P. v. Lacy

Filed 1/22/07  P. v. Lacy CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

            APPEAL from a judgment of the Superior Court of Los  Angeles County, Eric  C. Taylor, Judge.  Affirmed in part and reversed in part.

            Nicolas J. Estrada for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant James Alfred Lacy appeals from the judgment entered after a jury convicted him of two counts of committing a lewd act upon a child and one count of continuous sexual abuse.  (Pen. Code, §§ 288, subd. (a); 288.5, subd. (a).[1])  He contends:  (1)  the convictions for violating section 288, subdivision (a) should be reversed, as prosecution for those crimes is barred by the statute of limitations; (2)  the trial court erred when it denied his section 995 motion; (3)  his statement to police was taken in violation of his Miranda rights;[2] (4)  his section 1118.1 motion should have been granted; (5)  his tape-recorded statement should not have been played to the jury because much of the recording is inaudible; (6)  the prosecutor misstated the evidence on the tape in her closing argument; (7)  the court erred by giving CALJIC Nos. 2.50 and 2.50.1; (8)  evidence admitted pursuant to Evidence Code section 1101, subdivision (b) should have been excluded; (9)  he is entitled to a new trial; and (10)  he should be granted bail on appeal.  The Attorney General agrees that the statute of limitations bars prosecution for the two charges brought under section 288, subdivision (a).  We concur with the parties and reverse those convictions.  We otherwise affirm the judgment.

PROCEDURAL BACKGROUND

            Defendant was originally charged in a 12-count complaint.  It alleged that he committed lewd acts with two children under the age of 14, committed incest with one of the children, and engaged in continuous sexual abuse with a third child.  (§§ 288; subd. (a); 285; 288.5, subd. (a).)  Laura M., defendant's daughter, was the victim in counts 1 through 10, Lacy M, defendant's granddaughter, was the victim in count 11, and Marissa  M., also defendant's granddaughter, was the victim in count 12.  It was further alleged that although the statute of limitations had expired as to counts 1 through 10, prosecution was authorized by section 803, subdivision (g). 

            At the preliminary hearing, defendant argued there was insufficient evidence to bind him over for trial and counts 1 through 10 were barred by the statute of limitations.  He was held to answer on all counts.  After defendant's arraignment on the information, he filed a motion to set aside the information pursuant to section 995.  The trial court granted the motion as to counts 1 through 5 and 8 through 10, finding the prosecution had failed to prove all of the elements required by section 803, subdivision (g).  The motion was denied as to the other counts.  The remaining counts alleged violations of section 288, subdivision (a) as to Laura M. (counts 6 and 7), section 288.5, subdivision (a) as to Lacy M. (count 11), and section 288, subdivision (a) as to Marissa M. (count 12).[3]

            Prior to trial, defendant sought to exclude his statement to police, the tape recording of his statement to police, and evidence of uncharged prior sex acts he committed against Laura M.  The trial court denied his motion in its entirety.  After the prosecution presented its case-in-chief, defendant moved to dismiss all counts pursuant to section 1118.1.  The motion was granted as to count 12 only.  The jury convicted defendant of the charges in counts 6, 7, and 11.

            The court sentenced defendant to 16 years in state prison for the violation of section 288.5, subdivision (a) and two consecutive terms prescribed by law for the two violations of section 288, subdivision (a).[4]   

STATEMENT OF FACTS

The Prosecution Case

          Laura M. is defendant's daughter.  As a child, she lived with defendant, her mother, and three brothers in a house in Carson.  In approximately 1963, when she was about seven or eight, while on a sofa in the living room, defendant became aroused as she sat on his lap and began grinding or bumping against her with his genital area.  Laura could feel his penis.  This activity took place on other occasions.  Defendant pretended it was a game. 

            When Laura was nine or 10, defendant began to take her to his bedroom.  He touched her genitals and asked her to touch his.  At first, they touched each other through clothing; later, it was on bare skin.  As time went on, defendant began placing his fingers in her vagina and engaging in acts of mutual oral sex.  By the time Laura turned 11, defendant was having sexual intercourse with her.

            When Laura was about 14, she began to tell others about the sex acts.  She told her counselor at school, people at church, and her mother.  She remembered arguments between defendant and her mother.  Following the arguments, the sex would cease for a month or so, but then continue.  The acts of intercourse finally ended when Laura was 16 and decided to run away from home.  Defendant came after her, and she told him the abuse had to stop.  It did.

            Due to severe medical problems, Laura moved back to her parents' home with her daughter Lacy in June 2000.  For a time, Laura and Lacy lived in a motor home on the property.  Eventually, they moved into the house.  Laura was concerned about having Lacy in the home with defendant, and she told Lacy not to go upstairs alone, as defendant's bedroom was there.  Laura noticed that Lacy would sit on defendant's lap, but Lacy did not complain about his behavior and Laura did not witness any acts of sexual abuse.  They moved out of the house in August 2001, after the charges in the instant case were filed against defendant. 

            Los Angeles County Sheriff's Deputy Douglas Blaydes was a detective and the investigating officer assigned to defendant's case.[5]  He was a 29-year veteran of the department who had worked in the child abuse detail for the last 13 or 14 years.  In July 2001, Laura told Detective Douglas Blaydes about the sex she had engaged in with defendant when she learned that Lacy had made similar allegations.  Until then, Laura had not told any law enforcement officer about her sexual activity with defendant. 

            Lacy M. is defendant's granddaughter.  She would sit on his lap while they were in the living room.  When she was on his lap, defendant touched her â€