P. v. Cardona

Filed 8/22/06 P. v. Cardona CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

JOHN FRANK CARDONA,

Defendant and Appellant.

H027711

(Santa Cruz County

Super. Ct. No. F05900)

Statement of the Case

Defendant John Frank Cardona appeals from a judgment entered after a jury convicted him of oral copulation on an unconscious person, burglary, and prowling. (Pen. Code, §§ 288a, subd. (f), 459, 647, subd. (i).)[1] On appeal, he claims there is insufficient evidence to support his convictions for oral copulation and burglary. He claims the court erred in failing to instruct the jury that a reasonable but mistaken belief that the victim was awake is a defense. And he claims that the prosecutor and trial judge were guilty of misconduct.

We affirm the judgment.

Facts

Oral Copulation

On July 6, 2002, Danielle Poisson and her friend K., the victim, spent the evening dancing and drinking at the Catalyst bar. Around 1:30 a.m., they drove back to K.'s house, where they sat out on the porch, smoking cigarettes. Around 2:30 a.m., defendant walked by, and K. asked him for a cigarette. They engaged in some small talk, he gave her some cigarettes, and he headed down the street. K. testified that she was not attracted to or romantically or sexually interested in defendant when he first appeared. Moreover, she denied doing or saying anything during their brief encounter that might have given him that impression. She did not invite him to return. Around 2:45 a.m., Poisson and K. decided turn in.[2] Poisson testified that K., who had had about six beers that evening, was drunk but in control.

K. went to her room, undressed, and went to bed. She fell asleep but awoke because she smelled cigarette smoke and felt something touch her foot. Startled, she bolted up and saw defendant standing right outside her window, smoking a cigarette. She yelled, â€

Description	Defendant appeals from a judgment entered after a jury convicted him of oral copulation on an unconscious person, burglary, and prowling. On appeal, defendant claims there is insufficient evidence to support his convictions for oral copulation and burglary. Defendant claims the court erred in failing to instruct the jury that a reasonable but mistaken belief that the victim was awake is a defense. As well as claims that the prosecutor and trial judge were guilty of misconduct. Court affirms the judgment.
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