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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JEFFREY ADAM TRACY,

 Defendant and Appellant.

 G051107

 (Super. Ct. No. 13WF3027)

 O P I N I O N

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.

* * *
2

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.

 

1 All undesignated statutory references are to the Penal Code.
3

After they married, Amber had defendant bathe L.I. at night, but he started 

bathing L.I. in 2008, after he and Amber were engaged. L.I. and defendant “were really 

close” and spent “a lot of time” together. When Amber and defendant started to have 

marital problems in late 2011, she slept on the couch and defendant slept in the master 

bedroom. L.I. slept in bed with defendant on occasion. Amber said she would put L.I. in 

bed with defendant and then take L.I. to his bedroom after he fell asleep.

In September 2013, agents of Homeland Security executed a search warrant 

on defendant’s parents’ house, where he was living. Agents located a number of secured 

digital cards (SD cards) used to store digital images, including videos. The SD cards 

contained thousands of photographs and hundreds of videos of child pornography.

Defendant was interrogated at the residence while it was being searched. 

He admitted he collected child pornography and that he is sexually attracted to boys. 

Defendant said he probably fondled L.I. every time he bathed L.I., and that he bathed L.I.

almost every night. Defendant stated he would “over wash” L.I.’s genitals, and L.I.

would get an erection and laugh because he thought it was funny. Defendant found 

bathing L.I. “was very tempting.” Defendant stated he recorded himself fondling L.I. on 

two or three occasions. Defendant also said he orally copulated L.I. on two or three 

occasions and recorded the acts. The acts or oral copulation occurred when L.I. was 

asleep in bed with defendant. Additionally, a search of defendant’s computer revealed he 

had a Gmail conversation with another individual wherein defendant said he used to do 

things to his stepson when he (defendant) was married, including while giving the child a 

bath.

Amber was subsequently shown two “sanitized” versions of screen shots 

taken from recordings found in defendant’s e-mail sent file. The screen shots blocked out 

the boy’s penis and the adult’s hand. She recognized L.I.’s legs, boxers, and blanket. 

Defendant admitted he was the adult in the recording.
4

Days after the search of defendant’s residence, Agent Kim Speakman of 

Homeland Security, received a letter from defendant. It was addressed to L.I. and his 

mother, Amber. In the letter, defendant admitted molesting L.I. on a number of 

occasions and to having orally copulated him “a couple of times” while L.I. was asleep.

II

DISCUSSION

Defendant contends that other than the two counts in which he was 

recorded in the act of molesting L.I. (counts five and six), the evidence was insufficient to 

support the remaining convictions for child molestation and oral copulation. Specifically, 

he argues the prosecution did not establish the corpus delicti of those offenses and thus, 

he was convicted of the other crimes based solely on his extrajudicial statements.

The corpus delicti rule requires the prosecution to introduce some evidence 

of the charged crime independent of a defendant’s extrajudicial statements. (People v. 

Ledesma (2006) 39 Cal.4th 641, 721.) In other words, a conviction cannot stand where 

the only evidence supporting the conviction consists of the defendant’s extrajudicial 

statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1180.) The purpose of the corpus 

delicti rule is to assure that a defendant has not confessed to a crime that was not 

committed. (People v. Jennings (1991) 53 Cal.3d 334, 368.) There are two elements to 

the corpus delicti: “‘the fact of the injury or loss or harm, and the existence of a criminal 

agency as its cause.’ [Citation.]” (Id. at p. 364.) “The amount of independent proof of a 

crime required for this purpose is quite small; we have described this quantum of 

evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a 

prima facie showing ‘“permitting the reasonable inference that a crime was committed.”’ 

[Citations.] The inference need not be ‘the only, or even the most compelling, one . . . 

[but need only be] a reasonable one . . . .’ [Citation.]” (People v. Jones (1998) 17 

Cal.4th 279, 301-302.) In fact, the proof necessary to establish the corpus delicti is 

sufficient if “it permits an inference of criminal conduct, even if a noncriminal 
5

explanation is also plausible. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th at 

p. 1171.) Slight or minimal evidence suffices for purposes of establishing the corpus 

delicti. (People v. Jennings, supra, 53 Cal.3d at pp. 364, 367.)

Here, the facts are undisputed and present a legal question of whether the 

prosecution introduced sufficient evidence to establish the corpus delicti to admit 

defendant’s statements. (People v. Jones, supra, 17 Cal.4th at p. 302.)

The Attorney General cites capital cases in which our Supreme Court found 

the corpus delicti of a sex offense established by the evidence. In People v. Jennings, 

supra, 53 Cal.3d at pages 367-368, the defendant contended his statements should not 

have been admitted into evidence because the prosecutor failed to introduce evidence of 

the corpus delicti of rape. The victim had been found nude and badly decomposed next 

to an irrigation ditch. Our Supreme Court rejected the argument, stating that although 

evidence of rape was “minimal,” the evidence satisfied the corpus delicti rule. (Id. at p. 

367.) “When the body of a young woman is found unclothed in a remote locale, an 

inference arises that some sexual activity occurred, thus satisfying the requirement that 

there be some showing of a loss, injury, or harm.” (Ibid.) The fact that the victim was 

found in a location where the absence of clothing is not easily explainable and she 

suffered a broken jaw before being killed led to a reasonable inference any sexual acts 

occurred against her will. (Id. at pp. 367-368.)

In People v. Jones, supra, 17 Cal.4th at page 292, the defendant confessed 

to forcibly orally copulating the victim, in addition to committing other offenses against 

her. On appeal, he contended the corpus delicti for oral copulation had not been shown 

and the court erred in admitting his statement into evidence. (Id. at p. 299.) The court 

found the following evidence established the corpus delicti for forced oral copulation: 

Although she customarily wore panties, a bra, and shoes, the victim was not wearing 

them when she was found; she had bruises on her legs, knees, and thighs, as well as to 

her perineal area; semen was found in her vagina, her rectum, and on her external 
6

genitalia; she was found on the dirt bordering an isolated road; and she had been forcibly 

abducted. (Id. at p. 302.) This evidence showed force had been used on the victim and 

that multiple sex acts had been committed. (Ibid.)

The victim in People v. Robbins (1988) 45 Cal.3d 867, was a six-year-old 

boy, last seen riding on a motorcycle with a blond man. The boy’s skeletal remains were 

found months later. His neck had been broken and his remains were unclothed. The 

Supreme Court found the defendant’s admission of sexually assaulting the boy was 

admissible under the corpus delicti rule. (Id. at pp. 885-886.) “Defendant was seen by 

one witness riding a motorcycle in the area of (and on the date of) the victim’s 

disappearance, and the victim was last seen by another witness riding a motorcycle with a 

man matching defendant’s description; no clothes were found at the scene of the crime; 

defendant’s own experts described his ‘primary diagnosis’ as pedophilia; his admission 

of similar sexual conduct as to the very similar Texas crimes was confirmed by scientific 

evidence; and finally, the physical evidence of the homicide lends reliability to other 

aspects of defendant’s confession, namely, his description of the lewd and lascivious 

conduct.” (Id. at p. 886.)

The Attorney General also relies on People v. Tompkins (2010) 185 

Cal.App.4th 1253 (Tompkins), for the proposition that the corpus delicti was established 

in this matter. In Tompkins, the appellate court reviewed the decision in People v. Culton

(1992) 11 Cal.App.4th 363 (Culton), before concluding, “We read Culton as standing for 

the proposition that separate evidence is not required as to each individual count to 

establish the corpus delicti; rather, evidence that multiple molestations took place will 

establish the corpus delicti for multiple counts. [Citation.]” (People v. Tompkins, supra, 

185 Cal.App.4th at p. 1260.) Culton and Tompkins do not compel a conclusion the 

prosecution introduced some evidence of the corpus delicti for oral copulation or other 

sex offenses over the more than four-year period charged in this matter merely by 

establishing defendant fondled L.I. on two separate occasions.
7

In People v. Culton, supra, 11 Cal.App.4th at page 368, the young female 

victim was examined by a physician who observed “abnormalities or physical symptoms 

which would have been consistent, in his opinion, with the possibility that the minor may 

have been the victim of sexual assault or abuse.” The abnormalities or symptoms were 

labial adhesions to the minor’s vaginal lip ring and the size of her hymen. (Ibid.) 

According to the doctor, the adhesions could have resulted from “a third person rubbing 

the minor’s labia with a finger or a hand to the point where the inner surfaces of the labia

became rough or scraped.” (Ibid.) Not only were the adhesions not inconsistent with 

multiple occasions of very rough, prolonged rubbing (id. at p. 369), but the minor’s 

hymen was enlarged to the point where in a nonsuspected sexual abuse population, only 

five percent of the young girls would have a hymen as large as the victim’s. At her age, 

the hymen is stretchable and penetration by a finger or other object could result in 

enlargement of the hymen (id. at p. 370). The trial court admitted defendant’s 

extrajudicial statement tantamount to a confession of 10 counts of committing a lewd act 

on a child, based on the doctor’s testimony. (Id. at pp. 365, 371.) The appellate court 

affirmed the convictions, finding the doctor’s testimony permitted a reasonable inference 

the adhesions and the enlarged hymen were consistent with the minor having been 

sexually abused over a period of time. (Id. at pp. 372-373.)

In People v. Tompkins, supra, 185 Cal.App.4th 1253, the defendant was 

convicted of 11 counts of lewd acts on a minor under the age of 14. The minor was 

defendant’s daughter. (Id. at pp. 1256, 1258.) He contended on appeal that six of his 

convictions involving his daughter should be reversed because the only evidence 

supporting those counts consisted of his statements to an investigator. (Id. at p. 1259.) 

Relying on Culton, the Tompkins court upheld the convictions because the defendant’s 

daughter testified to having been molested by defendant “more than once and less than 50 

times” and told an investigator that defendant molested her every other weekend during 

the two-year period he had visitation. (People v. Tompkins, supra, 185 Cal.App.4th at 
8

pp. 1257, 1260.) This evidence supported introducing defendant’s admission concerning 

11 counts of lewd acts on a child. (Id. at p. 1262.)

The facts in the present case are not analogous to those in Culton or 

Tompkins. Whereas in Culton there was independent evidence the victim had been 

molested on a number of occasions, as evidenced by the adhesions found during a 

medical examination (People v. Culton, supra, 11 Cal.App.4th at pp. 368-370), and there 

was independent evidence in Tompkins that defendant molested his daughter every other 

weekend he visited her during a two-year period (People v. Tompkins, supra, 185 

Cal.App.4th at pp. 1257, 1260), here the independent evidence showed L.I. was molested 

in this matter on two separate occasions (counts five and six), as evidenced by the 

recordings made on those occasions. Other than defendant’s statements, there is no 

evidence L.I. was molested more than twice. L.I. did not testify and there was no 

medical evidence indicating multiple molestations.

We do not take the Tompkins court’s statement that “separate evidence is 

not required as to each individual count to establish the corpus delicti; rather, evidence 

that multiple molestations took place will establish the corpus delicti for multiple counts”

(People v. Tompkins, supra, 185 Cal.App.4th at p. 1260), to mean evidence of two 

incidents of fondling means the corpus delicti for oral copulation and multiple other

molestations have been shown, even by the lax standard used to establish a corpus delicti. 

That was simply not a question before court in Tompkins, where the victim testified to 

dozens of molestations. Moreover, unlike the situation in People v. Jones, supra, 17 

Cal.4th at page 302, where there was evidence demonstrating more than one sex offense 

was committed against the victim on a single occasion, there is no evidence in the present 

case permitting a reasonable inference L.I. was molested more than once on each of the 

two occasions when defendant fondled L.I. and recorded the act.

The fact that defendant appears to be a deserving miscreant does not permit 

us to find the corpus delicti for sex offenses without any showing—independent of 
9

defendant’s statements—of harm, loss, or injury that may have been caused on a number 

of other occasions. Opportunity and a penchant to commit a particular injury, loss, or 

harm is not a substitute for evidence of an injury, loss, or harm. Accordingly, we 

conclude the evidence is insufficient to support the convictions on counts one, two, three, 

and four. Our resolution renders moot defendant’s contention that the prosecutor’s 

argument relating to corpus delicti was improper.

III

DISPOSITION

The convictions on counts one through four (and the special allegations 

attached thereto) are reversed. The convictions on counts five, six, and seven are 

affirmed. The matter is remanded to the superior court for resentencing.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J