl came to dislike him. They told Katie that she could only see defendant at their home and only when one of them was present. Eventually, Doug and Cheryl forbade Katie from seeing defendant.

Katie did not obey these restrictions. Defendant and Katie often spent time together at defendants familys home in Watsonville.[1] In addition, on four or five occasions, defendant called Katie and arranged to come over to her house in the evening without her parents knowledge. On these occasions, defendant knocked on her bedrooms exterior door, and she let him into her bedroom. One time, defendant came over without calling first and startled Katie when he knocked on her bedrooms exterior door. She let him in. One of these times, he spent the entire night in her bedroom. Katie always wore underwear, shorts and a top to bed. She never wore a nightshirt.

Katie broke up with defendant in the summer of 1998, but she continued to see him occasionally. They occasionally kissed or had sexual contact. Their last sexual contact was in the summer of 1999, when defendant came to her house to visit. During Katies senior year of high school (1999-2000), she occasionally saw defendant, but they no longer had a sexual relationship and did not spend much time together. Katie last saw defendant in the summer of 2000 at a barbecue.

Shortly after Katie moved away in September 2000, Doug converted Katies bedroom into an office. Katie never again lived at the house. Before Katie moved away, defendant frequently left messages on Katies answering machine. He often used fake names because Doug and Cheryl had told Katie that they did not want him to call anymore. After Katie moved away and her telephone was disconnected, defendant began leaving messages on Doug and Cheryls answering machine. Cheryl spoke to him at one point and told him that Katie did not live there anymore. On the few occasions when Katie came home to visit during college, she almost always brought her college boyfriend home with her.

Doug and Cheryls usual prelude to a romantic evening would be a nice dinner and a special bottle of wine. Sometimes Doug would drink scotch before they engaged in intimate relations. Both of them always showered and brushed their teeth beforehand. Their intimate relations were always gentle and soft and never rough. Doug, who is over six feet tall, had never pinned Cheryl down or held her wrists down during their intimate relations. Doug had never jam[med] his tongue into Cheryls mouth or placed his fingers in Cheryls vagina. He had never awakened her in the middle of the night to have sex. Neither of them liked to be awakened at night. Doug had never surprised Cheryl with a desire to have sex.

On February 25, 2003, Doug, who was a commercial airline pilot, was scheduled to fly the next morning, and he had to get up very early. To ensure that both he and Cheryl got a good nights sleep, he typically slept in a guest bedroom on such nights. Doug rarely would have a romantic evening with Cheryl the night before he was scheduled for a morning flight because it would disrupt his routine. On the evening of February 25, Doug and Cheryl shared a bottle of cheap wine and some fast food, either pizza or burritos, for dinner, and then they watched television for a while. They finished the bottle of wine at about 7:30 p.m. Doug, who was a light sleeper, went to bed in the guest bedroom at 9:00 p.m. Cheryl was still up watching television but starting to doze off in a recliner. Before he went to bed, Doug suggested that she go to bed, but she chose to keep watching television. Cheryl fell asleep in the recliner, as she often did in the evening. She woke up later and went to bed. Cheryl wore a flannel nightshirt and slipper-socks to bed. She did not wear any underwear. Cheryl fell asleep.

Cheryl awoke later in the dark to find a man sitting on her upper legs and holding her wrists above her shoulders with his hands. She was on her back, and her wrists were being forced, forced down. Cheryl was disoriented and barely awake. [M]y first waking thoughts were that something was really weird and wrong, and I subconsciously until I was awake assumed that it had to be my husband . . . . After about ten or fifteen seconds, Cheryl noticed that the man had dark hair or a dark cap on his head. She felt a tongue just jammed into her mouth, and it tasted like hard liquor, vomit and dirty clothes. Cheryl jerked her head to one side. She thought this is gross and something is really wrong. It occurred to me what if its not Doug, and she tried to tell herself not to panic. I knew I was in trouble.

The man jammed three fingers into her vagina. Cheryl was still not fully awake. It was just shocking and it hurt. She pushed against the mans arms. He was very forceful. The man put his hand under her nightshirt and roughly squeezed her breasts. Cheryl was petrified and scared that I was going to be killed. Cheryl found this disgusting and gross, and thought this cant be my husband but it has to be. The man reached around behind her, yanked [her] up into a sitting position, and tried to pull her nightshirt over her head, while saying come on, come on, it will be good.[2]

Cheryl realized that the man was not Doug when the man spoke. When her nightshirt got stuck on her head, the man became mad and said [c]ome on, take it off, take this off. She pushed her arms against his arms. The man overpowered her and pushed her back down on the bed. The nightshirt was entirely removed from her body. He again jammed his fingers in her vagina, and he followed up by briefly orally copulating her. While he was orally copulating her, he had his arms clamped around her waist or her legs. Finally, while again holding her wrists, the man put something in her vagina. She was not sure if it was his penis or something else. At that point, the light went on, and Cheryl saw Doug standing in the doorway. The entire attack had lasted just three to five minutes.

At 11:35 p.m., Doug was awakened by a creak in the floor that seemed to be coming from the family room.[3] He got up to check whether Cheryl had gone to bed. He saw that she was no longer in the recliner, and he proceeded to the master bedroom. As he approached the master bedroom, he smelled vomit. When he entered the master bedroom, he saw a silhouette on the bed, and Doug, thinking the silhouette was Cheryl, asked Are you okay? He heard a groaning sound or a mans voice saying huh? Doug immediately switched on the light and saw defendant crouched on all fours on top of Cheryl with his head down near her head and his hands up in the area of her head. Defendant grabbed his pants, pulled them up and backed off the bed between Cheryls legs, saying whoa, whoa.

Doug could see that Cheryl, who was naked except for her nightshirt partially covering her face, was totally freaked and petrified and shocked. Doug grabbed his gun out of his nightstand, pointed it at defendant and asked who the heck are you?[4] Defendant put his arms over his face and said dont shoot me, dont shoot me. Im only sixteen.[5] Defendant was wearing no shirt or shoes. Doug told defendant to put his head down on the ground, and then Doug put bullets in his unloaded gun. Defendant said something about I thought it was Jenny, Im looking for Jenny, Jenny dropped me off, and Im here to see Jenny. Doug knew of no one named Jenny associated with his home. Defendant never mentioned Katie. Defendants shoes and shirt were on the master bedroom floor next to the bed. There was vomit on the shoes, shirt and bed. Defendant asked Doug if he could put on his shirt and shoes, and Doug said no. Cheryl recognized defendants voice.

Doug told Cheryl to go call 911, and Cheryl went all the way to the other end of the house and called 911. She told the 911 dispatcher that she had been raped. Doug continued to hold defendant at gunpoint and maneuvered him into another room where there was a telephone. Defendant said I dont want to go to jail, and [d]ont turn me in. He also said this is just like Americas Most Wanted. When Doug picked up the telephone, he heard Cheryl talking to the 911 dispatcher. Doug told defendant do not move, Ill shoot you. Defendant said I didnt do anything wrong. He admitted I was with your wife, but he claimed I thought she was Jennifer. I didnt know. Defendant said that Jennifer brought me in and told me to wait there Ill be right back. While Doug was on the telephone with the 911 dispatcher, defendant slowly backed his way toward the front door, which was ajar, and escaped. At that point, Doug could hear sirens right up the street. The police arrived less than a minute later.

Defendant fled through bushes, woods and shrubbery wearing just pants and socks. When defendant arrived at his mothers home in Watsonville early in the morning, he told his mother he had been to Katies house and that he doesnt remember anything because he blacked out. Cheryl identified defendant in a photo lineup as the man who had assaulted her, and she told the police that she recognized the mans voice as that of defendant. Defendants DNA was found on Cheryls neck and genitals, and she suffered bruises to her wrists.

II. Procedural Background

Defendant was arrested the afternoon after the incident and charged by information with burglary (Pen. Code, 459), three counts of forcible sexual penetration (Pen. Code, 289, subd. (a)(1)) and forcible oral copulation (Pen. Code,  288a, subd. (c)(2)). It was further alleged that defendant had been on bail when he committed these offenses (Pen. Code, 12022.1) and that he had committed the sexual offenses during a burglary (Pen. Code, 667.61, subds. (a), (d)).[6] The on-bail enhancement allegation was bifurcated, and defendant waived his right to a jury trial on it.

Defendant did not testify at trial. He did not contest the fact that he was the person who had performed these sex acts upon Cheryl. His defense was three-pronged. He claimed that Cheryl, believing that he was her husband, had consented. Defendant also argued that the acts had not been perpetrated by force. Finally, he contended that he had harbored a reasonable belief in consent. Cheryl testified unequivocally at trial that she had not consented to any of the acts and would never consent to anybody doing that.

After half a day of deliberations, the jury returned guilty verdicts on the sexual penetration and oral copulation counts. Defendant was acquitted of burglary and found guilty of the lesser offense of trespass. The special allegation that the sexual offense had been committed during a burglary was found not true. The court found the on-bail enhancement allegation true after a court trial. Defendant was committed to state prison for a term of 24 years, and he filed a timely notice of appeal.

III. Discussion

Defendants appellate contention is that the trial court prejudicially erred in precluding him from introducing at trial evidence that Cheryl had made inconsistent statements to Deputy Donna Valdivia, the first law enforcement officer to whom she spoke, about when she realized that the man in her bed was not Doug.

A. Opening Statements

In the prosecutions opening statement, it told the jury that, at the time of the first sexual penetration, Cheryl was still hoping . . . that this person is her husband. The prosecution conceded that Cheryl had made a statement to Valdivia and part of the statement was wrong and part of the statement needed further explanation.

Defendants trial counsel told the jury in his opening statement that defendant had thought he was having sexual activity with Katie and Cheryl thought [defendant] was her husband, Doug. He asserted that Cheryl gave consent under that mistaken apprehension. Defendants trial counsel also mentioned Cheryls statement to Valdivia. Now, there is a statement made to the first officer on the scene after the 911 tape. And to that officer, Officer Valdivia, it is said that she believed it to be her husband in part when she heard the voice because among other things sometimes theres a little bit of role playing, or something like that . . . . And so she was, again, under the belief that this was her husband.

B. Evidence Before The Jury Of Cheryls Inconsistent Statements

Cheryl made numerous statements to law enforcement, and many of these were introduced at trial as either prior consistent statements or prior inconsistent statements. Cheryls statements included the 911 call, statements to two different sheriffs deputies on the night of the offenses, a videotaped statement to a detective two days after the offenses, and statements to a deputy four months after the offenses.

Cheryl testified at trial that she had made several inaccurate statements during the 911 call including misstating her age, the number of phones in the house, and where she was located in the house.

After she called 911, Cheryl ran out of the house and went to her neighbors house. She was crying hysterically and having difficulty communicating. Sheriffs deputies arrived, and Cheryls neighbor helped them put Cheryl in the back of a patrol car so she could sit down. Deputy Donna Valdivia interviewed Cheryl as she sat in the back of that patrol car. Valdivia then put Cheryl in Valdivias patrol car and drove her to the hospital. Cheryl testified that she remembered talking to Valdivia, but she could not remember telling Valdivia anything about the incident.

Cheryl explained that, [i]n the hours following the rape I really dont remember much of anything, and she described how she had felt like she was walking under water. She testified, on cross-examination, that it was possible that she had provided Valdivia with inaccurate information because she was completely traumatized at that time. Cheryl testified that she and Doug never role play[ed], and Doug had never disguised his voice during their intimate relations.

Valdivia testified for the defense that she interviewed Cheryl about 15 minutes after her arrival at the scene. When Valdivia arrived at the scene, she saw Cheryl waving her hands in the air, yelling and screaming and running towards me. Fifteen minutes later, when Valdivia interviewed her, Cheryl was sitting in the back of a patrol car crying, shaking and visibly upset. Valdivia testified that Cheryl was the most distraught, traumatized victim that she had ever dealt with. Valdivias interview of Cheryl lasted between 15 minutes and half an hour. Valdivia testified that Cheryl said she thought it was her husband trying to disguise his voice as they have play acted before. Cheryl used the words play acted. During the interview, Cheryl sometimes rambled and other times her answers trailed off.

Two days after the offenses, Cheryl was interviewed on videotape by a detective. A substantial portion of the videotape was shown to the jury. Cheryl told the detective that she was not sure if she consciously knew that the man was not Doug when he put his fingers in her vagina the first time, [b]ut, the time when I knew for sure that it wasnt my husband was when he spoke. She also described how, when the man stuck his tongue in her mouth, she still thought it was my husband and felt kind of guilty for turning her head away. When Doug turned on the lights, Cheryl started shaking from head to foot, just because I saw him then. Even though she had already realized that the man was not Doug, when the lights came on and she saw defendant, [i]t was just stark and real and really happening and not a dream I was going to wake up from.

In June 2003, Cheryl told another deputy that she had not realized that the man was not her husband until after he put his fingers in her vagina.

C. Exclusion Of Evidence Regarding Cheryls Statements To Valdivia

During cross-examination of Cheryl, defendants trial counsel asked Cheryl if she had told Valdivia that defendant had said knock it off. The prosecutor objected. Objection, Your Honor. She said she doesnt remember. The court responded: Well, he can ask her the direct question. Its all right. Its overruled. Cheryl testified that she remembered talking to Valdivia and was not trying to mislead Valdivia, but she could not remember what she had told Valdivia. Cheryl gave similar testimony later in the cross-examination without objection.

Defendants trial counsel proceeded to cross-examine Cheryl about the statements she had made to Valdivia. He asked her: [D]o you recall saying that you believed it was your husband doing these acts to you? Cheryl responded: I dont remember saying that. What I remember telling everybody was that in my first waking moments I assumed anybody in my bed had to be my husband. Defense counsel then asked Cheryl: So you would deny telling . . . Valdivia that after the breasts and fingers that you believed it was your husband doing these acts? The prosecutor objected: Objection; vague. She doesnt recall. The court said: Yeah. Mr. Fox [defense counsel], you know, she said she doesnt recall.

The following then occurred. Q. [by defense counsel] Its the case that you were trying to fully wake up and that you noticed that the mans hair smelled weird; isnt that true? [] A. I noticed a strange, bad smell. [] Q. So if you had said to Deputy Valdivia that as you were trying to wake up you noticed the males hair smelled weird, that would be accurate? [] A. Yes. [] MS. LONG [prosecutor]: Your Honor, Im going to object. These are all speculative. She doesnt remember. The court asked defense counsel if he was asking whether or not that happened or whether or not that was what she told Valdivia. Defense counsel noted that Cheryl did not remember what she had told Valdivia. MR. FOX: So instead Im intending to call Deputy Valdivia, and before I do I think I -- [] MS. LONG: Objection. Your Honor, can we approach sidebar?

After an unreported sidebar, the court asked the jury to take a recess, and the prosecutor was asked to explain her objection on the record. She objected to defense counsel asking Cheryl about her statements to Valdivia and to him calling Valdivia to testify to an inconsistent statement that this person told her this because she doesnt remember that on the stand. The prosecutor claimed that such testimony would only be admissible if Cheryl was willfully misleading this Court or willfully withholding information from this Court . . . .

Defendants trial counsel did not dispute that Cheryl did not remember the substance of her statements to Valdivia. Defense counsel made it clear that the fact at issue was when Cheryl realized that the man in her bed was not her husband. [I]t is our offer that the evidence is that she believed it to be her husband until the lights came on . . . . And if she believed it to be her husband, then we wouldnt expect a whole lot of resistance. He asserted that Cheryls trial testimony on this point was inconsistent with her statement to Valdivia and with her statement to the detective.

He noted that Im only talking about a few more points anyway. [A]ssuming I hadnt been stopped, I would have asked her about three or four more questions on Valdivia and then I think I had one more question which I would have ended with. . . . Otherwise, I was going to be done with this witness. And so yes, it was my intention to examine Deputy Valdivia. Defendants trial counsel asserted that it would violate defendants Fifth and Sixth Amendment rights to exclude Cheryls statements to Valdivia. He also maintained that it would violate the California Constitution.

The court expressed the view that if she says I dont remember ever saying anything like that as opposed to no, I never said anything like that before, the prior statement would be inadmissible. [I]f shes asked does she have any memory of talking about  . . . the incident with Valdivia and she says no, then it seems to me its difficult to cross-examine somebody who has no memory at all. If she has, like she says, some memory . . . , thats certainly fair game . . . .

Cheryl was then examined outside the presence of the jury to determine whether she remembered what she had said to Valdivia. Cheryl testified that she did not remember what she had said to Valdivia. She was shown two pages of a police report by Valdivia that recounted the statements Valdivia reported Cheryl making to her. These pages of Valdivias police report recounted that Cheryl had told Valdivia that she believed it was her husband who touched her breast and placed his fingers in her vagina, but that she had nevertheless tried to push the man away because these acts were rough. When the man spoke, she thought it was her husband trying to disguise his voice as they have play acted before. When Doug turned on the lights, she saw the male on top of her was not her husband. After reading these pages, Cheryl testified I dont remember talking to the officer.

The court took the issue under submission and excused the jury for the day. The next day, the court found that Cheryl was not in any way evasive and was very cooperative, but she did not remember making the statements to Valdivia. The court refused to allow the defense to ask Cheryl, in front of the jury, whether Valdivias report refreshed her recollection.[7] Valdivia was permitted to testify that Cheryl had told her that, when the man spoke, she believed that the man was her husband trying to disguise his voice as they have play acted before.

D. Jury Instructions And Closing Arguments

The court instructed the jury in advance of closing arguments. The instructions on the oral copulation count told the jury that the offense was an act of oral copulation against the will of the victim by the use of force . . . . The instructions on the sexual penetration counts described each of these offenses as an act of sexual penetration when the act is accomplished against the victims will by the use of force . . . for the purpose of sexual arousal, gratification or abuse . . . .[8]

The jury was given instructions on consent and on reasonable belief in consent. The word consent here means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. Against the will means without consent of the alleged victim. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in oral copulation [or sexual penetration]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity. [] However, a belief that is based upon ambiguous conduct by the alleged victim that is the product of conduct by the defendant that amounts to force . . . is not a reasonable good faith belief.

The prosecutor argued to the jury that defendant could not have had a reasonable belief in consent because: (1) he began his assault without attempting to wake Cheryl; (2) he had vomit all over him; (3) he ignored the signs that Cheryl was not consenting (her jerking her head away, her lack of response); and (4) he held her down, pushed her around and forcibly removed her nightshirt. [E]ven assuming that Cheryl thought it was Doug, its still not consent. . . . There is no way its consent because she wasnt informed [of the nature of the act], she turned her head. You can not consent to vomity-tongue-mouth, climb-on-top-of-somebody-in-the-night sex. And she didnt.

The defense argued to the jury that, because Cheryl was not objecting because shes thinking this is my husband, defendant could have believed that she was consenting. He also argued that Cheryl believed it to be her husband and therefore gave consent . . . . Defendants trial counsel further urged that there was no force beyond the acts themselves.

E. Prejudice Analysis

Cheryl made three statements to Valdivia that were inconsistent with her testimony at trial. Cheryl told Valdivia that she believed it was her husband who touched her breast and placed his fingers in her vagina, but that she had nevertheless tried to push the man away because these acts were rough. She told Valdivia that, when the man spoke, she thought it was her husband trying to disguise his voice as they have play acted before. Cheryl also told Valdivia that, when Doug turned on the lights, she saw the male on top of her was not her husband. The trial court admitted evidence of the second of these three statements and excluded evidence of the first and third.

Defendant maintains that the exclusion of these two statements to Valdivia was prejudicial error. The Attorney General claims that the trial court did not err, and, alternatively, that any error was harmless. Defendant and the Attorney General also disagree about the standard of harmless error review.

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. (Evid. Code, 1235.) Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [] (b) The witness has not been excused from giving further testimony in the action. (Evid. Code, 770.)

At trial, Cheryl testified that she was unsure whether the man was Doug when he put his fingers in her vagina the first time, but she knew that the man was not Doug when he spoke. Her statements to Valdivia that she thought the man was her husband when he put his fingers in her vagina the first time and that she knew the man was not Doug when Doug turned on the lights were inconsistent with her trial testimony. At the time that defendants trial counsel offered these statements into evidence, he was attempting to examine Cheryl about them so as to give her an opportunity to explain or deny them and she had not been excused. Thus, Valdivias testimony about Cheryls statements was admissible under Evidence Code sections 770 and 1235.[9]

Defendant claims that the trial courts exclusion of these statements violated his federal constitutional rights and therefore reversal is required unless their exclusion was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. The Attorney General argues the error was not of federal constitutional dimension and therefore does not require reversal unless it is reasonably probable that defendant would have obtained a more favorable result if the statements had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Although the complete exclusion of evidence intended to establish an accuseds defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is an error of law merely, which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) If the trial court misstepped, [t]he trial courts ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, internal quotation marks omitted.)

Defendant claims that his federal constitutional right to present a defense was violated by the exclusion of this evidence, which gutted the defense. He asserts that this evidence had strong probative value on an issue central to the mistake of fact defense, whether there was reason for appellant to believe Cheryl was consenting.[10] However, he fails to explain how Cheryls unexpressed state of mind could have played a significant role in defendants mistake of fact defense. Instead, defendant inaccurately claims that Cheryls statements to Valdivia described a scene in which she did not resist because she thought the man on top of her was her husband. This is patently false. In fact, Valdivias report recounted Cheryls statement that she had tried to push the male . . . away from her after he touched her breast and first put his fingers in her vagina because these acts were rough. Cheryls statements to Valdivia were, in this regard, consistent with many of her other statements. Although she initially thought, assumed or hoped that the man in her bed was Doug, she nevertheless resisted his unpleasant and unwelcome contact with her.

Cheryls statement to Valdivia that she knew the man was not Doug when Doug turned on the lights did not add much, if anything, to defendants mistake of fact defense. His mistake of fact defense necessarily depended on the jury accepting a series of unlikely propositions. First, defendant thought Cheryl was Katie, even though Katie had never slept in the bedroom in which Cheryl was sleeping and Katie always wore shorts, a t-shirt and underwear to bed. Second, he thought Katie, whom he had not even spoken to in years, would welcome his unannounced presence in her bed. Third, a reasonable person would believe that a woman would consent to sexual activity initiated without warning while the woman was asleep by a vomit-covered, intoxicated man sitting on her in the dark. Fourth, a reasonable person would interpret as consent the womans lack of response under these circumstances. We could go on, but it seems unnecessary. Whether Cheryl believed that the man in her bed was Doug or not, at any given moment or throughout the events, every one of her statements, including her statement to Valdivia and her trial testimony, indicated that she had resisted the man and had engaged in no equivocal conduct that could possibly be interpreted as consent by a reasonable person. It follows that the exclusion of a portion of Cheryls statement to Valdivia did not significantly impact defendants ability to present his reasonable mistake of fact defense and therefore did not constitute federal constitutional error.

Defendants claim that the error was prejudicial under Watson fails for similar reasons. It is not reasonably probable that the jury would have accepted defendants reasonable mistake of fact defense if only it had been presented with the excluded evidence of Cheryls statements to Valdivia. The jury was presented with numerous statements by Cheryl that she thought the man was Doug when he put his fingers in her vagina the first time, yet it rejected defendants defenses as to the first sexual penetration count just as it rejected his defenses as to the subsequent counts. If Cheryls belief that the man was Doug had been critical to the jurys evaluation of defendants defenses, it would have reached a different conclusion as to the first count than it did as to the others. The fact that it did not indicates that Cheryls belief that the man was Doug did not play a significant role in the jurys rejection of defendants defenses. The error in excluding a portion of Cheryls statements to Valdivia was harmless.

IV. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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[1] Katie frequently visited defendants home because his brother was a friend of hers.

[2] Cheryl testified on cross-examination that the man said come on, come on, knock it off. It will be good.

[3] There was no sign of forced entry. Doug had probably left the front door unlocked.

[4] Neither Doug nor Cheryl had seen defendant in five years.

[5] Defendant was actually in his mid-twenties.

[6] The information also alleged that he had committed the sexual offenses against more than one victim (Pen. Code, 667.61, subds. (b), (e)). This allegation appears to have been intended to coordinate with another case against defendant that the prosecution attempted to have consolidated with this one. Defendant opposed consolidation, and the court denied the prosecutions motion to consolidate. That case, which arose prior to this one, was ultimately resolved by defendant pleading guilty to unlawful sexual intercourse (Pen. Code, 261.5, subd. (c)) in exchange for dismissal of the other 17 counts and a concurrent term.

[7] Defendants trial counsel complained that the court had gutted the defense and asked for time to seek a writ on the issue.

[8] The jury was instructed that defendants intoxication was relevant to whether he had the specific intent that is an element of the sexual penetration counts, that is, that the sexual penetration was for the purpose of sexual arousal, gratification or abuse. Since it was undisputed that defendant sexually penetrated Cheryl for the purpose of sexual arousal or sexual gratification, his intoxication was not relevant to any disputed element of the sex offenses.

[9] We will not engage in a detailed examination of the invalidity of the trial courts reasoning and the Attorney Generals argument on appeal that the statements were inadmissible since we find their exclusion to be harmless.

[10] Defendant does not claim that the excluded evidence was relevant to his actual consent or lack of force defenses.