The opinion of the court was delivered by: Nicholson , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ace Orville Noland was found guilty by a jury of forcible sexual penetration. (Pen. Code, § 289, subd. (a)(1).)*fn1 On appeal, he contends there was insufficient evidence he acted without the victim's consent. We affirm.
The victim, S.N., is the biological daughter of defendant. In 1991, defendant was convicted of three counts of committing lewd and lascivious acts, for acts he committed between 1984 and 1986 upon S.N. when she was a child. Defendant served a three-year sentence as a result of those convictions.
As an adult, S.N. maintained a relationship with defendant and her mother. Defendant often made inappropriate sexual remarks or jokes, which she generally ignored and walked away. He also made numerous physical advances in the past, but she had just walked away.
On the evening of either August 16 or 17, 2010, defendant was at S.N.'s apartment to work on her computer. Prior to defendant's arrival, S.N. had consumed approximately two beers. She also had consumed approximately two more beers and a shot of alcohol while defendant was at her apartment. She described herself as "buzzed" but not impaired in any way, and estimated she had consumed the alcoholic beverages over the course of four or five hours.
At one point in the evening, S.N. began to feel uneasy. Defendant put his hands on her shoulders. She got up from her computer chair to walk away and, as she stood up, defendant "grabbed her pajama bottoms" and "jerked" them down. He then "pushed [her] forward," bent her over the seat of a recliner chair "real fast," and inserted something into her vagina. All of this happened within seconds.
When this happened, S.N. felt like she did when defendant molested her as a child, which she described as scared and ashamed. Within a few seconds, though, she "snapped back" and "jumped up" in order to stop defendant from continuing his actions. Defendant fixed his belt and left. At no point did S.N. tell defendant he could touch her sexually or otherwise consent to a sexual encounter with defendant.
Defendant came back to S.N.'s apartment a couple of hours later but she refused to answer the door. He returned the following morning and sat on the couch next to her. He started to rub her arm and she grabbed his arm to make him stop. He told her that she liked him the night before, and she disagreed. He said it was a night he would never forget and stated, "[W]ho is to say what is right and wrong." He then said, in a boastful manner, that he had bruises caused by her attempts to fight him off the night before. He offered to show her the bruises and she declined. She did not recall physically fighting with defendant but stated it was possible she had fought him off.
S.N. first reported the incident to her mother. She reported it to the police about one week later. At law enforcement's suggestion, she placed a call to her mother. During that call, her mother told her defendant had ...