California Court of Appeals, First District, First Division
[As modified Feb. 17, 2015.]
[CERTIFIED FOR PARTIAL PUBLICATION][*]
Napa County Superior Court, No. CR160180 Honorable Mark Boessenecker Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Jeffrey S. Kross, under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, René A. Chacón and Laurence K. Sullivan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Steven M. Braslaw, following a jury trial, was found guilty of raping an intoxicated person (Pen. Code, § 261, subd. (a)(3)).
On appeal, he contends the trial court should have given further jury
instructions on a defendants belief in the victims capacity to consent and
should have instructed on attempted rape. He also claims his counsel was
ineffective in failing to object to alleged prosecutorial misconduct. In the
published portion of this decision, we conclude there was no instructional
error. In the unpublished portion, we reject the claim of ineffective
assistance. We therefore affirm the judgment.
Defendant and Jane Doe were classmates at a vocational school in St. Helena. Doe lived at a school dormitory. Defendant lived off-campus in a house notorious for wild parties.
In January 2012, Doe and her former roommate, M.H., attended a party at defendant’s house. Doe became “really drunk.” One moment she was hanging out with friends; the next thing she recalled was being unclothed in a shower.
M.H. testified Doe, while playing a drinking game, had “hit a wall, ” sat down and stopped talking, and M.H.’s boyfriend took Doe upstairs so she could sleep. Doe then vomited, and M.H., the boyfriend, and defendant assisted with cleanup. M.H. and her boyfriend got Doe undressed and into the shower. Doe, according to M.H. was “completely gone”-just dead weight, not really aware of anything. Defendant was also drunk, but his level of intoxication was not comparable to Doe’s, as defendant was coherent and functional.
While in the shower, Doe recalled seeing M.H. and the boyfriend leave the bathroom, and seeing that defendant had entered. Defendant, also unclothed, came into the shower and asked if it was “gonna be awkward.” Doe recalled saying “no” and being confused about what defendant intended to do, but thought he might help her bathe. She remembered nothing else in detail about what happened in the shower. Afterwards, M.H. dressed Doe in a sweater, nothing more, and placed her in a spare trundle bed in the boyfriend’s bedroom. Doe had no recollection of being dressed in the sweater and placed in the bed.
M.H. and her boyfriend then retired to his bed. Although the lights in the bedroom were out, M.H. saw defendant enter the bedroom and “collapse” or “flop” (not crawl) onto Doe’s bed. M.H. asked her boyfriend to get a condom. Overhearing, defendant asked, in what M.H. perceived as a joking tone, if he could have one too. The boyfriend got out of bed, asked if Doe and defendant were okay, and returned to bed with a condom. M.H. and her boyfriend began having sex when, “[a] short amount of time” later, M.H. heard Doe scream “no, no, no.” M.H. got up and saw defendant “jump” back, heard him say something like “okay, okay, I’ll stop, ” and saw him run out of the room.
Doe had no recollection of anything going on in the bedroom until “looking up” and seeing defendant “on top of me.” He was “moving back and forth, ” and she felt his penis inside her ...