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THE PEOPLE, Plaintiff and Respondent, v. MARK DIAZ, Defen-dant and Appellant.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
2007 Cal. App. Unpub. LEXIS 8381
October 17, 2007, Filed

OPINION
Mark Diaz was convicted of sexual penetration of a victim who was unable to 
resist due to intoxication, anes-thesia, or controlled substance (Pen. 1 
Code, ß 289, subd. (e)), two counts of oral copulation by means of 
intoxi-cation, anesthesia or controlled sub-stance (ß 288a, subd. (i)), and 
two counts of rape by intoxication, anes-thesia or controlled substance (ß 
261, subd. (a)(3)). He appealed his convic-tion and sentence on six grounds, 
[including]; (3) there was insuffi-cient evidence of the victim's inabil-ity 
to give consent; (4) the instruc-tions on the subject of rape improp-erly 
created a mandatory presumption and shifted the burden of proof to him; 

FACTUAL AND PROCEDURAL  [*3] BACKGROUND 
Monica T. reported to the Pasadena Police Department that Diaz had sexu-ally 
assaulted her while she was un-conscious. After her report, the po-lice 
sought and received a warrant to search Diaz's home for evidence relat-ing to 
the sexual assault. The police seized various items from Diaz's apartment, 
including a videotape. The videotape did not depict Monica T.; instead, it 
was a recording of Diaz engaging in sexual intercourse and other sexual acts 
with an unknown woman who appeared to be semi-conscious.
Diaz was charged with 14 sexual of-fenses against Monica T. and the un-known 
woman, known as Jane Doe. At trial, Monica T. testified, but Jane Doe did 
not. The jury viewed the videotape depicting Diaz engaged in sexual acts with 
Jane Doe. The jury acquitted Diaz of all counts pertain-ing to Monica T., but 
convicted him on the five counts alleged against him in which Jane Doe was 
the victim. The trial court denied Diaz's motion for a new trial based on 
error in admitting the videotape and the discovery of new evidence.
The trial court sentenced Diaz to the upper term of eight years on count 10, 
sexual penetration of a person prevented from resisting due to in-toxication, 
anesthesia  [*4] or con-trolled substance (ß 289, subd. (e)). The court 
imposed one-third the mid-term sentence on the two counts of oral copulation 
by means of anesthesia or controlled substance (ß 288a, subd. (i)), to be 
served consecutively. On counts 13 and 14, rape by intoxica-tion, anesthesia 
or controlled sub-stance (ß 261, subd. (a)(3)), the trial court sentenced 
Diaz to consecu-tive upper terms under section 667.6, subdivision (d). Diaz 
appeals.

DISCUSSION 

I. Search Warrant 
The trial court denied Diaz's mo-tion to suppress the videotape of his sexual 
assaults on Jane Doe. Diaz ap-peals this ruling, claiming that the videotape 
should have been suppressed by the trial court because the search warrant was 
overly broad and unsup-ported by probable cause with respect to the seizure 
of videotapes. In de-termining whether an affidavit is sup-ported by probable 
cause, the magis-trate must make a "practical, common-sense decision whether, 
given all the circumstances set forth in the affida-vit . . . there is a fair 
probability that contraband or evidence of a crime will be found in a 
particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238.) A 
magistrate's determina-tion of probable cause is entitled to deferential  
[*5] review, and is to be sustained by a reviewing court as long as there was 
a substantial basis for the magistrate's conclusion that the legitimate 
objects of the search were probably present on the specified premises. 
(People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) The determi-nation will 
not be overturned unless the supporting affidavit fails as a matter of law to 
support the finding of probable cause, and doubtful or marginal cases are 
resolved in favor of upholding the warrant. (Fenwick & West v. Superior Court 
(1996) 43 Cal.App.4th 1272, 1278.) Diaz bears the burden to establish 
invalidity of the search warrant. (Ibid.)
While the affidavit was sufficient to establish probable cause to search 
Diaz's home, it did not demonstrate probable cause to search for video-tapes 
in the course of that search. Nothing in the affidavit tends to sug-gest that 
videotaped evidence would exist or that there would be a reason to examine 
videotapes. The affidavit does not set forth anything said by Monica T. 
regarding cameras, film, electronics, or any subject that would suggest that 
videotapes would exist that are related to the crime. Nothing about the 
offenses described suggests that videotaped evidence  [*6] would exist or be 
related to the acts Monica T. alleged. We therefore cannot say that the 
magistrate had "'a substan-tial basis for. . . conclud[ing]' that probable 
cause existed" (Illinois v. Gates, supra, 462 U.S. at pp. 238-239) with 
respect to videotapes.
Even though the warrant was defi-cient, we agree with the trial court that it 
was not so facially defective as to prevent officers from reasonably relying 
on it. Under United States v. Leon (1984) 468 U.S. 897, 923, the 
ex-clusionary rule does not bar the use of evidence obtained by officers 
act-ing in reasonable reliance on a search warrant issued by a detached and 
neu-tral magistrate unless (1) the issuing magistrate was misled by 
information that the officer knew or should have known was false; (2) the 
issuing mag-istrate abandoned his or her judicial role; (3) the affidavit was 
so lacking in indicia of probable cause that it would be entirely 
unreasonable for an officer to believe such cause existed; or (4) the warrant 
was so facially de-ficient that the executing officer could not reasonably 
presume it to be valid. Here, there is no indication that the magistrate 
abandoned her role or was misled by any false informa-tion. The affidavit  
[*7] demonstrated abundant probable cause for a search even if the scope of 
the search to cover videotapes may be questioned, so it cannot be said that 
the affidavit was so lacking in indicia of probable cause that it would be 
entirely unrea-sonable for an officer to believe that probable cause existed. 
Diaz asserts that "neither the officers conducting the search nor the officer 
who sought its authorization acted as 'reasonable officer[s] would and could 
act in similar circumstances' relative to the videotape,"but offers no 
argument to support this contention. Contrary to Diaz's claim, nothing in the 
record that suggests that the officers who carried out the warrant acted 
unrea-sonably. Moreover, the application for the search warrant demonstrates 
that the officer who sought the warrant acted reasonably: he interviewed the 
complaining witness, who described the events, location, and perpetrator in 
detail and he performed a computer check that confirmed Diaz's descrip-tion 
and address, then prepared the statement of probable cause and decla-ration, 
specifically requesting that the warrant cover a variety of spe-cific items 
related to the alleged of-fenses. Certainly the affidavit was not lacking  
[*8] in indicia of prob-able cause to search the apartment; and to the extent 
that the videotapes were not identified with sufficient particularity or the 
probable cause for their seizure appropriately de-lineated, the search 
warrant was not so facially defective that executing officers could not 
reasonably believe it to be valid. The exclusionary rule does not prevent the 
use of the video-tape here.

II. Admission of the Videotape 
Diaz argues that the videotape of his sexual conduct with Jane Doe should not 
have been admitted because it violates his Sixth Amendment rights (Crawford 
v. Washington (2004) 541 U.S. 36) and because it is hearsay that is not 
admissible under any ex-ception to the hearsay rule. Both of Diaz's arguments 
are premised on the view that the evidentiary value of the videotape was to 
show consent or lack thereof. Diaz argues that consent is not necessarily 
verbal, at least in this sexual context, for in the course of sexual fantasy 
and role-playing, a woman could be saying "no" but meaning "yes." Diaz argues 
that because Jane Doe's state of mind is relevant to de-termining whether her 
repeated use of the words "No," "Stop," and similar negative responses to the 
sexual con-duct  [*9] Diaz was engaging in were actually intended to deny or 
withdraw consent, the statements on the tape were inadmissible hearsay and 
testimo-nial statements.
The problem with Diaz's argument is its starting point. The evidentiary value 
of the videotape was not to dem-onstrate that Jane Doe gave or did not give 
consent to the sexual acts Diaz engaged in. In fact, whether she con-sented 
is entirely irrelevant to the charges against Diaz. Diaz was not charged with 
committing oral copula-tion, copulation with a foreign ob-ject, and rape 
because he lacked Jane Doe's consent-he was charged with the specific 
versions of those offenses that depend not on an unwilling victim but on an 
incapacitated one. (See ß 289, subd. (e) ["Any person who com-mits an act of 
sexual penetration when the victim is prevented from resisting by any 
intoxicating or anesthetic sub-stance, or any controlled substance . . . " 
commits a crime]; 288a, subd. (i) ["Any person who commits an act of oral 
copulation, where the victim is prevented from resisting by any in-toxicating 
or anesthetic substance, or any controlled substance . . . ." com-mits a 
crime]; 261, subd. (a)(3) [rape is the act of sexual intercourse "[w]here a 
person  [*10] is prevented from resisting by any intoxicating or anesthetic 
substance, or any con-trolled substance . . ."].) The value of the videotape 
for purposes of the charges against Diaz relating to Jane Doe was that the 
videotape permitted the jury to evaluate Jane Doe's condi-tion while Diaz was 
performing sexual acts upon her: her mostly motionless body, her grogginess 
and lack of alertness, her slurred speech and fre-quent incoherence, her 
failure to rouse unless slapped (and sometimes even when slapped), and other 
indicia of her level of impairment. While Jane Doe did speak on the tape, her 
state-ments were not offered for the truth of the matter asserted with 
respect to any of the charges on appeal. The videotape therefore was not 
hearsay in this context (Evid. Code, ß 1200 [hearsay is "evidence of a 
statement that was made other than by a witness while testifying at the 
hearing and that is offered to prove the truth of the matter stated"]), nor 
was it a testimonial statement offered for the truth of the matters asserted. 
(Craw-ford v. Washington, supra, 541 U.S. at pp. 51-53, 59, fn. 9 [describing 
tes-timonial statements and observing that the Confrontation Clause does "not 
bar the use of  [*11] testimonial state-ments for purposes other than 
estab-lishing the truth of the matter as-serted"].)
Diaz does point out three instances in closing argument in which the 
prosecutor referred to the videotape arguably as much for the meaning of Jane 
Doe's statements as for her ca-pacity. While the primary use of the videotape 
was to argue that the victim was in fact incapacitated, the prose-cutor did, 
in addition, assert that Jane Doe's statements corroborated the account of 
specific conduct given by complaining witness Monica T. and cast doubt upon 
the defendant's attesta-tions to his own good character. To the extent that 
these brief arguments constituted an erroneous hearsay use of the videotape, 
we think that any error was harmless for two reasons. First, these uses of 
the videotape pertained to issues collateral to Diaz's conviction on the 
charges in-volving Jane Doe-namely, the charges involving Monica T. (of which 
defen-dant was acquitted) and to Diaz's self-proffered character evidence. 
Be-cause of the unusual circumstance here that Diaz's conduct with Jane Doe 
was filmed and subsequently viewed by the jury, Diaz's character was 
irrelevant to the central question of Jane Doe's capacity  [*12] to consent 
to the sex-ual acts Diaz unquestionably per-formed. In light of the evidence 
of Diaz's conduct, erroneous admission of passing arguments based on a 
hearsay use of this otherwise admissible evi-dence was harmless.
Second, the prosecutor clearly, consistently and frequently reiterated that 
consent was not relevant to the charges involving Jane Doe: "When we're 
talking about intoxication . . . the elements are different than rape using 
force. And how they are differ-ent is in the following regard: when it is 
alleged that someone has been raped or committed a rape crime by the use of 
force, then the aspect of con-sent comes into play because part of the 
elements of rape by force is that it was against the victim's will. In other 
words, she didn't want this to happen. [ P] Okay. The difference with 
intoxication and--the Legislature is very smart in this regard--is actual 
consent. That's what I've been talking about. Actual consent is irrelevant. 
You're going to go, why have I been talking about it so much? I'm talking 
about it because the defense is going to go into it. Actual consent is 
ir-relevant to any sexual charge that in-volves intoxication."
The prosecutor continued, "Your job  [*13] is not to determine whether or not 
she agreed to this . . . it's just irrelevant. [ P] What the law says, the 
person has to be prevented from resisting by the intoxication. What 
'prevented from resisting' means is she doesn't even have the reasonable 
judgment possible to give that con-sent. So what that means is that the 
emphasis is not on the effect of the intoxication on her powers of 
resis-tance. The emphasis is on the effect o[n] her powers of judgment. It's 
a very different thing. [ P] If you look at that video, again just using your 
reasonable common sense, you will see that this woman didn't have any 
capac-ity at that point in time to have any kind of reasonable judgment or 
any kind of reasonable discussion as to what he was doing to her." The jury 
instructions (CALJIC Nos. 1.23.2, 10.02, 10.13, 10.33) on the charges 
concerning Jane Doe further cemented that the issue was not consent but 
ca-pacity to consent. Given the clarity with which the elements of the crimes 
against Jane Doe were presented to the jury by the prosecutor and by the jury 
instructions, any incidental hearsay reference to the videotape as 
evidenc-ing a lack of consent was harmless.

III. Sufficiency of the Evidence  [*14] of Incapacity to Consent 
Diaz contends that his convictions must be overturned because there was 
insufficient evidence, largely ignor-ing the issue of capacity to consent in 
favor of insisting that "the rapes here are rapes solely by virtue of the 
State's post-coital characterization" and that the victim was damaged not by 
being sexually assaulted while semi-conscious but by "the State's decision to 
play and play a videotape of an in-timate encounter between her and 
ap-pellant . . . ." We could not disagree more strongly, and observe that 
Diaz's blame-shifting argument borders on the frivolous, as the evidence was 
plainly sufficient to permit a jury to convict him and this court may not 
usurp the function of the jury on appeal. (Peo-ple v. Brown (1984) 150 
Cal.App.3d 968, 970 ["When a jury's verdict is attacked on the ground that 
there is no substantial evidence to sustain it, the power of an appellate 
court begins and ends with the determination as to whether, on the entire 
record, there is any substantial evidence, contra-dicted or uncontradicted, 
which will support it, and when two or more in-ferences can reasonably be 
deduced from the facts, a reviewing court is without power to substitute  
[*15] its deductions for those of the jury"].)
We have reviewed the evidence and conclude that it is sufficient to per-mit a 
reasonable jury to conclude that Jane Doe lacked the capacity to con-sent to 
commit to sexual acts. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 
[appellate court reviews the record in the light most favorable to the 
judg-ment and determines whether it dis-closes substantial evidence such that 
a rational trier of fact could find the defendant guilty beyond a reason-able 
doubt].) The defendant captured the sex acts he performed on video-tape. For 
much of the video, Jane Doe lies limp and motionless, with her eyes closed. 
She periodically attempts to roll to her side, to cover her vaginal area with 
her hands, or to close her legs as Diaz positions him-self to assault her. 
She moans and mumbles, often incoherently, slurring the few words and phrases 
she does say. Diaz drags her across the bed to arrange her limbs and position 
her body for the camera, but he is ham-pered by her limpness and her tendency 
to roll onto her side as soon as he lets go of her legs. He slaps her 
re-peatedly and appears to attempt to rouse her from her stupor to cause her 
to perform sex acts on him. From  [*16] watching Diaz's videotape, a 
reasonable jury could infer, as it did here, that the largely insensible Jane 
Doe was too intoxicated to give legal consent and that Diaz knew or should 
have known that fact. (See People v. Giardino (2000) 82 Cal.App.4th 454, 
462.) 2

2   Although Diaz's counsel de-votes several pages of her brief-ing to 
descriptions of decisions in which a court has concluded that a witness's 
testimony was so inherently improbable, unbeliev-able, or impossible that it 
could not stand as the basis for a con-viction, the evidence here is not 
incredible, contradicted by other conduct of the victim, or other-wise 
undermined in any way. 

IV. Jury Instructions 

A. CALJIC No. 1.23.1 
CALJIC No. 1.23.1 defines "consent" as "positive cooperation in an act or 
attitude as an exercise of free will." Diaz alleges that his convictions must 
be overturned because this definition of consent creates a rebuttable 
manda-tory presumption of lack of consent where there is not positive proof 
of assent, thereby improperly shifting the burden from the prosecution to 
prove lack of consent to the defense to prove consent.
As has already been discussed above, consent is not the question with respect 
to the charges  [*17] on which Diaz was convicted-all of those counts 
depended on a victim who was legally incapable of consenting. The relevant 
jury instructions on the counts on which Diaz was convicted are CALJIC Nos. 
1.23.2, 10.02, 10.13, and 10.33, which establish that the prose-cution must 
prove that the alleged victim was prevented from resisting the act by an 
intoxicating substance or a controlled substance. The exis-tence or absence 
of consent, and therefore CALJIC No. 1.23.1, was only a question in the 
charges involving Monica T., and Diaz was acquitted of all those counts.

B. CALJIC No. 1.23.2 
Diaz then turns his attention to CALJIC No. 1.23.2, which defines the term 
"prevented from resisting" for the purposes of the sexual offense charges 
based on intoxication. He claims that the instruction "asks the defendant 
[to] prove too much which cannot be proven, and allows too much by way of 
presumption." According to Diaz, that which must be but cannot be proven is 
"what is in the mind of the victim," and the instruction, he claims, "creates 
a bubble around the intoxicated victim which cannot be pierced other than by 
showing she was not intoxicated . . . ."
Diaz's reading of CALJIC No. 1.23.2 strains credulity.  [*18] It does not 
create "an irrebuttable presumption that an intoxicated woman is a woman who 
has been prevented from resisting . . . ." In fact, the instruction as given 
advised the jury not to equate intoxication and being prevented from 
resisting: "It is not enough that the alleged victim was intoxicated or 
im-paired by the controlled substance to some degree . . . . Impaired 
mentality may exist and yet the individual may be able to exercise reasonable 
judg-ment with respect to the particular matter presented to his or her mind. 
Instead the level of intoxication and the resulting mental impairment must 
have been so great that the alleged victim could no longer exercise 
rea-sonable judgment concerning that is-sue."
The instruction also does not re-quire the defendant to "show[] the conduct 
assented to by the intoxicated victim was not the product of a lack of 
rationality, meaning either that the conduct assented to was objec-tively 
reasonable or that the conduct was the sort of conduct this victim would 
consider subjectively reasonable even if she were not intoxicated." The 
standard is an objective one: consid-ering all of the surrounding 
circum-stances, did the victim possess the ability to exercise  [*19] 
reasonable judgment? The jury is capable of mak-ing this determination. 
(People v. Linwood (2003) 105 Cal.App.4th 59, 68 ["Can a jury determine 
whether a de-fendant reasonably should have known that a person's level of 
intoxication was such as to prevent him or her from resisting an act of 
sexual inter-course?" Yes"].) The instruction does not, as Diaz claims, 
require a defen-dant to prove reasonableness either by establishing community 
standards of morality or delving into prohibited evidence of the victim's 
moral stan-dards. The instruction raises only the question of the victim's 
capacity to exercise reasonable judgment, not whether her judgments are 
reasonable based on her personal moral beliefs or community moral standards.
Diaz has not demonstrated any error in giving CALJIC No. 1.23.2.



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