P. v. Perry CA2/6 ( 2013 )

Filed 3/6/13 P. v. Perry CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B241663
(Super. Ct. No. 2009025996)
Plaintiff and Respondent, (Ventura County)
v.
STEVEN PAUL PERRY,
Defendant and Appellant.
Steven Paul Perry appeals a judgment following his conviction of three
counts of indecent exposure, with findings of prior indecent exposure convictions and
service of four prior prison terms. (Pen. Code, §§ 314, subd. 1, 667.5, subd. (b).)1
We appointed counsel to represent Perry in this appeal. After examination
of the record, counsel filed an opening brief raising no issues. (People v. Wende (1979)
25 Cal.3d 436, 441.) We advised Perry that he had 30 days within which to personally
submit any contentions or issues that he wished to raise on appeal. On January 16, 2013,
we received a response from him contending that the trial court erred by: 1) denying his
motion to dismiss the prosecution for lack of a speedy trial, and 2) permitting evidence of
his six prior convictions for indecent exposure. Pursuant to People v. Kelly (2006) 40
Cal.4th 106, 123-124, we present a factual and procedural summary of the case and a
brief discussion of Perry's contentions.
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All further statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
On July 29, 2009, the Ventura County prosecutor charged Perry by felony
complaint with three counts of indecent exposure with prior indecent exposure
convictions. (§ 314, subd. 1.) The three counts concerned incidents occurring in May
and June 2009 at a Ventura college and a Camarillo library.
On June 16, 2009, Perry was arrested in Los Angeles County for an act of
indecent exposure committed at the University of California. On July 23, 2009, he was
convicted of indecent exposure and sentenced to three years imprisonment. (§ 314, subd.
1.) Prior to Perry's imprisonment, his parole officer notified Ventura County law
enforcement that Perry was in custody. Ventura police officers then traveled to Los
Angeles and met with Perry, who invoked his rights pursuant to Miranda v. Arizona
(1966) 384 U.S. 436. Subsequently a warrant issued for Perry's arrest, but he was not
prosecuted in Ventura County until his release from prison in January 2012.
On February 17, 2012, the Ventura County prosecutor filed an information
charging Perry with three counts of indecent exposure. The information also alleged that
Perry suffered prior indecent exposure convictions and served four prior prison terms.
On April 18, 2012, Perry filed a motion to dismiss the prosecution for lack
of speedy prosecution. He argued that he suffered prejudice from the delay because he
lost the opportunity for sentencing consecutive to the Los Angeles County conviction.
The trial court relied upon People v. Lowe (2007) 40 Cal.4th 937, 945-946, and denied
the motion.
At trial, the victims in each of the charged counts testified that Perry sat
near them in the college or public library and began masturbating. Later, they identified
Perry in photographic lineups. The public library security videotape also reflected Perry
entering the library and walking near the area where the victims were sitting.
The jury convicted Perry of the charged counts. In a separate proceeding,
he admitted serving four prior prison terms within the meaning of section 667.5,
subdivision (b). The trial court sentenced Perry to a two-year midterm for count 1, eight
months consecutive for count 2, and eight months consecutive for count 3, plus four years
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for the four prior prison terms served, for a total of seven years four months. The court
imposed a $720 restitution fine, a $720 parole revocation restitution fine (stayed), ordered
victim restitution, and awarded Perry 193 days of presentence custody credit. (§§ 1202.4,
1202.45.)
DISCUSSION
I.
For several reasons, the trial court did not err by denying Perry's motion to
dismiss the prosecution for lack of a speedy trial. First, Perry did not demand a speedy
trial during his imprisonment pursuant to section 1381. Section 1381 provides that a
defendant currently serving a sentence may demand resolution of a pending case within
90 days or have the pending action dismissed. A proper demand is made by delivering
"written notice of the place of his or her imprisonment . . . and his or her desire to be
brought to trial or for sentencing." (§ 1381.) During Perry's imprisonment, an active
warrant for his arrest in the present case existed and was noted in his prison records.
Second, our Supreme Court has held that a defendant's claim that a pretrial
delay has prejudiced his ability to obtain a lesser sentence is not a cognizable ground to
claim a constitutional speedy trial or due process violation. (People v. Lowe, supra, 40
Cal.4th 937, 945-946.) "Consistent with the[] decisions construing the federal
Constitution's right to a speedy trial, we reject defendant's contention that under the
California Constitution's speedy trial right, a pending criminal charge must be dismissed
solely because the delay in bringing the defendant to trial has cost the defendant the
chance to serve the sentence on that charge concurrently with the sentence in another
case." (Id. at p. 945.)
II.
The trial court did not abuse its discretion by permitting evidence of Perry's
prior convictions for indecent exposure. Evidence Code section 1108, subdivision (a)
provides: "In a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant's commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence
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Code] Section 352." The trial court expressly considered Evidence Code sections 1108
and 352 and ruled that evidence of Perry's six prior indecent exposure convictions was
admissible. The court also instructed with CALCRIM No. 1191 limiting the jury's
consideration of the prior convictions as proof of Perry's guilt in the present case.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Stephen K. Dunkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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