People v. Dunlevy CA3

Filed 10/27/22 P. v. Dunlevy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C095246

Plaintiff and Respondent, (Super. Ct. No. CR-2018-5167) v.

JON PAUL DUNLEVY,

Defendant and Appellant.

A jury found defendant Jon Paul Dunlevy guilty of raping a sleeping woman (Pen. Code, § 261, subd. (a)(4)(A)), and the trial court sentenced him to six years in state prison. Defendant contends on appeal that the trial court erred prejudicially by permitting the victim’s mother to testify that the victim appeared more anxious and less social after the rape. We conclude the trial court did not abuse its discretion by admitting this evidence because the mother’s testimony was relevant to whether the victim had consented to sexual intercourse as defendant claimed. Accordingly, we will affirm.

1

BACKGROUND Shelby H. and her friend, A.S., visited Shelby’s boyfriend, A.M., at a home he shared with three roommates, including defendant. After Shelby, A.S., and A.M. returned from drinking at a bar, defendant and another man joined the group for more drinking and dancing in A.M.’s room. Although Shelby did not drink at A.M.’s house, she felt intoxicated from the drinks she had earlier at the bar. A. Shelby’s testimony A.S. fell asleep on an upright futon in A.M.’s room with her legs on defendant’s lap. A.M. went to sleep in his own bed as he had to work in the morning. Shelby then smoked marijuana and felt “just kind of a little stoned.” As Shelby sat on A.M.’s bed, she saw defendant on the futon stroking A.S.’s thighs as she slept, which made Shelby uncomfortable. Shelby shared her marijuana with defendant, hoping he would fall asleep, but he did not. After smoking together, Shelby asked defendant to help her lower the futon into its flat, “laid down position.” Shelby then hopped on the futon next to A.S. to prevent defendant from touching A.S. while she slept. Shelby told defendant to lay on A.M.’s bed, and he did. Shelby then fell asleep sometime after 2:00 a.m. Shelby awoke when she felt a penis penetrating her vagina. She thought it was her boyfriend, A.M., and gently pushed the person away, telling him she did not want him to do that right now because A.S. was sleeping next to her. When Shelby protested, the person stopped pushing his penis into her vagina for a few seconds before resuming. Shelby pushed the person away harder, at which point she felt chest hair and realized the person was not A.M., who had no chest hair. Shelby then started pushing more and saying, “[N]o, get off of me, you’re raping me,” and defendant rolled off of her. Shelby was very upset afterwards. She spoke with A.M., called her mother, and later decided to call 911.