Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07189
BUTZ, J.A jury found defendant Freddy Enrique Porras guilty of seven counts of forcible lewd acts with a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) and found true a special circumstance allegation that the statute of limitations for three of those counts was extended pursuant to the version of section 803, subdivision (f) (hereafter § 803(f)) in effect in 2006. The jury deadlocked on one count of forcible sodomy on a minor (§§ 269, subd. (a)(3), 286) and one count of forcible digital penetration (§§ 269, subd. (a)(5), 289), and the trial court declared a mistrial as to those counts. The court sentenced defendant to an aggregate term of 42 years in state prison, consisting of full, consecutive middle terms of six years for each of the seven counts of forcible lewd acts with a child. (§ 667.6, subd. (d).)
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending his prosecution for the three counts for which the statute of limitations was extended violated the ex post facto clause of the federal Constitution. Alternatively, he claims there is no substantial evidence of corroboration of the victim’s allegations as required to extend the statute of limitations under section 803(f). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim S.C. was born in July 1989. When she was about four years old, her mother married defendant. Shortly thereafter, defendant forced S.C. to have intercourse with him. When S.C. was four or five, defendant inserted his fingers in her vagina numerous times. When S.C. was in kindergarten, defendant forced her to orally copulate him. Defendant continued to molest S.C. until she was 13 years old. He had sexual intercourse with her about 75 times and forced her to orally copulate him approximately 10 times.
In May 2006, when S.C. was 16 years old, she reported the abuse to law enforcement.
In July 2006, S.C. made a pretextual telephone call to defendant. The substance of that conversation is set forth in part II of the Discussion (at pp. 8-11, post).
In August 2006, the People filed a complaint, later deemed an information, charging defendant in counts one, two, and three with forcible lewd acts with S.C. “[o]n or about and between July 21, 1993, and July 20, 1994.” The complaint further alleged the statute of limitations for those counts was extended pursuant to section 803(f).
DISCUSSION
I. Ex Post Facto
Defendant argues his prosecution for the 1993 and 1994 lewd acts, counts one, two, and three, violated the ex post facto clause of the federal Constitution. We disagree.
Generally, prosecution for a violation of section 288, subdivision (b)(1) “shall be commenced within six years after commission of the offense.” (§§ 288, subd. (b)(1), 800.) However, section 803(f) allows prosecution of certain sexual offenses against a minor victim, including those under section 288, after six years have passed if commenced within one year of the victim’s report of the sexual offense to law enforcement, and if the crime involves substantial sexual conduct and independent evidence corroborates the victim’s allegations.
The provisions of section 803(f) were first codified in former section 803, subdivision (g) (hereafter former § 803(g)), effective January 1, 1994. As originally enacted, former section 803(g) provided in pertinent part: “Notwithstanding any other limitation of time described in this section, a criminal complaint may be filed within one year of the date of a report to a law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in [s]ection . . . 288 . . . . This subdivision shall apply only if both of the following occur: [¶] (1) The limitation period specified in Section 800 or 801 has expired. [¶] (2) The crime involved substantial sexual conduct, . . . and there is independent evidence that clearly and convincingly corroborates the victim’s allegation.” (Stats. 1993, ch. 390, § 1, italics added.)
Effective January 1, 2005, former section 803(g) was amended in pertinent part to require that: “There is independent evidence that corroborates the victim’s allegation. If 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.” (Former § 803(g)(2)(C), as amended by Stats. 2004, ch. 368, § 2.) In other words, the independent evidence must clearly and convincingly corroborate the victim’s allegation only “[i]f the victim was 21 years of age or older at the time of the report.” Where the victim was under 21 years of age at the time of the report, the preponderance of the evidence standard applied. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 681 (Ruiloba).)
Section 803 was repealed effective February 28, 2005. (Stats. 2005, ch. 2, § 3 [repealed]; Stats. 2005, ch. 479, § 3 [reenacted]; see Historical and Statutory Notes, 50 West’s Ann. Pen. Code (2008 supp.) foll. § 803, pp. 65-66.) As reenacted on that date, section 803(f) provided, in relevant part:
Defendant asserts the elimination of the “clear and convincing requirement” where the victim was under 21 at the time of the report, worked an ex post facto violation by lessening the People’s burden of proof on corroboration.
Generally, a criminal statute cannot be applied retroactively if such application would violate the ex post facto clause. (U.S. Const., art. I, § 10, cl. 1.) The ex post facto clause “prohibits any legislative act that criminalizes conduct innocent when done, makes a crime greater than when done, increases or changes the punishment, or alters the rules of evidence to permit conviction on lesser or different evidence than when the crime was committed.” (People v. Brown (2004) 33 Cal.4th 382, 391, citing Carmell v. Texas (2000) 529 U.S. 513, 522-525 [146 L.Ed.2d 577, 588-590].)
In regards to this last category of ex post facto laws, the clause does not apply to every change in the rules of evidence, but only to those changes that affect the prosecution’s burden of proof or the quantum of evidence required for a conviction. (See People v. Zandrino (2002) 100 Cal.App.4th 74, 83.) Section 803(f) “merely addresses when the state may prosecute certain criminal charges. It does not alter the elements of these offenses, or their punishment, or the amount or type of evidence required ‘in order to convict the offender.’” (Zandrino, at p. 83.) The same can be said with respect to the amendment of former section 803(g), reducing the People’s burden of corroborating the victim’s allegations where the victim is under 21 at the time of the report, since corroboration is not required for conviction of a sex offense. (People v. Poggi (1988) 45 Cal.3d 306, 326 [“In California conviction of a sex crime may be sustained upon the uncorroborated testimony of the prosecutrix”].)
Accordingly, section 803(f), as applied to defendant, does not violate the ex post facto clause.
Because we conclude section 803(f), as applied to defendant, does not violate the ex post facto clause, we need not address defendant’s related claim that the trial court erred in overruling his demurrer insofar as the claim is prefaced on a finding that such a violation occurred. On appeal, defendant asserts that “even if the facts alleged in the complaint were true, the filing of charges was barred if the statute lessened the prosecution’s burden of proof of corroboration, dispensing with the requirement of ‘clear and convincing evidence.’” As previously discussed, the amendment to former section 803(g) did not work an ex post facto violation in this case, and thus, did not bar defendant’s prosecution for counts one through three.
II. Sufficiency of the Evidence
Defendant claims “[n]o substantial evidence of corroboration was established by the pretext call,” and thus, the People “failed as a matter of law to prove the charges were timely brought under section 803[, subdivision] (f)(1).” Again, we disagree.
“The People had the burden to prove the charges were timely brought.” (Ruiloba, supra, 131 Cal.App.4th at p. 681.) As previously discussed, to prove the charges set forth in counts one through three were timely, the People were required to establish, among other things, that “[t]here [wa]s independent evidence that corroborate[d] [S.C.’s] allegation[s].” (§ 803(f)(2)(C).) The corroboration required under section 803(f) “does not have to be sufficient to support a conviction.” (Ruiloba, supra, 131 Cal.App.4th at p. 683.) In determining whether the record shows substantial evidence, we view the evidence in the light most favorable to the jury’s findings. (Id. at p. 682.)
The People’s corroborating evidence consisted of a tape recorded pretextual telephone call made by S.C. to defendant, which was played for the jury. Although the transcript of the call was not introduced into evidence, the parties assume it is accurate, and so do we. To preserve the tenor of that call, substantial portions of the transcript are quoted below:
“[S.C.]: [I] need to talk to you about what happened like back when I was a child.
“[Defendant]: Okay.
“[S.C.]: [I]t’s actually been affecting the way I’ve been living. Like it’s really been messing me up.
“[Defendant]: Really?
“[S.C.]: Yes.
“[Defendant]: “Why don’t you come over?
“[S.C.]: I can’t right now. [¶] . . . [¶] [I]t’s just that I need to talk to you about what happened in the past. [¶] . . . [¶] And why did you have to do it to me?
“[Defendant]: Do what?
“[S.C.]: You know what I’m talking about.
“[Defendant]: What are you talking about?
“[S.C.]: What you did when I was younger.
“[Defendant]: Like spank you?
“[S.C.]: No. When you raped me.
“[Defendant]: [S.C.], [t]hat’s crazy. You know what? You should come over and we should talk. What’s been--what’s wrong?
“[S.C.]: It’s this. [¶] . . . [¶]
“[Defendant]: Oh. [I]--you know I’d rather talk to you in person if you don’t mind.
“[S.C.]: I just can’t do it right now.
“[Defendant]: That’s cool.
“[S.C.]: I need to talk about it. [¶] . . . [¶] It’s been messing with me.
“[Defendant]: Oh.
“[S.C.]: It’s actually been affecting my grades. Everything.
“[Defendant]: It has?
“[S.C.]: Yes.
“[Defendant]: Oh, I thought you were doing good? Mom was saying you were doing good.
“[S.C.]: My grades have been slipping from year to year.
“[Defendant]: Really?
“[S.C.]: I can’t let it go.
“[Defendant]: Well, you know, I think, um, what are you doing tomorrow?
“[S.C.]: Tomorrow I’m just--I’m actually going to go hang out with my friends. [¶] . . . [¶] It’s just that I need to know.
“[Defendant]: Huh? I know.
“[S.C.]: Why me? [¶] . . .[¶]
“[Defendant]: Well, all I can say, honey, it has a lot to do with, about drugs.
“[S.C.]: Did you think it was right?
“[Defendant]: It was totally wrong.
“[S.C.]: Then why?
“[Defendant]: Well, honey, listen. Drugs fuck people up. . . . It wasn’t fair. But there’s no excuse that I--you know, you’re a very strong person. Stronger than me and your mom actually put together. Because we were on drugs. [¶] . . . [¶] Well, I’ve been off drugs for almost two years or a year and a half. . . . And, um, you know, I have, um, benefits where we got counseling.
“[S.C.]: I’ve been seeing a counselor. [¶] . . . [¶] It’s not helping. I just--I can’t get closure. [¶] . . . [¶]
“[Defendant]: Well . . . what do you think of maybe me and you went together?
“[S.C.]: I don’t know. Just
“[Defendant]: And, you know, no one has to know. Just between me and you we could go and see what, you know--maybe we could talk to them. I’m willing to. That’s how much I love you. How much I--I hate my life because of a lot of things that I’ve done in my life because of drugs. . . . Um, I just wish we could talk in person because the phone thing is just kind of weird. You know?
“[S.C.]: We will talk in person. I just--I just needed to talk about it right now. [¶] . . . [¶] Why was it me? What did I do?
“[Defendant]: You know I loved you, baby. You know you were my best friend. You were my only friend. You were the only person I had. . . . I didn’t have a friend at work. I didn’t have a friend at the house. . . . And I miss you. I mean, . . . I want to make up for so much bad and stuff and . . . there’s just no way I can make up. I’d do anything for you. Whatever you want me to do to make it better. And I would. But I’m scared. [I]f I could only talk to you in person. I’m just scared right now talking to you on the phone ‘cause I feel like you’re going to . . . try to get me in trouble or something and I just want to talk to you in person and . . . tell you some more stuff and fill you in but I just can’t right now. You understand? [¶] . . . [¶] And I want to tell you more about . . . what’s going on about what you want to know. I can’t right now. . . . [I]’m just being scared and cautious.”
While defendant initially dismisses S.C.’s accusation that he “raped” her as “crazy,” when the conversation is considered as a whole, the jury reasonably could infer defendant was acknowledging he engaged in inappropriate sexual conduct with S.C. when she was a child. “Although [S.C. and defendant] did not discuss particular acts or dates [during the call], the tenor is clear. The fact it corroborates any sexual acts corroborates all of [S.C.’s] allegations, because the call tended to prove [defendant’s] lewd disposition toward her in particular.” (Ruiloba, supra, 131 Cal.App.4th at p. 688.)
There was sufficient evidence to corroborate S.C.’s allegations for purposes of section 803(f).
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., ROBIE, J.
“(f)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.
“(2) This subdivision applies only if all of the following occur:
“(A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.
“(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.
“(C) There is independent evidence that corroborates the victim’s allegation. If 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.
“(3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.”
A subsequent amendment in 2007 did not change section 803(f) [only subd. (g)(1)(A)] and is not relevant to our discussion. (Stats. 2007, ch. 579, § 41.)