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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF


CALIFORNIA,
Case No. H043709
Plaintiff and Respondent,
v.

BROCK ALLEN TURNER,


Defendant and Appellant.

Santa Clara County Superior Court, Case No. B1577162


The Honorable Aaron Persky, Judge

RESPONDENT’S BRIEF

XAVIER BECERRA
Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
JEFFREY M. LAURENCE
Senior Assistant Attorney General
ERIC D. SHARE
Supervising Deputy Attorney General
ALISHA M. CARLILE
Deputy Attorney General
State Bar No. 264202
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 510-3772
Fax: (415) 703-1234
E-mail: Alisha.Carlile@doj.ca.gov
Attorneys for Respondent

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TABLE OF CONTENTS

Page

Introduction ................................................................................................ 13
Statement of the Case ................................................................................. 14
Statement of Facts ...................................................................................... 15
A. Prosecution Case ....................................................... 15
1. Background .................................................... 15
2. Events before the party .................................. 15
3. Party at the Kappa Alpha fraternity
house .............................................................. 17
4. Other calls and text messages preceding
the assault ....................................................... 20
5. The sexual assault .......................................... 21
6. Aftermath and investigation ........................... 24
7. Forensic findings from examinations of
appellant and Jane 1 ....................................... 26
8. Appellant’s statement to police ...................... 29
B. Defense Case ............................................................. 30
1. Appellant’s testimony .................................... 30
2. Defense expert................................................ 31
3. Defense character witnesses .......................... 33
Argument .................................................................................................... 34
I. The Trial Court Did Not Abuse Its Discretion in
Limiting the Scope of Evidence Regarding Appellant’s
Character .............................................................................. 34
A. Legal Principles Regarding Admission of
Character Evidence ................................................... 35
B. Defense Offer of Proof Regarding Character
Evidence .................................................................... 37
C. Appellant Has Forfeited His Claim that the
Court’s Evidentiary Ruling Was Erroneous.............. 39

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TABLE OF CONTENTS
(continued)
Page

D. The Trial Court Did Not Abuse Its Discretion in


Delineating the Admissibility of Character
Evidence .................................................................... 40
E. Any Error in Limiting the Scope of Character
Evidence Was Harmless............................................ 47
II. Sufficient Evidence Supports Appellant’s Convictions ....... 48
A. Legal Principles ......................................................... 49
1. Sufficiency of the evidence ............................ 49
2. Elements of assault with intent to
commit rape.................................................... 50
3. Elements of penetration of an intoxicated
or unconscious person .................................... 50
B. There Is Substantial Evidence that Appellant
Acted with the Intent to Rape ................................... 51
C. There Is Substantial Evidence that Appellant
Knew or Should Have Known that the Victim
Was Intoxicated to the Point of
Unconsciousness ....................................................... 56
III. The Court Was Not Required to Instruct on Any
Lesser-Included Offenses ..................................................... 61
A. Legal Principles Regarding Instructing on
Lesser-Included Offenses .......................................... 62
B. Background Regarding Jury Instructions .................. 63
C. The Court Had No Duty to Instruct on Simple
Assault as a Lesser Included Offense of Assault
with Intent to Commit Rape (Count 1) ..................... 64
D. The Court Had No Duty to Instruct on
Attempted Penetration, Simple Assault, or
Battery as Lesser-Included Offenses to Sexual
Penetration of an Intoxicated or Unconscious
Person (Counts 2 and 3) ............................................ 66
E. Any Error in Not Giving Instructions on Lesser
Included Offenses Was Harmless ............................. 70

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TABLE OF CONTENTS
(continued)
Page

IV. The Prosecutor Did Not Engage in Misconduct by


Accurately Referring to the Location of the Sexual
Assault .................................................................................. 71
A. Legal Principles Regarding Prosecutorial
Misconduct ................................................................ 72
B. Testimony Regarding the Location of the
Assault ....................................................................... 73
C. Appellant Has Forfeited His Claim of
Prosecutorial Misconduct .......................................... 75
D. There Was No Misconduct Because the
Prosecutor Accurately Referred to the Location
of the Assault............................................................. 76
E. Any Error in the Use of the Term Dumpster
Was Harmless............................................................ 78
V. The Trial Court Did Not Err in Responding to the
Jury’s Questions ................................................................... 80
A. Legal Principles ......................................................... 80
B. The Jury’s Questions and the Court’s
Responses .................................................................. 81
C. The Court Did Not Err in Responding to the
Jury’s Questions ........................................................ 83
1. The process by which the court answered
the jury’s questions was permissible.............. 83
2. The court did not err in its clarification
of the jury’s question...................................... 85
3. The substantive response to the jury’s
question was correct ....................................... 86
D. Any Error in the Court’s Response to the Jury’s
Question Was Harmless ............................................ 91
VI. There Was No Cumulative Error ......................................... 93
Conclusion .................................................................................................. 94

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TABLE OF AUTHORITIES

Page

CASES

Brown v. Meyers
(9th Cir. 1998) 137 F.3d 1154 ............................................................... 47

Chambers v. Mississippi
(1973) 410 U.S. 284 ............................................................................... 46

Conde v. Henry
(9th Cir. 1999) 198 F.3d 734 ................................................................. 91

Crane v. Kentucky
(1986) 476 U.S. 683 ............................................................................... 46

Hale v. Morgan
(1978) 22 Cal.3d 388 ............................................................................. 93

Herring v. New York


(1975) 422 U.S. 853 ............................................................................... 44

McDowell v. Calderon
(9th Cir. 1997) 130 F.3d 833 ........................................................... 85, 86

Michelson v. United States


(1948) 335 U.S. 469 ......................................................................... 45, 46

Michigan v. Lucas
(1991) 500 U.S. 145 ............................................................................... 46

Miranda v. Arizona
(1966) 384 U.S. 436 ............................................................................... 29

Olden v. Kentucky
(1988) 488 U.S. 227 ............................................................................... 46

People v. Alfaro
(1976) 61 Cal.App.3d 414 ............................................................... 36, 41

People v. Anthony
(1912) 20 Cal.App. 586 ......................................................................... 81

5
TABLE OF AUTHORITIES
(continued)
Page

People v. Barrios
(2008) 163 Cal.App.4th 270 .................................................................. 85

People v. Beardslee
(1991) 53 Cal.3d 68 ......................................................................... 80, 86

People v. Beeler
(1995) 9 Cal.4th 953 .............................................................................. 93

People v. Boyette
(2002) 29 Cal.4th 381 ............................................................................ 87

People v. Bradford
(2007) 154 Cal.App.4th 1390 ................................................................ 84

People v. Bradley
(1969) 1 Cal.3d 80 ................................................................................. 47

People v. Breverman
(1998) 19 Cal.4th 142 ................................................................ 62, 63, 70

People v. Cardenas
(1982) 31 Cal.3d 897 ............................................................................. 93

People v. Centeno
(2014) 60 Cal.4th 659 ............................................................................ 72

People v. Clifton
(1967) 248 Cal.App.2d 126 ............................................................. 50, 54

People v. Collins
(2010) 49 Cal.4th 175 ............................................................................ 76

People v. Cunningham
(2001) 25 Cal.4th 926 ............................................................................ 46

People v. DePriest
(2007) 42 Cal.4th 1 ................................................................................ 52

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TABLE OF AUTHORITIES
(continued)
Page

People v. Doolin
(2009) 45 Cal.4th 390 ................................................................ 36, 79, 85

People v. Dykes
(2009) 46 Cal.4th 731 ............................................................................ 39

People v. Eid
(2010) 187 Cal.App.4th 859 .................................................................. 80

People v. Fudge
(1994) 7 Cal.4th 1075 ............................................................................ 46

People v. Giardino
(2000) 82 Cal.App.4th 454 .................................................................... 90

People v. Gonzales
(2011) 52 Cal.4th 254 ............................................................................ 79

People v. Gonzalez
(1990) 51 Cal.3d 1179 ........................................................................... 81

People v. Greene
(1973) 24 Cal.App.3d 622 ..................................................................... 55

People v. Hajek
(2014) 58 Cal.4th 1144 .......................................................................... 37

People v. Hicks
(2017) 4 Cal.5th 203 .............................................................................. 63

People v. Hill
(1998) 17 Cal.4th 800 ...................................................................... 72, 76

People v. Holt
(1997) 15 Cal.4th 619 ...................................................................... 59, 60

People v. Homick
(2012) 55 Cal.4th 816 ...................................................................... 39, 40

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TABLE OF AUTHORITIES
(continued)
Page

People v. Jennings
(1991) 53 Cal.3d 334 ............................................................................. 84

People v. Johnson
(1980) 26 Cal.3d 557 ............................................................................. 49

People v. Lawson
(2013) 215 Cal.App.4th 108 ............................................................ 88, 89

People v. Leal
(2009) 180 Cal.App.4th 782 ............................................................ 52, 64

People v. Licas
(2007) 41 Cal.4th 362 ............................................................................ 63

People v. Lucas
(1995) 12 Cal.4th 415 ...................................................................... 72, 79

People v. Lyu
(2012) 203 Cal.App.4th 1293 ................................................................ 50

People v. Manibusan
(2013) 58 Cal.4th 40 .............................................................................. 51

People v. Marks
(2003) 31 Cal.4th 197 ............................................................................ 39

People v. Marshall
(1997) 15 Cal.4th 1 ................................................................................ 52

People v. Maury
(2003) 30 Cal.4th 342 ............................................................................ 53

People v. McAlpin
(1991) 53 Cal.3d 1289 ......................................................... 36, 41, 47, 48

People v. McCullough
(2013) 56 Cal.4th 589 ............................................................................ 40

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TABLE OF AUTHORITIES
(continued)
Page

People v. Ortega
(2015) 240 Cal.App.4th 956 .................................................................. 67

People v. Quintana
(2001) 89 Cal.App.4th 1362 .................................................................. 66

People v. Rangel
(2016) 62 Cal.4th 1192 .......................................................................... 37

People v. Roberts
(1992) 2 Cal.4th 271 ........................................................................ 91, 93

People v. Rodriguez
(1999) 20 Cal.4th 1 ......................................................................... passim

People v. Roldan
(2005) 35 Cal.4th 646 ............................................................................ 85

People v. Ross
(2007) 155 Cal.App.4th 1033 ................................................................ 90

People v. Scott
(1983) 146 Cal.App.3d 823 ................................................................... 89

People v. Seumanu
(2015) 61 Cal.4th 1293 .......................................................................... 78

People v. Shazier
(2014) 60 Cal.4th 109 .......................................................... 72, 75, 79, 80

People v. Simmons
(1946) 28 Cal.2d 699 ............................................................................. 54

People v. Soto
(1977) 74 Cal.App.3d 267 ..................................................................... 52

People v. Stanley
(1995) 10 Cal.4th 764 ............................................................................ 49

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TABLE OF AUTHORITIES
(continued)
Page

People v. Story
(2009) 45 Cal.4th 1282 .................................................................... 49, 51

People v. Taylor
(1986) 180 Cal.App.3d 622 ............................................................. 44, 45

People v. Turner
(2017) 13 Cal.App.5th 397 .................................................................... 36

People v. Valdez
(2012) 55 Cal.4th 82 .............................................................................. 39

People v. Waidla
(2000) 22 Cal.4th 690 ............................................................................ 80

People v. Watson
(1956) 46 Cal.2d 818 ....................................................................... 47, 91

People v. Williams
(1992) 4 Cal.4th 354 .............................................................................. 66

People v. Wrest
(1992) 3 Cal.4th 1088 ............................................................................ 93

People v. Wyatt
(2012) 55 Cal.4th 694 ............................................................................ 63

Perry v. Leeke
(1989) 488 U.S. 272 ............................................................................... 44

Rock v. Arkansas
(1987) 483 U.S. 44 ................................................................................. 46

United States v. DiLapi


(2d Cir. 1981) 651 F.2d 140 .................................................................. 44

Weeks v. Angelone
(2000) 528 U.S. 225 ......................................................................... 86, 90

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TABLE OF AUTHORITIES
(continued)
Page

STATUTES

Evidence Code
§ 352................................................................................................. 36, 44
§ 413....................................................................................................... 54
§ 780................................................................................................ passim
§ 1102......................................................................................... 35, 37, 39

Penal Code
§ 29.4...................................................................................................... 89
§ 220................................................................................................. 50, 64
§ 220, subd. (a)(1) .................................................................................. 14
§ 240................................................................................................. 61, 64
§ 269....................................................................................................... 92
§ 289....................................................................................................... 85
§ 289, subd. (d) .................................................................... 14, 50, 62, 66
§ 289, subd. (d)(1) and (2) ..................................................................... 50
§ 289, subd. (e)..................................................................... 14, 50, 62, 66
§ 289, subd. (k) ................................................................................ 66, 68
§ 664....................................................................................................... 62
§ 1138.............................................................................................. passim

CONSTITUTIONAL PROVISIONS

United States Constitution


Sixth Amendment .................................................................................. 45

OTHER AUTHORITIES

1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000)


Defenses § 36 ......................................................................................... 93

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TABLE OF AUTHORITIES
(continued)
Page

CALCRIM, Judicial Council of California, Criminal Jury


Instructions
No. 222 ................................................................................................... 79
No. 890 ................................................................................................... 50
No. 915 ................................................................................................... 64
No. 1002 ................................................................................................. 50
No. 1047 ........................................................................................... 50, 66
NO. 1048 .......................................................................................... 50, 66
No. 1048A ........................................................................................ 81, 87

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INTRODUCTION

Appellant was convicted of three felony charges based on his


commission of a sexual assault on the Stanford University campus in
January 2015. He was sentenced to three years’ probation, with the
condition that he serve six months in county jail. He was ultimately
released after serving three months. He challenges his conviction on
several grounds. He contends that the trial court unfairly limited evidence
regarding his character for honesty. He also contends that there was
insufficient evidence supporting all three of his convictions for sexual
assault. He further alleges that trial court erred in not instructing on lesser-
included offenses and in responding to jury questions during deliberations.
Finally, he asserts that the prosecutor committed misconduct by stating that
the assault occurred behind a dumpster.
Appellant’s claims are unavailing. The trial court did not err in
limiting character evidence. The court properly exercised its discretion in
allowing appellant to introduce character evidence regarding the most
relevant trait to the charges—his character for sexual morality—and
excluding irrelevant generalized statements about his reputation for
honesty. There was also substantial evidence from which a rational jury
could find appellant guilty beyond a reasonable doubt of all three charges.
That evidence included testimony by two independent eyewitnesses who
saw appellant “thrusting” on top of the victim half-naked and as she lay
unresponsive on the ground. Appellant’s claims regarding instruction on
the lesser-included offenses are similarly unavailing. There was no basis to
conclude that he committed the lesser, but not the greater crimes charged.
The jury could either believe appellant, in which case no crime occurred, or
it could believe the prosecution evidence, which demonstrated that
appellant was guilty as charged. Likewise, his claim of prosecutorial
misconduct is baseless. As an initial matter, the claim is forfeited by a

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failure to object below. Moreover, and contrary to appellant’s claim, the
prosecutor accurately referred to the location of the assault, which was
described by several witnesses and depicted in photographs of the scene.
Finally, appellant’s claim regarding the trial court’s answer to the jury’s
question is meritless. The record demonstrates that the court engaged
carefully with jurors to ascertain the nature of their question and responded,
without objection from counsel, in a manner that assisted the jury in
reaching a verdict.
STATEMENT OF THE CASE

On October 6, 2015, the Santa Clara County District Attorney’s


Office filed an information charging appellant with three felony counts
related to his sexual assault of Jane Doe on January 18, 2015. Count 1
charged assault with intent to rape (Pen. Code § 220, subd. (a)(1)).1 (1CT
262-264.) Count 2 charged sexual penetration of an intoxicated person (§
289, subd. (e)). (1CT 262-264.) Count 3 charged sexual penetration of an
unconscious person (§ 289, subd. (d)). (1CT 262-264.)
On March 30, 2016, a jury found appellant guilty as charged. (2CT
476.) On June 2, 2016, the trial court suspended imposition of sentence and
placed appellant on probation for three years, on the condition that he serve
six months in county jail. (3CT 770.) With credit for good behavior,
appellant was released from custody after three months.
Appellant filed a timely notice of appeal on June 2, 2016. (3CT 773.)

1
All further undesignated section references are to the Penal Code.

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STATEMENT OF FACTS

A. Prosecution Case

1. Background

During the events that form the basis for this case, Jane 1 was a 23-
year-old recent college graduate.2 (6RT 416-417.) She grew up in Palo
Alto and returned to live at home after college while she worked in Silicon
Valley. (6RT 416-418.) Jane 1 had one younger sister, Jane 2, who was a
student at another university in California. (6RT 419-420; 7RT 583.) On
the weekend of January 17, 2015, Jane 2 was home from college for a visit.
(6RT 419-420; 7RT 584.)
Jane 1 began dating Lucas Motro in October 2014, and by November
2014, the two were in an exclusive relationship. (5RT 245; 6RT 423-424.)
Motro was working in Philadelphia in 2015. (5RT 244.)
2. Events before the party

While she was home from college, Jane 2 arranged to meet with Julia
Maggioncalda, a friend who was a student at Stanford. (5RT 203-205; 6RT
419-420; 7RT 585-587.) On January 17, Jane 1 and Jane 2 met
Maggioncalda for an early dinner at a restaurant. (5RT 206-207; 6RT 421.)
Jane 1 and Jane 2 had dinner, while Maggioncalda, who had plans to meet
another friend for dinner later, ate little. (5RT 206-207; 6RT 421; 7RT
585-587.) None of the women consumed alcohol at dinner. (5RT 206-207;
6RT 421; 7RT 585-587.)
Maggioncalda invited Jane 1 and Jane 2 to join her later at a Stanford
fraternity party at the Kappa Alpha (“KA”) house. (6RT 421.)
Maggioncalda knew several members of the fraternity, as they frequently

2
Consistent with the terminology adopted by the trial court, we refer
to the victim in this case as “Jane 1” and the victim’s sister as “Jane 2.”

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socialized with members of Maggioncalda’s sorority. (5RT 210; 6RT 421.)
Jane 2 and Maggioncalda were eager to attend the party, but Jane 1 was
unsure about whether she wanted to attend. (6RT 421.)
Maggioncalda left to meet another friend at a different restaurant.
(5RT 208-209.) At that restaurant she consumed “a lot” of food and a full
bottle of wine. (5RT 208-209.) She felt “tipsy” after dinner. Meanwhile,
Jane 1 and Jane 2 returned home. (6RT 423.) About 9:00 p.m., they ate
some food their father made, and Jane 1 continued to contemplate going to
the fraternity party. (6RT 423; 7RT 587.) Jane 2 invited a friend from
college, Colleen McCann, who was also home from school, to come along.
(6RT 323; 7RT 587.) McCann in turn invited another friend, Trea,3 who
also was home from college. (5RT 323.) Neither Jane 1 nor Jane 2 had
met Trea prior to that evening. (6RT 324.) McCann and Trea came to Jane
2’s to house in Palo Alto about 10:30 p.m. (7RT 588-589.) They were
coming from a party; McCann had not had anything to drink at that party,
but Trea had, and was “tipsy” as they arrived at Jane 2’s house. (6RT 325.)
Once McCann and Trea got to the house, they consumed
approximately one bottle of champagne each. (6RT 326.) Jane 1 decided
to join the group at the fraternity party so she could spend the evening with
her sister. (6RT 425-426.) Jane 1 and Jane 2 each had four shots of
whiskey between 10:00 and 10:45 p.m. (6RT 429-430.) Jane 1 also had a
glass of champagne. (6RT 427-428.) She was feeling the effects of the
alcohol. (6RT 429.) Jane 1 and Jane 2’s mother agreed to drive them to the
Stanford campus and left the group at the bookstore, about a 10- to 15-
minute walk from the party. (6RT 431.)

3
The record does not reflect Trea’s last name. (See 6RT 323.)

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3. Party at the Kappa Alpha fraternity house

Jane 1, Jane 2, McCann and Trea arrived at the party about 11:15 p.m.
(5RT 211-212.) Maggioncalda had arrived about 15 minutes earlier. (5RT
210.) Maggioncalda was in the basement, playing a drinking game similar
to “beer pong.” (5RT 210-211.) She estimated that she drank “a sixth of
beer” during the game. (5RT 210-211.) She was under the influence of
alcohol, but was not “out of control.” (5RT 210-211.)
When Jane 1 arrived at the party, she went to the basement with the
rest of her group. (6RT 432-433.) She started making “silly concoctions”
of juice from the juice dispensers in the kitchen. (6RT 432-433.) She said
she was “being goofy and making [her] sister laugh.” (6RT 432-433.) Jane
1 recalled that she was “embarrassing her sister by singing out loud and
dancing funny,” and that her sister laughed at the behavior in spite of
herself. (6RT 433.)
While the group was in the basement, Maggioncalda found a large
bottle of vodka and poured some into “red solo cups” for the rest of the
group. (6RT 433.) Jane 1 estimated that Maggioncalda poured three to
four shots of vodka into her cup. (6RT 433.) Although Jane 1 was already
feeling drunk, she drank all the vodka in the cup. (6RT 433.)
At this point, everyone at the party was dancing, and Jane 1 danced in
a “goofy” manner with her arms flailing. (6RT 435.) She explained that
she was not dancing with any men, and was instead trying to amuse her
sister. (6RT 436.)
After about 45 minutes, Jane 1, Jane 2, and Maggioncalda went
outside to relieve themselves in the bushes rather than wait in the long line
for the bathroom. (6RT 436.) Jane 2 recalled that it turned into a big
“fiasco” with everyone drunk and acting silly. (7RT 594.) Jane 2 recalled
that Maggioncalda specifically was “very drunk” and needed help to go to

17
the bathroom. (7RT 594.) Jane 2 herself was also “pretty drunk” at this
point. (7RT 595.)
After the group finished outside, they walked back to the party and
joined a group of people sitting on the patio. (7RT 595.) Jane 1, Jane 2,
and Maggioncalda talked to a group of three young men. (7RT 595.) One
of the men, who Jane 2 knew as “Tommy,” had a sibling that went to the
same school as her, and they fell easily into conversation. (7RT 595, 597.)
Appellant and a third, unidentified man were also part of the group. (7RT
597.) One of the men gave Jane 2 a beer, which she “shotgunned,” i.e.,
drank quickly. (7RT 598.) Jane 1 was standing nearby, socializing with
people. (7RT 598-599.) Jane 2 recalled that Jane 1 was also given a beer,
and while she drank some, she did not “shotgun” it like Jane 2 did. (7RT
598.)
Suddenly, out of the blue, appellant approached Jane 2 and started to
kiss her. (6RT 335-336; 7RT 599.) Jane 2 was very surprised because
neither she nor Jane 1 had even talked to appellant. (7RT 599.)
Appellant’s actions made her uncomfortable. (7RT 599-600.) She did not
invite the kiss and did not welcome it. (7RT 600-601.) She pulled away
and laughed in an attempt to clear the awkwardness. (7RT 601.) After
Jane 2 pulled away, she also walked away from appellant. (7RT 600-603.)
A short while later, Jane 2 saw appellant standing right behind her. (7RT
603.) He interrupted Jane 2’s conversation with another person and tried to
kiss her again, this time grabbing her around the waist. (7RT 603.) Jane 2
again pulled away. (7RT 603.)
Meanwhile, as Jane 1, Jane 2, and Maggioncalda were socializing on
the patio, McCann and Trea were sitting on a nearby bench. (7RT 596.)
Trea had begun to feel very sick and was lying down. (7RT 596.) Shortly
after Jane 2’s encounter with appellant, McCann told Jane 2 that Trea was
not doing well and asked about taking her to Maggioncalda’s dorm room to

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rest. (7RT 604.) Jane 2 told Jane 1 she was going to leave the party to take
Trea to Maggioncalda’s dorm. (7RT 605.) Jane 2 later explained that she
was “very focused on Trea, and at that time, she was my only concern
because she looked like she was not doing well at all. And so I just didn’t
even take into account Jane 1’s state or Julia’s state. And I just thought it
would be a very quick trip to drop off Trea. And I didn’t think anyone
needed to come with me.” (7RT 605.)
As Jane 2 prepared to leave with Trea, Jane 1 was standing near a
sliding-glass door near the entrance from the patio, talking to
Maggioncalda. (7RT 605.) Jane 1 was “very drunk,” but Jane 2 did not
worry about leaving her at the party as Jane 2 always felt safe at Stanford,
and Jane 1 was with Maggioncalda. (7RT 605; 8RT 685.) She also thought
she would only be gone for five minutes. (7RT 605; 8RT 865.) Jane 2 also
explained that she was drunk herself, and, therefore, could not accurately
gauge Jane 1’s level of intoxication. This factor too led to her not being
worried about leaving Jane 1. (7RT 606.)
McCann used Uber to arrange for a car to take her, Trea, and Jane 2
the short distance to Maggioncalda’s dorm. (6RT 384.) The group was
picked up at 12:17 a.m. (6RT 356.) When they got to Maggioncalda’s
dorm, they had to wait for another student to open the front door before
taking Trea to Maggioncalda’s room to rest. (7RT 606-607.)
While Jane 2 was getting Trea settled in Maggioncalda’s room, she
got a call on her cell phone from Jane 1. She could not understand what
Jane 1 was saying, and there also was a lot of background noise. (7RT
607.) She told Jane 1 to call her back and ended the call. (7RT 607.) Jane
2 then texted and called Jane 1 to try to find out where she was, but
received no response. (7RT 607-608.)

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4. Other calls and text messages preceding the
assault

The Uber driver waited for the women and drove them back to the
party, where they arrived about 12:45 a.m. (6RT 340; 7RT 606-607.) At
that point, there were campus police officers outside the party, and the
women had to show identification to get back inside the KA house. (7RT
607-608.) Jane 2 saw Maggioncalda with other party goers, but could not
find Jane 1. (7RT 607-608.) Jane 2 and Maggioncalda frantically searched
the KA house, but there was no sign of Jane 1. (7RT 607-608.) Jane 2
continued to text and call Jane 1, but was not able to reach her. (7RT 608.)
At one point, Jane 2 texted, “where are you? I’m scared.” (7RT 609.)
About 1:30 to 2:00 a.m., Jane 2, McCann, and Trea returned to Jane 2’s
house, having been unable to find Jane 1. (7RT 610.) Jane 2 thought that
Jane 1 must have gone to a bar in Palo Alto with friends and would return
home when she was ready. (7RT 610-611.)
Meanwhile, as Jane 2 earlier was attending to Trea, Jane 1 exchanged
several calls and text messages with her boyfriend, Motro, who was at his
home in Philadelphia. (5RT 347.) Jane 1 called him at 11:54 p.m. Pacific
time. (5RT 247.) Motro, who had been asleep, answered the phone. (5RT
247-248.) According to Motro, Jane 1 was “severely slurring to the point
that she was incomprehensible. I couldn’t understand most of the words
that she spoke. She was very rushed, and she could not process what I was
saying to her as if I had not spoken at all.” (5RT 248.) They stayed on the
phone for about two minutes, but he hung up because he could not
communicate with her. (5RT 248-249.) Subsequently, at 12:14 a.m., he
sent her a text saying, “you’re done. Tell [Jane 2] to take care of you,
please.” (5RT 249.) He explained at trial that “you’re done” is slang for
you are really drunk. (5RT 249.)

20
Jane 1 again called Motro at 12:16 a.m., after he sent the text. (5RT
250.) Motro did not answer the call. He knew Jane 1 was drunk, and he
did not think they would be able to have a meaningful conversation. Also,
it was after 3:00 a.m. on the East Coast and he wanted to sleep. (5RT 250.)
But he was also worried about Jane 1. He knew she was drunk and
“wouldn’t be able to take care of herself,” and that she was alone. (5RT
250.) He let the call go to voicemail, but listened to the message
immediately. (5RT 251.) Like the earlier call, he could understand some
parts of the message—she said she missed him and “that males were
presenting themselves to her but that she liked me.” (5RT 251.) But, by
and large, the message was “rambling, incoherent, most of it was
nonsensical to me.” (5RT 251; 2CT 517-518 [transcription of voicemail
and text message exchanges introduced as an exhibit].) Based on what he
judged Jane 1’s condition to be from the message, Motro was worried.
(5RT 251.) After hearing the message, he decided to call her back and stay
on the line until he could hear that someone was with her to help. (5RT
252.) He wanted to call Jane 2 but did not have her number. (5RT 252.)
Jane 1 answered the phone, but started “rambling.” (5RT 252.) Motro put
the phone on the pillow and told her to find her sister. He left the phone on
the pillow until Jane 1 either hung up or he fell asleep; he could not recall
how the call ended. (5RT 251.) His phone records showed that the call
lasted 10 minutes. (5RT 251.)
5. The sexual assault

Carl-Fredrik Arndt and Lars Peter Jonsson were Swedish nationals


who were pursuing doctoral degrees at Stanford. (4RT 125-126; 6RT 274.)
On the evening of January 17, 2015, they attended a party at an off-campus
restaurant and later were at Arndt’s on-campus apartment. (4RT 127-130;
6RT 277-278.) Arndt and Jonsson had both consumed a few beers at the

21
party and in the apartment, but were not drunk. (4RT 127-130; 5RT 147;
6RT 277-278.)
About 12:30 a.m., they decided to go to the fraternity party at the KA
house. (6RT 279.) It was about a mile from Arndt’s apartment. They rode
their bikes, which took approximately 10 to 15 minutes. (4RT 130; 6RT
277-279.) Jonsson and Arndt approached the rear of the KA house, which
was adjacent to a basketball court, and got off their bikes. (4RT 130, 183.)
Just before they walked across the basketball court, Jonsson and Arndt
observed a man and a woman on the ground, off to the side of the
basketball court, near a dumpster. (5RT 168 [noting that the victim was
“lying straight behind [the dumpster]”; 6RT 280.) At first, they assumed
that the pair were having a “personal moment” and tried to be discreet so as
not to interrupt. (6RT 287-288.) When they were about 20 to 30 feet away,
however, Jonsson noticed that something seemed off. (4RT 138-139; 6RT
287-288.)
The woman, who was lying on the ground with a man on top of her,
was not moving at all. (4RT 136.) At first, the person on top was moving a
little, but then suddenly began “thrusting” his hips intensely in an obviously
sexual manner. (4RT 138-139; 6RT 287-288.) Arndt characterized the
thrusting as “pretty aggressive.” (5RT 158.) The woman on the bottom
remained motionless. (6RT 287-288.) Jonsson asked Arndt if the scene
seemed suspicious to him, and Arndt confirmed that it did. (6RT 290-292.)
They decided they should intervene to make sure the encounter was
consensual. (6RT 293-294.)
Jonsson walked towards the couple and from six to eight feet away,
said in a loud voice, “What’s going on?” (4RT 140; 6RT 293-294.)
Appellant turned and looked at Jonsson. He then stood up and backed
away as Jonsson and Arndt came closer to him. (5RT 162; 6RT 295.) The
woman on the bottom did not react at all. (5RT 162; 6RT 295.) Jonsson

22
and Arndt noted that she was lying on the ground on her back, with her legs
spread, her dress pulled up, her undergarments removed, and her genitals
fully exposed. (5RT 156; 6RT 301.) As he approached, Jonsson shouted,
“What the fuck are you doing! She’s fucking unconscious!” (5RT 160-
161; 6RT 297.) Appellant began to backpedal away from the woman, then
turned to run. (5RT 162; 6RT 298.) Jonsson chased appellant, and Arndt
ran to check on the woman. (5RT 164-165; 6RT 302.) The woman
remained unresponsive when Arndt tried to talk to her, but he confirmed
that she was still breathing. (5RT 165.)
Jonsson caught up with appellant about 90 feet away. (6RT 302.)
Appellant was running “pretty fast,” with a normal gait, and was not
swaying or stumbling. (6RT 302.) Jonsson pulled appellant to the ground
and then sat on top of him to restrain him. (6RT 304.) He yelled for Arndt
to help him restrain appellant, who was struggling to get away. (5RT 173;
6RT 305.) As they sat on top of appellant to prevent his escape, they
noticed that appellant seemed to be smiling. (5RT 173.) Jonsson said
several times, “why are you smiling, stop smiling.” (5RT 173; 6RT 305.)
Appellant kept saying, “let me go, let me go!,” and Jonsson responded,
“you raped her,” “do you think its okay to rape her?” (5RT 173-174.)
At no point while he was with Arndt and Jonsson did appellant claim
that the woman on the ground had agreed to go to his dorm room with him,
or that they were having a consensual encounter. (5RT 175.) Appellant
also did not ask about the woman’s condition while he was being held by
Jonsson and Arndt. (5RT 175.)
A short while later, two men walked down the path where Jonsson
and Arndt had appellant restrained. (5RT 175.) After Jonsson and Arndt
explained the situation, the other men helped to restrain appellant, and
Arndt walked back to check on the woman. (5RT 175; 6RT 305.) She was
still in the same position and was still unresponsive. (5RT 176.) As Arndt

23
approached, he saw someone else approach the woman and roll her on to
her side. (5RT 177; 6RT 306.) Another bystander called the police. (5RT
177-179; 6RT 306.)
After police arrived, they handcuffed appellant. Arndt and Jonsson
each gave statements to officers explaining what they had seen. (5RT 180;
6RT 307.) The officer who interviewed Jonsson noted that Jonsson was
“extremely upset” by what he had witnessed and was crying. (6RT 307;
8RT 786-787.) Jonsson and Arndt never saw the woman again. (6RT 307.)
Jane 1’s last memory of the party was standing on the back patio of
the KA house with her sister, conversing with three men. (6RT 437.) She
recalled that she “was very out of it at this point,” “kind of just a dud,”
“vacant, not articulating much.” (6RT 439.) She had no memory of Jane 2
leaving with Trea, of calling Motro at 12:16 a.m., of calling Jane 2 at 12:29
a.m., or missing calls from Jane 2 thereafter. (6RT 439, 454.) She had no
memory of speaking with appellant, leaving the party with him, or kissing
him. (6RT 450, 456.) She had no recollection of interacting with him at
all. (6RT 456.)
6. Aftermath and investigation

Stanford police officers arrived at the KA house about 1:00 a.m. in


response to a report of an unconscious person possibly suffering from
alcohol poisoning. (4RT 76.) Following directions from bystanders,
Deputy Jeff Taylor walked down an access driveway that ran between the
KA house and another dorm, towards the dumpster enclosure. (4RT 76-
77.) He found the victim “around to the left on the backside of the
dumpster” in an area with some grass and pine trees. (4RT 77-78.) She
was lying on her side. (4RT 81-82.) He noted that her dress had been
pulled up to her waist, and her underwear had been removed, with her
pubic area and buttocks exposed. (4RT 81-82.) The top of her dress and
her bra also had been pulled down, exposing her left breast. (4RT 81-82.)

24
She was completely unresponsive, even when Deputy Taylor attempted to
rouse her by shouting. (4RT 83.)
Deputy Braden Shaw also responded to the call and went to the area
where Jonsson and Arndt had detained appellant. (8RT 776.) Deputy
Shaw asked the men, who were sitting on appellant to restrain him, to
stand. (8RT 776.) As they did so, appellant attempted to stand and flee.
Deputy Shaw grabbed his arm and put him into a shoulder lock. (8RT
780.) Although it appeared appellant had been drinking, he “walked fine”
and was able to walk to the police car without assistance. (8RT 780-781.)
As Deputy Shaw put appellant into the back to the car, he observed that
appellant had a prominent erection visible through his pants. (8RT 781.)
Paramedics also responded to the scene and began treating Jane 1
about 1:15 a.m. (7RT 508.) They found Jane 1 lying on the ground,
unresponsive, even when vigorously shaken and shouted at. (7RT 514.)
She briefly opened her eyes in response to a hard pinch. (7RT 515.) The
paramedics assessed Jane 1’s consciousness using the Glasgow Coma Scale
(“GCS”), which measures a person’s degree of impairment. (7RT 515-
516.) A normal, uninjured person would score 15 points. (7RT 718.) Jane
1’s GCS score was 11, meaning “she was definitely altered.” (7RT 518.)
Paramedics placed Jane 1 into an ambulance and transported her to Valley
Hospital in San Jose. (7RT 523.) They gave her intravenous fluid while
driving to the hospital. (7RT 525.)
Deputy Taylor rode with Jane 1 during the 30-minute ride to the
hospital and stayed with her after she was admitted in case she regained
consciousness and was able to describe what had happened. (4RT 104-
105.) He tried to rouse her about every 15 minutes, but she remained
unconscious. (4RT 105.) Jane 1 began to regain consciousness about 4:15
a.m. (4RT 108.) She was able to give her name and answer basic
questions. (4RT 109-110.) Deputy Taylor explained that she was in the

25
hospital and might have been sexually assaulted. (4RT 109-110.) About
4:30 a.m., Jane 1 was medically cleared, and waited with Deputy Taylor
until about 7:30 a.m. for the Sexual Assault Response Team (“SART”)
nurse to arrive. (4RT 112.)
The SART nurse explained to Jane 1 the protocol for a SART exam
and drew a sample of Jane 1’s blood. (4RT 112; 6RT 366.) After the
SART exam was complete, Jane 1 called Jane 2 and asked her to pick her
up about 10:00 a.m. (6RT 452-452.) She recalled that Jane 2 was worried
and upset and, consequently, Jane 1 tried to project composure and
strength. (5RT 451.) Later that day, Jane 1 retrieved her cell phone from
the Stanford police department. (6RT 451-452.) In reviewing the log of
her calls and texts, she found multiple texts and calls with Motro and
missed calls from Jane 2 between approximately 12:15 and 1:00 a.m., of
which she had no recollection. (6RT 451-452.)
7. Forensic findings from examinations of appellant
and Jane 1

Kristine Setterlund, a nurse trained to conduct sexual assault


examinations, conducted an exam on appellant at 4:15 a.m. on January 18
at Valley Hospital. (6RT 405.) She noted that he was disheveled, and his
shirt was torn. (6RT 405-406.) He had abrasions and redness on his right
arm, near his wrist, and vegetation and soil on his hands. (6RT 407.) She
swabbed appellant’s hands and collected samples of material from under
his fingernails. (6RT 405-407.) Subsequent testing showed that Jane 1’s
blood and DNA were present under appellant’s fingernails on both hands,
and also on a swab taken from the side of appellant’s fingers on his right
hand. (7RT 494-495, 502.)
Setterlund conducted an exam on Jane 1 about 8:30 a.m. at Valley
Hospital. (6RT 368.) She observed that Jane 1 had multiple abrasions and
redness on her buttocks. (6RT 373-375.) She also had abrasions on the left

26
side of her neck, below the ear, as well as redness on her right clavicle, and
on the base of her neck and top of her shoulders. (6RT 373-375, 377.)
Jane 1 also had injuries on her mid-back and shoulder blade area. (6RT
386.) Setterlund conducted a genital exam. (6RT 377.) She found redness
and abrasions on the inside of the labia and noted the presence of debris in
the labia minora. (6RT 377-380, 384-385.) The debris appeared to be soil
and vegetation. (6RT 385.) Based on the multiple abrasions and presence
of debris, Setterlund concluded that Jane 1 likely suffered some kind of
trauma. (6RT 388.) Setterlund also observed “significant trauma inside the
labia minora.” (6RT 389). She explained that this was unusual, because in
cases where there is only digital penetration, there is often no sign of
physical injury. (6RT 389.) Here, however, there were significant injuries
to the genital area. (6RT 389.)
Jane 1’s underwear was collected and sent for testing. Appellant’s
DNA was not found on the underwear. (7RT 494.) The DNA expert
testified, however, that this finding did not mean that appellant did not
touch the underwear. (7RT 494.) Rather, it just meant that appellant did
not leave a detectable amount of DNA, or that the DNA transfer had been
inhibited by the presence of the dirt, a common occurrence. (7RT 494.)
Alice King, an analyst at the Santa Clara County crime lab, testified
as an expert on the effects of alcohol on the body. (7RT 532, 537.) King
explained five phases of alcohol impairment. (7RT 540-545.) Phase one is
at blood-alcohol content (“BAC”) of .01 to .05 percent. (7RT 540-545.) At
that level, people will feel happy or euphoric and have decreased
inhibitions. (7RT 540-545.) Phase two is from BAC levels of .04 to .10
percent, and usually involves impaired vision and increased reaction time.
(7RT 540-545.) Phase three is from BAC levels of .08 to .20 percent.
(7RT 540-545.) Phase three is when people start to exhibit obvious,
objective signs of impairment that are apparent to others. (7RT 540-545.)

27
Persons at this level of intoxication typically have trouble with large muscle
group coordination, slurred speech, and staggering. (7RT 540-545.) Phase
four is from BAC levels of .20 to .40 percent. (7RT 540-545.) A person
with this BAC level would have difficulty walking or standing, would
likely be very confused, and might not know where they were. (7RT 540-
545.) For example, drunk drivers who drive the wrong way on the freeway
often have BAC’s at this level. (7RT 540-545.) Phase five is a BAC of .30
percent or higher (partially overlapping with the range for phase four).
(7RT 540-545.) BAC at this level can result in a coma or death. (7RT 540-
545.) Finally, King explained that an alcohol-induced blackout is when a
person experiences short-term memory loss due to alcohol consumption.
(7RT 556.) There is no bright-line rule about what BAC level causes an
individual to blackout. (7RT 557.)
The parties stipulated that appellant’s BAC was .130 percent when it
was drawn at 3:15 a.m. (11RT 1027.) Jane 1’s BAC was .127 percent
when it was drawn between 7:15 and 7:45 a.m. (there were conflicting
records as to the exact time of the blood draw). (11RT 1027.) Based on
those levels, and each of the parties’ height and weight, King extrapolated
that appellant’s BAC would have been approximately .171 percent at 1:00
a.m. (7RT 553.) A person with a BAC of .171 percent likely would have
large muscle coordination issues and slurred speech, consistent with phase
3 symptoms described above. (7RT 553-555.)
King also extrapolated that Jane 1’s BAC would have been between
.241 and .249 percent at 1:00 a.m., depending on the precise timing of the
blood draw at the hospital. (7RT 553.) It is also possible, however, that
Jane 1’s BAC level was in fact higher than the extrapolated level, as she
was given intravenous fluids in the ambulance, which would more quickly
lower her BAC. (7RT 580.) A person with a BAC of .24 percent typically
would have “a lot of mental impairment,” and signs of impairment would

28
be obvious to others. (7RT 540-545, 553.) The person would have slurred
speech and could have trouble walking or standing. (7RT 540-545.)
8. Appellant’s statement to police

After undergoing a SART exam at the hospital, officers took appellant


to the Stanford University police station. (9RT 809.) Appellant waived his
Miranda4 rights and agreed to speak with Detective Mike Kim. (9RT 810.)
The interview was recorded, and the recording was played for the jury.
(See 10RT 960; 3CT 594-624 [transcript of interview].) In the interview,
appellant said that he had been drinking at the party at the KA house,
consuming approximately seven beers. (3CT 595.) He had just met Jane 1
at the party, and they started kissing. (3CT 596.) He decided that they
should move away from the KA house because “you know, you aren’t
gonna make out with a girl in front of a group of people.” (3CT 599.) At
some point, as they were walking away from the party, they fell, and began
“making out” on the ground. (3CT 597.) He admitted that he removed
Jane 1’s underwear, “fingered” her, and touched her breasts. (3CT 597-
598.) According to appellant, Jane 1 “seemed to enjoy it,” so he “kept
going at it.” (3CT 599.) Although appellant acknowledged that Jane 1 was
unresponsive when Arndt and Jonsson intervened, he claimed that she was
responsive to him. (3CT 602.) He explained that although he was drunk,
“I was functioning, like, I was, I mean, I was just trying to like have a good
time with this girl.” (3CT 601, 607 [“it’s fuzzy, but like I remember it”],
3CT 614.)
At some point, he started to feel sick, decided to stand up so as not to
vomit, and to go back to his dorm. (3CT 615.) According to appellant,
“the next thing I know, this guy’s choking me on the ground, talk[ing],
telling me I can’t get up because he’d called the cops, and I was like, what

4
Miranda v. Arizona (1966) 384 U.S. 436.

29
the hell?” (3CT 603.) He denied that he fled when Jonsson and Arndt
confronted him. (3CT 610.)
Appellant stated that he never intended to take Jane 1 back to his
room, and that he just planned to “just kinda hook[] up there” with her on
the ground where they were discovered. (3CT 601.) He never learned her
name, age, or whether she was a Stanford student. (3CT 596.) He never
got her phone number or other contact information. (3CT 601.) Other than
noting that she had dark hair and was shorter than him, he was unable to
give a description of Jane 1, and he had no recollection of what she was
wearing. (3CT 617.) Although he had the presence of mind to ask about
the prevalence of sexual assault on the Stanford campus and the police
department’s role in investigating it, the booking process at the local jail,
and his ability to make phone calls, at no point did he ask about Jane 1’s
condition or expected recovery. (3CT 622-624.)
B. Defense Case

1. Appellant’s testimony

On the night of the assault, appellant arrived at the party at the KA


house about 11:00 p.m. (9RT 835.) Prior to the party, he had some pizza
and consumed about five beers over the course of two hours, as well as a
couple of “sips” of whiskey out of the bottle. (9RT 837-838.)
About 12:30 a.m., he saw Jane 1 dancing by herself. (9RT 844-845.)
He went up to her and complimented her dancing and asked if she wanted
to dance with him. (9RT 844-846.) After dancing together for about 10
minutes, they started kissing. (9RT 845-846.) Although he told police in
his initial interview that he did not plan to take Jane 1 to his dorm room, at
trial he testified that he asked if she wanted to go to his dorm room, and she
said yes. (9RT 847-848.) He put his arm around her as they walked away
from the party, behind the KA house, towards Lake Lagunita. (9RT 847-

30
848.) As they were walking, Jane 1 slipped and fell, pulling appellant
down on top of her. (9RT 849-850.)
According to appellant, he asked Jane 1 if she was okay, and the two
laughed and kissed. (9RT 851.) He asked her if she wanted him to
“finger” her, and she said yes. (9RT 851.) He took off her underwear. He
stated, “I fingered her for a minute. And I thought she had an orgasm. And
then I—well during that time, I asked her if she liked it, and she said uh-
huh.” (9RT 852.) Defense counsel clarified, “When you say ‘fingered her’
did you put a finger from your hand into her vagina?” (9RT 852.)
Appellant responded, “Yes, I did.” (9RT 852.) After Jane 1 allegedly
orgasmed, they began “dry humping” each other. (9RT 853.) After a
while, the dry humping made his stomach upset, and he felt that he was
going to vomit, so he got up. (9RT 854.)
After he stood, he first became aware of Arndt and Jonsson. (9RT
855.) Appellant initially had difficulty understanding what they were
saying,5 but it was something like, “What the fuck, you’re sick.” (9RT 855-
856.) One of the men tried to put appellant in an arm lock, which made
him “really scared,” and he decided to run. (9RT 856.) After he began to
run, one of the men caught up to him, tackled him, and they wrestled on the
ground. (9RT 857.) Appellant screamed for help. (857). The other man
came and sat on appellant’s legs and, shortly thereafter, a police officer
arrived. (9RT 857.)
2. Defense expert

Dr. Kim Fromme testified as an expert for the defense regarding


alcohol and its effects on human cognition, memory, and behavior. (8RT
718.) She testified that alcohol has significant effects on a person’s

5
Neither Larsson nor Arndt required translators during their trial
testimony.

31
memory and can prevent a person from transferring information from short-
term memory to long-term memory. (8RT 721.) Thus, an intoxicated
person might be able to engage in a conversation with someone, but later
have no memory of having done so. (8RT 721-722.) The loss of memory
is called a “blackout.” (8RT 721-722.) In Dr. Fromme’s opinion, a person
can be fully conscious and able to engage in all kinds of activities—
walking, talking, driving a car, dancing, having sex—but unable to form
memories of those events. (8RT 721-722.) She explained, “[p]eople who
are in a blackout can make voluntary decisions about things in their life,”
they just don’t remember later. (8RT 723.) She noted that a blackout is
different than a “pass out,” when a person becomes unconscious. (8RT
721-722.) In her experience, a person may start to blackout at BAC levels
of .20 percent and above, while people may start to pass out at .30 percent
and above. (8RT 721.) She had conducted laboratory research on
intoxication, but the highest level of intoxication she had tested for in the
laboratory was .12 percent, as testing to higher levels runs counter to ethics
limitations. (8RT 713.) Her opinions on higher levels of intoxication were
based on self-reported behavior of volunteers and, thus, were likely less
accurate. (8RT 713-714.)
After reviewing the police reports and listening to the voicemail left
by Jane 1 for Motro, she opined that Jane 1 was in an alcohol-induced
blackout; Jane 1 could not remember the events of the evening, but she was
still able to make voluntary choices about her actions. (8RT 727.)
On cross-examination, Dr. Fromme said that she charged on average
$10,000 to testify in a given case, and most often testified on behalf of
defendants accused of sexual assault. (8RT 729-731, 733.) She also
acknowledged writing an email to defense counsel in which she touted a
“huge acquittal” in a case she worked on in which the defendant was
acquitted of rape despite making a lengthy confession to police. (8RT 736.)

32
She also acknowledged emails between herself and defense counsel in
which she stated she would prefer not to review Jane 1’s medical records,
because if they showed that she was given intravenous fluids, it would
negatively impact her testimony about Jane 1’s level of intoxication in this
case. (8RT 740.) Finally, she acknowledged writing an email to defense
counsel suggesting that she write only a general discovery statement to be
given to the prosecution to avoid “showing our entire poker hand in
advance.” (8RT 745.)
3. Defense character witnesses

The defense called four character witnesses to testify on appellant’s


behalf. Andrew Cole-Goins was 21 years old and a university student in
New York. (10RT 933.) He testified that he had known appellant since
they were 12 or 13 years old, as they both participated on a local swim
team. (10RT 933.) He was also friends with Lydia Pocisk, appellant’s high
school girlfriend and a fellow swim team member. (10RT 938.) He opined
that appellant had a high moral character for sexual morality. (10RT 938.)
Based on his observations of appellant in general and appellant’s
interactions with Pocisk specifically, he did not believe that appellant
would ever engage in sexually assaultive behavior. (10RT 938.) He
acknowledged, however, that he had never spent time with appellant when
appellant was drinking heavily. (10RT 940.)
Gary Galbreath was appellant’s swim coach during high school.
(10RT 943.) He also supervised appellant when he worked as a lifeguard at
a pool managed by Galbreath. (10RT 945.) He testified, “I don’t believe
that [appellant] would do anything that would harm anybody.” (10RT
947.) He acknowledged, however, that he had never seen appellant drink
alcohol and had not observed him when he was heavily intoxicated. (10RT
948-949.)

33
Lydia Pocisk, appellant’s high school girlfriend, also participated on
the local swim team. (10RT 950.) She testified that their relationship had
been “very respectful” and, even though they had decided to separate, they
had maintained “a really close relationship.” (10RT 954.) They were
sexually active during the time they were dating, and she never felt
pressured into any sexual activity. (10RT 955.) She acknowledged,
however, that she had never been drinking with appellant and never saw
him intoxicated. (10RT 958.)
Finally, Jennifer Jervis was one of appellant’s high school teachers
and also was involved in the local swim team. (11RT 1012.) She knew
appellant and his family well. She said that appellant had a high moral
character, and she did not believe he would engage in sexually assaultive
behavior. (11RT 1012.) Like the other witnesses, however, she had never
seen appellant when he had been drinking alcohol. (11RT 1013.)
ARGUMENT

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN


LIMITING THE SCOPE OF EVIDENCE REGARDING
APPELLANT’S CHARACTER

Appellant contends that the trial court erred in limiting the scope of
character evidence that was admissible at his trial. (AOB 46-62.) While
acknowledging that the court allowed four witnesses to testify regarding his
general good character and to his lack of sexually aggressive behavior, he
contends that the court should also have allowed the witnesses to testify
regarding his reputation for honesty. He argues that by testifying, he put
his reputation for veracity at issue. Furthermore, he claims that the
excluded testimony, which would have stated that “Brock is honest and
polite to all,” and that “he is an honest person” (2CT 340), was critical to
the defense case and that its exclusion likely caused the jury to disregard
his version of events and find him guilty. Not so.

34
Appellant’s argument is premised on both legal and factual
misunderstandings. First, it discounts the broad discretion afforded to trial
courts to determine the scope of permissible testimony in order to ensure
that the trial proceeds in an efficient and orderly manner. Even in cases
where a defendant testifies, the court is not obliged to admit every piece of
evidence which may bear on his credibility. The trial court here did not
abuse its discretion in finding that appellant’s character for sexually
assaultive behavior was most relevant to the jury in determining guilt, and
that other character evidence was not relevant or admissible. Second,
appellant’s argument overlooks that this case was not a “he said/she said”
sexual assault case that pitted the credibility of the victim against the
credibility of the accused. Jane 1 acknowledged that due to her level of
intoxication, she could not remember what had occurred. But, ample other
evidence, including testimony by eyewitnesses, voicemails and text
messages, as well as forensic findings, discredited appellant’s version of
events. Thus, the trial court correctly concluded that additional character
evidence was not relevant, and it is unlikely that testimony regarding
appellant’s reputation for honesty from his friends and those close to him
would have been helpful to the jury, or would have altered the outcome of
the case.
A. Legal Principles Regarding Admission of Character
Evidence

Evidence Code section 1102 allows the accused in a criminal case to


introduce evidence of his good character to show his innocence of the
alleged crime, provided that the character or trait of character to be shown
is relevant to the charge made against him. “Such evidence is relevant if it
is inconsistent with the offense charged—e.g., honesty, when the charge is
theft—and hence may support an inference that the defendant is unlikely to

35
have committed the offense.” (People v. McAlpin (1991) 53 Cal.3d 1289,
1305.)
Evidence Code section 780 provides that “the court or jury may
consider in determining the credibility of a witness any matter that has any
tendency in reason to prove or disprove the truthfulness of his testimony at
the hearing, including . . . his character for honesty or veracity or their
opposites.” Section 780, however, “merely permits the jury to consider
certain particular matters in testing the credibility of a witness. It does not
require that any and all questions relative to credibility be allowed . . . .
Evidence Code section 780 was intended to continue the rule developed [at
common law] that the scope of the presentation of matters affecting
credibility is in large measure within the discretion of the trial judge. It was
not intended to and does not make mandatory the admission of such
evidence.” (People v. Alfaro (1976) 61 Cal.App.3d 414, 423-424; see also
People v. Turner (2017) 13 Cal.App.5th 397, 408 [trial court has broad
discretion on whether to admit evidence under Evidence Code section
780].)
Furthermore, evidence of a defendant’s good character is subject to
exclusion under Evidence Code section 352 if the probative value of the
evidence is outweighed by the danger of undue prejudice or consumption of
time, even if the evidence is otherwise admissible under other sections of
the Evidence Code. (See People v. Doolin (2009) 45 Cal.4th 390, 438.)
An appellate court reviews the trial court’s decision to admit or exclude
character evidence and its balancing of probative value versus prejudicial
effect for abuse of discretion. (Ibid.) “The abuse of discretion standard . . .
reflects the trial court’s superior ability to consider and weigh the myriad
factors that are relevant to the decision at hand. A trial court will not be
found to have abused its discretion unless it ‘exercised its discretion in an
arbitrary, capricious, or patently absurd manner that results in a manifest

36
miscarriage of justice.” (People v. Hajek (2014) 58 Cal.4th 1144, 1180,
abrogated on other grounds as stated in People v. Rangel (2016) 62 Cal.4th
1192.)
B. Defense Offer of Proof Regarding Character Evidence

Prior to trial, defense counsel made an offer of proof regarding the


proposed testimony of four character witnesses: Andrew Cole-Goins, a peer
from appellant’s local swim team; Lydia Pocisk, appellant’s high school
girlfriend and former swim team peer; Jennifer Jervis, appellant’s high
school French teacher and former swim coach; and Gary Galbreath, former
coach of the swim team. (2CT 340.) The proffer provided a factual
summary of each witness’s proposed testimony, but did not discuss the
legal basis for the admission of the testimony.6
The prosecution filed a motion in limine seeking to limit the scope of
character evidence admissible under Evidence Code section 1102. (2CT
336-340.) The prosecution noted that according to the defense’s proffer,
several of the witnesses would offer testimony regarding appellant’s skill as
a swimmer, which was not relevant to the case. (2CT 337.) The motion
also argued that “lack of ability to sexually assault a female” was not a
proper subject of character evidence. (2CT 337.)
The court first addressed the motions on March 9 and deferred ruling
on the matter pending further discussions with counsel. (1RT 18.) On
March 25, the court discussed the scope of testimony by the defense

6
The only copy of this proffer contained in the record is an exhibit
to the prosecution’s motion in limine. Thus, it is unclear if the defense ever
specified a legal basis for the admission of the testimony or merely
summarized the factual basis of the proposed testimony. Based on the
court’s comments when addressing the proffer, it appears that the evidence
was offered for admission only under Evidence Code section 1102, not
section 780. (10RT 924.)

37
character witnesses with both counsel in chambers and then summarized
their discussion on the record. (10RT 923-925.)
[A]t an earlier discussion about the scope of the testimony of
those witnesses, the defense had offered the character traits of
one, honesty, and two, for lack of a better term, sexual non
aggression.

And upon further research, review and discussion, I indicated


that the character trait for honesty didn’t appear to be relevant to
the crimes charged under Evidence Code section 1102. And
then we discussed some case law related to the appropriate
scope or characterization of the character trait as it relates to
sexual conduct.

And ultimately, the offer from the defense is to have the defense
witnesses testify that the defendant is of high moral character as
it relates to sexual assaultive behavior. And I indicated, based
on my review of the case law, that that seemed appropriate. But
I want to give counsel a chance to weigh in on that issue.

In other words, honesty is out. High moral character as it relates


to sexual assaultive behavior is in.

(10RT 923-925.)
The court gave counsel an opportunity to comment on the ruling and
note any disagreements. (10RT 925-926.) The prosecutor explained that
under existing case law, she believed that she was entitled to ask the
witnesses about specific acts, but that she did not intend to do so. (10RT
925.) Defense counsel stated that he agreed with the court’s ruling,
including with the summary of the scope of evidence being proffered by the
character witnesses. (10RT 926.) Counsel explained, “I’m satisfied with
the Court’s ruling as to how I can phrase the questions to the character
witnesses about the high moral character as it relates to sexual assaultive
behavior.” (10RT 926.)

38
C. Appellant Has Forfeited His Claim that the Court’s
Evidentiary Ruling Was Erroneous

Appellant has forfeited his claim that the court should have allowed
his character witnesses to testify regarding his reputation for honesty and
veracity. First, appellant now argues that the evidence was admissible
under Evidence Code section 780, as evidence tending to prove his
truthfulness. He has failed to establish, however, that the defense sought
admission of the evidence on that basis at trial. (2CT 340 [defense proffer
does not identify legal basis for admission]; 1RT 18; 10RT 926 [colloquies
only discuss admission of evidence under Evid. Code, § 1102].) The
failure to assert a claimed evidentiary error in the trial court on the same
ground advanced on appeal results in a forfeiture of the issue on appeal.
(See People v. Dykes (2009) 46 Cal.4th 731, 756; see also People v. Marks
(2003) 31 Cal.4th 197, 228 [“A general objection to the admission or
exclusion of evidence, or one based on a different ground from that
advanced at trial, does not preserve the claim for appeal”].)
Second, by the time of trial, defense counsel had amended the scope
of evidence he intended to introduce, abandoning his initial attempt to
introduce testimony regarding appellant’s character for honesty, and instead
focusing on appellant’s high moral character as it related to sexually
assaultive behavior. (10RT 924.) It is well settled that a defendant forfeits
a claim when he fails to pursue the issue and obtain a definitive ruling in
the trial court. (People v. Valdez (2012) 55 Cal.4th 82, 121.)
Third, even if defense counsel had continued to pursue admission of
character evidence on appellant’s character for veracity, he forfeited any
claim on appeal because he failed to object to the trial court’s ruling
limiting the scope of evidence. Indeed, counsel stated: “I’m satisfied with
the Court’s ruling . . . .” (10RT 926; see People v. Homick (2012) 55
Cal.4th 816, 867 [failure to object to evidentiary ruling regarding character

39
evidence forfeits the issue on appeal].) “‘The purpose of [the forfeiture]
rule is to encourage parties to bring errors to the attention of the trial court,
so that they may be corrected.’” (Ibid.) Additionally, “[i]t is both unfair
and inefficient to permit a claim of error on appeal that, if timely brought to
the attention of the trial court, could have been easily corrected or avoided.”
(People v. McCullough (2013) 56 Cal.4th 589, 593.) Thus, because
appellant did not seek admission of the evidence on the basis he now urges
on appeal, abandoned his attempt to admit evidence of his character for
honesty, and failed to object to the trial court’s ruling, appellant has
forfeited this issue on appeal.
D. The Trial Court Did Not Abuse Its Discretion in
Delineating the Admissibility of Character Evidence

Even were appellant able to bring his claim of evidentiary error on


appeal, it fails on its merits. Appellant contends that when a defendant
testifies, he puts his veracity at issue, and thus his reputation for honesty is
relevant. Therefore, he reasons, under Evidence Code section 780 the trial
court should have admitted the character witnesses’ opinions of his
reputation for honesty, as such testimony would have had a tendency to
prove the truthfulness of his testimony. He argues that such evidence was
critical because he was subject to extensive cross-examination by the
prosecutor, which highlighted inconsistencies between his testimony at trial
and the statement he gave to Detective Kim in the immediate aftermath of
the assault.
Contrary to appellant’s argument, the trial court did not abuse its
discretion in limiting the scope of character evidence and directing the
witnesses to focus on appellant’s character for sexually assaultive behavior.
As the trial court explained, the general trait of honesty was not particularly
relevant to sexual assault crimes charged. (10RT 924.) The California
Supreme Court has explained, evidence of good character “is relevant if it

40
is inconsistent with the offense charged—e.g., honesty, when the charge is
theft—and hence may support an inference that the defendant is unlikely to
have committed the offense.” (People v. McAlpin, supra, 53 Cal.3d at p.
1305.) Evidence Code section 780 does not change this calculus. That
section “merely permits the jury to consider certain particular matters in
testing the credibility of a witness.” (People v. Alfaro, supra, 61
Cal.App.3d at pp. 423-424.) It does not mandate admission of all evidence
bearing on truthfulness, and maintains the trial court’s broad discretion in
determining what evidence would most assist the jury in evaluating the
charges leveled against the defendant. (Ibid.)
Here, the trial court correctly found that as related to proposed
character witnesses, the most relevant trait was whether appellant had a
reputation for aggressive sexual behavior, or, as the character witnesses
maintained, had a history of treating girls and women respectfully.
Although the jury needed to make credibility determinations in assessing
appellant’s testimony, as it must for all witnesses, appellant’s reputation for
veracity among those who knew and liked him in high school was not the
primary, or even a relevant, issue in the case. Moreover, the testimony
regarding honesty proffered by appellant was not detailed, and the trial
court correctly found that it was not particularly probative. The proffer
noted only that Andrew Cole-Goins would testify that “Brock is honest and
polite to all” and that Gary Galbreath would testify that appellant “is an
honest person.” (2CT 340.) These general statements from friends were
not likely to be helpful to the jury in assessing the credibility of appellant’s
testimony, particularly in light of the other evidence available to jury in
assessing the truth of that testimony.
Indeed, evidence regarding appellant’s reputation for honesty had
especially low probative value given the particular factual backdrop of this
case. Unlike some sexual assault cases, which might turn on a credibility

41
determination between the victim and the accused, here, there was
substantial independent evidence regarding the events of that night. That
evidence discredited appellant’s version of events. Jane 2 testified that
while at the party, appellant approached her and suddenly started to kiss
her. (6RT 335-336; 7RT 599.) Jane 2 was surprised and made
uncomfortable by appellant’s actions; she did not invite the kiss and did not
welcome it. (7RT 599-601.) Shortly thereafter, appellant tried to kiss her
again, this time grabbing her around the waist. (7RT 603.) Jane 2
eventually left the party to care for her sick friend.
There was also evidence that Jane 1 was intoxicated on the night of
the assault. Jane 1’s boyfriend, Motro, testified regarding texts, voicemails,
and telephone calls they exchanged during the period immediately
preceding the assault. (5RT 251-252.) Motro testified that Jane 1 was
obviously drunk, largely unintelligible, and unable to respond to his simple
questions during the calls, which occurred between approximately 12:17
and 12:27 a.m. (5RT 251-252.) The voicemail Jane 1 left at 12:16 a.m.
was played for the jurors, who were able to draw their own conclusions
based on what they heard. (2CT 517-518.)
Furthermore, Jonsson and Arndt testified that they came upon
appellant and Jane 1 shortly before 1:00 a.m. Jane 1 was completely
motionless and unresponsive. (4RT 136.) Appellant urged the jury to
believe that Jane 1 was a willing participant in the encounter mere moments
before the two men found her passed out. A reasonable jury would find
that highly improbable in light of Motro’s testimony of Jane 1’s condition
when they spoke just a few minutes before and Jonsson’s and Arndt’s
testimony regarding Jane 1’s condition when they found her. (5RT 251-
252.) Therefore, the trial court correctly concluded that the general
pronouncements about appellant’s reputation for honesty from those who
knew him in high school had low probative value in this case. Thus, it did

42
not abuse its discretion in directing the character witnesses to focus on
appellant’s character for sexually assaultive behavior and in excluding their
general opinions as to his character for honesty.
Appellant argues that because Jane 1 has no recollection of the events
in question, his testimony was the only evidence of what happened between
12:15 and 1:00 a.m., and thus his credibility was a crucial issue. (AOB 54.)
Not so. As discussed, there was ample other independent evidence that
shed light on what occurred during this time frame and disproved
appellant’s version of events. Motro testified regarding calls and
voicemails exchanged with Jane 1 during this period, and Jonsson and
Arndt testified that Jane 1 was completely unconscious when they found
her shortly before 1:00 a.m. Moreover, forensic evidence established that
her BAC at this time was approximately .24 percent, slightly below the
threshold for alcohol poisoning.
Appellant maintains that he provided the only testimony regarding the
digital penetration. However, as his admissions of this conduct were
corroborated by forensic findings from the SART exams, the credibility of
this portion of the testimony was not contested. (7RT 494-495 [Jane 1’s
DNA found on appellant’s hands and under his fingernails], 6RT 377-378,
384-385 [SART exam findings consistent with digital penetration], 9RT
852 [appellant admitted digital penetration in testimony]; 3CT 595
[appellant admitted digital penetration in police interview].)
Appellant contends that testimony regarding his honesty would have
been more powerful than testimony regarding sexual nonaggression, since
impressions of honesty are formed over time and are not as likely to be
context specific. (AOB 57.) Contrary to appellant’s argument, the
proffered testimony regarding honesty was generic and not likely to have
had any impact on the jury’s determination. (See 2CT 340 [proffer noting

43
that witnesses would testify that “Brock is honest and polite to all. . . and
“he is an honest person”].)
Appellant discusses the extensive cross-examination to which he was
subjected. (AOB 55-57.) He implicitly suggests that because of the alleged
intensity of the cross-examination by the prosecutor, the court should have
been more lenient in admitting evidence bolstering his credibility. But all
defendants who testify expect vigorous cross-examination to explore and
expose weaknesses and inconsistencies in their testimony. “‘The very
premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective
that the guilty be convicted and the innocent go free.’” (Herring v. New
York (1975) 422 U.S. 853, 862.) As the United States Supreme Court has
explained:
[We have] consistently acknowledged the vital role of cross-
examination in the search for truth. [When a defendant decides
to testify,] the prosecution has the right to test his credibility on
cross-examination . . . . Once the defendant places himself at the
very heart of the trial process, it only comports with basic
fairness that the story presented on direct is measured for its
accuracy and completeness by uninfluenced testimony on cross-
examination.

(Perry v. Leeke (1989) 488 U.S. 272, 283, fn. 7; quoting United States v.
DiLapi (2d Cir. 1981) 651 F.2d 140, 149-151 (Mishler, J., concurring).)
That appellant was subject to vigorous cross-examination does not
suspend the normal operation of the rules of evidence, nor confer any
special obligation on the trial court to admit evidence regarding credibility
otherwise excludable under Evidence Code section 352. Moreover, the
defense was given ample opportunity to counter the points made by the
prosecutor during its redirect examination of appellant.
Appellant relies on People v. Taylor (1986) 180 Cal.App.3d 622,
which held that evidence of a defendant’s reputation for honesty was

44
admissible under Evidence Code section 780 even though it was not
directly related to the charged offense of rape. (Id. at p. 632.) That case,
however, is readily distinguishable. There, the defendant was accused of
raping a young female resident of a home for the mentally disabled. (Id. at
pp. 626-627.) The only prosecution evidence was testimony by the
mentally-disabled victim, who gave widely conflicting accounts on direct
versus cross-examination, and another mentally-disabled resident, who
admitted that her account of the incident closely mirrored a rape scene in a
television drama she and the victim saw the night before. (Id. at pp. 627-
628.) There was no forensic evidence confirming sexual assault and no
other witnesses. (Ibid.) Taylor reasoned that because the case was
essentially a “he said vs. she said” dispute, and there was strong reason to
doubt the prosecution’s witnesses, the trial court erred in excluding
evidence of appellant’s credibility. (Id. at pp. 633-634.)7 Here, as
explained, the case did not reduce to a mere conflict between the testimony
of the victim and the defendant. There was other evidence regarding the
encounter, including independent eyewitness testimony, a forensic exam
documenting the injuries sustained in the assault, and calls and voicemails
showing Jane 1’s level of intoxication. Therefore, evidence regarding
appellant’s reputation for honesty was less probative in this case.
Appellant cites Michelson v. United States (1948) 335 U.S. 469 in
support of his argument that the Sixth Amendment guarantees the right to
present character evidence. (AOB 50-53.) But Michelson is also unhelpful
to appellant. There, the defendant was accused of bribery and claimed
entrapment as a defense, and the court noted the importance of character

7
Notably, the defendant in Taylor specifically sought to admit the
evidence under Evidence Code section 780, unlike appellant here, who did
not offer that basis for admission.

45
witnesses testifying to the accused’s honesty in the presentation of the
defense case. (Michelson, supra, 335 U.S. at p. 471.) Unlike the sexual
assault crimes charged here, a defendant’s honesty bears directly on charges
of bribery and the defense of entrapment. Furthermore, the trial court here
did not completely bar character witnesses—indeed, it allowed four such
witnesses to testify to appellant’s good character in general and to his high
moral character as it relates to sexually assaultive behavior specifically. It
merely excluded evidence regarding his reputation for honesty.
For the same reason, appellant’s argument that the trial court’s ruling
prevented him from presenting a complete defense and his reliance on
Crane v. Kentucky (1986) 476 U.S. 683 and Olden v. Kentucky (1988) 488
U.S. 227, are unavailing. These cases do not stand for the proposition that
a defendant has the right to present favorable testimony without limitation.
(Michigan v. Lucas (1991) 500 U.S. 145, 149.) “The right [to present
evidence favorable to the defense] ‘may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process.’”
(Rock v. Arkansas (1987) 483 U.S. 44, 55, quoting Chambers v. Mississippi
(1973) 410 U.S. 284, 295.) Although the “complete exclusion” of evidence
establishing a defense may be a constitutional violation, the exclusion of
defense evidence on a minor point is not. (People v. Cunningham (2001)
25 Cal.4th 926, 999; accord, People v. Fudge (1994) 7 Cal.4th 1075, 1102-
1103.)
Finally, appellant cites several Ninth Circuit Court of Appeal cases in
support of his argument that evidence corroborating a defendant’s version
of events is especially critical when he testifies on his own behalf. (AOB

46
59-60.)8 But appellant’s reliance on these cases is misplaced. For example,
in Brown v. Meyers (9th Cir. 1998) 137 F.3d 1154, the excluded evidence
was alibi testimony by another witness that confirmed the defendant’s
account of his whereabouts. Here, in contrast, the proffered evidence was
much weaker, consisting only of general observations about appellant’s
character for honesty. Therefore, unlike the cases cited by appellant, which
involved corroborating percipient witnesses or documentary evidence, there
is no reasonable likelihood that admission of the generic, anodyne
statements by the character witnesses would have altered the jury’s
conclusion.
E. Any Error in Limiting the Scope of Character Evidence
Was Harmless

Even were appellant able to establish that the trial court erred in
excluding the proffered testimony about his reputation for honesty, any
error was harmless because there is no reasonable probability that its
admission would have resulted in a more favorable outcome for appellant.
(People v. McAlpin, supra, 53 Cal.3d at p. 1311 [applying the harmless
error standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Multiple
witnesses testified as to appellant’s good character generally and his high
character for sexual morality specifically. The excluded evidence merely
relayed generic declarations that appellant was “honest and polite towards
all” and was “an honest person.” These statements were not particularly
compelling in light of the factual background of this case.
Moreover, the effect general opinion evidence on veracity could have
on this case was severely limited given the ample evidence that
corroborated the prosecution’s case and discredited appellant’s testimony.

8
Respondent notes that California courts are not bound by the
decisions of the lower federal courts. (See People v. Bradley (1969) 1
Cal.3d 80, 86.)

47
Jane 1’s text and voicemail exchanges with Motro demonstrated that she
was in fact, too intoxicated to consent to sexual activity and that her level
of intoxication was obvious to others. (5RT 251-252; 2CT 517-518.)
Additionally, the timing of the calls and texts, which occurred between
12:15 and 12:30 a.m., contradicted appellant’s story that he was dancing
and flirting with Jane 1 during this time period. (See 2CT 517-518.)
Additionally, Jonsson’s and Arndt’s testimony was especially persuasive.
Their observation of appellant aggressively thrusting on top of Jane 1’s
naked body as she lay unconscious in the dirt cast grave doubts on
appellant’s assertion that she was awake and welcoming of his advances
only moments before. (See 4RT 136-139; 5RT 156, 162; 6RT 287-288,
295, 301.) Given this evidence, testimony from those who like appellant
that they believed him be honest would not have affected the outcome of
this case—especially given that those witnesses admitted that they had not
observed appellant when he had been drinking. Therefore, even if the trial
court had admitted the additional statements about appellant’s general
reputation for honesty, there is no reasonable probability that it would have
changed the jury’s weighing of the evidence in this case or led to a more
favorable outcome for appellant. (People v. McAlpin, supra, 53 Cal.3d at p.
1311.)
II. SUFFICIENT EVIDENCE SUPPORTS APPELLANT’S
CONVICTIONS

Appellant contends there was insufficient evidence supporting his


three convictions. (AOB 62-76.) He contends that there was insufficient
evidence that he assaulted Jane 1 with the intent to rape, as charged in count
1. Rather, he contends, because he kept his zipper fastened and did not
expose his penis, he must have only intended sexual conduct short of rape.
He also contends that there was insufficient evidence that he was aware that
Jane 1 was too intoxicated to consent, as charged in count 2, or that he was

48
aware that she was unconscious, as charged in count 3. Contrary to
appellant’s argument, there was substantial, credible evidence supporting
his convictions. As to assault with intent to rape, the jury readily could
have inferred intent to rape based on appellant’s actions at the party, his act
of taking Jane 1 to a secluded location, the state of the victim’s clothing
when she was discovered, the observations of Arndt and Jonsson who
interrupted the attack, and appellant’s conduct when confronted. Likewise,
there was substantial evidence that appellant knew or should have known
that the victim was extremely intoxicated and indeed had become
unconscious. This evidence included forensic evidence of her blood-
alcohol content, observations of others at the party, calls and voicemail
messages, and the observations of Arndt and Jonsson.
A. Legal Principles

1. Sufficiency of the evidence

The standard of appellate review for insufficiency of the evidence


claims is settled. “In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
578.) The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence. (People v. Stanley (1995) 10
Cal.4th 764, 792.) ‘“Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant’s guilt beyond a reasonable doubt.” (People v. Story

49
(2009) 45 Cal.4th 1282, 1296.) “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11.)
2. Elements of assault with intent to commit rape

Appellant was convicted in count 1 of assault with the intent to


commit rape, in violation of section 220. Conviction “requires proof that
an assault was committed, and that at some time during the assault it was
the intention of the defendant to have sexual intercourse with his victim by
force.” (People v. Clifton (1967) 248 Cal.App.2d 126, 129; § 220;
CALCRIM No. 890.) Sexual intercourse “means any penetration, no
matter how slight, of the vagina or genitalia by the penis.” (CALCRIM No.
1002; 2CT 442.)
3. Elements of penetration of an intoxicated or
unconscious person

Appellant was convicted in count 2 with sexual penetration of an


intoxicated person, in violation of section 289, subdivision (e), and in count
3 of sexual penetration of an unconscious person, in violation of section
289, subdivision (d). Conviction for both offenses requires the jury to find
that the defendant knew or reasonably should have known that the victim
was prevented from resisting due to an intoxicating substance (§ 289, subd.
(e)) or because she was unconscious as to the nature of the act (§ 289, subd.
(d)). (CALCRIM Nos. 1047 & 1048; 2CT 443-444.) Under the statute,
unconscious is defined as “unconscious or asleep [or] as not aware,
knowing, perceiving, or cognizant that the act occurred.” (§ 289, subd.
(d)(1) & (2); People v. Lyu (2012) 203 Cal.App.4th 1293, 1299.)

50
B. There Is Substantial Evidence that Appellant Acted
with the Intent to Rape

As to count 1, appellant contends that there was insufficient evidence


that he acted with the intent to rape because there was no evidence that he
unzipped his pants and exposed his penis. (AOB 68-72.) Therefore, he
argues, he must have intended only sexual conduct short of rape. Contrary
to appellant’s claim, there was substantial evidence demonstrating that he
assaulted Jane 1 with the intent to rape her and would have done so had he
not fortuitously been interrupted by Arndt and Jonsson.
Evidence regarding a defendant’s specific intent “is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct
evidence to support a conviction.” (People v. Manibusan (2013) 58 Cal.4th
40, 87.) Here, there was substantial evidence from which the jury could
have inferred that appellant acted with the intent to rape.
First, the jury could have inferred intent to rape from appellant’s
inappropriate behavior at the party. (People v. Story, supra, 45 Cal.4th at
pp. 1297-1298 [jury could infer intent to rape from evidence of spurned
advances by defendant towards victim and another woman earlier the same
evening].) Jane 2 testified that as she was socializing on the patio behind
the fraternity house, appellant approached her from behind and kissed her.
(6RT 335-336; 7RT 599-600.) The kiss was surprising and unwelcome,
and Jane 2 quickly pulled away. (7RT 600-603.) Nonetheless, appellant
followed Jane 2 around the party and attempted to kiss her again. (7RT
603.) Moreover, appellant testified that later, when he approached Jane 1 at
the party, he thought she looked very similar to Jane 2 and asked if they
were sisters. (9RT 872.) Thus, the jury could have inferred sexual interest
in Jane 2, which appellant transferred to Jane 1 when her sister was not
available.

51
Second, the jury also could have inferred that appellant intended to
rape Jane 1 based on the secluded location where the assault occurred.
Instead of continuing to kiss and “grind” (9RT 853) against Jane 1 at the
KA house, he took her away from the party where others could witness his
actions and intervene to protect Jane 1, led her down a path away from the
fraternity and a nearby dormitory, and engaged in the sexual activity in an
area near the dumpster—where eventually they were discovered. (See
People v. DePriest (2007) 42 Cal.4th 1, 48 [evidence sufficient to infer
intent to rape when defendant forced victim into a secluded area, namely, a
dumpster alcove].)
Third, the jury could have inferred that appellant acted with the intent
to rape based on the fact that he pulled up Jane 1’s dress and removed her
underwear (4RT 81-82, 92; 8RT 784). (See People v. Marshall (1997) 15
Cal.4th 1, 36 [inferring intent to rape when victim found with pants and
underwear pulled down]; People v. Leal (2009) 180 Cal.App.4th 782, 791
[inferring intent to rape when defendant removed victim’s underwear];
People v. Soto (1977) 74 Cal.App.3d 267, 278 [inferring intent to rape
based on removal of victim’s clothing from the waist down].) If, as
appellant contends, the only intended to “finger” or “dry hump” Jane 1,
there would have been no need to push up her dress and fully remove her
underwear.
Moreover, the jury could infer intent to rape based on appellant’s
admission that he “fingered” Jane 1 (9RT 851-852). (See People v. Leal,
supra, 180 Cal.App.4th at p. 791 [inferring intent to rape based on
defendant’s digital penetration of the victim]; People v. Soto, supra, 74
Cal.App.3d at p. 278 [same].) Although appellant claimed that the digital
penetration was the extent of his intended sexual activities, the jury was not
required to credit this assertion, particularly when it was belied by the

52
observations of Arndt and Jonsson, who witnessed appellant’s ongoing
sexual assault of the victim even after he had “fingered” her.
Fourth, the jury could have drawn a number of inferences based on
the observations of Jonsson and Arndt, who thwarted the attack. Arndt
testified that he saw appellant on top of the motionless victim, making
thrusting motions in a manner that suggested sexual activity. (4RT 138-
139.) Arndt characterized the thrusting as “pretty aggressive” and
distinctive enough that he and Jonsson were certain about the sexual nature
of the act from 20 to 30 feet away. (4RT 138-139, 158; 5RT 287-288 [“the
thrusting looked very sexual”].) Additionally, the evidence established that
Jonsson and Arndt disrupted appellant’s intended course of action. Jonsson
testified that appellant continued thrusting on top of Jane 1 until Jonsson
approached and asked in a loud voice what was going on. (6RT 293-295;
10RT 976-977 [Jonsson was 6 to 8 feet away when he questioned appellant
about what was going on].) Appellant made eye contact with Jonsson and
stood up. After Jonsson yelled, “what the fuck are you doing? She’s
unconscious!” appellant backpedaled and began to run. (6RT 295-297,
301.) Thus, the jury could have readily inferred that had he not been
interrupted, appellant would have completed the rape. As the California
Supreme Court has explained, the crime of assault with intent to rape is
complete when a defendant forms the intent to rape. That the would-be
rapist abandons his attack does not lessen his liability. “‘[I]f there is
evidence of the intent [to rape] and acts attendant to the execution of that
intent, the abandonment of that intent before consummation of the act will
not erase the felonious nature of the assault.’” (People v. Maury (2003) 30
Cal.4th 342, 399-400.)
Finally, the jury could have inferred that appellant acted with the
intent to rape based on his actions and demeanor when he was
apprehended. Rather than explain that he was engaged in a consensual

53
sexual encounter, appellant fled when he was confronted. (6RT 295-297,
301.) Although appellant testified that he fled because Jonsson grabbed his
arm, Jonsson testified that he did not touch appellant prior to tackling him
after he fled (9RT 856; 10RT 978-979). (See People v. Clifton, supra, 248
Cal.App.2d at p. 130 [inferring intent to commit rape when defendant “was
interrupted in the course of his attack, he ran away, thus indicating
consciousness of the commission of an offense”].) Additionally, appellant
did not attempt to explain his actions even after he was physically detained
by Jonsson and Arndt. (6RT 305.) Although Jonsson repeatedly said to
appellant, “you raped her” and “do you think its ok to rape her?,” appellant
again did not attempt to explain that the encounter had been consensual,
that the two were in route back to his dorm room, or that he believed that
Jane 1 had been enjoying the act (5RT 173; 6RT 305). (See, e.g., People v.
Simmons (1946) 28 Cal.2d 699, 712 [“when the accused stands mute in the
face of the accusation or responds with an evasive or equivocal reply . . .
acquiescence of the accused in the truth of the statement [may be
considered] as indicative of a consciousness of guilt”]; Evid. Code, § 413.)
Instead, Jonsson observed that appellant only seemed to smirk or smile in
response to the accusations. (5RT 173.) Furthermore, Officer Shaw, who
arrested appellant, noted that appellant had a prominent erection as he was
handcuffed and placed in the back of the patrol vehicle. (8RT 781.)
Appellant also argues that since his DNA was not found on Jane 1’s
underwear, she must have assisted in removing them and, therefore, must
have consented to sexual acts. (AOB 68-72.) That appellant can posit a
possible, though unlikely, inference to draw from the evidence does not
support his claim that the evidence was insufficient to sustain his
conviction. As the California Supreme Court has repeatedly explained, an
appellate court examining the sufficiency of the evidence on appeal does
not look to alternate inferences that can be drawn from the evidence.

54
Rather, its task is to determine whether the evidence supported the
inferences that the jury in fact drew from the evidence. (People v.
Rodriguez, supra, 20 Cal.4th at p. 12 [appellate court errs when it acts as an
“appellate fact finder,” substituting its own inferences for the equally
logical inferences that the jury could have drawn in reaching its verdict].)
Furthermore, as to appellant’s argument regarding Jane 1’s underwear, he
admitted in his own testimony that he removed them, not Jane 1. (9RT
851.) The DNA expert explained that the absence of appellant’s DNA from
the underwear could be due to a host of factors, ranging from how
extensive his contact with the garment was, to environmental factors like
the presence of dirt and debris. (7RT 494.) It did not mean that appellant
did not touch the underwear. Thus, although appellant thinks it was
exculpatory, the absence of his DNA on the waistband of Jane 1’s
underwear would have been largely irrelevant in the jury’s analysis.
Appellant’s reliance on People v. Greene (1973) 24 Cal.App.3d 622 is
unavailing. There, the court found insufficient evidence to support assault
with intent to rape where the defendant fondled the victim and told her he
wanted “to play with [her],” but did not remove his own clothing or expose
his genitals. (Id. at pp. 629, 650.) But that case is readily distinguishable.
In Greene, the assault occurred when the defendant approached the victim
and walked along side her, sticking his hand down the waist of her pants.
(Id. at p. 629.) The interaction lasted six or seven minutes, the victim
remained fully clothed, and she was able to flee and seek help. (Id. at pp.
629, 650.) Here, in contrast, the victim was naked from the waist down and
unresponsive. Unlike the assault in Greene, which happened in full view of
several houses on a suburban street, Jane 1 was taken to a secluded location
behind a dumpster. Furthermore, the defendant in Greene slipped his hand
down the victim’s waist band, whereas here, appellant was observed

55
aggressively thrusting his hips on top of Jane 1’s naked body and admitted
digitally penetrating her. Sufficient evidence supports count 1.
C. There Is Substantial Evidence that Appellant Knew or
Should Have Known that the Victim Was Intoxicated
to the Point of Unconsciousness

Pointing to testimony from Jane 1’s sister and friends that they did not
appreciate Jane 1’s level of intoxication, as well as evidence from the
defense expert, appellant argues there was insufficient evidence that he
knew or should have known that Jane 1 was too intoxicated to consent
(count 2) or that she became unconscious before the sexual acts began
(count 3).9 Contrary to appellant’s argument, there was substantial
evidence from which the jury could infer he knew or reasonably should
have known of Jane 1’s level of intoxication. Appellant observed Jane 1’s
conduct and demeanor. Later test results confirmed she had an extremely
high blood-alcohol level. There was expert testimony about how that BAC
level would affect a person’s conduct. Motro testified that Jane 1’s
intoxication was obvious to him based on the phone calls and text
messages. A recording of one of those voicemails was played for the jury.
Furthermore, there was Jane 1’s own testimony about the number of drinks
she consumed and her ensuing blackout.
More specifically, Alice King, a crime lab technician, extrapolated
that Jane 1’s BAC at 1:00 a.m. would have been between .241 and .249
percent, depending on the timing of the blood draw at the hospital. (7RT
553.) She also noted that this calculation likely underestimated Jane 1’s
level of intoxication, as it did not account for the intravenous fluids she was

9
Because the same evidence supports the conclusion that appellant
should have known that the victim was intoxicated, as required in count 2,
and that she was unconscious, as required in count 3, we discuss both
counts together.

56
given by paramedics. (7RT 580.) King further testified that a person with
a BAC level of .24 percent would have “a lot of mental impairment” and
would exhibit symptoms in the “phase three to phase four” range. (7RT
553.) Phase three symptoms include many objective signs of impairment
which would be obvious to others, such as problems with muscle
coordination, slurred speech, and staggering. (7RT 540-545.) Phase four
symptoms include the inability to walk or stand, extreme confusion, and
lack of awareness of surroundings. (7RT 540-545.) Although there is no
bright-line rule about the BAC level at which someone would blackout,
blackouts do commonly occur at BAC levels of .24 percent. (7RT 545.)
In addition to scientific evidence regarding Jane 1’s BAC levels,
Motro’s testimony provided first-hand observations about her degree of
intoxication. When they spoke on the phone at 11:54 p.m., he noted that
Jane 1 was “severely slurring” her words and was “incomprehensible.”
(5RT 248-249.) She did not seem to understand what he was saying to her,
and he ended the call because he could not communicate with her. (5RT
248-249.) He explained that based on her behavior on the call, he was
worried about her and sent her a text telling her to try to find her sister to
help her. (5RT 248-249.) He also testified about a second call, around
12:17 a.m., in which Jane 1 also was incomprehensible. (5RT 252.)
Significantly, the jury also heard the voicemail that Jane 1 left for Motro at
12:16 a.m., which Motro characterized as largely unintelligible. (5RT 251;
2CT 516-518.) Indeed, even the defense expert testified that the message
demonstrated that Jane 1 was “extremely intoxicated.” (8RT 754.) This
evidence was significant as it persuasively demonstrated the level of
intoxication that Jane 1 was displaying to others, as opposed to evidence
regarding her BAC level, which, although compelling, primarily measured
the internal effects of alcohol on her body.

57
The jury could also draw inferences regarding Jane 1’s level of
intoxication and consciousness based on Jonsson’s and Arndt’s testimony.
Both men testified that they could see from across the basketball court that
Jane 1 was completely motionless underneath appellant, with her arms and
legs splayed out, and this alarmed them given appellant’s aggressive
thrusting motions. (4RT 136-139; 5RT 156; 6RT 287-288.) When Arndt
checked on her as Jonsson chased appellant, he noted that she was
completely unresponsive and that he had to carefully check to make sure
she was still breathing. (5RT 165.) Additionally, when police and
paramedics arrived on the scene they noted that Jane 1 smelled of alcohol
and was unresponsive to very strong stimulus, including shouting and
shaking. (4RT 110-111; 7RT 514-515.) Furthermore, the jury could have
drawn inferences based on the injuries Jane 1 sustained during the assault,
including the abrasions on her body, as well as injuries to her labia. (6RT
373-377, 386, 389.) It is reasonable to infer that a person would not sustain
such injuries if they were participating in a consensual encounter and were
not heavily intoxicated or unconscious. Thus, based on this evidence the
jury reasonably could have inferred that appellant knew or should have
known that Jane 1 was intoxicated to the point of unconsciousness in the
moments before the two men intervened, when appellant sexually
penetrated her.
Finally, the jury also could infer that Jane 1 was intoxicated enough to
become unconscious based on her own testimony and that of her friends.
Jane testified that she consumed four shots of whiskey and a glass of
champagne prior to the party, three to four shots of vodka after she arrived
at the KA house, and part of a beer when she was on the back patio. (6RT
429-230, 433-434, 437.) She recalled that she was “very out of it,” and was
“vacant, not articulating much. (6RT 439.) She had no memory of talking
with appellant, of leaving the party with him, or consenting to sexual

58
activity. (6RT 456.) Maggioncalda, McCann, and Jane 2 also testified that
Jane 1 seemed very drunk at the time Jane 2 and McCann left the party.
(5RT 242 [Maggioncalda]; 6RT 338-339 [McCann]; 7RT 605 [Jane 2].)
Appellant relies on portions of the testimony by Jane 1’s friends and
sister noting that although Jane 1 was drunk, they did not worry about
leaving her at the party and believed she would be “fine.” He also argues
that Jane 1 was apparently less drunk that Trea, who the friends felt needed
to go lie down in Maggioncalda’s dorm room. Therefore, he argues,
because her close friends did not believe her to be incapacitated, there was
no evidence that he knew or should have know of her level of intoxication.
(AOB 65-66, 72-73.)
Appellant’s argument is misapprehends the evidence and the
applicable legal standards. Maggioncalda, McCann, and Jane 2 all noted
that they themselves were extremely intoxicated and were not reliable
evaluators of Jane 1’s level of intoxication. (5RT 242 [Maggioncalda];
6RT 338-339 [McCann]; 7RT 605-606 [Jane 2].) Moreover, this argument
is predicated on a flawed understanding of the legal standards applicable to
sufficiency of the evidence analysis. Although it might have been possible
to draw the inferences appellant suggests from the testimony of Jane 1’s
friends and sister, that does not mean that the contrary (and more logical)
inferences were not supported by the evidence. It is axiomatic “[t]hat the
evidence might lead to a different verdict does not warrant a conclusion that
the evidence supporting the verdict is insubstantial.” (People v. Holt
(1997) 15 Cal.4th 619, 669; see also People v. Rodriguez, supra, 20 Cal.4th
at p. 12.)
Appellant’s argument regarding Jonsson’s and Arndt’s observations
suffers from the same flawed reasoning. Specifically, he argues that the
fact that they observed Jane 1 motionless and unconscious does not
foreclose the possibility that she was a willing participant in the sex acts

59
that took place moments before. (AOB 68-71.) Even were that one
possible—though improbable—interpretation of the evidence, it would not
mean that the alternate and more logical inference, i.e., that Jane 1 was
already unconscious due to intoxication as appellant digitally penetrated
her, was unsupported by substantial evidence. (People v. Holt, supra, 15
Cal.4th at p. 669.) An alternative interpretation of the evidence proffered
on appeal is not a basis for a finding that the evidence at trial was
insufficient.
Appellant also argues that because there were no witnesses who
testified that they saw him drag Jane 1 from the party against her will, she
must have been sober enough to accompany him of her own volition.
(AOB 66 [“There was no testimony from any witness to the effect that they
saw appellant carry, drag, or otherwise maneuver an unwilling female for a
distance equivalent to the goal line of a football field to the 40-yard line”];
AOB 73.) Therefore, he reasons, she must have understood and consented
to the sexual activity. Again, this argument misapprehends the nature of
sufficiency review. On appeal, the court does not focus on the evidence
which might be “lacking in the prosecution’s case,” rather, it must focus on
the evidence that actually existed and determine whether that evidence
supports the verdict. (People v. Rodriguez, supra, 20 Cal.4th at p. 12.)
Moreover, contrary to appellant’s argument, that there were no witnesses to
how Jane 1 got to the place where she was eventually discovered
unconscious does not suggest an innocuous explanation for how she
travelled that distance. Indeed, the medical examination of Jane 1 reflected
she had multiple abrasions on her buttocks, on her neck below her left ear,
redness on her right clavicle and the base of her neck and tops of her
shoulders, and injuries to her mid-back and shoulder blade area. (6RT 373-
375, 377, 386.) The jury could readily infer that these injuries reflected
dragging some distance, nonconsensual movement, or body placement

60
while prone, irrespective of any absence of witness testimony. In any
event, even if she were not carried, dragged, or maneuvered, it does not
logically follow that she was willing and able to consent to sexual activity.
Finally, appellant points to the testimony of Dr. Fromme, the defense
expert on the effects of alcohol intoxication. (AOB 36-38, 72-75.) She
opined that even if a person drinks to the point of a blackout, i.e., they do
not remember events that occurred while they were drinking, it is possible
the person still could have been conscious and engaged in volitional
activities. (8RT 721.) A jury was not required to credit this testimony.
First, it was contrary to evidence by the prosecution expert, who explained
that persons at phases three and four of intoxication would display obvious
signs of impairment. (7RT 540-545.) Furthermore, the jury could have
decided that Dr. Fromme was not credible in light of the effective cross-
examination and her willful refusal to account for the victim’s receiving
intravenous fluids. (8RT 729, 731, 736.) When reviewing the sufficiency
of the evidence, appellate courts do not revisit credibility determinations
made by the jury or reweigh the evidence. (People v. Rodriguez, supra, 20
Cal.4th at p. 12.)
In sum, there was substantial evidence from which a reasonable jury
could infer that appellant acted with the intent to rape, and that he knew or
should have known of Jane 1’s level of intoxication and unconsciousness.
Therefore, sufficient evidence supports his convictions, and reversal is not
warranted.
III. THE COURT WAS NOT REQUIRED TO INSTRUCT ON ANY
LESSER-INCLUDED OFFENSES

Appellant argues that the trial court should have instructed on several
lesser included offenses to the charged crimes. (AOB 80-94.) As to count
1, he argues that the court should have instructed on simple assault. (§
240.) As to counts 2 and 3, he argues that the court should have instructed

61
on attempted sexual penetration, simple assault, and battery. (§§ 664, 289,
subds. (d) & (e), 240, 242.) Appellant’s claim is unavailing. There was no
evidentiary basis to instruct on these lesser-included offenses. Either the
jury believed appellant’s testimony describing a consensual sexual
encounter, in which case no crime occurred, or it believed the prosecution’s
evidence, in which case appellant was guilty of the offenses charged. There
was no evidence that appellant was guilty of some crime, but not the
offenses charged. Therefore, the trial court had no obligation to instruct on
any lesser-included offenses.
A. Legal Principles Regarding Instructing on Lesser-
Included Offenses

The law governing a trial court’s duty to instruct on lesser-included


offenses is well-settled. “‘[I]n criminal cases, even in the absence of a
request, the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence. [Citations.] The general
principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.’” (People v. Breverman (1998) 19 Cal.4th
142, 154-155.) “That obligation has been held to include giving
instructions on lesser included offenses when the evidence raises a question
as to whether all of the elements of the charged offense were present
[citation], but not when there is no evidence that the offense was less than
that charged.” (People v. Breverman, supra, at pp. 154-155.) This
obligation extends to cases to cases in which defense counsel fails to
request instruction on a lesser offense, and indeed, even if counsel objects
to such an instruction based on trial tactics. (Ibid.) “Just as the People
have no legitimate interest in obtaining a conviction of a greater offense
than that established by the evidence, a defendant has no right to an

62
acquittal when that evidence is sufficient to establish a lesser included
offense.” (Ibid; see also People v. Hicks (2017) 4 Cal.5th 203, 210.)
Nonetheless, “the existence of any evidence, no matter how weak will
not justify instructions on a lesser included offense, but such instructions
are required whenever evidence that the defendant is guilty only of the
lesser offense is substantial enough to merit consideration by the jury.”
(People v. Wyatt (2012) 55 Cal.4th 694, 698, internal quotations omitted.)
In determining whether the trial court was required to instruct on a lesser
included offense, the appellate court applies a de novo standard of review.
(People v. Licas (2007) 41 Cal.4th 362, 366.)
B. Background Regarding Jury Instructions

The trial court discussed the draft jury instructions with counsel in
chambers and then summarized the discussions on the record. (See 10RT
923 [court notes that it gave counsel a set of draft jury instructions for
discussion]; 2CT 425 [Clerk’s minutes from March 24 noting court held an
in chambers discussion of jury instructions with counsel].) Both counsel
submitted additional proposed instructions. (See 2CT 432-433 [proposed
prosecution instructions], 448 [pinpoint instruction proposed by the
defense].) On March 28, the court summarized the in-chambers discussion
regarding the instructions requested by each party and explained the
reconciled set of instructions it planned to give. (11RT 991-1000.) In
addition to the agreed-upon general instructions, the court also decided to
give a pinpoint instruction requested by the prosecution, outlining the legal
definition of penetration. (11RT 998; 2CT 444.) It also agreed to give a
modified version of the pinpoint instruction requested by the defense.
(11RT 1031.) Neither party requested instruction on any lesser-included
offenses, and did not object to the court’s proposed jury instructions, which
did not include any instruction on lesser-included offenses. (11RT 1038;
2CT 434-446 [final instructions given to the jury].)

63
C. The Court Had No Duty to Instruct on Simple Assault
as a Lesser Included Offense of Assault with Intent to
Commit Rape (Count 1)

In some circumstances, simple assault can be a lesser-included


offense of assault with the intent to commit rape. (See People v. Leal,
supra, 180 Cal.App.4th at p. 792 [simple assault is a lesser-included
offense].) Simple assault requires that “(1) the defendant did an act that by
its nature would directly and probably result in the application of force to a
person; (2) The defendant did that act willfully; (3) When the defendant
acted, he was aware of facts that would lead a reasonable person to realize
that his act by its nature would directly and probably result in the
application of force to someone; (4) When the defendant acted, he had the
present ability to apply force to a person.” (§ 240; CALCRIM No. 915.)
Assault with the intent to commit rape adds one element to the above,
requiring that “When the defendant acted, he intended to commit rape.” (§
220.)
Here, there was no evidence tending to show that only simple assault
had occurred, and thus no duty to instruct the jury on that offense. Simply
put, if the jury believed appellant’s testimony that Jane 1 was a willing
participant in sexual activity, then no crime occurred. If, however, the jury
believed the prosecution witnesses who testified that Jane 1 was obviously
and seriously impaired by alcohol, and that appellant was frightened away
by two bystanders who intervened in the midst of an assault and who
observed him thrusting in a sexually aggressive manner on Jane 1’s
unconscious, half-naked body, then he was guilty of the charged crime.
There was no basis in the evidence for the jury to believe that appellant
intended to assault Jane 1, but not sexually violate her.
Appellant’s argument on this point largely repeats his contention in
Argument II, ante, that there was insufficient evidence supporting his

64
conviction for assault with intent to commit rape. (See AOB 67-71.) As
detailed above in response to that argument, however, the evidence
established that appellant was interrupted in the midst of sexually assaulting
Jane 1, who was unconscious. His intent to rape was clear based on his
behavior at the party, including repeated unwanted advances on Jane 2
(6RT 335-336; 7RT 599-603), his decision to take Jane 1 to a secluded
location where she could not be seen or protected by others at the party, the
fact that Jane 1 was discovered with her dress pulled up and her underwear
removed (4RT 81-82, 92; 8RT 784), appellant’s admission that he
“fingered” her (9RT 851-852), the observations of Jonsson and Arndt, who
saw appellant aggressively thrusting on top of Jane 1’s unconscious, naked
body, (4RT 138-139, 158; 5RT 287-288), appellant’s flight from the scene,
and the arresting officer’s observations regarding appellant’s erection.
(8RT 781, 789).
Against this litany of evidence of appellant’s obvious intent to commit
rape, the defense relied on appellant’s alternate version of events.
Appellant testified that he and Jane 1 flirted at the party and kissed. (9RT
845-846.) According to appellant, he asked Jane 1 if she wanted to go to
his dorm room, and she said yes. (9RT 847-848.) As they walked down
the path toward his dorm, she slipped, grabbing appellant’s arm as she fell,
pulling him down on top of her. (9RT 850.) According to appellant, they
laughed and kissed while lying on the ground. (9RT 851.) He asked if he
could “finger” her, and she said yes and appeared to orgasm after one
minute. (9RT 852.)
In short, in appellant’s version of events, Jane 1 was a willing and
enthusiastic participant in the sexual activity. At no point in his testimony
did appellant contend that he touched Jane 1 against her will, but planned to
stop short of actually raping her. Thus, there was not substantial evidence
indicating that appellant was guilty of the lesser-included offense of simple

65
assault, but not the greater offense of assault with the intent to rape. The
jury either believed appellant, in which case it would have acquitted him, or
it believed the prosecution’s evidence, which convincingly demonstrated
that appellant acted with the intent to rape. Therefore, the court was not
required to instruct on the lesser included offense on count 1. (Cf. People
v. Williams (1992) 4 Cal.4th 354, 362 [no duty to instruct on good faith
mistaken belief in consent where the evidence showed two divergent
accounts with no middle ground—either true consent or rape].)
D. The Court Had No Duty to Instruct on Attempted
Penetration, Simple Assault, or Battery as Lesser-
Included Offenses to Sexual Penetration of an
Intoxicated or Unconscious Person (Counts 2 and 3)

Attempted sexual penetration, simple assault, and battery are in some


circumstances possible lesser-included offenses of sexual penetration of an
intoxicated person and sexual penetration of an unconscious person.
Sexual penetration of an intoxicated person requires evidence that “(1) The
defendant committed an act of sexual penetration with another person; (2)
The penetration was accomplished by using a foreign object; (3) The effect
of an intoxicating substance prevented the other person from resisting the
act; and (4) The defendant knew or reasonably should have known that the
effect of that substance prevented the other person from resisting the act.”
(§ 289, subd. (e); CALCRIM No. 1047.) Sexual penetration of an
unconscious person differs as to element (3)—it requires that “[t]he other
person was unable to resist because she was unconscious of the nature of
the act.” (§ 289, subd. (d); CALCRIM No. 1048.) Section 289,
subdivision (k), provides that “‘Sexual penetration’ is the act of causing the
penetration, however slight, of the genital or anal opening of any person.”
Penetration of the vagina is not required, penetration of the labia majora is
sufficient to complete the crime. (People v. Quintana (2001) 89
Cal.App.4th 1362, 1364.) Attempted sexual penetration, simple assault,

66
and battery are all possible lesser-included offenses of sexual penetration of
an intoxicated person and sexual penetration of an unconscious person.
(See People v. Ortega (2015) 240 Cal.App.4th 956, 965.)
Appellant’s contention that there was substantial evidence which
supported instruction on these lesser-included offenses is baffling, as it
would require jurors to reject his own testimony acknowledging that he
penetrated Jane 1’s vagina with his finger. On direct exam, appellant
testified:
Q: What happened after you [removed her underwear]?

A: I got back down on top of her, and I started kissing her


again, and then I fingered her.

Q: When you say you “fingered her,” did you put a finger from
your hand into her vagina”

A: Yes, I did.

(9RT 852.)
During the interview at the police station, appellant also told
Detective Kim that he had fingered Jane 1. (3CT 595.) The forensic
evidence was consistent with appellant’s account. Jane 1’s blood and DNA
were found under appellant’s fingernails on both hands and a finger of his
right hand. (7RT 494-495; see also 3CT 598 [appellant explained that he is
right-handed and that he used the fingers on his right hand to digitally
penetrate the victim].) The exam also revealed debris and vegetation
lodged in Jane 1’s labia minora. (6RT 377-378, 384-385.) Additionally,
Jane 1 had “significant trauma inside the labia minora,” that was consistent
with, but more extensive than, other typical cases where there had been
digital penetration. (6RT 389.)
Appellant acknowledges that he admitted digitally penetrating Jane 1,
but argues that he used the term “fingered” “colloquially” which is not
synonymous with legal definition of penetration. He also contends that

67
because he had consumed alcohol, he was somehow confused about the
nature of the act he performed. (AOB 88-90.) The record belies this
argument. Appellant testified clearly and unequivocally that he penetrated
Jane 1’s vagina with his finger. (9RT 852.) That admission was backed by
forensic findings. Even if appellant might have used the term “fingered” in
the colloquial sense, defense counsel’s follow-up questions demonstrated
that there was clearly more than the “slight penetration” of the outer labia
required under the statute (9RT 852). (See § 289, subd. (k).)
Moreover, the record demonstrates that although appellant had
consumed alcohol, he was not so intoxicated that he was unaware of the
nature of his acts. Based on samples drawn after his arrest, the forensics
expert estimated that appellant’s BAC level was .17 percent, consistent
with phase two symptoms of intoxication, including slurred speech and
trouble with coordination. (7RT 553.) The arresting officer noted that
appellant seemed fine and had no trouble walking to the patrol car. (8RT
780.) Furthermore, in his interview with Detective Kim hours after his
arrest, appellant stated that although he had been drinking, he was
functional and remembered the events of the evening:
Officer: Okay, [were you] like more drunk than normal, or is, is
this, can you can you function when you’re at this level [?]

Turner: Yeah

Officer: So—

Turner: Yeah, I mean I was functioning, like I was I mean, I was


just trying to like, have a good time with this girl.

(3CT 601.)

Turner: I—

Officer: Remember everything that happened[?]

Turner: Yeah, I—

68
Officer: so you weren’t like plastered, no[?]

Turner: No, I mean, I, like I, it, I, it’s fuzzy, but I remember it.

(3CT 606-607.)
Later in the interview, appellant again reiterated that although he was
intoxicated, he remembered everything that had occurred.
Officer: Ok. Understand. Um, you’re pretty drunk, but at the
same time you’re able to remember everything.

Turner: I mean, yeah, like most of everything, as I said, like I


yeah, it’s a little fuzzy in places, but yeah.

[¶]

Officer: Um, and then you also were able to take her underwear
off, and then, and finger her.

Turner: Mm-hmm.

Officer: And you clearly remember all that stuff, so that shows
that you were able to make that decision, “okay hey, you know,
things are going good, and this, you know, I think this is okay,
and so I’m gonna do this,” and you did. . . .

Turner: Yeah . . . .

(3CT 614-615.) Thus, the record demonstrates that while appellant was
intoxicated, he had a clear understanding and recollection of his actions that
night.
Appellant also contends that questions asked by the jury during
deliberations demonstrate that the jury was uncertain about whether
appellant understood the nature of his actions and support his argument that
the court should have instructed on lesser-included offenses on courts 2 and
3. (AOB 91-93.) Respondent disagrees. As explained in greater detail in
Argument V, post, appellant’s interpretation of the jury’s questions is not
supported by the record. Appellant’s own testimony conclusively
establishes that he was aware of the nature of his actions. (9RT 852 [“Q:

69
When you say ‘fingered her’ did you put a finger from your hand into her
vagina? [¶] A: Yes, I did”].) Rather, as will be shown below, the jury’s
questions demonstrate that it was focused on whether the degree of
penetration which occurred was legally sufficient to ground liability, not
whether penetration in fact occurred. Therefore, in light of appellant’s own
admission, and the forensic evidence consistent with that admission, there
was no substantial evidence supporting instruction on a lesser included
offense. (See People v. Breverman, supra, 19 Cal.4th at pp. 154-155.)
E. Any Error in Not Giving Instructions on Lesser
Included Offenses Was Harmless

The failure to instruct on a lesser-included offense does not require


reversal “unless an examination of the entire record establishes a reasonable
probability that the error affected the outcome.” (People v. Breverman,
supra, 19 Cal.4th at p. 165.) Here, even if the trial court should have
instructed on the lesser-included offenses, any error was harmless because
there was no reasonable probability that the jury would have convicted on
the lesser offenses, but not the greater. As to count 1, the evidence that
appellant assaulted Jane 1 with the intent to rape was overwhelming. He
engaged in sexually unwanted behavior at the party with Jane 2 and took
Jane 1 to a secluded location. (6RT 335-336; 7RT 599-603.) He admitted
to removing her underwear, fondling her breasts, and “fingering” her. (9RT
849-852.) He was found thrusting in an aggressively sexual manner on top
of her half-naked body. (4RT 138-139; 5RT 287-288.) When he was
arrested, officers observed that he had an erection. (8RT 781-789.)
Thus, even if the court had instructed on simple assault, there is no
reasonable probability that the jury would have convicted on that theory.
As to counts 2 and 3, appellant’s own clear and unequivocal testimony that
he penetrated Jane 1’s vagina with his finger forecloses the possibility that
the jury would have convicted him of any lesser-included offense on those

70
counts based on the absence of penetration. (See 9RT 851-852.)
Therefore, any error in declining to instruct on the lesser offenses of
attempted sexual penetration, simple assault, or battery, was harmless.
IV. THE PROSECUTOR DID NOT ENGAGE IN MISCONDUCT BY
ACCURATELY REFERRING TO THE LOCATION OF THE SEXUAL
ASSAULT

Appellant contends that the prosecutor engaged in misconduct by


noting in questioning and closing arguments that the sexual assault
occurred “behind a dumpster.” Although he acknowledges that the assault
took place near a dumpster enclosure, he characterizes the area as “a clean,
well-maintained area shaded by pine trees, typical of the sylvan Stanford
campus.” (AOB 94.) He claims the dumpster itself had been moved on the
night in question, thus, the prosecutor’s statement was inaccurate. He
argues that the prosecutor cajoled the first witness into using the phrase
“behind the dumpster” and then badgered subsequent witnesses to adopt the
same terminology in a “sustained campaign to indoctrinate the jurors.”
(AOB 106.) References to the dumpster were, he contends, intended to
imply an attempt to shield his activities and to create associations of squalor
and moral depravity. (AOB 108-109.)
Contrary to appellant’s argument, the prosecutor did not commit
misconduct by noting that the assault occurred behind a dumpster. Every
percipient witness used the dumpster or dumpster enclosure as a reference
point to describe the location where the assault occurred. The witnesses
independently characterized the location of the assault relative to the
dumpster and marked the location on numerous maps and photographs.
Furthermore, and contrary to the suggestion that the prosecutor
somehow invented this invidious characterization of the location, the record
shows that officers and other first responders noted the assault occurred
behind the dumpster when responding to the scene. Indeed, appellant in his

71
testimony himself noted the (purportedly consensual) encounter occurred
behind the dumpster. Therefore, because the prosecutor’s comments
reflected the testimony and the evidence, they did not infect the trial with
unfairness and do not constitute a deceptive or reprehensible attempt to
persuade the jury. There was no misconduct under state or federal law.
A. Legal Principles Regarding Prosecutorial Misconduct

Prosecutorial misconduct can violate either federal or state law.


‘“When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent
conviction a denial of due process, the federal Constitution is violated.”’
(People v. Shazier (2014) 60 Cal.4th 109, 127.) “Prosecutorial misconduct
that falls short of rendering the trial fundamentally unfair may still
constitute misconduct under state law if it involves the use of deceptive or
reprehensible methods to persuade the trial court or the jury.” (Ibid.)
“Misconduct that does not constitute a federal constitutional violation
warrants reversal only if it is reasonably probable the trial outcome was
affected.” (Ibid.)
Although it is misconduct for the prosecutor to refer to facts not in
evidence, prosecutors have wide latitude to discuss and draw inferences
from the evidence at trial. (People v. Hill (1998) 17 Cal.4th 800, 828
[prosecutor may not refer to facts not in evidence]; People v. Lucas (1995)
12 Cal.4th 415, 473-474 [prosecutor has wide latitude to draw inferences
from evidence].) “When attacking the prosecutor’s remarks to the jury, the
defendant must show that, ‘[i]n the context of the whole argument and the
instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, the court
“do[es] not lightly infer” that the jury drew the most damaging rather than
the least damaging meaning from the prosecutor’s statements.’” (People v.

72
Centeno (2014) 60 Cal.4th 659, 667 [court should not infer the most
damaging meaning from prosecutor’s closing argument].)
B. Testimony Regarding the Location of the Assault

Deputy Taylor was the prosecution’s first witness, and one of the first
officers on the scene. (4RT 75-76.) As he arrived on the scene, he was
greeted by two men who told him that the unconscious person who
prompted their call was down the access driveway. (4RT 77-78.) Deputy
Taylor described the area he was directed to: “the access driveway slopes
down to a—the enclosure with a dumpster and some grass area with a
couple of pine trees near the dumpster . . . .” Deputy Taylor also marked
the location on a diagram which was admitted as prosecution exhibit 1.
(4RT 76-77.) The dumpster enclosure, he explained, was a three-sided
structure with a wood fence and no roof. (4RT 86.) Sometimes, the
enclosure was used to store golf carts or bicycles, and the dumpster itself
was moved to the side of the enclosure, as it was on the night of the assault.
(4RT 86.)
Deputy Taylor explained the route he took from the access road to the
location of the victim, noting, “I came down on the right side as I was
facing the dumpster and walked around to the left on the backside of the
dumpster.” (4RT 77-78.) “As I came down behind the dumpster, I noticed
that there was a female subject lying on the ground. She was facing the
Kappa Alpha house. So she was actually facing away from me as I came
down behind the dumpster. Her head was closest to the dumpster enclosure
and her feet were furthest away from it.” (4RT 81-82.) He also
authenticated several photographs as accurate depictions of where he found
Jane 1, and he described the area. (4RT 85-86 [authenticating Exhibit 7, a
photograph of the scene, and stating, “this is the bottom of the access
driveway with the dumpster right next to the wooden fence that’s
around . . . that’s the enclosure that usually surrounds the dumpster.

73
Sometimes there’s golf carts or bicycles also parking there, which is
probably why this dumpster is moved to the left”]; see also 2CT 491
[Exhibit 7].) After he discovered the victim, he used his police radio to
contact other officers, explaining that he “had located the female subject
behind the dumpster in between [Jerry house and the KA house].” (8RT
775.)
A paramedic also described the location where he first encountered
Jane 1. He explained that he made contact with the patient at 1:14 a.m.,
and that “the patient was located behind—She was outside behind these
dumpsters just on the ground.” (7RT 512-513.)
Jonsson and Arndt also provided detailed testimony about the location
where they first observed the victim. Unlike the police officers and
paramedics, who approached from the road in front of the KA house, they
approached from a bike path that ran behind the house. (4RT 131; 6RT
280.) Arndt explained that they first noticed the two people as he and
Jonsson crossed the basketball court, which was located between the bike
path and the back of the KA house. (5RT 134.) Because they approached
KA house from the back, there was nothing blocking their view of
appellant and Jane 1. (5RT 150; 6RT 283-284.) He noted, however, that
people who were outside the KA house would not have been able to see
what was happening because “there was also a dumpster blocking this view
partially.” (5RT 167.) The prosecutor asked Arndt a series of questions to
clarify the location he and Jonsson observed Jane 1.
Q: Okay, so I’m trying to understand. Where was she lying in
relation to the dumpster?

A: Sure. So she was lying straight behind it.

Q: Okay.

A: With her head facing it.

74
Q: With her head facing—

A: Dumpster.

(5RT 168.)
Arndt also authenticated a number of photographs, marked as exhibits
11 through 13, showing Jane 1 lying on the ground near the dumpster.
(5RT 169-170.) Finally, both Arndt and Jonsson authenticated several
photos that were taken during daylight hours. (5RT 180-186; 6RT 288-
290.) Arndt marked the location where he observed Jane 1 in exhibits 24
through 28. (2CT 510-516.) Jonsson marked the same location in exhibits
32 through 34. (6RT 289-296; 2CT 522-526.) In each of the photos, the
men indicated that they observed Jane 1 behind the dumpster enclosure, on
the side that would not have been visible to partygoers. (5RT 186; 6RT
289-296; 2CT 510-516, 522-526.)
C. Appellant Has Forfeited His Claim of Prosecutorial
Misconduct

Appellant forfeited his claim that the prosecutor committed


misconduct in referring to the location of the assault as behind the dumpster
because defense counsel did not object to this term at trial and did not
request an admonition. Indeed, defense counsel himself repeatedly referred
to the location of the assault in relation to the dumpster. (9RT 849 [“Q:
Did you in fact walk with her along the path and then leave the concrete
path to walk in front of the dumpster?”], 910 [“If you had wanted to find
some place on the ground between KA house and your room to lie down
and have sex with a girl, would you have chosen right by that dumpster?”].)
“As a prerequisite for advancing a claim of prosecutorial misconduct, the
defendant is required to have objected to the alleged misconduct and
requested an admonition ‘unless an objection would have been futile or an
admonition ineffective.’” (People v. Shazier, supra, 60 Cal.4th at p. 127.)

75
Appellant acknowledges that defense counsel failed to object to the
prosecutor’s use of the term, but claims that an objection in the trial court
would have been futile. He argues that the damaging nature of the
reference would not have been apparent in the initial formulations of the
prosecutor’s questions, and would only become so later on, as she cross-
examined appellant and made a closing statement. By that point, he
contends, an objection would have been futile. (AOB 107.) Contrary to
appellant’s argument, an objection would not have been futile. Appellant
points to nothing in the record indicating that the trial court consistently
overruled defense objections, or was generally unwilling to admonish the
jury. (Cf. People v. Hill, supra, 17 Cal.4th at pp. 820-821 [objection would
have been futile in light of trial court’s repeated rejection of objection on
the same ground].) Therefore, there is no reason to assume that the trial
court would not have considered an objection on this basis. Thus, because
appellant failed to object in the trial court, he has forfeited this claim on
appeal.
D. There Was No Misconduct Because the Prosecutor
Accurately Referred to the Location of the Assault

The prosecutor did not engage in misconduct by referring to the


sexual assault as occurring “behind the dumpster.” It is axiomatic that a
“prosecutor ‘enjoys wide latitude in commenting on the evidence, including
the reasonable inferences and deductions that can be drawn therefrom.’”
(People v. Collins (2010) 49 Cal.4th 175, 230.) Here, all of the percipient
witnesses used the dumpster as a convenient marker to describe the location
of the assault. (See 4RT 85-86; 5RT 168; 7RT 512-513; 8RT 775.)
Although on the night of the assault the dumpster itself had been moved to
the side of the enclosure, it was still located in close proximity to the
dumpster enclosure, as described by Deputy Taylor and shown in numerous
photos. (4RT 85-86 [Deputy Taylor describes the location of the

76
dumpster]; 2CT 481-483, 487 [nighttime photos of scene of assault], 491
[photo of dumpster to the immediate left of dumpster enclosure on the night
of the assault]; 497-499 [daytime photos of the scene].) Thus, the
prosecutor’s use of the phrase “behind the dumpster” was not a
mischaracterization of the evidence, as it was taken directly from the
descriptions provided by the witnesses and photographs of the scene.
Indeed, is unclear how appellant thinks the prosecutor should have
referred to the location, if she were not to have used the phrase “behind the
dumpster.” Defense counsel made no in limine motions on this point, and,
as noted, used the phrase himself during his direct examination of appellant
at trial. (9RT 849, 910.) Referring to the area as “behind the dumpster
enclosure,” or “near the dumpster,” which appellant seems to suggest is a
more accurate statement, hardly seems to ameliorate the negative
connotations he now posits.
Appellant contends that the prosecutor somehow suggested the phrase
“behind the dumpster” to Deputy Taylor, and then seized upon his adoption
of her terminology to influence other witnesses to use the same phrase.
(AOB 99-105.) Contrary to appellant’s argument, the record shows that
Deputy Taylor and other first responders noted that the assault occurred
behind the dumpster from the moment they responded to the scene. (See
8RT 775 [Deputy Taylor described the scene of the assault as “behind the
dumpster” when radioing for assistance from other officers]; 7RT 512-513
[paramedic noted that he found the patient behind the dumpster].) Indeed,
in his interview of appellant after his arrest, Detective Kim noted that “I’m
gettin’ [information] from the other deputies. Um . . . from their viewpoint,
it didn’t look good, okay? [¶] you guys behind the dumpster, in the dark,
on the ground, in a bed of pine needles . . . ?” (2CT 614.)
Appellant also contends that the use of the phrase “behind the
dumpster” during the examination of Jonsson and Arndt was misleading,

77
because from their perspective, the assault was occurring in front of the
dumpster. (AOB 99-100.) However, Jonsson and Arndt were clear that
they approached the KA house from behind, i.e., the opposite direction as
the police. (4RT 131; 6RT 280.) Arndt specifically noted that the
dumpster would have blocked the view of the most likely witnesses,
namely other partygoers at the KA house. (5RT 167.) Moreover, they both
marked numerous photographs showing the location of the assault behind
the dumpster enclosure, the side farthest away from the KA house. (5RT
180-186; 6RT 288-296; 2CT 510-516, 522-526.)
Appellant also notes that the prosecutor repeatedly used the phrase
“behind the dumpster” during closing arguments, in what appellant
contends was an attempt to suggest moral depravity and to evoke an image
of squalor in the minds of the jury. (AOB 101-104.) The record
demonstrates that the prosecutor effectively marshalled all the evidence and
made a compelling closing argument—one that was well within the bounds
of zealous advocacy. As discussed above, the prosecutor was merely
drawing on the descriptions provided by witnesses, and on the numerous
photographs admitted as exhibits. As the California Supreme Court has
explained, “[a] criminal prosecutor has much latitude when making a
closing argument. Her argument may be strongly worded and vigorous so
long as it fairly comments on the evidence admitted at trial or asks the jury
to draw reasonable inferences and deductions from that evidence.” (People
v. Seumanu (2015) 61 Cal.4th 1293, 1330.) Therefore, the prosecutor’s
argument, which was forceful but appropriately based on the evidence
adduced at trial, was proper.
E. Any Error in the Use of the Term Dumpster Was
Harmless

Even were appellant able to establish that the prosecutor improperly


referred to the assault as occurring behind the dumpster, any error was

78
harmless under both the state and federal standards. The comment neither
infected the trial with unfairness in violation of federal due process
guarantees nor did it represent a deceptive or reprehensible attempt to
persuade the jury, constituting error under state law. (People v. Shazier,
supra, 60 Cal.4th at p. 127; People v. Gonzales (2011) 52 Cal.4th 254,
305.)
As noted, the witnesses testified about the location of the assault,
marked it on a diagram, and on dozens of photographs. (See, e.g., 2CT
481-483, 487, 510-516, 522-526.) The jury was also shown photographs
taken in the immediate aftermath of the assault, showing Jane 1 lying on the
ground near the dumpster as she was treated by paramedics. (See 4RT 95-
96.) “Whether the inferences drawn by the prosecutor were reasonable was
a question for the jury to decide.” (People v. Lucas, supra, 12 Cal.4th at p.
474.) Thus, the jury could evaluate for itself the accuracy of the
prosecutor’s statement that the assault occurred behind the dumpster.
Additionally, the court instructed the jury that “nothing that the attorneys
say is evidence . . . . Only the witnesses’ answers are evidence.” (2CT 436;
CALCRIM No. 222.) On appeal, the reviewing court presumes that the
jury followed the court’s instructions. (People v. Doolin, supra, 45 Cal.4th
390, 444.)
Finally, the evidence of appellant’s guilt was compelling. Jane 1
testified that she had been drinking heavily on the night of the assault, and
her high level of intoxication was confirmed by the BAC tests conducted
when she arrived at the hospital. (6RT 429-430, 433; 7RT 581.) Calls and
text messages exchanged with her boyfriend, Motro, viscerally
demonstrated to jurors that she was too intoxicated to consent. (5RT 248-
251; 2CT 517-518.) Moreover, Arndt’s and Jonsson’s testimony was
extremely persuasive. (4RT 136-139; 5RT 158; 6RT 287-288, 293-295.)
In contrast, appellant’s version of events, i.e., that Jane 1 was a willing

79
participant in sexual activity, was inherently improbable and belied by the
evidence. Therefore, even if the prosecutor had used some other term to
describe the location of the assault, there is no reasonable probability that
the jury would have reached a different result. For the same reasons, the
phrase did not infect the trial with unfairness in violation of federal due
process guarantees. (People v. Shazier, supra, 60 Cal.4th at p. 127.)
V. THE TRIAL COURT DID NOT ERR IN RESPONDING TO THE
JURY’S QUESTIONS

Appellant contends that the trial court erred in responding to a series


of questions sent by the jury during deliberations. He claims that both the
process by which the court addressed the questions and the substantive
responses it gave constituted error. Contrary to appellant’s argument, the
court properly addressed the questions—both in form and in substance.
A. Legal Principles

Section 1138 provides that “if [the jurors] desire to be informed on


any point of law arising in the case, they must require the officer to conduct
them into court” and the court should provide the information after
consulting with counsel. While this section imposes a duty to clear up
confusion expressed by the jury, it “does not mean the court must always
elaborate on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under section 1138 to
determine what additional explanations are sufficient . . .” (People v.
Beardslee (1991) 53 Cal.3d 68, 97; see also People v. Eid (2010) 187
Cal.App.4th 859, 881-882.) The trial court’s response to jury questions are
reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
746-747.) The trial court abuses its discretion if it refuses to offer any
further instruction without first considering how it can best aid the jury.
(See People v. Beardslee, supra, 53 Cal.3d at p. 96.) However, the trial
court does not abuse its discretion when it determines the best way to aid

80
the jury is by directing the jury to reread the applicable jury instructions.
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.) Additionally, the court
need not give the jury more information than it asks for. (People v.
Anthony (1912) 20 Cal.App. 586, 595.)
B. The Jury’s Questions and the Court’s Responses

The jury began deliberations at 9:10 a.m. on February 29. (2CT 462.)
At 3:10 p.m. on the same date, the jury asked for read back of testimony by
SART nurse Kristine Setterlund. (2CT 457 [question No. 1].) The next
morning at 8:55 a.m., before the requested read back occurred, the jury sent
a second note clarifying that it only wanted to hear the testimony related to
exhibits 56 through 63, not the entirety of Setterlund’s testimony. (2CT
464 [question No. 2].) These exhibits included photographs of Jane 1’s
injuries taken during the exam, as well as Setterlund’s report recording her
findings. (6RT 381-389.) After conferring with both counsel, the court
arranged for the requested read back. (13RT 1152-1153.)
Later in the afternoon at 1:10 p.m., the jury sent another note:
With regard for count/ Count 3, last paragraph 1048A. If the
defendant did not believe he was penetrating the victim, did he
have the mental state to commit the crime.

If the defendant did not know or mistakenly believe[d] his act


was not penetration, does it negate the required mental state to
commit the crime under Count 3.

(2CT 465 [question No. 3].) 10 The court conferred with both counsel in
chambers about how to respond to the note and summarized the discussion

10
The last paragraph of CALCRIM No. 1048A provides:

The defendant is not guilty of this crime if he did not have the
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
(continued…)

81
on the record. (13RT 1153.) At 1:35 p.m., with the assent of both counsel,
the court replied in writing asking for clarification of the question. (13RT
1153; 2CT 475.) In the court’s response, it explained what it believed the
question to be (omitting the lined-out phrases), and asked for clarification.
The court wrote:
We need clarification of your question. Is the question
accurately rephrased as: If the defendant did not know his act
was penetration, or if the defendant mistakenly believed his act
was not penetration, does it negate the required mental state to
commit the crime under Count 3? Please respond in writing on
a juror question form.

(2CT 466.)
At 1:41 p.m., the jury sent another note, rephrasing their original
question as suggested by the court.
If the defendant did not know his act was penetration, or if the
defendant mistakenly believed his act was not penetration, does
it negate the required mental state to commit the crime under
count 3?

(2CT 467, 475 [question No. 4].) At 1:55 p.m., after conferring with
counsel and with their assent, the court replied in writing to the jury’s note.
(13RT 1153; 2CT 475.)
No. The last paragraph of Instruction 1048A applies to Element
4 of the Instruction, which contains the required mental state: the
People must prove that the defendant knew that the other person

(…continued)
them to be, he did not commit this crime. If you find that the
defendant believed that the person was conscious of the nature
of the act, he did not have the mental state required for this
crime. If you have reasonable doubt about whether the
defendant had the mental state required for this crime, you must
find him not guilty of this crime.

(2CT 444.)

82
was unable to resist because she was unconscious of the nature
of the act.

(2CT 468.)
At 2:34 p.m., the jury sent another question to the court. (2CT 476.)
Is touching/contact with the inner Labia Majora or Labia Minora

Is contact with the inner lining of the Labia Majora or any


portion of the Labia Minora considered penetration?

(2CT 469 [question No. 5].) At 3:06 p.m., after conferring with counsel
and with their assent, the court wrote a response to the jury’s note. (13RT
1153-1154; 2CT 476.)
Sexual penetration means penetration, however slight, of the
genital or anal opening of the other person for the purpose of
sexual abuse, arousal, or gratification. Penetration of the genital
opening refers to penetration of the labia majora, not the vagina.
Penetration of the external genital organs is sufficient to
constitute sexual penetration.

(2CT 470.)
Shortly thereafter, at 3:55 p.m., the jury informed the court that it had
reached a verdict, convicting appellant as charged. (13RT 1154; 2CT 476.)
C. The Court Did Not Err in Responding to the Jury’s
Questions

1. The process by which the court answered the


jury’s questions was permissible

Appellant contends that the trial court erred by responding to the


jury’s questions in writing, rather than “conduct[ing] [the jurors] to court”
and orally answering the questions. (AOB 115-116; see § 1138.) Contrary
to appellant’s argument, the trial court’s procedure was permissible and
addressed the concerns about ex parte communication with the jury that
section 1138 was designed to address. Moreover, defense counsel
consented to this procedure, waiving any objection to the alleged
irregularity.

83
As explained in People v. Bradford (2007) 154 Cal.App.4th 1390,
section 1138 is designed to address concerns about private communications
between the judge and jury, which might deprive a defendant of the right to
have counsel present at all critical stages of the trial. (Id. at pp. 1412-
1413.) As the California Supreme Court has explained, the rule against
private communications between the judge and jury concerning any
question from the jury “is based on the precept that a defendant should be
afforded an adequate opportunity to evaluate the propriety of a proposed
judicial response in order to pose an objection or suggest a different reply
more favorable to the defendant's case.” (People v. Jennings (1991) 53
Cal.3d 334, 384.)
Here, although the court responded in writing to the jury’s questions
rather than orally in court, its response addressed the concerns reflected in
section 1138. The court discussed each question in chambers with both
counsel present and gave them the opportunity to make suggestions as to
the proposed response. (13RT 1152-1154.) Subsequently, the court
summarized the discussions on the record and gave counsel the opportunity
to note objections. (13RT 1154-1155.) Neither counsel objected to this
procedure, nor lodged any objection to the court’s substantive answers.
(13RT 1154 [defense counsel concurred in the court’s responses to the
jury’s questions and had no objections to the procedure adopted].) The
procedure adopted by the court of responding in writing might have been
preferable for several reasons. It likely promoted efficiency in deliberations
by not requiring the jury to keep coming back and forth to the courtroom.
It also allowed for greater precision—both in the jury’s question and in the
court’s response—by making sure that questions and answers conveyed
exactly what each party intended. Indeed, the multiple cross-outs visible in
the jury’s questions indicate that it was preferable to allow them to write

84
(and revise) the questions on paper, rather than try to articulate the
questions in open court.
In any event, defense counsel’s assent to this procedure amounted a
waiver of any irregularity. (People v. Roldan (2005) 35 Cal.4th 646, 729,
disapproved of on other grounds by People v. Doolin, supra, 45 Cal.4th at
p. 432 [defense counsel’s silence in response to court’s proposed answer to
jury question waives any objection under section 1138]; People v. Barrios
(2008) 163 Cal.App.4th 270, 279 [defense counsel agreed on the record to
court’s proposed procedure of responding to juror notes in writing, waiving
any error].)
2. The court did not err in its clarification of the
jury’s question

Appellant claims that the trial court erred in failing to adequately


clarify the jury’s third question, regarding appellant’s awareness of the act
of penetration and, as a result, gave an answer that was not responsive to
the question. (AOB 117-121). Contrary to appellant’s argument, the trial
court fulfilled its obligation to assist the jury in response to its question, and
the substance of the response effectively addressed its query.
Appellant observes that the jury’s note asked about the mental state
required for conviction under § 289, but that that section actually requires
three separate mental states, i.e., (1) the general intent to commit the act of
penetration; (2) the specific intent to act for purposes of sexual abuse,
arousal, or gratification; and (3) the knowledge that the other person was
unconscious. (AOB 113.) Appellant contends that the trial court erred in
failing to clarify to which of the three mental states the jury’s question
pertained before responding. (AOB 117-119.) He relies on McDowell v.
Calderon (9th Cir. 1997) 130 F.3d 833, 836, a Ninth Circuit case finding
error in the trial court’s response to a jury question about how to weigh
mitigating and aggravating factors in the penalty phase of a capital case.

85
McDowell is inapposite, however, because there the trial court essentially
declined to address the question at all, instead telling the jury to go back
and read the instructions. (Ibid.)
Here, in contrast, the court took an active role in responding to the
jury’s question, and its response was not an abuse of discretion. (See
People v. Beardslee, supra, 53 Cal.3d at p. 97 [“the court has discretion
under section 1138 to determine what additional explanations are sufficient
to satisfy the jury’s request for information”].) After conferring with
counsel, the court wrote back to the jury, reframing its question to get at the
crux of the jury’s concern and asking the jury if this interpretation was
accurate. (2CT 466.) The jury, obviously agreeing that the court’s
reframing was helpful, largely adopted the phrasing suggested by the court
when it sent its next question. (2CT 467.) The court did not “figuratively
throw up its hands and tell the jury it cannot help.” (People v. Beardslee,
supra, 53 Cal.3d at p. 97.) Rather, it engaged in a thoughtful exchange
with the jury in an attempt to ascertain the meaning of the question. The
response was apparently useful, as the jury did not ask further follow-up
questions on this point, or tell the court that its reframing was inaccurate.
(See Weeks v. Angelone (2000) 528 U.S. 225, 234 [“Had the jury desired
further information, they might, and probably would, have signified their
desire to the court].)
3. The substantive response to the jury’s question
was correct

Appellant claims that the court’s answer to the jury’s question, which
informed the jury that in order to convict it had to find that appellant knew
that Jane 1 was unable to resist because she was unconscious, was not
responsive to the jury’s question. (AOB 119-121; see 2CT 468.) He
argues that the jury’s question revealed that it was unsure whether appellant

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knew that penetration occurred, i.e., whether he had the general intent to
commit the act of penetration.
Appellant has waived this claim by not objecting to the court’s
construction of the question and its proposed answer (13RT 1153-1154
[defense counsel concurred with court’s interpretation of the question and
its proposed response]). (People v. Boyette (2002) 29 Cal.4th 381, 430
[defense counsel’s failure to object to court’s proposed response to jury
question fails to preserve the issue for appeal].)
Even had appellant preserved his claim, appellant’s interpretation of
the jury’s question is unreasonable in light of the record as a whole. In the
initial draft of the question, the jury specifically noted that its question
pertained to “the last paragraph, [CALCRIM No.] 1048A.” (2CT 465.)
That paragraph begins with a general statement about the effect of a
mistake of fact, but focuses primarily on a defendant’s awareness of
whether the victim was conscious of the nature of the act. (2CT 444 [“If
you find that the defendant believed that the person was conscious of the
nature of the act, he did not have the mental state required for this crime”].)
Thus, the court correctly answered by explaining that the last paragraph of
CALCRIM No. 1048A pertains to a defendant’s awareness of whether the
victim was conscious of the nature of the act, not to his awareness of the
degree of penetration.
Additionally, appellant’s interpretation of the question is untenable in
light of his own clear and unequivocal testimony at trial that he was aware
of the nature of his act of penetrating Jane 1’s vagina with his finger. (9RT
852 [“Q: When you say you ‘fingered her,’ did you put a finger from your
hand into her vagina? A: Yes, I did.”].) This admission was consistent
with the findings of the SART exam. Thus, based on the evidence, the jury
could not have entertained the notion that appellant was unaware of the
nature of his act i.e., he did not know that he was penetrating the victim’s

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genitals and, therefore, lacked the general intent necessary to commit the
crime.
Appellant’s suggestion that the question went to a possible mistake of
fact defense requiring instruction is incorrect. First, the legal doctrine of
mistake of fact defense, as now advanced by appellant, is one in which a
claimed mistake of fact undermines the mens rea—namely, the facts as
understood by the defendant reflect that he did not have a culpable mental
state (e.g., a defendant admitting to taking an object in the mistaken belief it
was abandoned, such that he admits the actus reus but lacks the mens rea of
intent to steal). (See generally People v. Lawson (2013) 215 Cal.App.4th
108, 115-117.) Appellant’s theory does not fall within the mistake of fact
doctrine because the purported mistake goes only to the actus reus, not to
the mens rea—i.e., when the defendant said he fingered Jane 1, he did not
actually mean that he committed the act of penetration required under the
definition of the statute. That claim presents purely a factual question for
the jury, and has no impact on the issue of mens rea and does not trigger
any obligation on the court to further instruct on that issue.
Second, to the extent appellant suggests that that his purported
mistake goes to the mens rea needed for penetration, the court was
statutorily precluded from offering further instruction appellant now claims
was required. As appellant acknowledges (AOB 113), the mental state for
the penetration element is general intent. The only proffer by appellant as
to the basis for his purported mistake—i.e., whether he thought he had, or
had not, fully penetrated Jane 1—was his state of voluntary intoxication.
(AOB 89-90 [“Those references to ‘fingering’ must be read in the context
of appellant’s other statements and testimony that he was quite intoxicated
at the time of the incident ….”].) Voluntary intoxication, however, cannot
serve as a basis for negating the general intent mens rea needed for the
penetration, nor can it serve as the basis for indirectly negating general

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intent through a claim of mistake of fact. (§ 29.4; People v. Lawson, supra,
at p. 115 [explaining that to negate general intent, the mistake of fact must
be both actual and objectively reasonable]; People v. Scott (1983) 146
Cal.App.3d 823, 832 fn. 4 [“Had defendant’s delusions resulted from
voluntary intoxication, his mistake of fact could not be considered
reasonable”].) Accordingly, even under appellant’s interpretation, the court
correctly declined to instruct on mistake of fact related to the mens rea of
penetration.
A more likely interpretation of the question is that the jury believed
that appellant intentionally penetrated Jane 1’s genitals, as he testified, but
was unsure whether the degree of penetration was legally sufficient to
complete the crime. In fact, the jury’s next question, asking about whether
contact with the labia majora and the labia minora is sufficient,
demonstrates that the sufficiency of the penetration, not whether appellant
was aware of the fact of the penetration, was the root of its focus. (2CT
468.) Moreover, that the jury reached a verdict shortly after receiving the
court’s answer about the degree of penetration required. This supports the
understanding that the jury sought clarification about the legal sufficiency
of the act of penetration, not whether appellant was aware it had occurred.
(2CT 476 [jury received court’s response to question at 3:06 p.m., and
informed the court it had reached a verdict at 3:55 p.m.].)
Finally, and significantly, defense counsel concurred with the trial
court’s interpretation of the question and the court’s proposed response.
(13RT 1153-1154 [defense counsel agrees with the court’s summary of in-
chambers discussion regarding interpretation and response to the
question].) Not only does trial counsel’s agreement with the court’s
approach act as a waiver, it bolsters the conclusion that the trial court’s
interpretation of the question and subsequent answer were correct. As the
United States Supreme Court observed in a case where trial counsel did not

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object to the court’s response to a jury question, “[i]t also appears that
petitioner’s attorneys did not view the judge’s answer to the jury’s question
as a serious flaw in the trial at that time . . . And the low priority and space
which his counsel assigned to the point in his [state court appeal] . . .
suggests that the present emphasis has some of the earmarks of an
afterthought.” (Weeks v. Angelone, supra, 528 U.S. at pp. 236-237.)
Appellant relies on two Court of Appeal cases and a Ninth Circuit
case in support of his argument that the court erred in responding to the
jury’s questions. But those cases do not help him. In People v. Giardino
(2000) 82 Cal.App.4th 454, the appellate court found that the trial court
erred in declining to explain the concept of “resistance” in the context of
rape of an intoxicated person, instead telling the jury to use their “common
sense and common experience” definition of the word. The appellate court
reasoned that the court should have at least attempted to provide the jury a
legal definition of the concept, rather than effectively declining to answer
the question. (Id. at pp. 464-466.) Here, in contrast, the court correctly
informed the jury as to the legal requirement that appellant know that the
victim was unconscious as to the nature of the act in order for the jury to
convict.
Similarly, People v. Ross (2007) 155 Cal.App.4th 1033 is unhelpful to
appellant. There, the appellate court found that the trial court erred in
declining to provide a definition of “mutual combat” in response to the
jury’s question. (Id. at pp. 1047-1048.) The appellate court reasoned that
the term was “not only ambiguous but a misnomer” because the important
aspect of the doctrine, in terms of asserting a defense, was not the fact of
combat, but rather the “preexisting intent to engage in it,” which was not
adequately explained by the standard instruction. (Id. at p. 1045.) Here, in
contrast, the court carefully considered the jury’s question, including its
specific reference to “the last paragraph of [CALCRIM No.] 1048A,”

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consulted with counsel, and crafted a response which addressed the issue
raised.
Finally, appellant relies on Conde v. Henry (9th Cir. 1999) 198 F.3d
734. There, the Ninth Circuit found that the trial court erred in modifying
the standard jury instructions (in response to a question) to eliminate the
requirement that a defendant take something from the victim’s immediate
presence in order to be convicted of robbery. (Id. at p. 740.) The court
reasoned that the response eliminated a possible theory of defense that the
jury was actively considering. (Ibid.) Here, as discussed above, appellant’s
construction of the question, i.e., that the jury was considering whether he
was aware that he penetrated the victim, is belied by his clear and
unequivocal testimony that he did in fact penetrate the victim. Thus, it was
appellant’s testimony, not the court’s response, that foreclosed the jury’s
acceptance of this defense.
D. Any Error in the Court’s Response to the Jury’s
Question Was Harmless

Even if appellant could show that the trial court erred in responding to
the jury’s question, any error was harmless. A trial court’s failure to
adequately answer a jury’s question “is subject to the prejudice standard of
People v. Watson [(1956)] 46 Cal.2d 818, 836,” i.e., whether the error
resulted in a reasonable probability of a less favorable outcome. (People v.
Roberts (1992) 2 Cal.4th 271, 326.)
Here, there was no reasonable probability of a different result. As
outlined, the prosecution’s evidence was compelling and conclusive. Jane
1’s testimony and the forensic evidence demonstrated that she was highly
intoxicated on the evening she was sexually assaulted. (6RT 429-430, 433;
7RT 581.) This conclusion was bolstered by the calls and text messages
Jane 1 exchanged with her boyfriend, Motro, shortly before the assault.
(5RT 248-251; 2CT 517-518.) Moreover, Jonsson’s and Arndt’s testimony

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about observing appellant thrusting aggressively on top of Jane 1’s naked
body as she lay unconscious on the ground, was especially persuasive.
(4RT 136-139; 5RT 158; 6RT 287-288, 293-295.) Appellant’s version of
events, in which he recounted a consensual romantic encounter, was
inherently improbable and belied by the evidence.
Moreover, both to the police and at trial, appellant admitted that he
digitally penetrated Jane 1’s vagina. (9RT 852.) Therefore, even if the trial
court had interpreted the jury’s question in the manner appellant now
suggests, i.e., that it was considering whether he misspoke in using a
colloquial term, “fingering,” without meaning to say he in fact penetrated
Jane 1, it still would have convicted appellant. Appellant’s testimony on
this point was unequivocal and consistent, and was supported by forensic
evidence showing extensive injuries to Jane 1’s genitals and the presence of
her DNA on appellant’s hands and under his fingernails. (6RT 377-380,
384-385, 388; 7RT 494-495, 502.)
Appellant contends that the court’s answer eliminated a potentially
viable mistake of fact defense. (AOB 122-123.) As noted above, a mistake
of fact defense to penetration was factually and legally foreclosed. The
question demonstrated that, if anything, the jury was exploring the impact
of a mistake of law. Implicit in the question was the assumption that
appellant’s act was volitional, i.e., that he did not accidentally or
unconsciously insert his finger into Jane 1’s vagina. (See 2CT 467.)
Rather, the question asked the effect if appellant did not believe that act to
be sufficient to constitute penetration under section 269, perhaps because
he believed that any penetration had to include penetration of the vagina not
just the labia, or that only penile penetration was sufficient. The jury’s
follow-up question about the adequacy of penetration supports this
interpretation. A mistake about whether an act is legally sufficient to
complete the offense is a mistake of law. It is axiomatic that “ignorance of

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a law is not a defense to a charge of its violation.” (Hale v. Morgan (1978)
22 Cal.3d 388, 396.) “‘If the act itself is punishable when knowingly done,
it is immaterial that the defendant thought it was lawful.’” (1 Witkin &
Epstein, Cal.Criminal Law (3d ed. 2000) Defenses § 36, p. 367.) Thus, the
court’s answer did not eliminate an otherwise viable defense.
Therefore, because there is no reasonable probability of a more
favorable result had the court answered the jury’s questions differently, any
error was harmless. (See People v. Roberts, supra, 2 Cal.4th at p. 326.)
VI. THERE WAS NO CUMULATIVE ERROR

Appellant contends that even if none of the errors he identified are


individually prejudicial, he is entitled to relief based on cumulative error.
(AOB 124-125.) Respondent disagrees. Appellate courts review claims of
cumulative error by assessing the cumulative effect of any errors to see if
“it is reasonably probable that the jury would not have convicted appellant
of the charged offenses.” (People v. Cardenas (1982) 31 Cal.3d 897, 907.)
Applying that analysis here, appellant’s contention should be rejected.
Where none of the claimed errors actually constitute individual errors, there
is no prejudice to cumulate. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
Since appellant’s claims of error all lack merit, they could not—separately
or together—infringe on appellant’s state or federal constitutional,
statutory, or other legal rights. (People v. Wrest (1992) 3 Cal.4th 1088,
1111.)

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CONCLUSION

Accordingly, the judgment should be affirmed.

Dated: March 16, 2018 Respectfully submitted,

XAVIER BECERRA
Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
JEFFREY M. LAURENCE
Senior Assistant Attorney General
ERIC D. SHARE
Supervising Deputy Attorney General

ALISHA M. CARLILE
Deputy Attorney General
Attorneys for Respondent
SF2016201891
Brock Turner Respondent's Brief -- Final.doc

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CERTIFICATE OF COMPLIANCE

I certify that the attached RESPONDENT’S BRIEF uses a 13 point


Times New Roman font and contains 25,426 words.

Dated: March 16, 2018 XAVIER BECERRA


Attorney General of California

ALISHA M. CARLILE
Deputy Attorney General
Attorneys for Respondent

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