Super. Ct. No. SCD217769 APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
The opinion of the court was delivered by: Mcconnell, P. J.
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A jury convicted Adam Michael Harris of rape of an intoxicated person. (Pen. Code, § 261, subd. (a)(3).) The jury acquitted Harris of other counts, including a count of rape of an unconscious person (id., subd. (a)(4)) involving the same victim. The trial court sentenced him to the lower term of three years in prison.
Harris appeals, contending the trial court deprived him of his due process right to a fair trial by refusing to give a mistake of fact instruction. We conclude this contention lacks merit and affirm the judgment.
Harris lived in a house with Guillermo Perez and several other college students. One evening, Harris, Perez, and Perez's friend Natalie H.*fn2 hung out and had several drinks at the house. They then went to a party nearby and drank more alcohol. At the party, they met Kelly G., who had also been drinking and was "buzzed." The group continued drinking throughout the evening. When they returned to the house for the night, Kelly was "extremely drunk" and needed assistance walking. She planned to stay at the house and sleep with Perez, whom she found attractive. Her last memory of the evening was standing in the kitchen speaking with Perez, Natalie, Harris and one of Perez's other roommates.
According to Perez, when they reached the house, Kelly went to his bed, a mattress in the living/dining room, and lay down. He covered her and she fell right to sleep. Sometime after midnight, Perez went to the kitchen for a glass of water. As he was going back to the mattress, he saw Harris carrying Kelly. She was cradled in Harris's arms like a child. Her head was laid back and her limbs were hanging loose. Perez said to Harris, "What are you doing? Hand her to me." He grabbed Kelly from Harris and put her back on his mattress. Harris returned to his room. Kelly did not wake up at any time during this encounter.
About 20 minutes later, Perez went to the bathroom to brush his teeth and clean up. When Perez returned less than five minutes later, he noticed Kelly was not on his mattress. Perez quickly went to Harris's room and opened the door. He saw Harris standing on the floor, naked from the waist down, leaning over Kelly, who was motionless on the bed, also naked from the waist down. Perez yelled at Harris and pushed him to the side. Perez then scooped up Kelly, put her back on his mattress, and covered her up. Kelly did not wake up during this encounter either.
Perez returned to Harris's room to confront Harris. Harris said to Perez, "I'm sorry, and there's nothing wrong." Perez briefly returned to the living/dining room and then went back to Harris's room and asked Harris for Kelly's underwear. Harris grabbed Kelly's underwear and shorts and gave them to Perez. He told Perez, "Here. Take them. She pissed all over them anyway."
Kelly woke up the next morning around 7:00 a.m. She did not feel as if she had had sexual intercourse the night before. Although she was still drunk, she went home, changed, and went to work at 8:00 ...