P. v. Jones
Filed 3/19/13 P. v. Jones CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
OLIVER JONES,
Defendant and
Appellant.
E055775
(Super.Ct.No.
RIF10002592)
OPINION
APPEAL
from the Superior Court of
County. Joe O.
Littlejohn, Judge. (Retired judge of the
San Diego Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
John
L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Bradley Weinreb, and Kathryn Kirschbaum, Deputy Attorneys General, for
Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendant Oliver Jones of four sexual offenses against a
minor—oral copulation, two counts of sexual intercourse, and a lewd
act—committed in 2008 and 2010.
in prison.
On
appeal, defendant argues the trial court erred by admitting hearsay evidence
and by the instructions it gave on the fresh-complaint doctrine. Defendant also seeks to vacate the
requirement that he register as a sex offender and he asks to be awarded
additional conduct credits of 58 days.
We reject defendant’s contentions and affirm the judgment.
II
FACTUAL BACKGROUND
Jane
Doe was born in September 1993. She was
enrolled in a college nursing program and 18 years old when she testified at
trial in January 2012. Between the ages
of 11 and 17, she lived with her mother, her stepfather, and her sisters in a
two-story house in Moreno Valley. The bedrooms were upstairs with a guest room
downstairs. Defendant was her mother’s
best friend and was godfather to Jane Doe’s older sister. He called often on the telephone from Texas where he was living. Jane Doe regarded defendant like a father and
felt she could talk about anything with him.
Jane Doe was a virgin before August 2008.
A. August 2008
In
August 2008, when Jane Doe was 14 years old, defendant visited and spent the
night. Defendant slept downstairs on a
blow-up mattress. Defendant left the
next day and returned later at night after Jane Doe had fallen asleep
downstairs.
Jane Doe awoke when
defendant began groping her breasts,
stomach, and genitals. Defendant
pulled down her underwear and told her to “shush.†Jane Doe was shocked and began crying as
defendant began having sex with her.
When defendant inserted his penis in her vagina, she felt a ripping
sensation, pain, and discomfort. She
tried to squirm away but defendant was stronger. Defendant grunted and said, “This was good
stuff.†When she said, “no,†defendant
responded, “They won’t understand. This
is our little secret.†The assault went
on for a long time, about 30 minutes.
After the intercourse, defendant requested her to perform oral sex on
him which she did unwillingly for a few minutes. He did not ejaculate and she stopped and got
dressed. Afterwards defendant asked her
to walk around to determine whether she “walked differently.â€
Jane Doe went upstairs to
her bedroom and was afraid to tell her mother because her mother might blame
her. Defendant did not threaten her but
she was afraid of him. In the morning,
there was blood on her underwear which she threw in the trash. At breakfast with defendant and her mother
and sisters, Jane Doe said nothing about what had happened. Defendant approached her and said she could
not tell anyone because “it’s our little secret. They wouldn’t understand us.â€
Later defendant would talk
to Jane Doe on the telephone about how nice it had been and that he wanted to
repeat the conduct and go on a date.
Jane Doe began feeling again like defendant was a friend and father figure
to whom she could talk freely.
In October 2008 or 2009,
Jane Doe confided to her best friend, Mariah, while they were attending a
football game. She also told her
cousin. Jane Doe was not getting along
with her mother. There was an incident
in which they argued and her mother threw a hanger at her. At one point, her mother suggested Jane Doe
stay with defendant in Texas and defendant wanted her to
come.
When Jane Doe first reported
the incident to a police officer, she did not mention performing oral sex
because she was embarrassed. She also
made contradictory statements about whether defendant wore a condom.
B. March 2010
In March 2010, Jane Doe had been treated at a
hospital for anemia. When she returned
home on March 11, 2010, defendant was visiting. Jane Doe shared a bedroom with her
sisters. Defendant was staying in
another upstairs bedroom. Defendant
arrived that night. The family members
went to bed about 1:00 a.m. Jane Doe
stayed up doing homework and listening to music on her headphones when
defendant called her using the house telephone.
Defendant invited her to his room to talk and she delayed for a while
but eventually joined him. She was
wearing undergarments and pajamas and sat on the floor. They talked until defendant turned off the
light, closed the door, and sat down beside her. Defendant began caressing her face and
shoulders and kissing her. Then he
pushed her on the floor and got on top of her.
He removed their clothes and inserted his penis into her vagina. He moved her on to her knees and then on top
of him and told her it felt good. At the
conclusion, he told her again it was a secret and nobody would understand. She dressed and left. Jane Doe felt stupid, mad, sad, dirty, and
like an idiot.
C. Jane Doe’s Letter to Her Mother
In
April 2010, Jane Doe told her mother because she had been having nightmares and
was afraid for her little sister. She
wrote her mother a letter and slipped it under the door. In the letter, she explained she had sex with
defendant in August 2008. She had fallen
asleep downstairs and, when she awoke, he was rubbing and kissing her. Jane Doe was too scared to tell her mother
but she was miserable and sorry. She
became involved with three other guys.
She had sex again with defendant and she felt “worthless like the
world’s biggest ho.â€
D. The Pretext Calls
The
police arranged for Jane Doe to make recorded pretext calls to defendant. In one call, she told defendant she had an
STD and could not be treated because she was only 16 years old. When she asked defendant if he had used a
condom, he hung up the telephone. When
he called back, defendant talked about finding a solution but he was worried
about whether the call was being monitored.
He also claimed to be healthy but he did not deny having sex with
her. Defendant called Jane Doe again to
discuss the possibility that her symptoms were a yeast infection or a urinary
tract infection. Again he did not deny
having sex with her. Defendant talked
about borrowing money to come visit. Jane Doe asked him if he had sex with her
older sister too and he became defensive and said it was impossible. When defendant insisted he cared about Jane
Doe, she accused him of forcing her to lose her virginity. He never apologized to her.
E. Mariah’s Testimony
Mariah
testified that Jane Doe confided to her at a football game that she had been
raped at home.
name="_ftnref3" title="">[3] Later, Jane Doe told her the story in detail,
including that defendant, the offender, was like her uncle. One night, she was sleeping and he began
kissing her and removing her underwear and he raped her. Jane often mentioned that defendant kept
calling her after the rape.
F. Defendant’s Testimony
Defendant testified that he
and Jane Doe’s mother had been friends since high school and he was godfather
to Jane Doe’s older sister. Defendant
and Jane Doe’s mother had a sexual relationship as recently as 2001. Defendant talked a lot with Jane Doe on the
telephone and gave her fatherly advice.
Defendant denied having sexual relations with Jane Doe.
While on a business trip in
August 2008, defendant visited and slept downstairs. He left early the next morning. He came back on a second night and talked to
Jane Doe before he went to sleep. The
family had breakfast before he left. He
came back for a third night but left about 2:00 a.m.
When defendant visited in
March 2010, he slept upstairs. Defendant
testified that someone came in and lay down with him in the middle of the night
and he thought it was Jane Doe’s mother.
They slept together until he left at 4:00 or 5:00 a.m. He woke Jane Doe and asked her to lock the
door when he left.
Jane
Doe called him at work where he could not talk privately or hear her very
well. He suspected there was “some evil
malice†behind the calls. He wanted to
help if she had an STD. On
cross-examination, he vehemently denied Jane Doe’s allegations against him.
Several friends of defendant
testified about his good character.
III
HEARSAY EVIDENCE
Defendant
challenges the rulings of the trial court allowing admission of Mariah’s
testimony about what Jane Doe confided to her after the first incident and Jane
Doe’s testimony about the letter she wrote to her mother after the second
incident. We review the trial court’s
evidentiary ruling for an abuse of discretion. (People
v. Thomson (2010) 49 Cal.4th 79, 128.)
We conclude there was no error but, even if there was error, it was
harmless in view of the other evidence.
We agree with the
prosecution that both kinds of evidence were admissible under the
fresh-complaint doctrine as discussed in People
v. Brown (1994) 8 Cal.4th 746, 749-750, permitting details about the
identity of the perpetrator and the nature of the offense: “. . . under
principles generally applicable to the determination of evidentiary relevance
and admissibility, proof of an extrajudicial complaint, made by the victim
of a sexual offense, disclosing the alleged assault, may be admissible for a
limited, nonhearsay purpose—namely, to establish the fact of, and the
circumstances surrounding, the victim’s disclosure of the assault to
others—whenever the fact that the disclosure was made and the circumstances
under which it was made are relevant to the trier of fact’s determination as to
whether the offense occurred. Under such
generally applicable evidentiary rules, the timing of a complaint (e.g.,
whether it was made promptly after the incident or, rather, at a later date)
and the circumstances under which it was made (e.g., whether it was volunteered
spontaneously or, instead, was made only in response to the inquiry of another
person) are not necessarily determinative of the admissibility of evidence of
the complaint. Thus, the ‘freshness’ of
a complaint, and the ‘volunteered’ nature of the complaint, should not be
viewed as essential prerequisites to the admissibility of such evidence.â€
Mariah’s testimony and the
letter were both admissible because Jane Doe volunteered the information about
defendant’s identity and the evidence helped establish the fact of, and the
circumstances surrounding, her disclosure of the assault to others. Admission of the letter was also admissible
as state-of-mind evidence to show why Jane Doe had not disclosed the rapes to
her mother at an earlier time:
“Admission of evidence of
the circumstances surrounding a delayed complaint, including those that might
shed light upon the reason for the delay, will reduce the risk that the jury,
perhaps influenced by outmoded myths regarding the ‘usual’ or ‘natural’
response of victims of sexual offenses, will arrive at an erroneous conclusion
with regard to whether the offense occurred.
[Citation.] Particularly in a
case such as the present one, in which the victim testifies to a series of
alleged sexual offenses over a considerable period of time, during which the
victim had the opportunity to disclose the alleged offenses to others but
failed to do so, the exclusion of all evidence relating to the context in which
the victim ultimately disclosed the alleged offenses to others is likely to
leave the jury with an incomplete or erroneous understanding of the victim’s
behavior. So long as the evidence that
is admitted is carefully limited to the fact that a complaint was made, and to
the circumstances surrounding the making of the complaint, thereby eliminating
or at least minimizing the risk that the jury will rely upon the evidence for
an impermissible hearsay purpose, admission of such relevant evidence should
assist in enlightening the jury without improperly prejudicing the
defendant.†(People v. Brown, supra, 8 Cal.4th pp. at 761-762; Evid. Code, §
1250, subd. (a).)
Jane
Doe’s letter served to explain why Jane Doe did not disclose immediately to her
mother because she was afraid of her mother’s response and disappointment and
because she was having nightmares. Even
if some of the details in the subject evidence should not have been admitted it
was still harmless. (
1303, 1313.) Mariah testified that Jane
Doe told her about some of the details of the rape itself and about defendant’s
conduct after the rape. In the letter,
Jane Doe also described the details of both rapes. Nevertheless, this evidence was all
cumulative to Jane Doe’s direct trial testimony about the offenses. (People
v. Blacksher (2011) 52 Cal.4th 769, 818, fn. 29; People v. Manning (2008) 165 Cal.App.4th 870, 881;
Cal.App.4th 1512, 1526.)
In
addition to Jane Doe’s testimony, there was also the damning evidence of the
pretext telephone calls during which defendant never denied ever having sex
with Jane Doe but was very concerned about whether and how she had contracted
an STD and how she could obtain treatment.
Additionally, defendant was extremely worried the telephone calls might
be monitored by his employer.
Finally,
Jane Doe’s statements to Mariah in October 2008 (or 2009) were admissible in
rebuttal as prior consistent statements after defendant testified that Jane Doe
had falsely accused him because she was angry with him after an argument they
had in March 2010. (Evid. Code, § 791,
subd. (b).)
IV
CALCRIM No. 318
The
trial court gave the jury an instruction based on CALCRIM No. 318:
“You have heard evidence of
statements that a witness made before the trial. If you decide the witness made those
statements, you may use those statements in two ways: [¶]
1. To evaluate whether the
witness’s testimony in court is believable; and [¶] 2. As evidence that the information in those
earlier statements is true.â€
Defendant contends the
instruction erroneously allowed the jury to consider Mariah’s testimony and
Jane Doe’s letter as truth of the matter asserted. We conduct an independent review to determine
whether there is a reasonable likelihood the jury misconstrued or misapplied
the law. (People v. Federson (2010) 188 Cal.App.4th 625, 642;
360, 370.)
As explained above, the
evidence admitted under the fresh-complaint doctrine cannot be considered for
the truth of the matter asserted. (
759-760.) On the other hand, CALCRIM No.
318 allows hearsay evidence to be admitted if a witness has been confronted by
prior inconsistent statements. (Evid.
Code, §§ 770, 1235.)
Here defense counsel
questioned Jane Doe about why she did not initially disclose the oral
copulation to the police and why she made contradictory statements about
whether defendant wore a condom. Defense
counsel also challenged Jane Doe and Mariah about whether Jane Doe confided in
Mariah in 2008 or 2009. Therefore, Jane
Doe’s statements to Mariah and the letter were both admissible to explain the
inconsistent statements offered by both witnesses.
Furthermore, any error was
harmless as previously discussed above because the subject evidence was
cumulative and the inculpatory evidence against defendant was overwhelming.
V
REGISTRATION AS A SEX
OFFENDER
Defendant
was convicted of one count under section 288, subdivision (c)(1), and one count
under section 288a, subdivision (b)(2)—both of which trigger mandatory
registration as a sex offender. (§ 290,
subds. (b), (c).) His other two
convictions under section 261.5 do not trigger mandatory registration. Defendant argues that he cannot be required
to register based on his conviction under section 288, subdivision (c)(1),
because he was not required to register for his conviction under section 261.5,
subdivision (d). We conclude that
because he was actually convicted under section 288, subdivision (c)(1),
mandatory registration applies.
In People v. Hofsheier (2006) 37 Cal.4th 1185, the California Supreme
Court found an equal protection violation
in the nondiscretionary requirement of lifetime registration for a conviction
for violating section 288a, subdivision (b)(1) (voluntary oral copulation with
a minor under age 18), because there was no mandatory registration for a
violation of section 261.5 (unlawful intercourse with minor under age 18). The court held no rational basis exists for
the distinction between these two groups:
adults who commit voluntary oral copulation with a minor under 18, and
those who commit voluntary intercourse with such a person. (Hofsheier,
at p. 1201.) The trial court was
directed to determine whether to require registration under the discretionary
registration statute. (
applied in People v. Garcia (2008)
161 Cal.App.4th 475, 481 for a conviction under section 288a, subdivision
(b)(2) (oral copulation with a minor under age 16).
The present case, however,
is properly governed by People v.
Anderson (2008) 168 Cal.App.4th 135, and People v. Cavallaro (2009) 178 Cal.App.4th 103, 109-118, involving
defendants actually convicted of violating section 288, subdivision (c)(1),
making them subject to mandatory registration.
This court adopted the same reasoning in People v. Alvarado (2010) [Fourth Dist., Div. Two] 187 Cal.App.4th
72, 76-79.)
We cite to part of the
comprehensive discussion of this issue in Cavallaro,
as follows:
“Defendant here argues that
because he—as a person convicted under section 288(c)(1) where sex offender
registration is required—is similarly situated with persons of the same age
convicted of unlawful, nonforcible sexual intercourse with a 14 or 15 year old
under section 261.5, subdivision (d).
Defendant’s analysis is flawed for at least four reasons, and we thus
conclude that he is not similarly situated with another group of convicted
persons who receive different treatment under the sex offender registration
statute.
“First, as we noted in
142, section 288(c)(1) includes a specific intent requirement. A lewd or lascivious act committed on a 14 or
15 year old by a person at least 10 years older is punishable under section
288(c)(1), where the person does so ‘with the intent described in . . .
subdivision [(a)],’ namely, ‘with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child .
. . .’ (§ 288, subd. (a).) No such specific intent element is present
for the offense of unlawful sexual intercourse under section 261.5, subdivision
(d). [Citations.] The higher mental state required for a
conviction under section 288 is a distinction that is meaningful in deciding
whether a person convicted under that statute is similarly situated with one
convicted under section 261.5.
“Second, there is a
threshold age requirement for the offender under section 288(c)(1): the defendant must be at least 10 years older
than the minor victim. The age of a
defendant may provide a meaningful distinction in providing for different
treatment of criminal offenses in certain instances. [Citation.]
The age prerequisite under section 288(c)(1) is not present under
section 261.5, subdivision (d), where the defendant need only be 21 years of
age. The Legislature could have properly
concluded that it was necessary to specifically prohibit sexual conduct between
a 14 or 15 year old and an adult at least 10 years older and to include
mandatory sex offender registration based upon a conviction for the offense,
because of the potential for predatory behavior resulting from the significant
age difference between the adult and the minor.
“Third, as we also noted in
142, the ages of the victims involved here—14 and 15 years old—are different
than the victim in Hofsheier (16). This age difference of the minor, in addition
to the age span between the minor and the defendant, is of significance in
determining whether Hofsheier is applicable
to the equal protection challenge here.
In this regard, we find the Fifth District Court of Appeal’s comments
useful: ‘We see in this statutory
background a legislative desire to protect 14- and 15-year-olds from predatory
older adults to the same extent children under 14 are protected by subdivision
(a) of section 288. [Citation.] Subdivision (c) (now (c)(1)) was enacted to
make the lewd conduct proscribed by subdivision (a) subject to felony
punishment when committed on slightly older victims by considerably older
adults. The inclusion of the decade age
difference in the subdivision reflects a recognition that a “sexually naïveâ€
[citation] child of 14 or 15 could fall victim to a more experienced adult, a
vice the Legislature was attuned to and took action to prevent.’ (People
v. Paz (2000) 80 Cal.App.4th 293, 297.)
“Fourth, and perhaps most
significantly, a person who engages in sexual intercourse with a 14 or 15 year
old and who is also at least 10 years older than the minor may be convicted of
a lewd or lascivious act under section 288(c)(1). (People
v. Fox (2001) 93 Cal.App.4th 394, 399, [sexual intercourse is lewd act
under § 288].) Therefore, contrary to
defendant’s position, he, as a person convicted under section 288(c)(1), is not
similarly situated with a group of persons who are not subject to mandatory
registration for the commission of sexual acts with minors of the same age as
the victims here. Stated otherwise, had
defendant had sexual intercourse with K. or S., he would still have been
subject to prosecution under section 288(c)(1) for the commission of a lewd
act, a crime for which sex offender registration is mandatory.†(People
v. Cavallaro, supra, 178 Cal.App.4th at pp. 113-115.)
The four reasons outlined in
Cavallaro apply equally in this case
where defendant was actually committed of violating section 288, subdivision
(c)(1), in addition to section 261.5.
Section 288 requires a higher mental state— a specific intent
requirement—not present in section 261.5.
Also significant is the age differential between defendant, who was more
than 10 years older than the victim, who was under 16, another meaningful
distinction as articulated in Cavallaro. Particularly, the Legislature could have
concluded the age differential justified mandatory registration because of the
increased potential for predatory behavior between an older defendant and a
much younger victim. Greater protection
is also afforded to children of 14 or 15 by requiring mandatory registration
for violations of section 288, subdivision (c)(1).
To paraphrase slightly this
court in People v. Alvarado, supra, 187
Cal.App.4th at page 79: here, there is
no equal protection violation in imposing mandatory registration for
defendant’s section 288, subdivision (c)(1), conviction. Defendant fails to establish any similar
crime in which mandatory registration is not required. Defendant has not shown that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner. (People v. Hofsheier, supra, 37 Cal.4th at p. 1199.) A section 261.5 offense concerns the general
intent offense of committing unlawful sexual intercourse.
Contrary to defendant’s
position, mandatory registration is appropriate for defendant based on his
conviction under section 288, subdivision (c)(1), even if under
mandatory registration for his convictions under sections 288a and 261.5.
VI
SECTION 4019
Defendant committed his
crimes before October 1, 2011, when section 4019 was amended. According to the version of section 4019 in
effect when he committed the offense, he was entitled to two days of custody
credit for every actual day in custody under section 4019. Because he is required to register as a sex
offender under section 290, he is not entitled to credits under section 2933,
subdivision (e)(1). Prospective
application of section 4019 does not violate federal or state equal
protection. (People v. Brown (2012) 54 Cal.4th 314, 328.) Defendant raises this issue only to preserve
his federal remedies.
Defendant’s rational basis
argument was also emphatically rejected in People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 55-56, approving the
Legislature’s legitimate state purpose of reducing costs. The California Supreme Court has stated equal
protection of the laws does not forbid statutes and statutory amendments to
have a beginning and to discriminate between rights of an earlier and later
time. (People v. Floyd (2003) 31 Cal.4th 179, 188.) “[I]n choosing October 1, 2011, as the
effective date of Assembly Bill No. 109, the Legislature took a measured
approach and balanced the goal of cost savings against public safety. The effective date was a legislative
determination that its stated goal of reducing corrections costs was best
served by granting enhanced conduct credits to those defendants who committed
their offenses on or after October 1, 2011.
To be sure, awarding enhanced conduct credits to everyone in local
confinement would have certainly resulted in greater cost savings than awarding
enhanced conduct credits to only those defendants who commit an offense on or
after the amendment’s effective date.
But that is not the approach the Legislature chose in balancing public
safety against cost savings.
[Citation.] Under the very
deferential rational relationship test, we will not second-guess the
Legislature and conclude its stated purpose is better served by increasing the
group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding
enhanced conduct credit to only those defendants who committed their offenses
on or after October 1, 2011.
“Finally,
of no help to [defendant] as that case involved actual credits and not conduct
credits. Conduct credits must be earned
by a defendant, whereas custody credits are constitutionally required and
awarded automatically on the basis of time served. (Brown,
supra, 54 Cal.4th at p. 330.)†(
Cal.App.4th at pp. 55-56; People v. Verba
(2012) 210 Cal.App.4th 991, 996-997; People
v. Kennedy (2012) 209 Cal.App.4th 385, 395-400.)
VII
DISPOSITION
The
trial court did not commit evidentiary or instructional error involving the
hearsay evidence. Defendant is subject
to mandatory registration as a sex offender based on his conviction for
violating section 288, subdivision (c).
Defendant is not entitled to additional custody credits.
We
affirm the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal Code unless stated otherwise.
name="_ftn2" title=""> [2]
Sections 261.5, subdivisions (c) and (d), (counts 2 and 4); 288,
subdivision (c), (count 3); and 288a, subdivision (b)(2), (count 1).
