People v. Joseph ( 2021 )

Filed 5/3/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A153494
JAMES VERNON JOSEPH, JR.
Defendant and Appellant.
(Contra Costa County
Super. Ct. No. 5-160639-1)
From 2001 to 2015, James Vernon Joseph, Jr. and Avisa Babaei
Lavassani ran a lucrative and violent sex trafficking enterprise. A jury
convicted Joseph of 19 felonies against several victims, including conspiracy
to commit human trafficking (Pen. Code, §§ 182, subd. (a)(1), 236.1)1 and
numerous sex offenses, including 14 counts of rape (§ 261, subd. (a)(2)). The
trial court sentenced Joseph to a lengthy prison term.
Joseph appeals. He contends: (1) the conspiracy conviction violates the
ex post facto clauses of the state and federal Constitution; (2) the court erred
by denying his motion for acquittal for improper venue; (3) the court lacked
territorial jurisdiction over counts 17 through 21, the rape charges against
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of Discussion, parts II
and IV.
1Undesignated statutory references are to the Penal Code. Lavassani
is not a party to this appeal and is mentioned only where necessary.
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Jane Doe 5; and (4) the statute of limitations barred certain sex offenses. As
we explain, Joseph relies on his ex post facto argument as a basis, in whole or
in part, for several of his other claims.
We conclude Joseph’s ex post facto claim lacks merit and reject all of
his other claims except his territorial jurisdiction claim. We conclude the
court lacked territorial jurisdiction over those charges, which were committed
in North Carolina. Accordingly, we reverse counts 17 through 21. We affirm
the remaining convictions.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Charges
In 2016, the prosecution filed an indictment against Joseph. The
operative indictment charged Joseph with 21 felonies against five victims:
conspiracy to commit human trafficking (§§ 182, subd. (a)(1), 236.1, subd. (b),
count 1); human trafficking with the intent to pimp or pander (§§ 236.1,
subd. (b), 266h, 266i, count 2); kidnapping for rape (§ 209, subd. (b), count 3);
kidnapping for extortion (§ 209, subd. (a), count 4); 14 counts of rape (§ 261,
subd. (a)(2), counts 5 to 9, 12 to 15, and 17 to 21); two counts of sodomy
(§ 286, subd. (c)(2), counts 10 and 16); and forcible oral copulation (former
§ 288a, subd. (c)(2), count 11).
The indictment also alleged Joseph committed rape, sodomy, and
forcible oral copulation against multiple victims (§ 667.61, subds. (c), (e)(4))
and that Contra Costa County had jurisdiction (§ 781).
2
B.
Overview of Prosecution Evidence
1. Jane Doe 1 (Counts 1 and 5–11)
In March 2001, a woman approached Doe 1 at a shopping mall in
Monterey and asked whether Doe 1 would be interested in traveling and
doing makeup. Doe 1 took the woman’s business card. Later, Doe 1
interviewed for the position and “got the job.” She met the woman at a
restaurant to fill out employment paperwork. At the meeting, Doe 1 “felt like
something was wrong,” so she left.
As Doe 1 approached her car, Joseph drove up next to her. Another
man “forcefully” pulled Doe 1 into the car. Joseph drove to a house in
Livermore, where he and his companion carried Doe 1 inside and took off her
clothes. Then Joseph held Doe 1 down, and raped and sodomized her.
Joseph locked Doe 1 in a bedroom.
A short time later, Joseph introduced Doe 1 to Lavassani, his most
senior prostitute. Lavassani told Doe 1 she would be having sex with men for
money, and that Joseph would be her pimp. Then Joseph took Doe to her
first appointment. On the way there, Joseph forced Doe to orally copulate
him. After the appointment, Doe 1 gave the money to Joseph and begged to
go home. He refused. Doe 1 lived in the Livermore house with several other
prostitutes.2
Joseph forced Doe 1 to prostitute herself throughout the Bay Area. Doe
1 had prostitution appointments in Walnut Creek, and she was driven
through Walnut Creek on her way to other appointments. Doe 1 also
traveled to other states for the purpose of prostitution. Joseph assaulted Doe
2Additional prostitutes lived at Joseph’s houses in Tracy and Manteca.
Joseph lived in various places, including Livermore, Danville, and San
Ramon.
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1 and raped her at least 10 times. He controlled every aspect of Doe 1’s life
through a regime of violence and fear until March 2002, when Doe 1 was
taken into police custody.
2. Jane Doe 2 (Counts 1 and 12–14)
In late 2001, Doe 2 met with Joseph at a nightclub in San Francisco,
where he promised her a “modeling contract” and a “great life.” Then Joseph
took Doe 2 to a hotel in the East Bay to discuss “modeling.” Doe 2 asked to
leave, but Joseph refused. He made Doe 2 undress and forced her to orally
copulate him. Joseph also raped Doe 2. Shortly thereafter, Doe 2 moved into
Joseph’s house in Tracy, where he raped her several times. Later, Doe 2
moved to Joseph’s house in Livermore.
Joseph forced Doe 2 to prostitute herself. Like Doe 1, Doe 2 was taken
to prostitution appointments all over the Bay Area. Later, Joseph forced Doe
2 to prostitute herself in New York, Washington D.C., and Miami. In 2002,
Doe 2 was taken into police custody in New York.
3. Jane Does 3 and 4 (Counts 1 and 15–16)
In late 2001 or early 2002, Joseph approached Doe 3 at a mall in
Pleasanton and offered to provide her with modeling opportunities where she
would travel and make money. It sounded exciting, so Doe 3 agreed. Shortly
thereafter, Doe 3 moved into Joseph’s house in Manteca or Tracy, where at
least one of Joseph’s prostitutes lived. Later, the plan “changed,” and Joseph
told Doe 3 she would move to Georgia to model and “go on dates” with men.
As Joseph drove Doe 3 from California to Georgia, they got into an argument.
Joseph pulled the car over and raped Doe 3 “on the hood of the car.”
When Joseph and Doe 3 arrived in Atlanta, they checked into a hotel
where Joseph sodomized Doe 3. With Doe 3’s encouragement, Doe 4 moved to
Atlanta. Joseph raped Does 3 and 4 in Atlanta. Joseph prepared Doe 3 and
4
Doe 4 to prostitute themselves but Doe 3 escaped and returned to California
before she had to go on a prostitution appointment.
4. Jane Doe 5 (Counts 1, 2, and 17–21)
In 2013, Joseph approached Jane Doe 5 at a restaurant in Alabama
and asked her if she “wanted to model.” Doe 5 agreed. Joseph took Doe 5
back to his hotel, where he told Doe 5 that she would start her modeling
career by “sleeping with men” for money. Joseph acknowledged what Doe 5
would be doing was illegal, but assured her she would be “ ‘safe.’ ” He also
claimed his prostitution operation was like a “ ‘family.’ ” Doe 5 quit her job
and put her belongings in storage.
Joseph drove Doe 5 to North Carolina. In North Carolina, Joseph
raped Doe 5 several times. Doe 5 started working as a prostitute in June
2014. She worked in North Carolina and New York. Doe visited California a
“couple times on holidays.” In February 2015, she obtained a California
driver’s license. Three months later, Doe 5 traveled to San Francisco for
breast augmentation surgery. Doe had the surgery to improve her chances of
landing a modeling contract. Doe 5 spent two weeks in California recovering
from the surgery. Then she returned to New York, where she was later taken
into police custody.
5. Police Investigation
Police arrested Joseph at his home in Danville in August 2015. During
the investigation, police found condoms, lubricant, and emergency
contraceptive medication. They also found large amounts of cash, expensive
cars, jewelry, and designer clothes and accessories. Police also recovered Doe
5’s birth certificate and her passport. Police obtained text messages from
Joseph and Lavassani’s cell phones discussing the human trafficking
operation.
5
An expert in forensic accounting determined Joseph and Lavassani
deposited the proceeds of the prostitution enterprise into shell corporations.
From 2013 to 2015, the enterprise generated between $111,960 to $223,920
per month.
C.
Verdict and Sentence
The jury acquitted Joseph of counts 3 and 4, which involved Doe 1. It
convicted Joseph of the remaining charges and found the multiple victim
allegation true. The court sentenced Joseph to 159 years, plus 15 years to
life, in state prison.
DISCUSSION
I.
The Conspiracy Conviction Did Not Violate the
Ex Post Facto Prohibition
Joseph’s first claim is the conviction for conspiracy to commit human
trafficking violated the ex post facto clauses of the federal and state
Constitution. According to Joseph, the “agreement,” and many of the overt
acts in furtherance of the conspiracy, took place before section 236.1
criminalized human trafficking.3
A. Background
Count 1 charged Joseph with conspiracy to commit human trafficking
and alleged overt acts occurring between 2001 and 2015: overt acts 1
through 27 occurred in 2001 and 2002; acts 28 through 34 occurred in 2014
3 Section 236.1—which took effect in 2006—prohibits human
trafficking, defined as “depriv[ing] or violat[ing] the personal liberty of
another with the intent to obtain forced labor or services,” or with “the intent
to effect or maintain . . . violation[s] of” various laws regulating, as relevant
here, prostitution, pimping, and pandering. (§ 236.1, subds. (a), (b); Stats.
2005, ch. 240, § 7.)
6
and 2015. Before trial, Joseph moved to dismiss count 1 pursuant to section
995. He argued the charge violated the ex post facto prohibition because the
conspiracy as to overt acts 1 through 27 was completed before human
trafficking became a crime in 2006.
The prosecution disagreed, contending there was no ex post facto
violation because the charge alleged “a continuing course of conduct that
straddle[d]” enactment of section 236.1. The court denied the motion and the
jury convicted Joseph of count 1.
B. Conspiracy
A conspiracy consists of two or more persons conspiring to commit any
crime. (§ 182, subd. (a).) “A conviction of conspiracy requires proof that the
defendant and another person had the specific intent to agree or conspire to
commit an offense, as well as the specific intent to commit the elements of
that offense, together with proof of the commission of an overt act ‘by one or
more of the parties to such agreement’ in furtherance of the conspiracy.
[Citations.] [¶] Criminal conspiracy is an offense distinct from the actual
commission of a criminal offense that is the object of the conspiracy.” (People
v. Morante (1999) 20 Cal.4th 403, 416–417, fns. omitted.)
Conspiracy is a unique crime which “attaches culpability at an earlier
point along the continuum than attempt. ‘Conspiracy is an inchoate offense,
the essence of which is an agreement to commit an unlawful act.’ ” (People v.
Johnson (2013) 57 Cal.4th 250, 258.) “Conspiracy separately punishes not
the completed crime, or even its attempt. The crime of conspiracy punishes
the agreement itself.” (Id. at p. 258.) But an agreement to commit a crime
does not, by itself, complete the crime of conspiracy. “The commission of an
overt act in furtherance of the agreement is also required. ‘No agreement
amounts to a conspiracy, unless some act, beside such agreement, be done
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within this state to effect the object thereof, by one or more of the parties to
such agreement . . . .’ [Citation.] . . . Once one of the conspirators has
performed an overt act in furtherance of the agreement, ‘the association
becomes an active force, it is the agreement, not the overt act, which is
punishable. Hence the overt act need not amount to a criminal attempt and
it need not be criminal in itself.’ ” (Id. at p. 259; § 184.)
C. No Ex Post Facto Violation
The federal and state Constitution prohibit ex post facto laws. (People
v. Grant (1999) 20 Cal.4th 150, 158–159 (Grant).) An ex post facto “ ‘law is
one which defines a new crime and applies its definition retroactively to
[punish] conduct which was not criminal at the time it occurred.’ ” (In re E.J.
(2010) 47 Cal.4th 1258, 1277.) “The prohibition against ex post facto laws
seeks to achieve two important goals. First, it assures ‘that legislative Acts
give fair warning of their effect and permit individuals to rely on their
meaning until explicitly changed.’ [Citation.] Second, the rule ‘restricts
governmental power by retraining arbitrary and potentially vindictive
legislation.’ ” (Grant, at p. 158.) We review an ex post facto claim de novo.
(In re Sampson (2011) 197 Cal.App.4th 1234, 1241.) A conviction that
violates the ex post facto prohibition must be reversed. (Stogner v. California
(2003) 539 U.S. 607, 632–633.)
A law does not operate ex post facto unless it “changes the legal
consequences of acts completed before its effective date.” (Weaver v.
Graham (1981) 450 U.S. 24, 31, italics added, criticized on another point as
stated in California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506,
fn. 3.) The ex post facto prohibition does not encompass “continuing” or
“straddle” offenses, which begin before the statute takes effect and are
completed after it. (Grant, supra, 20 Cal.4th at pp. 159–160; People v.
8
Chilelli (2014) 225 Cal.App.4th 581, 589, 590.) Because “ ‘ex post facto’
means ‘after the fact’ ” not “ ‘during the fact,’ ” it “does not encompass
offenses for which the defendant is prosecuted or punished based on acts
continuing beyond a change in the law.” (Wright v. Superior Court (1997)
15 Cal.4th 521, 531.)
There is no ex post facto violation here, because the conspiracy
straddled the effective date of the statute: it began before section 236.1’s
effective date and continued well after that date. (Grant, supra, 20 Cal.4th at
pp. 160–161.) Our conclusion is supported by numerous cases holding there
is no ex post facto violation where the conspiracy continues after the effective
date of the statute. (United States v. Kohl (9th Cir. 1992) 972 F.2d 294, 297
[rejecting ex post facto claim where the defendant committed overt acts
before and after enactment of statute]; United States v. Canino (7th Cir.
1991) 949 F.2d 928, 951–952 [no ex post facto violation where prosecution
established “existence of the conspiracy” before and after effective date of
statute]; United States v. Campanale (9th Cir. 1975) 518 F.2d 352, 365
[criminal conspiracy which commenced before, but continued beyond the
effective date of the statute, was “not ex post facto as to that crime”].)
Joseph asserts “[i]t violated the ex post facto provisions to allow the
jury to find an agreement to violate section 236.1” before that statute took
effect. (Italics added.) Joseph’s focus on the “inception” of the “agreement” is
unavailing. Joseph and Lavassani’s plan may have originated before section
236.1 criminalized human trafficking, but that plan was “converted to
membership in an unlawful conspiracy” when section 236.1 took effect.
(United States v. Kubacki (E.D. Pa. 1965) 237 F.Supp. 638, 642–643.) And
that conspiracy continued well after the effective date of the statute: the
prosecution offered evidence that Joseph committed human trafficking after
9
the enactment of section 236.1 and Joseph did not establish he withdrew
from the conspiracy at any point.4 (United States v. Canino, supra, 949 F.2d
at p. 952 [defendants did not prove they withdrew from conspiracy that began
before statute’s effective date]; People v. Hardy (1992) 2 Cal.4th 86, 144
[conspiracy ends when the substantive crime is accomplished or defeated].)
II.
The Improper Venue Argument Fails
Next, Joseph challenges the denial of his motion for acquittal for
improper venue. Joseph’s precise argument is somewhat opaque, although it
appears to be tied, at least in part, to the ex post facto claim. Joseph devotes
dozens of pages in his opening brief to the venue argument but does not
identify the counts he claims should have been dismissed until the final
sentence. Throughout his argument, Joseph simply refers to “counts”
relating to Jane Does 1, 2, and 3. Then, without citing the record, Joseph
claims venue was improper because the unspecified crimes occurred outside
Contra Costa County. Additionally, Joseph claims it was “error” to deny the
4 Overt act 34, which involved Doe 5, occurred in California after the
passage of section 236.1, which satisfies the requirement that an overt act
be done in this state “ ‘to effect the object’ ” of the conspiracy. (People v.
Johnson, supra, 57 Cal.4th at p. 259.) While the jury was properly instructed
that it must find at “least one of the overt acts was committed in California,”
it did not make a specific finding regarding that act, although it convicted
Joseph of count 2, which encompassed Doe 5’s claims for the same 2014–2015
time period. There is no dispute that many overt acts in California were
found for the period before the enactment of section 236.1. At least one court,
cited with approval by our high court in Grant, has held there is no ex post
facto violation even if all of the overt acts in furtherance of the conspiracy
occur before the statute’s effective date, so long as the defendant does not
withdraw from the conspiracy after the statute becomes effective. (See
Grant, supra, 20 Cal.4th at p. 160, fn. 4, citing United States v. Canino,
supra, 949 F.2d at pp. 951–952.)
10
motion for acquittal but he does not discuss section 1118.1, the burdens of the
parties in the trial court, or the applicable standard of appellate review.
Joseph’s reply brief suffers from similar problems.
A. Background
After the prosecution rested, Joseph moved for acquittal on several
charges pursuant to section 1118.1. He argued venue was improper because
the crimes occurred outside of Contra Costa County.
In opposition, the prosecution argued venue in Contra Costa County
was proper under section 781, which expands venue to places where
preparatory acts “requisite to the consummation of the offense” have been
committed. The prosecution explained that “during the course of the
conspiracy there were multiple incidents, trips through, and engagements in
Contra Costa County” and that the “situs points of the conspiracy” were in
San Ramon and Danville, which granted “jurisdiction over all of the rest of
the counts. [¶] And this includes the rapes . . . wherever they occurred,
because . . . the rapes were part and parcel of making all the [victims] more
compliant, amenable, to the trafficking.” The prosecution also noted the
effects of the offenses were felt in Contra Costa County. Finally, the
prosecution argued Joseph waived the venue objection by failing to raise it
before trial.
The court granted the motion as to two counts and denied the motion as
to the remaining counts.
11
B. Joseph Forfeited the Improper Venue Claim by Failing to Object
Before Trial
Joseph’s venue claim is forfeited.5 “[A] defendant who wishes to object
to venue in a felony proceeding must make a specific objection to venue prior
to the commencement of trial. A defendant who fails to raise such an
objection prior to trial ordinarily will be deemed to have forfeited such a
claim.” (People v. Simon (2001) 25 Cal.4th 1082, 1107–1108.) Here, Joseph
did not object to venue before trial. Instead, he waited until the prosecution
rested; then he moved for acquittal based on improper venue. Joseph
forfeited “his challenge to the propriety of venue by not timely challenging it.”
(People v. McCullough (2013) 56 Cal.4th 589, 598.)
Joseph’s reliance on Calhoun does not alter our conclusion. In that
case, the appellate court considered the merits of the defendant’s belated
venue claim without addressing the Attorney General’s forfeiture argument.
Calhoun observed “the grounds for challenging venue first appeared during
trial” because the prosecution witness testified, in contrast to her preliminary
hearing testimony, that she could not remember where the crime occurred.
(Calhoun, supra, 38 Cal.App.5th at pp. 311 & fn. 4, 312.) On the merits,
5 “Under section 777, ‘venue lies in the superior court of the county in
which the crime was committed, and a defendant may be tried there.’ ”
(People v. Calhoun (2019) 38 Cal.App.5th 275, 310 (Calhoun).) Section 781
expands venue “ ‘beyond the single county in which a crime may be said to
have been committed.’ ” (People v. Betts (2005) 34 Cal.4th 1039, 1057 (Betts).)
Under section 781, “ ‘venue is proper in a county where only preliminary
arrangements or acts leading to commission of the crime occur, even though
such acts are not essential elements of the charged offense.’ ” (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1118.) Section 784.7, subdivision (a)
governs multiple violations of certain sex offenses (including those charged in
this case) in more than one jurisdiction. Venue is proper for any of the
offenses “and for any offenses properly joinable with that offense . . . in any
jurisdiction where at least one of the offenses occurred.”
12
Calhoun found no contradiction between the witness’s preliminary hearing
and trial testimony and concluded the preliminary hearing testimony was
“sufficient to support venue.” (Id. at p. 312.)
Here and in contrast to Calhoun, there was even less of a basis to
assert that the trial testimony somehow reopened the venue question, since
no new or different testimony has been identified that arguably undermined
the grand jury testimony. Joseph has not established the grounds for
challenging venue were unapparent before trial, nor that the evidence at trial
“eliminated the factual basis for . . . venue.” (Calhoun, supra, 38 Cal.App.5th
at pp. 311–312.)
C. Trial Counsel Was Not Ineffective for Failing to Timely
Challenge Venue
Joseph contends trial counsel’s failure to raise a timely venue objection
was ineffective assistance of counsel. To establish ineffective assistance, “the
defendant must first show counsel’s performance was deficient, in that it fell
below an objective standard of reasonableness under prevailing professional
norms. Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v. Mai (2013)
57 Cal.4th 986, 1009.)
Joseph has not established trial counsel’s performance was deficient.
“When examining an ineffective assistance claim, a reviewing court defers to
counsel’s reasonable tactical decisions, and there is a presumption counsel
acted within the wide range of reasonable professional assistance.” (People v.
Mai, supra, 57 Cal.4th at p. 1009.) Here, trial counsel may have concluded
venue in Contra Costa County was proper. (People v. Gbadebo-Soda (1995)
38 Cal.App.4th 160, 169, 172 [failure to timely challenge venue not
objectively unreasonable where some evidence indicated venue was proper].)
13
Alternatively, counsel may have preferred venue in Contra Costa County for
“strategic reasons.” (People v. Simon, supra, 25 Cal.4th at p. 1104.) On this
record, Joseph has not demonstrated trial counsel’s representation was
deficient.
Nor has Joseph established prejudice. He has not shown venue in
Contra Costa County inconvenienced him or impaired his ability to mount a
defense (Calhoun, supra, 38 Cal.App.5th at p. 312) and he has offered no
support for his speculative claim that charges would not have been brought
against him in Alameda County after the 2015 police investigation produced
overwhelming evidence of the human trafficking operation. (People v.
Gbadebo-Soda, supra, 38 Cal.App.4th at pp. 169, 172 [no prejudice from trial
counsel’s failure to object to venue].)
III.
California Lacked Jurisdiction over Counts 17 Through 21,
the Rapes of Jane Doe 5 in North Carolina
Third, Joseph contends counts 17 through 21 must be reversed because
California lacked territorial jurisdiction over those crimes.
A. Background
At trial, Doe 5 testified Joseph raped her in North Carolina. Joseph’s
motion for acquittal argued the trial court lacked territorial jurisdiction over
counts 17 through 21 because the crimes occurred “outside of the state of
California.” In opposition, the prosecution argued the human trafficking
conspiracy originated in California, which conferred “jurisdiction over all of
the rest of the counts,” including “the rapes . . . wherever they occurred,”
because the rapes facilitated the human trafficking. The court denied the
motion and the jury convicted Joseph of the charges.
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B. The Trial Court Had No Territorial Jurisdiction over Crimes
That Occurred Entirely in North Carolina
“Territorial jurisdiction establishes the court’s authority to try the
defendant.” The prosecution has the burden to establish territorial
jurisdiction by a preponderance of the evidence and may satisfy its burden
through circumstantial evidence. (Betts, supra, 34 Cal.4th at pp. 1050, 1053;
People v. Crew (2003) 31 Cal.4th 822, 834.) The existence of territorial
jurisdiction may be “decided by the trial court on a motion for entry of
a judgment of acquittal pursuant to section 1118.1.” (Betts, at p. 1048.)
If unsupported by substantial evidence, a trial court’s ruling on territorial
jurisdiction must be reversed. (Fortner v. Superior Court (2013)
217 Cal.App.4th 1360, 1364 (Fortner).)
“A California court’s territorial jurisdiction is defined by statute.”
(Fortner, supra, 217 Cal.App.4th at p. 1366.) It is undisputed counts 17
through 21 occurred in North Carolina. As a result, section 777, which
confers jurisdiction over crimes committed in this state, does not apply.
The question is whether sections 27 and 778a—which “apply to criminal
activity that spans more than one state”—confer jurisdiction. (Betts, supra,
34 Cal.4th at p. 1053.) The answer is no.
Section 27, subdivision (a)(1) “permits the punishment of a defendant
under California law for any crime committed ‘in whole or in part’ in the
state.” (Betts, supra, 34 Cal.4th at p. 1047.) At trial, the prosecution
presented no evidence that any “part” of the rapes alleged in counts 17
through 21 were committed by Joseph in California. As a result, section 27
does not confer jurisdiction. (Fortner, supra, 217 Cal.App.4th at p. 1364 [no
jurisdiction under section 27 for domestic dispute committed in Hawaii].)
Section 778a, subdivision (a) confers jurisdiction over crimes committed
outside California “if the defendant formed the requisite intent within this
15
state and committed any act, including preparatory acts, showing that the
crimes were initiated within California.” (People v. Crew, supra, 31 Cal.4th
at p. 834, citing § 778a.) Under this statute, “California has territorial
jurisdiction over an offense if the defendant, with the requisite intent, does a
preparatory act in California that is more than a de minimis act toward the
eventual completion of the offense.” (Betts, supra, 34 Cal.4th at p. 1047.)
Section 788a does not confer jurisdiction over counts 17 through 21
because there is no evidence Joseph formed an intent to rape Doe 5 in
California, nor any evidence he took preparatory acts in this state toward the
completion of the rapes. To the contrary, the evidence establishes the rapes
were “commenced” and “completed” in North Carolina. (Fortner, supra,
217 Cal.App.4th at p. 1364.) The People contend there was a “connection”
between the crimes and California, pointing to Doe 5’s undated visits to
California for vacation and her travel to California for plastic surgery. We
are not persuaded. On this record, neither Doe 5’s travel to California on
unspecified dates, nor her visit to California after the rapes for surgery,
tended to show Joseph formed the intent to rape Doe 5 in California, nor that
he performed a preparatory act in this state to facilitate the rapes. (Id. at
p. 1365.)
Equally unpersuasive is the People’s contention that California has
jurisdiction over counts 17 through 21 because the rapes furthered the
human trafficking enterprise, which originated in California. Even if we
accept the premise that the rapes allowed Joseph to exert control over Doe 5,
which in turn enhanced his ability to force Doe 5 to prostitute herself, there is
no evidence that Joseph, with the requisite intent, performed a preparatory
act in California toward completion of the offense of rape. That the human
trafficking enterprise began in California does not satisfy the statutory
16
prerequisites for territorial jurisdiction over the rapes committed in North
Carolina.6
In arguing the trial court properly exercised jurisdiction, the People
rely on two cases, Betts, supra, 34 Cal.4th 1039 and People v. Renteria (2008)
165 Cal.App.4th 1108 (Renteria). Neither case assists them. In Betts, the
defendant drove the victims in his truck through California and into Oregon,
where he molested them. (Betts, at pp. 1055–1056.) The California Supreme
Court upheld the trial court’s jurisdictional finding, concluding the defendant
formed an intent to molest his victims in California; that the act of driving
the victims across the state was more than de minimus; and that California
had “a legitimate interest in protecting its residents from criminal conduct.”
(Ibid.)
In Renteria, the defendant drove a stolen car on a California freeway.
While being pursued by law enforcement, the defendant drove onto federal
land. The appellate court held California had jurisdiction under section 778a
“even though the crime culminated on a federal enclave” because the
defendant formed the intent to flee while driving on a California highway
and, as a “preparatory act,” exited the freeway to avoid the police officer.
(Renteria, supra, 165 Cal.App.4th at pp. 1117–1119.)
These cases are easily distinguishable. Unlike Betts and Renteria, the
record is devoid of evidence that Joseph formed the intent to rape Doe 5 in
California or that he engaged in any conduct in California to further the
completion of the rapes in North Carolina. And unlike the victims in Betts,
6 We also reject the People’s argument that section 778a confers
jurisdiction over the rapes because Joseph deposited cash from the proceeds
of his human trafficking operation in California. The People’s record
citations do not show Joseph deposited proceeds from raping Doe 5 in
California bank accounts and they cite no authority demonstrating territorial
jurisdiction exists anywhere proceeds from an illegal enterprise are located.
17
Doe 5 was not a California resident at the time of the rapes. Neither Betts
nor Renteria support the exercise of jurisdiction over counts 17 through 21
“any more than the applicable California statutes do.” (Fortner, supra,
217 Cal.App.4th at pp. 1366–1367.)
Substantial evidence does not support the trial court’s exercise of
jurisdiction over counts 17 through 21. “Without jurisdiction, a court has no
authority to act in the matter and cannot enter judgment either in favor of or
against the defendant.” (Betts, supra, 34 Cal.4th at p. 1050.) Because
California lacked jurisdiction over counts 17 through 21, the judgment the
court entered on those counts is a “ ‘legal nullity’ ” and must be reversed.
(People v. Vasilyan (2009) 174 Cal.App.4th 443, 450.)
IV.
The Statute of Limitations Does Not Bar Counts 5 Through 16
Joseph’s final contention is counts 5 through 16—which alleged he
committed rape, sodomy, and forcible oral copulation against Does 1, 2, and
3 in 2001 and 2002—are time-barred.7 A defendant may assert the statute
of limitations for the first time on appeal. (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1048.) “ ‘[A]pplication of the statute of limitations
on undisputed facts is a purely legal question’ reviewed de novo.” (People v.
Brown (2018) 23 Cal.App.5th 765, 772.)
“Statutes of limitations in criminal cases are generally based upon
the offense committed and are tied to the seriousness of the offense. . . . [¶]
. . . For a crime punishable by death or life imprisonment, there is no
limitation on the commencement of prosecution.” (People v. Sedillo, supra,
235 Cal.App.4th at p. 1048, fn. omitted; § 799.) An “ ‘offense is deemed
7We limit our discussion to the charges for which Joseph was
convicted.
18
punishable by the maximum punishment prescribed by statute for the
offense,’ ” excluding “ ‘[a]ny enhancement of punishment prescribed by
statute.’ ” (Sedillo, at p. 1048, quoting § 805, subd. (a).) In this context,
“enhancement” is used in a “narrow” and “technical” sense to refer to “an
additional prison term added to a base term.” (Anthony v. Superior Court
(2010) 188 Cal.App.4th 700, 718, 719.)
Section 667.61—known as the “One Strike” law—is an “ ‘alternative
sentencing scheme,’ ” not a “true ‘enhancement. ’ ” (People v. Jones (1997)
58 Cal.App.4th 693, 709 & fn. 9.) Under the One Strike law, sex offenses
committed against more than one victim are punishable by imprisonment for
15 years to life. (Jones, at pp. 703, 705; § 667.61, subds. (b), (e).) Punishable
by life imprisonment, these offenses may be prosecuted at any time. (People
v. Perez (2010) 182 Cal.App.4th 231 (Perez).)
Perez is on point. There, the jury convicted the defendant of several
counts of committing a lewd act on a child in violation of section 288,
subdivision (b) and found true a multiple-victim allegation for each count.
(Perez, supra, 182 Cal.App.4th at p. 234.) The defendant appealed, arguing
two of the counts were time-barred. (Ibid.) Perez disagreed. It explained:
“Section 667.61 is an alternate penalty scheme that, when charged, defines
the length of imprisonment for the substantive offense of violating section
288, subdivision (b)(1). Thus, the unlimited timeframe for prosecution set
out in section 799 for an offense ‘punishable by . . . imprisonment in the
state prison for life . . .’ applies, given that defendant was found guilty of
violating section 288, subdivision (b)(1) and . . . was found guilty of another
such violation involving another victim.” (Perez, at pp. 239–240.)
This case is like Perez. Here, the jury convicted Joseph of the sex
offenses and found the multiple victim allegation true, which rendered the
19
offenses punishable by imprisonment for 15 years to life. (§ 667.61, subds.
(b), (e).) As in Perez, section 799 applies to counts 5 through 16. Thus, these
offenses may be prosecuted at any time. (Perez, supra, 182 Cal.App.4th at
p. 242.)
Joseph urges us to follow People v. Turner (2005) 134 Cal.App.4th 1591.
We decline Joseph’s suggestion and reject his reliance on Turner for the
reasons discussed in Perez and subsequent cases. (Anthony v. Superior
Court, supra, 188 Cal.App.4th at pp. 712–718.) Briefly, we note Turner
concerned the “Three Strikes” law, which is aimed at punishing recidivists
based on acts found true in an earlier case. This case involves the One Strike
law, which is aimed at “ensur[ing] serious sexual offenders receive long
prison sentences whether or not they have any prior convictions” (People v.
Wutzke (2002) 28 Cal.4th 923, 929) and which requires the prosecution to
prove the defendant committed the offenses against more than one victim.
(§ 667.61, subd. (e)(4).) Joseph’s sentence was not based on past criminal
behavior, but on his commission of specified sex offenses against multiple
victims. The statute of limitations does not bar counts 5 through 16.
DISPOSITION
We reverse the convictions for counts 17 to 21, strike the court
operations assessments (§ 1465.8) and criminal conviction assessments (Gov.
Code, § 70373) attached to counts 17 to 21, affirm the remaining convictions
(counts 1–2, 5–16), and modify the judgment to reflect a total sentence of 119
years, plus 15 years to life, in state prison. As modified, we affirm the
judgment. We direct the trial court to prepare an amended abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation.
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_________________________
Seligman, J.*
WE CONCUR:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
A153494
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
21
Superior Court of Contra Costa County, Hon. Barry Baskin
James Kyle Gee, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D.
Share and Ashley Harlan, Deputy Attorneys General, for Plaintiff and
Respondent.
22