Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge. Super. Ct. No. BF076549
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J., and Gomes, J.
On September 16, 1995, appellant, Jesus Gonzalez Mosqueda, fired a rifle twice at his estranged wife and Ross Sessions outside the Westfair Lounge in Bakersfield, striking his wife in the abdomen. Mosqueda then struck Sessions in the head with the rifle’s wooden stock as Sessions attempted to take the rifle away from him. Mosqueda fled and was not apprehended until July 7, 2004.
On October 22, 2004, a jury convicted Mosqueda of attempted voluntary manslaughter of his wife (count I/ Pen. Code, §§ 664/192, subd. (a))(a lesser included offense of the attempted murder charged in that count), assault with a firearm of his wife (count II/§ 245, subd. (a)(2)), assault with a firearm of Sessions (count V/§ 245, subd. (a)(2)), assault with a deadly weapon of Sessions (count VI/§ 245, subd. (a)(1)). The jury also found true an arming enhancement in each of the above counts (§ 12022.5, subd. (a)(1)), and a great bodily injury enhancement (§ 12022.7) in counts I, II, and VI.
All further statutory references are to the Penal Code, unless otherwise indicated.
On November 22, 2004, the court sentenced Mosqueda to an aggregate term of 13 years four months: the midterm of three years on his attempted voluntary manslaughter conviction, a four-year firearm enhancement in that count, a three-year great bodily injury enhancement in that count, an unstayed term of three years four months for the substantive offense and enhancements in count VI, and stayed terms on counts II and V.
Following a timely appeal, on May 11, 2006, in an unpublished opinion (case No. F046971), this court affirmed Mosqueda’s attempted voluntary manslaughter conviction, modified his assault conviction in count VI to assault with a firearm and remanded all three assault charges for a hearing to determine whether the statute of limitations was tolled as to these offenses.
On December 13, 2006, the trial court conducted a hearing pursuant to this court’s remand. During the hearing, the prosecutor submitted three exhibits into evidence including a copy of a warrant which showed that it had been issued by Judge Charles B. Pfister on October 3, 1995, for the arrest of Mosqueda on the charges in the instant case. Defense counsel submitted the matter without argument after objecting to the introduction of the warrant and another exhibit on foundation grounds and to the third exhibit on relevance grounds. The court found that the issuance of the above-noted warrant tolled the statute of limitations with respect to the assault charges and ordered the original judgment reinstated.
On appeal, Mosqueda contends that only a valid arrest warrant tolls the statute of limitations. He further contends that the 1995 warrant for his arrest was not valid because although it contained the date of its issuance, it did not contain the exact time of its issuance. Thus according to Mosqueda the court erred when it found that the warrant tolled the statute of limitations with respect to the assault charges. We will affirm.
DISCUSSION
Assault with a firearm is punishable by a maximum term of four years. (§ 245, subd. (a)(2)). The prosecution for an offense punishable by less than eight years shall be commenced within three years after the commission of the offense. (§ 801) The issuance of a valid arrest warrant, however, commences the prosecution and tolls the statute of limitations. (People v. Le (2000) 82 Cal.App.4th 1352, 1357-1359.)
Section 813, subdivision (a) provides:
Section 815 provides:
It shall also state the time of issuing itSection 814 provides:
“A warrant of arrest issued under Section 813 may be in substantially the following form:
“County of __________
“The people of the State of California to any peace officer of said “State:
“Complaint on oath having this day been laid before me that the crime of __________ (designating it generally) has been committed and accusing __________ (naming defendant) thereof, you are therefore commanded forthwith to arrest the above named defendant and bring him before me at __________ (naming the place), or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.
“Dated at __________ (place) this ______ day of ______, 19___. (Signature and full official title of magistrate.)”
Preliminarily, we agree with respondent that Mosqueda waived his argument that the warrant did not toll the statute of limitations because it did not state the exact time it was issued by his failure to raise this argument in the trial court. (Cf. People v. Privitera (1979) 23 Cal.3d 697, 710.) However, even if Mosqueda’s contention were properly before us, we would reject it. Although Mosqueda’s arrest warrant did not memorialize the hour and/or minute it was issued, it complied with the warrant form authorized by section 814 which clearly only requires that the warrant contain the date it was issued and not the time of day. Accordingly, we conclude that the warrant issued for Mosqueda’s arrest was valid and tolled the statute of limitations as to the assault charges and we reject his claim of error.
DISPOSITION
The judgment is affirmed.