(Super. Ct. No. 09F00398)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Baz Mohammad Niazi of two counts of oral copulation of an intoxicated person. (Pen. Code, § 288a, subd. (i).) He was sentenced to an aggregate term of five years in state prison. On appeal, defendant contends the trial court erred when it denied his motion to disclose juror identification information, thereby depriving him of the opportunity to further investigate juror misconduct and make a motion for new trial. We find no reversible error and shall therefore affirm the judgment.
In the late afternoon of July 4, 2008, S.D. and her boyfriend Andrew attended a party at the residence of S.D.'s cousin. In addition to members of her extended family, S.D.'s aunt attended with defendant, who was her boyfriend. The party progressed into the night with activities that included barbecuing, dancing, drinking alcohol, playing cards, and fireworks. At one point, S.D. and Andrew sat opposite defendant and S.D.'s aunt during a card game.
Throughout the evening, S.D. was drinking vodka and Hawaiian punch without eating, and as a result she became very intoxicated. Consequently, Andrew escorted her to the house's only bedroom to rest. By 10:30 p.m., S.D. was lying across the bed, throwing up into a bag. Andrew and S.D.'s brother returned several times over the next two hours to check on her. Because the bathroom was only accessible from the living room by crossing through the bedroom, several people, including defendant, walked past S.D. while she was lying on the bed.
S.D. testified that she passed out alone in the bedroom after vomiting, and did not remove her clothing. She awoke to a figure coming into the room. The man lay on top of her, kissed her, and then inserted his penis into her mouth two or three times. During this assault, S.D. was aware that "something was happening," but did not know how to react to it because of her state of intoxication. However, she remembered defendant's "buzz" haircut brushing against her face, and defendant telling her to "swallow it." Next, defendant removed S.D.'s shorts and inserted his penis into her vagina. S.D. was too "passed out" to fight back or say anything, and she slipped in and out of consciousness. The entire incident lasted between five and 10 minutes.
Around midnight, S.D. emerged from the bedroom, crying and accusing defendant of raping her. She confronted defendant in the front yard, but he denied her accusations. At 1:16 a.m. on July 5, S.D. arrived at the University of California, Davis Medical Center for a rape examination. Although she was not bruised or bleeding, S.D. complained of a sore jaw, tender thighs, and pain in her genital area.
A nurse who examined S.D. testified that the outside of her vaginal opening was torn in an area most likely to be injured from traumatic intercourse. However, this injury could also be attributed to consensual sex. S.D. told the nurse that she and her boyfriend had sex between 10:00 a.m. and 11:00 a.m. the morning of July 4.
Defendant testified that S.D. flirted with him throughout the evening. During the card game, she rubbed his leg under the table several times. After the game, S.D. approached defendant, told him she "really liked [him]." She asked him several times to meet her in the bedroom. She did not appear to be intoxicated. Defendant testified that he walked through the bedroom to use the bathroom. When he emerged, S.D. had closed the bedroom door to the living room and the light was off. S.D. approached defendant and started touching his chest, kissing, and hugging him. She then unzipped his pants and gave him oral sex for three or four minutes. S.D. then took off her pants, laid down on the bed, and said: "Come here. Let's have sex." He initially told her "no," but after several ...