Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 03NF3674, Richard F. Toohey, Judge.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth M. Casey.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant Dale Allen Rumsey.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendants Kenneth M. Casey and Dale Allen Rumsey challenge conspiracy convictions. The convictions arose out of their agreement to take nude photographs of a 12-year-old boy at a nude beach.
Defendants raise five issues. First, defendants contend venue was improper in Orange County because no overt acts occurred there after they agreed to take the child to the nude beach. Second, they contend insufficient evidence supports their convictions because the photographs they agreed to take would not constitute child pornography or a lewd act on a minor. Third, defendants contend the police illegally searched Rumsey’s father’s apartment. Fourth, Casey contends the court wrongly admitted a manuscript by Rumsey into evidence without a limiting instruction. Finally, Casey contends the court ignored mitigating factors in denying his motion to dismiss his prior strike convictions.
These claims lack merit. First, venue was proper in Orange County because defendants committed an overt act there after they agreed to take nude photographs of the child. Second, substantial evidence shows defendants intended to photograph the child after he undressed, focusing on his genitals and pubic area. This sufficiently shows a conspiracy to produce child pornography and commit a lewd act on a minor. Third, the police legally searched Rumsey’s father’s apartment pursuant to a valid warrant. Fourth, Casey failed to timely object to the manuscript or show prejudice from the lack of a limiting instruction. Finally, the court permissibly denied Casey’s motion to dismiss the prior strike convictions. We affirm.
FACTS
The Agreement to Take Nude Photographs of Rumsey’s Nephew
Rumsey met Casey in state prison, where they were serving terms for committing lewd acts upon boys under 14 years of age. The two men shared a cell, “fell in love,” and became “life partners.” Casey was paroled in 1999. Rumsey was transferred to Solano State Prison in 2000. The two men continued their relationship.
At about the same time, Rumsey began writing letters to his nephew, Patrick, who was then 10 or 11 years old. Rumsey had not seen Patrick since Rumsey was incarcerated in 1994, when Patrick was four years old. Patrick lived in Ontario with his grandmother — i.e., Rumsey’s mother — and her husband. Patrick’s mother did not want to take care of him anymore. His father was not helping to raise him.
In 2002, just as Casey was to be discharged from parole, Rumsey decided that Casey should start spending time with Patrick, then 12 years old. Rumsey claimed to feel bad for Patrick because he was being raised by older people and needed an “outlet.” Rumsey felt Patrick would be safe with Casey because he trusted Casey “implicitly regardless of his past.” Rumsey also believed Casey was more sexually interested in teenage boys older than Patrick. Rumsey, however, preferred 8 to 12 year old boys.
Rumsey and Casey discussed their plans over the telephone and in writing. Rumsey wrote Patrick to inform him Casey would be stopping by to take him out sometimes. Rumsey and Casey worked out details for the first trip with Patrick and his grandmother.
Casey took Patrick to Knott’s Berry Farm in October 2002. Casey repeatedly put his arm around Patrick, touched his nose, and tousled his hair. He pressed up against Patrick during a laser tag game. Casey also took many photographs of Patrick, some of which he sent to Rumsey.
After this trip, Rumsey wrote a letter to Casey to discuss another trip with Patrick. Rumsey wrote, “You know [Patrick]’ll be more in your range next time you go down there. Are you going to be able to behave yourself? Especially since we talked about taking [Patrick] to a water park next time where, if you accidentally hit the shutter without the flash while he’s changing — ‘oops’ — smiley face. Let me just say, the way I’ve been lately, and as cute as he is, he’s lucky I’m in [prison].”
Rumsey continued to write letters to Casey about Patrick over the next couple of months. Rumsey asked Casey to send pictures of Patrick to him and buy Patrick a gift. He later wrote to Casey about “accidentally” leaving a camcorder on in Patrick’s bedroom. In January 2003, Rumsey informed Casey he preferred that their next trip be in spring, rather than summer, because there would be “less chance of hair on [the] video.” Rumsey was referring to Patrick’s pubic and body hair. Rumsey again asked Casey for videotape of Patrick, preferably nude, in March 2003. Rumsey wanted the videotape to assist his sexual fantasies and masturbation.
Casey took Patrick on two trips in April 2003. First, Casey took Patrick to a baseball game in Anaheim. At the game, Casey put his arm around Patrick, rubbed his nose, touched his chest, bought him a hat, and took photographs and videotape of Patrick. Casey then took Patrick to Magic Mountain with Patrick’s older cousin, Freddie. He bought gifts for the boys. Casey also stared at Patrick and put his arms around him and Freddie. He watched Freddie urinate in the bathroom. Casey took pictures and videotape of Patrick and Freddie. He sent thumbnail images of the digital photographs to Rumsey.
After the Magic Mountain trip, Rumsey suggested to Casey that he take Patrick to a nude beach by San Diego. Casey told Patrick about the plan. Rumsey also discussed the nude beach in telephone conversations with Patrick. Rumsey later wrote to Patrick, daring him to get naked at the nude beach. Rumsey wrote, “Do you have the guts to go with the flow and bear it all while you’re there?” Rumsey told Casey about the dare, suggesting Casey give Patrick $20 or $50 to get naked. Rumsey wanted Casey to take nude and clothed pictures of Patrick. Patrick’s grandmother canceled the San Diego trip in June 2003. She was angry at Rumsey because he kept blaming her for his own troubled childhood.
The Investigation and Trial
Prison authorities monitoring Rumsey’s mail and telephone calls initiated an investigation. The police searched Casey’s apartment with his consent. They found eight-millimeter film showing Casey, Patrick, and Freddie roughhousing at Magic Mountain. Casey told Rumsey about the search. Rumsey asked Casey to move his belongings out of Casey’s apartment and into Rumsey’s father’s apartment.
The police obtained a warrant to search Rumsey’s father’s apartment. They seized computers, correspondence between Rumsey and Casey, and a manuscript written by Rumsey. The warrant also authorized a second search of Casey’s apartment. The police found a manuscript written by Rumsey entitled, “The Rape of Innocence: A Handbook for Parents Who Wish to Know How to Protect Their Children From a Homosexual Residential Pedophile.” It related Rumsey’s observations on how pedophiles find and control their victims. It stated pedophiles often prey on fatherless children, buy the children gifts to develop trust and affection, and break down their inhibitions through games and dares.
The People filed an information charging defendants with one count each of conspiracy to commit a lewd act upon a child under the age of 14 and/or produce child pornography. (Pen. Code, §§ 182, subd. (a)(1) (conspiracy), 288, subd. (a) (lewd act), 311.4, subd. (c) (child pornography).) It further charged Casey with three counts of committing a lewd act upon a child under the age of 14. (§ 288, subd. (a).) The information alleged Casey had suffered a prior serious felony conviction and six prior conviction “strikes.” (§§ 667, subds. (a)(1), (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) It further alleged Rumsey had suffered three prior conviction strikes. (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)
All further statutory references are to the Penal Code unless otherwise stated.
The jury found defendants guilty of conspiracy to commit a lewd act upon a child under the age of 14 and produce child pornography. It did not reach unanimous verdicts on the three committing a lewd act counts; the court dismissed those counts on the People’s motion. The court found true the prior conviction allegations. It sentenced Casey to 30 years to life in state prison. It sentenced Rumsey to 25 years to life in state prison.
DISCUSSION
Venue was Proper in Orange County
Defendants assert venue in Orange County was improper because no overt acts furthering the conspiracy took place there. They rely on section 182, subdivision (a)(6) which provides, “All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done.” The information alleged two overt acts in Orange County: the October 2002 trip to Knott’s Berry Farm and the April 2003 trip to the Anaheim baseball game. Defendants do not dispute these acts bear a factual nexus to their plan to take Patrick to the nude beach. Indeed, an expert on sexual predators testified that pedophiles take children to fun places and buy them gifts to “groom” them, preparing them to be sexually exploited. Instead, defendants contend the acts could not further the conspiracy because the acts occurred before the conspiracy was reached.
Defendants give section 182’s venue provision an overly strict reading. “[T]he conspiracy venue provisions are designed to expand, not limit, the number of courtrooms available to try conspirators.” (People v. Anderson (1991) 1 Cal.App.4th 1084, 1089.) Section 182’s venue provision is given “the same liberal construction” as section 781, which “‘vest[s] jurisdictional venue in the court of a county where only preliminary acts leading to the commission of a crime in another territorial jurisdiction of California occur.’” (People v. Price (1989) 210 Cal.App.3d 1183, 1192, overruled on another ground in People v. Meza (1995) 38 Cal.App.4th 1741, 1748 [telephone call to Orange County supports venue there]; accord People v. Burton (1949) 91 Cal.App.2d 695, 710 [reading sections 182 and 781 together in conspiracy case].)
Defendants also misunderstand the fluidity of a conspiratorial agreement. “This agreement [in a conspiracy] is not a tangible occurrence: the specific time when a common illegal design comes into existence cannot, in most instances, be identified. For this reason an agreement is a continuous act; thus conspiracy is said to be a continuing crime. [Citation.] With this view, we decline to hold that an overt act can only be committed after a complete agreement is formed, because an agreement is continuous.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 244.)
Thus, we must apply the liberal conspiracy venue provision to the continuing nature of a conspiracy. Defendants first discussed taking nude photographs of Patrick just after the October 2002 Knott’s Berry Farm trip, well before the April 2003 baseball game. That is when Rumsey wrote to Casey about taking Patrick to a water park where he could “accidentally” take pictures of Patrick while he was changing, and noted, “as cute as [Patrick] is, he’s lucky I’m in [prison].” Defendants refined their agreement over the next several months, as Rumsey suggested Casey “accidentally” leave a camcorder in Patrick’s bedroom, requested that the next trip be in spring when Patrick might still lack pubic hair, and asked Casey for nude videotape of Patrick. These communications preceded the baseball game, shaped defendants’ evolving plan to take naked photographs of Patrick (somewhere, if not yet specifically at the nude beach), and support venue in Orange County.
Substantial Evidence Supports the Conspiracy Convictions
In its guilty verdicts on conspiracy, the jury found defendants conspired both to produce child pornography and commit a lewd act on a minor. Defendants do not dispute the sufficiency of the evidence showing their agreement to photograph Patrick. Instead, they contend insufficient evidence shows that taking nude photographs of Patrick constitutes child pornography or comprises a lewd act.
“‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “view the evidence in the light most favorable” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Substantial evidence shows defendants conspired to produce child pornography. Section 311.4, subdivision (c) provides, “[e]very person who, with knowledge that a person is a minor under the age of 18 years . . . knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years . . . to engage in . . . posing or modeling . . . for purposes of preparing . . . any . . . photograph [or] videotape . . . that contains or incorporates in any manner, any . . . sexual conduct by a minor under the age of 18 years . . . is guilty of a felony.” The prohibited “‘sexual conduct’” includes “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” (§ 311.4, subd. (d).)
Defendants claim insufficient evidence shows Casey would have made Patrick pose for the nude photographs. The statute requires only that the minor is “used” to “engage in . . . posing or modeling.” (§ 311.4, subd. (c).) Posing is defined as “put[ting] or set[ting] in place or in a given position.” (Webster’s 3d New Internat. Dict. (2002) p. 1769.) Modeling is defined as “display[ing] by wearing, using, or posing with.” (Id. at p. 1451.) Reasonable jurors could conclude that Casey, by agreeing to take Patrick to a nude beach and photograph him there, was thereby going to put or set Patrick in a position in which he would be displayed and photographed.
This interpretation comports with People v. Hobbs (2007) 152 Cal.App.4th 1, 6-8 (defendant “posed” students in locker room by secretly videotaping them), a case decided after the parties filed their briefs. We do not rely upon it.
Defendants also claim insufficient evidence shows the photographs would have depicted Patrick engaged in sexual conduct. (§ 311.4, subd. (c).) To be sure, the statute does not ban all nude photographs of children. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1753 (Kongs) [“Nude is not synonymous with lewd”].) And the specific content and context of a nude photograph helps determine whether it depicts sexual conduct. (Id. at pp. 1754-1755.) No actual nude photographs were taken here, thankfully, which prevents us from analyzing content and context.
Even so, reasonable jurors could conclude defendants agreed to take photographs exhibiting Patrick’s genitals and pubic area. (§ 311.4, subd. (d)(1).) Casey and Rumsey are “life partners” and former cellmates serving time for committing lewd acts on a minor. Rumsey is admittedly attracted to 8 to 12 year old boys. Rumsey’s letters to Casey state Rumsey thought Patrick was cute, wanted nude photographs of Patrick, and hoped to get them before Patrick grew pubic hair. In other words, an incarcerated pedophile attracted to 8 to 12 year old boys asked his convicted pedophile “life partner” for photographs of a “cute” 12-year-old boy, preferably nude, and preferably taken before the boy grew pubic hair. Reasonable jurors could conclude Rumsey wanted pictures of Patrick’s genitals and pubic area, and that Casey knew it. The same evidence refutes defendants’ contention that insufficient evidence shows Casey knew the nude photographs of Patrick would sexually stimulate Rumsey. (§ 311.4, subd. (d)(1).)
Defendants further contend section 311.4 is unconstitutionally vague. Our courts disagree. “On its face, Penal Code section 311.4 passes constitutional muster.” (Kongs, supra, 30 Cal.App.4th at p. 1753.) “[T]he statute adequately defines the prohibited conduct and includes a scienter element.” (People v. Cantrell (1992) 7 Cal.App.4th 523, 542.) Defendants had “‘fair warning’” that section 311.4 barred agreements to take a 12-year-old boy to a nude beach, photograph the naked child (preferably before he grew pubic hair), and send the photographs to an incarcerated pedophile. (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1131-1132 [statute gave notice that photographing girl’s “partially clothed crotch area” was prohibited].)
Because substantial evidence shows defendants conspired to produce child pornography, we need not determine whether substantial evidence also shows they conspired to commit a lewd act on Patrick. The jury based the conspiracy verdicts on agreements both to produce child pornography and commit a lewd act. Substantial evidence showing either agreement sufficiently supports the conspiracy convictions.
Even so, reasonable jurors could have concluded defendants agreed to commit a lewd act on Patrick. Section 288 bars “‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child.” (People v. Martinez (1995) 11 Cal.4th 434, 442.) Defendants agreed Casey would take Patrick to a nude beach and photograph him in the nude. Patrick, at least, would have touched his body while undressing. This touching would constitute a lewd act. “[A]ctual or constructive disrobing of a child by the accused . . . is presumptively harmful and prohibited by section 288(a).” (People v. Mickle (1991) 54 Cal.3d 140, 176, italics added; accord People v. Imler (1992) 9 Cal.App.4th 1178, 1181 [defendant committed lewd act by telephoning victim and asking him to disrobe]; People v. Austin (1980) 111 Cal.App.3d 110, 115 [pursuant to section 288, defendant “was responsible for the touching and removal of the child’s pants as surely as if he had done it himself”].)
Section 288 provides, “[a]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body . . . 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.”
Reasonable jurors could also conclude Casey would be sexually gratified by Patrick undressing. Casey had been convicted of committing a lewd act on a minor under the age of 14, based on his orally copulating a 13-year-old boy. He repeatedly and inappropriately touched Patrick, rubbed up against him, and stared at him during their outings. Even Rumsey warned Casey before the baseball game that Patrick would “be more in your range next time,” and wondered whether Casey was “going to be able to behave [himself].” Based with this evidence, the jury reasonably could have discounted Casey’s supposed preference for slightly older boys.
The Police Legally Searched Rumsey’s Father’s House Pursuant to a Valid Warrant
Defendants contend the court wrongly denied a motion to suppress the evidence seized at Rumsey’s father’s apartment because the warrant authorizing the search was invalid. “[W]hen, as here, the police do obtain a [search] warrant, that warrant is presumed valid. ‘Thus if the defendant attempts to quash a search warrant, as defendant here seeks to do, the burden rests on him.’ [Citation.] A defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions.” (People v. Amador (2000) 24 Cal.4th 387, 393 (Amador).)
Defendants contend the affidavit did not state probable cause supporting the warrant because it failed to describe any suspected criminal activity. They base this contention on their assertion that agreeing to photograph Patrick at a nude beach is not a criminal act. We reject this underlying assertion above, and for the same reasons reject their contention concerning the lack of probable cause.
Defendants further contend the affidavit’s signature page did not identify the apartment as a location to be searched. “Complete precision in describing the place to be searched is not required. ‘It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.’” (Amador, supra, 24 Cal.4th at p. 392.) The affidavit’s text cites a letter from Rumsey to Casey stating, “I want all of my stuff stored at my dad’s. I don’t want to be implicated in anything. You know I will be if they read my letters to you — get them to my dad’s too.” The affidavit identified Rumsey’s father by name and confirmed his residential address through three sources. The search warrant plainly identified both Casey’s apartment and Rumsey’s father’s apartment as search locations. The warrant and affidavit sufficiently identified Rumsey’s father’s apartment.
Finally, defendants contend the search warrant was unsupported by probable cause because the police had already searched Rumsey’s belongings at Casey’s apartment. This contention is unsupported by citation to authority and forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
The Court Did Not Err by Admitting the Manuscript into Evidence Without a Limiting Instruction
Casey contends the court erred by admitting Rumsey’s manuscript, “The Rape of Innocence,” into evidence without a limiting instruction that it was relevant only to Rumsey, not to Casey. Casey forfeited this claim by failing to request a limiting instruction when the manuscript was offered and accepted into evidence. (Evid. Code, § 353, subd. (a).) He first mentioned his concern two court days later, just before closing arguments.
Casey also fails to show the absence of a limiting instruction was prejudicial. (Cal. Const., art. V, § 13; Evid. Code, § 353, subd. (b).) The manuscript was tangential to the prosecution’s case against Casey. The prosecutor stressed in closing argument, “[t]he point I want to make to you are [sic] the words in the manuscript; those are Rumsey’s words. This is Rumsey’s mind that we are talking about, okay. [¶] Casey has some tie to it. Whatever connection you feel is appropriate, it must always be remembered Casey didn’t write the manuscript; Rumsey did.” In rebuttal, the prosecutor briefly argued the manuscript suggested Rumsey knew photographing Patrick would sexually arouse Casey, but did so in arguing against Rumsey, not Casey. And given the other evidence from which the jury could reasonably conclude Casey would be sexually gratified by photographing Patrick, it is not reasonably probable that a limiting instruction would have led to a more favorable result for Casey. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The Court Did Not Abuse Its Discretion by Denying the Romero Motion
Casey contends the court abused its discretion by denying his motion to dismiss his six prior convictions for committing a lewd act on a minor under the age of 14. (See People v. Romero (1996) 13 Cal.4th 497, 530-531 (Romero); see also § 1385, subd. (a).). To strike a prior felony conviction for sentencing purposes, a court must determine whether “the defendant may be deemed outside the [“Three Strikes”] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) It does so by considering “the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Ibid.) We review the court’s determination for an abuse of discretion. (Id. at p. 162.)
We see no such abuse. Casey contends the court failed to exercise its discretion because it ignored various mitigating factors. He notes his six prior convictions arose from a single incident of lewd behavior, for which he voluntarily turned himself in to the authorities while seeking therapy; he served his prison sentence for those convictions and successfully completed parole; and he was employed as a researcher at the time of his arrest in this case. Casey argued these mitigating factors to the court. That they failed to sway the court does not show the court “ignored” them. (People v. Myers (1999) 69 Cal.App.4th 305, 310 [denial of Romero motion does not show court failed to consider argued factors].) Moreover, the mitigating factors are far from compelling. Casey was convicted of conspiring to commit the same offense as his six previous convictions — committing a lewd act on a minor under the age of 14. This shows whatever therapy Casey sought was ineffective at preventing recidivism, and undercuts the significance of completing parole. The court did not abuse its discretion by declining to deem defendant outside of the spirit of the Three Strikes law. (See Williams, supra, 17 Cal.4th at pp. 161-162.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.