People v. Fondren CA3

Filed 6/23/14 P. v. Fondren CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte)

THE PEOPLE, C074294

Plaintiff and Respondent, (Super. Ct. No. CM035757)

v.

MICHAEL RENE FONDREN, JR.,

Defendant and Appellant.

A jury convicted defendant Michael Rene Fondren, Jr., of two counts of assault with intent to commit sodomy or oral copulation (Pen. Code, § 220, subd. (a)(1)),1 two counts of false imprisonment by violence (§ 236), misdemeanor loitering (§ 647, subd. (h)), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The trial court denied defendant’s motion for a new trial and sentenced him to 12 years in state prison. On appeal, defendant contends the trial court erred in failing to grant a new trial for newly discovered evidence of juror misconduct. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTS AND PROCEDURE The Crimes Charles H. On the night of June 5, 2012, Jacob E. went to Elvia Guevara’s birthday party at the home of Adam G. and Charles H. Shortly after 10:00 p.m., defendant approached Jacob E. and offered him a pound of marijuana. The loud music caused defendant and Jacob E. to go around the corner to the side of the house. Defendant offered to give Jacob E. a pound of marijuana if he let defendant perform oral sex on him. Jacob E. declined, but defendant said, “C’mon, please.” Defendant grabbed Jacob E.’s penis twice during the conversation. Jacob E. felt uncomfortable and suggested they should get back to the party. Not wanting to make a big scene, Jacob E. just talked to friends when he got to the kitchen. Jacob E. told a few friends about what happened. Around midnight, he went to Riley’s bar with Guevara and Charles H. When Jacob E. returned to the party about 30 minutes later, everyone was upset and Charles H. was crying. Charles H. returned home from the bar around 12:15 a.m. He did not know defendant, but let him stay because he thought defendant knew someone at the party. Defendant offered Charles H. a pound of marijuana and said he needed to show him something. He asked Charles H. to follow him and then went into a bedroom, where defendant closed the door and pushed Charles H. to the bed. Charles H. was on his back with his feet touching the floor and defendant standing between his legs. Defendant touched the skin on Charles H.’s lower stomach. He held Charles H. on the bed and pushed him back down every time he tried to move. Defendant offered Charles H. a pound of marijuana for sex, but Charles H. refused. Charles H. repeatedly told defendant to stop, but defendant kept touching him. Defendant eventually unbuttoned Charles H.’s shorts and reached for his genitalia.