Filed 4/10/13 P. v. Segrest CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060690

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD222967
                                                                     Super. Ct. No. SCD232213)
IMSHAY RAYMONE SEGREST,

         Defendant and Appellant.


         APPEAL from judgments of the Superior Court of San Diego County, Amalia L.

Meza, Judge. Judgment in case No. SCD222967 affirmed as modified, with directions.

Judgment in case No. SCD232213 affirmed.

                                                 INTRODUCTION

         This appeal involves two cases:

         Case No. SCD222967 (firearm possession case)

         In March 2010 Imshay Raymone Segrest pleaded guilty in case No. SCD222967

to one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))

(undesignated statutory references will be to the Penal Code) and admitted he had two
prison prior convictions within the meaning of sections 667.5, subdivision (b) and 668.

In July of that year, the court placed Segrest on three years of formal probation and

suspended imposition of sentence for that period of time.

       In April 2011 the court revoked Segrest's probation based on evidence admitted at

the preliminary hearing held in case No. SCD232213 (discussed, post), in which he was

charged with two counts of committing a forcible lewd act upon his cousin, D.E., a child

under the age of 14 years, in violation of section 288, subdivision (b)(1) (hereafter

§ 288(b)(1)).

       Case No. SCD232213 (forcible lewd act case)

       In August 2011 a jury convicted Segrest in case No. SCD232213 of one count of

committing a forcible lewd act upon D.E., a child under 14 years of age, in violation of

section 288(b)(1), as charged in count 1. The jury found not true a count 1 allegation that

Segrest committed the lewd act during the commission of a residential burglary within

the meaning of section 667.61, subdivisions (a), (c), and (d). The jury found Segrest not

guilty of a second count of committing a forcible lewd act upon D.E., as charged in count

2. Thereafter, Segrest admitted he had four probation denial priors (§ 1203, subd. (e)(4))

and two prison priors (§§ 667.5, subd. (b), 668).

       Sentencing hearing for both cases

       In early October 2011 the court sentenced Segrest in the forcible lewd act case to a

total prison term of 12 years, consisting of the upper term of 10 years for the section

288(b)(1) conviction, plus two one-year enhancements for the two prison priors

(§§ 667.5, subd. (b), 668).

                                             2
       At the same hearing, the court then sentenced Segrest in the firearm possession

case to the middle prison term of two years and ordered that he serve this sentence

concurrently with the 12-year sentence imposed in the forcible lewd act case. The court

again imposed, but stayed under section 654, two one-year enhancements for Segrest's

two prison priors.

       Contentions

       Segrest appeals, contending (1) the court prejudicially erred in the forcible lewd

act case by failing to sua sponte instruct the jury under CALCRIM No. 3425 regarding

the defense of unconsciousness; and (2) in sentencing him in the firearm possession case,

the court should have stricken the two prison prior allegations, and it thus erred by

imposing and then staying under section 654 the two one-year enhancements for Segrest's

two prison priors that the court had already imposed in the forcible lewd act case. The

Attorney General agrees the court should have stricken the two prison allegations in the

firearm possession case.

       We modify the judgment in the firearm possession case by striking the two one-

year prison prior enhancements imposed and stayed in that case and affirm the judgment

as so modified with directions. We affirm the judgment in the forcible lewd act case.




                                             3
                               FACTUAL BACKGROUND

       A. Firearm Possession Case (No. SCD222967)

       Segrest, who had been convicted of a felony, unlawfully possessed and controlled

a firearm.1

       B. Lewd Act Case (No. SCD232213)

       1. The People's case

       Segrest is the nephew of the victim's father in this case. His cousin, D.E., was 13

years old at the time of the August 2011 trial in this matter and was living with her father

when the sexual assault charged in this case occurred early in the morning on January 29,

2011.2 D.E. is developmentally disabled and has a speech impediment.

       D.E.'s testimony

       D.E. testified at trial that Segrest came into her bedroom and poked her in the arm

to wake her up. He was lying on the bed next to her. Segrest said "hi" to her and asked

about her father. D.E. testified she remembered Segrest saying he wanted to do

something with her. However, when the prosecutor asked her what Segrest said he

wanted to do, D.E. replied, "I don't know." D.E. then denied that Segrest said he wanted

to have sex with her.

       D.E. also testified that Segrest caused her to fall to the floor. She landed on her

back, and Segrest was on the floor next to her. Segrest pulled off D.E.'s sweatpants. He

1       This brief factual statement, which is taken from Segrest's guilty plea form, served
as the factual basis for his guilty plea in this case.

2      All further dates are to calendar year 2011.
                                              4
then ripped her panties. D.E. told Segrest she wanted to go to the bathroom, but he told

her "no."

       Reminding D.E. that she had testified at the preliminary hearing in this matter,3

the prosecutor asked her whether Segrest ended up on top of her. D.E. first replied that

Segrest did not get on top of her, then she stated she did not remember, and then she

again denied that he got on top of her. When asked whether Segrest touched any part of

her body, D.E. answered, "No." D.E. acknowledged that she had spoken to the police,

and that she told them Segrest had "humped' her.

       After the court held a sidebar conference with the prosecutor and defense counsel,

D.E. stated in the presence of the jury, "I don't remember nothing." The prosecutor asked

whether she was afraid, and she replied she was afraid of Segrest. D.E. testified she

remembered crying out and yelling at Segrest to stop and get off of her. She then

acknowledged she told a detective that Segrest had touched her on her breast. D.E.

testified she was wearing a T-shirt when Segrest touched her breast. She also testified

that Segrest told her to "shut up." When asked why she did not just get up and go to the

bathroom, D.E. replied, "Because he had my arm." The prosecutor again asked, "Was his

body on top of yours?" D.E. again replied, "I don't remember."

       D.E. also testified she told Segrest that she thought her dad was coming in, but

when the prosecutor asked her whether she remembered her dad coming into the

bedroom, D.E. replied, "No." She then testified she was on the floor when her dad came



3      D.'s preliminary hearing testimony, which was read to the jury, is discussed, post.
                                             5
in, and Segrest was next to her on the floor. Her panties had already been ripped when

her father came in. The prosecutor asked D.E. about numerous statements the prosecutor

said she had made to others about what happened in the bedroom, and D.E. repeatedly

replied, "I don't remember."

       D.E.'s Father

       D.E.'s father testified that three other people were in the house when he went to

bed at around 2:00 a.m. that night: D.E., his girlfriend, and his son. He did not expect

anyone else to come over that night. D.E.'s father testified he woke up when he heard

D.E. yelling, "No, leave me alone," "Stop," and, "Get out of here." When he went to

D.E.'s bedroom, he saw that the bedroom door was closed. D.E. usually slept with the

door open.

       Her father testified that when he opened the bedroom door, he saw D.E. and

Segrest on the floor. D.E. was on her back, and Segrest was lying on top of her. D.E.'s

legs were slightly spread apart and Segrest was lying down between her legs in what her

father considered a sexual position. He testified he did not see any sweatpants on D.E.,

who was moving her shoulders from side to side trying to throw Segrest off of her. He

could see Segrest's boxer shorts. He testified he angrily pulled Segrest off of D.E. and

threw him towards the bedroom door.

       On cross-examination, D.E.'s father testified that Segrest was not moving when he

pulled Segrest off of D.E. Defense counsel asked whether Segrest was "like a

deadweight." Her father replied, "Yeah, like he was—like he was asleep, like, asleep on

top of her." He stated he could see that Segrest was wearing boxers underneath his pants,

                                             6
but he could not see whether D.E. was wearing underpants because most of her thighs

were covered by her gown. He testified that Segrest did not appear to recognize him and

seemed "spaced out." He testified he asked Segrest, "What are you doing to my

daughter?"

       On redirect examination, D.E.'s father acknowledged that when he told Segrest he

was going to call the police, Segrest angrily punched a hole in the wall, left the house,

and sped off in his car. He also acknowledged that when he heard Segrest drive away, he

did not hear Segrest crash into anything. The prosecutor asked him whether he

remembered telling a detective that when he saw Segrest on top of D.E., Segrest's pants

were so low his penis could have been out. He replied, "Yes, I remember." He stated he

could see Segrest's boxers and his "butt cheeks at the top."

       On recross-examination, defense counsel asked D.E.'s father, "So you're not trying

to protect [Segrest] here?" He replied, "No, no, no, not at all."

       Dr. Adams

       Dr. Joyce Adams, a pediatrician and child abuse pediatrician specialist, testified

she examined D.E. on January 29 at Rady's Children's Hospital in San Diego. She was

unable to get a close look at D.E.'s hymen because D.E. did not tolerate that part of the

examination. Dr. Adams did not see any signs of injury when she examined D.E.'s

vagina. She testified that "most of the time with adolescent girls, even if they have

recently had intercourse or been sexually assaulted involving penis and vagina, most of

the time we don't see any injuries." The prosecutor asked, "Why is that?" Dr. Adams

responded, "Because the hymen is so stretchy." The prosecutor asked, "So a person can

                                              7
struggle and something can be inserted into their vagina, and you can still not have any

findings?" Dr. Adams answered, "Correct."

       Detective Albrecht

       Leslie Albrecht, a detective with the San Diego Police Department, testified that

she interviewed D.E.'s father on February 1. The father told her he was so emotional

when he walked into the bedroom that he did not really notice whether Segrest's penis

was out of his pants. However, he told her that Segrest's pants were so low that his penis

could have been out without his unbuckling or unzipping his pants.

       Detective Albrecht also testified that she interviewed D.E. at her school. The

interview, which was recorded on videotape, took place on February 1. A portion of the

videotape recording, which was later received in evidence, was played for the jurors, who

were given copies of a transcript of the interview.4 D.E.'s statements to Detective

Albrecht were largely consistent with her preliminary hearing testimony, her statements

to Officer Daniel Brent (discussed, post), and portions of the testimony she reluctantly

gave at trial (discussed, ante). For example, D.E. told Detective Albrecht that Segrest

took off her "night" pants and "ripped" off her panties and threw them on the floor. D.E.

also told Detective Albrecht that when she tried to push Segrest off of her, he held her

down by holding her wrists. She said Segrest "cussed me out. He called me bitch, ho."

When Detective Albrecht asked D.E. what Segrest did to her, D.E. answered, "He like



4       The parties stipulated at trial that the transcript of D.E.'s February 1 interview,
which was marked for identification as exhibit 19A, would be received in evidenced and,
thus, the court reporter did not need to report it.
                                             8
put it in. He, he went like—he like—he do like this, like hump, hump me." Detective

Albrecht asked D.E., "What is a penis?" D.E. replied, "His dick." When the detective

asked whether Segrest "put that somewhere," D.E. responded, "Right here." Detective

Albrecht asked D.E. whether Segrest put it inside her, and D.E. replied, "Yeah." Soon

thereafter, the following exchange took place between Detective Albrecht and D.E.:

          "[Detective Albrecht]: So where did he put his penis?

          "[D.E.]: Right here.

          "[Detective Albrecht]: [O]kay, so you['re] pointing to your, your
          private area?

          "[D.E.]: Yeah.

          "[Detective Albrecht]: Your girl area?

          "[D.E.]: Yeah.

          "[Detective Albrecht]: Do you understand what I mean by that?

          "[D.E.]: Mm-hm.

          "[Detective Albrecht]: Do you know what the word 'vagina' is?

          "[D.E.]: Um, um, yeah. [¶] . . .

          "[Detective Albrecht]: Okay. So he, he—he put his dick . . . .

          "[D.E.]: Mm-hm.

          "[Detective Albrecht]: . . . into your privates?

          "[D.E.]: Mm-hm.

          "[Detective Albrecht]: Inside?

          "[D.E.]: Yeah."


                                             9
         D.E. also told Detective Albrecht that, after Segrest "put it in my thing," she asked

Segrest why he was doing that to her, and Segrest said, "Sh, sh, hush, hush." D.E. then

said to Detective Albrecht that when she told Segrest she was not going to hush or listen

to him, Segrest slapped her face.

         After the videotape was played for the jury, Detective Albrecht agreed with the

prosecutor's observation that D.E. had made some gestures during the interview. The

prosecutor asked whether D.E. was making some gestures when she told Detective

Albrecht that "[Segrest] like put it in. He, he went like—he like—he do like this, like

hump, hump me." Detective Albrecht testified that D.E. was "gyrating her hips"

backwards and forward when she made those statements. Detective Albrecht also

testified that when she asked D.E. during the interview whether Segrest put his penis

somewhere, D.E. was pointing to her vagina when she said he put it inside her "[r]ight

here".

         Officer Brent

         Daniel Brent, an officer with the San Diego Police Department, testified that he

took D.E.'s statement in her bedroom. D.E. told him that Segrest came into the bedroom

when she was asleep and pushed her off the bed. D.E. said that when she tried to scream,

Segrest covered her mouth with his hand. D.E. said Segrest took off her sweatpants, and

she indicated that Segrest fondled her breasts. D.E. told Officer Brent that Segrest ripped

off her underpants, threw them across the room, and then humped her. Officer Brent

testified that when D.E. told him Segrest had humped her, she put her hands up in the air



                                              10
and rocked her hips forward and backwards. Officer Brent interpreted her gestures to

mean that Segrest had sex with her.

       D.E. also told Officer Brent that she told Segrest he was going to go to jail, and

Segrest said, "Shut the fuck up, bitch." D.E. also told Officer Brent that Segrest held her

wrists down and was on top of her when her dad came in and grabbed him off of her.

       D.E.'s prior testimony at the preliminary hearing

       The transcript of D.E.'s April 15 preliminary hearing testimony was read to the

jury. At that hearing, D.E. testified she was asleep when Segrest woke her up. She was

wearing sweatpants, underpants, a bra, and a long-sleeved T-shirt. Segrest asked D.E.

where her sister was and also asked, "How's your day?" Segrest told her he was going to

have sex with her. D.E. told him, "No," and he pushed her to the floor. Segrest took off

D.E.'s sweatpants and ripped off her underpants. When D.E. told him she wanted to call

her dad, Segrest said, "Don't," and told her, "Shut up," using curse words. Segrest was on

top of her and she could not get up because he was holding her down. D.E. heard her

father call her, and she told Segrest she had to get up. Segrest said, "No," put his hand

over her mouth and then touched her breast.

       When the prosecutor asked D.E. whether Segrest touched any other part of her

body, she pointed down to what the prosecutor referred to as her "private parts." The

prosecutor asked whether Segrest put something in her "private." D.E. replied, "Yeah,"

but when asked what Segrest put in there, she answered, "I don't want to say it."

Showing D.E. a doll, the prosecutor asked her, "Can you point to the part on the boy



                                             11
doll?" D.E. responded, "Right there," pointing to what the prosecutor referred to as the

"crotch area."

        D.E. testified that Segrest was still on top of her and her pants were still off when

her father came into the bedroom. Her father was mad when he pulled Segrest off of her.

D.E. indicated she stayed in the bedroom, but heard yelling and later saw a hole in the

wall.

        After reminding D.E. on redirect examination that they had talked about saying

things that are true, the prosecutor asked her, "Is it true that [Segrest] got on top of you

and put his . . . parts inside of you?" D.E. answered, "Yeah."

        B. Defense case

        Segrest's direct examination testimony

        Segrest testified that on January 28, late at night, he went to a bar with his

girlfriend and a few other people. He had a couple of vodka and orange juice drinks, and

two or three gin and orange juice drinks. His girlfriend went home, and Segrest put his

drink down while hanging out outside the bar. Segrest testified that when he finished his

drink, he noticed what "looked like ashes floating at the bottom." He also testified he

smoked cigarettes, and "a lot of times you might be smoking, and the ash will fall in your

drink." Defense counsel asked Segrest whether he started to feel differently after he

finished the drink, and Segrest replied, "I did, but I figured it was just the alcohol."

        Segrest stated he left the bar and went to a gathering of people at a friend's house.

He was given a ride home, but felt "kind of excited" and "ready to party." Segrest got the

car keys and, feeling "perfectly fine" to drive his car, drove back to the gathering and

                                              12
stayed there for about 20 or 30 minutes until others suggested they all go to Segrest's

uncle's house to play pool.

       Segrest testified he drove alone to his uncle's house, but none of the other people

came. He went into the house, decided to lie on the couch, and smoked a cigarette. He

went to sleep and the next thing he remembered was his uncle waking him up in the

hallway. Segrest testified he did not know "off the top" where he was, and he felt like he

was "in a deep sleep." He was surprised his uncle was asking him, "What did you do to

my daughter?" Segrest hit the wall because he got upset when his uncle said he was

going to call the police. Segrest stated he then left the house because his uncle was "just

going off," and he did not believe what his uncle was saying.

       Segrest drove to his mother's house after he left his uncle's house. His mother

drove him to a gas station to get him some cigarettes, then to the beach, and eventually

home, where she explained to Segrest's girlfriend what was going on. Segrest's girlfriend

pulled his clothes off and checked both his clothes and his body. Segrest testified he

slept the rest of that day, which was a Saturday, got up in the afternoon on Sunday to eat,

and then went back to bed and slept through the night. Monday afternoon he received a

visit from his probation officer, and he was arrested the next day.

       Segrest's cross-examination testimony

       On cross-examination, Segrest acknowledged he was convicted in 2004 of felony

evasion from a police officer, he was convicted in 2010 of being a felon in possession of

a firearm, and he had previously taken the drug Ecstasy. The prosecutor asked him, "Did

you rape anybody last time you did it?" Segrest replied, "I didn't rape nobody [sic] this

                                             13
time." When asked whether he had a blackout the last time he used Ecstasy, he

answered, "No." The prosecutor asked, "Did you forget what you did?" Segrest

responded, "Not that I recall."

       The prosecutor then asked Segrest numerous questions about what he did before

he went into D.E.'s bedroom and what happened after D.E.'s father pulled him off of her

and pushed him into the hallway, and Segrest provided detailed answers. Segrest

repeated his testimony that he did not remember going into D.E.'s bedroom. He

acknowledged that after her father found him on top of D.E., he and D.E.'s father had a

conversation in the living room, during which he (Segrest) smoked a cigarette until it was

finished. Segrest again acknowledged he punched a big hole in the wall after her father

said he was going to call the police.

       As shown by the following exchange with the prosecutor, Segrest also

acknowledged that although he remembered what he did before and after he entered

D.E.'s bedroom, he had no memory of going into the bedroom or of anything that may

have happened in there:

          "[Prosecutor]: Now, you're saying that you remember every detail
          up until the point where you go into [D.E.'s] room and get on top of
          her. Fair to say? That's the only part of the night you don't
          remember?

          "[Segrest]: I don't remember it.

           "[Prosecutor]: You remember who was at the parties you were at.
          You remember how you got to [your uncle's house]. You
          remember . . . .

          "[Segrest]: I didn't . . . .


                                             14
          "[Prosecutor]: -- what you did when you got to [your uncle's]. You
          remember what happened before you left [your uncle's].

          "[Segrest]: Uh-huh.

          "[Prosecutor]: The only missing piece we have is when you're on
          top of [D.E.] and her pants are ripped off.

          "[Segrest]: Uh-huh.

           "[Prosecutor]: 'Yes'?

          "[Segrest]: Huh?

          "[Prosecutor]: 'Yes'?

          "[Segrest]: Yes."

      Segrest's mother

      Segrest's mother testified that when Segrest drove to her home early in the

morning on January 29, he was "panicky," "loud," and "hyper." She thought he was on

drugs. When she took him to the beach in the car, she smelled alcohol on his breath.

When he began to calm down, she called his girlfriend and drove him home.

      On cross-examination, Segrest's mother acknowledged she never told the police

that Segrest appeared to be under the influence of some kind of drug on the morning of

January 29. She never thought she should take him to the hospital.

      Segrest's girlfriend

      Segrest's girlfriend testified she was with him at the bar when he was drinking

during the evening on January 28. She fell asleep in the car outside the bar at around

2:00 a.m. and when he woke her up sometime later he told her to go home and he would

find a ride home. He seemed "a little hyper," but did not appear to be "falling-down

                                            15
drunk." She testified she went home and fell asleep. Segrest came home later and woke

her up to get the car keys. At that time, Segrest seemed hyper, he was moving a lot, and

he was not himself.

       Segrest's girlfriend also testified she had previously taken Ecstasy pills, and she

thought Segrest might have taken an Ecstasy pill. When she saw him the next morning,

he was crying a lot, could not control himself, was shaking, and his eyes were rolling.

Allen testified she believed Segrest "was still on the drug." She stated she smelled his

penis and his fingers, but he did not smell like somebody who had just had sex.

                                       DISCUSSION

           I. CLAIM OF INSTRUCTIONAL ERROR (CASE NO. SCD232213)

       Segrest first contends the judgment in the forcible lewd act case should be

reversed because the court prejudicially erred by failing to sua sponte instruct the jury

under CALCRIM No. 3425 regarding the defense of unconsciousness.5 We conclude the

court did not err.




5      CALCRIM No. 3425 states: "The defendant is not guilty of ______<insert
crime[s]> if (he/she) acted while legally unconscious. Someone is legally unconscious
when he or she is not conscious of his or her actions. [Someone may be unconscious
even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/[or] an
epileptic seizure[,]/[or] involuntary intoxication[,]/[or] sleepwalking[,]/[or] ______
<insert a similar condition>). [¶] The People must prove beyond a reasonable doubt that
the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable
doubt that the defendant acted as if (he/she) were conscious, you should conclude that
(he/she) was conscious. If, however, based on all the evidence, you have a reasonable
doubt that (he/she) was conscious, you must find (him/her) not guilty."
                                             16
       A. Background

       The court properly instructed the jury that the specific intent element of the crime

of committing a forcible lewd act upon a child under the age of 14 years (§ 288(b)(1))

charged in counts 1 and 2 required proof that the defendant committed the act with the

intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of

himself or the child. (See § 288, subds. (a), (b)(1).)

       The court also instructed the jury under CALCRIM No. 3426 regarding the limited

permissible use of any evidence that Segrest was voluntarily intoxicated at the time the

charged crimes were committed; and under CALCRIM No. 3427 regarding the jury's use

of any evidence he was involuntarily intoxicated at the time those crimes were

committed. Both of those instructions informed the jurors they could consider any

evidence of intoxication in deciding whether Segrest acted with the requisite intent. (See

CALCRIM Nos. 3426 ["You may consider evidence, if any, of the defendant's voluntary

intoxication . . . in deciding whether the defendant acted with the intent of arousing,

appealing to, or gratifying the lust, passions, or sexual desires of himself or the child[.]"]

& 3427 ["Consider any evidence that the defendant was involuntarily intoxicated in

deciding whether the defendant had the required intent when he acted."].)

       The defense did not request, and the court did not sua sponte give, an instruction

on the defense of unconsciousness. The jury convicted Segrest of committing a forcible

lewd act upon D.E. in violation of section 288(b)(1) as charged in count 1.




                                              17
       B. Applicable Legal Principles

       "'"It is settled that in criminal cases, even in the absence of a request, the trial court

must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19

Cal.4th 142, 154, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.)

       "The duty to instruct, sua sponte, on general principles closely and openly

connected with the facts before the court also encompasses an obligation to instruct on

defenses, including self-defense and unconsciousness, and on the relationship of these

defenses to the elements of the charged offense." (People v. Sedeno (1974) 10 Cal.3d

703, 716, second italics added.)

       "Among those persons deemed incapable of committing a crime are individuals

who 'committed the act charged without being conscious thereof.' (§ 26, class four.)

Unconsciousness, when not voluntarily induced, is a complete defense to a charged

crime. [Citations.] 'Unconsciousness does not mean that the actor lies still and

unresponsive. Instead, a person is deemed "unconscious" if he or she committed the act

without being conscious thereof.' " (People v. Rogers (2006) 39 Cal.4th 826, 887.)

       "A trial court must instruct on unconsciousness on its own motion if it appears the

defendant is relying on the defense, or if there is substantial evidence supporting the

defense and the defense is not inconsistent with the defendant's theory of the case."

(People v. Rogers, supra, 39 Cal.4th at p. 887, italics added.) "Substantial evidence is

                                              18
evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a

reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn.

8, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, disapproved on other grounds in

In re Christian S. (1994) 7 Cal.4th 768.)

       A "defendant's own testimony that he could not remember portions of the events,

standing alone, [is] insufficient to warrant an unconsciousness instruction." (People v.

Rogers, supra, 39 Cal.4th at p. 888; People v. Coston (1947) 82 Cal.App.2d 23, 40 ["[A]

defendant's mere statement of forgetfulness, unsupported by any other evidence, is at

most very little evidence of unconsciousness at the time of performing a particular act."].)

       C. Analysis

       The trial record shows Segrest did not rely on a defense that he was unconscious

when he allegedly committed the forcible lewd act charged in count 1. Rather, as Segrest

points out, he relied on the alternate defense theories that (1) the assault did not occur; (2)

D.E.'s pretrial accusatory statements were not truthful and she was "confabulating" when

she made those statements; and (3) even assuming the assault occurred, the prosecution

failed to prove he acted with the requisite specific intent because the evidence showed he

was voluntarily under the influence of alcohol and involuntarily under the influence of an

"ashy" drug he claimed someone put in one of his drinks at the bar.

       Thus, as Segrest did not rely on a defense of unconsciousness, the court had a duty

to sua sponte instruct the jury on unconsciousness only if (1) substantial evidence—that

is, evidence a reasonable jury could find persuasive—supported that defense, and (2) the

unconsciousness defense was not inconsistent with his theory of the case. (People v.

                                              19
Rogers, supra, 39 Cal.4th at p. 887; see People v. Barton, supra, 12 Cal.4th at p. 201, fn.

8.)

       We conclude Segrest has failed to meet his burden of showing that substantial

evidence supports the giving of an instruction on the defense of unconsciousness in this

case, and, thus, he has failed to establish that the court erred by failing to sua sponte give

such an instruction. First, as the Attorney General correctly points out, there is no

evidence the ashy substance that Segrest testified he found at the bottom of the glass he

had put down at the bar was indeed a drug, let alone a drug that would cause him to lose

consciousness. Segrest's own testimony shows he consumed at least five drinks

containing vodka and gin at the bar. He testified that when he finished the drink in

question, he noticed what looked like ashes floating at the bottom. However, he also

testified he was a smoker, and he acknowledged that a lot of times you might be smoking,

and the ash will fall in your drink. Although Segrest testified he started to feel differently

after he finished the drink, he thought it was just the alcohol. The defense presented no

expert testimony to show Segrest had been drugged with something other than alcohol,

and the testimony of his girlfriend that he might have been drugged with an Ecstasy pill

was speculation.

       Second, Segrest's testimony about his claimed memory lapse, alone, did not

support the giving of an unconsciousness instruction. (People v. Rogers, supra, 39

Cal.4th at p. 888; People v. Coston, supra, 82 Cal.App.2d at p. 40.) In this regard, we

note (as discussed in detail, ante, in the factual background) that Segrest acknowledged at

trial that he had a clear memory of what he did before and after he entered D.E.'s

                                              20
bedroom, but claimed he had no memory of going into the bedroom or of anything that

may have happened in there.

       Third, Segrest's claim that "third-party verification of [his] altered state" provided

evidence supporting an unconsciousness instruction, is unavailing. Segrest first relies on

the testimony of his uncle that when his uncle pulled him off of D.E., it was "like

[Segrest] was asleep on top of her," and Segrest seemed "spaced out" and disoriented.

However, his uncle's testimony is not substantial evidence that Segrest was unconscious.

His uncle testified he woke up and went into D.E.'s bedroom when he heard her yelling,

"No, leave me alone," "Stop," and, "Get out of here." Even though D.E. was a reluctant

prosecution witness at trial, she testified that she remembered crying out and yelling at

Segrest to stop and get off of her, and she acknowledged that Segrest cursed at her and

told her to "shut the fuck up." It is clear that the jury, by rejecting Segrest's voluntary and

involuntary intoxication defenses and finding he forcibly committed a lewd act on D.E.

with the requisite specific intent (discussed, ante), believed Segrest froze and pretended

to be asleep or unresponsive when he realized his uncle was about to come into the

bedroom in response to D.E.'s yelling.

       In support of his third-party verification claim, Segrest also relies on the testimony

of his mother that he was hyper and she thought he was on drugs; and on the testimony of

his girlfriend, that he appeared hyper, he "wasn't hisself [sic]," and he was shaking.

However, being hyper or not being oneself or shaking is not the test for unconsciousness.

(See CALCRIM No. 3425 ["Someone is legally unconscious when he or she is not

conscious of his or her actions."].) The testimony of Segrest's mother that she thought he

                                              21
was on drugs, like the testimony of his girlfriend that he might have been drugged with

an Ecstasy pill, was speculation.

       To be substantial, testimony supporting an unconsciousness instruction must be

"evidence that a reasonable jury could find persuasive." (People v. Barton, supra, 12

Cal.4th at p. 201, fn. 8.) Here, the evidence on which Segrest relies—specifically, his

own testimony and that of his uncle, his mother, and his girlfriend—is not evidence a

reasonable jury could find persuasive. As already noted, the jury considered the

testimony Segrest presented in support of his involuntary intoxication defense and

rejected that defense. For all of the foregoing reasons, we conclude the court did not err

by failing to sua sponte instruct the jury under CALCRIM No. 3425 regarding the

defense of unconsciousness.

                   II. SENTENCING ERROR (CASE NO. SCD222967)

       Segrest also contends that in sentencing him in the firearm possession case the

court should have stricken the two prison prior allegations, and, thus, the court erred by

imposing in that case, and then staying under section 654, the two one-year

enhancements for Segrest's two prison priors that the court had already imposed in the

forcible lewd act case.

       The Attorney General agrees the court should have stricken the two prison

allegations in the firearm possession case and asks this court to modify the judgment by

striking the prison prior enhancements imposed and stayed in that case and to affirm the

judgment as modified.



                                             22
       A one-year prison prior enhancement (§ 667.5, subd. (b)) relates to the status of

the offender, rather than the nature of the offense, and therefore may be "added only once

as a step in arriving at the aggregate sentence." (People v. Tassell (1984) 36 Cal.3d 77,

90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 400-401; see

also People v. Garrett (1991) 231 Cal.App.3d 1524, 1527 & § 1170.1.)

       Here, in sentencing Segrest to the aggregate prison term of 12 years at the same

hearing for his convictions in the forcible lewd act and firearm possession cases, the court

imposed the two one-year prison prior enhancements in the forcible lewd act case and

then impermissibly imposed (but stayed under § 654 the execution of) the same two

enhancements in the firearm possession case. Accordingly, we conclude the imposition

of the two one-year prison prior enhancements in the firearm possession case must be

stricken from judgment in that case, and the abstract of judgment must be corrected to

reflect that modification.

                                      DISPOSITION

       The judgment in case No. SCD232213 is affirmed. The two one-year prison prior

enhancements (§§ 667.5, subd. (b), 668)) imposed and stayed in case No. SCD222967 are

stricken. As modified, the judgment in that case is affirmed. The trial court is directed to

prepare a corrected abstract of judgment reflecting the striking of




                                             23
those enhancements and to forward a certified copy of the corrected abstract of judgment

to the Department of Corrections and Rehabilitation.



                                                NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McDONALD, J.




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