California Court of Appeals, Fourth District, Second Division
FOR PARTIAL PUBLICATION [*]
from the Superior Court of San Bernardino County No.
FSB17003100. Gregory S. Tavill, Judge. Affirmed with
Marilee Marshall, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, and Melissa Mandel, Meredith S. White, Genevieve
Herbert and Craig H. Russell, Deputy Attorneys General, for
Plaintiff and Respondent.
and appellant Carl Jones was convicted of sodomy of an
unconscious victim pursuant to Penal Code section 286,
subdivision (f), a felony. The trial exhibits included a
video recording where Jones's roommate recounted what she
had observed to an investigator. What the roommate said was
hard to discern at times, and the parties disputed whether
she said she heard the victim tell Jones immediately before
the incident that “‘I'm a little
horny.'” Whether the victim made such a remark
would bear on whether she was conscious and gave consent. On
appeal, Jones contends that the trial court erred by not
providing the jury a version of the video's transcript
that contains the line “‘I'm a little
horny.'” The trial court correctly informed the
jury, however, that the video itself was the evidence, not
any transcript purporting to indicate the contents of the
video. Therefore, in the unpublished portion of this opinion,
we reject Jones's contention and affirm the conviction.
supplemental brief relying on People v.
Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), Jones contends that the trial
court's imposition of a $70 fee for “court
construction and court operations” as well as a $300
restitution fine violated his right to due process absent a
determination of his ability to pay. We hold that Jones has
not forfeited this argument despite his failure to raise it
in the trial court but affirm the imposition of the fine and
fees on the record before us.
the victim, first met Jones in 2016 when they were both
“into” drugs and prostitution. Although N.G.
orally copulated Jones on one occasion several months before
the incident took place, N.G. considered Jones as a friend,
and the two had no other sexual intercourse or relationship.
July 2017, N.G. was homeless, and Jones offered to let N.G.
stay at his apartment. N.G., who had been awake for several
days on cocaine, accepted. N.G. slept in Jones's bed with
the understanding that they would not be sleeping “at
the same time, ever.” Jones had a roommate, Angela
Gatlin, who slept on a couch in the living room.
August 4, 2017, N.G. had been in and out of sleep for several
days. At one point, she woke up with Jones's erect penis
in her anus. N.G. pulled Jones's penis out of her anus
and exclaimed “[w]hat are you doing?” to which
Jones replied, “I'm sorry. I thought I was in your
vagina.” N.G. ran into the bathroom screaming. N.G. had
not given Jones permission to put his penis in her anus or
N.G. did not report the incident but rather continued to stay
at Jones's and Gatlin's apartment. N.G. testified
that she “had nowhere to go” and that she
“thought it was [her] fault that [she] was in the
situation.” On August 11, however, N.G. decided to
report the incident.
Mauricio Becerril and Sergio Alvarez and Supervisor Sergeant
Cardillo responded to N.G.'s call on August 11. Becerril
interviewed N.G. and Gatlin, while Alvarez and Cardillo
interviewed Jones. N.G. became emotional and started crying
during the interview. Becerril accompanied N.G. to the
hospital where she was examined by a Sexual Assault Response
Team (SART) nurse. N.G. affirmed to the nurse that Jones
penetrated her anus with his penis.
body camera recorded his and Cardillo's interview with
Jones. During the interview, Jones stated that he was trying
to “get some” and that N.G. was asleep:
I was trying, trying-I thought I was in the right hole. I was
trying to... what's the word-trying to start something, I
don't know the word for it, but yeah, I was trying to get
some, but I was half asleep....
And she was asleep, I didn't know I was in the wrong
hole. And I apologized and apologized. This is ridiculous.
So, you were trying to put your penis in her vagina?
Okay. But she was knocked, she was knocked out, she was
We were both, we were both just sleep....”
So, why would you try to have sex with her this one time?