P. v. Baccari CA3

Filed 6/20/13 P. v. Baccari CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C069981

Plaintiff and Respondent, (Super. Ct. No. 62098288)

v.

PATRICK GREGORY BACCARI,

Defendant and Appellant.

Defendant Patrick Gregory Baccari was convicted after a jury trial of rape of an unconscious person, sexual penetration of an unconscious person, first degree burglary, and assault with intent to commit rape during the commission of first degree burglary. On appeal, he challenges the sufficiency of the evidence to support his burglary-related convictions and the legality of his first degree burglary conviction. We dismiss his first degree burglary conviction and otherwise affirm the judgment.

1

FACTS AND PROCEEDINGS On March 21, 2009, Jane Doe held a party in her home to celebrate Lorraine G.’s birthday. After decorating the house, Doe, Lorraine G., Amy B. and Michelle P. prepared for the party in Doe’s upstairs bedroom. During this time, Doe drank one to two mixed drinks, containing beer, vodka and limeade. She also smoked some marijuana and shared an Ecstasy pill with one of the women. The women then made their way downstairs sometime between 8:00 p.m. and 10:00 p.m. to meet the party guests. Once downstairs, Doe began to socialize and mingle. She had an additional one to two mixed drinks downstairs. The party guests were told they were not allowed upstairs and were instructed to use only the two downstairs bathrooms. The stairway was taped off with caution tape. Defendant arrived at the party sometime before 11:30 p.m. or midnight and was introduced to Doe and others by a mutual friend, Jason K. Defendant was subsequently seen interacting with Crystal--one of the women Jason K. had introduced him to earlier. Defendant was touching her arms, putting his hands around her, and attempting to kiss her. Crystal appeared intoxicated and uncomfortable, so one of her friends helped her out of her situation by pretending to be her boyfriend. Crystal eventually had to be carried away from the party because she was so intoxicated. Defendant was seen going upstairs some time before midnight. Lorraine G. told him he was not allowed to be upstairs and defendant said he was attempting to use the bathroom. Lorraine G. told him he had to stay downstairs and to use one of the two bathrooms down there. Around 1:00 a.m., Doe went back upstairs to smoke some marijuana with friends. After taking one or two hits, she sat down on her bed and immediately felt sick. She went to her adjoining master bathroom and started vomiting. Lorraine G. and Michelle P.