Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM3740, Lynn C. Atkinson, Judge.
Peter Dodd, 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, Kelly Lebel, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
STATEMENT OF THE CASE
On November 14, 2006, the Kings County District Attorney filed an information in superior court charging appellant Michael William Perez as follows:
Counts 1, 3, 5—forcible sexual penetration (Pen. Code, § 289, subd. (a)(1));
Unless otherwise indicated, all further statutory references are to the Penal Code.
Counts 2, 4, 6—lewd and lascivious acts (§ 288, subd. (b)(1)); and
Count 7—rape (§ 261, subd. (a)(2)).
On the same date, appellant waived formal arraignment and pleaded not guilty to all counts.
On January 14, 2008, jury trial commenced.
On the same date, the court amended the information by interlineations to alter certain dates of offenses and the age of a victim. The court also dismissed count 7 on motion of the district attorney.
On January 16, 2008, the court denied appellant’s motion for acquittal on counts 1, 3 and 5 based on lack of evidence of penetration (§ 1118.1).
On January 18, 2008, the jury found appellant guilty of attempted forcible sexual penetration (§§ 289, subd. (a)(1), 663), a lesser included offense of that charged in count 1. The jury found appellant guilty as charged of the remaining counts.
On February 26, 2008, the court conducted a sentencing hearing, denied appellant probation and sentenced him to a total term of 24 years with 641 days of custody credits.
On March 7, 2008, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Victim A.P. had a half brother and a half sister who were approximately a decade her junior. Appellant was the father of the half siblings but not of A.P. A.P. lived with her mother, C.A., during her growing up years and did not have a close relationship with her biological father. When A.P. was in the third grade, appellant and C.A. began living together.
Appellant touched A.P. inappropriately shortly after the birth of A.P.’s half brother. A.P. was about nine years old at the time. On the first occasion, A.P. was dressed in spandex biker shorts and a t-shirt and was asleep in her room. Appellant awakened A.P. as he entered the room and attempted to pull her shorts down. When appellant placed his body weight on A.P., she told him to stop, tried to pull up her shorts and attempted to move appellant away by using her elbow. A.P. testified that appellant touched the outside of her vaginal area with his hand. She also said she could feel appellant’s penis on the clothes covering her vaginal area. However, she claimed appellant’s penis never emerged from his clothing. A.P. gave a different version of events to Hanford City Police Officers Brent McCreary and Gabriel Jiminez. She told the officers that appellant exposed his penis and used his finger to penetrate her vagina, causing her pain.
The day after the first incident, appellant told A.P. she could not tell her mother what had happened. A.P. said appellant threatened her and said she would not see her mother again and would have to live with her biological father if she disclosed the events of the previous evening. A.P. became frightened and said she did not disclose anything to her mother.
A.P. said appellant continued to molest her several times a month. On some occasions, he penetrated her vagina with his finger. On one particular occasion, he pulled down her pants and rubbed his erect penis on A.P.’s leg. A.P. said this occurred about one month after the very first sexual incident. On another occasion, when A.P. was in the sixth grade, appellant used his hands to hold down her wrists and tried to insert his penis into her vagina.
On yet another occasion, when A.P. was under the age of 14, she went on an evening fishing trip with appellant and her cousins, P. and R. The trip took place near an aqueduct. P. and R. departed at some point. They had taken sleeping bags on the trip and both appellant and A.P. were clothed. A.P. testified appellant got on top of her, pulled her pants down and placed his weight on her. She said appellant touched her breasts and vaginal area with his hand. Appellant moved his body up and down over her and his penis came out of his boxer shorts. A.P. still had her underclothing on when appellant’s penis came out of the shorts. According to A.P.’s statements to Officer Jiminez, appellant inserted his finger into her vagina on this occasion.
A.P. testified that she coped with the abuse by sometimes locking the door to her room or staying overnight at a friend’s home. A.P. told Officer Jiminez that appellant molested her for the last time when she was about 14 years of age. On that occasion, A.P. was able to get appellant off of her body. A.P. left appellant’s home when she turned 18, but her mother continued to live with appellant until they broke up in 2004.
That same year, A.P. met S.S. and they became a couple. During their relationship, A.P. told S.S. that appellant used to take her out to eat late at night. S.S. testified this “kind of bugged” him. Acting on “an instinct,” S.S. asked A.P. on a number of occasions whether appellant had ever touched her. S.S. said A.P. would always pause, as if the question bothered her, but would respond in the negative and then change the subject.
In the summer of 2005, appellant had custody of A.P.’s half siblings on alternating weeks. By the late summer of 2006, A.P. noticed changes in her half sister. The half sister did not come out of her room very often, was angry when she returned from visits with appellant and said things to A.P.’s mother that “you knew she didn’t come up with herself.” The half sister sometimes locked her door after the visits with appellant. A.P. said she noticed a similarity between the half sister locking her room and A.P. locking her own room.
On August 12, 2006, A.P. and S.S. visited A.P.’s mother. A.P.’s mother said appellant intended to seek full custody of A.P.’s half brother. The mother did not know what would become of A.P.’s half sister. A.P. became concerned that a custody change for her half brother might also result in a custody change for her half sister. S.S. saw A.P. cry outside her mother’s home. The couple went in separate cars to their home in Laton. A.P. continued to cry and told S.S., “[Y]ou can’t let him take my sister, you can’t let him take my sister.” A.P. eventually disclosed to S.S. that appellant used to touch her, get on top of her body and act as though he was “doing something to her.” A.P. and S.S. returned to her mother’s home later that evening. The mother asked A.P. why she was crying. A.P. then told her mother that appellant used to touch her and that her mother could not allow her half sister to go to appellant.
A.P.’s mother began crying, apologized and insisted that A.P. talk to police. Although A.P. was initially reluctant, her mother called law enforcement. At 11:16 p.m., about 15 minutes after the mother’s call, Hanford City Police Officer Brent McCreary arrived at A.P.’s mother’s home. He spoke briefly with A.P.’s mother, who appeared upset and crying. McCreary then spoke with A.P. in another room for about 20 minutes. McCreary said he did not go into too much detail during this interview because he knew another investigator would interview A.P. later. McCreary said he did not want to subject A.P. to the trauma of multiple interviews. A.P. appeared quiet, nervous and hesitant as McCreary questioned her. She cried off and on during their interview.
On August 18, 2006, Hanford City Police Officer Gabriel Jiminez conducted a recorded interview with A.P. Jiminez was assigned to the police department investigations unit and his interview with A.P. took just over an hour. Jiminez said A.P. was very emotional in the interview. He said she was “probably in tears 90 percent of the interview, similar to how she was here when she testified.” Jiminez said he subsequently interviewed S.S., A.P.’s half siblings and appellant.
Defense
Appellant did not present any documentary or testimonial evidence, but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. IS THE JUDGMENT OF CONVICTION REVERSIBLE BECAUSE THE RECORD DOES NOT CONTAIN CLEAR AND CONVINCING INDEPENDENT CORROBORATION OF THE CHARGES AS REQUIRED BY SECTION 803, SUBDIVISION (F)?
Appellant contends the judgment of conviction as to counts 1 through 6 must be reversed because the record on appeal does not include clear and convincing corroboration of the charges, as required by section 803, subdivision (f).
A. Chronology
On October 30, 2006, the court conducted a preliminary hearing and the prosecutor elicited evidence that appellant molested his niece, T.G., when she was seven years old and raped her when she was ten years old. The prosecution also presented evidence to show appellant was approximately 44 years of age and T.G. in her 30’s at the time of the preliminary hearing. At the conclusion of the hearing, the prosecutor requested that appellant be held to answer, acknowledged there was a statute of limitations issue under section 803, subdivision (g)(1) and following provisions, and maintained there was an exception to the limitations periods of the statute.
Defense counsel argued that all of the acts underlying the charged offenses were outside the period of the applicable statute of limitations. Defense counsel also reserved further objections based upon the statute of limitations. The prosecutor subsequently corrected his statutory reference and noted the applicable statute was section 803, subdivision (f). The court noted defense counsel’s objections but nevertheless issued and filed an order holding appellant to answer and commitment.
On January 14, 2008, the court amended the information by interlineations to allege that counts 1 and 2 were committed between April 1, 1992 and April 1, 1995, and that counts 3 through 6 were committed between April 1, 1992 and March 31, 1999. The forms of verdict given to the jury alleged identical dates. On January 16, 2008, the court denied appellant’s motion for acquittal (§ 1118.1) on counts 1, 3, and 5 on the basis that A.P.’s testimony did not show sexual penetration. Appellant did not move for acquittal based upon the statute of limitations.
B. Appellate Contention
On appeal, appellant maintains the charges of section 289, subdivision (a)(1) (counts 1, 3 & 5) and section 288, subdivision (b)(1) (counts 2, 4 & 6) each had a normal statute of limitations of six years. Based on the pleading of the information, appellant points out the alleged offenses necessarily occurred prior to April 1, 1999 and the filing of the criminal complaint occurred August 21, 2006, well after the lapse of six years from April 1, 1999. Appellant nevertheless notes that under section 803, subdivision (f), a complaint may be filed with respect to violations of sections 288 and 289 beyond the normal statute of limitations if (a) the normal limitation period has expired; (b) the crime involved substantial sexual conduct; and (c) there is independent evidence that corroborates the victim’s allegation. Appellant specifically notes that where—as here—the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation. Appellant strongly submits that the prosecution failed to meet this burden of corroboration.
C. Concession by the People
Respondent concedes appellant’s point, stating:
“Appellant contends that the requirements of section 803, subdivision (f), were not met because of the lack of corroborating evidence. (AOB 8-9.) Indeed, there does not appear to have been any corroborating evidence of the charged offenses outside of [A.P.’s] testimony presented to the jury, nor was the jury instructed on the need for such corroborating evidence. Thus, it appears that the information on its face indicated the action was time-barred, since it alleged dates outside the six-year statute of limitations in section 800, and outside the ten-year limitation described in section 801.1, subdivision (b).
“It was the prosecutor’s duty to file a charging document showing the offense was not time-barred on its face, and to prove the charges timely to the jury by a preponderance of the evidence.”
D. Remedy
The prosecution must file a charging document that is not, on its face, time-barred. (People v. Terry (2005) 127 Cal.App.4th 750, 774.) When a charging document indicates on its face that the action is time-barred, a person convicted of the charged offense may raise the statute of limitations at any time. (People v. Thomas (2007) 146 Cal.App.4th 1278, 1288.) The prosecutor has full control over the charging document and can easily allege in an information that an arrest warrant issued before the time period expired, that the action was timely filed after discovery of the crime, or both (assuming the allegations have factual support). Although a silent record may be partly the defendant’s fault for not raising the issue at trial, it is clearly the prosecution’s fault in the first instance for filing an information that was untimely on its face. In that situation, the Supreme Court has held the fairest solution is to remand the matter to the trial court for a determination whether the action is, in fact, timely. (People v. Williams (1999) 21 Cal.4th 335, 345.)
Here, respondent agrees the cause may be remanded to determine whether, in fact, the action is time-barred. As appellant notes, this entails a two-step process. In the first step, the trial court holds an evidentiary hearing to determine whether, as a matter of law, the statute of limitations bars the prosecution. If the prosecution meets the burden of proving, by a preponderance of the evidence, that the charged offense was committed within the applicable limitations period, then the limitations issue must still be resolved by the jury if it remains disputed by the defendant. (People v. Zamora (1976) 18 Cal.3d 538, 563-564, fn. 25; People v. Riskin (2006) 143 Cal.App.4th 234, 241-242.) The statute of limitations is not an element of the offense insofar as the definition of criminal is concerned. Nevertheless, the statute of limitations constitutes a substantive right in California and becomes an issue for the jury (trier of fact) if disputed by the defendant at trial. (People v. Linder (2006) 139 Cal.App.4th 75, 84.)
In sum, the matter should be remanded to the trial court with instructions to conduct an evidentiary hearing during which the prosecution shall bear the burden of proving the crimes alleged in the charged counts fell within the statute of limitations. If the prosecution fails to meet that burden at the evidentiary hearing, then the trial court must dismiss such counts. If the prosecution meets that burden at the evidentiary hearing and appellant continues to dispute the statute of limitations, then the relevant counts must be tried before a jury. That jury should be instructed in CALCRIM No. 3410 (statute of limitations) as well as other appropriate instructions setting forth the evidentiary corroboration requirements of section 803, subdivision (f).
This disposition essentially resolves appellant’s challenge to CALCRIM Nos. 301 and 1190. In framing our disposition, we recognize the sua sponte duty to give CALCRIM No. 301 in every case (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885) but nevertheless remind the trial court to carefully craft its jury instructions to satisfy the unique evidentiary corroboration requirements of section 803, subdivision (f).
II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE CONSTITUTIONAL VICINAGE REQUIREMENT FOR COUNTS ARISING FROM THE FISHING/CAMPING TRIP?
Appellant contends the judgment of conviction as to counts 5 and 6 must be reversed because the alleged underlying events occurred during an out-of-town camping trip, A.P. could not establish the location of the campsite, and his constitutional right to a jury drawn from the vicinage was violated.
Venue and vicinage are logically distinct concepts. “Venue” refers to the location where the trial is held. “Vicinage” refers to the right of a criminal defendant to be tried by a jury drawn from the area in which the crime occurred. The right to a jury drawn from the vicinage of the crime is based on the Sixth and Fourteenth Amendments of the United States Constitution and on the California Constitution. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 169-170.) Venue implicates legislative policy and not constitutional imperative. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1056 (Price).) The vicinage right embodied in the Sixth Amendment applies only against the United States and is not incorporated by the due process clause of the Fourteenth Amendment for operation against the states. The vicinage right implied in article I, section 16 of the California Constitution simply constitutes the right of an accused to a trial by an impartial jury drawn from a place bearing a reasonable relationship to the crime in question. (People v. Posey (2004) 32 Cal.4th 193, 222-223 (Posey).)
In his reply brief, appellant concedes: “Price is against him on this point, but wishes to preserve the matter for further possible review in either the California Supreme Court o[r] federal court.” Decisions of the California Supreme Court are binding upon and must be followed by all of the state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In view of the holdings in Price and Posey, appellant’s vicinage claim must fail.
III. DID THE TRIAL COURT ERRONEOUSLY ADMIT SPECULATIVE EVIDENCE?
Appellant contends the trial court erroneously admitted speculation and thereby prejudiced appellant’s case.
A.P.’s boyfriend, S.S., testified on behalf of the prosecution. On cross-examination during the People’s case-in-chief, S.S. said that A.P. gave a statement to police on August 12, 2006. S.S. also said that prior to that date, A.P. had never disclosed to him any molestation by appellant. According to S.S., each time he raised the issue with A.P., she would just change the subject. On recross-examination, the prosecutor asked S.S. why he questioned A.P. about possible molestation by appellant prior to August 12, 2006. S.S. answered:
“Just the way he was. I mean Cynthia said that he would late at night for some reason used to take her out to eat. Just—it was just an instinct. I mean I—to be honest, it kind of bugged me how he always—the way he was with her. She said—because we had talked many times and—and it would come up, that’s why I had asked her.”
The prosecutor then asked whether S.S. had directly observed interaction between appellant and A.P., and S.S. said he had not because “[w]hen I was there he was already out of the picture.” At that point, defense counsel moved to strike the testimony “as without foundation and hearsay.” The court reserved ruling on the motion because the prosecutor was still asking questions of and eliciting answers from S.S.
The prosecutor continued to ask questions and S.S. said he asked A.P. whether appellant had ever bothered her. S.S. also said he asked A.P. whether appellant had ever touched her. According to S.S., A.P. would “pause like it bothered her and then she said no. I said okay then.” The prosecutor then asked what led S.S. to believe that it bothered A.P. S.S. replied, “Oh, man, um, just because he used to take her out late at night. Like I said, it was an instinct, something about it. Something about him.” The court did not formally rule on the reserved evidentiary question.
Generally speaking, where a court, through inadvertence or neglect, fails to rule on an objection, the party who objected or made the motion must make an effort to have the court actually rule. When that point is not pressed and is forgotten, the moving party will be deemed to have waived or abandoned the point and may not raise the issue on appeal. (People v. Brewer (2000) 81 Cal.App.4th 442, 461.) In the instant case, the trial court reserved its ruling but did not actually rule. Since the defense did not press the court for a ruling after the completed examination of S.S., the objection is deemed abandoned.
Assuming arguendo the claim of error is preserved in such circumstances, reversal is not required. The testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. (Evid. Code, § 702, subd. (a).) Here, S.S. twice testified that he asked A.P. whether appellant had molested her. Although he used the term “instinct” when explaining the reason for his questions to her, he elaborated with a more objective basis for his questions. S.S. twice noted that appellant would take A.P. out to eat late at night. S.S. implied that his concern for A.P. was based on appellant’s late-evening conduct.
As the People point out, S.S. did not testify that “‘instinct’” caused him to believe the truth of A.P.’s allegations of molestation. Rather, S.S. testified that his “‘instinct’” and appellant’s late-evening conduct with A.P. led S.S. to raise questions about possible touching and molestation. In other words, S.S.’s statements did not go to the truth of A.P.’s allegations. Rather, his statements went to his own thought processes and conduct. To testify, a witness must have personal knowledge of the subject of the testimony, based on the capacity to perceive and recollect. The capacity to perceive and recollect is a condition for the admissibility of the witness’s testimony on a certain matter. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1150.) S.S.’s testimonial evidence was well within his personal knowledge, perception, and recollection and, thus, admissible under all of the circumstances of the instant case.
IV. DID THE IMPOSITION OF UPPER TERM AND CONSECUTIVE SENTENCES VIOLATE CUNNINGHAM?
Cunningham v. California (2007) 549 U.S. 270.
Appellant initially contends the imposition of fully consecutive, upper term sentences on counts 1 through 6 violated his right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham, supra, 549 U.S. 270.
In response, the People note the Legislature modified section 1170 (determinate sentencing) effective March 30, 2007, to allow the trial court broad discretion to impose any of the three terms without additional fact-finding, thereby curing the constitutional defect in the statute identified by the Cunningham court. (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).) The People further note that the superior court sentenced appellant on February 26, 2008, well after the effective date of the revision of the Determinate Sentencing Law and after the rendering of the Supreme Court’s Sandoval decision. Moreover, the determination whether two or more sentences should be served consecutively is a sentencing decision made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense. Thus, it does not implicate the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense. (People v. Black (2007) 41 Cal.4th 799, 822-823.)
In his reply brief on appeal, appellant concedes:
“Appellant is aware that both People v. Black (2007) 41 Cal.4th 799 and Oregon v. Ice [(2009) ___ U.S. ___ [129 S.Ct. 711]] are contrary to his position with respect to Cunningham error. However, appellant wishes to preserve the issue, either for review by the California Supreme Court o[r] the United States Supreme Court, on the basis of the argument set forth in the AOB.”
In view of this concession, no further discussion is required.
DISPOSITION
This matter is remanded to the trial court with instructions to conduct an evidentiary hearing during which the prosecution shall bear the burden of proving the crimes alleged in the charged counts fell within the statute of limitations. If the prosecution fails to meet that burden at the evidentiary hearing, then the trial court must dismiss such counts. If the prosecution meets that burden at the evidentiary hearing and appellant continues to dispute the statute of limitations, then the relevant counts must be tried before a jury unless waived by the parties.
If the prosecution meets that burden at the evidentiary hearing and appellant no longer disputes the statute of limitations, then the trial court may affirm those counts without resort to further jury trial.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.