People v. Nelson CA1/1

Filed 2/3/26 P. v. Nelson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A171720 v. JOSHUA JOSEPH NELSON, (Marin County Super. Ct. No. CR217256A) Defendant and Appellant.

Defendant Joshua Nelson was charged with two felony sex offenses and other crimes after he made video recordings of himself digitally penetrating the victim, a mentally ill woman with whom he had a sexual relationship. A jury acquitted him of the felonies, including a lesser included offense of sexual battery, but convicted him of two counts of simple battery. Based on these convictions and two other misdemeanors to which he pled guilty before trial, the trial court sentenced him to 360 days in jail. On appeal, Nelson contends the convictions for simple battery must be reversed because the trial court (1) misinstructed the jury on the “unlawful” element of that crime and (2) failed to instruct on mistake of fact about the victim’s consent as a defense. We conclude that no instructional error occurred and therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Because the jury rejected the more serious charges and Nelson’s appellate claims require us to resolve only issues of law, we do not describe the evidence in detail. The charges at issue stemmed from a series of short videos Nelson took with his cell phone on a single occasion in April 2021. He and the middle- aged victim, Rebecca, were in a relationship, and to some extent he acted as her caregiver.1 Evidence was presented that Rebecca, who did not testify, was hearing impaired, schizophrenic, and bipolar. She had psychotic episodes during which she voiced delusional beliefs, including that she had been physically and sexually violated in unlikely or impossible ways. Nelson was arrested in October 2021 after Rebecca reported he had assaulted her, including by “urethrally rap[ing]” her and “punch[ing her] in . . . the anal tailbone.” When the police questioned him, Nelson disclosed the April 2021 videos, which were played for the jury. An officer described them as “close-up recording[s] of Rebecca’s nude vulva. [Nelson] is digitally penetrating her multiple times with his hand and his fingers.” During the videos, Nelson and Rebecca talk to each other, and “Rebecca multiple times says, ‘Ow, stop. Leave me alone. You’re not a doctor.’ ” The operative information charged Nelson with two felonies, forcible sexual penetration by a foreign object and sexual penetration by a foreign object of a person incapable of giving consent. He was also charged with four misdemeanors, one count of sexual battery and three counts of criminal