People v. Downey
| Decision Date | 18 February 2021 |
| Docket Number | B296449 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANGELO DOWNEY, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA084851)
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.
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.
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 meetDowney 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 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,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, 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 onthe 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 DNAprofile. 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."
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 theystopped 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 didnot 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...
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