APPEAL from a judgment of the Superior Court of Los Angeles County, William N. Sterling, Judge. (Los Angeles County Super. Ct. No. BA356207)
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Affirmed in part and reversed in part.
A jury convicted Ian Anthony Gray of nine counts alleging continuous sexual abuse of three victims, lewd acts upon a fourth victim, and forcible rape of a fifth victim, all of whom were children at the time of the alleged offenses. The trial court sentenced Gray to state prison for 136 years to life. Gray appeals, arguing that his prosecution on one count was barred by the statute of limitations, that the court abused its discretion in excluding evidence, and that the court erred prejudicially in failing sua sponte to instruct the jury on the lesser included offense of battery on one count. We reverse Gray's conviction on count 9 and remand for resentencing.
An information filed on July 20, 2009 charged Gray with continuous
sexual abuse of K.S., in violation of Penal Code section 288.5*fn1
(count 1); continuous sexual abuse of S.G., in violation
of section 228.5 (count 2); lewd acts upon a child under the age of
14, M.G., in violation of section 288, subdivision (a) (counts 3-6);
forcible rape of S.P., in violation of section 261, subdivision (a)(2)
(counts 7-8); and continuous sexual abuse of L.Y., in violation of
section 288.5, subdivision (a) (count 9). The information also
alleged as to all counts that pursuant to section 803, subdivision
(f)(1), the statute of limitations was extended because the victims
were under the age of 18 at the time of the offenses, each made a
report to law enforcement on April 13, 2009, a criminal complaint was
filed within one year of that date, the crime involved substantial
sexual conduct, the statute of limitations (six years) had expired,
and there was clear and convincing corroborating evidence (including
the testimony of other victims). Finally, the information alleged as
to all counts that Gray committed a crime against more than one
victim, in violation of section 667.61, subdivision (b).
Gray pleaded not guilty to all counts. The trial court denied his motion to dismiss for violation of his right to a speedy trial. At trial, all five victims testified.
K.S. (count 1) testified that she was born in July 1978. Gray was her stepfather's brother and would visit K.S.'s home on 56th Street in Los Angeles, and would spend the night. When K.S. was between 12 and 14 years old, she was in her mother's bedroom, and Gray came in, put his hands into her pants, and inserted his fingers into her vagina for about five minutes. On another occasion, Gray woke K.S. up as she slept in her room on a top bunk bed and asked her to come into the living room, where he asked her to lie down on blankets on the floor. Gray asked K.S. to take off her "bottoms," and when she complied he touched K.S. in her vaginal area and touched her vagina with his mouth. There were other similar incidents over a two-year period, but she could not remember details of the other incidents. K.S. did not tell anyone, and Gray told her that if she kept doing what she was doing her sisters would not be harmed, and the same things would not happen to them. After hearing her sisters S.G. and M.G. talk in April 2009, K.S. told her mother what had happened. About a week later, on April 13, 2009, K.S. reported Gray's actions to the police.
S.G. (count 2) testified that she was born in June 1986, and Gray was her uncle. When S.G. was five years old and also living on 56th Street, Gray visited regularly and sometimes spent the night. One night when S.G. was five or six, Gray came into S.G.'s room and woke her up, and asked her to come and lie down with him. Gray took S.G. into the den, where they lay down. Gray touched S.G.'s vagina through her clothing. He then told S.G. to put her mouth on his penis, and she complied. While Gray touched S.G.'s vagina under her clothing, he ejaculated in her mouth. S.G. went to the bathroom, washed her mouth out, and went back into her room to sleep. S.G. did not tell anyone. On another occasion, when S.G. was seven or eight, Gray, driving a van, picked S.G. up and went to get a pizza. While they waited for the pizza, Gray told S.G. to get into the back of the van with him, where Gray kissed her vagina. Around the same time, S.G. spent the night at Gray's old girlfriend's house. Gray took S.G. into his room alone, told her to bend over, and put his penis in her anus. S.G. cried because it hurt, and Gray told her to relax. Gray then told her to take a shower, got into the shower with S.G., and told her how to clean her vagina. That was the only time Gray put his penis in S.G.'s anus. There were many incidents between when S.G. was five and nine or ten when Gray would ask her to put her mouth on his penis and would put his mouth and hands on her vagina, when Gray visited and could get her alone.
After S.G. and her family moved to Rialto, Gray continued to visit but less often. Once when S.G. was 10 or 11 years old, Gray performed sexual acts on S.G. in a hallway, with his toddler daughter present. Gray told S.G. not to worry because Gray's daughter did not understand what she was seeing. In Los Angeles when S.G. was 19 or 20 years old, Gray hugged her from behind and told her she was grown and they "could do grown things," and she declined. In 2005 or 2006 S.G. told a friend about the incidents, and in April 2009 S.G. told her mother, after her sister M.G. "was the first to tell." About a week later, on April 13, 2009, S.G. reported Gray's actions to the police.
M.G. (counts 3-6) testified that she was born in May 1988, and was living on 56th Street with her mother and sisters. Gray, her uncle, would visit and spend the night, and touched M.G. inappropriately four times when she was five to seven years old. The first time, while they lay on M.G.'s mother's bed watching television, Gray took M.G.'s hand and put it down his pants, moving her hand up and down on his penis. The second time, at Gray's house, Gray made peas for dinner. M.G. did not like peas, and sat at the table for a long time and cried, because she didn't want to eat them. Gray grabbed her hand and took her into a bedroom, where they lay on the bed. Gray rubbed M.G.'s chest and the small of her back under her clothes, and "[i]t wasn't a rub that parents rub their child. It was a touchy feely rub, like he was touching me." M.G. knew it wasn't right, and she felt uncomfortable. M.G. then fell asleep. The third time, M.G. was sitting on the floor in her bedroom's walk-in closet, playing with her toys. Gray walked in and stood in front of M.G., unbuttoned his pants, masturbated himself with M.G.'s hand, and ejaculated into a shirt or towel on the floor. Gray cleaned himself off, wiped off M.G.'s hand, pulled his pants up, and left without saying anything. The fourth time, Gray made M.G. masturbate him in M.G.'s bedroom, but did not ejaculate, pulling up his pants and leaving when someone walked down the hall toward the room. M.G. told her boyfriend in April 2009, and when he pressured her, M.G. told her mother at the same meeting at which M.G.'s sisters also told their mother. A week M.G. reported Gray's actions to the police.
S.P. (counts 7-8) testified that she was born in July 1985. Gray was her stepfather, and she lived with him, her mother, and her sister L.Y., from when S.P. was 12 until she was 16 or 17 years old. On August 20, 1999, when S.P. was 14, she came home from school and was sitting in the living room; her mother and sisters were not home. Gray came out of the shower wearing only a towel, came up to her, and took the towel off. Gray touched S.P.'s breasts over her clothing, took off S.P.'s pants and underwear, pulled her to the floor, and put his penis in her vagina, without a condom, for a few minutes. S.P. said, "'why'" and "'stop.'" Gray then took his penis out and ejaculated into his hands, cleaned himself up, and left. S.P. said nothing when her sister came home, out of shock. In mid-January 2000, S.P. was again home from school and alone with Gray, who pulled her to the floor, took off his pants and underwear in front of her, took off her pants and underwear, put his penis in her vagina, eventually took it out, ejaculated, cleaned himself up, and "went about his business." S.P., who did not want to have sex with Gray on either occasion, told her mother about both incidents a couple of months after the second incident, and made a police report.
L.Y. (count 9), S.P.'s younger sister, testified that she was born in June 1988. Gray was her stepfather. When L.Y. was seven, Gray called her into the bedroom and told her to take her pants off and come near to him. L.Y. complied, and Gray took his pants off and "[stuck] his penis in [her] butt" without saying anything, or using a lubricant. L.Y. cried, but didn't say anything. This continued for three years until L.Y. was 10 years old, and happened over 15 times. L.Y. was too embarrassed to tell anyone. She was also scared of the dogs at Gray's cousin's house, and he told her he would get those dogs on her if she told anybody. L.Y. told her mother when she was 16, and reported it to the police, but did not go through with a prosecution because she was embarrassed and did not want to testify. She felt differently about this case "because it was so many other girls involved."
Gray testified on his own behalf. He had spent time with his stepniece K.S., his nieces S.G. and M.G., and his stepdaughters S.P. and L.Y. He visited his brother's house and occasionally spent the night. Gray denied ever doing anything inappropriate with K.S., S.G., or M.G. Gray was married to J.P., the mother of S.P. and L.Y., for four to five years. He never did anything inappropriate with S.P. or L.Y. and did not have sexual intercourse with S.P. When he and J.P. divorced, she accused Gray of sleeping with S.P., and was also angry because she had wanted him to file for her green card and she had not gotten it. When Gray was arrested on May 5, 2009, he agreed to talk to the police, and told them he was not guilty and would assist them in their investigation.
Gray's 13-year-old niece P.G. testified as a character witness. She was often alone with Gray and he had always behaved appropriately with P.G. and with her cousins. She felt comfortable with him.
At the prosecution's request, the trial court struck the section 667.61, subdivision (b) allegation on count 1 and the section 803, subdivision (f) allegations on counts 2-9. The jury convicted Gray on all counts, and found true the section 803, subdivision (f) special allegation on count 1, and the section 667.61 allegations on counts 2-9. The court sentenced Gray to 136 years to life.
Gray filed a timely notice of appeal.
I. The trial court did not abuse its discretion by excluding Gray's testimony regarding his ...