(Los Angeles County Super. Ct. No. BA372280) APPEAL from a judgment of the Superior Court of Los Angeles County, Norman J. Shapiro, Judge.
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Affirmed in part and reversed in part.
Jae Jeong Lyu was convicted after a court trial of sexual penetration by a foreign object of an unconscious person, oral copulation of an unconscious person, and sexual battery. He appeals, arguing that his convictions of sexual penetration and oral copulation of an unconscious person are not supported by substantial evidence. We agree.
An information filed July 8, 2010 charged Lyu with two counts of
sexual penetration by a foreign object of an unconscious person, in
violation of Penal Code section 289, subdivision (d),*fn1
two counts of oral copulation of an unconscious person, in violation
of section 288a, subdivision (f), two counts of sexual battery by
fraud, in violation of section 243.4, subdivision (c), and four counts
of sexual battery, in violation of section 243.4, subdivision (e)(1).
The information alleged two separate incidents, each against a
different victim, on November 8, 2009 against Trish B.,*fn2
and on April 7, 2009, against Shanah R. Lyu pleaded not
guilty to all counts.
During Lyu's jury trial, the court dismissed the two counts of sexual battery by fraud. The court declared a mistrial on October 29, 2010, when the jury was unable to reach a verdict on the remaining counts. Both parties agreed to a court trial before a different judge.
Just before the court trial, the court granted Lyu leave to represent himself, with his attorney from the jury trial as standby counsel. At trial, Trish B. testified that on November 8, 2009, she went to a massage parlor in Los Angeles called Man Han Tang for a foot massage. She had been there once before. She understood that during a foot massage she would sit in a chair with her feet in a bucket of water and lean forward, to get a massage on her back, neck, shoulders and feet, and expected it to cost $20. She waited for a massage therapist to arrive, and then was directed to go with Lyu to get the massage. They spoke briefly in English.*fn3 There were five other people in the front room, giving foot massages to clients in reclining chairs.
Trish B. sat in a chair and Lyu began to massage her. Trish B. taught yoga and fitness classes and needed regular massages, so she was used to the process and noticed nothing unusual at first. She had been teaching many classes and was unable to be comfortable or to relax in the sitting position, so either she or Lyu suggested a lay-down massage, and they moved to the back room. The back room was open and contained a series of massage beds. A woman was giving a man a massage on one of the beds, and the lights were on.*fn4
Trish B. undressed underneath a privacy sheet and lay face down, covered with the sheet. She had told Lyu her lower back was sore. Lyu massaged her right leg (which Lyu had exposed so it could receive the massage), going up and down the entire leg a couple times, and twice inserted one or two fingers inside her vagina. Trish B. hit Lyu's torso and said, "'no' or 'what are you doing,'" and he scurried around the bed and "did something else and just started acting really weird." She "froze" and was frightened, because she did not know what Lyu was capable of, and she thought: "How do I get out of here safely?" Trish B. turned over onto her back, thinking about how to get her things, then Lyu moved to the end of the bed where her feet were, moved the sheet back, and put his mouth on her vagina ("the next thing is his mouth is down there"). Trish B. sat up and told Lyu to leave the room, but he stood there and looked at her without saying anything while she got dressed, keeping herself covered with the sheet. Trish B. was in "pure fear," wondering if Lyu would follow her out to her car, and concerned only about getting out of there safely.
Lyu told Trish B., "I give you free two-hour massage" and picked up her purse, putting his "'Healing Hands'" business card inside. She grabbed her bag and Lyu walked her out to the front desk with his hands "clenching down into [her] shoulders." Trish B. did not say anything to anyone in the front lobby, because she just wanted to pay and "get out of [there]" without hassle or conflict. She did not have enough cash, and she took out her card to pay, but the woman told her it was cash only and there was an ATM down the street. Trish B. thought, "there's no way I'm leaving here and coming back in here." The massage was about $30, and she only had $25 or so in cash. She pulled out what she had, and Lyu paid for the remainder of the massage and said, "I got this, I got it." Trisha B. walked out, closed the door behind her, went to her car and left, driving away as fast as she could. She was still in shock, and when she got onto the freeway she began to cry and called a friend. She wanted to forget what had happened, but she thought about the other women to whom Lyu might do the same thing, and three days later she called the police.
Trish B. denied having gone to Man Han Tang for a sexual massage, conveying any interest in sexual contact with Lyu, masturbating or moaning in Lyu's presence, asking him to put his fingers in her vagina, or asking for or consenting to his mouth on her vagina.
Trish B. spoke to Los Angeles Police Department (LAPD) Detective Shumaker and told him what had happened. On December 2, 2009, Detective Shumaker asked her to make a "pretext call" to the number on the business card, to get Lyu to make an admission. When someone picked up, she recognized Lyu's voice. The tape of the phone call was played in open court. Trish B. told Lyu, who said he remembered her, that she wanted another massage, but first she wanted an apology for putting his fingers in and his mouth on her vagina. Lyu apologized for both and promised to give her just a massage. They agreed to meet at Man Han Tang.*fn5 Lyu promised, "I'm careful for you," and "I don't want any motion if--if you don't want." He remembered touching her before, and when she said she was upset when she left he said, "Yeah, yeah, yeah. Sorry, sorry, sorry." Lyu agreed that Trish B. had not asked for that contact, and had pushed him away before he put his mouth on her. He remembered that he had done that, and stated: "I said I apologize to you."*fn6
After the prosecution rested, Lyu requested that his standby counsel represent him, and the court granted the request. Defense counsel moved to dismiss the counts charging sexual penetration by a foreign object on an unconscious person and oral copulation of an unconscious person, because "Trish B. . . . [was not] unconscious of the nature of ...