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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 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 This opinion has not been certified for publication or ordered published for 

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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 Superior Court of Los Angeles County, 

Norm Shapiro, Judge. Affirmed. 

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and 

Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. 

______________________________ 
2 

Marco Valdizan appeals from a judgment following 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 evidence. We disagree and affirm. 

FACTUAL AND PROCEDURAL SUMMARY 

 The victim, 19-year-old Larissa Z., met appellant in the lobby of her building and 

exchanged Facebook information with him. Appellant was a nightclub promoter, and in 

March 2011, he sent out a mass invitation on Facebook to a nightclub located in the W 

hotel in Hollywood. Larissa brought along her roommate D. B., who had not met 

appellant. 

Appellant procured a fake identification card for Larissa, and she and D. sat with 

appellant’s other guests in his booth at the club. 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 security guard escorted 

them out of the club. The women vomited and lay down on couches in the hotel lobby. 

Hotel security escorted them outside 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 instructed the driver to take them to appellant’s 

apartment. The women fell asleep in the cab. 

 When they reached appellant’s apartment, Larissa vomited again as she was 

exiting the cab, and appellant directed her to his bathroom to clean up. He used blankets 

to make a makeshift bed for Larissa on the floor, 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 covered with a sheet, but appellant was making 

thrusting motions with his pelvis, which made D. think he was having intercourse with 

Larissa. Larissa appeared to be vomiting, and 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 vomit off the floor. D. managed 

to crawl out of bed and reach the bathroom, where she saw Larissa in the bathtub with the 

shower running. Appellant appeared to be washing her. Larissa was still throwing up 

and crying. Larissa’s only memory of the night was “cold water at some point, and . . . 

someone behind me and the motion of having sex while I was throwing up.” 

Sometime later, D. woke up to find appellant 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, and 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 women a cab. When they got home, Larissa 

showered, and D. changed her clothes. Later that day, the women went to a Planned 

Parenthood clinic, then called the police. They underwent a sex assault examination that 

evening. Sperm collected from inside each woman’s vaginal canal and from outside 

Larissa’s vagina was matched to appellant. 

 Appellant was charged with forcible rape as to D., and with rape of an 

unconscious person, rape of an intoxicated person, and sexual penetration of an 

intoxicated person with a foreign object as to Larissa. 

At the bench trial, the women’s testimony was supplemented with Larissa’s 

recorded phone call to appellant after the incident. During the call, appellant told Larissa 

that she had been “puking and puking and puking . . . the whole entire night,” that he 

thought she had alcohol poisoning, and seriously considered calling an ambulance. Only 

after Larissa said she felt as if they had had sex did appellant disclose they had “fooled 

around.” He claimed they had kissed at the 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 did not believe Larissa’s claim that she and D. 
4 

were pregnant; he denied having had intercourse with Larissa, but admitted having had 

intercourse with D. 

 Testifying in his own defense at trial, appellant continued to insist he had not had 

intercourse with Larissa. He claimed the two had masturbated each other; he had 

ejaculated and had placed his finger in Larissa’s vagina. According to appellant, Larissa 

had welcomed his advances and had reciprocated. He also testified to having had 

consensual intercourse with D. twice on the night in question. Appellant’s brother 

testified in appellant’s defense that he heard the sounds of consensual lovemaking 

coming from appellant’s bedroom during the night in question. 

The nurse practitioner who had 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 guilty 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 doubt that Larissa had been unconscious or 

that appellant had forcibly raped D., and it acquitted appellant 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 days of presentence 

credits. This appeal followed. 

DISCUSSION 

 Appellant’s contention that the evidence does not support his conviction of rape 

and digital penetration of an intoxicated person is based on a misunderstanding of the 

relevant standard of review. 

“‘When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 
5 

defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 

27.) . . . In so doing, a reviewing court ‘presumes in support of the judgment the existence 

of every fact the trier could reasonably 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 the 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 forcible 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 fact 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 about [appellant’s] testimony” that it believed, and 

the verdict indicates it gave appellant the benefit of the doubt as to his conduct with D. 

But nothing in the record or verdict suggests the court credited 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 person requires sexual intercourse with a nonspouse whom the perpetrator knew, or reasonably should have known, was prevented 

from resisting due to intoxication. (§ 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 vaginal pool. “Substantial evidence includes 

circumstantial evidence and the reasonable inferences flowing therefrom. [Citation.]” 

(People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) It is reasonable to infer 

appellant’s sperm was deposited deep into Larissa’s vagina during sexual intercourse, and 

that reasonable inference is sufficient to support the judgment. Whether or not sperm 
6 

also could have been deposited by appellant’s finger, as appellant argues, is immaterial 

on appeal since we must draw reasonable inferences 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 reviewing court that the 

circumstances might also be reasonably reconciled with a contrary finding does not 

warrant a reversal of the judgment’”’”].) 

The testimony of Larissa and D. also supports the finding that appellant had sexual 

intercourse with Larissa. Appellant takes issue with minor differences in the women’s 

testimony—that Larissa vaguely remembered cold water, someone behind her, and the 

motion of having sex while she was vomiting, while D. remembered 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 women’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 intercourse 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 improbable, 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 that 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 judgment, even though other reasonable inferences may also 

be possible. Appellant challenges Larissa’s memory in light of her 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 believed Larissa willingly accepted his advances because, 

according to his version of events, she pushed her buttocks into his pelvis when he lay 
7 

down next to her, moaned loudly, and stroked 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 trial 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 count in his favor. (People v. Little, supra, 115 Cal.App.4th at 

p. 771.) 

Moreover, on the facts of this case, the result remains the same, even if it could be 

concluded that Larissa consented. Intoxication prevents resistance when it renders the 

victim incapable of giving legal consent—that 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 unsound of mind that he or she is incapable of giving legal 

consent” is not a defense to rape of an intoxicated 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, drifted in and out of consciousness, and suffered memory loss. 

(See id. at pp. 468–469.) 

The record also belies appellant’s contention that he reasonably believed Larissa 

was capable of giving consent. He admittedly knew she was “just out of it,” had “never 

seen anyone so fucked up before in [his] life, ever,” and was afraid she had alcohol 

poisoning because she had been vomiting throughout 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 reasonably believed Larissa 

was capable of consent. 

Viewed in the light most favorable to the judgment, substantial evidence in the 

record supports appellant’s conviction of rape of an intoxicated person. 
8 

The charge of sexual penetration of an intoxicated 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 conviction of this charge 

violated the corpus delicti rule because it was based solely on his own admission of that 

act. 

The corpus delicti rule precludes a conviction based exclusively on a defendant’s 

uncorroborated extrajudicial statements, 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 reasonable doubt, but is sufficient if it permits an inference of 

criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There 

is no requirement of independent evidence ‘of every physical act constituting an element 

of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or 

harm by a criminal agency. [Citation.]” (Id. at p. 1171.) The corpus delicti may be 

established “by the voluntary 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 committed the crime based both on his out-ofcourt admissions during Larissa’s recorded telephone call and his trial testimony. 

Appellant’s trial testimony was sufficient 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 fingering Larissa only as a means of denying they 

had intercourse,” and that “appellant’s statement to Larissa was a fabrication and that 

statement and subsequent testimony 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 prosecutor 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 unreliable 
9 

witness, and that the “actual truth” was he raped the two women and “finger[ed]” Larissa. 

The prosecutor’s argument that appellant “finger[ed]” Larissa cannot be read as rejecting 

appellant’s testimony about the digital penetration as incredible. In any event, the trial 

court was the ultimate judge 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 penetration 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 appellant’s conviction was by 

plea. It should be corrected to reflect that appellant was convicted after a bench trial.