` P. v. Arroyo















Filed 10/5/10 P. v. Arroyo CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




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THE PEOPLE, Plaintiff and Respondent, v. LEONEL ARROYO, Defendant and Appellant.

B219745 (Los Angeles County Super. Ct. No. KA083888)

APPEAL from a judgment of the Superior
Court of Los Angeles
County. Robert M.
Martinez, Judge. Judgment affirmed as
modified.



Edward
Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant.



Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews,
Timothy M. Weiner and David Glassman, Deputy Attorneys General, for Plaintiff
and Respondent.



_________________________

Appellant
Leonel Arroyo appeals from a judgment entered after a jury convicted him of
count 1, the lesser included crime of kidnapping
(Pen. Code, >[1] >
§ 207, subd. (a)); >[2] count 3, oral copulation of an unconscious person
(§ 288a, subd. (f)); count 4, sodomy of an unconscious person (§ 286, subd.
(f)); count 5, oral copulation of an unconscious person (§ 288a, subd. (f));
count 6, rape of an unconscious person (§ 261, subd. (a)(4)); count 7, rape of
an unconscious person (§ 261, subd. (a)(4)); and count 8, the lesser included
crime of assault (§ 240).[3] Appellant was acquitted of count 2, rape of an unconscious
person (§ 261, subd. (a)(4)).

The trial court selected kidnapping, count 1, as the principal term
and sentenced appellant to the midterm of five years on count 1. On counts 3, 4, 5, 6 and 7 the court imposed
consecutive midterm sentences of two years each, and on count 8 a concurrent
term of six months.

We modify the judgment to
stay execution of sentence on count 8 and otherwise affirm.

CONTENTIONS

Appellant
contends that: (1) the oral copulation
convictions should be reversed because there was insufficient evidence of the corpus
delicti; moreover, his conviction in violation of the corpus delicti rule
deprived him of his federal constitutional right to due process; (2) the trial
court erred in failing to instruct on reasonable and good faith belief in
consciousness; moreover the failure to instruct on reasonable good faith belief
in consciousness deprived him of due process; (3) the trial court erred in
excluding limited evidence of Jane Doe's > >[4]
prior sexual history relevant to her credibility; moreover, the preclusion of
evidence concerning those prior inconsistent statements deprived him of his
federal constitutional rights to due process, confrontation, and trial by jury;
(4) the prosecutor committed misconduct in closing argument, and if this court
finds his prosecutorial misconduct claim forfeited then trial counsel was
ineffective in failing to object below; (5) CALCRIM No. 220's definition of
reasonable doubt violates due process by limiting reasonable doubt to the
evidence presented at trial and by suggesting a weighing of evidence akin to the
preponderance of evidence standard; (6)
CALCRIM No. 220 deprives defendants of due process by failing to advise jurors
that the prosecution has the burden of proving each element beyond a reasonable
doubt; (7) cumulative error denied appellant his due process right to a
fair trial; and (8) imposition of sentence on the kidnapping and assault
counts violated section 654.

FACTS AND PROCEDURAL BACKGROUND

Viewing the whole record in
the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following.
On the evening of July 17, 2008,
Doe, her sister Vanessa H., and Vanessa H.'s friends went to the Crazy Horse
restaurant and nightclub in West Covina. Some of Doe's friends were also at the
nightclub. Doe had several drinks.

When the club began to shut down
around 1:30 a.m., Doe went outside to
meet her sister by the car. She felt
nauseated and vomited on the ground.
Appellant parked his car next to her and asked if she needed help. Doe declined his offer to sit in his vehicle
and sent a text message to her sister that said â€