P. v. Fonesca
Roderick Olaf Fonseca appeals his conviction for aggravated sexual assault of a child in violation of Penal Code[1]section 269, subdivision (a)(1) based on an act of rape as defined under Penal Code section 261, subdivision (a)(2)sexual intercourse accomplished against a persons will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury. Before this court, Fonseca asserts that sufficient evidence did not support his conviction on Penal Code section 269, subdivision (a)(1) because there was no evidence that he committed rape by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury because victim was asleep when he raped her. As we shall explain here, based on our review of the evidence in the light most favorable to the judgment we find the record supports Fonsecas conviction on Count 2. The victim woke up during the crime, and Fonseca continued his conduct for a short period of time while the victim was awake. Thus, Fonseca was properly charged under Penal Code section 261, subdivision (a)(1). Accordingly, we affirm the judgment of conviction.
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