Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF 08-4145
BUTZ, J.
Defendant Victor Anthony Chappale appeals his convictions for various sexual offenses. He contends two of the offenses were time-barred, he was denied his right to present a defense and confront and cross-examine a witness against him, and the application of Penal Code section 667.61, subdivision (e)(5), the one strike law, violated ex post facto laws because it required proof of conduct predating the enactment of that statute. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
Counts 1 to 6
When S.K. was about 13 years old, she was the foster child of defendant and his then wife, J.S. J.S. had four children, including D.C. and Jonathan L. S.K. lived with them from 1993 to 1995. During that time, defendant repeatedly molested S.K. He started out watching her shower, commenting on the size of her breasts and telling her she was sexy. Then there were times she would wake up, her pajama bottoms would be removed and defendant’s hand or fist would be penetrating her. She remembered two specific occasions when this occurred; once when she was sleeping on the floor in D.C.’s bedroom and another when she was sleeping in the boys’ room.
On another occasion, defendant held her breasts, pulled down her pants, removed her underwear, put his penis inside her and ejaculated. After that assault, S.K. ran away to live with her stepmother. She had to return to defendant’s home because her stepmother could not care for her and she had nowhere else to go. When she returned from her stepmother’s home, defendant held her against a dryer, removed her jeans and penetrated her with a broomstick. He warned her not to think about leaving again.
Another time, defendant penetrated her with a Mickey’s beer bottle. He wanted to see how wide she opened. He also forced her to orally copulate him. Once, in the garage, defendant held S.K. against the back of the car, pulled her pants down and anally penetrated her. Every time defendant had sex with S.K., he ejaculated.
D.C. saw defendant and S.K. having sex in defendant’s bedroom. S.K. had gotten in trouble. Defendant told the other children to go to bed, had S.K. come to his bedroom and they argued. Defendant grabbed S.K.’s neck and hit her. He slammed her against the wall and onto the bed, took off her clothes and raped her.
In approximately 1995, J.S.’s mother, J.A., moved to Texas. Defendant and the family made a summer trip to visit J.A., and S.K. eventually told J.A. (her foster grandmother) about the molestations. J.A. did not say anything while the family was in Texas because she was afraid of what defendant would do to the family. After the family returned to California, J.S. was told about the molestations. J.A. also called child protective services in California.
Upon learning of the molestations, J.S. planned to pack the family’s belongings and return to Texas. While S.K. was packing, defendant arrived at the home. J.S. confronted defendant but he denied the molestations. He threatened S.K. and slapped her. Defendant left the house. S.K. ran away and ultimately ended up in Vallejo. Defendant called S.K.’s grandmother’s home and made threats to the grandmother. S.K. was approximately 15 years old when she left defendant’s house.
Law enforcement investigated the reported sexual abuse and tried to contact S.K. An officer left a voice mail message on S.K.’s grandmother’s telephone. S.K. returned the call and left a message stating everything was all right. Law enforcement did not speak with her directly.
Counts 7 and 8
D.C. was born in June 1984. Defendant began molesting her in 1995 after S.K. ran away. When D.C. was approximately 12 or 13 years old, defendant rubbed and squeezed her breasts. In 1996 or 1997, D.C. walked into defendant and J.S.’s bedroom. Defendant was lying on the bed and asked D.C. to lie down with him. She laid down with her back to defendant. She felt him move against her and rub his penis on her buttocks. He was erect and he ejaculated.
D.C. recalled five or six additional incidents of molestation. These incidents included defendant kissing her, fondling her and raping her. The last molestation occurred on her 13th birthday. Defendant offered to buy her a toy for her birthday if she would orally copulate him.
Eventually, D.C. told her uncle that defendant had been molesting her and they told J.S. D.C. told J.S. she wanted to live with her grandmother in Texas because she was afraid of defendant. D.C. explained she was afraid of defendant because he used to beat her and the other children “all the time” and because of things he had done “on the streets.”
J.S. took D.C. to the police station to report the molestations. Officer Nicholas Schwall briefly interviewed D.C. and determined it appeared defendant had molested her. J.S. then called defendant and asked him about molesting D.C. He denied it and claimed D.C. was lying. J.S. believed D.C. Defendant did not explicitly threaten J.S., but she felt he had threatened her. She wanted to get the children out of the house, but was afraid of defendant. Because she was afraid defendant would come back to the house and that he would be angry and do something to her or the children, J.S. requested the police accompany her home to get clothing for herself and the children. Accordingly, Officer Schwall requested the patrol post an officer at the residence. When they arrived at the home, defendant was not there. It appeared he had left because some money and his clothing were gone. Police were not able to locate defendant. J.S. went with D.C. to stay at a friend’s house because she was afraid to stay in the home. As the years passed, J.S.’s fear of defendant diminished.
Detective Barbara Mustard also interviewed D.C. Detective Mustard issued a “be-on-the-lookout” bulletin for defendant. Mustard also learned of the prior allegation of sexual abuse against S.K. She was not able to contact S.K. either.
Approximately 10 days after the initial report to police, J.S. took D.C. back to the police station and told her to recant her statements about the molestations. J.S. told D.C. that defendant had threatened to hurt her grandmother. D.C. was frightened by the threat. J.S. wanted to “undo” the complaint so she did not have to worry about “getting in trouble with [defendant].” D.C. told Detective Mustard she had lied about being molested. She explained she had been caught smoking cigarettes. Mustard told J.S. the recantation had “a lot of holes in it.” D.C. and J.S. left the police station and did not have any further contact with the police.
J.S. and the children moved to Santa Maria. D.C. spoke to counselors about the molestation. In the fall of 1997, J.S. called her mother and asked her to come get the children and take them to Texas. J.S. told her defendant had threatened to kill her and the children and she was afraid for their safety. In June 1998, J.S. also moved to Texas and did not return to California.
Uncharged Acts of Sexual Misconduct
In 1997, defendant molested seven-year-old Jonathan L. Jonathan had misbehaved and defendant disciplined and hit him. Jonathan went to his room and sat on his bed crying. Defendant came into the room, sat next to Jonathan, rubbing his back. He then removed Jonathan’s pajama bottoms, pulled his underwear down and anally penetrated Jonathan. He then rubbed his penis over Jonathan’s cheeks and lips. Defendant ordered Jonathan not to say anything. Jonathan was terrified of defendant because he used to hit Jonathan. Jonathan did not tell anyone what had happened because he was too scared. He had been afraid of defendant since he was approximately four or five years old. A few months after he was molested, Jonathan, his mother and siblings moved to Texas.
Defendant also assaulted J.S.’s younger sister, Kristi S. Kristi had known defendant since she was around seven or eight years old. When Kristi was approximately 25 years old, defendant offered to do some repair work on her car. Defendant drove Kristi to work and as she got out of the car he grabbed her butt and told her this was how she was going to pay for the work on the car. Approximately two weeks later, defendant came to visit Kristi at her apartment. He followed her into the bedroom, threw her on the bed, and pried her legs open with his legs. He demanded sex from her and she refused. He kissed her neck and groped her chest. She could feel his erect penis through his clothes. Finally he stopped and warned her, “you are lucky I like you.”
Defense
The defense sought to challenge the reliability and credibility of the complaining witnesses. A defense expert testified about false memory syndrome. He indicated the use of leading questions, repeated questioning, social conformity, family dysfunction, and personality disorders can contribute to the development of false memories. Moreover, he testified, repeating the falsity can make a teen eventually believe it is the truth.
As a teenager, Terry M. lived with the family on and off in 1993, and some periods in 1994 and 1995. He never saw any inappropriate sexual contact between defendant, S.K., D.C. or anyone else. He never heard any unusual noises, screaming or talking. He did not notice any signs of abuse.
Defendant’s children from a prior relationship also spent time with the family in 1995 and 1996. The children did not see anything inappropriate between D.C. and defendant. One child did not remember S.K. The other did not hear any noises, screaming, talking or doors opening or closing during the night.
Various inconsistencies in the reporting of the molestations were also explored. In 1996, during police interviews, D.C. had indicated she was molested by someone other than defendant. In a second interview in 1997, D.C. said she had never been molested. During a police interview in 2007, S.K. claimed she had told her grandmother about being molested by defendant only after her grandmother told her defendant had tried to rape Kristi. In December 2008, J.A. told a district attorney’s office investigator that she first suspected defendant was molesting S.K. in 1992 or 1993. Kristi never told the police investigator that defendant had touched her breasts. In January 2009, D.C. told an investigator she had gotten in trouble with defendant when she was caught smoking as a teenager.
PROCEDURAL HISTORY
On February 2, 2009, defendant was charged with penetration of the genital opening by a foreign object (§ 289, subd. (a)(1) counts 1, 3, 4 & 5), rape by force or threat (§ 261, subd. (a)(2) count 2), sodomy by force and violence (§ 286, subd. (c)(2)--count 6), lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a)--counts 7 & 8), lewd and lascivious acts upon a child under the age of 14 by use of force or violence (§ 288, subd. (b)(1)--counts 9 & 10) and aggravated sexual assault of a child (§ 269, subd. (a)(1)--count 11). Counts 1 through 6 were the charges related to S.K. and counts 7 through 11 were the charges related to D.C. It was further alleged as to all counts that defendant committed a qualifying offense against multiple victims under section 667.61, the one strike law; that he had previously been convicted of a serious felony; and that he had served two prior prison terms. It was also specifically alleged that the prosecution of counts 1 through 6 was timely pursuant to section 803, subdivision (f)(1) and the prosecution of counts 7 through 11 was timely pursuant to section 801.1, subdivision (a).
Following a jury trial, defendant was found guilty on counts 1 through 8 and the special allegations associated with those counts were also found true. The jury was unable to reach a verdict on counts 9, 10 and 11. The court declared a mistrial on those counts and they were dismissed on the prosecution’s motion. In bifurcated proceedings, the court found true the prior serious felony conviction and prior prison term allegations.
Defendant was sentenced to a term of 60 years to life, plus a determinate term of 114 years in state prison. At the time of sentencing, defendant was serving a 12-year term on an unrelated manslaughter case. The court affirmed that sentence and designated it the principal term. The People conceded defendant could not be sentenced under the one strike law for counts 1 through 6, as those might have occurred prior to the enactment of that law. The court sentenced defendant to six full consecutive terms of eight years for counts 1 through 6, doubled to 16 years, under the three strikes law. He was sentenced to 15 years to life on counts 7 and 8 pursuant to the one strike law, doubled to 30 years to life pursuant to the three strikes law. The court imposed a five-year enhancement for the prior serious felony and two one-year enhancements for the prison priors. Various fines and fees were imposed.
DISCUSSION
I. Prosecution on Counts 7 and 8 Was Not Time-barred
Defendant contends prosecution of counts 7 and 8, the lewd and lascivious conduct with D.C., was time-barred. We disagree.
Count 7 was alleged to have been committed between January 1, 1996, and May 31, 1996. Count 8 was alleged to have been committed between May 1, 1996, and December 31, 1996.
In 1996, the statute of limitations for section 288 was six years. (§ 800.) However, on January 1, 2001, before the six-year limitations period had expired, an amendment to former section 803, subdivision (h)(1) extended the limitations period from six years to 10 years. (Stats. 2000, ch. 235, § 1.) Former section 803, subdivision (h)(1) is now codified in section 801.1, subdivision (b). (Added by Stats. 2004, ch. 368, § 1; amended by Stats. 2005, ch. 479, § 2.) Effective January 1, 2006, before the 10-year statute of limitations under section 801.1, subdivision (b) expired, the Legislature amended section 801.1 and added subdivision (a). This subdivision provides that for certain sex offenses, including section 288, where the victim was under the age of 18 at the time of the offense, the prosecution may be commenced at any time prior to the victim’s 28th birthday.
D.C. was under 18 when the offenses were committed and she will turn 28 in June 2012. Generally, for purposes of timeliness, a felony prosecution is commenced when an information or indictment is filed, when a defendant is arraigned on a felony complaint, or when an arrest warrant or bench warrant is issued. (§ 804.) Under the general rule, defendant’s arraignment on the felony complaint on September 4, 2008, commenced the prosecution. Under these amendments to sections 803 and 801.1, the prosecution of the charges was commenced well within the statutory limitations period. (In re White (2008) 163 Cal.App.4th 1576, 1580-1581.)
Under none of the relevant statutory provisions was the prosecution for defendant’s offenses against D.C. ever time-barred. Thus, the “constitutional ex post facto clause protection against prosecution with a statute of limitations enacted after a previous statute of limitations period expired is inapplicable. (See Stogner v. California (2003) 539 U.S. 607, 609, 632-633 [156 L.Ed.2d 544] (Stogner); U.S. Const., art. I, § 10, cl. 1.) Here, the Legislature did not revive an expired statute of limitations period but simply extended one before expiration. That is constitutionally permissible. (Stogner, supra, [539 U.S.] at pp. 618-619; People v. Terry (2005) 127 Cal.App.4th 750, 775-776; People v. Robertson (2003) 113 Cal.App.4th 389, 393-394.)” (In re White, supra, 163 Cal.App.4th at p. 1583.)
II. No Due Process Violation
Defendant next contends the trial court erred in denying his request to admit a letter written by J.S. in 2005 to impeach J.S. We are not persuaded.
Factual Background
One component of the defense strategy was to challenge the credibility of the witnesses. During the trial, J.S. testified that when she was told defendant was molesting D.C. she was afraid. She indicated she went to stay with a friend, because she was afraid to go home and afraid of defendant. She later took D.C. back to the police station to recant her molestation claims, because she did not want to “get in trouble” with defendant. She had a conversation with him in which she felt threatened. On cross-examination, she confirmed that she had been afraid of defendant. When asked if she was still afraid of him, she testified, “Not as much.” She acknowledged she had spoken with defendant on the phone in the “last few years.” She also said she could not put a specific time frame on exactly when she became less afraid of him.
Following cross-examination, defendant sought to use a letter written by J.S. to defendant in September 2005 to impeach her testimony that she had been afraid of defendant in 1997. In the letter, J.S. wrote that she loved defendant, suggested she wanted to get back together with him and provided him information to contact her. The court excluded the evidence, finding a letter written in 2005 was not relevant to what J.S.’s feelings were in 1997. The court noted J.S.’s significantly different circumstances. In 2005, J.S. was no longer living in California, and had remarried. The court also noted J.S. had testified she was not as afraid as she had been in 1997.
After trial, defendant made a motion for new trial. Among other claims, defendant argued that the trial court abused its discretion in not permitting impeachment of J.S. with the 2005 letter. Defendant argued the credibility of J.S. was highly relevant in that J.S. had testified she was so afraid of defendant after the molestation was reported to law enforcement that she fled to Santa Maria and then to Texas. Defendant claimed the letter was relevant to establish J.S. was “obviously not afraid of [defendant] in the least.” The court denied the motion for new trial.
The motion also claims that J.S. testified she had not been in contact with the defendant since 1997. A review of J.S.’s testimony reveals this claim is untrue. J.S. testified she had spoken on the phone with defendant. She did not testify about other forms of contact.
Analysis
“‘[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, ... to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.’” (People v. Brown (2003) 31 Cal.4th 518, 538.) However, neither the confrontation clause nor state law affords the right to unlimited cross-examination. (People v. Sully (1991) 53 Cal.3d 1195, 1219-1220.) Trial courts retain wide latitude to impose reasonable limits on cross-examination without violating the confrontation clause to prevent prejudice and confusion of the issues or to curtail interrogation that is repetitive or marginally relevant. (People v. Morse (1992) 2 Cal.App.4th 620, 642.) The ordinary rules of evidence do not compromise a defendant’s right to a fair trial or to present his defense. (Id. at pp. 641-642.)
“We review a trial court’s ruling excluding evidence on grounds of irrelevance (Evid. Code, § 350) for abuse of discretion. ‘“‘The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’”’ (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)” (People v. Thornton (2007) 41 Cal.4th 391, 444-445.) Relevant evidence is evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
Defendant has not established any error. The court acted within its discretion in finding the letter did not impeach J.S.’s credibility. J.S. testified that she was afraid of defendant in 1997, when she was married to him and living with him and that this fear influenced some of her subsequent actions, including having D.C. recant her claims of molestation. J.S. acknowledged she had contact with defendant in the intervening years and that she had become less afraid of him. Eight years later, when the letter was written, J.S. was remarried, living in another state and defendant was in prison. The September 2005 letter showed that in 2005, J.S. no longer appeared afraid of defendant. This, however, did not contradict J.S.’s testimony about her fear of him in 1997.
The letter did not have “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (Evid. Code, § 210); i.e., it was irrelevant. “Excluding irrelevant evidence did not deprive defendant of his right to present a defense. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 996-997.)” (People v. Thornton, supra, 41 Cal.4th at p. 445.)
III. Application of Section 667.61, Subdivision (e)(5)
Lastly, defendant contends the application of the one strike law to counts 7 and 8 violates the prohibition against ex post facto laws, because the predicate facts essential to establishing the application of the law required proof of conduct which predated its enactment.
The ex post facto clause prohibits “‘laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.”’” (People v. Grant (1999) 20 Cal.4th 150, 158 (Grant); Collins v. Youngblood (1990) 497 U.S. 37, 41-42 [111 L.Ed.2d 30, 38].) The high court in Collins defined an ex post facto law as “‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’” (Collins v. Youngblood, supra, 497 U.S. at p. 42 [111 L.Ed.2d at p. 39].)
Section 667.61, became effective on November 30, 1994. (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 14, § 1, pp. 8570-8572.) It provides a defendant convicted of specified offenses against multiple victims in the same case shall be sentenced to 15 years to life. (§ 667.61, subds. (b), (e)(5).) The specified offenses include each of the offenses defendant was convicted of in this case: forcible rape, forcible sexual penetration, forcible sodomy, and lewd and lascivious conduct on a child under the age of 14. (§ 667.61, subd. (c)(1), (5), (6) & (8), respectively.)
Here, section 667.61 was applied only to counts 7 and 8. The acts alleged in those counts took place in 1996 or 1997, long after section 667.61 became effective. Counts 1 through 6, which were also qualifying offenses under section 667.61, were committed in 1993 through 1995 before the enactment of the one strike law. Accordingly, there was no violation of the ex post facto clause.
Defendant recognizes the precise argument he advances here was rejected in People v. Alvarez (2002) 100 Cal.App.4th 1170, 1179 (Alvarez). He urges us to reject the reasoning of Alvarez. We decline the invitation.
Defendant contends we should reject the reasoning in Alvarez because it relied on a case dealing with the three strikes law. Specifically, he argues that unlike the three strikes law, the one strike law increases the punishment for the underlying offense rather than punishing recidivism. To the contrary, “[w]hile there may not be a prior conviction, ..., section 667.61, subdivision (e)(5) relates to defendant’s status as a repeat offender.” (People v. Acosta (2009) 176 Cal.App.4th 472, 476.) “Like other habitual offender provisions, section 667.61, subdivision (e)(5) ‘“merely specifies the applicable sentence upon the present conviction for one with a certain criminal history. It is the current offense which calls for the penalty, the magnitude of which is attributable to appellant’s status as a repeat offender.”’” (People v. DeSimone (1998) 62 Cal.App.4th 693, 700.)
We also find Grant instructive. There, the Supreme Court found that a charge of continuous sexual abuse (§ 288.5), based on some conduct which predated enactment of that statute, did not violate ex post facto principles. (Grant, supra, 20 Cal.4th at pp. 158-159.) The court noted, “the primary purpose of the ex post facto clauses in the federal and state Constitutions is to ensure ‘that legislative Acts give fair warning of their effect....’ ([Citation], italics added.) Here, section 288.5 gave ‘fair warning’ to those engaged in the sexual abuse of a child before the statute’s enactment that they would be punished under the new law if they continued the sexual abuse after section 288.5 took effect. Those who engaged in child molestation before the effective date of section 288.5, but not thereafter, are not subject to prosecution for continuing sexual abuse. But those who, like [Grant], chose to continue such conduct after the effective date of section 288.5 were on notice that they would be subject to prosecution under that section.” (Grant, at p. 162.) Similarly, here, section 667.61, subdivision (e)(5) gave fair warning to those who committed specified sexual offenses before it took effect that if they committed further sexual offenses after the effective date, they would be subject to increased punishment.
Accordingly, we agree with the reasoning and conclusion of Alvarez. Because the offenses against D.C. in counts 7 and 8 occurred “after section 667.61 had been adopted, it is irrelevant that the sex offenses against [S.K.] preceded its adoption.” (Alvarez, supra, 100 Cal.App.4th at p. 1179.) Defendant committed sex offenses against D.C. after the effective date of the one strike law, thus, “that law was not applied to conduct occurring before its adoption. Section 667.61, subdivision (e)(5), does not require that the crimes against the other victim have been subject to the one strike law when they were committed.” (Alvarez, at p. 1179.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., CANTIL-SAKAUYE, J.