P. v. Montejano
On December 7, 2008, Melanie[2] arranged to meet her friend Javier at the Los Gatos Creek trail. Melanie arrived at the trail between 6 and 6:30 p.m. Melanie and Javier consumed a bottle of Peppermint Schnapps and some wine. Javier's brother and his girlfriend arrived about half an hour after Javier and Melanie.
Later, defendant arrived with some marijuana. According to Javier they all smoked the marijuana.[3] At some point Melanie blacked out. The next thing that she remembered was waking up and her friends were gone. The defendant told her that they had left, but they had paid him $20 to have sex with her. Melanie told the defendant that she wanted to go home and did not want to have sex with him.
As Melanie tried to get up she still felt drunk; the defendant pushed her down. Melanie tried to resist, but defendant told her " 'You don't want to do that.' " The next thing that Melanie remembered was the defendant taking off her pants and underwear. Melanie told defendant " 'No' " and ' 'You don't have to do this.' " Melanie tried pushing defendant away, but he orally copulated her. When she started to cry, defendant told her to be quiet. Melanie was scared that she might be beaten or defendant might kill her.
After he orally copulated Melanie, defendant pulled down his pants and inserted his penis in her vagina. Melanie told him " 'No.' " Defendant told her to "shut up." After defendant ejaculated he orally copulated her again and had sex with her for a second time. By now Melanie felt numb and began to "emotionally and physically shut[] down." Defendant orally copulated Melanie for a third time. Defendant asked Melanie to spend the night with him, but she refused. Melanie became aggressive toward him and defendant "gave up."
However, as defendant and Melanie were lying on the ground, defendant pulled down her pants again and sodomized Melanie as she tried to fight him. Subsequently, they both fell asleep. Melanie was awakened by the defendant about 7:30 a.m.; he asked her if she was going to go home.
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