Opinion
A153338
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. ROSS ANTHONY JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 15-SF000992-A)
On April 18, 2017, a jury found Ross Anthony Jones guilty of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1); count 1) and forcible oral copulation (former Pen. Code § 288a, subd. (c)(2)(A); count 2). The trial court sentenced Jones to three years in prison with a credit of 25 days for time served.
All undesignated statutory references are to the Penal Code. Effective January 1, 2019, former section 288a was amended and renumbered as section 287. (Stats. 2018, ch. 423, § 49, Sen. Bill No. 1494 (2017-2018 Reg. Sess.).)
Jones appeals. First, Jones contends the court "erred prejudicially when it instructed the jury with a modified version of CALJIC No. 1.23.1," a jury instruction defining consent. Second, he argues the court misunderstood the scope of its discretion when ruling on his motion for a new trial.
We modify the abstract of judgment to indicate Jones's correct date of conviction. As modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Jones with misdemeanor sexual battery (§ 243.4, subd. (e)(1); count 1), forcible oral copulation (former § 288a, subd. (c)(2)(A), count 2); and assault with intent to commit rape (§ 220, subd. (a)(1); count 3).
I. Prosecution Evidence
At the time of her testimony, Monica Doe was 21 years old. She met Jones in 2013 in her senior year in high school. They lived across the street from each other.
At trial, the victim was referred to as Monica Doe.
A. Prior Consensual Sexual Activity
In the summer of 2013, after they graduated from high school, Doe invited Jones into her house. Doe's parents were not home. Jones and Doe went downstairs and engaged in consensual sexual intercourse. They were not in a dating relationship and they did not refer to each other as boyfriend and girlfriend.
Over two years later, in October 2015, Doe texted Jones because she wanted "to hang out." They had not communicated or spent time together since the summer of 2013. Jones and Doe walked to a park and Jones brought a blanket. It was "really dark" in the park. They engaged in consensual sexual intercourse. Doe did not recall performing fellatio on Jones. Doe was not afraid of being seen because "it was super dark and nobody goes over there at night . . . ."
B. The November 2015 Incident
On November 7, 2015, Doe texted Jones and she went to Jones's house. Doe drove her car to Jones's house. Jones invited Doe inside.
They talked in Jones's bedroom and, according to Doe, they both smoked marijuana. They went outside to Jones's backyard. Jones began touching and kissing Doe. Doe did not want to have sex and she told him "no, I'm on my period." Jones was hugging Doe and "he wouldn't let go." Doe told Jones she was "not in the mood." When Jones was kissing her, Doe kept moving her head to the side. Doe did not recall telling Jones to stop.
Jones and Doe went to the side of the house where it was dark. Jones pushed on Doe's shoulders, forced her onto her knees, zipped down his pants, and he made Doe "suck his penis." Jones used his hands on Doe's shoulders to push her to the ground. Doe was kneeling on cement. Jones grabbed Doe on the back of her head and forced her head into his penis.
Doe did not try to stop what was occurring. Doe felt she had no control and she was choking on Jones's penis. She "felt weak." After Jones ejaculated on Doe's face, Jones took Doe to a mattress in the backyard. He tried wiping Doe's face with a towel or a sweatshirt.
Jones was on top of Doe and he stated: "why would you want to come over if you don't like it." Doe repeated that she did not want to have sex and that she was on her period. Doe was not able to get out from under Jones. Jones said "he was going to fuck" Doe while she was on her period. They did not have sex; instead, they went to Jones's room. While in the backyard, Jones touched Doe near her vagina over her clothes.
Jones asked Doe if he could get a ride from her. They got into Doe's car. Doe was feeling "weak and at the same time a little bit scared." Doe felt Jones had "overpowered" her. Doe drove Jones to San Francisco and back home afterwards. When she got home, Doe took a shower and went to bed.
During this incident in Jones's backyard, Doe testified that Jones either did not ask her for a "blow job," or she said no when he asked her. Doe turned her head to keep Jones's penis from entering her mouth, she attempted to push him away, and his penis fell out of her mouth twice. While in the car, Doe asked Jones if he thought she was pretty. Doe was not sure if she told Jones that "semen is good for [the] face," which was something she learned in cosmetology school. In 2015, Doe had a "Tumblr account" with a theme of dominance and submission, and her account included the initials "DDLG," which stands for "Daddy Dominant and Little Girl."
C. The Police Investigation
The next day, Doe told her sister-in-law what happened the night before. Doe could not keep it to herself and she was depressed. Doe felt "assaulted," "very uncomfortable," and "manipulated." For Doe, this incident was "way different" from her prior sexual activity with Jones and she did not feel it was right.
That evening, around 9:00 p.m., Doe went to the police department with her sister-in-law and her eldest brother. Officer Matthew Smith interviewed Doe. Doe identified Jones from a photographic lineup.
Doe did not disclose to Officer Smith that she had sex with Jones in 2013 or that she had sex with him in a park two weeks before the incident. She denied even kissing Jones. Doe worried her brother might get angry. Officer Smith asked Doe's brother to leave the interview because he was "starting to show too much emotion." Referring to Jones, Officer Smith said: " '[s]cum bags like this deserve to get what they get.' "
On November 11, 2015, Detective Steve Stump went to Doe's house for a follow-up interview. Doe and Detective Stump talked alone in the living room. At the time, Doe was recovering from the removal of her wisdom teeth. At trial, Doe did not remember much of what she told the detective because she was on medication when he interviewed her. Doe told the detective that the first time Jones came to her house in 2013, Jones had contacted her, and they merely watched television and kissed. However, Doe did tell the detective about her prior sexual activity with Jones in the park.
Doe agreed to participate in a "pretext phone call" with Jones. Detective Stump described it as "a call between the victim of a sexual assault and the suspect . . . . And the purpose . . . is to elicit a confession, an admission of guilt or some sort of an apology from the guilty person."
On November 16, 2015, Doe went to the police department to make the pretext call. Detective Stump explained that he would write questions on a pad for Doe to ask Jones. The call was recorded. It occurred around 11:00 a.m. Doe told Jones she could not sleep, that she was obsessing about what happened, and she felt terrible. Jones described himself as a " 'pusher,' " and he said, " 'If I get a no, I'll just keep trying until it works.' " He also described himself as a " 'controller.' " Jones apologized and Doe said she would try to forgive him.
The jury heard the recording and received a transcript of it.
After the call, Doe received text messages from Jones. Jones stated: " 'Thank you for forgiving me. Really appreciate it. I understand we don't have to talk or see each other but can you just not mention that to other people for me then?' " In his next message, Jones said: "I won't bring it up if you don't." He stated: " 'That alright with you? I just don't want people thinking me o[n] drugs is always like that and have that spread around when I'm really not.' " Doe did not respond to the messages.
Jones continued text messaging Doe. He stated: " 'Just delete everything between us and my number okay! Cool thanks again for forgiving me but seriously don't mention this at all to people cause then it will [g]et around and I really don't want that kind of shit. I have too much already with work and that I'm being sued by someone.' " In his next message, he stated: " 'Like seriously I need your word on this. [¶] Don't even respond cause I know then you do mean it and then just delete everything involving m[y] texts and my number and I'll do the same okay? Just say deal if you understand this? I really need to know you get this.' " Doe did not respond. She deleted Jones as a contact. She also blocked his number because she "never wanted to talk to him . . . again."
After the pretext call, Jones was arrested on December 1, 2015. Jones told the police that he asked Doe if he could have intercourse with her, she told him she was on her period, and then he asked her for oral sex. Jones said they went to the side of the house, she started to perform oral sex on him, and "that the only discomfort or displeasure was when he tried to get her to deep throat his penis." Jones said that, in the car ride back from San Francisco, Doe told Jones that "semen is good for your face."
II. Defense Evidence
When Jones testified, he was 22 years old. He met Doe at his high school, where she told him he was cute. She added him as a friend on Facebook and they exchanged telephone numbers.
During the summer of 2013, Doe texted Jones and invited him to her house. She indicated her parents were not home. Jones went to Doe's house. They watched television and started kissing. They engaged in sexual intercourse. Doe's parents came home unexpectedly and Jones left the house unobserved by Doe's parents. Another time, Doe invited Jones over to her house, but they just watched television and Jones left when Doe's parents came home.
In October 2015, Doe contacted Jones and they walked to a nearby park. Jones brought a blanket because Doe told him to bring something to lie on. When they met on the street corner, it was nighttime. In a secluded and dark area of the park, they lay on the blanket. Even though Jones did not request it, Doe started to suck Jones's penis. They had sexual intercourse and Jones ejaculated on Doe's back. Then they walked home.
About two weeks later, on November 7, 2015, Doe contacted Jones. Jones was planning to go to the city with a friend. Doe offered to drive. She told Jones she was going to park her car in front of Jones's house so that her parents would think she was out. When Doe came over, they started driving toward the city, but they turned back because Jones forgot his wallet and he had to charge his phone.
Back at his house, Jones smoked marijuana in his backyard. Jones claims Doe did not smoke marijuana because she had a dentist appointment the next day. They sat on a mattress in the backyard. Jones asked Doe if she would like to have sex. Doe said no because she was "PMSing." Jones asked Doe if he could "get a blow job." Jones was kissing Doe's neck and rubbing the outside of her pants.
Doe asked if they could go somewhere else, and they walked to the side yard, which was darker. Jones held Doe's hand to "[h]elp her not fall." In the side yard, Doe "voluntarily got down on her knees." Doe unbuckled Jones's pants. Doe started sucking Jones's penis. Jones did not force Doe to do so or threaten her.
Jones put his hands on Doe's head and he "tried to deep throat," which involved putting his penis further back in Doe's mouth. Doe started coughing and gagging. Jones could tell she did not enjoy his attempt to "deep throat" her, but she continued sucking his penis. Jones climaxed "on her chin and the rest was on the ground." Jones got a towel and Doe wiped her face.
After that, Doe drove Jones to San Francisco. While in the car, Jones and Doe discussed a music artist and Doe stated she "probably takes a lot of semen on the face, but it's healthy, though." Doe expressed displeasure at having to drive but she did not indicate Jones took advantage of her sexually.
Over a week later, on November 16, 2015, Jones received a telephone call from Doe. It was around 11:00 a.m. Jones had come home from work three hours before, he had been asleep for only two hours, and he was "half asleep."
Doe asked, "Why did you force me to do that," and Jones thought Doe was referring to his attempt "to have her deep throat" him. Jones apologized because he felt bad for cheating on his girlfriend. He was tired and wanted to go back to sleep. Jones got the impression Doe was "very distraught" and "mentally broken." He thought she was upset about having to drive Jones around. Jones decided he "would take the hit" in order to "get back to sleep." Jones told Doe that the " 'pushing side of me and controlling side just really came out 'cause I was just under a lot of stuff.' "
On November 19, 2015, Jones received a restraining order. On December 1, 2015, the police arrested Jones. Jones claimed he respected Doe's wish not to have sex. Jones remembered that Doe was choking and gagging when he attempted to put his penis further into her mouth. Jones told the police that Doe did not want to give him a "blow job" and she did not want to get on her knees, but she did so anyway.
III. Dismissal of Count 3 and the Jury's Guilty Verdicts on Counts 1 and 2
At the end of the prosecution's case-in-chief, the court granted in part Jones's motion for entry of a judgment of acquittal (§ 1118.1) and dismissed the charge of assault with intent to commit rape (§ 220, subd. (a)(1)). However, the court found there was sufficient evidence for the charges of misdemeanor sexual battery (§ 243.4, subd. (e)(1)) and forcible oral copulation (former § 288a, subd. (c)(2)(A)) to go to the jury. The jury found Jones guilty of these charges. Jones appeals.
Section 1118.1 provides in part that "In a case tried before a jury, the court on motion of the defendant . . . , at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense . . . on appeal."
The abstract of judgment states Jones's date of conviction was January 6, 2016. On our own motion, we modify it to indicate his correct date of conviction, which was April 18, 2017.
DISCUSSION
Jones challenges the jury instruction on consent and the court's ruling on his motion for a new trial. We address these arguments in turn.
I. No Error in the Jury Instructions
Jones argues the court's instruction regarding consent "re-allocated the burden of proof," and imposed upon Jones the burden of establishing consent when it was the People's burden to prove beyond a reasonable doubt that Doe did not consent to the touching or to the act of oral copulation. Jones argues the court erred by relying on language from both CALJIC No. 1.23.1 and CALCRIM No. 1194 because, according to Jones, the second instruction "appears to contradict" the first one. Jones contends that by instructing the jury based on CALJIC No. 1.23.1, the court precluded the jury from entertaining "a reasonable doubt as to real or apparent consent." We are not persuaded by these arguments.
A. The Jury Instructions on Consent
CALJIC No. 1.23.1 provides in part that: "the word 'consent' means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. [¶] [The fact, if established, that the defendant and (alleged victim) engaged in a current or previous dating relationship does not by itself constitute consent.]"
CALCRIM No. 1194 provides: "You have heard evidence that . . . [Monica] Doe . . . had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/ [and] whether the defendant reasonably and in good faith believed that . . . [Monica] Doe . . . consented to the charged act[s]). Do not consider this evidence for any other purpose."
Here, the trial court relied on both instructions. The jury was told that "[i]n prosecutions under . . . [former] section 288 and 243.4 the word 'consent' means positive cooperation in an act or attitude as the exercise of free will. The person must act freely and voluntarily and must have knowledge of the nature of the act or transaction involved. The fact i[f] established that the defendant and Monica Doe engaged in [a] current or previous relationship does not by itself constitute consent. [¶] You have heard evidence that Monica Doe had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide whether the alleged victim consented to the charged acts and whether the defendant reasonably and in good faith believed that Monica Doe consented to the charged acts. Do not consider this evidence for any other purpose."
B. Jones Forfeited His Challenge to the Jury Instructions on Consent
In People v. Lee (2011) 51 Cal.4th 620, a case involving attempted rape, our Supreme Court determined that the defendant forfeited his challenge to an instruction defining consent "by failing to object to the trial court's consent instruction or to request any modification or amplification of it at trial. A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel." (Id. at pp. 637-638.) Similar reasoning applies here. The court expressly provided Jones an opportunity to address the court's decision to use CALJIC No. 1.23.1, but Jones's counsel declined to do so, and concurred with the court's evaluation of the issue. Thus, his challenge to the instructions on consent is forfeited.
C. Even If Not Forfeited, Jones's Arguments Fail
In any event, we disagree with Jones's contentions on appeal regarding the instructions. First, the instructions did not "re-allocate[] the burden of proof." According to our Supreme Court, CALJIC No. 1.23.1 "simply explains what consent means . . . without unconstitutionally shifting the burden of proving consent to defendant." (People v. Lee, supra, 51 Cal.4th at pp. 641-642.) We are bound by the Supreme Court's determination. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Second, we discern no contradiction by instructing the jury in accordance with both CALCRIM No. 1194 and CALJIC No. 1.23.1. By doing so, the court essentially instructed the jury that evidence of Doe's prior consensual sexual relationship with Jones was relevant but not by itself sufficient to constitute consent to the charged acts.
Third, CALJIC No. 1.23.1 did not preclude the jury from entertaining a reasonable doubt as to whether Doe consented to the charged acts. The jury was instructed that the People had to prove Jones was guilty beyond a reasonable doubt, and that the People had to prove both the touching and the oral copulation occurred without Doe's consent. The court also told the jury that the People had "the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented." We presume the jury understood and followed the court's instructions. (People v. Avila (2009) 46 Cal.4th 680, 719.) Finding no error in the instructions on consent, we do not address Jones's contention that the error was prejudicial.
II. No Abuse of Discretion in Denying the Motion for a New Trial
Jones argues the trial judge "did not fully understand the scope of his discretion to order a new trial or to modify the verdict." According to Jones, the trial judge "erroneously equated" the standards for a judgment of acquittal under section 1118.1 and a motion for a new trial under section 1181(6). We are not persuaded.
A. Governing Law and Standard of Review
"When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial" when "the verdict or finding is contrary to law or evidence . . . ." (§ 1181(6).) "The court extends no evidentiary deference in ruling on a 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) Thus, the court considers "the proper weight to be accorded to the evidence" and then determines whether "sufficient credible evidence" supports the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633 ["It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial"].) If the court is not convinced the charges have been proven beyond a reasonable doubt, it should rule that the jury's verdict is " 'contrary to [the] . . . evidence' " within the meaning of section 1181(6). (Porter, at p. 133.)
The court has broad discretion when ruling on a new trial motion and the ruling will not be overturned absent a clear and unmistakable abuse of that discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 730.) The court abuses its discretion when "it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence." (People v. Carter (2014) 227 Cal.App.4th 322, 328.)
B. No Abuse of Discretion
When ruling on the motion, the court stated: "Well, it's my view on this that it's the Court's job to make sure there's sufficient evidence to support the verdict. And I made that ruling at the end of the 1118 motion. And so, and I granted the 1118 motion on the assault with intent to commit rape, which is the most serious of all the charges that were filed. And while I believe that Mr. Jones appears to be a very decent young man, unfortunately, in his situation there is sufficient evidence to support what the jury did and that comes through the pretext phone call. If that call didn't exist then I don't think there would be sufficient evidence to support the jury verdict. And . . . it's not my job or I don't view it as my job to nullify a jury verdict due to my personal beliefs about the decency of the defendant in general terms. And . . . that's not fair to the jury process. [¶] So we are left with a verdict that is supported by the evidence. . . . [¶] So I don't also see any legal basis to reduce the conviction to misdemeanors because, once again, there was more than sufficient evidence to support the verdict and that was the jurors' conclusion and that's their role and responsibility in the confines of a trial."
Preliminarily, we reject the Attorney General's contention that Jones "has not preserved his claim because he did not inform the trial court during the hearing that he believed it had employed the wrong legal standard." Jones filed a motion for a new trial. Thus, he preserved his right to appeal the court's denial of the motion. (People v. Carter, supra, 227 Cal.App.4th at p. 327, fn. 2; People v. Watts (2018) 22 Cal.App.5th 102, 113.)
Jones argues this case is similar to People v. Watts, supra, 22 Cal.App.5th at page 115, or People v. Carter, supra, 227 Cal.App.4th at page 328. In Watts, "the trial court misperceived the applicable standard and denied the motion [for a new trial] by erroneously applying the section 1118.1 standard rather than the proper independent judgment standard." (Watts, at p. 114.) In Carter, the trial court denied the new trial motion even though it had a reasonable doubt as to whether the defendant was guilty of the charges. (Carter, at pp. 328-329.)
We are not persuaded that similar errors occurred here. While the trial court referred to its prior ruling granting in part Jones's motion for a judgment of acquittal under section 1118.1, we cannot conclude it employed the same standard when ruling on the motion for a new trial. Instead, the court's comments regarding the pretext telephone call indicate it weighed the evidence independently and determined there was sufficient credible evidence to prove the remaining charges of misdemeanor sexual battery and forcible oral copulation beyond a reasonable doubt. The denial of the new trial motion was not an abuse of discretion. (People v. Fuiava, supra, 53 Cal.4th at pp. 729-730.) We reject Jones's contention that we should either "remand for reconsideration of the new trial motion," or modify the verdict.
DISPOSITION
We modify the judgment to correct Jones's date of conviction. The abstract of judgment currently states Jones was convicted on January 6, 2016, when in fact he was convicted on April 18, 2017. The trial court is directed to correct the abstract of judgment to indicate Jones's correct date of conviction and to forward a corrected, certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Needham, J. /s/_________
Burns, J.