People v. Tracy CA4/3

Filed 1/12/16 P. v. Tracy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051107

v. (Super. Ct. No. 13WF3027)

JEFFREY ADAM TRACY, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, remanded. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Jeffrey Adam Tracy was charged in the first amended information with two counts of oral copulation or sexual penetration of a child 10 years old or younger (Pen. Code,1 § 288.7, subd. (b); counts one and two), four counts of lewd acts on a child under 14 years of age (§ 288, subd. (a); counts three through six), and one count of recording a sex act with a minor (§ 311.4, subd. (c); count seven). Each of the offenses was alleged to have occurred sometime during a four-year span from January 1, 2008 and February 17, 2012. The information further alleged defendant engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)) in counts three, four, five, and six. The jury found defendant guilty on each count and found the special allegations true. The trial court sentenced defendant to 30 years to life for the two counts of oral copulation and ordered concurrent sentences on the remaining counts. He appeals and contends his convictions for oral copulation (counts one and two) and two counts of lewd acts on a child (counts three and four) must be reversed because the corpus delicti of those offenses was not established independent of his statements and the prosecutor’s argument concerning the corpus delicti rule violated his right to due process. We affirm his convictions on two counts of lewd acts on a child (counts five and six) and his conviction for recording L.I. during a sex act (count seven). We reverse his convictions on counts one through four for insufficient evidence based on the failure to establish the corpus delicti for those offenses independent of defendant’s statements, and remand the matter for resentencing. I FACTS L.I. is the son of Amber I. He was born on 2004. Amber met defendant in 2004, after L.I. was born. They started dating in 2006 and married in 2009. They separated on February 17, 2012.