The opinion
Filed 11/25/24 P. v. Mendoza CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082516
Plaintiff and Respondent,
v. (Super. Ct. No. SCN411058)
DANIEL MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert J. Kearney, Judge. Affirmed.
Patrick Morgan Ford for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal, Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Daniel Mendoza of rape of an unconscious person (Pen.
Code,1 § 261, subd. (a)(4); count 1); attempted forcible rape (§§ 664, 261,
subd. (a)(2); count 2); attempted rape of an unconscious person (§§ 664, 261,
subd. (a)(4); count 3); and sexual battery by restraint (§ 243.4, subd. (a);
count 4). The court sentenced Mendoza to prison for eight years.
Mendoza appeals, contending that substantial evidence does not
support his conviction for count 1, and the court prejudicially erred in
admitting evidence of two incidents of uncharged conduct under Evidence
Code section 1108. We conclude that neither of Mendoza’s arguments have
merit and thus affirm the judgment.
FACTUAL BACKGROUND
Prosecution
Count 1
On May 25, 2019, Kimberly M. attended her friend Sergio B.’s wedding
at a rental house in San Marcos. Mendoza also was at the wedding.
Kimberly had met Mendoza through friends around 2015 or 2016.
Kimberly was drinking throughout the evening. She had six beers and
at least four shots of whiskey. She later started feeling sick. She was
“coming in and out” and felt “drunk.” She sat down in a chair and the next
thing she remembered she was in the bathroom throwing up in the toilet.
A few people were in the bathroom with her, including Mendoza and her
friend, Omar. Mendoza was trying to help her and was holding her hair.
The next thing Kimberly knew, she was laying down in a bed. She
woke up when she felt a sensation in her vagina. She “felt someone’s penis
inside of [her].” She could tell it was a penis based on the size, shape, and
feeling. She was on the left side of the bed, lying on her right side at the
1 Statutory references are to the Penal Code unless otherwise specified.
2
time. The penis was going “back and forth” inside of her, and then she felt a
wetness. She heard someone “trying to shush [her] back to sleep” and there
was an arm around her. She sat up. Her dress was still on, but her
underwear were around her knees. Mendoza was lying beside her on the
right side of the bed.2 She got out of bed and ran into the bathroom. She
decided to find her belongings and go home. She walked out of the bathroom
and saw Mendoza pulling up and zipping his pants.
Kimberly walked out of the bedroom. She saw Sergio and asked him to
find her belongings. Kimberly was talking rapidly and kept saying she just
wanted to go home. Sergio found her keys and phone and told her to drive
home safely. She started to drive home and drove into a ditch. She sent
Sergio a text message. He went outside to help, and Kimberly started crying.
She told him that Mendoza raped her. Sergio was in shock and gave her a
hug. Kimberly then messaged her friend Marissa Q. to pick her up.
When Marissa arrived, Kimberly was crying. As they were driving,
Kimberly told Marissa that Mendoza “sexually assault[ed]” her. Marissa
convinced Kimberly to report the assault and drove her to the police station.
Kimberly was interviewed by police. During the initial interview, Kimberly’s
voice was cracking and she was crying as she reported the incident. She was
interviewed later by police, and she was still upset and crying.
Kimberly underwent a SART (Sexual Assault Response Team) exam.
The SART nurse found evidence of physical trauma in Kimberly’s vaginal
2 At trial, a witness testified on cross-examination that Kimberly told her
that when she woke up, Mendoza was on top of her. On redirect, the
prosecutor asked the witness, “Do you remember at all what [Kimberly’s]
language was or was it just on top of me?” The witness responded, “That he
was inside of her.” In addition, the initial interviewing officer testified that
Kimberly told her that Mendoza was on top of her.
3
area and redness or abrasion to her cervix. Kimberly disclosed to the SART
nurse that she had sex with her ex-boyfriend within five days before Mendoza
assaulted her. A DNA swab from Kimberly’s mons pubis later tested against
a sample taken from Mendoza indicated moderate support for inclusion but a
“sperm fraction” swab taken from the same area excluded Mendoza as a
contributor.
Counts 2 through 4
On November 8, 2019, Mendoza went to a party at the home of
Cynthia D. and her boyfriend, Andres B., where everyone was drinking.
During the party, Mendoza asked another guest, Giancarlo S., to go with him
to buy beer. Mendoza said he wanted to get more beer to get the girls drunk
so he could “hook[ ] up with them.”
When they got back to the party, Giancarlo fell asleep on the floor in
the living room. Giancarlo woke up and saw Mendoza in the kitchen being
“touchy” with Cynthia, who appeared drunk. Giancarlo later confronted
Mendoza, and Mendoza told him he was not trying to do anything and would
never disrespect Andres or Cynthia.
At some point, Andres went to his bedroom and went to sleep. Cynthia
was intoxicated and passed out on the couch in the living room. Giancarlo
put a blanket on her and went back to sleep on the floor next to her.
After passing out on the couch, Cynthia came to in the bathroom. She
did not know how she got there. Mendoza also was in the bathroom. She was
sitting on the toilet, and Mendoza was standing in front of her. He was
naked and holding Cynthia’s hand on his erect penis. She could see that the
bathroom door was locked. Mendoza then lifted her shirt and her sports bra,
exposing her nipples. Mendoza’s bare hand touched Cynthia’s breasts. The
next thing she remembered was facing the sink and holding onto the front of
4
her leggings. Mendoza was standing behind her, trying to pull down her
leggings. She did not remember how, but somehow she was able to get out of
the bathroom.
Giancarlo woke up to Cynthia screaming and then saw Cynthia and
Mendoza come out of the bathroom. Cynthia was hysterical; she was crying.
She screamed at Mendoza to get out of her apartment. Mendoza said he was
sorry, but he had a crush on her. He then left the apartment.
Giancarlo stayed with Cynthia to help calm her down. At that point,
she told him that Mendoza tried to rape her. Giancarlo called his friend,
Eduardo R., who had been at the party earlier, to come back and take
Cynthia to the police station, but it was closed. So, he took her home. Her
mother later took her to the hospital where she made a report and underwent
a SART exam. DNA swabs taken from Cynthia’s breasts were later tested
against a DNA sample taken from Mendoza. There was strong support for
inclusion from Cynthia’s right breast and moderate support for inclusion
from Cynthia’s left breast.
Defense
Mendoza offered three female witnesses who had known Mendoza for a
long time and testified that he was always helpful and never inappropriate.
DISCUSSION
I
COUNT 1
A. Mendoza’s Contentions
Mendoza argues that substantial evidence does not support the jury’s
verdict on count 1 (rape of an unconscious person). To this end, he points out
other evidence that he claims undermines Kimberly’s testimony that she felt
Mendoza’s penis inside of her. This evidence includes: (1) Kimberly telling
5
law enforcement that she assumed what was inside of her vagina was a penis
“because what else would be inside of [her]”; (2) Kimberly answering
“Correct” to the cross-examination questions “you said you just assumed that
it was a penis” and “. . . you also said you don’t know”; and (3) Kimberly
responding with “Yeah” when asked if “[i]t’s correct that there could be other
things that could be pressing your―inside of you; correct?”
B. Standard of Review
“In assessing a claim of insufficiency of evidence, the reviewing court’s
task is to review the whole record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.) We do not reassess the credibility of
witnesses, and we draw all inferences from the evidence that supports the
jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Unless it
is physically impossible or inherently improbable, the testimony of a single
witness is sufficient to support a conviction. (People v. Young (2005)
34 Cal.4th 1149, 1181.) If substantial evidence supports the verdict, we defer
to the trier of fact and do not substitute our evaluation of witness credibility
for that of the jury. (People v. Snow (2003) 30 Cal.4th 43, 66.) If the record
supports the jury’s findings, our belief that the circumstances might also
reasonably support a contrary finding does not warrant a reversal of
judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.)
C. Analysis
Rape of an unconscious person requires proof of (1) an act of sexual
intercourse, (2) where the victim “is at the time unconscious of the nature of
the act,” and (3) “this is known” by the defendant. (§ 261, subd. (a)(4).)
6
“Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis.” (People v. Mendoza (2015) 240 Cal.App.4th
72, 79.)
Here, Mendoza’s substantial evidence challenge focuses on whether the
evidence establishes that he penetrated Kimberly’s vagina with his penis.
We determine that substantial evidence supports the jury’s finding that he
did so.
At trial, Kimberly testified in detail to the rape that Mendoza
committed. She explained that she woke up because she felt what she was
sure was a penis inside of her. She could tell it was a penis by the size,
shape, and feeling. The penis was going “back and forth” inside of her and
then she felt a wetness. When she sat up in bed, she saw Mendoza next to
her. Shortly thereafter, she also saw Mendoza pulling up and zipping his
pants.
Further, Kimberly explained to the jury she had previously had sex and
was familiar with the shape and feeling of a penis “compared to anything
else.” She also implied that she told the police that she assumed Mendoza’s
penis was in her because she had never been asked how to articulate how she
knew an actual penis was inside of her.
Kimberly then reported the rape to Sergio, who corroborated that
Kimberly had told him that Mendoza raped her. Kimberly also told her
friend Marissa about Mendoza sexually assaulting her, and Marissa
corroborated that report. The SART nurse found evidence of physical trauma
in Kimberly’s vaginal area.
In addition, Deputy Sheriff James Petruse, who interviewed Kimberly
after her encounter with Mendoza, testified that he spoke with Kimberly over
“[a] few hours.” At one point during the interview, Kimberly, when pressed
7
to articulate how she knew Mendoza’s penis was in her, responded, “I don’t
know; I don’t know.” However, during the rest of the interview, Petruse
indicated that Kimberly did not express any doubt that Mendoza’s penis was
inside her. Indeed, Petruse testified that Kimberly “told [him] she felt a
penis inside of her.”
Nonetheless, Mendoza argues that there was insufficient evidence to
support a finding that he had sexual intercourse with Kimberly, relying on
Kimberly’s statement to police that she assumed what was inside of her was
a penis. Therefore, Mendoza claims that Kimberly could have been
penetrated by something else, like a finger. And Mendoza emphasized that
there were no traces of his sperm found on Kimberly. However, the jury
heard this evidence, found Kimberly credible, and concluded that Mendoza
had sexual intercourse with her. By pointing out the evidence that calls into
question Kimberly’s direct trial testimony or suggests that a different
inference should be drawn, Mendoza is merely asking us to reweigh the
evidence. That is not our role in a substantial evidence review. (See
People v. Stewart (2000) 77 Cal.App.4th 785, 790 [“In making our
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.”].)
In short, Kimberly testified that Mendoza had sexual intercourse with
her. She further testified that she knew it was Mendoza’s penis in her
because she is familiar with the shape, size, and feeling of a penis.
Kimberly’s testimony did not describe an event that was physically
impossible or inherently improbable; it was sufficient to support Mendoza’s
conviction under count 1. (See People v. Young, supra, 34 Cal.4th at p. 1181.)
8
II
EVIDENCE OF UNCHARGED ACTS
A. Mendoza’s Contentions
Mendoza asserts the trial court prejudicially erred by admitting
evidence of two incidents of uncharged sexual offenses under Evidence Code
sections 352 and 1108 to establish Mendoza’s propensity to commit the
charged offenses.
B. Background
1. Pretrial
The prosecutor moved in limine to admit evidence of two uncharged
sexual acts by Mendoza under Evidence Code section 1108. Both events
involved Mendoza’s involvement with victims who were unconscious and/or
intoxicated. In the first incident, Mendoza was found in a locked bedroom,
wearing only his boxers, and a fully clothed woman was passed out on the
bed in that bedroom. In the second incident, Mendoza parked his car in a
church parking lot while his passenger, a woman, was intoxicated and had
fallen asleep. He moved close to her and tried to pull her close to him
multiple times. He eventually drove the woman home.
The prosecutor argued that the circumstances surrounding the
uncharged sexual acts were substantially similar to the current offenses, in
that Mendoza would find a heavily intoxicated female, would isolate himself
with her, wait for the female to fall asleep or pass out, and then try to initiate
sex or some sort of sexual conduct with her. The prosecutor observed that the
two uncharged acts were both within a year or two of the charged offenses.
The prosecutor also maintained that the probative value of the uncharged
acts was not outweighed by the prejudicial effect because the facts of the
uncharged acts were less egregious than the circumstances surrounding the
9
charged offenses. Mendoza moved to exclude evidence of his uncharged sex
offenses, arguing the evidence was speculative and more prejudicial than
probative.
The court held an Evidence Code section 402 hearing in which
witnesses testified about the two events.3 After testimony of the incident
wherein Mendoza was found wearing only his boxers in a locked room with
an unconscious woman, the court determined that “one could find by a
preponderance that it was either the intent to commit rape or sexual
battery[.]” The court then explained that the subject incident was
substantially similar to the charged offenses. It also found that the incident
was less inflammatory than the charged offenses, there was not a probability
that the jury would be confused by the testimony of the uncharged act,
evidence of the incident would not consume an undue amount of time, and
the uncharged incident occurred within a contemporaneous time frame to the
charged offenses.
The next day, the court heard testimony about the church parking lot
incident. At the conclusion of that testimony, the court observed:
“All right. I do find that the conduct would be consistent
with the other three incidents, that there was a sexual
intent either—well, she described a sexual battery. Could
be an attempt to do further things. And I think under
[Evidence Code section] 352—this is not based on the
factors I decided yesterday. I don’t think that this is
prejudicial unduly or inappropriately, as compared to the
charged counts under the [Evidence Code section] 1108
situation.”
3 The hearing took place over two days.
10
Thus, the court separately considered each of the uncharged incidents
and determined that both were admissible under Evidence Code
sections 1108 and 352.
2. Trial
At trial, Athena M. and Omar L. testified about the two uncharged
incidents. Their testimony at trial was consistent with their testimony at the
Evidence Code section 402 hearing.
In October 2017, Athena was at a party in San Marcos where she was
drinking. Mendoza, who was Athena’s friend, also was at the party. Athena
and a friend decided to leave the party and took an Uber to Athena’s house.
Athena was intoxicated at that time. When they arrived at Athena’s house,
Athena saw that Mendoza and a group of males they had just met at the
party had followed them home. Mendoza was in his car, and the other males
were in another car. The group of males were trying to get Athena and her
friend to go with them to another party. Mendoza convinced Athena to ride
with him to the party.
Athena sat in the front passenger seat and fell asleep. She woke up
because she felt someone close to her face. Upon waking up, Athena noticed
they were parked in a large church parking lot. Athena asked Mendoza why
they were parked there. Mendoza said he pulled over because he thought he
saw a police officer and got scared. Athena did not see a police car and asked
Mendoza to take her home. Mendoza agreed, and Athena fell asleep again.
She woke up when she felt Mendoza touching the left side of her upper torso,
underneath the armpit. They were still in the parking lot. She felt
uncomfortable, yelled at him, and told him to take her home. Mendoza said
he would take Athena home. She put her head on the window and fell asleep
again. She then felt him “tugging” at the left side of her body and woke up.
11
She told him that if he did not take her home, she was going to call an Uber.
Mendoza started the car and took her home.
Omar testified that in 2018 or 2019, he was at a party with a group of
people. Mendoza was at the party as well. One of the women that Omar
went to the party with drank too much and blacked out. Some other women
put the unconscious woman in a bedroom to sleep. About an hour later, some
of the women “started asking where [Mendoza] was.” So, the group started
looking for him with the women looking inside the house, and the men
looking outside. The men did not find Mendoza outside. The women found
the door to the bedroom where they had placed the unconscious woman was
locked; thus, they started “banging on the bedroom door” for three to five
minutes. Omar could see through an outside window into the bedroom and
saw Mendoza standing inside the bedroom. Mendoza’s eyes were “going up
and down” like he was “looking for something to do or, like, something―to get
out.” Also, Mendoza was not wearing a shirt or pants. He was just wearing
his boxers. Mendoza unlocked the door, and some of the women entered the
room and then carried out the unconscious woman to a car. She did not
appear to be disheveled or look like her clothes were taken off her.
In addition, Omar testified that, sometime in 2017 or 2018, “the day
[after] [they] had [all] gone drinking,” Athena told him about an incident with
Mendoza, after which, she “wasn’t feeling herself as a woman, like, clean or
after sex[.]” Omar later reiterated that Athena had told him that she felt like
she had had sex with Mendoza after a party.
During trial, over the objection of Mendoza’s counsel, the court
instructed the jury with CALCRIM No. 1191A, Evidence of Uncharged Sex
Offenses, as follows:
“The People presented evidence that the defendant
committed the crime of attempted rape of unconscious
12
woman that were [sic] not charged in this case. This crime
is defined for you in these instructions.
“You may consider this evidence only if the People have
proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offenses. Proof
by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must
disregard this evidence entirely.
“If you decide that the defendant committed the uncharged
offenses, you may, but are not required to, conclude from
that evidence that the defendant was disposed or inclined
to commit sexual offenses, and based on that decision, also
conclude that the defendant was likely to commit and did
commit rape of an unconscious woman, attempted rape by
force, attempted rape of unconscious woman, and sexual
battery, as charged here. If you conclude that the
defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that
the defendant is guilty of rape of unconscious woman,
attempted rape by force, attempted rape of unconscious
woman, and sexual battery. The People must still prove
each charge beyond a reasonable doubt.”
C. Standard of Review and Applicable Law
Character or disposition evidence is generally inadmissible to prove a
defendant’s conduct on a specified occasion. (Evid. Code, § 1101,
subds. (a), (b).) Evidence Code section 1108 “is an exception to the general
prohibition against admitting character evidence to prove criminal
disposition or propensity.” (People v. Jandres (2014) 226 Cal.App.4th
340, 352; accord, People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) It
provides: “In a criminal action in which the defendant is accused of a sexual
13
offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) In
enacting this statute, the Legislature found that “evidence of uncharged
sexual offenses is so uniquely probative in sex crimes prosecutions it is
presumed admissible without regard to the limitations of Evidence Code
section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405; see
People v. Fitch (1997) 55 Cal.App.4th 172, 179 [“Evidence of a prior sexual
offense is indisputably relevant in a prosecution for another sexual offense”].)
Section 1108 specifically defines “ ‘[s]exual offense’ ” as “a crime under the
law of a state or of the United States” (Evid. Code, § 1108, subd. (d)(1)), that
involves certain listed offenses or types of conduct, including sexual battery
and rape of an unconscious person (id. at subd. (d)(1)(A); Pen. Code,
§§ 243.4, 261, subd. (a)(4)(A)).
In determining whether to admit propensity evidence under Evidence
Code section 1108, a trial court weighs several factors: “(1) whether the
propensity evidence has probative value, e.g., whether the uncharged conduct
is similar enough to the charged behavior to tend to show the defendant did
in fact commit the charged offense; (2) whether the propensity evidence is
stronger and more inflammatory than evidence of the defendant’s charged
acts; (3) whether the uncharged conduct is remote or stale; (4) whether the
propensity evidence is likely to confuse or distract the jurors from their main
inquiry, e.g., whether the jury might be tempted to punish the defendant for
his [or her] uncharged, unpunished conduct; and (5) whether admission of the
propensity evidence will require an undue consumption of time.” (People v.
Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
14
“[Evidence Code s]ection 352 articulates the general rule that ‘[t]he
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.’ ”
(People v. Erskine (2019) 7 Cal.5th 279, 296.) “ ‘By subjecting evidence of
uncharged sexual misconduct to the weighing process of [Evidence Code]
section 352, the Legislature has ensured that such evidence cannot be used in
cases where its probative value is substantially outweighed by the possibility
that it will consume an undue amount of time or create a substantial danger
of undue prejudice, confusion of issues, or misleading the jury. [Citation.]
This determination is entrusted to the sound discretion of the trial judge who
is in the best position to evaluate the evidence.’ ” (Falsetta, supra, 21 Cal.4th
at pp. 917–918.) We will not disturb that ruling on appeal, absent a showing
that the court exercised its discretion in an “arbitrary, capricious, or patently
absurd manner.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
D. Analysis
Here, Mendoza raises two challenges to the admission of the uncharged
acts evidence. First, he contends the prosecutor failed to “clearly identify the
relevant qualifying offense [Mendoza] had committed in the uncharged acts.”
In other words, neither uncharged act satisfied all the elements of any of the
enumerated offenses set forth in Evidence Code section 1108,
subdivision (d)(1)(A). Second, Mendoza argues the trial court erred in finding
the subject evidence admissible under Evidence Code section 352. Although
we find no merit in the latter argument, the former is well taken.
Section 1108 authorizes admission of certain evidence only if the
conduct described by that evidence amounts to a “crime.” (§ 1108,
15
subd. (d)(1).) Indeed, the statute enumerates the specific crimes that qualify.
(Id., subd. (d)(1)(A).) The People refer to both uncharged acts as “attempts to
commit rape of an unconscious person in violation of section 261,
subdivision (a)(4)” and, as such, they both “undisputedly qualify as qualifying
offenses under Evidence Code section 1108.” However, the People’s argument
assumes that the two uncharged acts, even if all the facts are believed by the
jury, could constitute attempted rape of an unconscious person. Tellingly,
beyond this assumption, the People do not offer any argument, specifically
considering the evidence of the uncharged acts, explaining how that evidence
proves an attempted rape of an unconscious person. Thus, the People engage
in no elements analysis. Rather, they argue that it was not the trial court’s
task to determine whether the evidence of the uncharged acts constituted a
sexual offense. According to the People, the trial court merely had to
determine if the evidence was probative, and then the jury had to consider
whether the evidence was sufficient to show the attempted rape of an
unconscious person.4
The problem with the People’s analysis of Evidence Code section 1108
is that it ignores a fundamental requirement of that statute. Evidence Code
section 1108 provides an exception to the general prohibition against
character evidence (id., § 1101), if three conditions are met: (1) the defendant
is charged with a sexual offense; (2) the evidence sought to be admitted must
be of “another sexual offense or offenses;” and (3) Evidence Code section 352
does not render the proffered evidence inadmissible. (Id., § 1108, subd. (a).)
Further, the statute explicitly defines the term “sexual offense” and provides
specific code sections describing the various offenses. (Id., subd. (d)(1)(A).)
4 We are left to guess how the evidence could be probative if the evidence
did not prove a prima facia case of one of the enumerated sexual offenses.
16
Because it is the province of the trial court to determine the admissibility of
evidence, it logically follows that the court must determine whether the
requirements of Evidence Code section 1108 are met before the other acts
evidence can be put before the jury. Indeed, the trial court appears to have
engaged in such analysis in allowing the evidence of the uncharged acts.
After hearing Omar’s testimony, the court determined that “one could find by
a preponderance that it was either the intent to commit rape or sexual
battery[.]” And after hearing Athena’s testimony, the court noted that she
“described a sexual battery. Could be an attempt to do further things.” Thus,
the court determined that the evidence regarding the two uncharged acts, at
the very least, could constitute sexual battery if not attempted rape of an
unconscious person. However, the court just instructed the jury that the
uncharged acts could have constituted attempted rape of an unconscious
person and told the jury it could only consider the evidence if it determined
that the prosecution proved by a preponderance of the evidence that Mendoza
in fact committed the uncharged offenses. We therefore first look at the
evidence of the uncharged acts to ascertain if that evidence satisfies all the
elements of attempted rape of an unconscious person if we accept the
evidence as true.5
Rape of an unconscious person in violation of section 261,
subdivision (a) is “an act of sexual intercourse accomplished under any of the
following circumstances: [¶] . . . [¶] (4) If a person is at the time unconscious
of the nature of the act, and this is known to the accused. As used in this
paragraph, ‘unconscious of the nature of the act’ means incapable of resisting
5 We emphasize that we are not weighing the evidence. Instead, we
simply are accepting the evidence as true and determining whether it would
satisfy the elements of the crime such that the evidence would be admissible
under Evidence Code section 1108.
17
because the victim meets one of the following conditions: [¶] (A) Was
unconscious or asleep. . . .” “ ‘An attempt to commit rape has two elements:
the specific intent to commit rape, and a direct but ineffectual act done
toward its commission.’ ” (People v. Lee (2011) 51 Cal.4th 620, 633, quoting
People v. Guerra (2006) 37 Cal.4th 1067, 1130 (Guerra).) “The act must be a
direct movement beyond preparation that would have accomplished the crime
of rape if not frustrated by extraneous circumstances.” (Guerra, at p. 1130.)
“Proof of even slight acts beyond preparation done in furtherance of the
intent to rape will constitute an attempt. [Citations.]” (Id. at p. 1132.)
“A defendant’s specific intent to commit a crime may be inferred from all of
the facts and circumstances disclosed by the evidence.” (Id. at p. 1130.)
We begin by considering the evidence offered by Omar. The fact that
Mendoza was found in a locked room with an unconscious woman, and he
was wearing only his boxers might suggest that he had the intent to rape the
woman. That said, we see nothing in the evidence that shows Mendoza had
progressed passed the planning stage of the crime. There was no indication
that the unconscious woman’s clothes or even a portion of her clothing had
been removed or adjusted so that Mendoza would have been able to attempt
to engage in sexual intercourse with her. In other words, even if we accept
everything that Omar testified to as true, that evidence does not show that
Mendoza engaged in some act, beyond preparation, that would have
accomplished the crime of rape of an unconscious person had Mendoza not
been “frustrated by extraneous circumstances.” (See Guerra, supra, 37
Cal.4th at p. 1130.) At most, the evidence shows that Mendoza was planning
to rape or assault an unconscious woman. It did not show an attempt to do
so.
18
Athena’s testimony paints a picture that is even further removed from
establishing the elements of attempted rape of an unconscious person than
Omar’s testimony. Both Athena and Mendoza were fully clothed. And
although Mendoza was moving close to Athena and trying to pull her close to
him, his actions were thwarted by Athena waking up. The evidence does not
suggest that had Athena not woken up when she did that Mendoza was able
to commit rape. He still had to remove some of Athena’s clothing as well as
his own. Clearly, the evidence shows, at most, that Mendoza was in the
planning stage of committing rape or assault of an unconscious person.
There was no attempt.
We observe that the trial court also indicated that both uncharged
incidents could have supported the crime of sexual battery. Putting aside the
fact that the trial court did not instruct the jury to consider the uncharged
acts as potential sexual assaults, we nonetheless conclude that the evidence
falls short of establishing a sexual battery.
The elements of sexual battery are (1) a touching (2) of the skin (3) of
an intimate part of the victim, (4) against the victim’s will, (5) while the
victim is unlawfully restrained, (6) for the purpose of sexual arousal, sexual
gratification, or sexual abuse. (§ 243.4, subds. (a), (d) & (f).) Misdemeanor
sexual battery requires (1) a touching (2) of an intimate part of the victim,
(3) against the victim’s will, (4) for the purpose of sexual arousal, sexual
gratification, or sexual abuse. (Id., subd. (e).) Misdemeanor sexual battery
does not require the touching to be of the victim’s skin. (People v. Dayan
(1995) 34 Cal.App.4th 707, 715–716.)
Here, even if a jury were to believe all the evidence presented about the
two uncharged acts, it could not find that sexual battery had been committed
as a matter of law. There was no evidence offered at trial that Mendoza
19
touched an intimate part of either of the victims. For the unconscious woman
in the locked room, there was no evidence offered that Mendoza ever touched
the woman. Regarding Athena, the evidence was that Mendoza touched her
under the armpit on her upper torso. There is no evidence that he touched an
intimate part of Athena’s body. Moreover, our analysis does not change if we
credit Omar’s testimony where he stated that Athena told him that she
believed she had sex with Mendoza. It was unclear from Omar’s testimony
that Athena was referring to the same night in which Mendoza drove her to
the church parking lot. Moreover, nothing in Athena’s trial testimony could
be interpreted as her stating that she believed Mendoza had sex with her on
that night.
Our conclusion here that the evidence of the other acts testified to by
Athena and Omar did not satisfy the elements of attempted rape of an
unconscious person or sexual battery should not be interpreted as our
approval of Mendoza’s conduct in any way. In fact, his actions appear to be
quite odious and follow a distinct pattern.6 That said, we cannot add words
6 The evidence of the charged crimes and the uncharged acts clearly
evidence a pattern. And Evidence Code section 1101, subdivision (b) permits
“the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . . ) other than his or her disposition to commit such an act.”
Evidence of another act, therefore, can be admissible if it is relevant to prove
a fact such as motive, opportunity, intent, plan, or knowledge. (Evid. Code,
§ 1101, subd. (b); People v. Davis (2009) 46 Cal.4th 539, 602.) Here, it seems
the uncharged acts show Mendoza engages in a pattern of finding an
intoxicated female, isolating her, and then taking other unwanted actions
toward her. However, the evidence presented in the instant action regarding
the uncharged acts falls short of showing any touching that would qualify as
sexual battery or any act that would support a finding of attempted rape of
an unconscious person.
20
to a statute or evidence to the record. And as section 1108 is written, the
People failed to provide sufficient evidence that would support a finding that
either of the two uncharged acts constituted one of the enumerated sexual
offenses under the statute.
However, despite concluding that the evidence of uncharged acts was
improperly admitted under Evidence Code section 1108, we will only reverse
the judgment if we conclude the error was prejudicial. A “state law error in
admitting evidence is subject to the traditional Watson[7] test: The reviewing
court must ask whether it is reasonably probable the verdict would have been
more favorable to the defendant absent the error.” (People v. Partida (2005)
37 Cal.4th 428, 439.)
Here, we conclude it is not reasonably probable that a result more
favorable to Mendoza would have been reached had the uncharged evidence
been excluded. The evidence against Mendoza regarding the rape of
Kimberly was strong. It is undisputed that Kimberly was unconscious on a
bed in a bedroom. It is undisputed Kimberly woke up with her underwear
pulled down and Mendoza next to her. Kimberly testified that she was
familiar with the feeling of a penis and that Mendoza’s penis was inside her.
Two other witnesses confirmed that Kimberly told them that Mendoza had
raped her. Although there was some discrepancy whether Kimberly woke
with Mendoza on top of her or on the side of her, that difference does not
undermine the prosecution’s case whatsoever. Indeed, Mendoza’s entire
defense hinged on Kimberly’s credibility regarding whether Mendoza’s penis
was inside her. Evidence of the uncharged acts had nothing to do with
Kimberly’s testimony that it was Mendoza’s penis inside her rather than his
fingers or some other object.
7 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
21
Likewise, the evidence regarding counts 2 through 4 was overwhelming
as well. Giancarlo testified that he saw Mendoza being “touchy” with
Cynthia in the kitchen before the bathroom incident. Cynthia appeared
intoxicated and later passed out on the couch. Cynthia came to in the
bathroom where she was sitting on the toilet with Mendoza standing naked
before her. And Mendoza was holding Cynthia’s hand on his erect penis. He
lifted her shirt and sports bra, exposing her breasts. He then touched her
breasts with his hand. DNA evidence supported Cynthia’s testimony that
Mendoza touched her breasts. The next thing Cynthia remembered was
facing the sink and holding onto the front of her leggings. Mendoza was
standing behind her and trying to pull down her leggings. Cynthia was able
to escape from the bathroom. Giancarlo corroborated Cynthia’s testimony
that she came running out of the bathroom. Cynthia was crying, hysterical,
and yelled at Mendoza to get out of her apartment. Mendoza said he was
sorry, but he had a crush on her. Thus, aside from any evidence as to the
uncharged acts, there was solid evidence to support Mendoza’s convictions for
attempted forcible rape, attempted rape of an unconscious person, and sexual
battery by restraint with respect to Cynthia.
Further, the jury was instructed that the other crimes evidence was
“not sufficient by itself to prove that the defendant is guilty of rape of an
unconscious woman, attempted rape by force, attempted rape of an
unconscious woman, and sexual battery.” The jury was instructed that “The
People must still prove each charge beyond a reasonable doubt.”
Given the overwhelming evidence and jury instruction, it is not
reasonably probable a result more favorable to Mendoza would have been
reached had the court excluded evidence of the prior uncharged acts. (See
Watson, supra, 46 Cal.2d at p. 836.)
22
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
23