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Name: People v. Delgado
Case #: G041561
Court: CA Court of Appeal
District 4 DCA
Division: 3
Citation: 181 Cal.App.4th 839
Summary

Penal Code section 784.7 allows prosecution of section 288 violations in any county where any of the offenses occurred. Appellant was convicted of sexually abusing two boys over a 13-year period. The acts against one victim occurred in Los Angeles County, and the acts against the other in Riverside. The crimes were prosecuted in Riverside County, and the Los Angeles District Attorney consented to appellant’s prosecution there. Appellant argued that prosecution of the Los Angeles offenses in Riverside violated his federal vicinage right. The appellate court said it was bound by Price v. Superior Court (2001) 25 Cal.4th 1046, where the California Supreme Court held that the Sixth Amendment vicinage clause does not apply to state criminal trials. The court found it irrelevant that the statute considered by the Price court has since been amended to do away with the same-victim requirement in place at the time. The statute still serves the same justification for joinder, namely elimination of separate trials and repeated testimony. This still holds true because testimony of other child-abuse victims is cross-admissible under Evidence Code section 1108. Application of section 784.7 did not violate the ex post facto clause. Appellant argued that by consolidating the Los Angeles crimes, which were committed in the 1990’s, under section 784.7 as amended in 2003, his punishment increased because he became eligible for a 15-year-to-life term under the One Strike law as there were multiple victims. The court noted that notwithstanding section 784.7, appellant could have been tried and convicted for the Riverside offense, and then tried in Los Angeles. If convicted, he would have been eligible for a potential maximum term of 25-years-to-life under the version of the One Strike law in effect at the time the Los Angeles crimes were committed. This was a term greater than the one imposed and so there was no ex post facto violation.
The People may raise an error involving an unauthorized sentence for the first time in a defendant’s appeal, even if they have not cross-appealed. Respondent argued that the trial court erred in not imposing full, separate and consecutive sentences on two counts pertaining to one victim under section 667.6, subdivision (d). Appellant did not argue the statute was inapplicable, but rather claimed any error was waived by the prosecution since they did not appeal. The court noted an unauthorized sentence is correctable at any time and can be raised by respondent for the first time on appeal, even if it results in a harsher sentence. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.)

Opinion Date: 01/15/2010