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Filed 9/28/21 P. v. Fleming CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Appellant,

v.

KEVIN ANDREW FLEMING,

Defendant and Respondent.

C091270

(Super. Ct. No. 18CF04578)

The People appeal from an order granting defendant Kevin Andrew Fleming’s 

motion under Penal Code section 9951to dismiss the information after finding that the 

prosecution did not produce substantial evidence of the charged sexual assault crimes. 

The People argue sufficient evidence supported the magistrate’s decision to hold 

defendant to answer the charges, and we agree. Accordingly, we will reverse the order 

1 Undesignated statutory references are to the Penal Code. 
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granting defendant’s section 995 motion as to counts 1 and 2, and remand the matter for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. Police investigation

During the October 2018 preliminary hearing, Officer Abigail Madden testified 

that in November 2017 she responded to a report of sexual assault and interviewed the 

victim. Madden eventually interviewed the victim multiple times. The victim had been 

attending a “progressive bicycle party” in July 2017 during which she traveled from 

home to home consuming alcohol and food. She eventually ended up at a barbeque at the 

home of her husband’s coworker. During the course of the day, she had five to six 

alcoholic drinks. 

The victim did not feel well, so she went to the master bedroom and started 

“do[zing] in and out while being ill.” The victim told Madden that “due to her 

intoxication level, she had been vomiting . . . in the bathroom, and then alternating 

between waking up[,] vomiting and kind of passing out, having fitful sleep.” 

The victim was resting on the bed when defendant and another man came into the 

bedroom. She believed they were laughing at her. A female friend later told police that 

at one point she found the two men in the room while the victim was sleeping. She also 

later saw defendant walking toward the bedroom, and she told him to stay away from the 

victim. 

The victim was “in that kind of fitful intoxication floating sleep” and lying on her 

side when she thought she felt someone touch her buttocks and the back of her leg. The 

person then pushed her swimsuit aside and inserted his fingers in her vagina more than 

once. Once she realized this was “really happening” and that she was not dreaming, she 

reached out to try to push the hand away. She “struggled a bit as her limbs felt heavy in 

getting control of them.” She then recognized defendant (whom she knew) as the person 

who was touching her. Defendant then left the room. Madden understood the victim to 
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mean she woke up when defendant touched her, and pieced together the details as she 

awoke. 

The next day, defendant sent several text messages to the victim. Defendant asked 

how she was and said, “Ha, I fingered you—I fingered you last night, and you loved it.” 

Horrified and embarrassed, the victim immediately deleted the text so no one else would 

see it. That same day, defendant sent her other texts that were sexual in nature. 

Defendant later left the victim a voicemail apologizing to her. 

Madden confronted defendant about the incident. Defendant said he believed the 

victim was intoxicated, and he did not deny that he had digitally penetrated her at the 

party. He also did not deny sending text messages to the victim. In her report, Madden 

wrote that defendant denied touching the victim, but Madden testified that he actually 

said he did not remember touching her. 

B. The prosecutor’s interview of the victim

The prosecutor also interviewed the victim in Officer Madden’s presence, and a 

copy of the transcript was provided to the court. The victim said she had “a lot to drink” 

the day of the incident, and it “hit” her suddenly at the barbeque. She was “not naïve to 

alcohol” and had “quite a tolerance.” But this was unlike anything she had ever 

experienced, and she felt “drugged” and “heavy.” She threw up multiple times in the 

bathroom and then laid down on the bed. She closed her eyes and rested, trying to calm 

down so she would not throw up again. 

A female friend came in to check on the victim, and the victim said she needed to 

sleep it off. At one point, defendant and another male came into the bedroom and talked 

and laughed. The victim thought that she threw up again, and then went back to lie 

down. She was lying curled up on her side, with her face toward the edge of the bed. 

She did not put the covers over her. She stated that she “started to finally relax and be 

able to kinda, you know, get into a little doze.” She wanted to avoid going home until 

after her children went to bed that evening, so they would not see her intoxicated. She 
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dozed off with her eyes closed, and was “not fully awake.” Still, she was “arousable” 

and not in a “comatose state.” She did not feel like she was asleep and snoring. 

The victim could not remember if she was awoken by defendant’s presence, him

saying something, or him touching her. She stated, “I remember opening my eyes and he 

had his hand like on my thigh . . . and he had his hand kinda going up the back of my—

like my—my buttocks, . . . and he went under the bathing suit.” Defendant then inserted 

his finger into her vagina several times. She was “probably still dozing off” and did not 

immediately realize what was happening. But then she “kind of like woke up” and told 

defendant, “No, don’t, don’t!” She tried to move her arms to push his hand off, but she 

had trouble because her limbs still felt heavy. Defendant then took his hand away and 

left the bedroom. The victim then struggled to leave the bedroom to lie down on the 

couch in the living room. 

The victim clarified that she could not exactly recall when she woke up, but she 

thought it might have been before defendant penetrated her. She stated that “his touch is 

what[ ] kinda startled [her].” Still, she also said during the interview that the situation 

was “fluid” and happened “very quick[ly],” taking less than a minute. She therefore was 

not really sure what specifically caused her to wake up. 

C. Prior sexual assault evidence

Over defendant’s objection, the magistrate heard evidence of defendant’s prior 

sexual misconduct pursuant to Evidence Code sections 1101, subdivision (b), and 1108. 

A woman (J.D.) told Madden that in April 2017 she had too much to drink while at 

defendant’s home for a social event. She felt uncomfortable driving home, so she agreed 

to spend the night in defendant’s guest room. While she was asleep, she woke up to 

defendant on top of her, grinding his pelvis on her. She felt his erect penis through the 

blankets. She immediately pushed him off, and he left the room. She had a friend pick 

her up and was so upset and afraid that she left the house without her purse or shoes. 
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An investigator with the district attorney’s office interviewed seven women who 

said they had received unwanted sexual communication from defendant. Four of those 

women also had unwanted or nonconsensual physical sexual contact by defendant. 

One of those women, K.G., told the investigator that one night 12 years prior, she 

went out drinking with defendant and some other friends. She returned to a friend’s 

house and fell asleep in a bed with her boyfriend. Defendant fell asleep on the bedroom 

floor. K.G. woke up to feeling fingers being inserted into her vagina and realized it was 

defendant. She told him “no” and pushed him away. A few days later, defendant sent 

her a text message saying, “Oh, you wished my fingers were inside you again. You liked 

that.” Ashamed and embarrassed, K.G. told no one about the incident at the time. She 

later told her sister, who encouraged her to report it. 

D. Magistrate holds defendant to answer; charges; defendant’s motion to set 

aside the information

In January 2019, the magistrate found probable cause existed and held defendant 

to answer to a charge of sexual penetration of an unconscious or sleeping person. (§ 289, 

subd. (d).) In so doing, the magistrate implicitly rejected defendant’s argument that the 

prosecution had failed to establish that the victim was unconscious, asleep, or not fully 

aware that the act occurred. Defendant was subsequently charged with sexual penetration 

with a foreign object of an unconscious victim (count 1; § 289, subd. (d)) and assault with 

intent to commit sexual penetration with a foreign object of an unconscious victim (count 

2; § 220, subd. (a)(1)). Defendant pleaded not guilty to both counts. 

In September 2019, defendant filed a motion under section 995 to dismiss the 

amended information. The People filed an opposition. In November 2019, the trial court 

granted defendant’s motion, finding the evidence was insufficient to establish the victim 

was unconscious or asleep. The trial court noted the victim was unclear as to whether she 

was asleep and said she had conscious awareness of defendant’s actions. She could hear 
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what was going on and was also aware defendant touched her thighs and buttocks and 

pushed aside her swimsuit. The People appealed. 

DISCUSSION

I

The People argue the trial court erred in granting defendant’s motion to dismiss 

the information because the magistrate could have reasonably inferred that defendant 

(1) sexually penetrated the victim at a time when she was unable to resist because she 

was asleep (§ 289, subd. (d)) and (2) assaulted the victim with the intent to sexually 

penetrate her at a time when she was unable to resist (§ 220). According to the People, 

even though the victim made conflicting statements, the evidence still showed that the 

victim was in a light sleep stage, which still falls under section 289. She said she was

dozing off at the time of the incident, was in a fitful sleep, had her eyes closed, woke up 

when the penetration occurred, and resisted only after the penetration occurred. 

Defendant counters that we must define asleep as in an “unconscious state,” and contends

the evidence established the victim was awake before the sexual penetration or assault. 

A. Standard of review and applicable law

Under section 995, the superior court shall set aside an information if the 

“defendant has been committed without reasonable or probable cause.” (§ 995, subd. 

(a)(2)(B).) “ ‘[I]n proceedings under section 995 it is the magistrate who is the finder of 

fact; the superior court has none of the foregoing powers, and sits merely as a reviewing 

court; it must draw every legitimate inference in favor of the information, and cannot 

substitute its judgment as to the credibility or weight of the evidence for that of the 

magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in 

effect disregards the ruling of the superior court and directly reviews the determination of 

the magistrate . . . .’ [Citations.]” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

(Gonzalez).) Our role is to “decide whether there is probable cause to hold the 

defendant[ ] to answer, i.e., whether the evidence is such that ‘a reasonable person could 
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harbor a strong suspicion of the defendant’s guilt.’ ” (Lexin v. Superior Court (2010) 47 

Cal.4th 1050, 1072.)

“ ‘Insofar as the . . . section 995 motion rests on issues of statutory interpretation, 

our review is de novo.’ [Citation.] ‘ “ ‘As in any case involving statutory interpretation, 

our fundamental task here is to determine the Legislature’s intent so as to effectuate the 

law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a 

plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the 

entire scheme and related statutes, harmonizing the terms when possible.’ [Citations.]” 

(Gonzalez, supra, 2 Cal.5th at p. 1141.) 

A violation of section 220 occurs when a person “assaults another with intent to 

commit” a sexual act prohibited under section 289. Assault is defined as “an unlawful 

attempt, coupled with a present ability, to commit a violent injury on the person of 

another.” (§ 240 [defining the general crime of assault].)

Section 289, subdivision (d) prohibits acts of sexual penetration when “the victim 

is at the time unconscious of the nature of the act and this is known to the person 

committing the act or causing the act to be committed.” The subdivision defines 

“ ‘unconscious of the nature of the act’ ” as “incapable of resisting” because the victim 

meets one of four conditions, including that the victim “[w]as unconscious or asleep” or 

“[w]as not aware, knowing, perceiving, or cognizant that the act occurred.” (§ 289, subd. 

(d)(1) & (2).) 

As courts have explained, section 289, subdivision (d)’s definition of 

“unconscious of the nature of the act” is “not limited to victims unconscious in the 

ordinary or colloquial sense.” (People v. Stuedemann (2007) 156 Cal.App.4th 1, 6; see 

also People v. Lyu (2012) 203 Cal.App.4th 1293, 1300 [“ ‘It is settled that a victim need 

not be totally and physically unconscious in order for the statute . . . to apply’ ”].) 

Instead, the term encompasses victims who are “incapable of resisting” because they are 

asleep, unconscious, or otherwise unaware of the act. (§ 289, subd. (d).) We reject
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defendant’s invitation to define the term “asleep” narrowly, since “there is no bright line 

that distinguishes consciousness from sleep.” (Burdine v. Johnson (S.D.Tex. 1999) 66 

F.Supp.2d 854, 865.)

Here, the magistrate could reasonably infer that the victim was only partially 

conscious when defendant briefly touched her buttocks and pushed aside her swimsuit, 

and did not become fully awake until moments later, when she realized he was digitally 

penetrating her. The victim told Officer Madden that she had been having a “fitful 

sleep,” and was “do[zing] in and out while being ill.” The entire incident took place in 

less than a minute, and although she was somewhat aware of defendant’s movements, she 

did not realize that she was not dreaming until defendant digitally penetrated her. Even at 

that point, she struggled to use her arms to push defendant away. 

In addition, the magistrate heard evidence that defendant texted the victim the next 

day and bragged about “finger[ing]” her, and then left a voicemail apologizing. The 

magistrate also heard evidence that defendant had previously engaged in unwanted sexual 

conduct with other women, including grinding his pelvis on one sleeping woman, and 

digitally penetrating another sleeping woman. 

Although the victim may have said some things that conflict with the above, it is 

not our role to reconsider the victim’s credibility or reweigh her statements. (Gonzalez, 

supra, 2 Cal.5th at p. 1141.) Viewing the evidence in the light most favorable to the 

information, as we must (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1072), we are 

satisfied that there was sufficient evidence from which the magistrate could have 

concluded that there was probable cause that the victim was “unconscious of the nature of 

the act,” and incapable of resisting at the moment of penetration. (§ 289, subd. (d).) 

Under the circumstances, we conclude the trial court erred in granting defendant’s 

motion to dismiss the information with respect to the charges of violating section 289, 

subdivision (d), and section 220.
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DISPOSITION

The trial court’s order dismissing the information is reversed and the matter is 

remanded for proceedings consistent with this opinion.

 KRAUSE , J.

We concur:

 MURRAY , Acting P. J.

 RENNER , J.