APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. (Super.Ct.No. SWF022757)
The opinion of the court was delivered by: Richli J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant and appellant Christopher J. McKinney guilty
of one count of sexual intercourse with an unconscious person in
violation of Penal Code section 261, subdivision (a)(4) (count 2).*fn1
Defendant was thereafter sentenced to the low term of
three years in state prison. Defendant's sole contention on appeal is
that the trial court prejudicially erred in failing to sua sponte
instruct the jury with the mistake-of-fact instruction (Judicial
Council of California Criminal Jury Instructions (CALCRIM) No. 3406).
We reject this contention and affirm the judgment.
On August 30, 2007, Jane Doe, who had known defendant for approximately two weeks, went to defendant's friend's house, where she drank several cocktails and some beer. Defendant was interested in a romantic relationship with Jane; however, Jane merely wanted to be friends with defendant. Jane denied ever becoming romantically involved with defendant or having any physical contact with him.
Later in the evening, defendant and Jane went to a liquor store to purchase more alcohol. When they returned to defendant's friend's house, Jane drank some more beer. Sometime around 10:00 p.m., Jane told defendant that she needed to get home. Defendant attempted to hug and kiss Jane, but she rejected his advancements, which led to an argument. Defendant also desired to have sexual intercourse with Jane, but Jane told defendant "no" and insisted that she needed to get home.
Eventually, defendant agreed to drive Jane home. While in the car, the two continued to argue. Jane next remembered waking up on a couch with defendant lying on top of her with his penis inside her vagina. When she realized what was happening, she pushed defendant off of her, ran out of the house, and flagged down a police officer. She noticed that her underwear and shoes were missing.*fn2
On August 31, 2007, about 1:53 a.m., Riverside County Sheriff Deputy Brian Burgin was on patrol when he was flagged down by Jane. Jane appeared "hysterical" and was "barefoot." She told the deputy that she had just been raped by defendant. She explained to the deputy that she had been hanging out with defendant drinking alcohol until she passed out. When she awoke, defendant was on top of her having sex with her. She then began "kicking and screaming to get him off of her." About 2:40 a.m., Jane was transported to a medical center, where a registered nurse conducted a sexual assault examination on her. Jane informed the nurse that her last memory was of getting into a car and that when she awoke, her vagina was "being penetrated by a penis." A physical examination of Jane revealed tenderness and swelling around Jane's vaginal area and a red mark, consistent with a suction injury, on Jane's neck. Jane's injuries were consistent with the information provided by Jane.
Jane also spoke with Riverside County Sheriff Detective Tina Woodard. Jane informed the detective that she had been picked up from her house by defendant at around 7:30 p.m. They then went to defendant's friend's house where she drank four 10-ounce Jack Daniel's drinks, one 12-ounce beer, and one 24-ounce beer. Jane was feeling the effects of the alcohol.
Blood was drawn from Jane at 4:00 a.m. An analysis showed Jane's blood alcohol level to be .02 percent at that time. A toxicologist estimated that if Jane drank four Jack Daniel's cocktails and 36 ounces of beer between 8:30 p.m. and 10:45 p.m., her blood alcohol level would have been approximately .20 percent at 11:15 p.m., and at that level, a person would show signs of physical and ...