People v. Downey CA2/7

Filed 2/18/21 P. v. Downey CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B296449
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA084851)
v.
ANGELO DOWNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Jesic, Judge. Affirmed
Vanessa Place, 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, Senior
Assistant Attorney General, Noah P. Hill and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
Following his conviction on one count of forcible rape,
Angelo Downey moved for a new trial pursuant to Penal Code
section 1181, subdivision 6,1 arguing the jury’s verdict was
contrary to law or evidence. Downey also moved in the
alternative to dismiss the case pursuant to section 1385. The
trial court denied both motions. On appeal Downey argues, and
the People concede, the trial court applied an incorrect legal
standard when it denied the motion for a new trial. Nonetheless,
we agree with the Attorney General that the judgment of
conviction is properly affirmed because the trial court’s analysis
in denying Downey’s section 1385 motion establishes he suffered
no actual prejudice as a result of the court’s error.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged Downey with the forcible
rape of Liliana G. on October 26, 2014 in violation of section 261,
subdivision (a)(2).2 Liliana, known as Lilly, and Downey both
testified at trial, providing dramatically different accounts of
their evening together.
1. The People’s Evidence
Lilly and Downey met online in August 2014 when she was
19 years old. They exchanged text messages and communicated
with each other on social media sites. Lilly agreed to meet
1 Statutory references are to this code.
2 Although the original information alleged only a single
count of rape, the amended information alleged five separate
counts of forcible rape on October 26, 2014, all identifying
Liliana G. as the victim. Downey moved to dismiss all five counts
under section 1118.1 after the People rested. The court denied
the motion as to count 1, but granted the motion and dismissed
counts 2 through 5.
2
Downey in October 2014 after Downey offered to help her prepare
a resume and find a job.
The two met in person on October 26, 2014 after Lilly had
spent the day working on a photoshoot with friends. Downey
picked Lilly up from her aunt’s house in South Central
Los Angeles, where she was living. They played miniature golf in
Sherman Oaks, stopped at a fast-food restaurant for Downey to
get something to eat and then went to a nearby supermarket.
Downey asked to drop off the groceries at his apartment, which
was nearby in Studio City. Although Lilly had initially planned
to wait in the car, when her phone battery died, she asked
Downey if she could use a charger. Downey said he had one in
his apartment, and Lilly and Downey went inside.
According to Lilly, a man wearing headphones was lying in
the darkened living room when they entered the apartment.
Lilly went to Downey’s bedroom; sat on the bed, which was the
only place to sit; and plugged in the phone charger. Downey
asked if she wanted to watch Netflix. As they did, Downey
started rubbing Lilly’s thighs and “running his hands all over”
her.3 Lilly, who was wearing basketball shorts and a shirt-dress,
told him to stop. Downey responded he was “just trying to have
fun. He wasn’t trying to have sex with [her] me that night.”
After pausing briefly, Downey again started touching her thighs,
kissed her neck and grabbed her buttocks. Lilly again told him to
stop, but Downey continued to touch her. Becoming more
aggressive, Downey pinned her down with his lower body and,
3 Lilly explained, “Honestly, I did not want to watch Netflix.
I was just there to charge my phone [and] to get out. And he put
on Netflix. And I was still on the bed. And that’s when he
started touching me.”
3
holding her hands over her head, Downey touched her breasts
and inserted his finger into Lilly’s vagina. He then pushed her
shorts and underwear to the side and repeatedly inserted his
penis into her vagina, ultimately ejaculating on her vaginal lips
and thighs. Lilly yelled, “No” throughout the assault. Afterward,
Downey went into the kitchen, and Lilly cleaned herself in the
bathroom and left the apartment.
Lilly had left her purse in Downey’s car when she went
inside his apartment to use a charger. When she returned to the
car to retrieve the purse, it was locked. Downey came out,
“look[ing] very aggressive like if I didn’t listen to him because he
told me to get in the car. And I just felt like if I didn’t listen to
him something was going to happen to me. So I got in the car.”
Downey drove Lilly home, insisting during the drive that “you
can’t call this rape.” Once back at her aunt’s home, Lilly threw
away her underwear because there was ejaculant on it. After
finishing charging her phone, she sent Downey a text asking if he
had ejaculated inside her. (Even though she had felt Downey
ejaculate, she wanted confirmation because of her concern about
pregnancy and disease.) Downey did not respond.
Lilly explained she did not want to report the rape to the
police because she had been raped as a child and the police had
not helped her. She did call her friend Megan Burnett and told
her Downey had raped her. Burnett took her to Planned
Parenthood the following day. A Planned Parenthood nurse
notified the police of the assault. That evening a police officer
interviewed Lilly and took her to the Santa Monica UCLA Rape
Treatment Center for examination.
Sharilyn Fields, a forensic medical examiner at the Rape
Treatment Center, testified that Lilly’s account of the incident on
4
the evening of October 27, 2014 was generally consistent with
Lilly’s testimony at trial, although she had said Downey only put
the tip of his penis in her vagina briefly before ejaculating. Lilly
told Fields that she had urinated after the attack and dabbed her
vagina with water and wiped herself with a towel. Fields
retained the shorts Lilly had been wearing during the attack and
took swab samples from various places on her body.
Lilly also called the photographer, Donaven Thomas, the
day after the assault and told him what had happened. She told
him she had seen a nurse and had a rape kit done. Thomas said
Lilly was upset and seeking support because she had no close
friends in Los Angeles.
Los Angeles Police Detective Johneen Jones, the lead
investigator, testified she had to make numerous attempts to
contact Downey before he finally responded in November 2015.
Interviewed at the police station,4 Downey denied knowing Lilly
and said he did not recognize her photograph. He also claimed he
only dated Armenians, not Mexicans. Downey refused to provide
an oral reference swab, but said he would return to do so. He did
not keep that appointment. An oral swab was taken following
Downey’s arrest in December 2016.
Testimony from Los Angeles Police Department
criminalists established there were three semen stains on Lilly’s
shorts. Samples from two of the stains matched Downey’s DNA
profile. The third sample did not contain sufficient genetic
material to make a comparison. DNA from external genital swab
samples and from the neck swab also matched Downey’s DNA
4 Detective Jones testified the interview was not recorded
due to an equipment failure.
5
profile. No male DNA was detected in the vaginal swab. Male
DNA was detected on the swab of Lilly’s right hand (palm).
Fields explained an external genital swab goes on the outer
labia and into the folds of the labia lips. Based on Lilly’s
description of the assault, Fields would expect to find semen on
the external genital swab, but not the vaginal or cervical swabs.
Asked whether, “[i]n the 7[00]-to-800 sexual assault exams you’ve
conducted, have you ever found there to be sperm in the external
genital swab from an over-the-clothing hand job conducted either
by the defendant masturbating or the victim giving the defendant
a hand job,” Fields responded, “In my experience, no. I’ve never
heard of anything or never seen anything like that.”
2. The Defense Evidence
Downey testified in his defense. He described Lilly as
wearing tight-fitting high-waisted shorts, fishnet stockings and
an oversized jersey when they met on October 26, 2014. After
playing miniature golf, they agreed to go to Downey’s apartment
to “‘Netflix and chill.’”5 Before arriving at the apartment they
5 After defense counsel asked Downey, “Was there any
conversation about what you were going to do other than play
miniature golf,” the following exchange took place:
“[Downey]: The term is, ‘Netflix and chill.’ So after golf we
were going to Netflix and chill
“[Counsel]: What does chill —
“[Downey]: Watch.
“[Counsel]: I know what Netflix is. We’re going to chill?
“[Downey]: Watch a show on Netflix and, like, the same
setting and just relax.
“[¶] . . . [¶]
6
stopped for snacks at a supermarket and a fast-food restaurant
where Downey got something to eat.
At Downey’s apartment he and Lilly watched Netflix with
Downey’s cousin in the living room while Downey finished eating.
Downey and Lilly then went into Downey’s bedroom and
continued watching Netflix while lying on the bed facing each
other. Lilly unzipped her shorts. Downey held her buttocks
underneath her clothing. Lilly told him she did not want to have
intercourse on a first date, but they kissed and touched one
another. Downey became aroused and pulled his erect penis from
his jeans. Lilly stroked Downey’s penis, and he ejaculated “on
her lower half like the panty line.” Asked to clarify, Downey said
he had ejaculated on her skin, her body and parts of her panties.
On cross-examination Downey testified Lilly’s shorts and panties
had been pulled down just past “the beginning” of her vagina.
His penis was touching her panties when he ejaculated.
After he had ejaculated, Downey retrieved toilet tissue and
wiped it off. Both of them then went into the bathroom and
cleaned themselves with a washrag. Downey testified on direct
examination that Lilly had used the washrag after he did, but on
cross-examination acknowledged he had cleaned himself “when
she was done with it.”
Downey denied he had been shown a photograph of Lilly at
the November 6, 2015 interview and did not recall saying he did
“[Counsel]: When you say, ‘chill,’ that process would be at a
location other than the miniature golf, correct?
“[Downey]: Well, I wasn’t going to go back to her aunt’s
house. And I had my own place. So the plan was to hang out at
my apartment.”
7
not know her. He had refused to give a DNA sample because he
wanted to talk to a lawyer and his family first.6
Los Angeles Police Officer Hassel Montoya interviewed
Lilly at the Rape Treatment Center in the early morning of
October 28, 2014. Her report indicated Lilly was calm and even
amused at times. Montoya commented Lilly’s demeanor was
perhaps due to nervousness, something she had observed with
other rape victims. Montoya noted inconsistencies in Lilly’s
description of the assault. Lilly said Downey put two to three
inches of his penis into her vagina four to five times, although she
subsequently said he may have inserted his entire penis into her
vagina one time but was not sure. Lilly told Downey to stop
because she did not want to have sex. When she wiped herself
afterward, she felt semen on her body. Lilly explained she was
reluctant to notify the police of the rape because of her prior
experience.
Ryan Mahome, Downey’s cousin, testified he was staying at
Downey’s apartment on October 26, 2014. He was sitting in the
living room watching television when Downey and Lilly came in.
Downey introduced Lilly to him, and all three of them watched
television while sitting on the couch. Downey and Lilly then
6 On rebuttal Los Angeles Police Detective Josie Torres
explained she had been present when Downey was interviewed
on November 6, 2015 and confirmed the recording equipment had
malfunctioned during the interview. Torres testified Downey
denied knowing anyone named Lilly or Liliana or someone fitting
Lilly’s description. Torres believed Downey was shown a
photograph of Lilly during the interview. Torres also testified
that Downey did not say he wanted to speak to a lawyer, only
that he wanted to talk to his family before providing a DNA
sample.
8
went into the bedroom, leaving the door open. They were in the
bedroom for 45 to 60 minutes. Mahome was not wearing
headphones. He did not hear anyone scream. Mahome saw
Downey and Lilly go into the bathroom together and leave the
apartment together. Lilly was not crying.
Neda Fiset, the manager of the apartment complex where
Downey lived, occupied the apartment directly beneath Downey’s.
According to Fiset, she could hear sounds from Downey’s
apartment such as people walking, chairs scraping and the
television, but not conversations. She did not hear a woman
yelling, “Stop” from Downey’s apartment in late October 2014.
3. Verdict and Posttrial Motions
The jury convicted Downey of rape. Following the
conviction Downey moved for a new trial pursuant to
section 1181, subdivision 6, and, alternatively, to dismiss the case
pursuant to section 1385.
Arguing at the hearing on the new trial motion, the
prosecutor, Michele Pincus, asserted, “The relevant question is
whether any trier of fact could have found the elements of the
case beyond a reasonable doubt after reviewing the facts in the
light most favorable to the prosecution. That’s the law. That’s
what the law requires the court to review, as the court knows.
And any rational fact finder would have found this. . . . It’s not
what the court believes. It’s what a rational fact finder would
find.”
The trial court agreed with the prosecutor’s view of its role
in deciding the motion: “[T]he standard is, as Ms. Pincus stated,
could a rational jury find the defendant guilty based on the facts
in this case? No doubt in my mind that a jury could. A jury did.
But there’s no doubt in my mind that a jury could based on the
9
facts. The case came down to a credibility issue between the
defendant and the victim. And so based on [section 1181,
subdivision 6,] the motion is denied.”
In denying the motion pursuant to section 1385, after
observing that Lilly’s and Downey’s accounts of what had
happened were in complete conflict and that each of them had
credibility issues, the court stated, “So what we need to do is look
at certain circumstantial evidence to determine what
happened. . . . Part of the circumstantial evidence is the semen
that’s found on the victim. One interpretation is that the
defendant ejaculated inside those shorts, and that’s how the
semen got on the vagina. The other interpretation is that
somehow the semen got inside the pants during her
masturbating him. . . .” “You’re asking the court to tell you how
it felt as a 13th juror, there’s no way I can say that a reasonable
juror couldn’t come to the conclusion they did. . . . It is the
decision that the jurors came up with. And I can’t dispute that as
a 13th juror. And I won’t. Not based on the evidence I heard in
this case. . . . [I]f you take out the victim’s testimony and the
defendant’s testimony, you’re still left with that DNA that’s
inside the shorts, that’s on the vagina, actually inside the vagina.
And it is almost impossible to explain how that happened. And I
didn’t hear a logical explanation, not from the defendant in this
case as to how that happened. And for those reasons the motion
is denied.”7
7 After Downey’s posttrial motions were denied, the court
sentenced him to state prison for three years.
10
DISCUSSION
1. Governing Law and Standard of Review
Section 1181, subdivision 6, authorizes the trial court to
grant a new trial “[w]hen the verdict or finding is contrary to law
or evidence.” When ruling on a motion pursuant to this
provision, the trial court “extends no evidentiary deference . . . .
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.’
[Citations.] If the court is not convinced that the charges have
been proven beyond a reasonable doubt, it may rule that the
jury’s verdict is ‘contrary to [the] . . . evidence.’ [Citations.] In
doing so, the judge acts as a 13th juror who is a ‘holdout’ for
acquittal.” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)
We review a trial court’s ruling on a motion for a new trial
under a deferential abuse-of-discretion standard. (People v.
McCurdy (2014) 59 Cal.4th 1063, 1108; People v. Knoller (2007)
41 Cal.4th 139, 156; People v. Jimenez (2019) 32 Cal.App.5th 409,
423.) An abuse of discretion is shown if the trial court based its
decision on an incorrect legal standard. (Knoller, at p. 156;
see Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th
725, 733; People v. Aguillera (2020) 50 Cal.App.5th 894, 910;
Wade v. Superior Court (2019) 33 Cal.App.5th 694, 709.)
The erroneous denial of a new trial motion is not a ground
for reversal, however, unless the defendant suffered actual
prejudice as a result. (See People v. Braxton (2004) 34 Cal.4th
798, 816-817 [“the constitutional provision—which precludes the
reversal of a judgment or the granting of a new trial for a trial
court error unless that error is determined to have resulted in a
miscarriage of justice—applies to state law errors generally”];
11
see generally Cal. Const., art. VI, § 13 [“[n]o judgment shall be set
aside, or new trial granted, in any cause . . . for any error as to
any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice”].) As the Supreme Court explained in the
context of a trial court’s error in refusing to hear a defendant’s
new trial motion, “[A] judgment of conviction may not be reversed
and a new trial may not be ordered for a trial court’s failure to
hear a new trial motion when a reviewing court has properly
determined that the defendant suffered no prejudice as a result.
This will occur when, for example, the record shows that the trial
court would have denied the new trial motion and the reviewing
court properly determines that the ruling would not have been an
abuse of discretion, or the reviewing court properly determines as
a matter of law that the motion lacked merit.” (Braxton, at
p. 818.)
2. Downey Has Failed To Demonstrate Prejudice from the
Trial Court’s Error
Following the erroneous lead of the prosecutor, in denying
Downey’s motion for a new trial the trial court failed to exercise
its independent judgment and determine whether the evidence
supported a finding of guilt beyond a reasonable doubt, instead
applying an objective substantial evidence test properly used for
a motion for acquittal under section 1118.1 or by this court in
considering on appeal whether the verdict is supported by
sufficient evidence. As Downey argues, and the Attorney General
concedes, this was error.
However, when deciding Downey’s alternative motion for
dismissal under section 1385, the court performed the analysis it
12
should have used in ruling on the new trial motion—it acted as a
13th juror and stated its agreement with the jury’s verdict.
Accordingly, any error in employing the incorrect legal standard
on the new trial motion was harmless.
Downey does not dispute that the court used the 13th juror
standard in denying his section 1385 motion. Nonetheless, he
advances two arguments to urge us to reverse his conviction and
remand the matter for the trial court to reconsider his new trial
motion. First, he contends the court’s reasoning was based on its
mistaken recollection of the state of the DNA evidence—no male
DNA was found on the vaginal swab. Second, he insists the court
erred by including in its evaluation Downey’s failure to explain or
rebut the DNA evidence, an error that infringed Downey’s
constitutional right not to testify. Neither argument has merit.
Contrary to Downey’s suggestion, the trial court did not
mistakenly believe Downey’s DNA had been found on the vaginal
swab, rather than on the external genital swab, but simply used
imprecise terminology when discussing that evidence.8 During
argument on the new trial motion, the court expressly referred to
this critical piece of evidence, “I can’t remember the exact term
that was used. But it was inside the vagina, the way they
describe it and the way they described how the vagina is formed.
That was—it sounds like it’s on the outside but it’s actually on
the inside of the outer lip area of the vagina.” The prosecutor
confirmed, “The labia. Yes, Your Honor.” And the court
8 During argument on the new trial motion the prosecutor
repeatedly referred to this DNA evidence as coming from an
“external vaginal swab” and emphasized “the external vaginal
swab was on the inside and outside of the victim’s labia;
therefore, inside her body, not somewhere on her leg.”
13
responded, “The labia. That’s my understanding what the
testimony was.” The court repeated its accurate understanding
of the DNA evidence during argument on the section 1385 motion
later the same day when responding to defense counsel’s
argument that Downey was entitled to an acquittal if the
circumstantial evidence was reasonably interpreted as consistent
with his version of the sexual episode: “I agree with you, in terms
of the sperm being on the labia. If there’s two reasonable
interpretations of that evidence and one points to innocence, then
I have to find it that way. I’m not sure there is.”
It was this DNA evidence the court again referred to a
short while later when explaining its denial of the section 1385
motion. The court concluded—as it would be entitled to acting as
the 13th juror—that the defense theory of the case did not
reasonably explain “that DNA that’s inside the shorts, that’s on
the vagina, actually inside the vagina.” There was no
misunderstanding of the evidence introduced at trial.
The court’s additional comment that it had not heard a
logical explanation for that DNA evidence other than Lilly’s
account of the sexual assault, including from the defendant, did
not improperly draw an adverse inference from Downey’s silence
in violation the of constitutional right not to testify. Downey
testified. Indeed, he did so at some length concerning his
interaction with Lilly on the evening of October 26, 2014,
including testimony as to how he ejaculated; where his ejaculant
went on Lilly’s skin and clothes; and how Lilly and he cleaned
themselves afterward. The court’s evaluation of the consistency
of that testimony with the DNA evidence, and therefore its
reasonableness, was entirely proper. (Cf. People v. Cortez (2016)
63 Cal.4th 101, 117-118 [proper for court to instruct jury to apply
14
“‘neutral standards of credibility’” to testifying defendants as set
out in CALCRIM No. 226, which includes evaluating the
reasonableness of the testimony in light of the other evidence in
the case]; People v. Gordon (1982) 136 Cal.App.3d 519, 532-533
[prosecutor’s comment in closing argument on defendant’s
testimony, suggesting it was deliberately deceptive, “is within the
bounds of fair comment”].)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
15