Filed 3/19/13 P. v. Jones CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055775

v.                                                                       (Super.Ct.No. RIF10002592)

OLIVER JONES,                                                            OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside 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.




                                                             1
                                               I

                                     INTRODUCTION1

       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

2010.2 The court sentenced defendant to three years 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



       1   All statutory references are to the Penal Code unless stated otherwise.

       2 Sections 261.5, subdivisions (c) and (d), (counts 2 and 4); 288, subdivision (c),
(count 3); and 288a, subdivision (b)(2), (count 1).

                                              2
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.”

       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.”

                                             3
       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

                                             4
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.”

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



                                              5
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.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

       3   Mariah told an investigator Jane Doe had first confided to her in 2009 but she
testified it was 2008.

                                             6
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

                                              7
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.”

       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

                                             8
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. (People v. Fair (1988) 203

Cal.App.3d 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;

People v. Ramirez (2006) 143 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

                                              9
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.”

       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; People v. Fiu (2008) 165 Cal.App.4th 360, 370.)

       As explained above, the evidence admitted under the fresh-complaint doctrine

cannot be considered for the truth of the matter asserted. (People v. Brown, supra, 8

Cal.4th at pp. 759-760.) On the other hand, CALCRIM No. 318 allows hearsay evidence



                                             10
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.



                                            11
       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. (Id. at p. 1208.) The same equal protection reasoning was 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 Hofsheier is nonetheless applicable 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

                                             12
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 Anderson, supra, 168 Cal.App.4th at page 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

                                              13
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 Anderson, supra, 168 Cal.App.4th at page 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 naïve” [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

                                             14
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.



                                             15
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

Hofsheier he was not subject to 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

                                            16
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, In re Kapperman (1974) 11 Cal.3d 542, is 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.)” (People

v. Rajanayagam, supra, 211 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.)




                                            17
                                            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.




                                            18
