California Court of Appeal Mar 18, 2021 No. E073814Unpublished
Filed 3/18/21 P. v. Jones CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073814
v. (Super.Ct.No. FSB19000464)
MICHAEL ORLANDO JONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew
Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted Michael Orlando Jones of continuous sexual abuse of his
girlfriend’s daughter (Jane Doe). (Pen. Code, § 288.5, subd. (a).) The jury also
convicted Doe’s mother of misdemeanor child abuse and being an accessory after the fact
to Jones’s crime. (Pen. Code, §§ 32, 273a, subd. (a).) Doe’s mother is not a party to this
The declarations that Doe’s mother was sorry and wished she had thought first
might have been relevant if she had explained what she had done to inspire those
7
emotions. Similarly, the declaration that she had been mad might have been relevant if
she had connected her anger to this case. But without any explanation to connect the
declarations to the facts of this case, her state of mind was not “an issue in the action.”
(§§ 1250, subd. (a)(1), 1251, subd. (b).)
In any event, even if the court erred by excluding the letter under either hearsay
exception, any such error was harmless. Jones argues that the error violated his
constitutional right to present a defense, so we must apply the “harmless beyond a
reasonable doubt” standard. (Chapman v. California (1967) 386 U.S. 18, 24.) But an
evidentiary error violates a defendant’s constitutional right to present a defense only if it
amounts to a complete preclusion of a defense. (People v. Bacon (2010) 50 Cal.4th 1082,
1104, fn. 4.) If the court’s ruling “merely rejected certain evidence concerning the
defense,” we ask whether it is reasonably probable that the defendant would have
obtained a more favorable result absent the error. (People v. Bradford (1997) 15 Cal.4th
1229, 1325.)
There is no such reasonable probability here. The jurors considered Doe’s
mother’s statements that she lied to law enforcement and told Doe to lie, and they
rejected Jones’s defense that Doe was lying. To the extent that the letter offered some
motive for Doe’s mother to fabricate allegations—she was mad at Jones and trying to be
evil—the evidence at trial already permitted a reasonable inference to that effect. Jones
testified that after years together, he and Doe’s mother separated in 2012 because he
impregnated another woman, and Doe’s mother threatened to put him in jail after she
found out about the other woman. That was the same year that Doe’s mother took Doe to
8
the police station to report the abuse. Defense counsel drew the connection in closing
argument, telling the jurors: “We know in this case that they dated. They had fights, ups,
downs, they broke up. He had another girlfriend. He says that I was threatened, I will
put you in jail. Is it reasonable for someone in his position to be the victim of a false
claim? Of course.” He returned to that defense a little later, arguing: “[I]t’s very, very
difficult to prove up, to rule out that these allegations might have been false. We have
[Doe’s mother] saying I lied. We have evidence that he did have a girlfriend. He could
have made her pregnant. She was angry. If that makes sense to you, that’s reasonable
doubt.” The letter was thus largely cumulative of evidence already admitted at trial. The
jurors found Doe to be credible when she described the abuse that she suffered. It is not
reasonably probable that the vague statements of motive and remorse in the letter would
have changed that result.
In sum, the court did not abuse its discretion by excluding the letter from Doe’s
mother, and any error was harmless.
III. No Ineffective Assistance of Counsel
Jones argues that the letter from Doe’s mother was also admissible as a prior
consistent statement under sections 1236 and 791. He asserts that his trial counsel’s
failure to raise that argument constituted ineffective assistance. The argument lacks
merit.
To prevail on a claim of ineffective assistance, the defendant “must show that (1)
counsel’s representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2) counsel’s deficient
9
performance subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant.” (In re Alvernaz (1992) 2 Cal.4th 924, 936-937; see also Strickland v.
Washington (1984) 466 U.S. 668, 688, 694.) Counsel does not perform deficiently by
failing to make a meritless argument. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)
Section 1236 sets forth the hearsay exception for prior consistent statements. It
states: “Evidence of a statement previously made by a witness is not made inadmissible
by the hearsay rule if the statement is consistent with [the witness’s] testimony at the
hearing and is offered in compliance with Section 791.” (§ 1236.) Section 791 permits
the introduction of a witness’s prior consistent statement if (1) the court has admitted
evidence of an inconsistent statement for the purpose of attacking the witness’s
credibility, or (2) “[a]n express or implied charge has been made that [the witness’s]
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen.” (§ 791, subds. (a), (b).)
Here, any argument that the letter was admissible under sections 1236 and 791
was meritless, so counsel did not perform deficiently by failing to make the argument.
First, the statements in the letter were not consistent with the December 2014 oral
statements by Doe’s mother. Again, the letter did not explain why Doe’s mother was
apologizing or what she did that was purportedly evil. Her December 2014 statements
were entirely different in nature—she said that she had lied to law enforcement and had
instructed Doe to lie.
10
Second, section 1236 does not apply because Doe’s mother did not testify at trial.
(People v. Kopatz (2015) 61 Cal.4th 62, 84 (Kopatz).) By its plain terms, the section only
applies when the prior statement is consistent with the witness’s testimony “at the
hearing.” (§ 1236.) “‘[A]t the hearing’” means “the hearing at which the admissibility of
[her] prior consistent statements arose,” namely, the trial. (Kopatz, supra, at p. 84.) The
statements made by Doe’s mother in the letter could not possibly be consistent with her
testimony at trial, given that she did not testify. (Ibid.; accord People v. Hitchings (1997)
59 Cal.App.4th 915, 922 (Hitchings).)
Third, the letter did not meet the foundational requirements for admissibility under
section 791. Jones contends that there was “[a]n express or implied charge” that Doe’s
mother had “recently fabricated” her statements exculpating Jones or that she was
“influenced by bias or other improper motive.” (§ 791, subd. (b).) Jones relies on the
following exchange between himself and the prosecutor at trial:
“Q And the statement that your attorney read in court that [Doe’s mother] made in
court, did you guys talk about that before she made the statement?
“A No.
“Q And you do realize that is a very self-serving statement that she made, right?
“A I don’t understand what you mean.
“Q So if she says that she lied and she made [Doe] lie, there is no crime, she is no
accessory to any crime, there is not child abuse. [¶] So that statement was completely
self-serving for her; you understand that, right?”
11
The court overruled an objection to that question, and Jones answered: “If it’s the
truth, then how is it self-serving? It sounds to me like the truth is coming out.”
It is true that the prosecutor implicitly charged Doe’s mother with fabricating her
statements and expressly charged her with possessing an improper motive for her
statements. But section 791 also requires that the witness have made the prior consistent
statement before the motive to fabricate or other improper motive arose. (§ 791, subd.
(b).) That requirement is not met here. Doe’s mother wrote the letter in October 2014
while in custody, after she and Jones were arrested in August or September 2013. By that
point, she had the same motive to fabricate the self-serving statements that she had in
December 2014—to avoid being punished for her role in Jones’s abuse. (Hitchings,
supra, 59 Cal.App.4th at p. 921 [defendant’s prior consistent statements were not
admissible because they occurred after his arrest, when he had a motive to fabricate
them].)
In his reply brief, Jones argues for the first time that the letter was admissible
under section 1202, even if Doe’s mother did not testify at trial. We generally do not
consider arguments raised for the first time in the reply brief absent a showing of good
cause for failure to raise the issue earlier. (People v. Newton (2007) 155 Cal.App.4th
1000, 1005.) At any rate, the section 1202 argument fails on the merits. In relevant part,
section 1202 provides that any evidence offered to support the credibility of a hearsay
declarant “is admissible if it would have been admissible had the declarant been a
witness” at trial. (§ 1202.) While section 1202 permits admission of evidence supporting
the credibility of a hearsay declarant, it does not permit prior consistent statements to be
12
offered for their truth—it is not a hearsay exception like section 1236. (Kopatz, supra, 61
Cal.4th at p. 86 [court erred by admitting prior consistent statements of hearsay declarant
“as substantive hearsay evidence” because they were admissible only to rebut the attack
on the declarant’s credibility].)
To the extent that Jones argues the letter should have been admitted for the limited
purpose of bolstering Doe’s mother’s credibility, we are not persuaded. Section 1202
eliminates the requirement that Doe’s mother have testified at trial—it deals with hearsay
declarants and not witnesses “at the hearing”—but it otherwise imposes the same
conditions for admissibility that would apply to a trial witness. As discussed, the
conditions for admissibility of prior consistent statements were not met here: The letter
was not truly consistent with December 2014 statements by Doe’s mother, and she had a
motive to fabricate her statements in the letter, just as she did in December 2014.
Finally, assuming for the sake of argument that counsel performed deficiently, we
see no reasonable probability that Jones would have achieved a more favorable result
absent counsel’s failings. The letter added little to the other evidence at trial showing that
Doe’s mother had a motive to lie to law enforcement about the abuse. And as for her
credibility, the letter also would have added little. The prosecutor would have attacked
the letter as self-serving in the same manner that she attacked the December 2014
statements.
For all of these reasons, defense counsel did not render ineffective assistance by
failing to argue that the letter was admissible as a prior consistent statement.
13
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIALS REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
14
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in excluding a letter from the defendant's accomplice as hearsay, and trial counsel did not provide ineffective assistance by failing to argue for its admission as a prior consistent statement.
Issues
Did the trial court abuse its discretion by excluding a letter from the defendant's accomplice as hearsay?
Did trial counsel render ineffective assistance by failing to argue the letter was admissible as a prior consistent statement?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court properly ruled that the statements in the letter did not qualify as declarations against interest.”
“The court did not abuse its discretion by ruling that the hearsay exceptions were inapplicable to the letter.”
“Counsel does not perform deficiently by failing to make a meritless argument.”