Filed 9/9/15 P. v. Rudd CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068434
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12909339)
                   v.

RONALD RAY RUDD,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan
Conklin, Judge.
         Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *   Before Levy, Acting P.J., Poochigian, J. and Franson, J.
                                      INTRODUCTION
       Appellant/defendant Ronald Ray Rudd, committed to Coalinga State Hospital, was
found in possession of an external drive connected to his television, which contained
multiple child pornography videos. After a bench trial, he was convicted of felony
possession or control of child pornography (Pen. Code, § 311.11, subd. (b)),1 with three
prior strike convictions. He was sentenced to the third strike term of 25 years to life.
       On appeal, his appellate counsel has filed a brief that summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed a letter
brief and requests this court address certain issues. We affirm.
                                            FACTS
       On March 21, 2012, defendant was a patient at Coalinga State Hospital. He was
housed in a four-person room which was divided by partitions. Defendant lived in the
front right section of the room.
       Around 7:00 p.m., Denise Martin, a psychiatric technician, advised another patient
to take his medication. The patient told Martin to look at the television on the right side
when she entered the room where defendant was housed. Martin went to the room and
saw defendant lying on his bed. He was facing the television. Martin looked at the
television, and it was showing a child performing an act of oral copulation on an adult.
Martin left the room and called for another staff member.
       Martin and a coworker entered defendant’s portion of the room. Martin believed
defendant was watching a pornographic DVD, and she told defendant they needed the
DVD. Defendant was unresponsive and might have been asleep. Martin repeated the
request. Defendant said, “No. I just need to erase it. It is not a DVD.” Martin
repeatedly demanded defendant produce the DVD. Defendant finally turned off a small

       1   All further statutory citations are to the Penal Code unless otherwise indicated.


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black box that was attached to the television. He disconnected the cord from the
television, and handed the device to Martin’s coworker, who gave it to Martin. Martin
went to the nurse’s station and placed the device in a clear plastic bag.
       Around 7:30 p.m., Officer Phillip Wikler responded to the nurse’s station and
received the device from Martin. The device was identified as a black Toshiba external
hard drive.
       Officer Wikler contacted defendant in his room and asked for permission to search
it. Defendant agreed. Wikler did not find any contraband. Defendant “declared that he
wanted to tell us everything.” Wikler asked defendant if he would speak with him in an
adjoining conference room, and defendant agreed.
       Officer Wikler and defendant went into the conference room, and the hallway door
remained open. Wikler advised defendant that he could end the conversation and leave at
any time. Wikler asked defendant if the child pornography on the device belonged to
him, referring to the external drive seized from his room. Defendant said yes.
       Thereafter, Officer Wikler advised defendant of the warnings pursuant to Miranda
v. Arizona (1966) 384 U.S. 436. Defendant waived his rights and continued to answer
questions. Wikler was holding the external drive, and asked: “Is this yours?” Defendant
again said yes. Wikler asked defendant what was on the drive. Defendant said there
were some movies and child pornography. Defendant offered a detailed description of
the child pornography that was on the device. Defendant said he received the device with
the child pornography on March 15, 2012, and watched the films until they were removed
from his possession. Defendant also said he felt he was being ignored and overlooked by
the hospital staff, and he was desperate for attention. Defendant said he obtained the
child pornography to get some help from the staff. Wikler gave the external drive to
Officer Barraza, who booked it into the evidence locker.
       On March 23, 2012, Sergeant Jerry Duvall conducted a tape-recorded interview
with defendant and again advised him of the Miranda warnings. Defendant agreed to

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answer questions. Duvall advised defendant about the investigation and asked him what
happened. Defendant said he walked around the hallways and asked other patients for
child pornography. Jerome Golden, another patient, agreed to get some for him. A third
patient delivered the external drive to defendant. Defendant was able to watch the
contents of the drive by connecting it to his television through a video player. Defendant
said there were at least 12 videos on the drive. Defendant described the contents in detail
and said the films depicted very young boys performing particular sexual acts on adult
males. Defendant said that when the staff entered his room and saw the videos, he had
fallen asleep in front of the television.
       In June 2012, Sergeant Duvall retrieved the external drive from the evidence
locker and conducted a forensic examination of its contents. The device contained 15
separate movies. Duvall determined that 14 of the movies consisted of child
pornography, and one movie might have been child pornography. Duvall saw images
consistent with defendant’s description of the contents. Duvall testified that contraband
videos are often exchanged among patients at the hospital. When Duvall watched
defendant’s external drive, he recognized at least three of the videos because he found the
same contraband during investigations involving other patients at the hospital.
       Using secure software, Sergeant Duvall and the evidence technician created
exhibit No. 1, a CD that was an identical copy of the entire contents of the external hard
drive. At defendant’s trial, the parties stipulated to the court that exhibit No. 1 contained
child pornography; the external drive seized from defendant was not introduced into
evidence. Duvall testified he had not watched exhibit No. 1 since it was created by the
evidence technician. During a break in his testimony, Duvall watched the CD and
confirmed it contained the same 15 videos that he found on defendant’s drive.




                                              4.
Procedural History
       On November 12, 2013, a first amended information was filed which charged
defendant with one count of felony possession or control of child pornography with three
prior strike convictions.
       On the same day, defendant waived a jury trial and a bench trial commenced. The
court found defendant guilty and the three prior strike convictions true.
Defendant’s Prior Convictions
       Defendant’s prior convictions were addressed in the probation report and the
prosecution’s sentencing statement. In 1972, defendant (born 1951) was convicted in San
Diego of misdemeanor offenses of committing a lewd act on a child (§ 288) and oral
copulation on a minor (§ 288, subd. (a)). In 1973 and 1974, he was committed to
Atascadero State Hospital as a Mentally Disordered Sex Offender (MDSO).
       In 1978, defendant was charged with felony offenses of committing a lewd act on
a child and sodomy. The offenses occurred when defendant placed an advertisement in a
Long Beach newspaper as a babysitter. Defendant was hired by the parents of a five-
year-old boy. The parents later discovered defendant had sexually molested the child on
multiple occasions. Defendant was again committed to Atascadero as an MDSO.
       Defendant’s prior strikes were based on three felony convictions for committing a
lewd act upon a child under the age of 14 years in 1989 (§ 288, subd. (a)). The offenses
occurred when defendant lived in a van near a park. The victim was a six-year-old boy
who went to the park to escape his abusive stepfather. Defendant was introduced to the
victim by the codefendant. For a two-month period, defendant committed multiple acts
of oral copulation and sodomy on the victim, and took pictures of the victim when he was
nude. Defendant and the codefendant also molested the victim at the same time. The
victim’s mother learned of the molestations, took the victim to the hospital, and he was
diagnosed with a sexually transmitted disease. Defendant was charged with six counts of



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violating section 288, subdivision (a). He pleaded guilty to three counts, admitted a prior
prison term enhancement, and was sentenced to 15 years in prison.
       After completing his sentence, defendant was transferred to Atascadero in 1986
where proceedings were instituted pursuant to former Welfare and Institutions Code
section 6610, and he was committed as a sexually violent predator. He was later moved
to Coalinga.
       Defendant was 62 years old at the time of this trial. He reported he had high blood
pressure and seizures, and he used a wheelchair because of arthritis in his knees.
Motion to Dismiss Prior Strikes
       After defendant was convicted in this case, he filed a request for the court to
dismiss his three prior strike convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, and for imposition of a determinate sentence. The motion
asserted that the current offense was not serious or violent, he acknowledged wrongdoing
at an early stage, he cooperated with officers, and his three prior strike convictions were
from a single case that occurred 24 years ago. Defendant noted his age, poor health, and
that he was confined to a wheelchair. Defendant conceded he did not have any outside
support system and requested the court return him to Coalinga State Hospital under a
civil commitment.
       The prosecutor filed opposition and cited defendant’s lengthy record of
victimizing children, which began in 1973 and continued while he was committed to
Coalinga State Hospital. The prosecutor argued that the court should not dismiss
defendant’s prior strike convictions because of his history of taking advantage of and
victimizing children, and actively seeking out child pornography while housed at the state
hospital. The prosecutor noted the child pornography films in defendant’s possession
depicted the same or similar acts as those for which he was convicted in 1989.




                                             6.
Sentencing Hearing
       On November 22, 2013, the court conducted the sentencing hearing. The
prosecutor stated defendant was committed to the state hospital after he served his
sentence for the prior strike convictions, and he had never been out of custody.
Nevertheless, defendant still found a way to exploit children by obtaining several videos
of child pornography, and the indeterminate third strike term was the best way to ensure
he did not pose a threat to children in the future.
       Defense counsel urged the court to dismiss the prior strike convictions, and
asserted defendant would likely be sent back to the state hospital if he received a
determinate term. The prosecutor disagreed and said defendant would be sent to state
prison even if he received a determinate term. If he came up for parole, he would be
evaluated as a sexually violent predator, petition for release, and again pose a threat to
children.
       The court denied defendant’s request to dismiss the prior strike convictions, and
sentenced him to 25 years to life. The court noted that while it had discretion to dismiss
the prior strikes, it lacked discretion to commit defendant to the state hospital. The court
followed the probation report’s recommendation for custody credits: defendant was held
in jail from March 21, 2012, to November 22, 2013, and earned 612 actual days and 612
days of credit, for a total of 1,224 days.
                                       DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on August 21, 2014, we
invited defendant to submit additional briefing. On August 29, 2014, defendant filed a
letter brief which raises several issues.
       First, defendant apparently challenges the sufficiency of the evidence to support
his conviction and asserts he was not facing the television, and he was asleep, when

                                              7.
Martin entered his room and saw the child pornography on the television. “In assessing
the sufficiency of the evidence, we review the entire record in the light most favorable 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. [Citations.] Reversal on this ground is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Defendant’s
conviction is supported by overwhelming evidence given his repeated admissions to the
officers about how he sought and obtained the child pornography from another patient,
attached the external drive to his television, and repeatedly watched the videos until the
device was seized from him. He offered detailed descriptions of the contents of the drive.
       Next, defendant asserts that the external hard drive “went from 9 to 15” videos
after he turned it over to the officers, and “I do not know where the other [videos] came
from.” This argument is also refuted by his admissions to the officers: When he readily
explained that the device contained child pornography, described the videos in detail, and
said there were at least 12 videos on the external drive. Officer Duvall determined the
drive contained 15 videos, 14 movies consisted of child pornography, and one movie
might have been child pornography. Duvall saw images consistent with defendant’s
description of the contents.
       Defendant also complains about the court’s calculation of custody credits, and
contends he should receive more credits because he has continuously been in custody
since 1989. “[S]ection 2900.5 provides that a convicted person shall receive credit
against his sentence for all days spent in custody, including presentence custody
[citation], but ‘only where the custody to be credited is attributable to proceedings related
to the same conduct for which the defendant has been convicted’ [citation]. The statute’s
application is clear when the conduct that led to the conviction and sentence was the sole
cause of the custody to be credited.” (People v. Bruner (1995) 9 Cal.4th 1178, 1180,

                                             8.
italics added in original.) According to the probation report, defendant was held in jail
after he was arrested for possession of the child pornography at the state hospital. The
court properly calculated his custody credits based on that presentence period. He was
not entitled to any credits for the period prior to his arrest.
       Finally, defendant questions why the court found he had three prior strike
convictions because he has only been to prison twice, served his time, and then sent to the
state hospital. As set forth above, defendant’s prior strike convictions were based on the
1989 case where he repeatedly molested the child in the park on multiple occasions over
a lengthy period of time. He was originally charged with six counts of violating section
288, subdivision (a), and entered into a plea agreement for three counts. The facts of the
prior case strongly imply that he committed multiple sexual assault offenses against the
victim at different times. The “Three Strikes” law does not require prior strike
convictions be brought and tried separately. Defendant’s three prior strike convictions
were not based on the same act, committed at the same time and against the same victim,
and the court did not abuse its discretion when it denied his motion to dismiss the strikes.
(Cf. People v. Vargas (2014) 59 Cal.4th 635, 638–639.)
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                       DISPOSITION
       The judgment is affirmed.




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