People v. Deliyiannis
Docket Number | 2d Crim. B320182 |
Decision Date | 30 May 2023 |
Parties | THE PEOPLE, Plaintiff and Respondent, v. BRETT MATTHEW DELIYIANNIS, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. 19F-08362 Timothy S. Covello, Judge
Adrian Dresel-Velasquez, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Blake Armstrong, Deputy Attorney General for Plaintiff and Respondent.
Brett Matthew Deliyiannis appeals from the judgment entered after he was acquitted of assault with intent to commit rape (Pen Code, § 220, subd. (a)(1)) but convicted of the lesser included offense of misdemeanor simple assault (id., § 240).[1] The trial court suspended the imposition of sentence. It granted probation on condition that appellant serve 60 days in county jail and register as a sex offender.
Appellant contends the trial court (1) erroneously failed to instruct the jury sua sponte on the defense that he had committed the assault while in a state of unconsciousness caused by involuntary intoxication, (2) abused its discretion in ordering appellant to register as a sex offender, and (3) erroneously imposed a restitution fine of $500 pursuant to section 294, subdivision (b). The People concede that the third contention has merit. We strike the fine and affirm in all other respects.
After attending a concert, H. Doe went to a friend's house. She arrived "[a] little after 10:00" in the evening. Appellant and his wife were present. Wife's brother lived at the house. Appellant and wife planned to spend the night there.
Before the concert, H. Doe had four alcoholic drinks. At the concert, she had an additional alcoholic drink. She did not drink alcohol after the concert.
H. Doe fell asleep on a couch in the living room of the house. Appellant's wife was seated in a chair next to her. Appellant was on another couch across from H. Doe.
H. Doe was lying on her left side on the couch. After midnight, she was awakened by someone pulling on her pants. She realized that her pants had been unbuttoned, unzipped, and pulled down close to her knees. Her underpants had been similarly pulled down. When H. Doe fell asleep, her pants had been "zipped up and buttoned up."
H. Doe saw appellant lying behind her on the couch. She testified, "[H]e was slightly on top of me slash behind me." His pants were pulled down and his "semi-erect" penis "was touching my butt."
H. Doe sat up. Appellant "got up and walked around the coffee table and laid back on the couch he had been sleeping on." While he was walking, he pulled up his pants. Appellant said nothing to H. Doe, and she said nothing to him. "'He just slowly walked over [to his couch] and laid back down like nothing happened.'" Appellant's wife was still sitting in the chair next to H. Doe.
Appellant testified as follows: He attended the same concert that H. Doe attended. He had "a couple of beers" before the concert, "several at the concert," and "one or two" alcoholic drinks after the concert.
Before falling asleep on the couch, appellant took an Ambien, a prescription sleep medicine. He had no recollection of what happened after he had fallen asleep. The next thing he remembered was being awakened by the police, who "dragged [him] off the couch."
On cross-examination appellant was asked, "For all you know everything [H. Doe] said is true?" Appellant replied, "I don't remember this happening is what I am saying."
(People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).)
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. . . .'" (People v. Salas (2006) 37 Cal.4th 967, 982.) "A criminal defendant has the burden of producing evidence that he was unconscious if he wishes to rely upon that defense." (People v. Froom (1980) 108 Cal.App.3d 820, 830.)
(Rogers, supra, 39 Cal.4th at p. 887.)
During closing argument, defense counsel said appellant had made a good faith mistake of fact - he had mistaken H. Doe for his wife. Counsel stated:
Counsel continued: "If . . . someone you've been close to has been highly intoxicated and you've experienced that, it is believable that he just sat up, kind of halfway realized I'm in the wrong spot and went back to his couch."
In her rebuttal closing argument, the prosecutor contested appellant's mistake of fact defense:
The trial court instructed the jury as follows on mistake of fact:
Appellant's mistake of fact defense was inconsistent with an unconsciousness defense. The mistake of fact defense assumed he was conscious - he knew he was performing a sexual act on a woman, but he was acting under the mistaken belief that the woman was his wife. In view of this inconsistency, the trial court did not have a duty to instruct sua sponte on the defense of unconsciousness. "[T]his limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon." (People v. Sedeno (1974) 10 Cal.3d 703, 716-717, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12; see also People v. Barton (1995) 12 Cal.4th 186, 197 [].)
Furthermore the defense of unconsciousness is not supported by substantial evidence. No expert testimony was presented that a combination of Ambien and alcohol could cause a person to commit a sexual assault while asleep. Nor was there expert testimony that appellant's actions were consistent with the actions of an unconscious person. While pulling down H. Doe's pants and underpants, appellant must have exercised care to not awaken her. This would have been a complex task for someone who was unconscious. Appellant had to unbutton and unzip her pants. (See People v. Carlson (2011) 200 Cal.App.4th 695, 704 ["The evidence . . . reflect[s] defendant...
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