People v. Jones

         CERTIFIED FOR PARTIAL PUBLICATION ^[*]

          APPEAL from the Superior Court of San Bernardino County No. FSB17003100. Gregory S. Tavill, Judge. Affirmed with directions.

          Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          OPINION

          RAPHAEL J.

         Defendant 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 Therefore, in the unpublished portion of this opinion, we reject Jones's contention and affirm the conviction.

         In a 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.

         I. FACTS

         A. The Incident

         N.G., 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.

         Around 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.

         By 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 vagina.

         Initially, 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.

         B. The Investigation

         Officers 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.

         Alvarez's 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:

         “[Jones]: 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....

         “[Alvarez]: Uh-hum....

         “[Jones]: And she was asleep, I didn't know I was in the wrong hole. And I apologized and apologized. This is ridiculous. [¶]... [¶]

         “[Alvarez]: So, you were trying to put your penis in her vagina?

         “[Jones]: Right.

         “[Alvarez]: Okay. But she was knocked, she was knocked out, she was asleep?

         “[Jones]: We were both, we were both just sleep....”

         Later, Jones stated:

         “[Alvarez]: So, why would you try to have sex with her this one time? ...