A141223 (Cal. Ct. App. Mar. 16, 2017)



THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE DEALBA PADILLA et al., Defendants and Appellants.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51213214)

Enrique Padilla and Mario Martinez appeal judgments entered after jury verdicts finding Padilla guilty of rape of an intoxicated person and rape of an unconscious person, and Martinez guilty of sexual penetration of an unconscious person and battery. Padilla contends the trial court erred or abused its discretion in failing to strike one of his rape convictions, excluding evidence, and setting restitution fines. Martinez contends the trial court improperly allowed the People to amend the information, improperly allowed the trials of the two defendants to be joined, and failed to instruct on a lesser-included offense. Martinez also contends the evidence was insufficient to support the verdict. We shall affirm the judgments.


A. Prosecution Case

1. Jane Doe's Testimony

Padilla and Martinez drove to the Berkeley Marina on the afternoon of June 26, 2010, with the victim, Jane Doe, and Martinez's girlfriend, Emma A. Doe and Emma were friends, as were Padilla and Martinez. Doe had become acquainted with Padilla through Martinez. Doe thought Padilla was attractive and wanted to get to know him, but she testified she had never had sexual contact with him. She thought she had mentioned her interest in Padilla to Emma.

In the interest of privacy, we shall refer to some of the people involved in these events by their first names. We intend no disrespect.

The group bought a bottle of vodka, and they drank it at the Berkeley Marina. Doe was feeling the effects of the alcohol. After they finished the bottle, they bought another bottle of vodka. Doe said they could all go to her house because her family was out of town. They picked up Padilla's car, and Doe rode with Padilla to her house. There they all continued drinking while talking and listening to music. About an hour later, they were joined by another friend of Doe's, Claudia C. By the time Claudia arrived, Doe had become more intoxicated, but was not "stumbling over drunk." When the second bottle of vodka had been consumed, the group went to buy another bottle of vodka.

Doe's memory of events became "very, very spotty" at that point, because she began to feel sick as a result of the alcohol. She had a blurry recollection of sitting on Padilla's lap, facing him. She recalled Emma and Claudia helping her when she went to the bathroom to throw up, and the two of them saying they would try to get her on the bed. At the time, she was clothed in an undershirt, a sweatshirt, and workout pants. Doe had very little memory of events from that point until the following morning. She remembered being in the bedroom and hearing voices, and at one point Padilla was in the bedroom. She thought they might have kissed. After that point, she blacked out, and she did not recall anything.

At trial, Doe did not recall kissing or "making out" with Padilla during the time before she threw up, although she acknowledged that in the past she had made statements indicating some such activity had taken place.

Doe woke up the next morning and found she was completely naked and covered with a blanket. Martinez was lying beside her on her bed, on top of the blanket and fully clothed, with the exception of one shoe. His pants were low and sagging. Doe dressed herself, threw a shoe at Martinez, woke him, and asked him what had happened. He told her he did not know. Doe was frightened and confused and felt discomfort in her vaginal area. Emma came into the room, and Doe asked her what had happened and where everyone was. Doe noticed that her cell phone, iPod, and credit cards were missing. Martinez told Doe two friends of his had been at the house while she was sleeping and that one of them, John K., had the phone. Emma and Martinez stayed at the house until early afternoon.

As the day went on, Doe's vaginal discomfort worsened, and she felt more "shaky" and nervous. When she took a shower, she found her inner thighs were uncomfortable, and she had a bruise on her outer thigh and a small scratch on her leg. As she washed, she thought there was semen on her vaginal area.

Doe called her medical provider and asked if she could have an exam to see if someone had had sexual relations with her. The matter was reported to the police, and officers arrived at Doe's house. They took some of her clothing. Doe went to the hospital to have an examination.

Doe testified that she never consented to sexual intercourse with Padilla and never consented to any sexual contact whatever with Martinez. She had no memory of Martinez touching her in any sexual manner.

2. Testimony of the Friends

Claudia testified that she arrived at Doe's house around 9:00 on the evening of the incident. Doe appeared to be drunk, she was "walking weird," and she fell while dancing. Emma and Martinez also seemed drunk. After the group bought another bottle of vodka, all but Claudia continued drinking. Claudia saw Doe on Padilla's lap, "dancing on him." Doe then got dizzy, went to the bathroom in her bedroom, and started vomiting. The others went to the bathroom, where Doe was leaning over the toilet, vomiting. She was clothed. When Doe finished vomiting, Padilla picked her up to take her to her bed. Padilla asked Doe if he could stay with her, and she said yes. Claudia told Padilla that Doe was drunk and that he should not "do anything" Doe did not want. Padilla said, "Okay." Claudia, Emma, and Martinez left the room and closed the door. A few minutes later, she heard noises from the bedroom that sounded like dresser drawers opening and closing. About 20 minutes after leaving Doe and Padilla in the bedroom, Claudia tried to open the bedroom door to check on Doe and tell her she was leaving, but the door was locked.

At 3:11 in the morning, Martinez left a voicemail for Claudia. He said: "What's wrong with you, blood? Nigga, why you coming at me like I'm some type of suck-ass nigga? C'mon blood. Nigga, I'm over here with your cousin, nigga, and your partner, nigga. She's buck naked, nigga, sitting, the fucking bitch, in front of me, nigga. I'm over here looking at her pussy, nigga, her hairy-ass pussy. You know what I'm saying? [¶] . . . [¶] This your cousin, nigga. I didn't want her pussy in front of me, nigga. I want your shit in front of me, nigga. Real, blood. I don't fuck with this bitch no more. I want to be with you more than anything. . . ."

Claudia testified that "blood" was another word for "friend[]." Emma was Claudia's cousin. The reference to "partner" was to Doe. She understood the reference to wanting "your shit in front of me" to mean that he wanted her sexually. Martinez had never expressed sexual interest in Claudia before, and she had never known him to show sexual interest in Doe. Martinez sounded intoxicated when he left the voicemail.

Jessica M. was part of the same social circle as Jane Doe, Emma, Claudia, and Martinez. The morning of the incident, at 3:14, Martinez left a voicemail for Jessica that said in part: "Nigga, I'm sitting over here fucking sitting in front of your fucking friend, nigga. Emma walked off on me, nigga. Tired of that bitch, blood. Nigga, tell that bitch [inaudible] Nigga. Tired of fucking with your fake-ass friend, nigga. I ain't never fuck with her again. [¶] But your other partna over here, sitting in front of me, nigga, butt [sic] naked, nigga. I don't want none of my niggas to fuck her, nigga, but—you know what I mean? Nigga, she's sitting in front of me buck [sic] naked right now, blood. What the fuck, nigga? My finger smell like pussy because of her [laughs]. [¶] I'm just saying—I mean, you need to chill. Don't be fucking with me, leaving your friends around me buck naked, you know what I mean? Put these bitches on a track. Nigga, I could have this ho on a track making me money right now, nigga. I'm no shady-ass nigga, though blood. I love you, I love your friend. [sigh] J. Straighten 'em up. Get that bitch on her feet, nigga. She drunk. She don't know what the fuck's going on, blood. Put a dick in her mouth, c'mon."

Jessica testified that Martinez routinely used the term "nigga," that she did not take offense at the term, and that he sounded intoxicated in the voicemail. The term "J" referred to Jessica. It was unusual for Martinez to use the term "fucking" to refer to a friend, but he had referred to Emma as a "bitch" when he was angry. It was unusual for Martinez to refer to sexual contact with someone other than his girlfriend. The reference to having "this ho on a track making me money" referred to prostituting her. Jessica was surprised Martinez would say that because they were all friends.

3. The Investigation and Medical Evidence

Doe told a police officer she recalled Claudia and Emma helping her to the bathroom, where she vomited. They took her to the bed and laid her down. She recalled slipping in and out of consciousness. She next remembered lying next to Padilla on her bed and "fool[ing] around." She described this activity as kissing and touching. At one point Padilla put his hands down her pants. These activities were consensual. Padilla pulled her pants halfway down, and she said, "No," and pulled her pants back up. She then said she had to throw up. Padilla got a trash can for her, and she leaned over to throw up.

A police officer collected the clothing Doe said she had worn the morning after the assault, pants she had worn before losing consciousness the previous evening, and her bedding.

A nurse examined Doe and found scratches and multiple bruises on her thighs. Doe's posterior fourchette was red and tender to the touch, her hymen was tender, and Toluidine dye indicated skin breakages in those areas. The nurse would not expect such abrasions to occur as a result of consensual sexual activity. The nurse also testified that Doe's pubic hair had been removed.

A criminalist analyzed material taken from Doe's anal region, her vagina and external genital region, and the inside of her underwear. In each of those locations, sperm DNA consistent with Padilla's profile to a high degree of certainty was found. The anal swab and underwear sample also contained sperm DNA that matched Martinez's profile to a high degree of certainty. Semen could be transferred from the body to clothing or from clothing to the body.

B. Martinez's Defense

1. Emma's Testimony

Emma testified that she had often seen Martinez intoxicated and that she had heard him "talk trash" when he was drunk. She had heard him brag untruthfully about things when he was drunk, and he would "argue about . . . something that had nothing to do with what was going on."

A few days before June 26, 2010, Doe texted Emma suggesting they get together and drink. Emma knew Doe had expressed interest in Padilla. She asked if Doe wanted Martinez to invite Padilla, and Doe replied in the affirmative. Emma's description of the events of the day and evening was generally consistent with that of the prosecution witnesses. Either before or after the group went to get the third bottle of liquor, she saw Doe dancing and sitting on top of Padilla. Doe was acting in a "forward" manner. Emma's memory of events after the group started drinking from the third bottle was limited. Doe went into "the room" with Padilla, and they shut the door. Padilla came out of the bedroom and told the others Doe was vomiting, and Emma and Claudia went to help her in the bathroom. That was the first time Doe and Padilla had been in the bedroom together that evening. After Claudia left, Emma and Martinez got into an argument, and Emma took Martinez's keys and left the house. She returned to Doe's house the next morning and found Martinez and Doe there. They went to pick up Doe's phone from Martinez's friend John.

After the three returned to Doe's house, Doe and Emma went to sleep in the living room, and Martinez went to Doe's bedroom and fell asleep. When Emma woke up, she joined Martinez on Doe's bed and performed oral sex on him. He ejaculated outside her mouth and some of the semen landed on her shoulder. She did not see where the rest of the semen landed.

2. John K.'s Testimony

A friend of Martinez, John K., testified that he and another friend visited a house in Richmond at Martinez's invitation around 1:00 or 2:00 o'clock on the morning of the incident and stayed for about 15 minutes. He did not see anyone else except Martinez at the house, and he did not see Padilla's car outside the house. Martinez said Padilla had already gone home. John could tell that Martinez had been drinking. The next day, after Martinez called him, he realized he had mistakenly picked up another person's cell phone, and Martinez, Emma, and Doe came to get it.

3. Martinez's Testimony

Martinez testified in his own defense. He had never had any sexual or romantic interest in Doe, and he considered her like a little sister. Likewise, he had no sexual or romantic interest in Claudia. In an interview with a police detective, however, he said that he had always had "a little crush" on Claudia.

About a day before the incident, Doe called Martinez and asked him to arrange a get-together with Padilla because she wanted to "hook up" with him. His description of the trip to the Berkeley Marina and the group socializing at Doe's house was similar to that of other witnesses. It was Doe who suggested that the group go to her house. He recalled that before Claudia arrived, Doe told Padilla she would teach him how to "dougie" and pulled him into her bedroom, where they spent some time alone.

Martinez's memory of events became "blurry" after the second trip to buy liquor. He recalled at some point waking up on the living room couch and finding that everyone was gone. He was upset that Emma was not there. He could not find his car keys. He first searched for them in the living room, then went into Doe's bedroom to look for them. Doe was completely naked, and he covered her with a blanket. He did not recall making any phone calls while he was in Doe's room. He did not remember how he ended up sleeping on Doe's bed. He denied having had intercourse with Doe or touching her in a sexual manner.

Doe seemed calm the next morning. Later, Martinez, Emma, and Doe collected the phone from John and returned to Doe's house. Martinez took a nap in Doe's bedroom, and Emma joined him there and performed oral sex on him. He ejaculated outside her mouth and did not know where the semen landed. He did not clean up afterward.

Martinez's counsel argued that Doe might later have sat upon the damp semen and then put on her underwear, thus transferring the semen to her body and her underwear.

When Martinez later heard the voicemail messages he left for Claudia and Jessica, he was shocked and could not believe he had said such things. He had no memory of leaving the messages, but he acknowledged that the voice on the messages was his. He did not recall anyone else being with him when he said on the message to Jessica, "J. Straighten 'em up. Get that bitch on her feet, nigga. She drunk. She don't know what the fuck's going on, blood. Put a dick in her mouth, c'mon." He acknowledged that he sometimes referred to his friends as "nigga," but said "J" referred to Jessica. He testified that the phrase "put a dick in her mouth" was slang for "shut her up."

C. Padilla's Defense

Padilla testified in his own defense. He first met Doe about three or four months before the incident, and he had seen her at social gatherings between five and 15 times since then. At one of those gatherings, they went to Padilla's car and had sexual intercourse, and on other occasions, they kissed and "ma[de] out." On these occasions, Doe was "all over [him]." Padilla and Doe did not have each other's phone number because he was living with his fiancée's parents, and they contacted each other through Emma and Martinez.

On redirect examination, Doe denied that she and Padilla had intercourse in his car or that she ever "ma[d]e out" with him.

Padilla agreed that the other witnesses had described accurately the events at the Berkeley Marina. After they picked up Padilla's car, Doe said she would ride with him. At Doe's house, the group continued drinking from the second bottle of vodka. Before Claudia arrived, when that bottle was half finished, he and Doe went into her bedroom at Doe's suggestion. Doe pulled him to the room, where they had consensual vaginal intercourse. It was not "rough sex," and nothing that occurred that would have caused bruising. At the time, they were tipsy, but knew what they were doing. They were there 15 or 20 minutes, then returned to the living room where they continued drinking, and Doe danced on top of Padilla.

Hours later, Doe and Padilla went back to the bedroom and lay down together. Doe said she was feeling sick, and Padilla brought a trash can to her. Padilla went to the living room and asked Emma and Claudia to help Doe, who was in the bathroom, vomiting. When she was finished, Padilla picked her up and laid her down on the bed. He asked Doe if she wanted him to stay with her, and she said she did. Claudia and Emma then left. Doe had vomit on her shirt, and she asked Padilla to get fresh clothes out of the drawers. He did so, and helped her dress. They lay down again, and she vomited on his shirt. He got up and washed his shirt, then left the bedroom. They did not have sexual relations during this time. Martinez and Emma were arguing drunkenly in the living room. Padilla left the house just before midnight.

Padilla later testified that he laid the clothes on the bed while Doe remained in a shirt and underwear.

The following day, Padilla had Doe's iPod; he thought he must have mistakenly put it in his pocket, thinking it was his. He did not know of anyone taking Doe's credit cards.

When Padilla spoke with a police detective after the incident, he did not tell him he had had sexual relations with Doe that evening or at any other time. He was living with his fiancée's parents, and he did not want to disrupt that relationship.

D. Verdicts

The jury found Martinez not guilty of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3), count one) and not guilty of rape of an unconscious person (§ 261, subd. (a)(4), count two), but as to each of those counts found him guilty of the lesser included offense of misdemeanor battery (§§ 242, 243, subd. (a)). It found him guilty of sexual penetration of an unconscious person. (§ 289, subd. (d), count three.) The trial court sentenced him to the midterm of six years for count three and stayed sentence on counts one and two pursuant to section 654.

All undesignated statutory references are to the Penal Code.

The jury found Padilla guilty of rape of an intoxicated person (§ 261, subd. (a)(3), count one) and rape of an unconscious person (§ 261, subd. (a)(4), count two). The trial court sentenced him to the midterm of six years for count one. It imposed and stayed a six-year term for count two, with the proviso that once all appeals were exhausted, if both counts were affirmed, one of them would be dismissed.


A. Martinez's Appeal

1. Joint Trial

Before trial, Martinez moved to sever his trial from that of Padilla. The trial court denied the motion. In doing so, it noted that most or all of the evidence that would be presented relating to Padilla's guilt would also be introduced if Martinez were tried separately and concluded that, not only would Martinez not be prejudiced by a joint trial, but also a joint trial would be in his interest. Martinez argues on appeal that the trial court abused its discretion in denying his motion to sever and that he suffered prejudice through the joinder.

"There is a statutory preference for joint trial of jointly charged defendants. (§ 1098.) 'A "classic" case for joint trial is presented when defendants are charged with common crimes involving common events and victims.' [Citation.] Though severance is in the sound discretion of the trial court, severance should generally be granted ' "in the face of an incriminating confession [by a codefendant], prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." ' [Citations.] Whether it is an abuse of discretion to deny severance depends on the facts as they appear at the time of the hearing on the motion. [Citation.]" (People v. Pinholster (1992) 1 Cal.4th 865, 932, disapproved on another ground by People v. Williams (2010) 49 Cal.4th 405, 459.)

Section 1098 provides: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial."

Martinez contends the motion for severance should have been granted because of the threat of prejudicial association with Padilla and because of the likelihood of conflicting defenses. We reject this contention. " '[A]ntagonistic defenses do not warrant severance unless the acceptance of one party's defense would preclude acquittal of the other party.' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 239.) The anticipated defenses of the two defendants were different but not conflicting or antagonistic. Padilla's anticipated defense was that he had consensual sexual intercourse with Doe. Martinez's defense was based on the theory that his DNA was transferred to Doe's body and underwear through nonsexual contact. There is no inconsistency between these two theories, and no reason Padilla's defense would make the jury less likely to accept that of Martinez.

Nor are we persuaded that Martinez was likely to be prejudiced by his association with Padilla. Doe testified at the preliminary hearing that she had been attracted to Padilla, that she recalled "sitting on him" during the evening, that she went into the bedroom with Padilla and allowed him to kiss her, and that the last thing she recalled was that Padilla tried to pull down her pants, and she held onto them and said "no." Martinez was not involved in any of these activities, and there is no basis to conclude that the jury would be prejudiced against him because of his association with Padilla. Martinez also argues a joint trial created the risk of a "spill-over effect," in which the jury would associate Padilla's DNA, which was found in and on Doe's body, with the DNA consistent with Martinez's profile found on her anal region and underwear. There is no basis for concluding that the jury would be unable to separate the evidence regarding the two defendants' DNA.

Martinez also contends that, in fact, the joinder deprived him of a fair trial. Even if a motion to sever is properly denied before trial, after trial " 'the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.' [Citation.]" (People v. Pinholster, supra, 1 Cal.4th at p. 933; accord People v. Montes (2014) 58 Cal.4th 809, 888.) The defendant has the burden to establish prejudice. (People v. Johnson (1988) 47 Cal.3d 576, 591.) Martinez claims that unfairness existed here. He points out that at trial, Padilla testified he lied repeatedly to a police detective and argues that—because he acted as a go-between for Doe and Padilla—the jury might have associated him with Padilla's attempt to fabricate a consensual sexual encounter. We are unpersuaded. There was uncontradicted evidence that Doe found Padilla attractive and was affectionate to him that evening, and there is no reason to conclude the jury would be inflamed by Martinez's association with him. Martinez also argues that the case against him was weaker than that against Padilla; he notes that the jury acquitted him on two counts of rape and made requests for additional instruction and rereads of testimony, which he argues show the case was a close one. None of this persuades us that the joinder prevented the jury from evaluating separately the evidence against the two defendants.

2. Amendment of Information

Martinez contends that the trial court abused its discretion when it allowed the People to amend the information to charge him with sexual penetration of an unconscious person.

Martinez was originally charged by complaint with two counts: rape of an intoxicated person (§ 261, subd. (a)(3), count one) and rape of an unconscious person (§ 261, subd. (a)(4), count two). An amended complaint, filed before the preliminary hearing took place, added two new counts: sodomy of an intoxicated person (§ 286, subd. (i)) and sodomy of an unconscious person (§ 286, subd. (f)).

At the conclusion of the preliminary hearing, the magistrate found the evidence sufficient to hold Martinez to answer for the rape counts, but insufficient as to the two sodomy counts. The district attorney then filed an information that charged Martinez with the original two rape counts and added an enhancement alleging the offenses took place during a burglary, pursuant to section 667.61. Martinez successfully demurred to the section 667.71 enhancement on the ground the charged rapes were not among the enumerated sexual offenses to which the enhancement applied.

Section 667.61 provides for prison sentences of 25 years to life for those who committed enumerated sexual offenses under particular circumstances; one of those circumstances occurs when "[t]he defendant committed the present [sexual] offense during the commission of a burglary of the first degree . . . with intent to commit [an enumerated sexual] offense . . ." (§ 667.61, subd. (d)(4).)

The People then moved to amend the information to allege a third count against Martinez, sexual penetration of an unconscious person. (§ 289, subd. (d).) Martinez opposed the motion on the ground that the evidence at the preliminary hearing did not establish the corpus delicti of the crime because the only evidence of the alleged penetration was found in Martinez's own statements on the voicemail messages. The trial court allowed the People to file the amended information.

a. Corpus Delicti

Martinez argues that the amendment of the information was improper because the People failed to establish the corpus delicti of sexual penetration of an unconscious person at the preliminary hearing. "In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of a defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169; see also People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 409.) "It has been held that the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination. [Citations.] . . . Finally, appellate courts have entertained direct claims that a conviction cannot stand because the trial record lacks independent evidence of the corpus delicti. [Citations.]" (Alvarez, at p. 1170.) The necessary independent proof "may consist of circumstantial evidence [citations], and need not establish the crime beyond a reasonable doubt [citations]. [¶] The purpose of the corpus delicti rule is to assure that 'the accused is not admitting to a crime that never occurred.' [Citation.] The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as 'slight' [citation] or 'minimal' [citation]. The People need make only a prima facie showing ' "permitting the reasonable inference that a crime was committed." ' [Citation.] The inference need not be 'the only, or even the most compelling, one . . . [but need only be] a reasonable one . . .' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 301-302 (Jones).)

Jones is instructive. The defendant there was convicted, inter alia, of murder, rape, and forcible oral copulation. (Jones, supra, 17 Cal.4th at p. 291.) The victim had been killed by a gunshot wound, and defendant was a possible source of semen found on her vaginal and genital areas. (Ibid.) Defendant told police officers he and a partner had abducted the victim and committed various sexual offenses against her, including forcible rapes and one act of forcible oral copulation. (Id. at p. 292.) On appeal, he contended the trial court erred by denying his motion to set aside the information under section 995 or to enter a judgment of acquittal under section 1118.1 on the ground that the corpus delicti of oral copulation had not been established. (Jones, at p. 299.) Our high court rejected this contention. It noted that the victim was partially unclothed and had bruises on her thighs, knees, legs, and perineal area, and injuries on her hands. Although no semen was found in her mouth, an expert testified that negative test results were not inconsistent with oral copulation. (Id. at p. 302.) Bearing in mind the "low threshold of proof required to satisfy the corpus delicti rule," the court concluded: "The state of the victim's clothing (no underwear or shoes) and the forensic evidence (semen on the victim's vagina and on her external genitalia and anus) indicates multiple sexual acts occurred. . . . This circumstantial evidence of multiple forcible sexual acts sufficiently establishes the requisite prima facie showing of both (i) an injury, loss, or harm, and (ii) the involvement of a criminal agency." (Ibid.) The court rejected the defendant's argument that the lack of semen in the victim's mouth, that is, "the lack of evidence of the specific loss or harm to this victim[,] [was] fatal to the establishment of the corpus delicti." (Ibid.) Rather, the court noted, "we have never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved." (Id. at p. 303, citing People v. Jennings (1991) 53 Cal.3d 334 and People v. Robbins (1988) 45 Cal.3d 867; see also People v. Sanchez (2016) 246 Cal.App.4th 167, 176-177 [no requirement of "direct evidence, aside from defendant's confession, that the specific prohibited act occurred"; corpus delicti satisfied when there is circumstantial evidence of some criminal sexual activity].) Similarly, the high court held in People v. Jablonski (2006) 37 Cal.4th 774, 827-828, that evidence that a victim's body was found naked from the waist down, her upper clothing pushed over her breasts, and saliva consistent with the defendant's on her nipple, that the defendant had expressed prurient sexual interest in her, and that the pathologist could not determine whether sexual assault had occurred, would be "more than sufficient" to establish the corpus delicti of rape or sodomy.

These cases compel us to reject defendant's challenge to the corpus delicti. " 'Sexual penetration' " for purposes of section 289, is "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1), italics added.) An " '[u]nknown object,' " in turn, includes "any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body." (§ 289, subd. (k)(3).) Defendant points out, accurately, that the evidence showed that the morning after the incident, Doe felt as if someone had had sexual intercourse with her, not that she felt as if she had been digitally penetrated. However, the evidence at the preliminary hearing also showed that Doe was intoxicated to the point of unconsciousness on the night in question, that the next morning she woke up naked in bed with Martinez beside her, that semen matching his profile was found on her anal region and underwear, that she had no recollection of sexual contact with him, and that she had never consented to such contact. As in Jones, this evidence is sufficient to establish that Martinez engaged in sexual activity with Doe while she was unconscious and corroborates Martinez's statement in the voicemail to Jessica M. indicating his finger had touched Doe's vagina. There was no need for independent evidence of every physical detail of that sexual activity. (See Jones, supra, 17 Cal.4th at p. 302.) The trial court could properly allow the information to be amended to allege sexual penetration of an unconscious person.

b. Amendment for Purpose of Harassment

Martinez also contends the successive amendments to the charging documents were intended to harass him by charging him excessively, thus giving the prosecutor an advantage in plea bargaining. Accordingly, he argues, the trial court abused its discretion in allowing the People to amend the information to add count three.

Prosecutors have broad discretion to decide what crimes to charge, and "the factual predicates for the prosecutor's charging decision should not be subject to scrutiny unless there is a claim of invidious discrimination or vindictive prosecution." (People v. Lucas (1995) 12 Cal.4th 415, 477.) In the postconviction context, it has been held a violation of due process for a prosecutor to respond to a defendant's invocation of the statutory right to appeal by bringing a more serious charge before a second trial. (Blackledge v. Perry (1974) 417 U.S. 21, 28-29.) This rule is based on the principle that "a person who has suffered a conviction should be free to exercise his right to appeal, or seek a trial de novo, without apprehension that the state will retaliate by 'upping the ante' with more serious charges or a potentially greater sentence. [Citation.]" (People v. Bracey (1994) 21 Cal.App.4th 1532, 1543.) Our high court has applied a presumption of vindictiveness when the prosecution sought a conviction on more serious charges after an original trial ended in mistrial. (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 364, 373-374; In re Bower (1985) 38 Cal.3d 865, 877-878; see also People v. Flowers (1971) 14 Cal.App.3d 1017, 1021 [trial court has discretion to disallow amendments after mistrial to protect defendant against harassing amendments].)

However, the presumption of vindictiveness does not apply to prosecutorial action before the commencement of trial. (People v. Bracey, supra, 21 Cal.App.4th at p. 1544; see People v. Edwards (1991) 54 Cal.3d 787, 827-828 [in considering claim that complaint was amended in retaliation for exercise of constitutional rights, " 'an important factor in assessing the timing element is the attachment of jeopardy' "]; People v. Michaels (2002) 28 Cal.4th 486, 515 ["The United States Supreme Court has refused to apply a presumption of vindictiveness in a pretrial setting"].) "Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system. [Citations.] Up to the time of verdict, the prosecution may amend the information to include additional offenses shown by the evidence at the preliminary hearing. To extend [Blackledge v.] Perry[, supra,] 417 U.S. 21] to the pretrial and trial context would unduly hamper the legitimate exercise of this prosecutorial discretion. From the very commencement of proceedings, a criminal defendant has innumerable 'rights' which are exercised prior to and during the trial. Whenever the prosecution attempted to amend the information, the defendant could assert that the amendment was really in retaliation for some right that the defendant had theretofore exercised, or attempted to exercise. If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant's guilt or innocence." (People v. Farrow (1982) 133 Cal.App.3d 147, 152.)

"Absent a presumption, a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence 'that the prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.' [Citation.] 'The charge of vindictive prosecution is not a substitute for evidence.' [Citation.]" (People v. Bracey, supra, 21 Cal.App.4th at p. 1549; accord People v. Michaels, supra, 28 Cal.4th at p. 515.)

Because Martinez is challenging the prosecutor's pretrial actions, no presumption of vindictiveness is present, and he has the burden to provide evidence of vindictive prosecution. He has failed to do so, and indeed, appears not even to have raised the issue in the trial court. The evidence presented at the preliminary hearing was sufficient to support the amendment of the information to add count three, and there is no cause to conclude the prosecution charged Martinez excessively in order to gain a tactical advantage in plea bargaining. (See People v. Herrera (2006) 136 Cal.App.4th 1191, 1202 [preliminary examinations help ensure defendant is not charged excessively for sake of tactical advantage].) In the absence of evidence of vindictive prosecution, we reject defendant's challenge to the addition of count three.

3. Sufficiency of the Evidence

In closely connected arguments, Martinez contends that (1) the evidence is insufficient to support a verdict that he sexually penetrated Doe, and (2) the trial court erred in not granting his motion for judgment of acquittal as to count three, sexual penetration of an unconscious person, which he made after the prosecution had completed its case in chief. (§ 1118.1.)

"In reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 509.) "[I]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 924, fn. 2.)

When the trier of fact relies on inferences, "those inferences must be reasonable. An inference is not reasonable if it is based only on speculation." (People v. Holt (1997) 15 Cal.4th 619, 669.) The defendant in Holt challenged the sufficiency of the evidence to support a rape conviction. The evidence showed some sort of unlawful sexual conduct had occurred, as shown by semen on both the defendant and the victim, but the laboratory analysis of the victim, whom defendant had killed, showed no traumatic evidence of penetration and no semen in the vagina or anus. (Id. at p. 668.) The evidence also showed redness in the vaginal area, which was consistent with either sexual intercourse or an infection. The defendant suggested that the evidence that an infection could have caused the redness, coupled with the finding of apparent blood in the anus, suggested that any sexual assault involved sodomy, not rape. (Ibid.) Our high court rejected this contention, reasoning, "That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial. [Citation.]" (Id. at p. 669.)

Similarly, the jury here could reasonably conclude Martinez digitally penetrated Doe's vagina. The evidence showed Doe felt discomfort in her vaginal area the day after the incident. Although there was evidence that Padilla had sexual intercourse with her, that evidence does not imply that Martinez did not also have sexual contact with her. Doe awoke entirely naked, with Martinez on her bed. His sperm was found on her anal region and underwear. In his voicemail messages, he told Claudia C. and Jessica M. that Doe was in front of him, naked, and in the message to Jessica he said his "finger smell[ed] like pussy because of her." This evidence is sufficient to support a finding that Martinez had unlawful sexual contact with Doe and that that contact included a digital penetration of her vagina.

Martinez disputes this conclusion, contending that he was drunk at the time he left the voicemail messages, that the smell on his finger he described in one voicemail could have been obtained without actually penetrating Doe's genital opening, and that his reference in the other voicemail to Doe's "hairy-ass pussy" was inconsistent with the evidence that Doe's pubic hair had been removed. The question before us, however, is not whether the circumstances might be reconciled with a finding that Martinez did not commit sexual penetration, but whether, viewing the evidence in the light most favorable to the prosecution and presuming the existence of every fact that the jury could reasonably deduce from the evidence, any rational jury could have found that he did commit that offense. (People v. Medina, supra, 46 Cal.4th at pp. 919, 925, fn. 2.) The evidence here is sufficient to support the verdict.

For the same reasons, we reject Martinez's contention that the trial court erred in denying his motion for acquittal pursuant to section 1118.1. The question before a trial court in ruling upon such a motion is " 'whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.]" (People v. Stevens (2007) 41 Cal.4th 182, 200.) "In reviewing the trial court's ruling denying a motion for judgment of acquittal, we apply the same standard used to assess whether sufficient evidence supports the conviction. [Citation.] That standard requires us to review the record ' " 'in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " [Citations.]" (People v. Arias (2011) 193 Cal.App.4th 1428, 1434.) The evidence before the trial court after the prosecution had completed its case was sufficient to permit the jury to find Martinez guilty of sexual penetration of an unconscious person.

4. Lesser Included Offense

The trial court did not give an instruction on attempted sexual penetration of an unconscious person. Martinez now asserts that the trial court had an obligation to instruct the jury sua sponte on this crime as a lesser included offense of sexual penetration of an unconscious person.

An offense alleged in an accusatory pleading "may necessarily include one or more lesser offenses. . . . [A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117, fn. omitted.) A trial court must instruct, sua sponte, on "all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. . . . [¶] . . . [T]he existence of 'any evidence, no matter how weak,' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.)

"As a general matter, an attempt to commit a crime is a lesser included offense of the completed crime. ' "[T]here is no reason in the nature of things why a defendant may not be guilty of an attempt to commit a crime without being guilty of the crime attempted to be perpetrated." ' " (People v. Ngo (2014) 225 Cal.App.4th 126, 156 (Ngo).) However, this law is " 'complex and fraught with intricacies and doctrinal divergences.' [Citation.]" (People v. Bailey (2012) 54 Cal.4th 740, 753.) Section 21a provides, " 'An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' " "As a consequence, when the completed offense is a general intent crime, an attempt to commit that offense does not meet the definition of a lesser included offense under the elements test because the attempted offense includes a specific intent element not included in the complete offense. [Citations.]" (Ngo, at pp. 156-157, fn. omitted.)

Applying this rule, the court in People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248-1249, concluded that attempted rape of an intoxicated person (§ 261, subd. (c)) was not a lesser included offense of rape of an intoxicated person. Division One of the First Appellate District reasoned that rape of an intoxicated person—although it included the knowledge requirement that the accused either knew or should have known of the victim's condition—was a general intent crime; that the crime of attempted rape of an intoxicated person, unlike actual rape, hinged on the defendant's actual intent to commit the crime and was therefore subject to a defense of good faith, unreasonable mistake of fact; that intoxication can negate the required mental state of attempted rape of an intoxicated person; and that, therefore, "for a jury to find defendant guilty of attempted rape of an intoxicated person, the prosecution must prove an intent above, beyond, and apart from the mental state required for the completed crime." (Id. at pp. 1250-1251.)

The crime of sexual penetration of an unconscious person occurs when the defendant knows the victim is unconscious of the nature of the act. (§ 289, subd. (d).)

The court in Ngo reached a different conclusion in considering whether attempted sexual penetration of a child was a lesser included offense of sexual penetration of a child. (§ 288.7, subd. (b).) The court concluded that the completed offense was a specific intent crime because it incorporated the definition of "sexual penetration" set forth in section 289, which provides that the penetration be "for the purpose of sexual arousal, gratification, or abuse." (Ngo, supra, 225 Cal.App.4th at p. 157.) Because the statute specified the level of intent required for sexual penetration, the completed crime was a specific intent crime, and "[s]ection 21a does not add a specific intent element not already included under the definition of the completed offense. Accordingly, the attempted crime is distinguished from the completed crime only by the failure to complete the actus reus, and the attempted offense is a lesser included offense under the elements test." (Ibid; see also People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 ["[T]he crime of unlawful sexual penetration requires the specific intent to gain sexual arousal or gratification or to inflict abuse on the victim"].)

Even assuming that, under the rule of Ngo, attempted sexual penetration of an unconscious person is a lesser included offense of the completed offense, we conclude the trial court did not err in failing to instruct the jury on it because there was no evidence that Martinez attempted unsuccessfully to commit the crime. Sexual penetration requires only the slightest penetration of the victim's genital or anal opening (§ 289, subd. (k)(1)) and occurs when the defendant makes contact with any of the genitalia inside the exterior of the labia majora. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.) Martinez stated in a voicemail that his finger smelled like "pussy," Doe testified the following day that her vaginal area was uncomfortable, and the presence of Martinez's semen on her body indicated he had ejaculated in close contact with her. There is no evidence—nor even a reasonable inference—that Martinez attempted to touch Doe's genital opening while she was naked and unconscious and had enough contact for his fingers to have the described smell, but that he was for some reason unable to gain contact with any of the genitalia past the exterior of her labia majora. This case is therefore readily distinguishable from Ngo, in which the victim, a seven-year-old girl, had stated the defendant touched her but was equivocal as to whether he penetrated her, and the victim's mother testified that she interrupted defendant when he had his hands down the victim's pants but told police she did not believe he had penetrated the victim. (Ngo, supra, 225 Cal.App.4th at pp. 131, 157.)

In any case, there was no prejudice. We reverse for failure to instruct on all lesser included offenses only if, " 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The verdict form for the sexual penetration charge gave the jury the option of convicting Martinez of battery (§§ 242, 243, subd. (a)) and simple assault (§§ 240, 241, subd. (a)) as lesser included offenses. The jury was instructed that battery took place if "the defendant willfully and unlawfully touched another person in a harmful or offensive manner" and that "the slightest touching can be enough to commit battery if it is done in a rude or offensive way." The jury was well aware that it could convict him of a lesser, rather than the greater, offense, as shown by the fact that it found him not guilty of two counts of rape but guilty of the lesser offense of battery as to each count. There is no reason to conclude the jury would not likewise have found him guilty of battery if it had believed the evidence established beyond a reasonable doubt only that Martinez touched defendant in an offensive manner near or on the outside of her genital area.

Because we reject each of Martinez's claims of error or abuse of discretion, we also reject his contention that he was prejudiced by the cumulative effects of the errors.

B. Padilla's Appeal

1. Conviction of Two Counts of Rape

Padilla was convicted of both rape of an intoxicated person (§ 261, subd. (a)(3)) and rape of an unconscious person (§ 261, subd. (a)(4)) based on a single act of intercourse. In his briefing on appeal, he contended the single act can support only one rape conviction. After oral argument in this case, our Supreme Court decided precisely this issue in a manner that compels us to reject Padilla's argument. (People v. White (2017) 2 Cal.5th 349 (White).) In supplemental briefing, Padilla acknowledges that we are bound by White.

Section 954 provides in part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court . . ." Our state Supreme Court has recently ruled that although section 954 allows a defendant to be charged with multiple "different statements of the same offense," it does not permit multiple convictions for those different statements of the same offense. (People v. Vidana (2016) 1 Cal.5th 632, 649-651 (Vidana).) Also relevant is section 654, which prohibits multiple punishment for the same act or omission.

Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

Section 261 provides in pertinent part: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:" Subdivision (a) of the statute then lists, in subparagraphs (1) through (7), the circumstances in which sexual intercourse constitutes rape, including "[w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused," and "[w]here 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 because the victim meets any one of the following conditions: [¶] (A) Was unconscious or asleep." (§ 261, subd. (a)(3) & (4).)

In People v. Craig (1941) 17 Cal.2d 453 (Craig), our high court considered whether, under an earlier version of section 261, a defendant was properly convicted and sentenced for two counts of rape, rape by force and violence and rape of a child under the age of consent. At the time, section 261 defined rape as " 'an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances,' " including where the victim was under the age of 18 and where her resistance was overcome by force. (Craig, at p. 455.) The defendant was convicted of two counts of rape and the trial court imposed concurrent sentences. (Id. at pp. 454-455.) The Supreme Court concluded the double conviction was improper. It reasoned that under section 261, "but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the foregoing subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Craig, at p. 455.) The court noted that section 954 provided for a statement of the " 'same offense' " in different counts, but concluded that "only one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Craig, at pp. 456, 458.) The court in People v. Smith (2010) 191 Cal.App.4th 199, 205, followed Craig to hold that a defendant could not stand convicted of both rape of an intoxicated woman and rape of an unconscious woman based on a single act of intercourse.

In White, our high court considered the continuing viability of Craig and overruled it "to the extent it held that the different subdivisions of former section 261 'merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act.' (Craig, at p. 455.)" (White, supra, 2 Cal.5th at p. 359.) In doing so, the court noted that when Craig was decided, "the courts did not distinguish between multiple punishment and multiple conviction as clearly as courts do today." (White, at p. 355.) Under more modern practice, "when section 654 bars multiple punishment, but section 954 permits multiple convictions, rather than reverse the additional conviction, courts simply stay the punishment for that conviction. [Citation.]" (White, at p. 356, citing People v. Pearson (1986) 42 Cal.3d 351, 360.) Thus, the court concluded, "to the extent the result in Craig, supra, 17 Cal.2d 453—reversing the second rape conviction—was driven by the need to avoid multiple punishment, that need no longer exists." (White, at p. 356.)

Our high court thus took a "fresh look" at the issue. (White, supra, 2 Cal.5th at pp. 356-357.) In People v. Gonzalez (2014) 60 Cal.4th 533, 535-536 (Gonzalez), the court had concluded that a defendant could, consistent with section 954, be convicted of both oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of an intoxicated person (id, subd. (i)) based upon the same act. The court in White concluded that, despite certain structural differences between section 261 and 288a, the Legislature did not intend to rape to be treated differently from oral copulation (or the sexual offenses of sodomy (§ 286) or sexual penetration (§ 289)) for purposes of multiple convictions based on a single act. (White, at pp. 357-359.) Moreover, the court noted, "different sections of the Penal Code provide sentencing consequences that are different for some forms of rape than for others." (Id. at p. 358, citing §§ 667.5, subd. (c)(3) & 667.6, subd. (e)(1).) Accordingly, double conviction, though not double punishment, was permissible for a defendant who, by the same act, both raped an unconscious person and raped an intoxicated person. (White, at p. 359.)

The court in White also concluded that allowing a defendant to be convicted of both rape of an intoxicated person and rape of an unconscious person does not violate the prohibition against ex post facto laws. The court explained, "A statute violates the prohibition against ex post [facto] laws if it punishes as a crime an act that was innocent when done or increases the punishment for a crime after it is committed. [Citation.] 'Correspondingly, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law.' [Citations.] But our construction of section 261 has no ex post facto effect. It neither makes criminal an act innocent when committed nor increases the punishment for that act. No rule prohibits applying our interpretation of section 261 to this case." (White, supra, 2 Cal.5th at p. 360.)

As Padilla properly acknowledges, White is dispositive and requires us to reject his challenge to his double conviction.

2. Exclusion of Hearsay Evidence

a. Background

Padilla contends the trial court abused its discretion in excluding hearsay evidence that Doe said, when she awoke the morning after the incident, that she was disappointed that Martinez rather than Padilla was beside her.

At trial, Padilla testified that he thought Doe might have denied that they had consensual sex because she was "just mad because she didn't wake up next to me." When Martinez testified, Padilla's counsel sought to introduce evidence that when Doe woke up next to Martinez, she told him she had been hoping the person next to her was Padilla. He indicated that in order to lay a foundation for the testimony, he would first need to recall Doe, unless the prosecutor refrained from objecting to the testimony as inadmissible hearsay. Padilla's counsel argued that Doe's statement was relevant to her state of mind, since Padilla's defense was consent. The prosecutor took the position that the statement was inadmissible hearsay because it was offered to support an inference of Doe's past state of mind. The trial court ruled that the hearsay statement was inadmissible under Evidence Code section 1250 because Doe's state of mind when she awoke was not at issue in the case. However, the court noted that the statement bore on the issue of consent, and it allowed Padilla to recall Doe to lay the foundation for admission of the statement by asking her whether she had made the statement. The court indicated that if Doe denied telling Martinez she was disappointed she was not waking up with Padilla, Padilla's counsel could try to refresh her recollection by showing her the detective's statement or could impeach her by recalling Martinez to the stand. The prosecutor objected to Doe being recalled, and the court replied, "I certainly would give him permission to call her back for this purpose, unless we have a stipulation. It's within my discretion to address order of proof. These are serious cases, serious matters, and I'm not going to preclude any side here, or any party, from introducing any admissible, available evidence. So I would give you an opportunity to recall her." (Italics added.)

It appears that Martinez told a police detective Doe had made this statement. --------

When she was recalled to the stand, Doe testified that she did not recall mentioning anyone's name when she woke up and that she did not say she hoped it was Padilla beside her. Padilla's counsel showed Doe a document (presumably the police detective's report), and she reiterated that she did not recall making the statement.

The court asked Padilla's counsel if he wished to call any other witnesses, and he indicated he needed to speak with Martinez's counsel. The judge and counsel had an unreported discussion in chambers, after which both defendants' counsel rested without recalling Martinez to the stand.

b. Analysis

Padilla contends the trial court abused its discretion in not allowing him to question Martinez about Doe's statement. Under Evidence Code section 1250, subdivision (a), "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." Martinez argues Doe's statement falls into both of these categories: they were a declaration of Doe's state of mind (her hope that Padilla would be with her) to prove she was angry that he did not spend the night; and they would explain her conduct in telling the police she did not have consensual sexual relations with Padilla. Padilla also contends the exclusion of the evidence impinged on his constitutional right to present a complete defense.

We reject these contentions. At the outset of the colloquy, Padilla's attorney acknowledged that, unless the prosecutor agreed otherwise, he would need to recall Doe to the stand to lay a foundation for the introduction of the statement. Over the prosecutor's objection, the trial court allowed Padilla to recall Doe and question her about the statement, and the court made clear Padilla could then recall Martinez to impeach Doe. Thus, the trial court did not bar Padilla from attempting to introduce Doe's purported statement. Whether or not the trial court was correct in ruling that Doe must first be questioned about the statement, Padilla was not prevented from introducing the statement into evidence through Martinez.

Padilla argues, further, that his counsel was ineffective in failing to recall Martinez to the stand to question him about the statement after Doe denied having made it. "Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) "A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.]" (Id. at p. 541.) "Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose of counsel's omissions. [Citation.]" (People v. Lucas, supra, 12 Cal.4th at p. 442.) Prejudice is established when counsel's performance " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Mayfield (1997) 14 Cal.4th 668, 784, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Prejudice must be proved to a demonstrable reality, not simply through speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

Padilla has not met this burden. His counsel spoke off the record with Martinez's counsel after Doe testified, and then declined to recall Martinez. At least one possible "rational tactical purpose" is that he learned that Martinez's testimony would not be helpful to Padilla. (People v. Lucas, supra, 12 Cal.4th at p. 442.) Against this conclusion, Padilla argues that even if Martinez intended to deny that Doe told him she had hoped Padilla was with her, Padilla's counsel should have recalled Martinez and sought to introduce the prior inconsistent statement he made to the police detective. (Evid. Code, § 1235.) On the limited record before us on appeal, however, we cannot conclude that Padilla has overcome the presumption that his counsel acted within the "wide range of reasonable professional assistance." (People v. Dennis, supra, 17 Cal.4th at p. 541.) In any case, without knowing how Martinez would have testified, it would be speculative to conclude Padilla was prejudiced by his counsel's actions.

3. Restitution Fine

Padilla's final challenge is to the trial court's imposition of a restitution fine of $280 (§ 1202.4) and a parole revocation fine in the same amount (§ 1202.45). In 2010, when the crimes took place, section 1202.4 provided that when a person was convicted of a felony, the court should generally impose a separate restitution fine, which was to be set "at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)(1).) By 2014, when defendants were sentenced, section 1202.4, subdivision (b)(1) had been amended to provide that if a person was convicted of a felony, "the fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000)." Section 1202.45 requires the court to impose an additional revocation restitution fine in the same amount.

Thus, a trial court has discretion to impose a restitution fine of up to $10,000 in light of the relevant factors, which include "a defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime . . . and the number of victims involved in the crime." (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380, fn. 6; § 1202.4, subd. (d).) The court need not make express findings on the factors supporting the amount of the fine and need not hold a separate hearing. (§ 1202.4, subd. (d).)

The probation officer's reports recommended that the court impose fines of $200 pursuant to sections 1202.4 and 1202.45 against Martinez and $1,000 against Padilla. At the February 21, 2014 sentencing hearing, the court indicated it had reviewed the probation reports. After imposing the prison sentences, the court went on: "There will also be a $280 restitution fund fine, 200—$280 parole restitution fund fine, that will be stayed unless and until the defendants violate the terms of parole in this matter."

Padilla contends the $280 fine was an abuse of discretion because the trial court mistakenly based that number on a later version of section 1202.4 than that in effect at the time of his crimes. (See People v. Martinez (2014) 226 Cal.App.4th 1169, 1189 [restitution fine constitutes punishment and is subject to the prohibition against ex post facto laws].) We conclude he forfeited this point by failing to raise it at the sentencing hearing. "[T]he rule of forfeiture is applicable to ex post facto claims [citation], particularly where any error could easily have been corrected if the issue had been raised at the sentencing hearing." (Ibid; see also People v. Scott (1994) 9 Cal.4th 331, 353 ["the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its sentencing choices"].)

Padilla tries to avoid the forfeiture rule by arguing that his counsel's failure to object to the amount of the restitution fine constituted ineffective assistance. "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) This is not such a case. We first note that the minimum felony restitution fine in effect at the time of the court's ruling was $300, not $280, and it is speculative to assume the trial court was relying on the number in effect either in 2010, when the crimes were committed, or in 2014, at the time of the sentencing hearing, but instead on the fine in effect in the intervening year of 2013. (Compare People v. Martinez, supra, 226 Cal.App.4th at pp. 1188-1189 [record showed court relied on mathematical formula based on newer minimum fine].) In any case, Padilla's counsel may well have had a tactical reason not to object to the $280 fine, found in the fact that it was considerably lower than the $1,000 recommended in the probation officer's report.


The judgments are affirmed.


Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.