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People v. Ponce

California Court of Appeals, Third District, Nevada
Apr 29, 2009
No. C056252 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LUIS PONCE, JR., Defendant and Appellant. C056252 California Court of Appeal, Third District, Nevada April 29, 2009

NOT TO BE PUBLISHED

Super. Ct. No. SF06073

BLEASE, J.

A jury convicted defendant Luis Ponce, Jr. of the following offenses against R.P., his adopted daughter: (1) five counts (counts one through five) of aggravated sexual assault of a child, oral copulation (Pen. Code § 269, subd. (a)(4)), and (2) one count (count six) of aggravated sexual assault of a child. (Pen. Code § 269, subd. (a)(1).) The jury further convicted defendant of the following offenses against his adopted daughter S.P.: (1) one count (count seven) of a lewd act upon a child (§ 288, subd. (a)), (2) three counts (counts eight through ten) of sexual penetration by a foreign object against an unconscious victim (§ 289, subd. (d)), (3) one count (count 13) of a forcible lewd act upon a child (§ 288, subd. (b)(1)), and (4) three counts (counts 14 through 16) of aggravated sexual assault of a child, oral copulation. (§ 269, subd. (a)(4).) Also as to S.P. the jury found defendant guilty of two counts of lewd or lascivious acts against a child under 14 years of age as lesser offenses to the offenses charged in counts 11 and 12. (§ 288, subd. (b)(1).)

Further undesignated statutory references are to the Penal Code.

The court sentenced him to a total term of 68 years-to-life, consisting of four consecutive 15 year-to-life sentences (counts 1, 6, 13 and 14), plus eight years for count seven, in addition to five concurrent 15 year-to-life sentences (counts 2, 4, 5, 15, and 16) plus six concurrent years each for counts eight through 12.

Defendant contends: (1) the trial court erred when it denied his motion to suppress the evidence seized from his work locker on the ground the seizure violated his Fourth Amendment right to be free from unreasonable search and seizure, (2) his right to due process was violated when he was shackled with a leg restraint in front of the jurors, (3) the prosecution of counts 11 through 13 was in violation of the statute of limitations, (4) his convictions for counts 7, 11, 12, and 13 relied on evidence not introduced at the preliminary hearing, and (5) the trial court improperly calculated his presentence credits.

The evidence underlying defendant’s conviction was contained on tapes seized, pursuant to a search warrant, from defendant’s locker in the Berkeley Fire Department where he worked. They showed defendant engaged in explicit sex acts with minors. That warrant was in turn based upon the contents of seven CDs, three of which contained sexually explicit images of minors, that were found by an employee of the department in an office area shared with defendant and turned over to the police.

We shall conclude that the defendant had no expectation of privacy in the seven CDS and accordingly will uphold the search warrant based upon them.

We shall direct the trial court to modify the judgment to reflect the correct number of credits, but shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his wife had six adopted children. The youngest of the victims in this case was their daughter, R.P., who was born in May 2000 and suffered problems in the areas of speech and hygiene. At the age of seven, she was still not potty trained. The other victim, their daughter S.P., was born in May 1996.

On January 26, 2006, Berkeley Police Detective Glen Pon executed a search warrant on a Berkeley Fire Department locker assigned to defendant, who worked there as a paramedic. Detective Pon seized five videotapes that were turned over to Detective Angela Hawk. The seized tapes were played for the jury.

Defendant videotaped himself molesting his adopted daughters. The sexual molestations depicted on the video clips shown to the jury were sufficient evidence to convict defendant of the serious charges in this case. The clips depict R.P. when she was between 12 and 18 months old, and S.P. when she appeared to be between two and three years old, and again when she was between four and five years old.

DISCUSSION

I

The Trial Court Correctly Denied Defendant’s Suppression Motion

Defendant brought a motion to suppress evidence he contended was found pursuant to an illegal search. He argues the trial court erred when it denied his motion. He argues the evidence should have been suppressed because: (1) the search warrant was based on conclusory statements, and (2) the police viewed evidence against him without obtaining a warrant.

The Berkeley Police Department obtained two search warrants of interest to this appeal. The first warrant was to search a notebook computer and seven compact disks (CDs) located at defendant’s place of work. Prior to obtaining the first search warrant, the police were given two of the CDs by defendant’s employer. Based upon their search of the items recovered from the first warrant, Berkeley police obtained a second warrant to search defendant’s locker at his workplace. In the locker, police found the five videotapes that were played for the jury.

The following factual background is taken from the trial court’s written ruling on defendant’s motion to suppress. Neither party contests the accuracy of this factual statement.

“Prior to his arrest, [defendant] worked for the Berkeley Fire Department as a paramedic. He and [Anne-Margaret] Moyer shared an office located at 997 Cedar Street, in Berkeley, with several others. From that office they supervised the training of other paramedics within the department. The office was lockable, and, as far as could be discerned, was kept locked when not occupied. In addition, certain file cabinets and a narcotics storage locker for expired drugs carried by the department’s paramedics within the office had separate locks, which also were kept locked. Based on the testimony of Moyer and [defendant], no one person ever controlled access either to the office, or to the lockable cabinets within the office at any time material to these proceedings. Instead, [defendant], Moyer, Moyer’s boss, and central department administration all retained and used keys to the office and to the lockable cabinets within the office at all material times.

“[Defendant’s] access to the office in question began when he was assigned the duty of covering Moyer’s training functions when Moyer took parental leave [in September 2004]. After Moyer returned from her parental leave [in February 2005], she worked only part-time. Consequently, [defendant] retained access to the office so that he could occasionally fill in to cover what had been Moyer’s training functions on her off days.

“During his time within the office, according to his testimony, [defendant] brought 5 CDs that he had made elsewhere to the office, and placed them into the locked narcotics cabinet within the locked office. When he did so, [defendant] admitted that he knew that Moyer and two other paramedic supervisors had keys to and routinely accessed that narcotics locker. Among those 5 CDs were the two at issue in this case.

“In that office, among other things, was the Sony Vaio computer belonging to the department and assigned to Moyer for her use. Moyer testified that [defendant] had routine access to that computer and [defendant] did not deny such use of that computer in his testimony.

“Due to departmental reorganization, Moyer’s training supervisory position was eliminated. She was directed to clean out the office and began doing so sometime after July of 2005. Moyer’s and [defendant’s] testimony diverged slightly on who actually cleaned out the office. [Defendant] testified that another supervisor grabbed armloads of items for the office and placed the items on a desk in a common area within the same building. Moyer testified that she found the CDs in question sitting atop a work station desktop, in plain view, within the locked office....

“Moyer testified that, on September 20, 2005, she was going through a group of marked and unmarked CDs trying to ascertain what they were, and intending either to file them or discard them, based on their contents. Some were labeled as to their contents. On direct examination, Moyer testified that the 2 CDs at issue were not labeled. On cross examination, Moyer testified that one of the CDs that she found may have been labeled ‘I photo kids.’ Moyer testified that she was inserting any unlabeled CD that she found into the Sony Vaio computer so that she could view its contents, label it appropriately, and file it accordingly.

“On one such CD, which bore no markings, she observed ‘disturbing images’ that she stated were child pornography. Alarmed by what she had seen, Moyer took an unspecified number of blank [i.e., unlabeled] CDs to her boss. According to Moyer, her boss told Moyer that he would view the contents of the CDs. Presumably after viewing the contents, Moyer’s boss (‘Foster’) gave two CDs to his boss, Deputy Chief Orth.

“Deputy Chief Orth, in turn, contacted BPD. Orth delivered the 2 CDs, one labeled ‘I photo kids’ into the custody of Sergeant White of BPD. No warrant was issued to document this ‘seizure’ of the 2 CDs. White then took the CDs to BPD offices and eventually gave them to Detective Hawk. Detective Hawk attempted to view the contents of both CDs. She could only get her computer to process one of the two CDs for viewing. No warrant documented the ‘search’ of the contents of the 2 CDs.

“On the one CD that she was able to view, Hawk saw images of children, ages 5-7 clothed, partially clothed and nude. Several of the children appeared in what Hawk described only as ‘sexually provocative positions’. Hawk did not testify that she observed actual sex acts depicted in the images that she observed.

“After seeing the images, Hawk obtained statements from Moyer, Foster and Orth, Hawk prepared and submitted to the Alameda County Superior Court an affidavit for search warrant, seeking authority to seize the Vaio Computer and 7 CDs from the Berkeley Fire Department, and authority to view the digital data therein offsite. On November 23, 2005, Judge Jacqueline Taber issued a warrant authorizing seizure of the Sony Vaio computer, 7 CDs and all data thereon from the Fire Department Building at 2100 MLK Way, and the offsite search of all electronic data therein or thereon. ... The warrant was served and the items seized and searched pursuant to that warrant.

“On January 24, 2006, Detective Hawk prepared and submitted two additional affidavits for search warrants. One sought to search the private locker of the defendant at Berkeley Fire Station 1 located at 2442 8th Street in Berkeley for 11 listed classes of items. Another sought to search defendant’s residence... and all vehicles located thereon for the same 11 classes of items. The affidavits for each warrant were essentially identical. They incorporated the information generated from the initial viewing of the CD, the subsequent interviews of the Fire Department personnel, and added the results from the search of the Vaio Computer and the 7 CDs seized and searched under the first warrant.”

Defendant raises two arguments as to the admissibility of the videotapes found in his locker. First, he argues the second search warrant, which was the warrant to search his locker, was tainted because it was based upon the first warrant, and the first warrant was based on conclusory allegations. Second, he argues the warrants were invalid because the initial viewing by Detective Hawk should have been conducted pursuant to a warrant. We shall conclude defendant had no legitimate privacy interest in any of the seven CDs or the computer found by the fire department. Therefore, no warrant was necessary to search those items, and the second search warrant, which was not based on conclusory allegations, was valid.

A. Defendant had no Privacy Interest in the Subject of the First Warrant.

A defendant’s Fourth Amendment rights are implicated only if the government’s conduct infringes “an expectation of privacy that society is prepared to consider reasonable ....” (United States v. Jacobsen (1984) 466 U.S. 109, 113 [80 L.Ed.2d 85, 94.].) A defendant has the burden of demonstrating a reasonable expectation of privacy. (People v. Middleton (2005) 131 Cal.App.4th 732, 737, fn. 2.)

The “expectation of privacy in commercial premises... is different from, and indeed less than, a similar expectation in an individual's home.” (New York v. Burger (1987) 482 U.S. 691, 700 [96 L.Ed.2d 601, 612].) Nevertheless, within the context of the workplace, employees “may have a reasonable expectation of privacy against intrusions by police.” (O’Connor v. Ortega (1987) 480 U.S. 709, 716 [94 L.Ed.2d 714, 722].) The expectation of privacy in the workplace is “‘based upon societal expectations that have deep roots in the history of the [Fourth] Amendment.’ [Citation.]” (Ibid.)

With respect to those areas of the workplace in which an employee may have a reasonable expectation of privacy, such expectation “may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” (O’Connor v. Ortega, supra, 480 U.S. at p. 717 [at p. 723].) We therefore assess the employee’s reasonable expectation of privacy within the context of the employment relation. (Ibid.) Given the variety of work environments, this question must be addressed on a case-by-case basis. (Id. at p. 718 [p. 723].)

In this case, defendant left the two CDs in question in an office he shared with another employee, and to which certain other employees had access. The CDs had no markings to indicate they belonged to defendant, or that they were private in nature. Although defendant testified he kept the CDs in a locked cabinet where expired narcotics were stored, several people had the keys to the cabinet, and Moyer actually found the CDs not in the cabinet, but on top of a work station. Because the department used CDs in the course of carrying out its duties, there was no expectation that an unmarked CD in an office shared by two employees and accessed by others, would be recognized as the private property of defendant. We therefore conclude defendant had no reasonable expectation of privacy in the contents of the CDs.

The notebook computer was the property of the Berkeley Fire Department, and was assigned to Moyer. Defendant had occasional access to the computer. The Sixth Circuit held that although an individual did not have a reasonable expectation of privacy in the files on a shared computer, he did have a reasonable expectation of privacy in password-protected files where the other computer user had no access to such files. (Trulock v. Freeh (2001) 275 F.3d 391, 403.) California has held that an employee’s reasonable expectation of privacy in the files on a work computer may be diminished by company policies addressing privacy. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 452.)

In this case, no evidence was taken as to the policies of defendant’s employer with respect to computer usage, and although the first search warrant allowed the Berkeley Police Department to bypass any password protection, it is not clear that any password protected files were found on the fire department laptop. The only useful information from the laptop computer itself were the internet history files, which indicated a person using defendant’s user profile had used programs allowing him to mask his identity on the computer, and had accessed images of minors in sexually provocative positions and with exposed genitalia.

To the extent any information was discovered from files that were not password-protected, defendant’s expectation of privacy in the laptop computer was objectively unreasonable given the circumstance that another employee used and had a superior right of access to the computer because it was assigned to her. To the extent any of the information obtained from the first search warrant was obtained from password-protected files, we conclude the affidavit was sufficient without such information.

Even if we excise from the warrant all information that was arguably tainted because it was password-protected, we still conclude probable cause existed to issue the warrant because there was a fair probability that evidence of a crime would be found. (People v. Morton (2003) 114 Cal.App.4th 1039, 1049.) The affidavit indicated defendant had access to the office where the CDs were located and had use of the computer. The CD containing images of defendant and family members was the same make and batch/lot number as one that contained the sexually explicit images. Three of the CDs, including one with sexually explicit images of minors, were modified during the time defendant occupied the office. Three of the CDs contained sexually explicit images of minors. Numerous explicit images had the same camera identifier as the images of defendant and his family. This information, together with the affidavit of Detective Hawk stating that pedophiles usually collect sexually explicit material and rarely dispose of such material, was sufficient to establish probable cause to search defendant’s locker.

The evidence taken from the computer consisted of the internet history files. These files indicated the user “lponce” viewed images of minors in sexually provocative positions and with exposed genitalia, and accessed sites and programs to allow users to mask their identity. Defendant’s city assigned user name was “lponce.” There is no indication this information was password-protected, but even without it there was probable cause to issue the warrant.

The computer and the CDs were the bases of the second warrant to search defendant’s work locker, and there is no claim that the second warrant was invalid because of “conclusory allegations.”

B. No Warrant was Necessary to View the CDs

Defendant also argues, based on Walter v. United States (1980) 447 U.S. 649 [65 L.Ed.2d 410], that Detective Hawk’s initial viewing of one of the CDs found by Moyer should have been done pursuant to a search warrant. He apparently recognizes that a private search does not violate the Fourth Amendment, but argues Hawk exceeded the scope of the search performed by defendant’s employer because there was no evidence that Detective Hawk viewed the exact same images as the fire department personnel, and there were so many (750) digital images on the disks that it is “inconceivable” the fire department viewed all of the images on the CDs.

Having determined defendant had no reasonable expectation of privacy in the CDs, we need not address this argument.

II

Use of a Hidden Leg Restraint was Appropriate

Defense counsel objected to the use of a leg restraint during trial, noting that defendant had given no reason to believe he would be a security risk. The court replied that the restraint was not very obvious, and that although the court had some concerns, an admonishment would be sufficient. The bailiff then stated that it was standard practice to use the leg restraints because the defendants were in common areas open to the public, and had access to the outside exits. The bailiff told the court that the only less visible restraint would be an electronic belt that had the capability of providing an electric shock.

The trial court then expressed its concern that if defendant were to be found guilty, he would be subject to a substantial period of incarceration, and the court was concerned that defendant might be so overcome with emotion if convicted that he would try to flee. The court concluded that under the circumstances the leg restraint was the least obtrusive restraint, and that it would admonish the jury, which would likely not notice the restraint, or if it did would not be prejudiced against defendant.

Defense counsel then made a record of the appearance of the device:

“[T]here is a leather strap that goes around the bottom portion of Mr. Ponce’s right ankle. It’s visible both below his pant cuff, both when he sits down and when he is standing. There is a silver metal rod that runs up the right side of his leg to I think just above his knee. That rod is visible when Mr. Ponce is sitting. The bottom portion of the rod is visible when Mr. Ponce is standing. When Mr. Ponce is walking in and out of the courtroom, he has a noticeable limp because the brace is obviously there to restrict his movement. But that’s something which is also noticeable to the jury. The jurors are present in the courtroom and have been present in the courtroom when Mr. Ponce has been entering and exiting the courtroom. And it’s the -- given where the entrance and exit is, they can see Mr. Ponce. And if they are looking at the bottom portion of his leg, they can see the restraint.”

Defendant argues the trial court abused its discretion in permitting him to be restrained in front of jurors without a sufficient showing of need for the restraint. We agree that the trial court abused its discretion, but find no prejudice.

A defendant may not be restrained in the jury’s presence unless there is a showing of manifest need. (People v. Duran (1976) 16 Cal.3d 282, 290-291.) A trial court’s decision to restrain a defendant will not be overturned absent a manifest abuse of discretion. (Id. at p. 293, fn. 12.) Manifest need is shown only if the defendant has been unruly, announced an intent to escape, or if there is evidence to believe the defendant would disrupt the proceedings if left unrestrained. (People v. Wallace (2008) 44 Cal.4th 1032, 1050.) Absent a showing of violence or a threat of violence or other nonconforming conduct, the decision to restrain is deemed to constitute an abuse of discretion. (Ibid.)

In this case there was no showing of violent or nonconforming conduct on the part of defendant, thus the decision to restrain him was an abuse of discretion. The potential severity of the punishment is not a sufficient reason for imposing the restraints.

Nevertheless, we find no prejudice. Courtroom shackling is harmless if there is no evidence the jury saw the restraints and they did not impair defendant’s right to testify or participate in his own defense. (People v. Anderson (2001) 25 Cal.4th 543, 596.) Even if the jury briefly observes the restraints, it is not generally prejudicial. (People v. Slaughter (2002) 27 Cal.4th 1187, 1213.) Although defense counsel was careful to make a record that the restraint was visible, the trial court apparently found the restraint was not “so obvious” and the description indicates most of the restraint was hidden from view. Additionally, the trial court specifically instructed the jury to disregard the fact that physical restraints had been placed on defendant. We presume the jurors followed this instruction. (People v. Smith (2007) 40 Cal.4th 483, 517-518.) There is no evidence the restraint influenced defendant’s decision not to testify, or prevented him from participating in his defense.

Defendant argues he was prejudiced because, although the evidence of the offenses was legally sufficient, the jury could have reasonably believed that he had not subjected his victims to force, violence, or duress. He argues the restraints may have prevented the jurors from giving him the benefit of the doubt on this issue. We disagree. The jury acquitted defendant of the offenses charged in counts 11 and 12--lewd and lascivious acts upon S.P. by the use of force, violence, duress, menace, or the threat of great bodily harm. It instead found defendant guilty under these counts of the lesser offense of a lewd or lascivious act, without the use of force, violence, duress, menace, or the threat of great bodily harm. Obviously, the jury was not influenced to find defendant used force merely because he appeared in court wearing a leg restraint. We conclude beyond a reasonable doubt that the restraint did not contribute to the verdict.

III

Counts 11 Through 13 Were Not Time Barred

The offenses charged in counts 11 through 13 (§ 288, subd. (b)(1)--forcible lewd act upon a child) were alleged to have occurred between February 1998 and December 2002. The penalty for a violation of section 288 is imprisonment for three, six, or eight years. Section 800 provides that prosecution for offenses punishable by eight years or more imprisonment must be commenced within six years. Defendant claims the statute of limitations for this offense was six years. He argues that because the action was not commenced against him until, at the earliest, January 26, 2006, when he was arrested, any of the acts that were committed as early as February 1998 were time barred because the limitations period expired on March 1, 2004.

The applicable statute of limitations is not section 800, but section 801.1, subdivision (b), which provides: “Notwithstanding any other limitation of time described in this chapter,... prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense.” Section 288 is one of the felony offenses described in subdivision (c) of section 290, thus the 10 year limitations period is applicable, not the six year period as argued by defendant.

Defendant correctly notes that section 801.1 did not take effect until 2005, which was after the dates alleged in counts 11 through 13. However, as set forth in In re White (2008) 163 Cal.App.4th 1576, 1580-1583, section 801.1 is merely a reenactment of a provision that first became effective January 1, 2001, as subdivision (h)(1) of former section 803. That provision was thereafter reenacted several times without textual change. (Id. at p. 1580.) We construe unchanged provisions as being continuously in force. (Id. at p. 1581.)

The ex post facto clause protects against a prosecution with a statute of limitations enacted after a previous statute of limitations has expired. (In re White, supra, 163 Cal.App.4th at p. 1583.) The six year limitations period was the period originally in effect for any offense alleged in counts 11 through 13 that occurred before former section 803, subdivision (h)(1) became effective January 1, 2001. Because that section came into effect before the expiration of the six year limitations period, it did not revive an expired statute of limitations, but extended the limitations period before expiration, which was constitutionally permissible. (Ibid.) Accordingly, the prosecution of counts 11 through 13 was not time barred.

IV

Conviction for Counts 7, 11, 12, and 13 were Based on Evidence Shown at Preliminary Hearing

Defendant argues his due process right to notice of the charges against him was violated because the evidence upon which his convictions for counts 7, 11, 12, and 13 were based was not presented at the preliminary hearing. Defendant is mistaken.

Count 7 was set forth in the amended information as a violation of section 288, subdivision (a), a lewd act upon a child, occurring sometime between February 1999 and December 2002.

At trial the prosecutor introduced the evidence relating to count 7 and informed the witness it was clip number 29. The witness, S.P.’s mother, viewed the clip and identified S.P. as the victim, and stated the video was taken when S.P. was between the age of four and five. This would have dated the video sometime during 2000 to 2001.

During closing argument, the prosecutor identified the video clip supporting count seven as the defendant “taking the clothes off of SP[,] or “readjusting them to reveal certain parts of her body.... [a]nd rubbing SP[’s] various bodily spots around the buttocks for no conceivable purpose other than to arouse, appeal to or gratify his lust, passions or sexual desires.” Video clip 29, introduced into evidence, shows a young girl with long blond hair, lying in bed asleep or unconscious. She is wearing dark pants, white underwear, and a white shirt. Defendant’s arms and hands are visible. Defendant rubs the girl’s buttocks over her underwear, pulls the girl’s underwear up between her buttocks, and later pulls the underwear down, exposing her buttocks.

At the preliminary exam, this clip was described by Detective Jeffrey Pettitt. He referred to his report when describing the video clip. He stated the clip came from tape number five. Pettitt’s report explained that five video tapes were confiscated from defendant’s work locker. Tape five was marked as such by the Berkeley Police Department. The report described a portion of tape five as showing a female child with long blond hair, wearing black pants, a white shirt, and white panties. The girl appears unconscious. Defendant rubs the girl’s buttocks and pulls her panties down, and continues to reposition her panties. The report also describes defendant as masturbating while standing over the girl, however the video clip shown to the jury stopped before this occurred.

At the preliminary exam, Detective Pettitt described the clip as depicting S.P. when she was approximately three or four years old. She was asleep or unconscious. Defendant rubbed her buttocks with his hands and repositioned her underwear. Defendant’s arms and hands were visible in the picture.

It is apparent the video clip described by Detective Pettitt during the preliminary exam was the same video clip shown to the jury as evidence of count 7.

Counts 11, 12, and 13 were set forth in the amended information as violations of section 288, subdivision (b)(1), forcible lewd acts upon S.P., occurring sometime between February 1998 and December 2002.

At trial the prosecutor introduced the evidence relating to counts 11, 12, and 13, and informed the jury it was clip number 25. S.P.’s mother indicated the clip showed her daughter, S.P., and her son, C.P. S.P. appeared to be about two or three years old. The clip also showed defendant.

At closing argument, the prosecutor informed the jury that the evidence supporting these counts was the clip showing S.P. “in the family room with her adoptive brother C.P. [a]nd they were playing, and acting a little bit toward the camera.... [and] [t]hat’s when the defendant sat down behind S.P., pulled her dress up.” “[T]his is the one where the hat comes into play. She tries to cover herself up. Defendant takes that hat away from her. She gets the hat back and does it again. Then she puts her knees together covering up her area. Then Luis Ponce rubs the inside of her thighs while holding her legs apart. He does a rubbing motion back and forth across her genitalia. Then Luis Ponce touches her ankles and puts his hand... back up to SP’s upper thighs. And again rubs SP’s genitalia.... Then Luis Ponce sets SP over to the side to his left side, and then he gets up and he complains about cereal being on the floor. [¶] After a short time... and right after SP is seen with a slide,... Luis Ponce again gets with SP, hold[s] her down on the floor while it appears SP is trying to protect herself and reaches toward her buttocks and... rubs her. And then uses the finger and rubs her from the front over her genitalia in a masturbating motion, while laying across her. Then he gets off of her and SP sits up and covers herself up.”

At the preliminary examination, Detective Pettitt specified this clip as tape four recovered from defendant’s locker. His description of the tape was as follows: “At the beginning of that tape when I initially put it in, there’s a -- the camera’s on a blond haired female who’s subsequent[ly] identified as SP. In my report I had her estimated approximately three to four years of age. And then the blond male -- there was another blond male CP in that video that I estimated to be approximately five years of age. They appeared to be again being videotaped. Possibly watching TV. The picture of them was kind of a side picture of them. While their attention was drawn -- and you could hear stuff in the background so their attention is drawn over in another direction so you could see the sides of their face.... Soon the subject who was videotaping them enters ... the frame of the video. And grabbed or holds SP and places her on his lap, at which point he pulls up her dress and pulls her underwear to the side exposing her vagina. And then he puts her -- takes her off... his lap,.... Places her on the ground on her stomach. [¶]... After he lays her on her stomach, he kind of lays part of his body on her and rubs her anus and vaginal area. [¶]... He’s rubbing using his hand to rub over SP’s underwear over her, both her buttocks and her genital area. [¶]... Over her clothing.”

Having reviewed clip 25, it is apparent that it is the same clip Detective Pettitt described at the preliminary examination. The clip begins with a video of the two children apparently watching television, and ends with S.P. on her stomach, defendant lying on top of her, and rubbing her anal and vaginal area over her underwear. Thus, defendant’s argument that the evidence used to secure these convictions was not shown at the preliminary examination is without merit.

V

Trial Court Should have Awarded Conduct Credits

The parties agree that the trial court incorrectly awarded defendant 524 days of custody credit, when the correct amount of custody credit was 530 days. Additionally, the trial court did not award conduct credits, deferring the decision to award such credits to the Department of Corrections and Rehabilitation.

Defendant was arrested on January 26, 2006, and was sentenced on July 9, 2007.

Under section 4019, subdivisions (b), (c), and (f), a prisoner is entitled to two days of conduct credit for every four days served in custody. (People v. King (1992) 3 Cal.App.4th 882, 885.) Where, as here, the defendant is convicted of certain violent felonies, the maximum credit that may be earned may not exceed 15 percent of the actual period of presentence confinement. (§ 2933.1.) The trial court has the duty to calculate and award the appropriate credits. (§ 2900.5, subd. (d); Cal. Rules of Court, rule 4.472; People v. Sage (1980) 26 Cal.3d 498, 508-509.)

The parties agree defendant is entitled to 79 days of conduct credit. We shall direct the trial court to modify the judgment to award 530 days of custody credit and 79 days of conduct credit.

DISPOSITION

The judgment is modified to award defendant 530 days of custody credit and 79 days of conduct credit. As modified, the judgment is affirmed. The trial court shall prepare an corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: SCOTLAND, P. J., NICHOLSON, J.


Summaries of

People v. Ponce

California Court of Appeals, Third District, Nevada
Apr 29, 2009
No. C056252 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Ponce

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS PONCE, JR., Defendant and…

Court:California Court of Appeals, Third District, Nevada

Date published: Apr 29, 2009

Citations

No. C056252 (Cal. Ct. App. Apr. 29, 2009)