People v. Scott

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III. B.

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] OPINION

I. INTRODUCTION A jury found defendant guilty of violating Penal Code section 2851 (incest), based on evidence that he had sexual intercourse with his 18-year-old daughter. In a bifurcated trial, the trial court found that defendant had one prior strike conviction, a 1991 robbery conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Defendant was sentenced to six years in prison, consisting of the aggravated term of three years doubled to six years *Page 833 based on the prior strike conviction.2 Defendant appeals. Relying on Lawrence v. Texas (2003)539 U.S. 558 [156 L.Ed.2d 508, 123 S.Ct. 2472] (Lawrence), defendant contends that his section 285 (incest) conviction violates his Fourteenth Amendment due process rights because the statute criminalizes sexual intercourse between consenting adults. For the reasons that follow, we reject this contention and affirm the judgment.

II. STATEMENT OF FACTS Defendant's daughter, Jane Doe, turned 18 years old in December 2004. Several days later, on December 22, Doe celebrated her birthday at her sister's house. Doe's mother, defendant, and other family members attended the birthday party. Doe was raised by another relative and saw defendant only occasionally during her childhood. After the party, between 12:00 a.m. and 1:00 a.m., defendant asked Doe to accompany him to his house, a few blocks away. He explained that his girlfriend, Deshawn Smith, with whom he had lived for 15 years, probably would not let him in the house unless Doe was with him. Doe agreed to go with defendant. At defendant's house, Smith allowed defendant and Doe inside after she saw that Doe was with defendant. Smith smelled alcohol on defendant and on Doe, and saw that defendant had a drink in his hand. Smith was upset with defendant because he had been gone for several hours, he had been in the company of his "ex-girlfriend," Doe's mother, and he had been drinking. Inside the house, defendant made two more drinks. Smith told defendant that he needed to stop drinking because he had to work in the morning. Smith went to sleep on a couch in the living room, while her and defendant's four-year-old daughter was asleep on another couch nearby. Defendant and Doe went into defendant's bedroom, one of two bedrooms in the house, to get some socks for Doe to wear. Doe was planning to spend the night, so she lay down, fully clothed, on the bed in defendant's bedroom. Defendant turned on a radio in the bedroom. At some point, defendant got into bed with Doe and put his arm around her waist. Doe was lying on her side, facing away from defendant. Doe tried to move away from defendant, but he kept his arm around her. Next, he unbuckled her pants and put his finger into her vagina. At this point, Doe was *Page 834 quietly crying and "scared" of defendant, but she did not say anything. Next, defendant pulled her pants down and had intercourse with her for approximately two minutes. Immediately afterward, Doe got out of bed and tried to leave the house, but she did not have a key to unlock the front security door. She tried to awaken Smith to let her out, but Smith did not wake up. Defendant then came out of the bedroom and unlocked the door for her. As he did so, he told her not to say anything to anyone. Doe walked back to her sister's house. She was crying and visibly upset when she arrived, and her mother asked her what had happened. When she did not answer, her sister called the police. Doe hesitated to tell her family or the police what had happened at defendant's house, but eventually she told them. She was taken to a hospital, where a sexual assault examination was conducted at approximately 5:30 a.m. The examination revealed the presence of two vaginal injuries — an abrasion and a hemorrhage — and nonmotile or inactive sperm. The findings were consistent with Doe having nonconsensual sexual intercourse only four or five hours earlier, but they were also consistent with her having consensual or nonconsensual sex within the previous several days. Defendant testified in his defense. He explained that he fell asleep in his bed and, after he woke up sometime later, he thought that Smith was in bed with him. He had intercourse with Doe for less than one minute and stopped immediately when he realized that Doe was not Smith. He did not ejaculate.