Filed 5/27/15 P. v. Valdizan CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
MARCO VALDIZAN,
Defendant and Appellant. B252909
(Los Angeles County Super. Ct. No. BA388637)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Norm Shapiro , Judge. Affirmed. Richard D. Miggins, unde r appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gera ld A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys Genera l, for Plaintiff and Respondent.

________________ ______________2 Marco Valdizan appeals from a judgment fo llowing his conviction of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) 1 and sexual penetration of an intoxicated person by a foreign object (§ 289, subd. (e)). He contends the conviction is not supported by substantial eviden ce. We disagree and affirm.

FACTUAL AND PROC EDURAL SUMMARY The victim, 19-year-old Larissa Z., met a ppellant in the lobby of her building and exchanged Facebook information with him. Appellant was a nightclub prom oter, and in March 2011, he sent out a mass invitation on Facebook to a nightc lub located in the W hotel in Hollywood. Larissa brought along her roommate D. B., who had not met appellant. Appellant procured a fake identification ca rd for Larissa, and she and D. sat with appellant’s other guests in his booth at the cl ub. Over the course of the night, the two women consumed large quantities of alcohol and became intoxicated. Neither could keep her balance, and when they fell on their way to the restroom, a secu rity guard escorted
them out of the club. The women vomited and lay down on couches in the hotel lobby. Hotel security escorted them out side the hotel, and eventually they got into a taxi cab.
Larissa was so unstable on her feet that she fell down before she got into the cab. Appellant intervened at some point and instruct ed the driver to take them to appellant’s apartment. The women fell asleep in the cab. When they reached appella nt’s apartment, Larissa vomited again as she was exiting the cab, and appellant directed her to hi s bathroom to clean up. He used blankets
to make a makeshift bed for Larissa on the floo r, and let D. use his bed. At some point during the night, D. heard Larissa cry for help . She looked over and saw appellant on top of Larissa. Their bodies were partially cove red with a sheet, but appellant was making thrusting motions with his pelv is, which made D. think he was having intercourse with Larissa. Larissa appeared to be vomiting, an d she kept on crying for help. Afterwards,

1 Statutory references are to the Penal Code.3 appellant took Larissa to the bathroom and cleaned the vom it off the floor. D. managed
to crawl out of bed and reach the bathroom, where she saw Lari ssa in the bath tub with the shower running. Appellant appeared to be washing her. Larissa was still throwing up and crying. Larissa’s only memory of the ni ght was “cold water at some point, and . . .
someone behind me and the motion of havi ng sex while I was throwing up.” Sometime later, D. woke up to find appella nt in bed with her. She remembered him saying, “I fucked your friend, and I’m going to fuck you.” According to D., appellant had intercourse with her against her will, ejaculating inside her even though she
asked him not to. In the morning, Larissa’s stomach, abdomen, and vagina hurt, an d she felt as if she
had had sex. She had no idea where she was. D. told her what she thought had happened during the night. Appellant called the wome n a cab. When they got home, Larissa showered, and D. changed her clothes. Late r that day, the women went to a Planned Parenthood clinic, then called the police. Th ey underwent a sex assault examination that evening. Sperm collected fro m inside each woman’s vaginal canal and from outside Larissa’s vagina was ma tched to appellant. Appellant was charged with forcible ra pe as to D., and with rape of an unconscious person, rape of an intoxicat ed person, and sexual penetration of an intoxicated person with a forei gn object as to Larissa. At the bench trial, the women’s tes timony was supplemented with Larissa’s recorded phone call to appellant after the incident. During th e call, appellant told Larissa that she had been “puking and puking and puk ing . . . the whole entire night,” that he thought she had alcohol poisoning, and seriou sly considered calling an ambulance. Only after Larissa said she felt as if they had ha d sex did appellant disclose they had “fooled around.” He claimed they had kissed at th e night club but had not made out at his apartment because she “smelled of throw up.” He admitted to having lain down on the floor next to Larissa and to having hugged her, touched her breasts, and penetrated her vagina with his finger. He thought she had moaned because she enjoyed it, but then she had started throwing up again. Appellant di d not believe Larissa’s claim that she and D.4 were pregnant; he denied having had interc ourse with Larissa, but admitted having had
intercourse with D. Testifying in his own defense at trial, a ppellant continued to in sist he had not had
intercourse with Larissa. He claimed the two had masturbated each other; he had ejaculated and had placed his fing er in Larissa’s vagina. Ac cording to appe llant, Larissa
had welcomed his advances an d had reciprocated. He al so testified to having had
consensual intercourse with D. twice on th e night in question. Appellant’s brother testified in appellant’s defense that he heard the sounds of consensual lovemaking coming from appellant’s bedroom dur ing the night in question. The nurse practitioner who ha d examined the women testified on rebuttal that vaginal swabs had been taken from the vaginal pool, which is six to seven inches into the vagina, and that sperm cannot be deposited manually that deep, except by a finger that is long enough. The court found appellant guilt y of the counts of rape of an intoxicated person and sexual penetration of an intoxicated person by a foreign object, both as to Larissa. The court was not convinced beyond a reasonable d oubt that Larissa had been unconscious or that appellant had forcibly raped D., and it acquitted appe llant of the rape of an unconscious person charge as to Larissa and the forcible rape charge as to D. Appellant was sentenced to two concurrent six-year terms and awarded 85 da ys of presentence credits. This appeal followed.

DISCUSSION Appellant’s contention that the evidence does not sup port his conviction of rape and digital penetration of an intoxicated pe rson is based on a misunderstanding of the
relevant standard of review. “‘When considering a challenge to the su fficiency of the evid ence to support a conviction, we review the entir e record in the light most fa vorable to the judgment to
determine whether it contains substantial evid ence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the5 defendant guilty beyond a reasonable doubt.’ ( People v. Lindberg (2008) 45 Cal.4th 1, 27.) . . . In so doing, a reviewing court ‘pre sumes in support of the judgment the existence of every fact the trier could reas onably deduce from the evidence.’ ( People v. Kraft (2000) 23 Cal.4th 978, 1053.)” ( People v. Edwards (2013) 57 Cal.4th 658, 715.) Under
the substantial evidence standard of review , “we do not reweigh th e evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]” ( People v. Little (2004) 115 Cal.App.4th 766, 771.) Appellant urges us to review “the whole record,” including his version of events. On appeal, however, we review the record ‘“in the light most favorable to the judgment.”’ ( People v. Edwards
, supra , 57 Cal.4th at p. 715.) Appellant argues we should reject D.’s testimony and credit his own testimony in its entirety because his acquittal on the charge of forcib le rape as to D. established that she was not credible and
that he was. He insists that he “was either credible or he was not ,” losing sight of the well established principle that the trier of fa ct may accept or reject a witness’s testimony
in whole or in part . ( People v. Fuiava (2012) 53 Cal.4th 622, 715, fn. 34.) The trial court stated there were “certain things abou t [appellant’s] testimony” that it believed, and the verdict indicates it gave appellant the benef it of the doubt as to his conduct with D. But nothing in the record or verdict suggests the court cr edited appellant’s testimony in its entirety, and on appeal we do not redetermine issues of credibility. ( People v. Little
, supra , 115 Cal.App.4th at p. 771.) The charge of rape of an intoxicated pe rson requires sexual intercourse with a nonspouse whom the perpetrator knew, or reas onably should have kn own, was prevented from resisting due to intoxica tion. (§ 261, subd. (a)(3).) The trial court found that appellant had had sexual intercourse with Larissa based on the DNA evidence that appellant’s sperm was inside Larissa’s va ginal pool. “Substantial evidence includes
circumstantial evidence and the reasonable in ferences flowing therefrom. [Citation.]” ( People v. Ugalino (2009) 174 Cal.App.4th 1060, 10 64.) It is reasonable to infer appellant’s sperm was deposited deep into La rissa’s vagina during sexual intercourse, and
that reasonable inference is sufficient to support the judg ment. Whether or not sperm6 also could have been deposite d by appellant’s finger, as appellant argues, is immaterial on appeal since we must draw reasonable infe rences in favor of the judgment, not in favor of appellant. ( People v. Holt (1997) 15 Cal.4th 619, 668 [“‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the re viewing court that the circumstances might also be reasonably re conciled with a contrary finding does not warrant a reversal of the judgment’”’”].) The testimony of Larissa and D. also sup ports the finding that appellant had sexual intercourse with Larissa. Appellant takes is sue with minor differences in the women’s testimony—that Larissa vaguely remembered cold water, someone behind her, and the motion of having sex while sh e was vomiting, while D. reme mbered that Larissa was on her back on the floor when D. saw appellant making thrusting motions with his pelvis
above her. It is not clear whether the wome n’s memories refer to the same moment in time, but even if they do, conflicts as to minor details, such as Larissa’s position, do not render “physically impossible or inherently improbable” each woman’s testimony that appellant appeared to be having intercour se with Larissa while she was vomiting. ( People v. Elliott (2012) 53 Cal.4th 535, 585 [“Unless it describes facts or events that are physically impossible or inherently improb able, the testimony of a single witness is sufficient to support a conviction.”] Appellant also challenges the correctness of D.’s assumption that what she saw was an act of intercourse. The testimony th at she saw appellant make thrusting motions with his pelvis over Larissa gives rise to a reasonable inference that appellant was engaged in an act of sexual intercourse. As we have explained, we must draw reasonable inferences that support the ju dgment, even though other r easonable inferences may also be possible. Appellant challenges Larissa’s memory in light of he r overall inability to remember the events of the night. But even testimony “subject to justifiable suspicion” does not justify the reversal of a judgment. ( People v. Elliott
, supra , 53 Cal.4th at p. 585.) Appellant contends he belie ved Larissa willingly accepted his advances because, according to his version of events, she pushed her buttocks into his pelvis when he lay7 down next to her, moaned loudly, and stro ked his penis. Appellant also relies on Larissa’s testimony that, although she did not recall these events, they may have happened. There is no indication that the tr ial court credited this part of appellant’s testimony, which is directly contradicted by the women’s testimony that appellant appeared to be having sex with Larissa while she was regurgitating and crying for help. In light of appellant’s conviction of rape as to Larissa, we cannot resolve the conflict in
the evidence on this co unt in his favor. ( People v. Little
, supra , 115 Cal.App.4th at p. 771.) Moreover, on the facts of this case, the resu lt remains the same, even if it could be
concluded that Larissa consen ted. Intoxication prevents resistance when it renders the victim incapable of giving legal consent—th at is, exercising judgment and understanding “the physical nature of the act,” as well as “its moral character and probable consequences.” ( People v. Giardino (2000) 82 Cal.App.4th 454, 466.) The actual
consent of a victim “so unsou nd of mind that he or she is incapable of giving legal consent” is not a defense to rape of an into xicated person, and the perpetrator’s “belief in
the existence of such actual consent is irrelevant.” ( Id . at pp. 460, 471.) The record overwhelmingly supports the conclusion that 19-year-old Larissa was incapable of consenting to any sexual activity because she was so intoxicated that she was physically sick throughout the night, drif ted in and out of consciousne ss, and suffered memory loss. (See id . at pp. 468–469.) The record also belies appellant’s conten tion that he reasona bly believed Larissa was capable of giving consent. He admittedly knew she was “just out of it,” had “never seen anyone so fucked up befo re in [his] life, ever,” a nd was afraid she had alcohol poisoning because she had been vomiting th roughout the night. The women’s testimony that appellant had sexual intercourse with Larissa while she was regurgitating and crying for help also supports the conclusion that he could not have reas onably believed Larissa was capable of consent. Viewed in the light most favorable to the judgment, substan tial evidence in the record supports appellant’s conviction of rape of an intoxicated person.8 The charge of sexual penetration of an in toxicated person with a foreign object
had the same elements as that of rape of an intoxicated person, except that it was based not on sexual intercourse but on appellant’s penetration of Larissa’s vagina with his finger. (§ 289, subds. (e) & (k).) Appellant contends his convic tion of this charge violated the corpus delicti rule because it wa s based solely on his own admission of that

act. The corpus delicti rule precludes a convic tion based exclusively on a defendant’s uncorroborated extrajudicial statemen ts, confession, or admissions. ( People v. Alvarez (2002) 27 Cal.4th 1161, 1168–1169.) The corroborating evidence “may be circumstantial and need not be beyond a reas onable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explana tion is also plausible. [Citations.] There is no requirement of independe nt evidence ‘of every physic al act constituting an element of an offense,’ so long as th ere is some slight or prima fa cie showing of injury, loss, or harm by a criminal agency. [Citation.]” ( Id . at p. 1171.) The corpus delicti may be established “by the voluntar y testimony of defendant as a witness at the trial. [Citations.]” ( People v. Redd (1969) 273 Cal.App.2d 345, 351; see also People v.
Martinez (1994) 26 Cal.App.4th 1098, 1104.) The court found that appellant had comm itted the crime based both on his out-ofcourt admissions during Larissa’s recorded telephone call and his trial testimony. Appellant’s trial testimony was sufficien t to establish the corpus delicti. ( People v.
Martinez , supra , 26 Cal.App.4th at p. 1104.) But he contends the prosecution’s position at trial was that “appellant admitted to finger ing Larissa only as a m eans of denying they had intercourse,” and that “appellant’s statem ent to Larissa was a fabrication and that statement and subsequent testim ony was not credible.” The record does not support this representation. The prosecutor sought to discredit appellant ’s explanation that he had digitally deposited his sperm into Larissa’s vagina, but not his testimony that he had digitally penetrated Larissa. As to the latter, the prosecut or argued that “appellant has assured the court beyond a reasonable doubt he did, in fact, commit the crime . . . of digital penetration.” The prosecutor argued generally that appellant was an unreliable9 witness, and that the “actual truth” was he raped the two women and “finger[ed]” Larissa. The prosecutor’s argument that appellant “fi nger[ed]” Larissa cannot be read as rejecting appellant’s testimony about the digital penetrati on as incredible. In any event, the trial court was the ultimate judg e of its credibility. We already have concluded that Larissa could not validly consent to sexual activity, and appellant did not reasonably believe she was capable of consenting. Sufficient evidence supports his conviction of sexual penetrati on of an intoxicated person with a foreign object.

DISPOSITION The judgment is affirmed. 2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

COLLINS, J.

2 The abstract of judgment incorrectly reflects that a ppellant’s conviction was by plea. It should be corrected to reflect that appellant was convicted after a bench trial.