Filed 12/21/21 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H046864 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1761829) v. MARK JAYSON STA ANA, Defendant and Appellant. Defendant Mark Jayson Sta Ana had sex with a woman while she was intoxicated and unconscious. A jury convicted him of rape of an intoxicated person and rape of an unconscious person. On appeal from the judgment sentencing him to three years in prison, defendant argues the interrogating officers violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); the trial court made improper comments when questioning an expert witness; defense counsel provided ineffective assistance by not objecting to a nurse’s qualifications to testify as an expert; the jury instructions did not correctly define consent; the trial court erred in resolving a jury deadlock; punishment for rape of an unconscious person should have been stayed; and that the various errors were cumulatively prejudicial. We agree that punishment for rape of an unconscious person must be stayed under Penal Code section 654, but find no basis for reversal. We will modify the judgment to stay that punishment and affirm the judgment as modified. I. TRIAL COURT PROCEEDINGS Both charged counts (rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) and rape of an unconscious person (Pen. Code, § 261, subd. (a)(4))) related to defendant’s conduct with one woman on one night in April 2017. (Unspecified statutory references are to the Penal Code.) We will refer to the victim as K.D. in the interest of privacy. (Cal. Rules of Court, rule 8.90(b)(4).) A. TRIAL EVIDENCE 1. Prosecution Case K.D. testified that she was born in 1994 in the Philippines and had immigrated to the United States with her family in 2002. In 2017 she lived in an apartment with her parents, her brother, and her three-year-old son. Her parents went to the Philippines for about a month around April 2017. K.D. had met defendant at a party earlier in 2017. Defendant was a friend of Glen, whom K.D. was dating. After K.D. learned that defendant had moved out of his family home and was living in his car, she invited him to stay in her parents’ bedroom while they were out of the country. She made the offer both to give him a place to stay and because she wanted someone else staying at the apartment. He agreed, and she gave him a key because she trusted him. K.D. and defendant had consensual sex on two occasions before the incident that resulted in criminal charges. She testified that on the first occasion they had been drinking, “we got a little tipsy and drunk, and he picked me up from the chair that I was sitting [sic], and he took me to my parents’ room with him.” She testified that she could not recall many details from the interaction, but she confirmed that they had sexual intercourse that night. She …
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