P. v. Loi

Filed 2/28/07 P. v. Loi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles Jones, Judge. Affirmed.

A jury convicted Nuh Nhuoc Loi of crimes involving three different victims. Loi was convicted of forcible oral copulation on victim Dianne C. (Pen. Code,  288a, subd. (c),^[1]count 3), attempted forcible oral copulation on victim Audrey C. ( 288a, subd. (c)/664, count 2), and five separate offenses on victim Hitomi N.^[2] The jury also found true various special allegations, including personal use of a knife ( 12022, subd. (b)(1)) and kidnapping with substantial increased risk to the victim ( 667.61, subds. (a), (c) & (d)) as to count 4, commission of crimes against more than one victim ( 667.61, subds. (b), (c) & (e)) as to counts 3 and 4, and a venue allegation ( 784.7, subd. (a)). Loi was sentenced to a 40-year-to-life indeterminate term and a four-year consecutive determinate term, with all remaining sentences either stayed or imposed as concurrent terms.

On appeal, Loi asserts the evidence is insufficient to support the conviction on count two, and raises several legal challenges to his conviction on count three.

I

FACTS^[3]

A. Count 3

In 1997 Loi and Dianne C. were coworkers in Ventura County. He offered to drive her home one afternoon. However, instead of driving to her home, he parked the car near a building, with the passenger door so close to the wall that she could not open it, and unzipped his pants. She protested but Loi nevertheless grabbed her head and forced her mouth onto his penis for two or three minutes until he ejaculated. She did not fight him because he was much stronger and she feared he would become more violent.

B. Count 2

In March 2003 Audrey C. met Loi at Mission Bay Park in San Diego County. He approached her, introduced himself as "Jason," and told her he was new to the area. During their conversation, he mentioned he had just broken up with his boyfriend, and claimed he had a "straight" friend he would like to introduce to her because they would be a good match; they exchanged telephone numbers.

Loi telephoned Audrey the next evening and said he had some flowers for her that his friend had sent for her and asked permission to visit her. She gave Loi her address and he arrived a short time later. He was not carrying flowers, but instead brought four bottles of wine as well as a purse and a necklace as gifts for Audrey. He opened a bottle of wine and, while they sat on the couch and drank wine, he commented that he had never had a little sister and wanted to be her big brother and watch out for her. He put his arm around her and commented, "Oh, I knew you had a cute body."

Loi then stated he sensed Audrey was stressed and said he could look into the future and see what was in store for her. He then picked up some candles, took them into the bedroom, lit them and sat on the floor and convinced her to sit across from him. He produced a deck of cards and did "some weird kind of thing where he was saying that there was some power controlling him to write certain things down, and he was scribbling random things on a piece of paper." Audrey was skeptical until he said her former boyfriend's name was Jason. She became curious because she had never mentioned this fact to Loi. Loi then said Jason had put a curse on her, and she would be involved in a major car crash "in the next month or so." Audrey was shaken by that statement. However, Loi told her not to worry, that he was her big brother, would take care of her, and he could channel her ex-boyfriend into his own body. He said "I need to get inside of you to cleanse you out, and I need to get down on you."

They were sitting on the floor facing each other, with their legs folded "Indian style" and their knees almost touching, when Loi leaned toward her and reached with both hands and started trying to unzip Audrey's pants. She pushed him away, telling him to leave her apartment, and she stood up and backed away from Loi. However, he kept saying "I need to get inside you. I need to get Jason's curse off of you," and appeared to become more agitated. Loi stood, moved toward her, and "more forcibl[y]" put his hands on her pants to try to unzip them, but she backed up and pushed his hands away again and demanded he leave. Loi was agitated at Audrey's rejection, and she perceived he might "force something on me." However, he finally began to move toward the front door, stating, "You bitch. You're just like all the other bitches." Once outside, he remained near the door for another 30 seconds, and Audrey heard him say, "This is not the last you'll hear of me."

Audrey reported the incident immediately and police responded, collected the items Loi had left behind, and obtained Loi's cellular telephone number and license plate from Audrey.

C. Counts 1, 4-7

In March or April of 2003 Hitomi N. was walking to her car in San Diego County when Loi accosted her. He threatened her with a knife and stated, "You're Hitomi N----. I know where you live." He told her the exact address of her apartment, and said, "I know where your boyfriend is. I know where he is, where he lives. I know what his name is, I could come after him too." Loi forced her to walk to his car, where he sexually assaulted her. He then forced her head onto his penis and forced her to copulate him until he ejaculated.

Loi then demanded her wallet and, when she complied, he took approximately $300 before throwing the wallet back to her. He then warned her, "You know, don't forget I know everything about you and your boyfriend. So if you go to the police, you know what's going to happen." She eventually reported the incident to police and identified Loi as her attacker in a photographic lineup.

II

ANALYSIS OF CHALLENGES TO COUNT 3

Loi asserts the conviction for count 3 must be reversed because (1) the prosecution failed to show the requisite consent that would make venue in San Diego proper under section 784.7; (2) section 784.7 is unconstitutional under the Sixth Amendment to the United States Constitution; (3) application of section 784.7 as to him violates the ex post facto clauses of the state and federal Constitutions; and (4) the prosecution on count 3 is time barred.

A. The Venue Provisions

Section 784.7, subdivision (a) provides in relevant part: "When more than one violation of section . . . 288a . . . occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present evidence in writing that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions where there is no written agreement from the district attorney shall be returned to that jurisdiction."

Section 954 provides: "An accusatory pleading may charge two or more different offenses . . . of the same class of crimes or offenses, under separate counts . . . provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."

Section 784.7 was enacted by the Legislature as an exception to the general rule of venue in section 777, which provides that, "except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." The Legislature has made section 784.7 an exception to the general venue statute, and has authorized the prosecution to elect a county as an alternative venue for trial of the offenses occurring in a different county, as long as one of the offenses joined in the accusatory pleading occurred in the elected county.^[4] (Price v. Superior Court (2001) 25 Cal.4th 1046, 1055-1056.)

B. Loi's Challenge to Venue

Loi contends the conviction on count 3 must be reversed because there is no evidence the prosecutor met the procedural requirements of section 784.7 by obtaining the written agreement of the District Attorney of Ventura County to permit San Diego County to serve as the venue for trial of the Ventura County offense.

Venue would be proper in San Diego County as long as the requirements of section 784.7 are satisfied. Because one of the charged section 288a offenses occurred in San Diego County, the other charged section 288a offense that occurred in Ventura County was properly joined and tried in San Diego County, "subject to a hearing, pursuant to Section 954" within San Diego County. ( 784.7, subd. (a).) Although there is nothing in the record that a section 954 hearing was held, there is also nothing in the record that Loi objected to the lack of a writing from the District Attorney of Ventura County agreeing to venue in San Diego County.

The commencement of a proceeding in an improper venue is a defect that can be easily remedied if the issue is timely raised, and a defendant's failure timely to raise an objection to venue will often reflect a strategic decision on the part of the defense. (People v. Simon (2001) 25 Cal.4th 1082, 1104-1105, fn. 15.) Simon concluded that, "taking into account the nature and purpose of the venue safeguard and the substantial state interest in protecting the integrity of the process from improper 'sandbagging' by a defendant, we conclude that a defendant who fails to raise a timely objection to venue in a felony proceeding forfeits the right to object to venue--either at trial or on appeal. [Citations.]" (Id. at p. 1104.) Simon, although evaluating the different issue of the timeliness of an objection to venue, noted that a claim of improper venue "may be raised by demurrer . . . , by a challenge to venue specifically raised before the magistrate at the preliminary hearing, or by a motion under section 995 challenging the validity of an indictment or information" and concluded "a specific objection to venue" is to be considered timely if made prior to the commencement of trial. (Id. at pp. 1106-1107, italics added.)

Loi asserts he satisfied Simon by preserving the objection when his attorney asserted, at the preliminary hearing, that count 3 "occurred, if at all, in March of 1997 [and] out of the jurisdiction of San Diego County [and] [t]here has been no evidence presented giving San Diego County the authority to prosecute that offense." However, his principal argument was that the prosecution was time barred and resurrecting it violated ex post facto laws. He did not mention the "written agreement" element of section 784.7. Moreover, the prosecutor (responding to Loi's argument) stated that as to count three "there is a Penal Code allegation [under section] 784.7(A). [Count three] occurred in . . . Ventura [County]. The showing the People have to make is that it is in a county other than San Diego and one of the other counts is in San Diego. There is a specific procedure if the defense wants to raise the issue [of] whether the District Attorney from [San Diego] has permission from the District Attorney of [Ventura]. I think it refers to a section 954 motion that has to be brought. . . ." The defense did not thereafter mention venue or bring a section 954 motion.

We conclude Loi's objection at the preliminary hearing to the absence of "evidence . . . giving San Diego County authority to prosecute the offense" was inadequate to preserve the issue for appeal. First, Simon's reference to the means for raising and preserving the issue included its citation with approval to People v. Remington (1990) 217 Cal.App.3d 423. (See People v. Simon, supra, 25 Cal.4th at p. 1107.) In Remington, the court ruled that merely mentioning a venue objection at the preliminary hearing, but thereafter not raising it by motion in the superior court after the defendant had been bound over for trial, was a waiver of the issue. (Remington, at pp. 429-430.) Second, the statutory language of section 784.7 specifies the procedure for interposing the lack of written agreement objection, because it provides that venue for all joined offenses is proper in any county in which one of the offenses occurred "subject to a hearing, pursuant to Section 954" and that "[a]t the Section 954 hearing, the prosecution shall present evidence in writing" of the agreement to venue by the other district attorneys. ( 784.7, subd. (a).) We construe section 784.7 to permit joinder of extra-territorial offenses as an exception to the ordinary statutory venue rules, and places the onus on the defendant (if he or she wishes to seek to have the case tried in the county of its commission) to institute a section 954 motion to sever, but the prosecutor can defeat a request for severance by producing written evidence of agreement from the other county. Requiring adherence to this specific procedure to preserve the issue is consonant both with Simon's articulated requirement that venue is waivable absent a "specific objection" to venue, as well as Simon's underlying policy concerns that venue claims "easily . . . remedied if timely raised" (Simon, at p. 1104, fn. 15) and should not be an avenue for "improper 'sandbagging.' " (Id. at p. 1104.)

Accordingly, we find in this case that Loi has forfeited his right to object to the trial in San Diego County for the offense in count 3 that occurred in Ventura County.

C. Section 784.7 does Not Violate the Sixth Amendment

Loi argues that section 784.7, by authorizing (subject to certain conditions and procedures) the prosecution in one county of an offense committed in a different county, transgresses his rights under the Sixth Amendment to the United States Constitution and is therefore unconstitutional. This precise argument was raised in and rejected by the court in Price v. Superior Court, supra, 25 Cal.4th 1046, which concluded section 784.7 (in its pre-2002 form, see fn. 4, ante) did not offend the Sixth Amendment's vicinage protections. Loi notes the statute was amended after Price but articulates no basis for concluding these statutory changes obviate the analysis of Price. Accordingly, we must adhere to Price (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and reject Loi's claim.

D. The Ex Post Facto Claim

Loi argues section 784.7, as applied, violated the ex post facto clause because it effectively increased his sentence beyond the term that applied when the crime was committed in 1997. He argues that, under the statutory scheme applicable in 1997, trial of count 3 could not have been joined with the other charges, and therefore his sentence on count 3 (for violating  288a, subd. (c)(2)) would have been limited to a determinate term of three, six or eight years. However, because section 784.7 permitted the prosecution to join trial of count 3 with the other counts, his sentence for count 3 was increased under the "One Strike" law ( 667.61) by triggering subdivision (e)(5), which provides a 15-year-to-life sentence ( 667.61, subd. (b)) for a defendant who "has been convicted in the present case or cases of committing [a qualified sex offense] against more than one victim."^[5] ( 667.61, subd. (e)(5).)

We are not persuaded by Loi's ex post facto claim because the enactment of section 784.7 did not increase the maximum sentence to which Loi was exposed. The court in In re John L. (2004) 33 Cal.4th 158 explained:

"[A]n ex post facto violation does not occur simply because a postcrime law withdraws substantial procedural rights in a criminal case. [Citation.] Even new methods for determining a criminal sentence do not necessarily involve punishment in the ex post facto sense. [Citations.] . . . .

"Contrary to what petitioners imply, the ex post facto clause regulates increases in the ' " 'quantum of punishment.' " ' [Citations.] Although no universal definition exists [citation], this concept appears limited to substantive measures, standards, and formulas affecting the time spent incarcerated for an adjudicated crime. For example, an ex post facto violation occurs where laws setting the length of a prison sentence are revised after the crime to contain either a longer mandatory minimum term [citation], or a higher presumptive sentencing range [citation]. Impermissible increases in punishment also have been found where a new postcrime formula for earning gain-time credits postpones an inmate's eligibility for early release [citation], or where retroactive cancellation of overcrowding credits requires reimprisonment of an inmate who has been freed. [Citation.]

"However, not every amendment having 'any conceivable risk' of lengthening the expected term of confinement raises ex post facto concerns. [Citation.] In [California Dept. of Corrections v. Morales (1995) 514 U.S. 499], a California law allowed the parole board, after holding an initial hearing, to defer subsequent parole suitability hearings up to three years for inmates convicted of multiple homicides, provided it found parole was not reasonably likely to occur sooner. (Id. at p. 503.) Finding no retroactive increase in punishment, the high court emphasized that there had been no change in the applicable indeterminate term, in the formula for earning sentence reduction credits, or in the standards for determining either the initial date of parole eligibility or the prisoner's suitability for parole. (Id. at p. 507.) . . . At bottom, no ex post facto violation occurred because the risk of longer confinement was 'speculative and attenuated' (id at p. 509), and because the prisoner's release date was essentially 'unaffected' by the postcrime change. (Id. at p. 513; citation.)

"Here, any penal consequences attributable to petitioners' . . . crimes are 'unaffected' by the . . . procedures [adopted after the date of the crime]. (Morales, supra, 514 U.S. 499, 513.)" (In re John L., supra, 33 Cal.4th at pp. 181-182.)

Section 784.7, although altering procedural methods, did not increase the quantum of punishment for Loi's section 288a conviction beyond the term potentially applicable at the time the crime was committed in 1997. The "One Strike" law, as it existed in 1997, provided a potential maximum term of 25 years to life if the defendant was convicted of a section 288a offense and the jury found he had a prior conviction for violating section 288a. (See Stats. 1994, ch. 447,  1.) Accordingly, even had section 784.7 not been invoked, Loi could have been tried separately for the Ventura County offense in Ventura after his trial on and conviction for the San Diego crimes, and the resulting conviction for the Ventura County offense would have triggered a potential maximum sentence of 25 years to life, a sentence greater than he incurred as a result of procedural changes implemented by section 784.7's joinder provisions. For this reason, we are convinced section 784.7's application to Loi does not offend ex post facto protections.

E. Statute of Limitations

Loi asserts prosecution for the Ventura County offense was time barred because the statute of limitations for a section 288a offense as of 1997 was six years, and section 801.1 (which provides the statute of limitations for a  288a offense is 10 years, see  801.1, subd. (b)) was enacted in 2004, after the former six-year statute of limitations had elapsed. Loi argues that Stogner v. California (2003) 539 U.S. 607 holds that a legislature may not (after pre-existing limitations periods had expired) enact a statute purporting to extend the statute of limitations if its effect will be to resurrect an otherwise time-barred criminal prosecution, because resurrection of a time-barred claim violates the ex post facto clause.

However, Loi cites no authority holding that, as to offenses for which the statute has not yet run, the ex post facto clause is offended by an enactment extending an unexpired limitations period, and Stogner expressly stated its holding "does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred." (Stogner v. California, supra, 539 U.S. at p. 632, italics added; see People v. Superior Court (German) (2004) 116 Cal.App.4th 1192, 1195-1197.) In 2000, before the six-year statute had run on Loi's 1997 offense, the limitations for section 288a offenses was extended to 10 years by the enactment of former section 803, subdivision (h)(1). (Stats. 2000, ch. 235,  1.) In 2004, the legislature enacted section 801.1 and amended former section 803, subdivision (h)(1), which, as is relevant here, effectively moved the existing 10-year statute of limitations from section 803, subdivision (h)(1) to section 801.1. (See Stats. 2004, ch. 368,  1, 2.) Because the 10-year statute of limitations was extended before the time for prosecuting Loi's crime had expired, the present prosecution is not precluded by ex post facto principles.

II

ANALYSIS OF CHALLENGE TO COUNT 2

Loi asserts the evidence is insufficient to support the conviction for attempted forcible oral copulation against Audrey.

A. Legal Standards

A defendant commits forcible oral copulation under section 288a, subdivision (c)(2) when he accomplishes the oral copulation, without the consent and against the will of the victim, by employing force sufficient to overcome the will of the victim to resist or thwart the attack. (People v. Guido (2005) 125 CalApp.4th 566, 576.) The gravamen of the crime is not whether the defendant employed physical force greater than that which normally attends (and is required to complete) the physical act, but rather whether he used force to accomplish the act despite the victim's contrary will. (Ibid.; cf. People v Griffin (2004) 33 Cal.4th 1015, 1027.)

A defendant is liable for an attempt to commit an underlying offense when (1) he acts with the specific intent to commit the underlying offense, and (2) has taken a direct but ineffectual act toward its commission. (People v. Swain (1996) 12 Cal.4th 593, 604-605.)

When a defendant challenges the sufficiency of the evidence to support a conviction, we must review the entire record most favorably to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In making this determination, we consider the evidence most favorably to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Mincey (1992) 2 Cal.4th 408, 432.) The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt, and reversal is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

B. Analysis

Loi asserts that, under People v. Senior (1992) 3 Cal.App.4th 765, a defendant does not employ force within the meaning of the forcible oral copulation statute unless he employs " ' "physical force substantially different from or substantially in excess of that required for the [proscribed sexual act]." ' " (Id. at p. 774, quoting People v. Quinones (1988) 202 Cal.App.3d 1154, 1158.) Loi asserts that because there is no evidence he attempted to engage in any act apart from the physical contact inherently required to prepare for engaging in the sexual act itself, the evidence is insufficient to support a finding that he attempted to employ force within the meaning of section 288a.

However, Quinones derived its test for "force" (e.g. requiring there be "physical force substantially different from or substantially in excess of that required for the [sexual] act") by citing and relying on the dissent in People v. Cicero (1984) 157 Cal.App.3d 465, 487-488 (dis. opn. of Regan, J.) (see People v. Quinones, supra, 202 Cal.App.3d at p. 1158), and the court in Griffin expressly disapproved use of the Cicero formulation for determining whether "force" was used in the context of a forcible rape case. (People v. Griffin, supra, 33 Cal.4th at p. 1028.) Because we agree with the analysis of People v. Guido, supra, 125 Cal.App.4th 566, and its conclusion that "there is no reasoned basis to apply a different concept of the term 'force' to forcible rape and forcible oral copulation" (id. at p. 576), we conclude Griffin has sub silencio disapproved People v. Senior, supra, 3 Cal.App.4th 765.

Instead, we must evaluate whether there is substantial evidence that Loi made a direct but ineffectual effort to employ force to overcome Audrey's will to resist his attempt to orally copulate her. Here, Loi's initial effort to solicit her cooperation (by trying to unzip her pants) was rebuffed by Audrey's physical acts (of pushing his hands away from her and by standing up to place distance between them) and by her verbal commands that he immediately leave. While Loi's initial act may alone have been inadequate to support a conclusion that he attempted to employ force to overcome her will, Loi chose to ignore her stated contrary will by standing and approaching her in a more agitated state and "more forcibl[y]" putting his hands on her pants to try to unzip them. Loi's continuing conduct provides substantial evidence for a jury to find Loi attempted to employ some degree of force to overcome her stated rejection of his sexual advances, and therefore Loi's conviction for attempted forcible oral copulation is supported by the evidence.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] As to Hitomi N., Loi was convicted of sexual battery by restraint ( 243.4, subd. (a), count 1), forcible oral copulation ( 288a, subd. (c), count 4), kidnapping for forcible oral copulation ( 209, subd. (b)(1), count 5), robbery ( 211, count 6) and making a criminal threat (  422, count 7). Loi raises no challenge to these convictions.

^[3] Our factual recitation is limited to those facts necessary to our evaluation of Loi's challenges to counts 2 and 3.

^[4] When section 784.7 was originally enacted, it required that the defendant and the victim be "the same for all of the offenses." (Stats. 1998, ch. 302, 1.) However, in 2002 the Legislature amended the section to eliminate that requirement. At the same time, the Legislature added the provision relating to the procedures for consolidating the charges. (See Stats. 2002, ch. 194, 2; People v. Betts (2005) 34 Cal.4th 1039, 1058, fn. 14.)

^[5] Loi also appears to assert the same ex post facto violation occurred with respect to his sentence on count 4, for which the court sentenced Loi to 25 years to life. However, the sentence on count 4 was imposed under section 667.61, subdivisions (a), (c) and (d), which provides for a 25-year-to-life sentence (subd. (a)) for violating section 288a (subd. (c)) when accompanied by a finding of kidnapping with increased risk to the victim (subd. (d)), as was alleged and found true here. Because the multiple victim allegation and true finding was surplusage and played no role in the sentence on count 4, Loi's ex post facto claim as to the sentence on count 4 is not persuasive. (Cf. People v. Farley (1996) 45 Cal.App.4th 1697, 1710.)