California Court of Appeals, Third District, Sacramento
[REHEARING GRANTED 3-16-15]
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEAL from a judgment of the Superior Court of Sacramento County No. 10F05942, Russell L. Hom, Judge.
[Copyrighted Material Omitted]
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Theodore Soria appeals following jury verdicts finding him guilty of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4) (count one)) and rape of an intoxicated person (§ 261, subd. (a)(3) (count two)). Defendant admitted habitual criminal prior serious felony and strike conviction allegations (§§667, subds. (a)-(i), 1170.12). Defendant was sentenced to a total aggregate term of 11 years. In sentencing defendant, the trial court imposed sentence on count two, but stayed execution of that sentence.
On appeal, defendant argues conviction on one of the two counts must be stricken because both counts are based on a single act of intercourse with the victim. The People agree that defendant cannot be convicted of two counts,
but argue the remedy is consolidation. Defendant also argues the DNA evidence was unreliable and should not have been admitted, trial counsel provided ineffective assistance of counsel by failing to object to the DNA evidence, the trial court erred in giving a jury instruction on adoptive admissions, and the court abused its discretion in denying his motion to strike the prior strike conviction (§ 1385, subd. (a)). The People ask that we modify the judgment to include $70 in mandatory fees and assessments not imposed at sentencing.
In the published portion of this opinion, we conclude that the trial court erred by staying the sentence on one of the rape counts, and hold that defendant’s convictions for rape of an intoxicated person and rape of an unconscious person must be consolidated into a single count reflecting rape under both subdivision (a)(3) and (4) of section 261.
In the unpublished portions of this opinion, we conclude that defendant forfeited his objection to the DNA evidence, and in any event that evidence was admissible and defense counsel did not provide ineffective assistance of counsel by not objecting to the DNA evidence. We further conclude that the trial court did not err in instructing on adoptive admissions and did not abuse its discretion when it refused to dismiss the strike allegation. We modify the judgment to order imposition of mandatory fees and assessments not imposed by the trial court.
We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A second amended information filed in August 2011 charged defendant with a count of rape of an unconscious person (§ 261, subd. (a)(4) (count one)), and a count of rape of an intoxicated person (§ 261, subd. (a)(3) (count two)). The pleading also alleged a prior conviction as a strike offense (§§ 667, subds. (b)-(i), 1170.12) and a five-year habitual criminal sentencing enhancement (§ 667, subd. (a)).
A first trial resulted in a mistrial when the jury deadlocked on both counts.
On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old defendant was home, drinking beer, and playing video games, when his son Theo brought home three friends and a large bottle of vodka. The group
of fourall of whom were about 20 years oldconsisted of defendant’s son, the son’s new girlfriend, Karolyn Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is the victim. They had a plan to get drunk. They started drinking the vodka with juice or soda in the son’s bedroom. Defendant stayed in the living room, but someone brought him some vodka. The four young people mainly stayed in the son’s bedroom but came out on occasion. For example, the victim came out for ice and Karolyn smoked marijuana with defendant in the living room. The victim did not smoke any marijuana.
The victim, who liked to get drunk and had previously blacked out from binge-drinking, drank four or five drinks, got drunk and dizzy, and vomited in the bathroom. Beto and Karolyn helped the victim to the bedroom of defendant’s daughter, Sophia, who had come home earlier but left to sleep at a friend’s house. The victim vomited in Sophia’s bedroom, perhaps in a garbage can. Karolyn testified that she asked defendant for a “ratty shirt that he didn’t really care about that she could sleep in.” The reason she asked for the shirt was because she thought it would be uncomfortable for the victim to sleep in her clothes, but she told defendant she wanted the shirt for the victim because “she was sick.” According to Karolyn, defendant went to his room, obtained a black shirt, and gave it to her. Karolyn brought the shirt to the victim in Sophia’s room, said to change into it, and left the room. The victim fell asleep or passed out on top of the bedcovers, fully clothed. Karolyn and defendant’s son fell asleep around midnight in the son’s room. Beto stayed up playing a video game with defendant.
Around 2:30 or 3:00 a.m., the victim awoke. Her vagina was sore and wet. She was under the bedcovers, wearing only her underwear. Her clothes were on the floor by the bed, as were defendant’s slippers. The victim did not see any other article of clothing that belonged to defendant in the room. The victim found Beto asleep on the living room couch. She woke him and asked if they had “messed around.” He said no. The victim became scared and said she thought defendant did something to her. The victim and Beto woke up Karolyn and defendant’s son, who said his father would not do anything sexual like that. The four talked and eventually fell asleep in the son’s room. They awoke around 11:00 a.m. and went out to eat. The victim went home and showered.
Later, the victim returned to defendant’s home to meet up with Beto. She saw defendant but did not interact with him. She saw Sophia, who was holding defendant’s shirt in her hand and asked the victim what happened.
Sophia noticed hickeys on the victim’s neck. Beto said he was not responsible for the hickeys. Sophia revealed she had once been raped when drunk and that the victim should tell someone. At trial, the victim for the first time stated that Sophia said her father had “hit on” her friends in the past. After Sophia and the victim spoke, Sophia asked defendant, in the victim’s presence, why his shirt was in her bedroom. The victim testified defendant replied he brought the shirt to the victim because she was cold. The victim had no recollection of him bringing her a shirt.
Later that night, November 29, 2009, the victim told her mother what happened after Beto said he would tell unless the victim told. The three went to the hospital, where they spoke to a police officer who took them to UC Davis Medical Center, where the victim underwent a sexual assault examination.
The victim testified that after the night in question, she continued to visit defendant’s home until she and Beto broke up in February 2010. Defendant did not act any differently toward her during these visits.
Karolyn, who did not believe defendant would ever take advantage of a drunk woman for nonconsensual sex, testified that defendant did not treat the victim any differently when the victim visited the house after the night in question, and the victim did not seem uncomfortable around defendant during that time. Karolyn, who had been 19 years old at the time, testified that on that night at defendant’s home, while she and defendant were smoking marijuana in the living room, she leaned over, exposing her breasts, and defendant said, “nice rack, ” which she took as a compliment. Defendant had told both the victim and Karolyn that they were pretty. Karolyn testified she broke up with defendant’s son in February 2010. She and defendant remained close platonic friends, going to the gym or lunch together or talking on the phone, but they did not talk about the case. Karolyn was not friends with the victim.
In April 2010, the victim, in the presence of a police detective, made a pretext phone call to defendant, which was tape recorded and played for the jury. Defendant greeted her pleasantly, asked how she was, and said he had not seen her in a while. She said she was “pretty good” and wanted to ask him “[a]bout that night I was over at your house, and it was Theo, me, Beto  and Karolyn, and we were drinking within Theo’s room. I had somebody rape me, but I didn’t really know who and II mean, I -- your shirt and your slippers were in Sophia’s room, so I thoughtand I’m pretty sure that you had sex with me and I want to know why.” The following ensued:
“[Defendant]: Well, here let me sit down ‘cause this is the first I’ve heard of this. Hold on. Let me go in the other room. Hold on. Okay. I’m in shock right now. So, anyways, so what happened?
“[Victim]: WhyIwhy did you have sex with me while I was passed out?
“[Defendant]: You know, I don’t remember that -- that happening. I don’t remember that at all. And Ithis is the first I’ve heard of this, and it’sI don’t know what to say. I’m shocked and sorry to hear that.
“[Victim]: But your shirt was on the floor, on the bedroom floor by Sophia’s bed.
“[Defendant]: Is that the shirt that Sophia gave me? Because I remember Karolyn giving me -- coming up to me and asking me for a shirt, and I gave her aaa black one. That’s all I remember.
“[Victim]: Oh, well, that’s the one that Ithat was on the floor as well as your slippers.
“[Defendant]: And I don’t know about my slippers and stuff. I don’t know what happened with that.
“[Victim]: I don’t know. I woke up and they were by the bed.
“[Defendant]: I don’t remember any of that. IIIall I remember is I was passed out in the living room, and Beto woke me up and he told me to get out of there, and so I ...