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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

Plaintiff and Respondent,

v.

RONALD RAY RUDD,

Defendant and Appellant.

F068434

(Fresno Super. Ct. No. F12909339)

OPINION

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.
2.

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.
3.

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 
4.

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.
5.

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 fiveyear-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 
6.

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.
7.

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 
8.

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, 
9.

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.