Tuesday, August 11, 2009
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C.A. Upholds Molestation Conviction of Ex-Radio Host
By Kenneth Ofgang , Staff Writer
The Fourth District Court of Appeal yesterday affirmed the conviction of a former Southern California radio personality on child molestation charges that could keep him incarcerated for life.
Div. Two affirmed the conviction of Raymond E. Peyton, who—according to a radio history website—began his career as “Rockin’ Ray” at San Bernardino’s KVCR in 1976. He went on to jobs as a newscaster, talk show host, program director, and voice-over announcer prior to his 2007 conviction on charges of assaulting a girlfriend’s daughter.
His career included stints at KRLA and KKLA in Los Angeles, and he was program director of Inland Empire station KCAA prior to his being convicted on five felony counts and being sentenced to 66 years to life in prison.
The justices yesterday agreed with defense counsel that Riverside Superior Court Judge Bernard Schwartz, who presided over Peyton’s trial, should not have permitted prosecutors to amend the information at the close of their case-in-chief.
But the error only affected one count, which resulted in a six-year prison term, the court ruled, leaving intact Peyton’s convictions on four counts of aggravated sexual assault, resulting in consecutive 15-years-to-life sentences.
The victim, identified only as K., was 12 years old when the events occurred in 2004. Her mother, who lived with Peyton in August and September of that year after having been diagnosed earlier with colon cancer, died that December.
K. testified to four separate incidents of molestation occurring in September, around the time of her birthday, all at night while she was watching television with Peyton while no one else was in the room. She said that she waited until late the following year to tell someone about what happened, in part because she blamed herself, and also because she was afraid she would not be believed and that her older brother would be accused.
Peyton testified that he did nothing inappropriate, although he admitted sitting with his arm around the girl, massaging her legs and her back, and kissing her.
The defense attacked the victim’s credibility, saying she was trying to get back at Peyton for refusing to adopt her and her brother. K. denied that she wanted Peyton to adopt her.
There was also “subtle innuendo” that K.’s brother was the molester, Justice Jeffrey King wrote for the Court of Appeal.
As originally filed, after Peyton waived his right to a preliminary hearing, the information charged him with four counts of aggravated sexual assault. At the close of the prosecution’s evidence, the judge—without objection by defense counsel—allowed the prosecution to add a charge of committing a lewd act.
The pleadings in the case, King explained in his opinion, “are a mess.” Prosecutors, he explained, initially pled the wrong dates—saying the crimes occurred in 2005— filed an amended complaint that again included erroneous dates, filed an information following the defendant’s preliminary hearing, still with the wrong dates, and then amended the information on the first day of trial to reflect the dates on which the molestations may have actually occurred.
The lewd act count was then added by a second amendment, which prosecutors sought “to conform to proof.” The judge allowed it, he explained, because it was consistent with the victim’s testimony.
That amendment should not have been allowed, King wrote, “because it constituted an additional charge not pled in the amended complaint to which defendant waived his right to a preliminary hearing.” The amendment, he said, thus violated Penal Code Sec. 1009, which prohibits an amendment to an information “so as to charge an offense not shown by the evidence taken at the preliminary examination.”
A 1990 Court of Appeal case, King pointed out, applied that section to prohibit the amendment of an information adding new charges in a case where the preliminary hearing was waived.
King went on to say, however, that the aggravated sexual assault counts were properly pled and proven. Peyton, the justice concluded, had fair notice of those charges, as set forth in the amended complaint and second amended information, and was able to prepare and present a defense.
In unpublished portions of the opinion, the justice said there was sufficient evidence of duress to support each of the four remaining counts, and that there was no federal constitutional requirement that the issue of consecutive sentencing be submitted to the jury.
An Oregon Supreme Court decision requiring that juries, rather than judges, decide whether prosecutors have proven the specific facts required to impose consecutive sentences was recently reversed by the U.S. Supreme Court, King noted.
The case is People v. Peyton, E044069.
Copyright 2009, Metropolitan News Company