In a murder prosecution, the prosecutor is required to establish the corpus delicti, i.e., proof of death of the victim and proof of a criminal agency as cause of the death, by slight or prima facie proof. Appellant was convicted of felony murder, with the underlying felonies being sodomy and oral copulation of an intoxicated person (Penal Code sections 286, subdivision (i) and 288a, subdivision (i), respectively). On appeal, his argument that the corpus delecti had not been established because there was insufficient proof of death by a criminal agency was rejected. The evidence at trial established that the victim’s body was found in a blanket in an alley. Semen was found on his shirt and in his anus and mouth. Hairs not belonging to him were found on the blanket and his shoe, and tracks to a van were observed next to the body. The autopsy revealed that the victim had a blockage to his arteries. Toxicology tests revealed a blood alcohol level of .17% and a therapeutic level of diazepam, a benzodiazepine drug. Cause of death could not be determined, although at trial, the pathologist testified that asphyxiation was the most likely cause. A prosecution expert witness opined that a penis placed in a person’s mouth could make it difficult to breath and cause death, particularly if the person had ingested alcohol and benzodiazepine. Evidence was also introduced that some 18 months after the discovery of the body, appellant became a suspect in the death when a Navy corpsman reported that during a chance meeting with appellant he drank cognac with him and, after complaining of a headache, took two tablets appellant had represented to be Tylenol. He then “crashed,” and when he awoke, discovered that he had been sexually assaulted. A drug analysis revealed the presence of benzodiazepine in the corpsman’s system. In the subsequent investigation of appellant in this assault, police learned that appellant had a history of picking up heterosexual men, drugging them, and having sex with them. The DNA in the semen found on the homicide victim’s shirt matched that of appellant. The hairs were linked to appellant’s dog; and records revealed he had rented a van at the time of the victim’s death. On the basis of this evidence, the court found that the corpus delecti had been adequately established and the inconclusive autopsy did not establish otherwise.

Substantial evidence existed that the victim was alive when sexually assaulted and appellant was responsible for the assaults. Sections 286, subdivision (i) and 288a, subdivision (i) both require the victim to be alive when the offense is committed. Appellant argued that it was probable that the victim died right after ingesting the diazepam and that the sexual acts occurred after the death. His claim ignored the expert testimony that the combination of alcohol and diazepam was not the cause of death by itself. Also, there was no evidence that appellant engaged in necrophilia. On the contrary, his modus operandi was to sexually assault his victims when they were rendered unconscious, not when they were dead. Appellant’s argument that there was no evidence of oral copulation as there was no evidence of penetration failed because penetration is not required for the crime. (People v. Dement (2011) 53 Cal.4th 1, 41-42.) [“Any contact, however slight, between the mouth of one person and the sexual organ of another person constitutes oral copulation.”].) While sodomy requires slight penetration, a jury could reasonable infer the requisite amount of penetration occurred based on the evidence.

The felony murder rule does not require proof of a strict causal relationship between the underlying felony and the homicide if there is one actor, so long as the killing and felony are part of one continuous transaction.

Second degree murder is not a lesser included offense of first degree felony-murder.

Admission of witness’ opinion based on photographs taken by a nurse, who did not testify, during a SART examination did not violate the confrontation clause. The nurse who completed the sex assault exam on the corpsman was unavailable to testify as she was awaiting a heart transplant. Her supervisor and employer, who was also a registered nurse, testified that she had examined photographs of the corpsman taken during the sex assault exam and, based on her experience, believed that trauma had been inflicted. The court found no confrontation clause violation resulting from this testimony because the photographs lacked the formality and solemnity required for them to be testimonial and the primary purpose was not for a criminal investigation of appellant; when the photographs were taken there was no criminal investigation of appellant in process. The photographs depicted objective facts about the condition of the corpsman’s body and did not set forth the nontestifying nurse’s conclusions or opinions about the examination.