(Super. Ct. No. BA303794) (Los Angeles County). Barbara R. Johnson, Judge.
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
Appellant Saqueo L. Leal entered a residence through an open window in the middle of the night and digitally penetrated a woman as she slept in bed next to her husband. Believing that appellant was her husband, the woman did not resist and submitted to sexual intercourse. Appellant was subsequently convicted of rape and sexual penetration by artifice, pretense or concealment (Pen. Code,*fn1 §§ 261, subd. (a)(5), 289, subd. (f)), and assault with intent to commit rape (§ 220, subd. (a)).*fn2 He was sentenced to six years in state prison.
Appellant contends the evidence is insufficient to support his convictions. He also contends the court erred in failing to instruct the jury on the lesser included offense of simple assault, and that he was improperly convicted of assault with intent to commit rape because the crime is a lesser included offense of the charges of rape and sexual penetration of which he was charged and convicted in counts 1 and 2. We affirm.
On the night of June 29, 2002, T. C. and her husband A. celebrated her birthday at their duplex in Los Angeles. Over the course of the evening, they both drank large amounts of alcohol and became highly intoxicated. At about 1:00 a.m., T. C. changed into pajamas and went to sleep in the bedroom. A. joined her in their queen-sized bed a few minutes later.
Sometime during the night, T. C. was awakened in the dark when she felt a finger in her vagina. She then felt her vagina being penetrated by a penis as she was lifted up and placed on the edge of the bed. T. C. believed it was A. having sex with her, although they had never had sex in that manner before. In fact, it was appellant, a stranger who had entered the duplex through a window.
As T. C. was being lifted, she placed her hands on appellant's back. T. C. did not feel any hair, which seemed strange because A. has hair on his back. T. C. also felt stubble on appellant's face when he kissed her, and found the sensation also strange because A. did not have facial hair. She also noticed that appellant was rough when he penetrated her, while A. always waited until she was lubricated. Also, A. usually woke her up and asked if she wanted to have sex. Due to her intoxicated state, she was unable to fully process the significance of these differences.
When the encounter ended, T. C. laid back on her pillow and saw what appeared to be a silhouette of someone leaving the room. She then reached across the bed and felt A. lying there. T. C. said, "I think, A., someone's here." A. did not respond, and T. C. went back to sleep.
At about 5:00 a.m., T. C. awoke and began to remember what had happened. She woke A. up, told him that someone had been in the house, and started crying. A. got up and discovered broken mini-blinds and a torn window screen by the window in the computer room. T. C. and A. had left the window open all night, as they commonly did when it was hot. Several items that had been inside the duplex were found strewn throughout the backyard. A.'s wallet, which was missing cash, his driver's license, and an identification card, was in the bushes. His watch was also missing.
A. called the police, who arrived shortly thereafter. After T. C. told A. and the police that the intruder had sex with her, she was taken to the hospital where she was examined and a rape kit was prepared.
Approximately three years later, oral swabs were collected from appellant and a "DNA" profile was made. It was later determined through DNA analysis that appellant was the donor of semen recovered from T. C.'s vagina.
I. Sufficiency of the ...