Filed 4/29/16 P. v. Rea CA1/3
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141738
v.
LUIS RANGEL REA,                                                     (Sonoma County
                                                                     Super. Ct. No. SCR-636673)
         Defendant and Respondent.


         A jury convicted defendant Luis Rangel Rea of rape of an intoxicated person in
violation of Penal Code section 261, subdivision (a)(3).1 On appeal, he contends there
was insufficient evidence to establish that the victim was prevented from resisting as a
result of her intoxication, and he claims the trial court failed to comply with the
procedural requirements of section 987.8 before requiring him to reimburse the public
defender for his representation. He also asks this court to independently review the
record of a visit by the rape victim to a medical clinic to confirm that he was given all
relevant, discoverable information.
         We conclude the evidence was sufficient to show that the victim’s intoxication
prevented her from resisting as a result of being unable to exercise reasonable judgment
at the time of the assault. Having reviewed the records of the rape victim’s visit to a
clinic following the assault, we are satisfied that the court turned over potentially
exculpatory information and that defendant was not prejudiced by the decision to


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

                                                             1
withhold the remainder of the records. However, we agree with defendant that the court
did not afford him notice and an opportunity to be heard on the question of whether he
had the present ability to pay an order reimbursing the cost of his representation.
Because the record does not contain evidence sufficient to show that he had the present
ability to pay, we shall reverse the attorney fee reimbursement order but otherwise affirm
the judgment.
                         FACTUAL AND PROCEDURAL HISTORY
       Jane Doe worked at a bar owned by Noe Espinoza. Defendant was a regular
patron at Espinoza’s bar, and Espinoza considered defendant to be one of his best friends.
Doe first met defendant in 2012 when she began working at the bar.
       On February 12, 2013, Doe went to dinner with defendant. They each drank one
glass of wine. After dinner, they went to a bar, where Doe drank five or six shots of Don
Julio tequila and a mixed drink. Doe recalled dancing with friends and singing karaoke at
the bar. The next thing Doe remembered was waking up in her car sometime after 4:00
a.m. the following morning. She was sitting in the driver’s seat of the car, which was
parked outside defendant’s house. Her leggings were pulled down around her knees, her
bra was unhooked, and her boots were not on her feet. She was not wearing any
underwear although she had worn underwear the previous evening. The car door was
open and defendant was placing a blanket on her.
       Doe drove home even though she was still intoxicated. She went to the bathroom
and saw discharge and felt soreness in her vagina consistent with having had sexual
intercourse. She thought that defendant had sex with her; she was shocked and confused
because she considered him a friend. She and defendant had never engaged in sexual
intercourse before.
       Later that day, Doe went to a clinic to be tested for sexually transmitted diseases
and to get a “morning after pill.” Although Doe testified that she went to the clinic
because she felt she had been abused, she admitted telling medical personnel at the clinic
that she did not feel she had been taken advantage of or that she had been in an unsafe
environment the night before. Doe explained at trial that she was confused at the time


                                             2
and considered defendant a friend who would not take advantage of her or sexually abuse
her.
       Doe contacted defendant on multiple occasions and repeatedly asked him if he had
sexually abused her. He always denied it.
       Doe’s boss, Espinoza, testified that on the night of February 15 or 16, he closed
the bar and was in his car with defendant, whom he had offered to drive home.
Defendant had consumed about 10 beers that evening and was intoxicated. Espinoza
could see that Doe was in the car next to them. After defendant made Espinoza swear
that he would not tell anyone what he was about to divulge, defendant told Espinoza, “I
fucked her.” Espinoza understood defendant to be referring to Doe, because she was in
the car next to them at the time and defendant was looking at her. Defendant told
Espinoza that he had never been as scared in his life as he was when Doe was driving
them to his house because she was extremely drunk at the time. He said she “was filled
up with alcohol” and had driven her car the wrong way out of the parking lot, had run a
red light, and had swerved side to side. According to defendant, Doe eventually blacked
out in her seat.
       Defendant told Espinoza that Doe had been coming on to him. Espinoza testified
that it would not have been like Doe to engage in such behavior with defendant.
Defendant also told Espinoza that when Doe asked what happened and repeatedly asked
if they had sex, he responded by denying that they had sex and swore on his daughter’s
life that they had not done anything.
       On the Sunday after defendant had told Espinoza about his encounter with Doe,
Espinoza noticed that Doe was acting “spaced out” at work and was not talking to
customers. When he spoke to Doe she said something had happened with a customer but
she did not identify the customer, although Espinoza realized she must have been
referring to defendant.
       Espinoza later received a text message from defendant in which defendant referred
to Don Julio tequila and wrote, “that’s how they give it up for bitches like [Doe].” He



                                             3
also wrote, “That is how [Doe] gave it up with that tequila,” and then, “It is the best thing
so they can give it up because the next day they don’t remember.”
       Doe reported the incident to police on February 18, 2013. It was only after
reporting the incident that Doe told Espinoza the identity of the customer she had referred
to earlier when she was acting strangely.
       The Sonoma County District Attorney filed a two-count information charging
defendant with rape of an intoxicated person (§ 261, subd. (a)(3)) and rape of an
unconscious person (§ 261, subd. (a)(4)). Following a jury trial, defendant was found
guilty of the charge of rape of an intoxicated person but was acquitted of the remaining
charge.
       The trial court denied probation and sentenced defendant to serve three years in
state prison.2 The court also ordered defendant to pay $1,000 toward the cost of his
representation by the public defender. Defendant timely appealed.
                                        DISCUSSION
1.     Sufficiency of the evidence
       Defendant contends the evidence at trial was insufficient to support his conviction
for rape of an intoxicated person. As we explain, the evidence was legally sufficient to
support defendant’s conviction.
       In reviewing the challenge to the sufficiency of the evidence, we examine the
entire record in the light most favorable to the judgment to determine whether there is
substantial evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We
“presume[] in support of the judgment the existence of every fact the jury could
reasonably deduce from the evidence.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)


       2
        The clerk’s minutes reflect a sentence of two years eight months. A sentence of
three years is reflected in the record of the oral pronouncement of the court, which
controls over the clerk’s minute order. (People v. Farell (2002) 28 Cal.4th 381, 384,
fn. 2.) The abstract of judgment correctly reflects the three-year sentence imposed by the
court.

                                              4
If the circumstances reasonably justify the jury’s findings, reversal is not warranted
merely because the circumstances might also be reasonably reconciled with a contrary
finding. (People v. Nelson, supra, at p. 210.) Circumstantial evidence may be sufficient
to prove a defendant’s guilty beyond a reasonable doubt. (People v. Bradford (1997)
15 Cal.4th 1229, 1329.)
       Section 261, subdivision (a) provides that “[r]ape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator” under defined
circumstances. One of the listed circumstances is “[w]here a person is prevented from
resisting by any intoxicating or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the accused.” (§ 261,
subd. (a)(3).) A person is prevented from resisting within the meaning of section 261,
subdivision (a)(3) when “he or she is incapable of exercising the judgment required to
decide whether to consent” to a sexual act. (People v. Giardino (2000) 82 Cal.App.4th
454, 458.) The level of the victim’s intoxication and resulting impairment must have
been so great that the victim could no longer exercise reasonable judgment required to
decide whether to consent to any sexual acts. (Id. at pp. 466–467.) It is not enough that
the victim’s sexual inhibitions were reduced as a result of some degree of intoxication.
(Id. at p. 466.)
       According to defendant, there was insufficient evidence that Jane Doe was
incapable of resisting as a result of her intoxication. He claims there was no evidence
concerning the time period over which she consumed alcohol or the elapsed time between
her consumption and the sexual act with defendant. He points to evidence that Doe was
able to drive successfully to his house to support his contention that she was not so
intoxicated that she was unable to exercise reasonable judgment.
       While the conclusion urged by defendant could have been drawn by a jury on the
basis of the evidence he has chosen to highlight, that conclusion is not reasonable on the
basis of other evidence presented to the jury. For instance, the evidence showed that Doe
began drinking at 6:30 p.m. and drank at least eight alcoholic drinks on the night in
question. Although defendant claims there is no evidence to show the time period over


                                             5
which Doe consumed alcohol, he ignores her testimony that she awoke sometime after
4:00 a.m. and “was still drunk.” From this evidence, the jury could have reasonably
concluded she had been even more intoxicated earlier, when the assault occurred.
Further, although defendant downplays Doe’s level of intoxication by arguing she was
able to drive successfully to defendant’s house after leaving the bar, he ignores Noe
Espinoza’ testimony detailing Doe’s erratic driving, which defendant had described to
Espinoza. She had run a red light, swerved across the road, and driven the wrong way
out of the parking lot, leading defendant to claim that he had never been more scared in
his life than when she drove him home. Doe’s erratic driving is consistent with a
conclusion that she was intoxicated to the point of being unable to exercise reasonable
judgment. The fact that Doe blacked out and lost all memory of what happened in the car
before awaking sometime after 4:00 a.m. is further evidence supporting the jury’s implied
finding that she lacked the ability to exercise reasonable judgment due to her intoxication.
       Nevertheless, defendant still argues that because no direct evidence was presented
concerning Jane Doe’s mental state at the time defendant engaged in sexual intercourse
with her, and because it was clear she was capable of resisting at some point in time, the
available evidence does not support a conclusion beyond a reasonable doubt as to her
state of mind at the time of the offense. Defendant’s claim fails for two reasons. First,
the argument presumes that the prosecution was required to present direct evidence of
Doe’s level of intoxication at the time of the assault. To the contrary, the jury was
entitled to rely on circumstantial evidence as the basis for an inference concerning Doe’s
state of mind. (People v. Bloom, supra, 48 Cal.3d at p. 1208.) Second, while the
prosecutor was required to convince the jury beyond a reasonable doubt of defendant’s
guilt, that is not the standard on appeal. “ ‘The test on appeal is whether there is
substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is
established beyond a reasonable doubt.’ ” (In re Ryan N. (2001) 92 Cal.App.4th 1359,
1372.) On appeal, we need only be convinced that substantial evidence, whether
contradicted or not, supports the jury’s verdict.



                                               6
       Viewing the evidence in the light most favorable to the judgment, we conclude
there was substantial evidence from which the jury could find that Jane Doe was
sufficiently impaired to be unable to exercise reasonable judgment at the time of the
assault.
2.     Order to reimburse cost of court-appointed attorney
       Defendant contends the trial court failed to comply with the procedural
requirements of section 987.8 in directing him to pay $1,000 as reimbursement for being
represented by court-appointed counsel, and he argues there is no substantial evidence to
support a finding that he has the present ability to pay the reimbursement order. The
Attorney General claims defendant forfeited his challenge to the order as a result of his
failure to object at the time the order was imposed. As we explain, under the unique
circumstances presented here, the claim was not forfeited. Because the record does not
reveal that defendant has the present ability to pay for the cost of his representation, the
order must be reversed.
       A.     Section 987.8
       Section 987.8 permits a court to order a defendant to pay all or a portion of the
cost of court-appointed counsel after notice and a hearing to determine if the defendant
has the present ability to pay.3 In assessing a defendant’s ability to pay, the court may
consider both the defendant’s present financial position and the defendant’s reasonably
discernible future financial position, limited to a period of six months in the future.
(§ 987.8, subd. (g)(2).) A defendant who is sentenced to prison “shall be determined not
to have a reasonably discernible future financial ability to reimburse” defense costs
“[u]nless the court finds unusual circumstances.” (§ 987.8, subd. (g)(2)(B).)
       The statute sets forth a number of procedural requirements that must be satisfied
before a court may require a defendant to reimburse attorney fees. Before the court

       3
        Section 987.8, subdivision (b) provides in relevant part: “In any case in which a
defendant is provided legal assistance, either through the public defender or appointed
private counsel, the court may, after notice and hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost thereof.”


                                              7
initially appoints an attorney for a defendant at public expense, it must give notice to the
defendant that the court may require the defendant to reimburse all or a portion of the
cost of representation following notice and a hearing if it is determined that the defendant
has the present ability to pay. (§ 987.8, subd. (f).) The statute further specifies that a
reimbursement order may only be imposed after giving the defendant notice and an
opportunity to be heard on the issue of the defendant’s present ability to pay. (§ 987.8,
subds. (b), (d).) In the case of a defendant sentenced to prison, the court must make an
express finding of unusual circumstances before ordering the defendant to reimburse the
cost of representing the defendant. (People v. Lopez (2015) 129 Cal.App.4th 1508,
1537.)
         B.     Background
         The probation report indicated that defendant had been employed at a dairy since
coming to the United States in 1990. He reportedly earned $2,200 per month but there is
no information to suggest he had any assets or savings. At the time he was sentenced, he
was not working because he had been in custody awaiting sentencing. The probation
officer offered a simple recommendation of “No” concerning whether to require
defendant to reimburse all or a portion of the cost of his representation pursuant to
section 987.8.
         There is nothing in the record on appeal to suggest defendant was informed at the
time he was first appointed counsel that he might be required to pay all or a portion of the
cost of his representation. There is also nothing in the record to indicate he had any
notice in advance of the sentencing hearing that the court would consider requiring him to
reimburse attorney fees incurred in his representation.
         At the sentencing hearing, as the trial court was concluding its recitation of the
sentence as well as various fines and fees it was imposing, defendant’s trial counsel—i.e.,
the deputy public defender appointed to represent him—interjected, “Could the court
impose reasonable fees?” The court proceeded to order defendant to pay $1,000 as
reimbursement for the cost of his representation pursuant to section 987.8. The court did
not explain how it arrived at this figure and did not make any findings concerning


                                                8
defendant’s ability to pay. Defendant’s trial counsel, whose request prompted the court
to impose the reimbursement order, did not object to the order or request a hearing on the
issue of defendant’s ability to pay.
       C.     Forfeiture rule and exception when counsel has conflict of interest
       The Attorney General contends defendant has forfeited his challenge to the
reimbursement order by failing to object in the trial court, relying upon our Supreme
Court’s recent decision in People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar). Defendant
responds that the forfeiture rule announced in Aguilar does not apply here because that
decision expressly declined to address whether the rule should apply when defense
counsel’s failure to object is attributable to a conflict of interest, which defendant claims
is demonstrated by the record here.
       In Aguilar, the Supreme Court held that a defendant is generally precluded from
asserting an appellate challenge to an order for reimbursement of fees paid to appointed
counsel under section 987.8 when the defendant failed to object to the order in the trial
court. (Aguilar, supra, 60 Cal.4th at p. 864.) However, the court noted that the case “did
not present” and the court therefore did not address “whether a challenge to an order for
payment of the cost of the services of appointed counsel is forfeited when the failure to
raise the challenge at sentencing may be attributable to a conflict of interest on trial
counsel’s part.” (Id. at p. 868, fn. 4.) The court cited to People v. Viray (2005)
134 Cal.App.4th 1186 (Viray) as an example of a case addressing such a conflict of
interest. (Aguilar, supra, at p. 868, fn. 4.)
       In Viray, the appellate court held that a forfeiture to an appellate challenge to an
attorney fee reimbursement order cannot “properly be predicated on the failure of a trial
attorney to challenge an order concerning his own fees,” given the “patent conflict of
interest.” (Viray, supra, 134 Cal.App.4th at p. 1215.) The court reasoned as follows:
“We recognize that a particular public defender might, as a salaried employee, feel
personally disinterested in a reimbursement order, and might even be willing to oppose it
on behalf of the defendant. The same might even be true of an appointed attorney whose
claim for payment, and prospects of future employment, were wholly and securely


                                                9
divorced from any reimbursement order the court might make. However, the spectacle of
an attorney representing a client in connection with an order requiring that client to pay
for the attorney’s services, however attenuated the connection may be in fact, carries the
patent appearance of a least a vicarious adversity of interests.” (Id. at p. 1216.) In Viray¸
“it went beyond mere appearance; it was defense counsel himself—the very person who
was supposedly protecting defendant’s rights in the matter—who brought the fee request
to the court’s attention, saying ‘We’re asking the Court to assess attorney’s fees’ . . . .”
(Ibid.) According to the court in Viray, “[c]ounsel was at that moment clearly
representing his employer, whose interests were flatly contrary to defendant’s.” (Ibid.)
The court in Viray went so far as to suggest a conflict would exist whenever “the
defendant’s sole representative [at the time of sentencing] is the same publicly financed
counsel for whose services reimbursement is sought.” (Id. at p. 1216, fn. 15.) The only
time the conflict would not exist is when the defendant had retained independent counsel
before reimbursement was ordered. (Ibid.)
       We observe that the broad conflict-of-interest analysis in Viray, if applied as an
exception to the forfeiture rule announced in Aguilar, would effectively make forfeiture
the exception rather than the rule. That is so because it will almost always be the case
that a defendant will be represented at sentencing by the publicly appointed counsel
whose services would be the subject of a reimbursement order. If a perceived conflict-of-
interest precludes application of the forfeiture rule in such a case, then an appellate court
would almost never conclude a challenge to a reimbursement order is forfeited due to the
failure to object. The court in Aguilar effectively rejected such a broad application of the
conflict-of-interest exception to forfeiture because it found a forfeiture even though there
was no indication in Aguilar that the defendant had retained independent counsel at the
time of sentencing. (Aguilar, supra, 60 Cal.4th at pp. 864–865.) Further, we note that
section 987.8 does not order the defendant to pay the reimbursement to the public
defender’s officer or the private attorney who might be appointed to represent the
defendant; the reimbursement is paid to the county. (§ 987.8, subd. (g).) Defense
counsel’s interest in a reimbursement order is therefore attenuated. While defense


                                              10
counsel may feel some obligation to seek reimbursement on behalf of his or her
employer, we cannot say as a general matter that such a concern necessarily creates a
conflict of interest in every case that precludes appointed counsel from properly
representing the interests of his or her client with regard to a reimbursement order.
       Although we have some question about the breadth of any conflict-of-interest
exception to the forfeiture rule announced in Aguilar, this case does not present a
particularly close question. We conclude that the record discloses a conflict of interest
that precludes application of the forfeiture rule. Here, the probation officer did not
recommend imposing a reimbursement order. No mention of the issue was made until
the deputy public defender himself asked the court for an order requiring defendant to
reimburse the cost of the representation. Just like in Viray, defendant’s appointed
counsel initiated the request, which likely would have gone unmentioned otherwise. In
such a case, defense counsel became an advocate for interests adverse to his client.
(Viray, supra, 134 Cal.App.4th at p. 1216.) This situation is very different from one in
which the probation officer recommends a reimbursement order and the court follows
that recommendation without comment from defense counsel.
       The situation is also very different from the one described in Aguilar, where the
court found no basis to conclude that the defendant’s appointed counsel had a conflict of
interest. (See Aguilar, supra, 60 Cal.4th at p. 868, fn. 4.) There, the sentencing court
largely tracked the recommendations of the presentence investigation report when it
imposed a reimbursement order without objection from defense counsel. (Id. at pp. 867–
868.) As the court observed in Aguilar, the application of the forfeiture rule was
particularly appropriate in that case because the defendant had multiple opportunities to
object to the fees the court imposed, including in response to the recommendations of the
presentence investigation report. (Id. at p. 868.) Further, the sentencing court advised
the defendant in Aguilar that he would have the opportunity to assert the inability to pay
in subsequent proceedings before his probation officer. (Ibid.)




                                             11
          Under the circumstances presented here, we conclude defendant did not waive his
right to challenge the fee reimbursement order as a result of his counsel’s failure to
object.
          D.     Sufficiency of the evidence
          Defendant raises a due process claim as well as a substantial evidence challenge to
the court’s fee reimbursement order. It is unnecessary to address defendant’s
constitutional claim because the order is subject to reversal on the ground it is not
supported by sufficient evidence.
          A finding of the ability to pay must be supported by substantial evidence. (People
v. Nilsen (1988) 199 Cal.App.3d 344, 347.) Here, there was no evidence before the court
that defendant had any assets with which to pay a fee reimbursement order. He was
incarcerated at the time of the sentencing hearing and was not working. In assessing
defendant’s present ability to pay, the court was limited to considering a period no more
than six months in future (§ 987.8(g)(2)(B)), yet defendant was sentenced to serve three
years in prison so there was no reason to believe he would have the ability to pay within
six months of his sentencing. Further, as noted above, in a case where the defendant is
sentenced to prison, the presumption is that the defendant has no “reasonably discernible
future financial ability to reimburse” defense costs unless the court finds unusual
circumstances. (§ 987.8, subd. (g)(2)(B).) There is nothing in the record that would
support a finding of unusual circumstances sufficient to overcome the statutory
presumption.
          Accordingly, because there is no substantial evidence in the record to support a
finding that defendant had the ability to pay for all or a portion of the cost of his
representation by the public defender, the reimbursement order must be stricken.
3.        Review of Jane Doe’s medical records
          At the preliminary hearing, Jane Doe testified that she had gone to a clinic the
morning after she went out with defendant. After defense counsel subpoenaed the
clinic’s records, the court conducted an ex parte hearing at which it reviewed the records
with the prosecutor. The court chose to disclose a portion of the records to defense


                                               12
counsel. The disclosed portion of the clinic’s records reveals that Doe arranged the
appointment for “possibly unprotected intercourse” with an “STD screen requested.” The
record also notes that Doe told the nurse she did “not know whether she had unprotected
intercourse” the previous night but also reported that she did “not feel she was taken
advantage of or was in an unsafe environment.”
       On appeal, defendant asks this court to undertake an independent review of Doe’s
confidential medical records to assess whether the trial court failed to turn over any
revelant, discoverable information. (See People v. Price (1991) 1 Cal.4th 324, 493
[parties denied access to privileged material must rely on reviewing court to conduct
objective review to assess whether trial court erred].) We have done so and conclude
there was no prejudicial error associated with the trial court’s decision to turn over a
limited portion of the clinic’s records to defense counsel.
                                       DISPOSITION
       The order for reimbursement of attorney fees is reversed. In all other respects, the
judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment striking the attorney fee reimbursement order and to forward a copy of the
amended abstract to the Department of Corrections and Rehabilitation.

                                                  _________________________
                                                  McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.




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