Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04908323-9, Robert H. Oliver, Judge.
Nuttall & Coleman, Roger T. Nuttall, Shannon C. Harding; Page & Page and Edgar Eugene Page for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Amittai Rahul Rai was convicted of one count of rape of an unconscious person in violation of Penal Code section 261, subdivision (a)(4). He appeals, claiming his counsel was ineffective during plea negotiations, the trial court erred in examining potential jurors outside of defendant’s presence, the trial court did not properly instruct on the required mental state, and the evidence was insufficient to support the conviction. We affirm.
Defendant was found not guilty of unlawful sexual intercourse with a minor more than three years younger than the defendant. (Pen. Code, § 261.5, subd. (c).) There was a hung verdict, followed by a mistrial and dismissal for the charge of rape by use of drugs. (Pen. Code, § 261, subd. (a)(3).)
FACTS
T.J. was 17 years old when she went to a party at the home of her friend, Claire W., on November 30, 2002. T.J.’s friend Andrea S. and Andrea’s boyfriend, Joe S., arrived in a separate car at about the same time. There were several people at the party when T.J. arrived, including Jordan W., a young man T.J. had been seeing off and on. T.J. and some others went to the store and bought beer. Everyone was drinking. Various people were videotaping at the party. Someone found in the freezer some vodka, which was used to mix “screwdriver” drinks consumed by some of those present. Defendant arrived a couple of hours after T.J. arrived. Defendant introduced himself to her.
To further protect the disclosure of the victim’s identity we shall refer to all of the individuals at the party initially by their first name and the first initial of their last name, and then by their first name.
During the evening, T.J. drank approximately two and a half beers and had some vodka shots. At 12:30 a.m., T.J. went to Claire’s mother’s bedroom to take care of Claire’s sister Megan because Megan was sick. Andrea helped take care of Megan and then Andrea started feeling sick and she left with Joe S. T.J. had made plans previously to spend the night at Andrea’s house, but because Andrea was sick, Claire told T.J. she could sleep at Claire’s house.
At approximately 1 a.m., T.J. walked Jordan to his car. He kissed her and told her to call him in the morning. T.J. went back inside the house and then into the backyard. In the backyard, defendant approached her and asked her where her swimsuit was. T.J. did not understand what he was talking about, he said “your boyfriend.” T.J. said that Jordan had left. Defendant asked how old she was and T.J. said she was 17 years old.
Defendant and T.J. talked a couple of more seconds. T.J. could not remember anything else until she woke up the next morning. She was naked in the bed, she had a bowl next to her head, and her clothes were on the floor. She was lying in a pool of fluid; she surmised it was either her sweat or her urine.
T.J. got dressed and asked Claire what happened. Claire said to her, “You don’t remember?” T.J. said, no. Claire told T.J. she had been raped. T.J. responded that she could not have been raped because she was on her menstrual period.
T.J. went straight home and to her room. She called her sister on the telephone to tell her what happened. T.J.’s mother was listening at the door and barged into the room. T.J.’s father called the police. T.J. was shaky and weak, and she vomited.
Because T.J. was on her period she was using a tampon. She tried to remove the tampon, but she could not get it out. The police took her to the hospital. She was examined at the hospital. T.J. felt sick all day. She was in shock when she made her report to the police, and everything was blurry.
T.J. was examined by a sexual assault forensic examiner. The walls of her vagina were reddened and irritated. Her tampon was not in the vaginal canal but was at the cervix; this is not a normal position for a tampon. The examiner was not able to remove the tampon and required the assistance of a doctor to remove it utilizing a medical instrument. Semen was found and collected from T.J. during the exam.
Blood and urine samples taken from T.J. were analyzed by toxicologist B. L. Posey. T.J. had gammahydroxibutarate (GHB) in her blood and urine. She also had alcohol in her blood and urine. While GHB occurs naturally in the body, the amount present in T.J.’s urine was well over normal. GHB is one of the “date rape drugs.” It is a sedative and a hypnotic. It puts a person to sleep. Posey noted that someone under the influence of GHB will initially experience euphoria, then sloppy behavior, followed by unconsciousness. A person taking this drug can have no memory of what happened while under the influence of the drug. Posey said the dose given to T.J. had to be large to show up in her urine that many hours later. GHB metabolizes very quickly in the urine and blood. In addition to the effect of GHB by itself, GHB produces a higher level of alcohol in a person who is drinking in combination with taking the drug.
The Fresno Police Department detective investigating the case had a difficult time contacting witnesses and getting them to provide information.
Andrea testified at trial. She said that T.J. was drinking but she wasn’t “plastered.” She also testified that T.J. was not flirting with anyone while Andrea was at the party. Someone at the party had a video camera. Andrea left the party because her boyfriend Joe was Claire’s ex-boyfriend and Andrea felt uncomfortable being in Claire’s home with Joe.
Jordan, T.J.’s “boyfriend,” testified that he was at the party at Claire’s house. He testified that there was absolutely no drinking of alcohol at the party. He left the party and went home. After he got home, he received a call that T.J. was still at the party and was kissing guys. He returned to the party and asked where she was. The people at the party said they did not know where she was. He said that T.J. was not flirting or kissing other guys at the party when he was there. His reason for returning to Claire’s after he received the call regarding T.J. was to catch her in the act so he would have a reason to break off his relationship with T.J. He felt that T.J. liked him a lot but he did not really want the relationship to continue. He said he did not invite T.J. to the party because there were other girls there that he wanted to talk to.
One of Jordan’s friends, Brandon C., testified at trial. He testified that there was no drinking of alcohol at the party. He also said he did not see a video camera at the party. Brandon testified that he stayed at the party after Jordan left. He saw T.J. and defendant in a chair. When T.J. saw Jordan she dropped her hands as if she had been caught doing something. Brandon testified that T.J. appeared drunk when she arrived at the party.
Defense
Defendant’s friend for many years, Robert S., was at the party with defendant and another one of their friends, Brian F. Brian was dating Claire at the time. The three arrived at approximately 11:30. Robert testified that T.J. was making passes at defendant and telling him he was cute. He said that T.J. had a quasi-boyfriend at the party and the boyfriend was picking fights with T.J. Robert said that T.J. was walking around and was very coherent. He described the evening as a slow courtship between T.J. and defendant. T.J. grabbed defendant’s hand and walked defendant into the bedroom. Robert saw Claire go in the bedroom and heard her ask T.J. if she wanted to do this. According to Robert, T.J. said, “Yes, leave me alone.” A few minutes later one of the attendees at the party picked the lock to the bedroom. Everyone at the party was standing in the hallway. They saw that defendant and T.J. were nude and were having sexual intercourse. It appeared that they were having a good time. Defendant and T.J. got mad, they both got out of bed, and they both shut the door. When asked why the lock to the bedroom was picked, Robert testified that the group was playing around, was bored, and had inquiring minds. Robert thought there was a video camera but he did not know if anyone was taping the incident. Robert testified that Jordan came back to the party. He was mad and jealous. Jordan was told that T.J. was in the bedroom with defendant. Jordan and his buddies wanted to kick in the door but they were told to leave T.J. and defendant alone because they were having a good time.
Defendant’s long-time friend Brian was at the party and testified at trial. He said that he brought his own alcohol and there was alcohol at Claire’s home when he arrived. T.J. and defendant were talking on the couch. T.J. then walked into the bedroom with defendant. Brian testified that Claire knocked on the door; she and T.J. went into the bathroom. T.J. went back into the bedroom. Claire told Brian that she talked to T.J. and she said she was aware of what she was doing. Later Brian picked the lock on the door and 15 to 20 people went into the room as a gag. They turned on the light and laughed at T.J. and defendant. When they went into the room. defendant and T.J. had their clothes off. They covered their faces with pillows and told the others to get out of the room. The group left the room and turned off the lights. Jordan came back to the party looking for T.J. Brian told Jordan that T.J. was in the room with defendant and Jordan could not go in the room. Jordan said he was going to spread it around school that T.J. was easy. Jordan walked away. Brian said that T.J. did not appear to be intoxicated. He also recalled there was a video camera at the party. Brian left the party before defendant exited the bedroom.
Defendant testified on his own behalf. He was 21 years old at the time of the party. He arrived at the party at about 11 p.m. Everyone at the party was drinking. Claire introduced him to T.J.; she was very friendly and they flirted with each other. Defendant did not know that T.J. had a boyfriend and he did not ask her age.
Defendant said that T.J. brought him into the bedroom. There they began making out and T.J. took her pants off. Five or ten minutes after they entered the bedroom, Claire knocked on the door. T.J. and Claire talked in the bathroom and then T.J. returned. At the time T.J. went into the bathroom with Claire, T.J. did not have her pants on.
T.J. returned to the bedroom after her talk with Claire; defendant and T.J. began having sex. At one point, the door opened and a large group of those at the party saw them. Defendant and T.J. told the people to get out, and defendant got up and shut the door. They continued to have sex. Defendant testified that T.J. was involved in the sexual acts and knew what she was doing. They were in the bedroom for about 45 minutes. T.J. was not unconscious and she knew what she was doing. After they completed having sexual intercourse, defendant got up and left the room.
On cross-examination, defendant said he left the room after they had sex. They just had sex and there was no conversation involved. Defendant testified that after they had sex he did not hang out with T.J. at the party. When asked, “Why not?” by the prosecutor, defendant replied, “Why would I?”
Joe, Andrea’s boyfriend, testified that he left the party with Andrea before midnight because she was not feeling well. He said T.J. appeared “pretty buzzed.” He never saw T.J. flirting at the party.
It was stipulated that Brian had previously told officers that T.J. appeared intoxicated at the party and was unsteady on her feet.
DISCUSSION
I. Plea Negotiations
Penal Code section “290 requires anyone convicted of certain sex offenses to register for life as a sex offender.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) “Although sex offender registration is not considered a form of punishment under the state or federal Constitution [citations], it imposes a ‘substantial’ and ‘onerous’ burden. [Citations].” (Id. at p. 1197.) Penal Code section 261.5, unlawful sexual intercourse with a minor, does not require mandatory lifetime registration; registration for a conviction pursuant to this code section is discretionary. When a defendant is convicted of a violation of section 261.5 the trial court has the discretion to weigh the reasons for and against registration. (§ 290.)
All future code references are to the Penal Code unless otherwise noted.
Defendant was charged with three separate counts. Count 3 alleged that defendant engaged in unlawful sexual intercourse with a minor more than three years younger than he in violation of section 261.5, subdivision (c).
On May 15, 2006, the day jury selection began, the trial court discussed that an offer had been made to defendant to dismiss counts 1 (rape of an intoxicated person) and 2 (rape of an unconscious person) if defendant would plead guilty to count 3 (unlawful sexual intercourse with a minor).
The court made the following statement: “There had been some discussion over registration whether it was mandatory lifetime or not. We’ve spent some time discussing that issue. In addition to some cases that had been brought to the Court’s attention, the Court in looking briefly at Penal Code Section 290.5, although that … goes to the issue of certificate of rehabilitation which the Court believes is within the Court’s prerogative at the conclusion of probation or otherwise, might provide for the termination of any registration that was imposed as a matter of a condition of probation. The Court and the parties, of course, understanding that although it had been essentially the law for some time in In Re Alva [In re Alva (2004) 33 Cal.4th 254] A-L-V-A. made it clear that probation is a matter of administrative as opposed to punitive law for all the reasons that are set forth by way of clarification in Alva.
“In all events, Mr. Rai of course understands he has the absolute right to a jury trial. Absolute right to the presumption of innocence which will prevail until and unless a jury would find otherwise. An absolute right to remain silent. Those are among the constitutional benefits that he as any defendant would enjoy. And the Court thoroughly respects that.”
Defendant’s counsel acknowledged that he had discussed the plea offer many times with defendant, and defendant wished to continue on with the trial.
Defendant contends that the above quoted portion of the transcript illustrates that the court and the parties were not aware that mandatory lifetime sex offender registration was not required for a conviction under section 261.5. Thus, he argues that he was not properly advised of the consequences of accepting or rejecting a plea and was denied the effective assistance of counsel. He asserts that had he known he could receive probation with a misdemeanor sentence and not have had to endure a lifetime of mandatory registration, there is a reasonable probability that but for counsel’s errors he would have pleaded guilty. Accordingly, he claims he was prejudiced by trial counsel’s ineffectiveness.
Over two months prior to the time defendant rejected the plea offer, the California Supreme Court in People v. Hofsheier, supra, 37 Cal.4th at page 1197 made it clear that registration for a violation of section 261.5 is discretionary and not mandatory. Thus, at the time defendant rejected his plea the parties and the court should have been well aware of the parameters of registration. We find the record unclear on what the trial court was attempting to say about registration. A plausible interpretation would be that the court was suggesting it had the power to order registration terminable upon successful completion of probation.
In any event, we need not decipher what the trial court was saying in the above quoted portion of the record because defendant’s argument fails based on further plea discussions recited the following day. Neither defendant nor respondent cited to this dispositive portion of the record, although defendant cited to one sentence from it in his reply brief, omitting the most pertinent parts.
On May 16, 2006, the court stated that there was an offer extended by the People to defendant which the court would have accepted. The court asked the prosecutor to set forth the terms of the plea. The following discussion took place:
“MR. MURPHY [Prosecutor]: I’ll state what the offer would be. It would be basically a plea to Count three which is the common description, it’s a statutory rape violation of 261.5(c) of the Penal Code. Our offer basically would be a straight-up plea to that charge. The Court’s indicated would be no initial state prison, I believe, probation for three years, and the Court has indicated it would be receptive to the idea of a 17(b) [find a wobbler to be a misdemeanor] after the period of probation if he were to successfully complete probation without any violations. Part of that also would be that the Court would require as a term of his probation that he undergo the sexual offender counseling.
“THE COURT: As part of formal probation.
“MR. MURPHY: As part of his probation. And the accompanying rape charges, counts one and two, which each carry a maximum of eight years in state prison, would be dismissed as part of the plea.
“THE COURT: Mr. Ruiz?
“MR. RUIZ [Defense Counsel]: My further understanding is there was a possibility by which Your Honor was not going to require actual sexual registration.
“THE COURT: This court had agreed under the facts and circumstances that I know at this point, and as part of a settlement discussion, there would not be sexual registration as part of 290.
“MR. RUIZ: I conveyed that to my client. I recommend to my client he accept that offer in light of the circumstances of this case. My client has chosen to reject that offer and would like to proceed forward to trial.” (Italics added.)
Thus, defendant was told that if he accepted the offered plea he would not be required to register, he would be placed on probation, and the court would consider finding the crime to be a misdemeanor--all matters defendant now claims he did not know. Defendant claims that if he had known, he would have entered a guilty plea to the offer. Based on relevant portions of the record, undisclosed to us by the parties, this claim is frivolous and should never have been raised as an issue at all.
We note that in a letter to the court after he was convicted defendant states, “I am saddened, and foolish and stubborn to have not agreed to a plea bargain-the last of which was okay and not detrimental to life.”
II. Defendant’s Absence from Part of Jury Voir Dire
Because of the nature of this case, the trial court advised the prospective jurors that they could request to give certain information in chambers in the presence of counsel. During jury voir dire, several prospective jurors stated that they had information they would like to convey in chambers. These in-chambers discussions were held off the record.
A settled statement was filed in this court detailing more information about what occurred. “It is the practice of this Court during juror voir dire to emphasize the need for full and complete responses to questions asked of jurors. The jurors are expressly invited to ask the Court if they desire to respond to a particular question out of the presence of the other prospective jurors if a response would be embarrassing or difficult to enunciate in the presence of others. This practice is beneficial to all parties to insure a fair and impartial selection process when the subject matter, as in the instant case, involves allegations of sexual misconduct. In such event, jurors are advised that they will meet with counsel and the Court in the Court’s chambers. It is the Court’s further practice that such in camera conferences are, with the consent of counsel, off the record. The Court believes that prospective jurors are inclined to respond to questions more completely and/or to volunteer information if they do not believe a record is being contemporaneously made.
“In the instant case, the following jurors were interviewed, at the jurors’ request in camera with the Court and counsel present. The results of the in camera voir dire and ultimate disposition of the particular juror as follows:
“Juror No. Disposition
“18 Not excused for cause; excused by defense peremptory challenge.
“9 Excused for cause.
“15 Not excused for cause; excused by plaintiff peremptory challenge.
“17 Not excused for cause; juror sworn.
“20 Excused for cause.
“22 Not excused for cause; juror sworn.
“23 Excused for cause.
“All challenges and subsequent excusals for cause were by stipulation of counsel after in camera voir dire conference. Prospective jurors who are excused for cause are excused directly after the in camera voir dire. Those not so excused return to the courtroom for further voir dire and ultimate selection or peremptory challenge.
“During the voir dire process the plaintiff exercised six (6) peremptory challenges for the jury and one (1) peremptory challenge for alternates. The defense exercised six (6) peremptory challenges for the jury and two (2) peremptory challenges during the selection process for alternates.”
Defendant contends he was denied the right to be personally present at trial when the court conducted voir dire of seven potential jurors in chambers and off the record. Defendant’s counsel was present during these proceedings, but defendant was not. He claims that his absence from the proceedings deprived him of essential information for him to consult with his counsel on the potential juror issues.
“A criminal defendant’s federal constitutional right to be present at trial, largely rooted in the confrontation clause of the Sixth Amendment, also enjoys protection through the due process clause of the Fifth and Fourteenth Amendments [citation] ‘“whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,”’ but not ‘“when presence would be useless, or the benefit but a shadow.”’ [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 433.)
In People v. Ochoa, “[t]he trial court inquired of 12 prospective jurors who had marked on their juror questionnaires ‘confidential’ regarding specific questions. Two of these jurors … eventually served on the jury. The prosecutor and both counsel were present at these sidebar conversations. Defendant neither asked to participate nor objected to his absence.” (People v. Ochoa, supra, 26 Cal.4th at p. 433.) On appeal, the defendant argued that these sidebar conversations denied him his right to be present at trial.
The Supreme Court rejected the defendant’s argument. “Defendant has not indicated any way in which his presence at the sidebar conferences bore a reasonably substantial relation to his opportunity to defend himself. He admits the impossibility of knowing what sudden impressions and unaccountable prejudices he might have formed. Because there must be a ‘reasonably substantial relation’ to defendant’s ability to defend himself, and not a mere ‘shadow’ benefit, we must reject such claims based on undue speculation. [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at p. 433.)
Defendant argues here that his presence during the in camera proceedings would have contributed to the fairness of the procedure and it would have allowed him to have a voice in the selection of the jury. Defendant claims that Ochoa is distinguishable and reliance on it is misplaced because in Ochoa “the court was addressing the propriety of the defendant’s absence from side bar conferences outside the presence of the jury. [Citation.] Here, the jurors were present.”
Defendant refers to the Ochoa case as People v. Ortega. Defendant’s citation is to the Ochoa case.
We disagree with defendant’s interpretation of what happened in Ochoa. In Ochoa, “[t]he trial court inquired of 12 prospective jurors” and “the prosecutor and both counsel were present at these sidebar conversations.” (People v. Ochoa, supra, 26 Cal.4th at p. 433, emphasis added.) “[T]hese” clearly refers to the previous sentence regarding the inquiry of the prospective jurors.
The only difference between what happened in Ochoa and what happened here is that here the inquiry was done in chambers and in Ochoa the inquiry occurred at a sidebar conference. Ochoa is directly on point and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We note that defendant signed a waiver of his personal presence pursuant to section 977. This waiver included a statement that defendant’s “interest will be deemed represented at all times by the presence of his attorney the same as if the defendant himself were personally present in court.” Section 977 does not include jury voir dire as part of the proceeding where defendant must be personally present during a felony case.
III. Instructions on Mental State
The crimes charged against defendant (rape of an intoxicated person, rape of an unconscious person, unlawful sexual intercourse with a minor) were all general intent crimes. The jury was instructed pursuant to CALCRIM No. 250 on the union of acts and general intent crimes. The court found that it was not necessary to instruct the jury with CALCRIM No. 252, regarding the union of act and intent when there are general and specific intent crimes together. The court stated that CALCRIM No. 251, regarding the union of the act and intent when there is a requirement of specific intent or mental state, was withdrawn. Defendant had listed CALCRIM Nos. 251 and 252 on his list of requested jury instructions.
Defendant now claims the trial court made two independent and separate instructional errors. He asserts the trial court erred in failing to instruct the jury with CALCRIM No. 251 and CALCRIM No. 252. Although asserting that there are two separate instructional errors, the remainder of defendant’s argument is directed only at the failure to instruct pursuant to CALCRIM No. 252. He contends CALCRIM No. 250 does not sufficiently address the issues attendant to the differences in the three mental states required for the three charged crimes and confused the issues attendant to the mental requirements. He argues that the instructional errors lowered the prosecution’s burden of proof. He claims that the jury rendered inconsistent verdicts and this inconsistency was caused by the omitted instructions. Finally he sets forth the standard of prejudice assessment as the Chapman (Chapman v. California (1967) 386 U.S. 18) standard.
“It is well accepted that rape requires proof of a general criminal intent. [Citation.] General criminal intent is simply the intent to do the prohibited act. The act prohibited by Penal Code section 261, subdivision (a)(4) is the act of sexual intercourse with an unconscious person. The statute also contains an explicit mental state requirement that precludes conviction without proof that the perpetrator knew of the victim’s unconsciousness. The requisite general criminal intent is simply the intent to have sexual intercourse with an unconscious victim.” (People v. Dancy (2002) 102 Cal.App.4th 21, 36.)
CALCRIM No. 250 is the instruction that was given as follows: “Every crime or other allegation charged in this case requires proof of a union or joint operation of act and wrongful intent. In order to be guilty of the crimes of violation of Penal Code Section 261(a)(3), rape of an intoxicated woman in Count one; Penal Code Section 261(a)(4), rape of an unconscious woman, Count two; and-or Penal Code Section 261.5(c), unlawful sexual intercourse with a minor more than three years younger, a person must not only commit the prohibited act, or failed to do the required act, but must do so intentionally or on purpose. The act required is explained for each crime or allegation. However, it is not required that he intended to break the law.”
Because rape of an unconscious person requires both a general criminal intent and an explicit mental state, the trial court erred in not giving the jury an instruction on the union of act and the specific mental state. This language is contained in both CALCRIM No. 251 and CALCRIM No. 252. As contained in CALCRIM No. 251, the instruction on the union of act and specific mental state requirement is set forth as follows: “The crime[s] [(and/or) other allegation[s]] charged in this case require proof of the union, or joint operation, of act and wrongful intent.
“For you to find a person guilty of the crime[s] (in this case/ of __________ <insert name[s] of alleged offense[s] and count[s], e.g., burglary, as charged in Count 1> [or to find the allegation[s] of ______________ insert name[s] of enhancement[s]> true]), that person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [and/or] mental state). The act and the specific (intent/ [and/or] mental state) required are explained in the instruction for that crime [or allegation].
“<Repeat next paragraph as needed>
“[The specific (intent/ [and/or] mental state) required for the crime of ______ <insert name[s] of alleged offense[s] e.g., burglary> is ___________ <insert specific intent>.]” (CALCRIM NO. 251.)
While it is error for a court to not instruct on the concurrence of act and the explicit mental state, such an error is subject to a harmless error analysis. “[A] defect of this sort is subject to the general rule for error under California law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome.” (People v. Alvarez (1996) 14 Cal.4th 155, 220.)
We fail to see how defendant was prejudiced by the failure to give an instruction on the union of act and the explicit mental state. The jury was instructed that to find defendant guilty in count two of rape of an unconscious person it must find the following: “The defendant is charged in Count two with raping a woman who was unconscious of the nature of this act, a violation of Penal Code 261(a)(4). To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant had sexual intercourse with a woman. Two, he and the woman were not married to each other at the time of the intercourse. Three, the woman was unable to resist because she was unconscious of the nature of the act. And four, the defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. A woman is unconscious of the nature of the act if she is unconscious, or asleep, or not aware that the act is occurring.”
This instruction set forth in no uncertain terms that, in addition to the acts, the People must prove that defendant had the requisite mental state of knowing that the victim was unable to resist because she was unconscious of the nature of the act. In addition, the jury was instructed on reasonable doubt and told that the People must prove each element of a crime beyond a reasonable doubt. (CALCRIM No. 103.) These instructions substantially covered the concurrence of the act and the required explicit mental state. There is no reasonable probability that the omitted instruction had an effect on the outcome.
We reject defendant’s remaining arguments regarding the instructional error. Although defendant claims the instructional error lowered the prosecution’s burden of proof, he makes only a general allegation and fails to explain how this lowered the prosecution’s burden of proof. Again, as previously set forth, the instructions to the jury clearly set forth the elements that had to be proved by the People beyond a reasonable doubt in order to find the defendant guilty of rape of an unconscious person. The error did not lower the prosecution’s burden of proof.
Defendant contends the jury delivered inconsistent verdicts and this inconsistency was caused by the omitted instructions. Again, defendant’s allegation of inconsistent verdicts is a general allegation made without explanation of how the verdicts were inconsistent and how this inconsistency affected the outcome. Defendant’s perfunctory claim made without supporting argument invites rejection in a similar fashion. We consider this issue forfeited because it is not supported by sufficient argument. (People v. Dixon (2007) 153 Cal.App.4th 985, 996.)
Finally, defendant argues “there was certainly a reasonable likelihood that the jury applied the instructions in a way that prejudicially violated [defendant’s] federal constitutional rights.” As previously set forth, the instructional error did not result in the omission of an instruction on the required mental state; thus the error is one of California law and is not judged under the more stringent standards for error of federal constitutional dimension. In addition, defendant’s conclusory argument is not supported by any discussion tied to the facts of this case.
Error in failing to instruct on the union of act and the specific mental state was not prejudicial.
IV. Substantial Evidence
Defendant contends the prosecution did not present sufficient evidence that T.J. was unconscious or that defendant knew she was unconscious at the time of the rape.
“In reviewing the sufficiency of the evidence to support a conviction, we determine ‘“whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” [Citations.]’ [Citation.] Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. [Citations.] The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. [Citations.]
“In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We simply consider whether ‘“‘any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.’” ‘[Citations.]’ [Citation.] Unless it is clearly shown that ‘on no hypotheses whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
We begin by noting the following major deficiency in defendant’s argument. “‘In support of his … point counsel makes no attempt to comply with the cardinal rule of appellate practice that all of the evidence, both favorable and unfavorable, must be presented in appellant’s brief so that the court may determine whether there is any substantial evidence to support the finding of guilt [citation]. The rule extends to criminal as well as civil cases.’” (People v. Martinez (1966) 239 Cal.App.2d 161, 177-178.)
Defendant cites only evidence favorable to his argument and ignores completely the unfavorable evidence. In addition, in clear violation of the law governing substantial evidence claims, defendant utilizes evidence contained in the probation officer’s report to support his position. The probation officer’s report was not evidence at trial and has no place in a review for substantial evidence.
Incredibly, defendant argues the error should be judged utilizing a Chapman (Chapman v. California, supra, 386 U.S. 18.) prejudice standard of review. This argument demonstrates ignorance of well-established laws of appellate review. If a conviction is not supported by substantial evidence, it requires automatic reversal with retrial prohibited. A prejudice analysis is not relevant in an argument claiming that substantial evidence does not support the conviction. Because we find substantial evidence, defendant’s sophomoric argument concerning standard of review does not come into play.
We agree with the People’s analysis as follows: “As the jury was instructed, ‘[a] woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring.’… In the instant case, [T.J.] testified that beginning a few minutes after she began speaking with appellant in the backyard, she had no further recollection of the night…. The next morning she woke up naked in the bedroom of Claire’s brother…. Her clothes were scattered on the floor and she was surrounded by a pool of either sweat or her own urine…. Blood tests indicated that [T.J.’s] blood alcohol level at 1 a.m. would have been approximately .3 grams percent, nearly four times the legal limit for driving…. Moreover, a urine sample showed that she had an amount of GHB in her system which was consistent with an individual who had been under the influence of GHB in the previous 24 hours…. The assertion that [T.J.] had not been aware of the nature of the act was corroborated by the fact that her tampon had not been removed but had been shoved to the entrance to her cervix and had to be removed by a doctor using a metal device. Moreover, the walls of the victim’s vagina were reddened…. Clair told [T.J.] that appellant had to help [T.J.] to the bedroom because she couldn’t walk….” (Record citations omitted.)
In addition, the expert testified that GHB can cause unconsciousness.
These same facts support a finding that defendant knew T.J. was unconscious at the time he raped her.
In his reply brief, defendant points to discrepancies in the record and claims that these great discrepancies should result in a finding that no rational trier of fact could find him guilty beyond a reasonable doubt. “Incompatibility and discrepancies in testimony, if any; the uncertainties of a witness in giving testimony, as well as contradictions in the evidence, are matters solely for the consideration of the trier of fact in the first instance and for the consideration of the trial judge on a motion for a new trial. Such matters cannot be considered by us if, as in the instant case, there is substantial evidence to support the findings of the trier of fact.” (People v. Coelho (1945) 68 Cal.App.2d 705, 706.)
Substantial evidence supports the conviction.
V. Cumulative Error
Defendant claims that even if each individual error is not prejudicial by itself, the combination of errors requires reversal. Defendant has shown only one error. We have already found such error to be harmless. His cumulative error argument fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., GOMES, J.