People v. Upshaw CA1/3

Filed 2/16/23 P. v. Upshaw CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A163622 v. DARRIUS DEJAUN UPSHAW, (Humboldt County Super. Ct. No. CR2002120) Defendant and Appellant.

Defendant Darrius Dejaun Upshaw appeals after a court trial in which he was found guilty of sex offenses against John Doe 1 (Doe 1) and John Doe 2 (Doe 2). On appeal, defendant argues: (1) the evidence is insufficient to support the two convictions involving Doe 2; (2) the court imposed a restitution fine and parole revocation restitution fine exceeding the statutory maximum; and (3) clerical errors in the abstract of judgment need to be corrected. We agree the restitution fine and the abstract should be modified. In all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND As relevant here, the trial court found defendant guilty of oral copulation of an unconscious person—Doe 1 (Pen. Code, § 287, subd. (f),1 count 2), and oral copulation by intoxication—Doe 2 (§ 287, subd. (i), counts 3

1 All further statutory references are to the Penal Code unless otherwise indicated.

and 52). The court sentenced defendant to a total of 10 years in prison: six years for count 2, and consecutive 2-year terms for counts 3 and 5. At the time of the incidents, Doe 1, Doe 2, and defendant belonged to the same fraternity. The evidence at trial included the testimony of both victims, which established the following. At a fraternity party on May 18, 2020, Doe 1 drank three to four glasses of wine, became intoxicated, and fell asleep on a couch. He later awoke with his pants and underwear down, and someone orally copulating him. He pretended to be asleep and the oral copulation went on for about 40 minutes. The perpetrator eventually stopped, watched pornography on a cellphone, masturbated, ejaculated on Doe 1’s face, then wiped it off with a blanket. Doe 1 recognized the perpetrator as defendant. Doe 1 reported the incident to a fraternity brother that evening, and to the police the following day. On March 7, 2020, Doe 2 arrived at a fraternity party around 8:30 p.m., had more than five drinks, smoked marijuana, then blacked out by around 9:30 p.m. He was “really heavily intoxicated” and was not conscious, but he was still moving around. He could recall, however, vomiting all over himself while lying on a couch and aspirating on his own vomit.3 He could also recall defendant picking him up, stripping him of his soiled clothing, carrying him to defendant’s bedroom, laying him down, and orally copulating him. Doe 2 pretended to be asleep and did not move during the sexual act, then he fell asleep when defendant was done even though he wanted to leave.