People v. Ray

• Decision Date: 30 April 2018
• Docket Number: B270084
• Citation: People v. Ray, B270084 (Cal. App. Apr 30, 2018)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RICHARD EDWARD RAY, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. RICHARD EDWARD RAY, Defendant and Appellant.

B270084

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

April 30, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

Los Angeles County Super. Ct. No. MA064433

APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed in part, reversed in part, and remanded with directions.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Richard Edward Ray was convicted of 17 sex crimes committed against three children over the course of 18 years. He contends the court lacked jurisdiction over counts 3-8 and 16-17 because those offenses occurred in Nevada—and even if California had jurisdiction, Los Angeles was not the proper venue; his conviction for count 12 violates Penal Code section 288.5, subdivision (c), which prohibits dual convictions for continuous sexual abuse and another sex offense involving the same victim and the same time period; and the multiple-victim findings and several of his indeterminate sentences violate the ex post facto clause.

We conclude: (1) though California had jurisdiction over counts 4-8 and 16-17 because defendant committed sufficient preparatory acts in this state, and though venue in Los Angeles was proper for those counts, California did not have jurisdiction over count 3; (2) defendant did not forfeit his right to challenge his unauthorized dual conviction for count 12; (3) the multiple-victim allegations for counts 2, 4, 6, 7, 14, 16, and 17 violate the ex post facto clause; and (4) the indeterminate sentence for count 2 also violates the ex post facto clause. We therefore reverse counts 3, 12, and the true findings on the multiple-victim allegations with directions to dismiss them on remand, vacate defendant's sentence, and remand for resentencing. In all other respects, we affirm.

PROCEDURAL BACKGROUND

By information filed January 21, 2015, defendant was charged with incest (Pen. Code,¹ § 285; count 1); continuous sexual abuse (§ 288.5, subd. (a); counts 2 and 12); sexual intercourse or sodomy with a child under age 11 (§ 288.7, subd. (a); count 3); sodomy of a child under age 14 with an age difference of at least 10 years (§ 286, subd. (c)(1); count 4); lewd act on a child (§ 288, subd. (a); counts 5, 8, 11, 13, and 15); aggravated sexual assault of a child by rape (§ 269, subd. (a)(1); counts 6 and 14); aggravated sexual assault of a child by oral copulation (§ 269, subd. (a)(4); count 7); criminal threats (§ 422, subd. (a); count 9); rape of a minor over age 14 (§ 261, subd. (a)(2); count 10); and sexual penetration of a child under age 11 (§ 288.7, subd. (b); counts 16 and 17). As to counts 2-8 and 10-17, the information alleged defendant committed the offenses against multiple victims. (§ 667.61, subds. (b), (e).) Defendant pled not guilty and denied the allegations.

The defense twice moved to dismiss counts 3-8 and 16-17 for lack of jurisdiction and improper venue.² The court denied both the motions. After a trial at which he testified in his own defense, the jury found defendant guilty of all counts and found the allegations true.

At sentencing, the court imposed an aggregate determinate term of nine years and four months followed by an indeterminateterm of 220 years to life. For the determinate sentence, the court selected count 4 as the base term and imposed the high term of eight years. The court imposed eight months for counts 1 and 9—one-third the midterm of two years for each count—to run consecutively. For the indeterminate sentence, the court imposed 75 years to life for counts 6, 7, 14, 16, and 17—five consecutive terms of 15 years to life—plus 25 years to life for count 3. The court sentenced defendant to 120 years to life for counts 2, 5, 8, 10, 11, 12, 13, and 15—eight terms of 15 years to life—under the One Strike law (§ 667.61), to run consecutively. The court imposed one sex offender fine (§ 290.3) of $300 plus penalty assessments³ and a $6,000 restitution fine (§ 1202.4, subd. (b)). The court imposed and stayed a $6,000 parole revocation restitution fine (§ 1202.45). Finally, the court imposed a $30 court facility assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) for each count.

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

This case involves the commission of multiple sex offenses against three minors over the course of nearly 20 years. Each of the victims was related in some way to Juanita R. P.B. isJuanita's younger sister. C.R. is Juanita's daughter with defendant. And T.C. is Juanita's daughter with another man.

1. P.B. (Counts 11-15)

P.B. was born in August 1991 and is 11 years younger than Juanita. When she was five or six years old, defendant often put his finger in P.B.'s vagina. Defendant also put his finger in P.B.'s vagina in 1997, 1998, and 1999. Overall, defendant put his finger in P.B.'s vagina approximately 50 times. Defendant had vaginal intercourse with P.B. twice—once between 1997 and 1998 and a second time between 1998 and 1999.

Each sexual act occurred in Los Angeles County.

2. C.R. (Counts 1-10)

C.R. was born in June 1999. Nearly every day over a three month period in 2005 and 2006, defendant brought C.R. to her grandmother's garage in Lancaster and had anal sex with her.

By 2009, defendant had moved to Nevada and C.R. was living with other family members in Riverside County. She went to visit defendant for a month that summer. During the trip, defendant had anal intercourse with C.R., performed oral sex on her, and made her perform oral sex on him. Sometime after she returned, C.R. was placed in foster care.

On May 17, 2012, defendant obtained custody of C.R. and drove her to Henderson, Nevada to live with him in his apartment. A day or two after they arrived, defendant had anal intercourse with C.R. and orally copulated her. Defendant committed those acts on C.R. nearly every day while she lived with him in Nevada—sometimes more than once per day. On C.R.'s 13th birthday, defendant started having vaginalintercourse with her. Defendant threatened to kill her if she told anyone about the abuse.

In Spring 2014, defendant lost his job and moved with C.R. to Palmdale. He continued to have vaginal intercourse with C.R. after the move, and she became pregnant. C.R. had never had sex with anyone else. C.R. terminated the pregnancy in October 2014, when the fetus was 11 weeks, 6 days old. DNA analysis of the fetal tissue confirmed that defendant was the father.

3. T.C. (Counts 16-17)

T.C. was born in August 2002. In 2012, she was living in Riverside County with family members and in foster homes. Just before her 10th birthday, defendant drove from Nevada to California to pick T.C. up at her foster home, then brought her back to Nevada to stay with him and C.R., her half-sister. A few days after her arrival, defendant put his finger in T.C.'s vagina. He continued putting his finger in her vagina during the rest of her trip. At the end of the trip, defendant drove her back to Riverside County.

4. Defendant's Testimony

Defendant was born on May 15, 1978. He dated his next-door neighbor Juanita on and off between 1997 and 2002, and was close to her family, including her younger sister P.B. Defendant denied ever touching P.B. inappropriately.

Defendant moved to Nevada, and towards the end of 2011, he began fighting for custody of C.R. He was awarded custody in 2012, and moved her to Nevada. Defendant denied ever touching C.R. inappropriately, threatening her, or hurting her physically. T.C. visited defendant and C.R. in Nevada, but defendant denied touching her inappropriately during that visit.

Defendant testified that he knew C.R. had terminated a pregnancy and that DNA analysis of the fetal tissue proved he was the father—but claimed he never had sexual intercourse with C.R. Rather, C.R. artificially inseminated herself with defendant's sperm so child support services would remove her from his custody and give her financial support for college.

CONTENTIONS

Defendant contends the court lacked jurisdiction over counts 3-8 and 16-17 because those offenses occurred in Nevada—and even if California had jurisdiction, Los Angeles was not the proper venue; his conviction for continuous sexual abuse is improper because he was also convicted of three discrete acts occurring within the same period; and the multiple-victim findings and several of his indeterminate sentences violate the ex post facto clause.

DISCUSSION

1. Jurisdiction and Venue

Jurisdiction refers to a court's inherent power to decide a case or issue a decree. "No person can be punished for a public offense," in California unless he is first "convict[ed] in a Court having jurisdiction thereof." (§ 681.) "Lack of jurisdiction in its most fundamental sense means an entire absence of power to hear or determine the case, i.e., an absence of authority over the subject matter or the parties. When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and such a judgment is vulnerable to direct or collateral attack at any time. [Citation.] This is a venerable rule of long standing." (People v. Vasilyan (2009) 174 Cal.App.4th 443, 450.) Venue, on the otherhand, concerns the geographical location of the court in which a prosecutor brings the case to trial. The...