Filed 6/2/15 In re Henry V. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re HENRY V., a Person Coming Under
the Juvenile Court Law.


THE PEOPLE,
                                                                       G049722
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL048686)
         v.
                                                                       ORDER MODIFYING OPINION
HENRY V.,                                                              AND DENYING PETITION FOR
                                                                       REHEARING; NO CHANGE IN
     Defendant and Appellant.                                          JUDGMENT


                   It is ordered that the opinion filed on May 8, 2015, be modified in the
following particulars:
                   On page 11, the second full paragraph is deleted and replaced with the
following:
                    “With respect to Doe’s statement, the Attorney General argues the juvenile
court properly admitted Doe’s statement but for the wrong reason. The Attorney General
contends the court should have admitted the statement not for the nonhearsay fresh
complaint purpose but instead for its truth as a spontaneous statement pursuant to
Evidence Code section 1240. Although the prosecutor raised this issue in her trial brief,
the brief contained minimal analysis of this particular issue. Additionally, the prosecutor
did not assert this ground as a basis of admissibility during the contested jurisdictional
hearing or when the juvenile court ruled on Henry’s motion to dismiss. Thus, we cannot
resolve this issue because it was not fully litigated below and its factual bases are not
fully set forth in the record. (People v. Boyer (2006) 38 Cal.4th 412, 449 [may not
resolve issue on appeal if not litigated below when factual bases not set forth in record];
Evid. Code, § 354, subd. (a).)”
              This modification does not effect a change in judgment.
              The petition for rehearing is DENIED.




                                                  O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




                                              2
Filed 5/8/15 In re Henry V. CA4/3 (unmodified version)




                      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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re HENRY V., a Person Coming Under
the Juvenile Court Law.


THE PEOPLE,
                                                                       G049722
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL048686)
         v.
                                                                       OPINION
HENRY V.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Cheryl L.
Leininger, Judge. Reversed.
                   Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff
and Respondent.
              Henry V. appeals from the dispositional order declaring him a ward of the
court (Welf. & Inst. Code, § 602) after the juvenile court found he committed rape by the
use of drugs and oral copulation by anesthesia or controlled substance. Henry argues the
following: (1) the prosecution failed to satisfy the corpus delicti rule; and (2) his
statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). Because we agree with his first contention, we need not address his second
claim. We reverse the order.
                                           FACTS
The Party
              L.R. was a high school senior in May 2013 when he had a party at his
parents’ home while they were away. About 15 people attended the party. L.R.’s
classmate and friend, Henry, was at the party. Another of L.R.’s friends arrived at the
party with two males and three females, including Jane Doe and her sister K.Y. L.R. told
everyone he would not allow any “sexual relationships” in his house.
              Doe was intoxicated when she arrived at the party. Doe smoked marijuana
and continued to drink heavily to the point she could not walk normally. At one point,
she was lying on a lounge chair in the backyard trying to fall asleep. Henry’s friend,
U.G., sat down next to Doe. U.G. said to Doe, “DTF,” which meant, “Down To Fuck?”
as a joke to see how intoxicated she was. Doe did not respond.
              Around midnight, L.R. opened a sofa bed for Doe and her friends. At one
point, Doe’s friend, J.R., and K.Y. helped Doe to the bathroom and laid her on the floor
next to the toilet. L.R. went to the bathroom and found Doe lying on the bathroom floor.
He asked her if she was okay. Doe said: “‘Yes. Leave me alone. Turn off the lights.
I’m fine.’” Later, Doe came out of the bathroom and lay down on the sofa. Doe slurred
her words when she talked. Doe said she needed to return to the bathroom.
              J.R. put Doe’s arm over her shoulder and walked her to the bathroom. As
they walked, Henry appeared and told J.R. that he could help her with Doe. J.R. said she

                                              2
did not need help, but Henry insisted. Henry put Doe’s other arm over his shoulders and
they walked her to the bathroom. Henry took Doe into the bathroom; J.R. did not go in
with them. The door closed but J.R. did not know if the door was locked. Henry
appeared to J.R. to be sober and friendly. J.R. went to find K.Y., but she did not go back
to check on Doe. J.R. thought Henry was in the bathroom with Doe for “an hour or less.”
              About 15 minutes later, L.R. went to the bathroom to check on Doe. She
was lying on the floor, and Henry was sitting on the side of the bathtub. L.R. tried to
persuade Henry to leave the bathroom but he was unsuccessful. L.R. checked on Doe
four or five times. He found the bathroom door closed but unlocked. However, on the
second or third visit, the bathroom door was locked. L.R. used a coin he had in his
pocket to open the door. He knocked before he opened the door. L.R. thought it was
strange for Henry to remain in the bathroom with someone he did not know and asked
him what he was doing in the bathroom. Henry repeatedly said: “‘I don’t know.
Someone has to take care of her.’” Henry also appeared tired and about to pass out.
Every time L.R. checked on her, Doe wore the same clothes she had on when she arrived.
              U.G. went to the bathroom to check on Doe four or five times. Each time,
the bathroom door was closed but not locked. During the second visit, Doe was sitting on
the toilet with her pants down while her sister K.Y. stood next to her. Henry remained in
the bathroom. During the third visit, U.G. took a photograph of Doe lying on the
bathroom floor. Henry was in the bathroom but out of the camera’s view. During the
fourth visit, U.G. could open the door only slightly because Henry and Doe were sitting
on the floor next to each other; Henry had his arms around Doe. U.G. asked if he could
use the bathroom. After they slid over, U.G. could see Doe was awake but he could not
tell if she moved on her own. U.G. changed his mind about using the bathroom because
it was awkward. The last time U.G. went to check on Doe, L.R. was “[t]rying to get
everybody out.”



                                             3
                Henry left the bathroom when someone arrived with food. L.R. estimated
Henry was in the bathroom with Doe for 30 to 40 minutes. After Henry left the
bathroom, L.R. stopped checking on Doe. Doe spent the rest of the night in the
bathroom.
The Following Morning
                While at Doe and K.Y.’s house the following morning, Doe told K.Y. and
J.R. that Henry sexually assaulted her.1 Doe was not crying, but she was “really quiet.”
Investigation
                About three months later, Orange County Sheriff’s Department investigator
Lavinia Vega interviewed Doe, who provided details about being sexually assaulted at a
party when she was intoxicated. Doe identified Henry as her attacker.2 Vega also
interviewed L.R. at his home. He showed Vega the bathroom. L.R. told Vega that every
time he tried to talk to Henry about what had happened the night of the party, Henry
changed the subject. L.R. also said that three or four months earlier, he noticed Henry
remained sober at parties while girls got drunk.
                Three months later, Vega interviewed 17-year-old Henry at his high school
in an office. Investigator James Christian accompanied Vega. Vega told Henry they
were going to close the office door for his privacy but they could leave it open if he
wanted. Henry did not object. Vega also told Henry he did not have to talk to them if he
did not want to and she asked him: “Are you good talking to us?” Henry answered,
“Yeah.” Vega told Henry a girl had reported he had sex with her in a bathroom during a
party. Henry denied it. Vega told Henry he was “not in any trouble,” but he needed to


1               As we explain below, the juvenile court admitted this evidence for a limited
purpose.
2             After defense counsel objected on hearsay grounds, the juvenile court
admitted this statement for its effect on the listener.


                                              4
tell them what happened. Henry stated he went to a party at L.R.’s house but he did not
drink much. He said there were a couple girls there whom he spoke with but he slept in
his friend’s room “[s]o, there was like no way [he] would have had sex with her.” He
added there were 10 to 15 people at the party and a couple guys and a few girls arrived
but he did not talk to them because he did not know them. He said U.G. spoke with a girl
who was lying down on a lounge chair. He stated that after he ate, he went to sleep in his
friend’s room. He again denied having sex with a girl at the party.
              Vega asked Henry why the girl said he had sex with her. Henry responded:
“She was like unconscious. She was like throwing up in the bathroom the whole time.”
Henry claimed he knew that because everyone at the party was talking about it. After
Henry again denied having sex with the girl, Vega told him a sexual assault exam had
been administered on the girl. Vega asked Henry whether his DNA would be found on
the girl’s body, and Henry said it would because she fell and he helped her up. Vega told
Henry that she knew he had sex with the girl because the exam revealed semen on her
body. Henry admitted they kissed but denied having sex. When Vega asked how the
semen got on the girl, Henry said she gave him a “hand job.” Vega asked him how an
unconscious girl could do that, and Henry said she became unconscious “[t]owards the
end of the night.”
              After Henry repeated his story from the beginning at Vega’s urging, Vega
asked Henry to tell her about putting his penis in Doe’s mouth. Henry denied doing that.
Christian asked how long his penis was in Doe’s mouth, he responded, “Not long[,]” and
“[s]he only sucked it once.” Vega said she knew he got on top of Doe, they “spoon[ed],”
and he unsuccessfully tried to put his penis in her “butt.” After Vega said his DNA was
found on “those places,” Henry admitted “[he] grabbed her butt.” Vega said she knew
Henry dragged Doe on the floor, opened her legs, got on top of her, and put his penis in
her vagina. Henry denied this and denied removing her pants and underpants. Henry
said people were walking in and out of the bathroom the entire time. Vega said she knew

                                            5
that he locked the door. Henry initially claimed L.R. locked the door, but he eventually
admitted L.R. only closed the door.
              Vega could see Henry was becoming emotional and she asked him “to
come clean.” Vega said he had taken “an opportunity with a drunk girl.” Henry nodded
his head in agreement and agreed to start from the beginning. Henry said it was U.G.
who asked Doe whether she was “down to fuck.” Henry explained he and Doe went to
L.R.’s room to make out, but he told them to leave. He stated they went into the
bathroom and she masturbated him until he ejaculated. He said after they drank more
alcohol, Doe went into the bathroom to vomit, and he and others went into the bathroom
to check on her. Henry said that he lay in the bathtub to go to sleep until a friend asked
him to come out.
              Vega asked Henry when he put his penis in Doe’s mouth, he said, “That
was the second time in the bathroom.” Henry said he lay down on the floor next to Doe
in a spooning position and asked her if she would “give [him] head.” He said she agreed
“but she only sucked it like once and then she just stopped.” Henry admitted he put his
hand down Doe’s pants inside her underpants but he only touched her clitoris. He denied
penetrating her with his finger. After Henry denied having sex with Doe, Vega asked
him how semen got into her vagina. Henry claimed he ejaculated onto a napkin and
some of his semen got onto his hands before he “fingered her.” When Vega asked Henry
if he ejaculated a second time because she knew he “ejaculated on her stomach and her
legs[,]” Henry initially said “no” but then said he could not remember because he “was
drunk too.” When Christian asked Henry why he was lying, he said, “I don’t want to get
in trouble.” Christian asked how long his penis was in Doe’s vagina, and Henry said, “It
like wouldn’t fit in it like wouldn’t go in so like it was only like twice.” Henry said just
the tip of his penis went in because “it wasn’t like wet.” Henry said that is when he asked
and Doe agreed to perform oral sex on him. He added, “after that that’s when [he]
fingered her.”

                                              6
              Henry agreed he masturbated until he ejaculated on her stomach and legs.
Henry said he lied because he did not want to get into trouble. Henry said Doe was not
unconscious because she talked to him. Henry agreed when Christian said that while Doe
had not said “no,” that “she was in no condition to say yes.” Vega told Henry she was
going to arrest him and walk him to her car but she was going to be discreet so as not to
embarrass him in front of his classmates.
              Days after the interview, a petition alleged Henry committed the following
offenses: rape by use of drugs (Pen. Code, § 261, subd. (a)(3))3 (count 1), sexual
penetration by a foreign object by intoxicating and controlled substance (§ 289, subd. (e))
(count 2), oral copulation by anesthesia or controlled substance (§ 288a, subd. (i))
(count 3).
              Tragically, 16-year-old Doe died in a traffic accident before the contested
jurisdictional hearing was held in this matter.
              At the contested jurisdictional hearing, L.R., J.R., L.V., and U.G. all
testified to the facts we describe above.
              With respect to Doe’s statement the morning after the party, when the
prosecutor asked J.R. what Doe told her and K.Y., defense counsel objected on hearsay
grounds. The prosecutor answered the statement was not offered for its truth “but at this
point we don’t know what the fresh complaint was without some context.” The court
overruled the objection, ruling, “At this point it’s coming in for the nonhearsay fresh
complaint.” J.R. testified to the following: “[Doe] told me that he had like stuck his
private in her mouth and started doing the motion, and then said that he, I mean, put it in
her, I guess, like started having sex with her.”
              Vega testified concerning her interview of 17-year-old Henry. Vega
explained she and Christian interviewed Henry in an office at his high school. She said

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

                                              7
neither she nor Christian were in uniform. She was not armed but she did not remember
whether Christian was armed. She described the office as being 10 feet by 12 feet and
having a desk, a couple chairs, and some bookcases. She testified she told Henry that she
was going to close the office door, which led to a reception area, for his privacy, but they
could leave it open if he preferred. She stated Henry sat in the chair that was closest to
the office door the entire interview. Vega told Henry that he did not have to speak with
them and he acknowledged he understood. She said neither she nor Christian ever made
any showing of force or raised their voices at him. She said Henry never asked to leave.
She said she did not handcuff Henry until they got to her car.
              On cross-examination, Vega testified Doe did not have a sexual assault
examination and there was no DNA evidence found on her body. Vega admitted some of
things she told Henry during his interview were not true, including that she interviewed
everyone at the party, some of his friends said he had sex with a girl at the party, his
semen was found on her body and in her vagina, people saw Doe lying in the bathroom
with her pants and underwear off or down. On redirect examination, Vega testified
Henry never asked for his parents or a lawyer.
              The photograph U.G. took, exhibit No. 5, showed Doe lying on the floor
wearing pants but her underwear showed above her pant line. The audiotape of Henry’s
53-minute interview was played for the juvenile court.
              At the close of the prosecutor’s case, Henry moved to dismiss all three
counts for insufficient evidence pursuant to Welfare and Institutions Code section 701.1
because there was no evidence of corpus delicti. Henry argued that other than his
statements, there was no evidence he sexually assaulted Doe. The prosecutor argued the
following evidence permitted the reasonable inference a crime occurred: Henry left his
friends and took a girl who was extremely intoxicated and who he did not know into a
bathroom and closed the door to presumably take care of her; on at least one occasion the
bathroom door was locked; Doe was so intoxicated she could not take care of herself; and

                                              8
Henry eventually left Doe in the bathroom without later checking on her, which suggests
he was finished with the sexual assault. The prosecutor also stated Henry’s contradictory
statements to police indicate a consciousness of guilt. Finally, the prosecutor asserted
Doe made a complaint the following morning. Henry argued the evidence the prosecutor
relied on was too speculative to establish corpus delicti. He added Doe’s statement the
following morning was not offered for its truth.
              The juvenile court stated it had reviewed the facts of the case and studied
the relevant case law. With regard to Doe’s statements, the court stated: “[T]he court is
considering the fresh complaint not for the truth of the matter asserted but for purposes of
fresh complaint and as it is allowed to be considered for purposes of a fresh complaint in
conjunction with many numerous things.”
              The court ruled as follows: “I have quite a long list of things I felt did
support corpus, and taking all of those things into consideration then I do believe that
there is independent proof, sufficient independent proof, circumstantial proof that is not
unreasonable, and it does lead the court to believe that there is a reasonable inference that
there has been criminal conduct here. I do find then that there’s sufficient corpus in this
matter, so . . . [Welfare and Institutions Code section] 701.1 motion based on lack of
corpus is denied for that purpose.”
              The juvenile court found counts 1 and 3 to be true beyond a reasonable
doubt. The court found insufficient evidence on count 2 and dismissed it on the court’s
own motion. At the dispositional hearing, the juvenile court declared the maximum term
of confinement was 10 years. The court declared Henry a ward of the court and placed
him on supervised probation with various terms and conditions. The court ordered Henry
to serve 210 days in juvenile hall with credit for 111 days actually served.
                                       DISCUSSION
              Henry argues the prosecutor failed to satisfy the corpus delicti rule. We
agree.

                                              9
              “In every criminal trial, the prosecution must prove the corpus delicti, or
the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a
criminal agency as its cause. In California, it has traditionally been held, the prosecution
cannot satisfy this burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002)
27 Cal.4th 1161, 1168-1169 (Alvarez).) The corpus delicti rule applies to both out-of-
court statements made prior to the offense and to statements made after the offense. (Id.
at pp. 1170-1171.)
              “The independent proof may be circumstantial and need not be beyond a
reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a
noncriminal explanation is also plausible. [Citations.] There is no requirement of
independent evidence ‘of every physical act constituting an element of an offense,’ so
long as there is some slight or prima facie showing of injury, loss, or harm by a criminal
agency. [Citation.] In every case, once the necessary quantum of independent evidence
is present, the defendant’s extrajudicial statements may then be considered for their full
value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at
p. 1171.)
              We review a juvenile court’s denial of a motion to dismiss pursuant to
Welfare and Institutions Code section 701.1 for substantial evidence. (In re Man J.
(1983) 149 Cal.App.3d 475, 482.) We must view the record in the light most favorable to
the judgment to determine whether the facts and their reasonable inference supports the
juvenile court’s finding. (Ibid.) Thus, we must examine the entire record to determine
whether there is “‘slight’” or “‘minimal’” evidence from which the juvenile court could
reasonably infer a crime was committed. (People v. Jones (1998) 17 Cal.4th 279, 301
(Jones).) “The inference need not be ‘the only, or even the most compelling, one . . . [but
need only be] a reasonable one . . . .’ [Citation.]” (Id. at pp. 301-302.)



                                             10
              The Attorney General cites to the following evidence to establish the
corpus delicti of the sexual assault, i.e., criminal wrongdoing: (1) Doe’s statement to
K.Y. and J.R. that Henry put his penis in her mouth and vagina; (2) Henry’s statements at
the party and to investigators that demonstrated his consciousness of guilt; (3) Henry’s
conduct at, and subsequent to, the party. We will address each in turn.
              With respect to Doe’s statement, the Attorney General argues the juvenile
court properly admitted Doe’s statement but for the wrong reason. The Attorney General
contends the court should have admitted the statement not for the nonhearsay fresh
complaint purpose but instead as a spontaneous statement pursuant to Evidence Code
section 1240 for its truth. We disagree. The prosecutor did not present this theory of
admissibility below and cannot now advance it on appeal. (People v. Ervine (2009) 47
Cal.4th 745, 779 [defendant could not argue new hearsay exception applicable because he
did not argue that theory of admissibility at trial; citing Evid. Code, § 354].) To allow the
Attorney General to raise this new theory of admissibility would be unfair to Henry.
              The Attorney General also relies on Henry’s statements at the party and to
investigators demonstrating his consciousness of guilt. The Attorney General cites to the
following statements: (1) Henry told L.R. he was in the bathroom to take care of Doe but
also conveyed the “message” he was tired and wanted to “‘pass out’” in the bathroom;
(2) Henry initially told investigators L.R. locked the bathroom door but then said L.R.
closed the door but it was not locked; (3) Henry initially told them he was not drunk but
when asked whether he ejaculated onto Doe he said he was too intoxicated to remember;
and (4) Henry first told them he took care of Doe but then said he and others walked in
and out of the bathroom to check on Doe. The Attorney General’s reliance on these
statements, like its reliance on Henry’s admissions of guilt, is misplaced. Alvarez makes
clear “the prosecution cannot satisfy [the corpus delicti] by relying exclusively upon the
extrajudicial statements, confessions, or admissions of the defendant[]” and this applies
to a defendant’s extrajudicial statements before and after the offense. (Alvarez, supra,

                                             11
27 Cal.4th at pp. 1170-1171, italics added.) Thus, we cannot consider Henry’s statements
demonstrating his consciousness of guilt to determine whether the prosecutor satisfied the
corpus delicti rule, and we are left with only Henry’s conduct to satisfy the corpus delicti
rule.
              With respect to Henry’s conduct, the Attorney General relies on the
following: (1) Doe was extremely intoxicated; (2) Henry insisted on helping Doe to the
bathroom despite the fact Henry did not know Doe; (3) When they reached the bathroom,
Henry and Doe remained in the bathroom with the door closed; (4) At some point, the
bathroom door was locked for an unknown period of time and L.R. used a coin to unlock
the door; (5) Henry and Doe remained in the bathroom for 30 to 45 minutes despite not
previously knowing each other; (6) Despite evidence Henry wanted to take care of Doe,
Henry left the bathroom when someone returned to the house with food, ate, and went to
sleep without returning to the bathroom; (7) When L.R. subsequently asked Henry what
happened at the party, Henry changed the subject; and (8) L.R. subsequently saw Henry
at parties where girls were drunk and Henry did not drink.
              Acknowledging this is a “low” or “slight” evidentiary standard, we
conclude that even when viewed collectively, this evidence does not establish Doe
suffered an injury or harm. Although Henry helped an extremely intoxicated Doe into
the bathroom and they remained secluded there for more than 30 minutes at one point
with the door locked, we cannot conclude this evidence establishes criminal wrongdoing.
At least three people entered the bathroom and not one person saw Henry and Doe
engaged in any sexual relations. Nor did anyone see either of them in any state of
undress. Both L.R. and U.G. testified they each went into the bathroom at least four
times and neither of them witnessed any inappropriate conduct.
              The Attorney General claims “[L.R.] was concerned that [Henry] might be
trying to take sexual advantage of the intoxicated [Doe], that was why he kept checking
on [Doe] in the bathroom while [Henry] was with her.” We do not read the pages the

                                             12
Attorney General cites to as fairly supporting her claim. The evidence amply
demonstrates L.R. did not want partygoers engaging in sexual relations in his home and
that he told them so when arriving at the house. When asked why he picked the lock,
L.R. said, “Well, anything could happen in there . . . .” He did not say he suspected
Henry was forcing himself on Doe. Simply put, no witnesses observed Henry and Doe
engaging in sexual activity, and there was no physical evidence of sexual contact.
              Additionally, there was no physical evidence establishing Doe was sexually
assaulted. The evidence demonstrated Doe was intoxicated when she arrived at the party
and she continued to drink alcohol and smoked marijuana, but there was no evidence she
engaged in sexual activity in the bathroom. That Doe’s underwear was showing above
her pant line at one point does not establish she was sexually assaulted. There was no
evidence her pants were pulled down other than when she used the toilet. Although
Henry’s conduct of remaining in the bathroom while Doe used the toilet was
inappropriate, it was not evidence of sexual assault. Moreover, Henry’s clothes showed
no evidence of sexual activity.
              Finally, Henry’s subsequent non-responsiveness to L.R. and his sobriety at
parties does not establish criminal wrongdoing even when viewed collectively with
evidence of his conduct at the party. When viewed collectively, Henry’s conduct did not
exemplify that of a gentlemen, but neither did it demonstrate criminal wrongdoing
sufficient to reasonably infer Doe suffered an injury.
              A review of California Supreme Court cases where the court concluded the
prosecutor had made the requisite showing of corpus delicti illustrates the dearth of
evidence here. In Jones, supra, 17 Cal.4th at page 302, the victim, who had been shot in
the head, was found on a dirt roadway but died without describing what had happened.
There were bruises on her thighs, knees, legs, and perineal area, as well as injuries on her
hands. Semen was present in her vagina, on her external genitalia, and in her rectal area,
but not in her mouth. An expert testified those results were not inconsistent with oral

                                             13
copulation because of the mouth’s natural rinsing processes. The victim was found
without underpants, a bra, or shoes, although evidence showed she customarily wore
those items. The Supreme Court determined the circumstantial evidence of multiple
forcible sex acts satisfied the requisite prima facie showing, rejecting defendant’s
contention oral copulation was not established without the presence of semen in the
victim’s mouth. (Id. at p. 302.)
              In People v. Jennings (1991) 53 Cal.3d 334, 366 (Jennings), defendant
argued among other things, the prosecution failed to establish the corpus delicti of rape.
The court acknowledged “the evidence of rape was not strong[]” because no seminal
fluids were found on the victim’s body, no evidence of penetration existed, and there was
“no evidence that the victim’s clothes were arranged in such a manner as to suggest a
sexual assault.” (Id. at p. 367.) The Supreme Court held the prosecutor established the
corpus delicti of rape based on the evidence of a woman’s body being found unclothed in
a remote site with a broken jaw. (Id. at pp. 367-368.) The court reasoned that when a
“young woman is found unclothed in a remote locale, an inference arises that some
sexual activity occurred.” (Id. at p. 367.) The court opined the condition of the body at
the time of discovery permitted a reasonable inference that, “whatever sexual activity
occurred, it occurred against the victim’s will.” (Id. at p. 368.)
              The corpus delicti of the offense in Jones, oral copulation, and Jennings,
rape, was at issue in both cases because there was no direct evidence the sexual assault
occurred. But in both those cases there was other evidence from which the trier of fact
could reasonably infer the victim suffered an injury or harm. In Jones, it was the victim’s
state of undress and evidence of other sexual offenses that established the corpus delicti
of oral copulation. (Jones, supra, 17 Cal.4th at p. 302.) In Jennings, it was the fact the
victim was found unclothed in a remote location. (Jennings, supra, 53 Cal.3d at p. 367.)
Jones and Jennings illustrate the point that although the evidentiary standard is low, the
prosecutor still must offer some evidence the victim suffered an injury or harm. Here, as

                                              14
we explain above, the record includes no evidence, other than Henry’s statements, Doe
suffered any injury or harm. Unlike Jones and Jennings, there was no evidence from
which to reasonably infer Doe was sexually assaulted.
              Although we acknowledge the prosecutor need only offer “‘slight’” or
“‘minimal’” evidence and this is a low threshold (Jennings, supra, 53 Cal.3d at p. 368),
based on this record we cannot conclude the prosecutor offered sufficient evidence to
establish criminal wrongdoing. But for Henry’s statements, there would be no basis to
indicate there was any sexual conduct, consensual or otherwise, in the bathroom. There
was no evidence Doe suffered an injury, loss, or harm, let alone one by criminal agency.
Thus, the prosecutor failed to satisfy the corpus delicti rule.
                                       DISPOSITION
              The order is reversed.




                                                   O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




                                              15
