People v. Robinson

Filed 4/20/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B293746

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. BA459873)

MICHAEL ROBINSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed. Law Office of Elizabeth K. Horowitz and Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael C. Keller,

Acting Supervising Deputy Attorney General, for Plaintiff and Respondent. ____________________

Michael Robinson penetrated an unconscious woman with his fingers. He challenges evidentiary rulings and requests presentence conduct credit. We affirm the evidentiary rulings but correct his presentence custody credits. All statutory references are to the Penal Code, unless otherwise specified. I We recount facts in light of the verdict: Robinson used a foreign object sexually to penetrate an unconscious person (§ 289, subd. (d)) and used a foreign object sexually to penetrate a person whose intoxication prevented her from resisting (§ 289, subd. (e)). On December 16, 2014, a woman had two drinks before going to a bar with a female friend. The woman remembered drinking part of a third drink at the bar but had no memory from then until the next morning, when she woke up in Robinson’s bed. She did not recognize him or know his name. Robinson said they had sex. The woman was confused and afraid. She had a boyfriend and had not wanted sex with anyone else. The woman left Robinson’s apartment and had trouble walking, thinking, and ordering an Uber. She could not remember meeting Robinson or leaving the bar. In the past, she had had up to five drinks a night but had always retained her memory. She thought she was drugged at the bar rather than simply hungover from alcohol because the symptoms, including memory loss, were alien to her.