P. v. Borja CA2/2

Filed 7/8/13 P. v. Borja CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B244589

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. B123581) v.

RODRIGO BORJA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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Rodrigo Borja (Borja) was convicted of raping his niece when she was unconscious. He now challenges the sufficiency of the evidence supporting a second conviction that he conveyed a threatening message to dissuade his niece from testifying against him at trial. (Pen. Code, § 136.1, subd. (a)(1).)1 We find no error and affirm. FACTS Defendant Borja is the maternal uncle of Jane Doe. When Doe was young, Borja lived in her home. Later, she stayed for a month at his trailer home when she moved to California. They have never had a romantic relationship. Doe turned 25 on October 30, 2011, and celebrated by meeting friends for dinner. Borja was the “designated driver” and drank one beer at the birthday party. Doe had “at least five” drinks, including a Long Island iced tea, an apple martini, a soft drink with two shots of alcohol, plus another shot. After drinking the last shot, she went to the dance floor and danced a little, but not with Borja. “After that I blacked out. I don‟t remember anything.” She does not recall leaving the restaurant. A friend nicknamed “Tita” traveled to the birthday party with Doe and Borja. Tita had one or two margaritas. She saw Doe consume multiple drinks: at the end of the evening, Doe “was fairly drunk because she couldn‟t keep her balance.” Doe had to be helped to the car, was stammering, and fell. Borja showed no sign of intoxication, and was able to drive and communicate. Borja drove Tita home. Tita described Doe as “fairly unconscious” during the ride. Borja and Doe drove off together after Tita got out. Doe has no memory of driving to or entering Borja‟s trailer. Instead, “the next thing I remember was waking up to him penetrating me. . . . I still felt like drunk when I woke up. I felt him probably like three, four times thrusting inside of me.” Specifically, she felt his penis inside her vagina. When Doe uttered the name of a male friend, Borja got off of her, unlatched the top bunk bed in his trailer, and pretended to be asleep. Doe‟s underwear was rolled halfway down her thighs, her dress was pushed up, and her vagina was exposed.