People v. Douglas CA2/3 ( 2020 )

Filed 12/16/20 P. v. Douglas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B297130
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA147563
v.
RONALD MITCHELL DOUGLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Debra Cole-Hall, Judge. Affirmed
as modified.
Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah Hill and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Ronald Mitchell Douglas of forcible rape,
forcible oral copulation, and sodomy by force. He appeals, and
we affirm as modified.
BACKGROUND
An information charged Douglas with two counts of forcible
rape (Pen. Code,1 § 261, subd. (a)(2), counts 1 and 2), one count of
forcible oral copulation (former § 288a, subd. (c)(2)(A), count 3),
and one count of sodomy by use of force (§ 286, subd. (c)(2)(A),
count 4).
At trial, Zoila T. testified she met Douglas for the first time
while she smoked a cigarette outside a gaming establishment
in Norwalk, between 2:00 a.m. and 3:00 a.m. on November 19,
2015. Zoila’s first language was Spanish (she testified through
an interpreter), although she understood a little English.
Douglas, who spoke English, offered her a ride home on his
scooter. Zoila accepted, because she had to work the next day.
It was cold and windy outside.
Douglas put a small semiautomatic pistol under the seat
of the scooter. Zoila got onto the back of the scooter. Douglas
wore a helmet, and offered Zoila one. The helmet covered
her face and made it difficult to see where he was taking her.
Douglas stopped the scooter by a ranch house with a detached
garage and told Zoila he was going to get something from his
house. He got off the scooter and invited Zoila to come inside.
She accepted because she was very cold after the ride. Douglas
took the gun from the scooter and opened the garage door.
Once inside, he closed the door and put the gun on top of
a piece of furniture, where Zoila could see it the entire time
she was in the garage.
Douglas told Zoila to sit down, and she sat on a couch,
about 15 feet away from the gun. Douglas offered her a shot
of vodka, which she refused. Douglas asked Zoila what she
did for a living, and she said she worked and painted, she was
a lesbian, and she had a girlfriend. Zoila asked Douglas to take
her home, and he told her to wait a minute, and to keep talking.
Douglas sat on the couch with Zoila, and told her to relax
and get comfortable. He unbuttoned her jeans and pulled them
down and off, although she tried to push his hands away and
hold her jeans up. When Zoila cried and asked Douglas why
he was doing this, he told her to just calm down and relax.
Douglas got on top of Zoila as she lay on her back, using
one hand to hold both her hands above her head. Douglas put
his penis inside her vagina as she continued to cry and ask
why he was doing this to her. He told her to relax and be quiet.
Zoila tried to push him off, but he was stronger and she was
afraid he would hurt her. When she told him to stop he told her
to calm down.
With Zoila turned onto her stomach with her head down,
Douglas tried to put his penis into her anus. That hurt, and Zoila
tried to turn around and told Douglas to stop. Then she heard
a knock, and Douglas went about 20 feet away to see who it was.
He was gone for 10 to 15 minutes. Zoila was crying. She was
too scared to scream, and she tried to put her clothes on.
Douglas came back and sat in a chair next to the couch.
He told Zoila to get comfortable on the couch, got on top of her
again, and put his penis inside her vagina. She continued to cry
and ask him why.
Zoila asked Douglas to let her use the bathroom. He
took her into the house through the front door, and entered
the bathroom with her. As she sat on the toilet, Douglas stood
in front of her, pulled down his shorts, took out his penis, and
holding it in one hand, put his penis on her lips. Zoila turned
her face away and moved her upper body back, and told him she
wanted a drink of water. Douglas pulled his shorts up, opened
the bathroom door, and took her to the kitchen, where he gave
her a drink of water. She did not scream for help, because
nobody was there.
Zoila told Douglas she wanted to go home, and he said
that was fine and he would take her. They returned to the
garage, where she asked again. After about 10 minutes, Douglas
took the gun and gave her a ride to where she asked him to go
(a main street near her house). She had her cell phone that
night, but did not call for help because she didn’t know where
it was. Her cell phone records showed no calls between
10:37 p.m. on November 18 and 4:30 a.m. on November 19.
On November 21, at 1:40 a.m., Zoila’s girlfriend drove her
to the Norwalk sheriff’s station. A deputy took Zoila’s statement
and accompanied her to a hospital, where she talked to a nurse
who did an internal exam. The jury saw photographs of bruises
on Zoila’s left shoulder, inner thigh, and breast, all inflicted
during the rapes.
At trial, Zoila was 100 percent sure that Douglas was
the man who assaulted her. She had not identified him in a
photographic array on November 17, 2016, a year after the rapes,
because his photo did not look the same, and the detective told
her to select no one if she was not completely sure.
A sheriff’s department criminalist testified she tested the
samples from Zoila’s sexual assault response team (SART) kit.
She detected sperm in the samples from Zoila’s vulva and vagina.
She forwarded the samples to the DNA analyst, who testified
the sperm in the vaginal sample matched Douglas’s DNA.
Deputy Frank Ozuna interviewed Zoila at the sheriff’s
station and took her to the hospital. She did not mention
the gun, the oral copulation, or the sodomy. Zoila told him her
assailant was a Black male named Ronald, who told her “shut up.
There is no one there that can hear you,” when she told him to
stop.
The SART nurse who examined Zoila at the hospital
testified she noticed bruises on Zoila’s left shoulder and inner
thigh and an abrasion on her left breast, which could have been
caused by blunt trauma or squeezing. She did not see injuries
to Zoila’s vagina or anus, but forcible vaginal intercourse does
not always cause injury. The nurse took DNA swabs of Zoila’s
mouth, neck, breasts, hands, vulva, anus, vagina, and cervix,
and sealed them into a SART kit. The nurse also took blood
and urine samples.
Zoila told the nurse she had voluntarily consumed vodka
within 12 hours before the assault, and crystal meth within
96 hours before the assault. Her assailant gave her vodka and
told her to drink it, and told her to smoke some stuff from a pipe.
She had some pelvic pain, and said her assailant had not used
any weapons, threatened her, or hit her. She told the nurse she
had told her assailant she did not like men and told him no, but
he pulled her hands above her head, vaginally penetrated her,
and forced her to give him oral sex. Zoila did not report anal
penetration.
1. Evidence of prior crimes
Amanda M. testified she was 26 years old and born in 1991.
Douglas was the father of her eight-year-old son. She was 16 and
Douglas was 24 and living with his family when they began their
sexual relationship. In 2009, Douglas was convicted of having
unlawful sexual intercourse with her when she was a minor.
Their son was born in January 2010, six months before Douglas
was released from jail.
The first time she had nonconsensual sex with Douglas,
she was 16 and not answering his phone calls. He came over,
and when Amanda M. told him she did not want to have sex
and wanted him to leave, “[h]e said that I was his, he doesn’t
have to ask.” Douglas took her into her bedroom, put her on the
bed face down, pulled down her pants, and put his penis inside
her vagina. She repeatedly said no but was unable to get him
off her. A month later, while she was still 16, he picked her up
from school, took her to his house, and threw her onto his bed
face down. She said she did not want to have sex but he replied
he “wanted to do what he wanted.” He pulled off her pants
and underwear and put his penis inside her vagina while she
screamed. He once came to her high school and forced her into
the car by grabbing her and pulling her hair, causing the school
to call the police. He took her to his house and shut her into
his room. Her father got a restraining order against Douglas.
When she was 19, Douglas beat her with a belt and a
sandal and choked her. Saying he did not want to put his penis
into her vagina because she might have pleasure, and he wanted
to make sure it hurt, he raped her anally. She told him no, “but
. . . by that point there is no fighting him.” Douglas forced her
to put his penis in her mouth when she was 19, grabbing her hair
with one hand and punching her with the other. When she was
20 they moved to Las Vegas, and three or more times a week he
forced her to orally copulate him, including while he sat on the
toilet. She always told him she didn’t want to do it. She became
suicidal, and cut herself. Once she jumped out the window and
ran, and he brought her back inside. She did call the police about
the physical violence in August 2011, and in September 2012
reported he violated a domestic violence restraining order,
but she was too scared to bring up the forcible sex.
Amanda ended her relationship with Douglas in 2013,
on her son’s third birthday. A month later, he attacked her
in a Wal-Mart, and she had not seen him since.
She had never met Zoila. She knew Guadalupe S. because
their children went to school together, but had not seen her
for two years. Douglas was dating Guadalupe S. when their
relationship began.
Guadalupe S. testified she began dating Douglas in 2007,
when she was 22. The sexual relationship was consensual at
first, but some months in, they were in Douglas’s car when he
pulled over in an industrial area. She said she wanted to leave,
and he grabbed her arm, told her she couldn’t leave, and hit her.
Douglas got her into the back seat and pulled her pants down.
As she knelt facing the front passenger seat, he put his penis
in her vagina while she cried and told him not to. He also put
his penis in her anus. She was too scared to report the rape.
Around 20 times during their relationship, Douglas would
put his penis in her anus when she told him not to, holding her
so she could not move away. Ten to 20 times, Douglas pulled
Guadalupe by the hair to get her on her knees and pushed his
penis into her mouth, grabbing her by the hair when she tried
to move her face away. Douglas had vaginal sex with her
without her consent about 20 times.
Douglas had a small revolver and a semiautomatic pistol
on him all the time and kept them in his room. The guns
intimidated and scared Guadalupe. Once, when she told
Douglas she wanted to leave his parents’ house, he shot the
semiautomatic into the floor of his bedroom, beat her badly
with his fists, and forced her to have vaginal intercourse
as she told him no.
Guadalupe ended the relationship in 2009, although
she visited Douglas in prison. She knew Amanda had had
a relationship with Douglas and they spoke on the telephone,
but she had not seen her for four years. She never met Zoila.
In closing argument, the prosecutor argued Amanda’s and
Guadalupe’s testimony showed Douglas’s propensity to commit
sexual crimes against women. Defense counsel argued Zoila
was lying, and she actually had consensual sex with Douglas,
pointing to inconsistencies in her statements to the deputy, the
nurse, and detectives. Amanda and Guadalupe never reported
forcible sex, and they too were lying. In rebuttal, the prosecutor
pointed out that all three women described similar sexual acts
and predatory behavior by Douglas.
2. Verdict and sentencing
The jury found Douglas guilty on all four counts. The court
denied Douglas’s motion for new trial.
At sentencing, the trial court imposed the midterm of six
years on each count for a total of 24 years in state prison.
DISCUSSION
1. The trial court did not abuse its discretion when
it admitted evidence of Douglas’s prior sexual
misconduct
Douglas argues the court abused its discretion when
it allowed Amanda and Guadalupe to testify about his prior
sexual misconduct against them.
Before trial, the prosecutor moved to introduce evidence
of Douglas’s treatment of Amanda and Guadalupe. Both
women would testify that Douglas forced them to engage in
nonconsensual sexual intercourse, sodomy, and oral copulation.
The evidence was admissible as propensity evidence under
Evidence Code section 1108, and its probative value outweighed
any undue prejudice under Evidence Code section 352. In
opposition, Douglas argued the prior acts were remote in time,
and the proposed evidence was unduly prejudicial because
it included physical violence such as punching, pulling, and
slapping.
At a hearing, Douglas’s counsel argued the domestic
violence evidence was extremely inflammatory, some of the acts
against Amanda occurred when she was a minor, and Guadalupe
never reported any nonconsensual sexual acts. The trial court
stated it believed the evidence was probative. Neither woman’s
testimony would describe acts more heinous or inflammatory
than the charged acts (“I would say they are probably about
the same”), the testimony would not take up a lot of time, and
the prior conduct was not too remote in time. The court allowed
the evidence, warning the prosecution “the facts of domestic
violence, where there was no sexual conduct, should not be
gone into by the prosecution.”
Evidence of prior criminal acts is generally not admissible
to show a defendant’s predisposition to commit the charged acts.
(Evid. Code, § 1101, subd. (a).) In an exception to that rule,
Evidence Code section 1108 provides that evidence of other
sex offenses is admissible in a trial for sex crimes if the evidence
is not unduly prejudicial under Evidence Code section 352.
(People v. Soto (1998) 64 Cal.App.4th 966, 983-985.) Evidence
of other sex offenses can help the jury with “resolution of any
issue in the case, including the probability or improbability that
the defendant has been falsely accused.” (People v. Robertson
(2012) 208 Cal.App.4th 965, 990, italics added.)
An important question is whether the challenged
“propensity evidence has probative value, e.g., whether the
uncharged conduct is similar enough to the charged behavior
to tend to show the defendant did in fact commit the charged
offense.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
Douglas argues the prejudice created by Amanda’s and
Guadalupe’s testimony clearly outweighed its probative value,
because the prior sex crimes involved substantial violence
and thus were not similar to the sex offenses Zoila described.
We review the trial court’s decision to admit the evidence
for an abuse of discretion. (People v. Hernandez (2011) 200
Cal.App.4th 953, 965 (Hernandez).)
The sexual offenses described by Amanda and Guadalupe
were strikingly similar to the sexual offenses described by Zoila.
Each woman testified Douglas forcibly penetrated with his penis
her vagina and anus while she told him to stop and told him no.
Each woman testified he forced her to copulate him orally.
Guadalupe and Zoila testified that Douglas carried a
semiautomatic weapon with him all the time. Zoila testified
that he placed the weapon within sight before he raped her,
and Guadalupe testified he shot a round into the floor before he
raped her vaginally. All the women testified that although they
repeatedly said no to Douglas and told him to stop, he would
continue. As Amanda put it, Douglas “wanted to do what he
wanted,” which was to rape the women vaginally and anally,
and force them to copulate him orally.
The evidence was not identical, but “there is no
requirement that the charged and uncharged offenses be so
similar that evidence of the prior acts would be admissible under
section 1101.” (Hernandez, supra, 200 Cal.App.4th at p. 966.)
Although Zoila had met Douglas the night he raped her and
Amanda and Guadalupe had long-term relationships with him,
each woman testified their interactions with Douglas began
amicably. Each woman testified that later, when he wanted
sex and they made it clear that they did not, he forced them to
engage in multiple unconsented-to sexual acts. The uncharged
acts were similar in nature, and highly probative of Zoila’s
credibility.
Douglas argues that the domestic violence testified to
by Amanda and Guadalupe was absent from Zoila’s testimony.
But “any dissimilarities in the alleged incidents relate only to
the weight of the evidence, not its admissibility.” (Hernandez,
supra, 200 Cal.App.4th at p. 967.) The trial court considered
the potential for undue prejudice, admonished the prosecutor not
to go into the facts of domestic violence when there was no sexual
conduct, and at one point halted the prosecutor’s examination
of Guadalupe to ensure that she would testify to nonconsensual
sexual activity.
The jury was properly instructed that if the jury concluded
the prosecution showed by a preponderance of the evidence that
Douglas committed the uncharged acts, “that conclusion is only
one factor to consider along with all the other evidence. It is
not sufficient, by itself, to prove that the defendant is guilty
of counts 1 through 4. The People must still prove the charge
beyond a reasonable doubt.” We presume the jury followed
that limiting instruction, which removed the risk Douglas would
be punished in this case for his past offenses against Amanda
and Guadalupe. (People v. Ervine (2009) 47 Cal.4th 745, 776;
People v. Anderson (2012) 208 Cal.App.4th 851, 895-896.)
The court did not abuse its discretion by admitting
uncharged crime evidence.
Douglas also argues the admission of the testimony
violated due process. The admission of evidence, even
if erroneous, violates due process only if it makes the trial
fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428,
439.) For the reasons above, we reject Douglas’s argument
that admitting evidence of the uncharged acts made his trial
fundamentally unfair.
2. Douglas is not entitled to a hearing on his ability
to pay fines and assessments
The trial court also ordered Douglas to pay a $300 state
restitution fine under section 1202.4, subdivision (b) (while
imposing and staying an identical parole revocation fine),
a $40 court security fee under section 1465.8 on each count,
and a $30 criminal assessment fine under Government Code
section 70373 on each count. Douglas did not object to any
of those fines and fees. He now asserts that we should order
the assessments reversed and the restitution fines stayed
unless and until the prosecution proves he has the present ability
to pay them. He also argues we must remand for a hearing
regarding his ability to pay under People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). The California Supreme Court has
granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 96-97,
review granted Nov. 13, 2019, S257844, and People v. Hicks
(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019,
S258946, which disagreed with the analysis in Dueñas.
(See People v. Aviles (2019) 39 Cal.App.5th 1055, 1073.)
Douglas did not object to the imposition of the fines, fees,
or assessments, or claim an inability to pay. Dueñas was decided
three months before Douglas’s sentencing hearing in April 2019,
so there was authority supporting a request for an ability to pay
hearing at the time of sentencing. Douglas has forfeited his
right to challenge the fines and fees on appeal. (Cf. People v.
Castellano (2019) 33 Cal.App.5th 485, 489 [defendant did not
forfeit Dueñas argument where the case was decided after
sentencing]; see People v. Aguilar (2015) 60 Cal.4th 862, 866-867
[defendant’s failure to object at sentencing to certain fees on
the basis of his inability to pay forfeited the issue on appeal].)
We therefore do not remand for an ability to pay hearing on
the restitution fine, the court security fee, and the criminal
assessment fine.
Douglas contends that if the failure to object forfeited
the issue, his counsel provided ineffective assistance. “[R]arely
will an appellate record establish ineffective assistance of
counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.)
On the record before us, Douglas cannot establish counsel had
no tactical reason for not objecting, or that the failure to object
prejudiced him.
3. Douglas’s presentence custody credits must
be corrected
The trial court awarded Douglas 760 days of presentence
credit against his prison sentence for actual time spent in
confinement before sentencing, and 114 days of local conduct
credit, for a total of 874 days credit. On appeal Douglas argues,
and Respondent agrees, that he is entitled to 761 days of actual
presentence credit. We therefore order the custody credit award
corrected to reflect a total of 875 days of predisposition custody
credit.2
DISPOSITION
We modify the judgment to reflect a total of 875 days
of predisposition custody credit. As so modified, we affirm the
judgment of conviction. The trial court is to prepare an amended
abstract of judgment and to forward a certified copy to the
California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.