People v. Valdizan CA2/4

Filed 5/27/15 P. v. Valdizan CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B252909

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA388637) v.

MARCO VALDIZAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Marco Valdizan appeals from a judgment following his conviction of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3))1 and sexual penetration of an intoxicated person by a foreign object (§ 289, subd. (e)). He contends the conviction is not supported by substantial evidence. We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY The victim, 19-year-old Larissa Z., met appellant in the lobby of her building and exchanged Facebook information with him. Appellant was a nightclub promoter, and in March 2011, he sent out a mass invitation on Facebook to a nightclub located in the W hotel in Hollywood. Larissa brought along her roommate D. B., who had not met appellant. Appellant procured a fake identification card for Larissa, and she and D. sat with appellant’s other guests in his booth at the club. Over the course of the night, the two women consumed large quantities of alcohol and became intoxicated. Neither could keep her balance, and when they fell on their way to the restroom, a security guard escorted them out of the club. The women vomited and lay down on couches in the hotel lobby. Hotel security escorted them outside the hotel, and eventually they got into a taxi cab. Larissa was so unstable on her feet that she fell down before she got into the cab. Appellant intervened at some point and instructed the driver to take them to appellant’s apartment. The women fell asleep in the cab. When they reached appellant’s apartment, Larissa vomited again as she was exiting the cab, and appellant directed her to his bathroom to clean up. He used blankets to make a makeshift bed for Larissa on the floor, and let D. use his bed. At some point during the night, D. heard Larissa cry for help. She looked over and saw appellant on top of Larissa. Their bodies were partially covered with a sheet, but appellant was making thrusting motions with his pelvis, which made D. think he was having intercourse with Larissa. Larissa appeared to be vomiting, and she kept on crying for help. Afterwards,