APPEAL from a judgment of the Superior Court for Los Angeles County, Robert J. Higa, Judge. (Los Angeles County Super. Ct. No. VA109499)
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PUBLICATION
A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.
In the present case, defendant Julio Morales entered the dark bedroom of victim Jane Doe after her boyfriend departed and, without disclosing his identity, had sexual intercourse with her. He was charged with rape of an unconscious person under Penal Code section 261, subdivision (a)(4).*fn1 The jury was instructed with CALCRIM No. 1003, which, as given, stated in part that "[a] woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her." (Italics added.) The prosecutor argued both correct and incorrect theories under which Jane was unconscious: that she was asleep (correct), and that she was not aware of the essential characteristics of the act because defendant deceived her into believing he was her boyfriend (as we explain below, incorrect). Defendant was convicted of violating section 261, subdivision (a)(4), and the trial court sentenced him to the low term of three years in state prison, from which judgment defendant appeals.*fn2 Because we cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory, we must reverse.*fn3
On February 20, 2009, 18-year-old "Jane Doe" went to a party with her boyfriend, Victor, and another friend. Jane's brother, Filiberto, and several of his friends, including defendant, also attended the party. Jane drank three to five beers at the party. Jane, Victor, and her friend left the party at 1:00 or 2:00 a.m., and stopped to pick up some fast food before going to Jane's house to eat.*fn4 Jane changed into her pajamas before sitting down at the dining room table to eat.
Filiberto and his friends arrived at Jane's house while Jane and Victor were eating, and sat in the living room. Jane and Victor went into her bedroom after they finished eating, turned off the light, and lay down on her bed. Jane asked Victor to spend the night, but he declined because he had something to do the next morning. They talked about having sex, but Victor did not have a condom and they never engaged in unprotected sex, so they decided not to. Eventually, Jane fell asleep while Victor was still there. Victor left sometime later.
In the meantime, Filiberto had left his friends in the living room while he went outside to talk on the phone. About five or ten minutes after Victor left, two of the friends went outside to get Filiberto, leaving defendant and two others -- Robert, who was asleep on the couch, and Tony -- in the living room.
According to Jane, she woke up to the sensation of having sex. She was in a different position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house.
When Victor got to the house and learned what had happened, he called the police. Deputy Sheriff Peralta and other deputies responded and searched the area, eventually finding defendant crouched down behind some bushes. While being detained in Deputy Peralta's patrol car, defendant spoke to another deputy, Deputy Leyn. He admitted that he had gone into Jane's room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and started to have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming. During a second interview with Deputy Leyn, defendant once again described what happened, including that Jane was asleep when he put his penis into her vagina, and wrote out a statement admitting that he kissed Jane and touched her vagina while she was asleep.
Defendant testified that sometime after Victor had left Jane's bedroom, Filiberto's friend Tony and he went into Jane's room, at Tony's suggestion. They nudged Jane to try to awaken her so she could come out and drink with them. Defendant then realized that Tony was no longer in the ...