Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF137376, Christian F. Thierbach, Judge.
NARES, Acting P. J.
A jury convicted Christopher Leigh Geraurd of the following seven sexual offenses: one count of aggravated sexual assault by orally copulating a child under 14 years of age and 10 or more years younger than Geraurd by force, violence, duress or menace between 2002 and 2006 (count 1: Pen. Code, § 269, subd. (a)(4)); two counts of aggravated sexual assault by raping a child under 14 years of age and 10 or more years younger than Geraurd, between 2002 and 2006 (counts 2 & 3: § 269, subd. (a)(1)); (3) two counts of aggravated sexual assault by digitally penetrating a child under 14 years of age and 10 or more years younger than Geraurd by force, violence, duress, menace or fear between 2002 and 2006 (counts 4 & 7: § 269, subd. (a)(5)); and (4) two counts of committing a forcible lewd or lascivious act upon a child under 14 years of age by force, violence, duress, menace or fear between 2002 and 2006 (counts 5 & 6: § 288, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
The court first sentenced Geraurd to the determinate middle term of six years for the count 5 forcible lewd act on a child conviction, plus a consecutive middle term of six years for the count 6 forcible lewd act on a child conviction, for a total determinate term of 12 years for those two counts. For each of the five aggravated sexual assault convictions, the court─without a defense objection and without stating reasons other than "none of this can be run concurrent pursuant to section 667.6"─imposed a consecutive indeterminate prison term of 15 years to life. Thus, the court sentenced Geraurd to a total determinate term of 12 years, plus a consecutive indeterminate term of 75 years to life.
Geraurd appeals, contending (1) six of his seven convictions─counts 2 and 3 (rape), 4 and 7 (forcible digital penetration), and 5 and 6 (forcible lewd act)─must be reversed because the prosecution failed to present substantial evidence proving he committed the underlying acts by means of force or duress, and thus the court erred by denying his section 1118.1 motion to dismiss those six counts, thereby violating his federal constitutional right to due process; (2) although victim's testimony would support a finding that he sexually assaulted her on "many more [than seven] occasions, " the evidence supports an inference that the assaults "took place on as few as three occasions" such that the consecutive sentencing mandated by section 269, subdivision (c) governing his forcible molestations convictions (counts 2, 3, 4 & 7), and section 667.6, subdivisions (d) and (e) governing his forcible lewd act convictions (counts 5 & 6), may not have been applicable, and thus the matter must be remanded for resentencing because the court erred by announcing it had no discretion to impose concurrent sentences on those counts; (3) "[a]s a result of the prosecution's strategy and argument, there is no principled way to determine from this record just what criminal acts the jurors employed to convict [him] for the aggravated lewd acts charged in [counts 5 and 6], " and thus punishment for his convictions of those two counts must be stayed under section 654 because "[t]he jurors could very well have used the same acts for those convictions as they used to convict [him in counts 1-4 and 7] of forcible rape, digital penetration, [and] oral copulation"; (4) by granting his motion under section 995 to dismiss all seven counts on the ground there was no evidence the crimes occurred in Riverside County, the court lost jurisdiction to try this case; and (5) assuming the court retained jurisdiction to "cure" the jurisdictional problem by conducting a proceeding under section 995a, Geraurd's convictions nevertheless should be reversed because the court failed to remand the case to the magistrate who presided over his preliminary hearing, as it was required to do under subdivision (b)(1) of that section, and instead allowed the prosecutor to call a detective to the stand to testify that victim told him Geraurd had molested her in Riverside County. For reasons we shall explain, we affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
Victim was 16 years of age at the time of trial in this matter. She identified Geraurd as the man who was married to her aunt.
When victim was born, she and her birth mother lived at the home of the Geraurds.
Victim later lived with her birth mother's friend (hereafter referred to as guardian), who at the time of trial had served as victim's legal guardian for 14 years. Victim referred to guardian as her mom and went over to Geraurd's house "a lot" as she was growing up.
1. First incident (in Geraurd's bedroom)
Victim testified she was about nine years old when Geraurd first touched her inappropriately. It happened in the Geraurd's bedroom at their home in Norco in Riverside County. Guardian and victim's aunt had gone somewhere, and victim had been left alone with Geraurd. She did not remember how she came to be in the bedroom with Geraurd. Geraurd took off her pants and underwear and then "kind of put[] force on [her] back]" to pull her down on top of him on the bed, facing him with her legs apart. Geraurd started "moving [her] up and down, making him satisfied." She saw Geraurd's erect penis, which had come through the zipper. His penis "full on" touched the outside of her vagina, but did not go all the way inside it. She did not want to engage in this type of behavior with Geraurd, and she did not ask him to do it. Geraurd asked her to look and listen for the sound of guardian's car through the window. At one point, some "slimy" stuff came out and landed on her stomach, and Geraurd "apologized for that" and helped wash it off. Victim stated she then dressed herself.
2. Incident in Geraurd's kitchen
Victim also testified that on another day, when she was nine or 10 years old, she was sitting on a stool and eating in Geraurd's kitchen when he came into the kitchen and began scratching her back while talking on his cell phone. When he moved his hand around to her stomach, she "asked him nicely to knock it off, " but he did not stop. Geraurd "reached down to [her] vagina area, " unzipped her pants, slid his hand inside her underwear, and put one of his fingers inside her "period hole, " which "hurt very much." Geraurd's finger was inside her "not very long" because guardian walked into the kitchen and Geraurd quickly pulled his hand out and again started scratching victim's back. That night, guardian brought the incident up, but victim did not want to tell her what Geraurd had done to her in the kitchen because she wanted guardian to "have her best friend[, victim's aunt, ] with her, " and she did not want to be responsible for anything.
3. Multiple incidents in Geraurd's garage
Victim indicated that "many, many" sexual molestation incidents occurred in Geraurd's garage. His garage was "the main area" where he did it. Geraurd would close the doors and lock the one that could be locked. He would "rub up against [her], " lift her shirt up above her breasts, suck her breasts, and put his finger inside her "period hole."
Victim testified that Geraurd would also pull down her pants and panties and, while holding her by her waist, rub her body up and down against his body. His exposed penis, which was often erect, would come into contact with the middle of her vagina, much like had happened in the bedroom except he was standing up. When he was moving her up and down, Geraurd's penis would "go in between the two lips" of her vagina.
The prosecutor asked victim, "Now, when [Geraurd] would move you up and down with his penis exposed and your vagina exposed, is there any way you can give us a specific number as to how many times that happened?" She replied, I can't give you a [specific] number because I didn't keep count. But it was pretty often, like pretty much." The prosecutor asked, "More than 20 times?" Victim responded, "Yes."
4. Incidents in Geraurd's front bathroom
Geraurd also molested victim in his front bathroom. She testified that Geraurd would "do the same incidents like in the garage." He would suck her breasts and move her body up and down against him, but he never put his fingers inside her there. Geraurd would molest her there only when no one else was home, and he would keep the bathroom door open "because he wanted to hear somebody come walking in the door."
5. Two incidents in Geraurd's barn
Victim also testified about two incidents in which Geraurd molested her in the barn behind his house where he kept hay for the horses. The barn door could only be locked from the outside, so Geraurd would close the door and jam an L-shaped object "in there" to keep the door closed. Geraurd would rub her body up and down against his while they were standing, suck her breasts, and put his finger inside her vagina.
6. Forcible oral copulation
Victim testified that Geraurd twice put his penis into her mouth when she was between nine and 13 years of age. She "didn't really like it" because it was "disgusting." Once it happened in Geraurd's front bathroom and the other time it happened in his garage.
In the bathroom, Geraurd "put his hand on [her] head" and guided her. Victim described how he then forced her to have oral sex:
"[O]nce I started doing it, I didn't want to do it anymore. My body rejected [it]. I was kind of like gagging, throwing up a little bit, because it was rejecting the whole thing. And I tried to get my head out from [the] position I was in. He would not let me. His hand was just too strong for me, and I continued until I had enough, until I got my hand and removed his hand from my head." (Italics added.)
Geraurd also put his penis in victim's mouth once in the garage. Although she made gagging noises, Geraurd did not stop. Victim stated that "[h]e stood there with his hand on top of [her] head, " and when she "started pulling away, " he "would not let [her] go." (Italics added.) When she tried to get away, Geraurd "put a little force on his hand." (Italics added.)
7. Victim's reports to friends
The sexual assaults stopped when victim was in the seventh grade. When she was in the eighth grade, she told two friends about what Geraurd had done to her. Victim made the first friend promise not to tell anyone and, to victim's knowledge, she never did. She also told a second friend. Victim indicated that she was unaware of the proper terminology as she was just in the eighth grade at the time, so she told her friends Geraurd was "raping" her. She later learned from an adult the difference between "raping" and "molesting."
Victim testified that after she told the second friend that Geraurd had been raping her, they had a "huge" argument because the friend said she was going to tell the school counselor out of concern for victim's safety. Victim stated she did not want her friend to tell anyone because it would "ruin" the relationship between guardian and victim's aunt. However, the friend did tell, and victim was called to the office of her counselor. The counselor asked her whether it was true and said they could have Geraurd arrested if it was. Victim testified she lied to the counselor in order to protect her family, but then told the counselor not to call her mother (referring to guardian). However, the counselor told victim she had to tell her guardian because victim had told "too big of a lie." That night victim finally told guardian the truth about what Geraurd had been doing to her.
8. Victim's sister (Evid. Code, § 1108 )
Victim's sister was 23 years of age when she testified in this matter for the prosecution under Evidence Code section 1108. She identified Geraurd as her uncle and stated she had known him her whole life. Victim and her sister had the same biological mother.
When victim's sister was seven years old, she went to live with the Geraurds at their house in Norco in Riverside County. Geraurd began entering the bathroom after victim's sister finished showering to dry her off, although she needed no assistance. This made her feel uncomfortable and she told him she could dry herself off, but he continued going into the bathroom to dry her off after she showered. When asked whether Geraurd's bare hand ever touched any part of her body, victim's sister replied, "Not that I can remember." She testified that she spoke with a police officer over the phone in 2007 and told him what Geraurd had done to her. When asked whether she recalled telling the police that Geraurd would place his bare hand on her vagina after he dried her off, victim's sister responded, "I don't remember saying that."
During the first Christmas she spent living with Geraurd and his family, victim's sister told her grandmother that Geraurd had been going into the bathroom to dry her off and it made her uncomfortable. She stated that her grandmother told her not to tell that to anyone because no one would believe her. Victim's sister was "pretty upset" that something was happening to her and nobody would believe her. She did not tell anyone else what Geraurd was doing to her.
Victim's sister stated she was "not very close" to victim as they were growing up. Victim's sister was eight or nine years old when victim was born. After victim's sister moved out of Geraurd's house when she was nine or 10 years old, she and victim never lived in the same home again.
Detective Michael Portillo of the Riverside County Sheriff's Department testified he spoke to victim's sister by telephone on May 4, 2007, as part of his investigation into Geraurd's case. She told him Geraurd used to dry her off with a towel after she took a shower or bath, and then he would touch her vaginal area while she was still naked. She said this would happen three or four times each week for about two years.
9. Child Sexual Assault Accommodation Syndrome
Veronica Thomas testified she was a psychologist who had previously testified about Child Sexual Assault Accommodation Syndrome (CSAAS) at least 70 times. She explained that CSAAS was not really a syndrome, but a "therapist's tool" used by psychologists and psychiatrists to understand "discrepant reports" often given by people who had been molested by people they knew. Thomas testified about the five possible components of CSAAS: secrecy, helplessness and depression, entrapment and accommodation, disclosure, and recanting or retraction. She stated it is very common for a child who was molested multiple times over a number of years to have difficulty remembering everything that happened each time. Thomas had not interviewed either victim or victim's sister, nor had she read any of the reports in this case. She was not offering an opinion about whether victim was telling the truth. Thomas indicated that most victims of child molestation were molested by people they knew, and CSAAS helps professionals and laypersons to understand that victims of such molestation do not always tell someone about it, and that when they do tell, "they may tell a variety of different kinds of things." CSAAS is not an investigative tool or a diagnosis, and it is not a way to determine whether a child was molested. Truthfulness is not a component of CSAAS.
10. Guardian's testimony
Guardian testified that she had known victim's biological mother since the mother was about 11 years old and had been a good friend of victim's aunt for more than 30 years. She referred to victim as her daughter.
Guardian was also a friend of Geraurd, and he was at home most of the times she visited victim's aunt after Geraurd and the aunt were married. Guardian went to Geraurd's house two or three times a week when victim was between nine and 13 years old.
Guardian stated she had been unaware of any lies victim had told until a school meeting when she learned about victim's crying in class and falsely saying that some of her relatives had died. She asked victim why she had lied, and victim told her she did not know. Guardian testified that victim lying about deaths in the family, falsely claiming guardian was hitting her, and disclosing the molestation all occurred within a three-week period.
Guardian testified that when victim was nine or 10 years old, guardian and victim's aunt were sharing a bottle of champagne, and guardian went to the kitchen and saw victim sitting on a stool and Geraurd rubbing her "crotch area." Geraurd looked shocked, "[l]ike a deer in the headlights, " and he immediately moved his hand to his side. Guardian asked, "What the hell is going on in here?" Geraurd remained silent. Victim said Geraurd was just scratching her back, and Geraurd started moving his hand back and forth on her back. On the way home, guardian told victim that no one was supposed to touch her, not even her uncle (Geraurd). Guardian told victim it was okay to talk about what happened, but she did not do so.
Guardian also testified that when victim was 14 years old, she told guardian that Geraurd stuck his finger up her "period hole" during the incident in the kitchen.
B. The Defense
A friend of victim's testified that victim was crying at school one day and told her that her uncle had raped her. She reported the information to the school counselor. On cross-examination, she stated that victim wanted to keep it secret because she loved her family and did not want to cause a split in the family.
Detective Portillo testified that he reviewed the initial report generated by the first deputy assigned to this matter. According to that report, guardian told the deputy that there had been recent problems at school with victim and her lying about her relatives dying, and about physical abuse by guardian. Detective Portillo did not contact the counselor or any other school official to talk about the false allegation of physical abuse by guardian, and he did not do any follow-up investigation about the problem with lying. According to the report, victim came in to the station for a recorded RCAT interview, which Detective Portillo arranged but was unable to attend. Detective Portillo reviewed the tape recording and elected to have a follow-up interview with victim because he felt there were insufficient details in the RCAT interview, and he wanted to establish some sort of corroboration for her allegations against Geraurd. When asked whether victim gave him any details that he could have independently verified, Detective Portillo replied, "Other than [victim's] speaking with [guardian], there wasn't much that I could do because it was an ongoing investigation, without compromising my investigation" as he did not want to "tip somebody off."
Riverside Child Assessment Team.
Detective Portillo stated that he interviewed guardian before the RCAT interview because victim told him guardian had witnessed an incident that happened in Geraurd's kitchen. Detective Portillo also indicated that victim told him Geraurd had inserted his finger into her vagina on at least a couple of occasions and it hurt, but Detective Portillo did not arrange any sort of medical exam. During the RCAT interview, victim talked about only one or two specific incidents and kept trying to get away from talking about what happened. Eventually, she was specific about the things that occurred during the first time she was molested.
On cross-examination, Detective Portillo explained that he did not arrange a medical examination for victim because the last molestation incident had occurred about a year previous, and he felt such an intrusive examination would have been traumatic for her and "the likelihood of finding any evidence would be very slim."
Victim's school counselor testified about victim's false report that family members had died and her allegation that guardian was hitting her. The counselor talked to victim about a rumor that she had been raped. Victim told her the rumors were not true. The counselor stated she did not make a report to child protective services, but did encourage victim to get some counseling.
Maneet Gill, a social worker at the Riverside County Department of Social Services, worked for child protective services and interviewed victim about her false allegation that guardian was physically abusing her. Victim admitted the allegation was false. She also told Gill she did not know why she lied about guardian, but said she was angry with her for no particular reason and she felt like she needed attention. Victim asked whether her lying would affect guardian's ability to adopt her, and Gill replied it could if she continued to make false allegations. Victim never mentioned being sexually molested.
A niece of Geraurd's who was 33 years of age at the time of Geraurd's trial testified she had known him all her life and he never made her feel uncomfortable. She trusted Geraurd around her young son and daughter. She did not believe the allegations made against him.
The niece's mother (and a sister of Geraurd's wife) testified she had known Geraurd for more than 30 years, and the charges against him were inconsistent with the man she knew. She stated she knew victim, who was not trustworthy. She also stated she knew victim's sister, who had a reputation for being very untruthful.
When asked whether she had ever seen him act inappropriately with any minor in her presence, she described an incident in which Geraurd "titty-twist[ed]" one of her daughters. She stated, "It's not like he was doing anything. It was just... games, " and Geraurd "didn't realize what he was doing."
Another of her daughters testified she was the recipient of Geraurd's "titty-twister" in his kitchen. She had never seen Geraurd inappropriately touch anyone before or after that incident and had never felt unsafe around him.
Geraurd's brother-in-law testified he had known Geraurd for about 35 years. He characterized as outrageous the molestation allegations against Geraurd. The allegations were not consistent with the Geraurd he knew. On recross-examination, he agreed that a man of good character would not dry off a 10-year-old girl against her will after a bath.
Geraurd testified in his own defense and stated he was 56 years old. He had heard victim's sister's testimony and denied drying her off after a bath or shower. He also denied touching her vagina. He did acknowledge walking into the bathroom, telling "possibly four young kids" in the bathtub to stand up, rinsing them all off with the "shower hose gismo, " and emptying the tub. He denied that anything happened that day that was sexually motivated.
Geraurd stated that victim lived with them for a couple of years, and he saw her whenever guardian brought her over to the house. He would play basketball with her or put her on the lawn tractor and drive her around. He testified he may have been alone with her in the garage or barn, but nothing sexual ever happened there or in the front bedroom, kitchen, master bedroom, or anywhere else. He never kissed her in a romantic way or showed her his penis.
On cross-examination, Geraurd admitted the "titty-twister" incident and grabbing his niece's breast. The prosecutor asked, "By saying 'titty-twister, ' are you trying to make it seem like that's no big deal?" Geraurd replied, "It was no big deal." The prosecutor then asked him, "Grabbing a 14-year-old girl's breast is no big deal, against her will?" Geraurd responded, "I don't remember doing it; neither does she." When asked whether that was the only time he grabbed a juvenile's breast in that fashion, Geraurd first replied, "As far as I know, " but then said, "I thought I had given [victim's birth mother] a titty-twister" when the prosecutor asked him to "take a second to think about it." Geraurd acknowledged that she had felt it was inappropriate. The prosecutor then asked him, "That doesn't sound like a game, does it?" Geraurd replied, "I believe she was playing a game with somebody else." He indicated he did not remember the incident, and he stated, "I have no idea, " when the prosecutor asked him whether he was "pretty drunk that day."
When Geraurd was asked about guardian's testimony that he had a "deer-in-the-headlights look" when she walked into the kitchen and he had his arm around victim's midriff, " he replied it did not happen "as far as I know."
Geraurd's wife testified the allegations against him were inconsistent with the Geraurd she knew. She stated victim might do something to hurt guardian emotionally because guardian was "very controlling." Geraurd's wife never saw any indication that victim was afraid of Geraurd or that she did not want to be around him. She and Geraurd had a normal sexual relationship, and he had not exhibited an unusual interest in victim or victim's sister.
On cross-examination, she testified she had never seen Geraurd do anything that was sexually inappropriate, and she did not believe he would grab the breasts of either his niece or victim's birth mother.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (COUNTS 2-7)
Geraurd first contends that six of his seven convictions─i.e., counts 2 and 3 (forcible rape: § 269, subd. (a)(1)), 4 and 7 (forcible digital penetration: § 269, subd. (a)(5)), and 5 and 6 (forcible lewd act on a child under the age of 14: § 288, subd. (b)(1))─must be reversed because there was no substantial evidence at the close of the prosecution's case-in-chief to show he committed the underlying acts by means of force or duress, and thus the court erred by denying his section 1118.1 motion to dismiss those six counts after the People rested, thereby violating his federal constitutional right to due process. We reject this contention.
A. Background
After the People rested their case, defense counsel made a motion for acquittal under section 1118.1 as to each of the seven counts. With respect to the rape counts, the prosecutor argued that victim's testimony showed that Geraurd's erect penis had been pressed against the middle of the lips of her vagina, while moving up and down, with such force that she felt it was not a casual contact, and thus an inference could be drawn that "penetration, however slight, did occur" as the statutory definition of rape required. The court gave the prosecutor until the following morning to provide some case law to support his argument that all that was necessary was the penetration of the vaginal lips.
The next morning, the court indicated it had reviewed some case law, including People v. Karsai (1982) 131 Cal.App.3d 224, 233-234, overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8, which held that penetration of the labia majora was sufficient to constitute penetration for purposes of the statutory definition of rape. The court denied the section 1118.1 motion with respect to the rape allegations, finding that, under Karsai, "what [victim] testified to was sufficient to constitute penetration."
Geraurd's counsel complained that Detective Portillo had testified at the preliminary hearing about seven "very specific acts" based on his interview of victim, but at trial "[o]nly two or three of those acts were repeated on the stand [with] any identifiable detail, " and thus he was "in the position of having to defend against these vague allegations, with no indication of when they happened."
After further discussion, the court denied Geraurd's section 1118.1 motion as to the remaining four counts, finding that "sufficient evidence has been presented to withstand [a section] 1118.1 motion."
Over a defense objection, the court then granted the prosecution's request to amend all seven counts to allege the underlying incidents occurred between the years 2002 and 2006, noting that victim "testified to these acts occurring many, many times over the course of this four-year period." The court found that the granting of this request to amend "would not unduly prejudice [Geraurd] because the testimony was presented at the preliminary hearing" and "all these acts occurred between age nine and 13, within that four-year window, " and there was no statute of limitations issue with respect to those counts.
B. Applicable Legal Principles
In People v. Cole (2004) 33 Cal.4th 1158, 1212 (Cole), the California Supreme Court explained that, "[i]n reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence─that is, evidence that is reasonable, credible, and of solid value─from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt."
Cole also explained that, "[i]n ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, '"whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged."'" (Cole, supra, 33 Cal.4th at pp. 1212-1213.)
On appeal, we independently review the trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction. (Cole, supra, 33 Cal.4th at p. 1213.) "We also determine independently whether the evidence is sufficient under the federal and state constitutional due process clauses." (Ibid.)
C. Analysis
Geraurd acknowledges on appeal that the prosecution presented sufficient evidence to prove beyond a reasonable doubt that "he employed 'force' to accomplish the act of oral copulation underlying [c]ount No. 1." Victim testified that Geraurd forced her to orally copulate him twice─once in the front bathroom and once in the garage. Specifically, she stated that during the incident in the bathroom, Geraurd put his hand on her head to "lead the way" but, when she gagged and "tried to get [her] head out from [the] position [she] was in, " Geraurd "would not let [her]" and "[h]is hand was just too strong for [her]." This testimony is sufficient to show Geraurd used force to make victim orally copulate him as charged in count 1.
Victim also testified that during the second incident, in the garage, Geraurd did not stop when she began to gag. "He stood there with his hand on top of [her] head, " and when she "started pulling away, " he "would not let [her] go." Victim's testimony about either incident is sufficient to sustain Geraurd's conviction of aggravated sexual assault by orally copulating victim by force.
Geraurd, however, claims that " 'force' was not proven with respect to the balance of charged offenses" of which he was convicted. For reasons we shall explain, we conclude substantial evidence supports his convictions of counts 2 through 7.
1. Counts 2 and 3 (forcible rape)
Regarding his conviction of the two forcible rape offenses (§ 269, subd. (a)(1)) charged in counts 2 and 3, Geraurd contends "there was no showing that [he] overcame [victim's] will by means of force to accomplish the rubbing of his penis against he[r] vagina." (Italics added.) In support of this contention, he acknowledges victim "said there were more than 20 instances of vaginal intercourse, as that term is defined by law." (Italics added.) He also asserts that, in describing the first of those incidents, which the record shows occurred in Geraurd's bedroom, Victim "said nothing more than that [he] took her clothes off and she 'ended up' on top of [him] in his bedroom" (italics added), and "[t]here is no suggestion" in her testimony that he "forced her clothes off."
The force required to establish a forcible rape in violation of section 261, subdivision (a)(2) (and thus an aggravated sexual assault of a child through forcible rape in violation of section 269, subdivision (a)(1)) is force that is sufficient "to overcome the will of the victim to thwart or resist the attack." (People v. Griffin (2004) 33 Cal.4th 1015, 1027.) In Griffin, the California Supreme Court explained that "[t]he gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Id. at p. 1027.) The Griffin court also explained that "the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the will, can support a forcible rape conviction." (Ibid.)
Section 269, subdivision (a)(1) provides: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2)... of subdivision (a) of Section 261."
Here, victim's testimony shows she was only about nine years old and alone with Geraurd in his bedroom when he raped her. She testified that Geraurd took off her pants and underwear and "put[] force on [her] back]" to pull her down on top of him on the bed, facing him with her legs apart. Her testimony shows that Geraurd kept her on top of him by "holding [her] back, " and he "mov[ed her] up and down" with his penis "full on" touching her vagina, but not going all the way inside, until he ejaculated.
Victim's foregoing testimony amply supports Geraurd's conviction of one count of forcible rape as it shows he used sufficient force to "overcome the will of the victim to thwart or resist the attack" and accomplish the sexual penetration. (Griffin, supra, 33 Cal.4th at p. 1027.) Specifically, victim's testimony, which the jury clearly believed, supports his conviction. Geraurd's meritless claim that victim's testimony shows "nothing more" than that he took her clothes off and she "ended up" on top of him without his use of force is not supported by the record.
Substantial evidence also amply supports Geraurd's second rape conviction. When the prosecutor asked victim how many times Geraurd moved her up and down with his exposed penis touching her exposed genitalia, she replied that she did not keep count, but it was more than 20 times. She testified he molested her "many, many" times in the garage after he closed doors and locked the one that could be locked. She gave detailed testimony about one specific incident in the garage in which he pulled down her pants and underwear and, while holding her against him by the waist, rubbed her body up and down with his exposed and erect penis in between the lips of her vagina, "[j]ust like the same incident in the bedroom" but standing up.
The foregoing testimony shows Geraurd used sufficient force during this incident in the garage to overcome victim's will to thwart or resist the attack and to accomplish the felonious sexual penetration. (See Griffin, supra, 33 Cal.4th at p. 1027.)
The record also shows victim testified that Geraurd moved her body up and down against his both in the barn, where "the same things that happened in the garage" also happened, and in the front bathroom.
We conclude that substantial evidence supports Geraurd's forcible rape convictions (counts 2 & 3), and thus the court did not err or violate his federal constitutional right to due process by denying his motion for acquittal under section 1118.1 with respect to these counts.
2. Counts 4 and 7 (forcible digital penetration)
We also reject Geraurd's contention that the evidence is insufficient to support his conviction of the two forcible digital sexual penetration offenses charged in counts 4 and 7 because the prosecution presented no substantial evidence at the close of its case-in-chief showing he committed the underlying acts by means of force or duress.
The force required to establish an aggravated sexual assault of a child through forcible sexual penetration in violation of section 269, subdivision (a)(5) is "force which is sufficient to overcome the victim's will." (In re Asencio (2008) 166 Cal.App.4th 1195, 1200 (Asencio).)
Here, the evidence is sufficient to support the jury's determination that Geraurd used force to accomplish forcible, digital sexual penetration against victim's will as charged in counts 4 and 7. Victim testified that during the "many, many" incidents in the garage when he would close and lock the door, hold her naked against him, suck her breasts, and put his erect penis between the exposed lips of her vagina, he would also "finger" her vagina, which she called her "period hole." As we have already concluded, substantial evidence supports the jury's determination that Geraurd forcibly raped victim in the garage, we also conclude victim's testimony is sufficient to support a finding that Geraurd's digital penetration of her vagina in the garage was similarly forcible.
Victim's testimony regarding the incident in Geraurd's kitchen, corroborated by guardian's testimony as discussed, ante, is sufficient to support a finding that Geraurd used his arm to hold victim on the kitchen stool after she told him to stop, and to then digitally penetrate her vagina against her will. We conclude that substantial evidence supports Geraurd's digital penetration convictions (counts 4 & 7) and that the court did not err or violate his federal constitutional right to due process by denying his motion for acquittal under section 1118.1 with respect to these counts.
3. Counts 5 and 6 (forcible lewd act)
Last, we reject Geraurd's contention that the evidence is insufficient to support his conviction of the two forcible lewd act offenses (§ 288, subd. (b)(1)) charged in counts 5 and 6.
Section 288, subdivision (a) provides: "Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony...." Subdivision (b)(1) of that section provides: "Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony...."
The force required for a conviction under section 288, subdivision (b)(1) is "'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (People v. Neel (1993) 19 Cal.App.4th 1784, 1790.) Stated differently, the force requirement is satisfied when the defendant uses any force that is "different from and in excess of the type of force... used in accomplishing similar lewd acts with a victim's consent." (Ibid.) The force required under section 288, subdivision (b) "includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005; see also Neel, supra, 19 Cal.App.4th at p. 1790 ["defendant's acts of forcing the victim's head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then 'making it go up and down'" constituted forcible lewd conduct].)
Here, the evidence is sufficient to support the jury's determination that Geraurd committed two forcible lewd acts upon a child under the age of 14 as charged in counts 5 and 6. As already discussed, victim testified that Geraurd forced her to orally copulate him twice: once in the front bathroom, and once in the garage. She indicated that she tried to pull her head away each time, but each time Geraurd used his hand to prevent her from pulling away. Geraurd admits the jury used one of those two incidents to properly convict him of one count of aggravated sexual assault by orally copulating victim by force. Although the second incident of forcible oral copulation did not result in a second conviction of forcible oral copulation because the People charged him with only one such offense, the strong evidence showing Geraurd used force a second time to coerce victim into orally copulating him is sufficient to sustain one of his two forcible lewd act convictions. Similarly, the strong evidence (discussed, ante) showing that Geraurd on many occasions used force in the garage to sexually molest victim is sufficient to sustain his second forcible lewd act conviction.
In conclusion, we hold that substantial evidence supports Geraurd's convictions of the offenses charged in counts 2 through 7. We thus also conclude the court did not err or violate his federal constitutional right to due process by denying his motion for acquittal under section 1118.1.
II. CONSECUTIVE SENTENCING
Geraurd next contends that, although the evidence would support a finding that he sexually assaulted victim on "many more" than seven occasions, "the most that can be said beyond a reasonable doubt about the jurors' verdict is that [it] shows a maximum of three separate occasions on which the [seven] crimes occurred" (italics added), and thus the court "retained discretion to impose concurrent terms on the four remaining counts of conviction" and "[i]ts failure to exercise that discretion merits remand."
Specifically, Geraurd asserts "it is not possible to determine beyond a reasonable doubt which of the numerous unlawful acts supported by substantial evidence the jurors used to convict [him] of the seven counts charged in the information." He also asserts the evidence supports an inference that the seven offenses of which he was convicted took place on only three occasions, two of which "involved vaginal penetration, digital penetration, and a lewd act (kissing, sucking breasts, rubbing the vagina, the penetrations themselves), " and a third that "involved oral copulation, " such that the consecutive sentencing mandated by sections 269, subdivision (c) governing his five aggravated sexual assault of a child convictions (counts 1, 2, 3, 4 & 7), and 667.6, subdivisions (d) and (e) governing his forcible lewd act on a child convictions (counts 5 & 6), may not have been applicable; and thus the court erred by announcing it had no discretion to impose concurrent sentences on those counts, and the matter must be remanded for resentencing. He contends the jurors "might have just focused on as few as three [occasions] in reaching their verdict and then stopped because they supported seven convictions." (Italics added.) These contentions are unavailing.
At the sentencing hearing, the court summarily stated that, "none of this can be run concurrent pursuant to [section] 667.6."
A. Applicable Legal Principles
Aggravated sexual assault of a child occurs when a person commits specified sex crimes─including (among others) forcible rape, forcible oral copulation, and forcible sexual penetration─on a child who is under the age of 14 and seven or more years younger than the defendant. (§ 269, subd. (a)(1), (4) & (5), respectively.) The punishment for aggravated sexual assault of a child is a prison term of 15 years to life. (§ 269, subd. (b).) The statute also provides that the court "shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes... involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6 ." (§ 269, subd. (c), italics added.)
Under section 667.6, subdivision (d), which is referenced in the foregoing italicized portion of section 269, subdivision (c), the court "shall" sentence a defendant to a "full, separate, and consecutive term" for each violation of an offense specified in section 667.6, subdivision (e), "if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6, subd. (d), italics added.)
Section 667.6, subdivision (e) provides that "[t]his section shall apply to" (among other things) rape (§ 261, subds. (a)(2), (3), (6) & (7)), a lewd or lascivious act (§ 288, subd. (b)), oral copulation (§ 288a, subds. (c)(2) & (3), (d) & (k)), and sexual penetration (§ 289, subds. (a) & (g)).
In determining whether the crimes against a single victim were committed on "separate occasions, " the court must decide whether the defendant had "a reasonable opportunity to reflect upon his or her actions" between the commission of each sex crime, but "nevertheless resumed [his] sexually assaultive behavior." (§ 667.6, subd. (d).) "Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Ibid.)
B. Analysis
The record does not support Geraurd's principal claim that the most that can be said beyond a reasonable doubt about the verdicts is that they "show[] a maximum of three separate occasions on which the [seven] crimes occurred." Victim testified that Geraurd moved her body up and down against his body, with his penis and her vagina both exposed, more than 20 times. As discussed in detail, ante, in the factual background, victim testified that Geraurd sexually assaulted her in his bedroom, the kitchen, the garage, the front bathroom, and the barn. She stated the sexual assaults in the garage occurred "many, many" times. On appeal, Geraurd concedes that "there was evidence in this case of many, many molestation acts that were committed on many, many different occasions."
Geraurd's assertion that the jurors "might" have just focused on only three occasions when he sexually assaulted victim reveals his entire claim is based on speculation. Even if the jury focused on only a few of the admittedly numerous occasions when he sexually assaulted victim when she was a young and vulnerable child, we are persuaded it is inconceivable the court on remand would reverse its decision to impose consecutive sentences and instead impose concurrent sentences. In determining whether the sex crimes Geraurd committed against victim were committed on "separate occasions" (§ 667.6, subd. (d)), the court would be statutorily required to decide whether Geraurd had "a reasonable opportunity to reflect upon his... actions" between the commission of each sex crime and "nevertheless resumed [his] sexually assaultive behavior." (Ibid.) Here, it is undisputed that Geraurd committed many more than seven sexual assaults on victim over a period of several years, and overwhelming evidence establishes he had "a reasonable opportunity to reflect upon his... actions" between the commission of each sex crime within the meaning of section 667.6, subdivision (d), and "nevertheless resumed [his] sexually assaultive behavior." Furthermore, the record reflects numerous aggravating factors that would support the imposition of consecutive sentences, such as the vulnerability of his young victim (Cal. Rules of Court, rules 4.421(a)(3), 4.425(b)) and (as the court found) his taking advantage of a position of trust or confidence to commit the offenses (rule 4.421(a)(11)), any one of which would suffice.
All further rule references are to the California Rules of Court.
We conclude a remand for resentencing for the purpose of requiring the court to exercise discretion and reconsider its decision to impose consecutive sentences, when the record discloses no reasonable probability the court in the exercise of that discretion would reverse its sentencing decision, would be "an idle and unnecessary, if not pointless, judicial exercise." (People v. Coelho (2001) 89 Cal.App.4th 861, 889 (Coelho).)
III. SECTION 654 (COUNTS 5 & 6)
Geraurd next contends that, "[a]s a result of the prosecution's strategy and argument, there is no principled way to determine from this record just what criminal acts the jurors employed to convict [him] for the aggravated lewd acts charged in [counts 5 and 6], " and thus punishment for his convictions of those two counts must be stayed under section 654 because "[t]he jurors could very well have used the same acts for those convictions as they used to convict [him in counts 1-4 and 7] of forcible rape, digital penetration, [and] oral copulation." We reject this contention.
A. Section 654
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
If a defendant suffers two convictions, and punishment for one is barred by section 654, that section requires that the sentence for one conviction be imposed and that the other be imposed and then stayed. (People v. Deloza, supra, 18 Cal.4th at pp. 591-592.)
B. Analysis
Geraurd again resorts to speculation to raise an essentially unsupported claim on appeal, this time his claim that punishment for both of his convictions of committing a forcible lewd or lascivious act upon a child under the age of 14 years (§ 288, subd. (b)(1)) as charged in counts 5 and 6 should be stayed under section 654 because the jury "could" have unanimously agreed to convict him of those two counts based upon the same sexual acts that resulted in his conviction of the remaining five counts of aggravated sexual assault upon a child under the age of 14 years charged in counts 1, 4, 5, 6, and 7.
In support of this claim, Geraurd cites Coelho, supra, 89 Cal.App.4th at page 883, for the proposition that "[a] jury may proceed chronologically through the acts shown and, when they run out of counts to convict the defendant of committing, stop considering any other acts." Again relying on Coelho, Geraurd asserts that, "since there is no way to tell whether the jurors used the same acts to convict [him of counts 5 and 6] that it used to convict [him of] the balance of charges, " this court "should presume they did so based on the rule of lenity." (Italics added.)
Under the "rule of lenity, " which the California Supreme Court has characterized as an "interpretive policy or guideline" for the interpretation of ambiguous penal statutes, courts "generally 'construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit....'" (People v. Garcia (1999) 21 Cal.4th 1, 10, italics added.)
Under the particular circumstances presented in the instant case, we reject for several reasons Geraurd's contention that, for purposes of section 654, this court should presume under the rule of lenity that the jury unanimously agreed to convict him of the two counts of forcible lewd or lascivious conduct with a child under the age of 14 years (counts 5 & 6) based upon the same sexual acts that resulted in his conviction of the five counts of aggravated sexual assault upon a child under the age of 14 years (counts 1, 4-7). First, we have already concluded that, given the aggravating circumstances in this case, a remand for resentencing for the purpose of requiring the court to exercise discretion and reconsider its decision to impose consecutive sentences would be an idle and unnecessary, if not pointless, judicial exercise, as the record discloses there is no reasonable probability the court in the exercise of that discretion would reverse its sentencing decision.
Second, given Geraurd's own admission on appeal that "there was evidence supporting the finding of many more occasions upon which [he] acted to molest [victim], " which is fully supported by the trial record, application of the rule-of-lenity presumption in this case would unreasonably conflict with the purpose of section 654 to ensure the defendant's punishment will be commensurate with his criminal culpability. (See People v. Kramer, supra, 29 Cal.4th at p. 723.)
Third, Geraurd's reliance on Coelho is misplaced as that case involved the scope of a trial court's discretion to impose consecutive or concurrent sentences under the Three Strikes law (§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7)). It did not involve application of section 654. (See Coelho, supra, 89 Cal.App.4th at pp. 864-865.)
Given both the heinous nature of Geraurd's many aggravated sexual assaults upon victim over an extended period of time when she was a child and the overwhelming evidence of his criminal culpability, we conclude the rule-of-lenity presumption is inapplicable under the circumstances presented in this case. As Geraurd's claim of sentencing error under section 654 is based only on speculation, we hold he has not met his burden of showing that his punishment for his convictions of counts 5 and 6 should be stayed under that section.
IV. JURISDICTION
Last, Geraurd asserts two related claims. First, he claims the court lost jurisdiction to try this case by granting his pretrial motion under section 995 to dismiss all seven counts on the ground no evidence was presented at the preliminary hearing to establish the crimes occurred in Riverside County. Second, he claims that, assuming the court retained jurisdiction to "cure" the jurisdictional problem by conducting a proceeding under section 995a, his convictions nevertheless should be reversed because the court failed to remand the case to the magistrate who presided over his preliminary hearing, as it was required to do under subdivision (b)(1) of that section, and instead allowed the prosecutor to call Detective Portillo to the stand to testify that victim told him Geraurd had molested her in Riverside County.
Citing section 999a, the People respond by arguing these claims are moot and not cognizable on appeal because Geraurd failed to file a pretrial petition for writ of prohibition. We conclude the proper vehicle for raising Geraurd's claims was a pretrial petition for writ of prohibition under section 999a, and his claims are not cognizable on appeal because he failed to file such a petition.
A. Background
1. Preliminary hearing
The preliminary hearing in this matter was held on October 5, 2007. It is undisputed that no evidence was presented to establish that the charged offenses were committed in Riverside County. The record shows that although Detective Portillo testified victim told him that Geraurd molested her in Geraurd's home and barn, Detective Portillo did not state the location of Geraurd's property.
The preliminary hearing was conducted by the Honorable Eddie C. Sturgeon (judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
2. Geraurd's section 995 motion and the section 995a, subdivision (b)(1) proceeding
On March 20, 2009, Geraurd brought a pretrial motion under section 995 to dismiss counts 8 through 13 of the information on the grounds that (1) insufficient evidence had been presented at the preliminary hearing to support those charges, which concerned victim's sister because the People failed to establish "the jurisdiction in which the crimes allegedly occurred"; and (2) the charges were barred by the applicable statutes of limitations. The People filed written opposition requesting an opportunity to briefly reopen the preliminary hearing under section 995a, subdivision (b)(1) to present evidence concerning the location where the charged crimes against victim's sister allegedly occurred.
On April 6, 2009, the court conducted a hearing on Geraurd's section 995 motion. The court found that "no jurisdiction was ever established at the prelim[inary hearing] for either of the alleged victims here" because there was no evidence "to establish any of this happened in the County of Riverside." The court observed that the lack of testimony about the location where the alleged sex offenses occurred "was a minor technical glitch" that could be cured under section 995a, subdivision (b)(1) (discussed, post).
The court told the prosecutor he could "proceed via [section] 995a with respect to the establishment of jurisdiction, " and the prosecutor called Detective Portillo to the stand. Seeking clarification, defense counsel asked the court whether it was granting the section 995 motion "at least as to the jurisdictional issue." The court responded, "Yeah. I think that's the only way we get to [section] 995a."
Detective Portillo then testified that victim told him Geraurd had molested her in Riverside County. The court found "the jurisdictional issue ha[d] been cured" with respect to counts 1 through 7 (which involved victim) and 8 through 13 (which involved victim's sister).
The following morning, in a ruling not at issue in this appeal, the court granted Geraurd's section 995 motion as to counts 8 through 13 on the ground of insufficiency of the evidence. The court then revisited the jurisdictional issue and stated:
"Now, there was a technical glitch yesterday. The procedure that we followed is technically a minor omission, if you will. [S]ection 995a requires that the matter be remanded back to the magistrate who issued the holding order. He is not here. He was an assigned judge─[a] retired judge sitting on assignment. He's not sitting. I checked. He's not sitting with the court now. I have no idea where he is. [¶] We can do this by one of two things: Stipulate nunc pro tunc because of that the Court or both the parties are in agreement that the Court conducted the proceeding it did yesterday. [¶] Or, if you don't want to so stipulate, it would be my intention to rule that because that magistrate is unavailable this Court does have the power and authority to conduct the hearing that was undertaken yesterday." (Italics added.)
Defense counsel objected "[f]or the record, " adding that, "I noticed the same information when I was doing my research last night, and I'll just leave it at that."
The court then issued its ruling:
"The Court, because the magistrate who presided over the preliminary hearing was a retired judge sitting on assignment, his whereabouts [are] unknown─he's not sitting with the court now. This Court feels that under the circumstances, because that magistrate was unavailable, I did have the authority to conduct a [section] 995a proceeding that was conducted yesterday. And defense counsel's objection is overruled."
B. Statutory Framework
Section 995, subdivision (a)(2)(A) provides that, "[s]ubject to subdivision (b) of Section 995a , the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: [¶]... [¶] (2) If it is an information: [¶] (A) That before the filing thereof the defendant had not been legally committed by a magistrate." (Italics added.)
Subdivision (b) of section 995 provides that, "[i]n cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed." (Italics added.)
Section 995a, subdivision (b)(1) provides:
"Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence. The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings. When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected." (Italics added.)
Section 999a, which governs the time within which a defendant must file a petition for writ of prohibition predicated upon the ground the trial court abused its discretion in utilizing the procedure set out in subdivision (b) of section 995a, provides:
"A petition for a writ of prohibition, predicated upon the ground that the indictment was found without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, or that the court abused its discretion in utilizing the procedure set out in subdivision (b) of Section 995a, must be filed in the appellate court within 15 days after a motion made under Section 995 to set aside the indictment on the ground that the defendant has been indicted without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, has been denied by the trial court." (Italics added.)
C. Analysis
Geraurd claims his convictions must be reversed because (1) the court erroneously failed to reserve its ruling on his section 995 motion; (2) it erroneously failed to dismiss the charges against him after it granted his section 995 motion for the purpose of conducting the 995a proceeding to obtain evidence that the sex crimes occurred in Riverside County; (3) it erroneously failed to "send the matter back to the magistrate level to conduct the section 995a proceeding"; and (4) it erroneously conducted the section 995a proceeding without "the statutory power to do so."
These claims are not cognizable on appeal. The court viewed the prosecution's failure at the preliminary hearing to present evidence that the sex crimes occurred in Riverside County as an easily-curable technical "glitch" or defect within the meaning of section 995a, subdivision (b)(1). Given the apparent unavailability of the magistrate who had conducted the preliminary hearing, the court acknowledged before trial commenced that it had no authority under that subdivision to sit as the magistrate when it received Detective Portillo's testimony that the crimes occurred in Riverside County unless the parties agreed nunc pro tunc that it could do so. Geraurd, however, refused to give his consent.
Based on the foregoing record, we conclude the court acted in excess of its lawful authority when it sat as the magistrate without Geraurd's consent and conducted the evidentiary hearing at which Detective Portillo testified the crimes occurred in Riverside County. To the extent Geraurd believed the court had acted in excess of its jurisdiction or abused its discretion in utilizing the procedure set forth in subdivision (b) of section 995a, his remedy was to assert his claim in a pretrial petition for writ of prohibition under section 999a (which under that section he was required to file in this court "within 15 days"), not proceed to trial. Geraurd's failure to file such a petition renders his claims on appeal not cognizable.
Furthermore, Geraurd is unable to show he was prejudiced during his trial by the manner in which the court handled and resolved his section 995 motion. The undisputed facts show that all of the sex offenses, charged and uncharged, committed against victim occurred at Geraurd's home in Riverside County. At trial victim's sister testified that Geraurd's home was in Riverside County. Victim gave detailed testimony showing that Geraurd committed the sex offenses at his home in the master bedroom, kitchen, garage, bathroom, and barn. Even Geraurd's own testimony established that the molestations occurred at his home in Riverside County. On appeal, he acknowledges the Attorney General "makes the valid point that there was evidence in this case of many, many molestation acts that were committed on many, many different occasions, " and he does not dispute that those acts of sexual molestation all took place at his home in Riverside County.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.