Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA098666, Phillip H. Hickock, Judge. in part and reversed in part.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
Appellant Garlan Deandre Brown appeals from a judgment entered after a jury returned a guilty verdict against him for count 1, continued sexual abuse of a child (Pen. Code, § 288.5, subd. (a)); count 2, sexual penetration by a foreign object (§ 289, subd. (h)); count 3, sexual penetration by a foreign object (§ 289, subd. (h)); and count 6, commission of a lewd or lascivious act on a child (§ 288, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Count 6 charged appellant with a violation of section 269, subdivision (a)(3), aggravated sexual assault of a child, sodomy. The jury convicted him of the lesser included crime of lewd acts on a child in violation of section 288, subdivision (a).
The trial court sentenced appellant to 25 years and four months in state prison as follows: as to count 1, the upper term of 16 years; count 2, eight months (one-third the midterm of 24 months); count 3, eight months (one-third the midterm of 24 months); and count 6, the upper term of eight years.
We reverse the judgment of conviction and sentence on counts 2 and 3. In all other respects, the judgment is affirmed.
CONTENTIONS
Appellant contends that: (1) his convictions on count 2 and count 3 must be vacated and dismissed under the ex post facto clause because the statute of limitations expired prior to the effective date of section 801.1; (2) his rights under the Sixth and Fourteenth Amendments were violated when the trial court refused to order a psychological examination of D.B.; (3) the trial court abused its discretion in denying him probation; and (4) the imposition of the upper term on counts 1 and 6 violated the ex post facto clause and appellant’s Sixth and Fourteenth Amendment rights.
FACTS AND PROCEDURAL HISTORY
Counts 1, 4, 5, 6
Count 1 charged appellant with continuous sexual abuse of his nephew D.B., a child under 14 years of age, between February 9, 1997, and April 30, 1998. Count 4 charged that between June 1, 2000, and October 1, 2001, appellant committed aggravated sexual assault on D.B. Count 5 charged aggravated sexual assault, sodomy against D.B., on September 13, 2003. Count 6 charged appellant with aggravated sexual assault against D.B. between April 1, 2005, and April 30, 2005.
D.B. was born in 1992. Appellant lived with D.B.’s parents, referred to hereinafter as mother and father, from 1993 until 1999. Appellant is father’s brother. D.B.’s grandmother, who is father and appellant’s mother, also lived with appellant and D.B.’s family. Appellant began fondling D.B. when he was four years old. D.B. told his grandmother. D.B.’s grandmother and appellant told D.B. not to say anything to anybody. When he was six, appellant attempted to force D.B. to orally copulate him. Every other week, appellant pulled down D.B.’s pants and put his mouth on D.B.’s penis. On one occasion, while D.B. was lying on his stomach and watching television, appellant put something into D.B.’s rectum, hurting him.
Appellant moved to his own apartment. When D.B. was nine years old, appellant took D.B. to his apartment, put his arm around D.B.’s neck, choked him, threw him on the bed, pulled down his pants and sodomized him. Appellant told D.B. not to tell anyone what had happened, threatening to kill him and showing him weapons. When D.B. was 11 years old, he, his parents, and his little sister visited appellant at his apartment. D.B.’s parents left D.B. with appellant while they went to fetch his little sister’s diaper bag. Appellant took D.B. to a back room, closed the door and sodomized D.B., while D.B. screamed and yelled. Appellant’s girlfriend was in the kitchen at the time. Subsequently, appellant gave D.B. money, telling him not to say anything. When D.B. was 13, appellant sodomized him in the back seat of a car. A year later, D.B. told mother everything that had happened. D.B. subsequently reported the sexual abuse to the police.
When questioned by father on the telephone, appellant broke down and admitted that he had committed all the sexual acts that D.B. accused him of, said that he was “rotten,” and “when he died he was going straight to hell.”
Counts 2 and 3
Counts 2 and 3 charged that between November 28, 1995, and November 27, 1997, appellant committed the crime of sexual penetration by a foreign object against O.L., who was under 18 years of age.
O.L. is the cousin of mother. O.L. lived with D.B.’s family from 1996 to 1997. Appellant and D.B.’s grandmother also lived there. When O.L. was 14 years old, appellant put his finger in her vagina at night while she slept in the living room. This occurred in the summer of 1996. Appellant penetrated her vagina with his penis three or four times in 1997.
Proceedings relevant to the statute of limitations
A felony complaint for arrest warrant was filed on December 20, 2006, charging appellant with one count of continual sexual abuse in violation of section 288.5, subdivision (a), and two counts of sexual penetration by a foreign object in violation of section 289, subdivision (h). It was alleged as to counts 1, 2, and 3 that the statute of limitations was tolled pursuant to section 803, subdivision (f)(1). The complaint was amended on January 23, 2007, to add count 4, aggravated sexual assault in violation of section 269, subdivision (a)(5), and count 5, aggravated sexual assault in violation of section 269, subdivision (a)(3). At the preliminary hearing on February 1, 2007, the prosecutor amended the complaint as to count 4, to allege a violation of section 286 rather than 289. The trial court found the tolling allegation of section 803, subdivision (f)(1) to be true.
On March 2, 2007, an information was filed alleging the five counts in the amended complaint. On May 18, 2007, an amended information charged appellant with, among other things, counts 2 and 3, the crime of sexual penetration by a foreign object against O.L. who was under 18 years of age, in violation of section 289, subdivision (h). The information alleged that as to counts 2 and 3, the prosecution had been commenced pursuant to section 803, subdivision (f)(1). The amended information also included count 6, aggravated sexual assault in violation of section 269, subdivision (A)(3). On March 23, 2007, appellant filed a demurrer to the information on the grounds that counts 1, 2, and 3 were barred by the statute of limitations. Appellant contended that section 803 could not toll the statute of limitations because it was enacted after the statutory time had expired on those crimes.
On June 4, 2007, appellant filed a motion to, among other things, set aside the information pursuant to section 995, dismiss counts 4 and 5, seek discovery of D.B.’s school records, and permit D.B. to be examined by a psychiatrist. The motion also sought to dismiss counts 1, 2, and 3 on the basis that they were barred by the statute of limitations because there was no clear and convincing admissible evidence corroborating the accusations as required pursuant to section 803, subdivision (f). The trial court denied the section 995 motion to dismiss, the discovery motions, and the request for examination of D.B. by a psychiatrist.
On the first day of trial, March 10, 2008, the People represented that the section 803, subdivision (f)(1) tolling provision did not apply because appellant came within the statute of limitations under section 801.1, subdivision (a). The trial court struck the reference to section 803 in the information, as indicated by handwritten interlineations in the amended information contained in the clerk’s transcript. The next day, appellant’s trial counsel objected to the amendment of the information that brought counts 1, 2, and 3 out of the statute of limitations period. The trial court noted the information was amended on May 18, 2007.
DISCUSSION
I. Appellant’s judgment of conviction on count 2 and count 3 must be reversed because the statute of limitations expired prior to the effective date of section 801.1
Appellant contends, and the People concede, that the judgment of conviction on counts 2 and 3 must be reversed because the statute of limitations expired prior to the effective date of section 801.1. We agree and reverse the judgment of conviction and sentence on counts 2 and 3.
Counts 2 and 3 were alleged to have been committed between November 28, 1995, and November 27, 1997. Section 289, subdivision (h) provides that the crime of sexual penetration by a foreign object of a person under age 18 shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year. Section 18 prescribes a punishment of 16 months, two, or three years where an offense is punishable by imprisonment in the state prison. Thus, pursuant to section 801, a three-year statute of limitations governs violations of section 289, subdivision (h). As both parties agree, the statute of limitations for the offenses charged in counts 2 and 3 expired as of November 27, 2000.
Section 801 provides: “Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
The People concede that the prosecutor bears the burden of proving that a crime occurred within the applicable statute of limitations. (People v. Linder (2006) 139 Cal.App.4th 75, 84.) The prosecutor at trial struck the section 803, subdivision (f) allegation, electing not to prove it and relying instead on section 801.1. The People acknowledge that the statute of limitations for the offenses charged in counts 2 and 3 expired as of November 27, 2000, prior to either the January 1, 2006, effective date of section 801.1, subdivision (a), or the January 1, 2001, effective date of section 801.1, subdivision (b). (In re White (2008) 163 Cal.App.4th 1576, 1580 [the 10-year statute of limitations of section 801.1, subdivision (b) has been in effect since January 1, 2001].) Thus, the prosecutor at trial erred in relying on section 801.1 to prove that the statute of limitations had not expired. Application of section 801.1 violated the ex post facto clause under the circumstances of this case. (Stogner v. California (2003) 539 U.S. 607, 633.)
Section 801.1, subdivision (a) provides: “prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim’s 28th birthday.”
Section 801.1, subdivision (b) provides that a prosecution for section 289 shall be commenced within 10 years after commission of the offense.
The judgment of conviction and sentence on counts 2 and 3 must be reversed.
II. The trial court did not abuse its discretion in denying appellant’s request for a psychiatric examination of D.B.
Appellant contends that the trial court abused its discretion in denying appellant’s request for a psychiatric examination of D.B. Appellant argues that the psychological exam was not barred by section 1112 because he did not seek the exam for the purpose of assessing D.B.’s credibility. Furthermore, he argues that under Evidence Code section 730, the trial court had the authority to appoint an expert to determine if D.B. was a disqualified witness under Evidence Code section 701. We disagree with appellant’s arguments.
In his brief, appellant quotes the language set forth in Evidence Code section 730, but cites to Evidence Code section 700, which provides: “Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.”
Section 1112 provides, in part: “... the trial court shall not order any prosecuting witness, complaining witness, or any other witness, or victim in any sexual assault prosecution to submit to a psychiatric or psychological examination for the purpose of assessing his or her credibility.” Evidence Code section 730 provides, in part: “When it appears to the court... that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.” Evidence Code section 701, provides: “(a) A person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) Incapable of understanding the duty of a witness to tell the truth.”
Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court. (Evid. Code, § 405, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 575.) The burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion. (People v. Anderson, supra, at p. 575.)
At the preliminary hearing, D.B. testified that he had told his grandmother that from time to time he heard voices in his head. He denied telling her that the voices told him to kill people. Rather, he said the voices were really his conscience, telling him to make the right decision. Prior to trial, defense counsel made a motion, notwithstanding section 1112, for an examination by a psychiatrist to determine D.B.’s competency to testify. The motion was denied without prejudice pending a further showing that D.B. was not competent.
At a subsequent hearing, appellant’s counsel again requested a psychiatric examination, arguing that section 1112 did not bar the examination because D.B.’s competence rather than credibility was at issue. The trial court reiterated that a psychiatric exam was inappropriate to assess D.B.’s credibility.
Appellant’s counsel then argued that D.B. was not competent to testify under Evidence Code section 701. Appellant’s counsel represented that D.B.’s grandmother submitted a declaration that D.B. told her he hears voices telling him to kill various members of the family. The trial court noted that at the preliminary hearing, D.B. did not appear incapable of expressing himself and that there was no indication that he was incapable of understanding his obligation to tell the truth. The trial court opined that appellant’s counsel had not shown that a psychiatrist would render an opinion that D.B. was incapable of understanding the duty to tell the truth. Instead, the trial court stated that it believed appellant’s counsel wanted an expert to evaluate his credibility, in the guise of assessing his competence. The trial court also noted that appellant’s grandmother was an interested party and that her declaration did not fit the criteria of determining that D.B. was not competent to testify.
On this record we conclude that the trial court did not abuse its discretion in denying appellant’s request for a psychiatric examination of D.B.
III. The trial court did not abuse its discretion in denying probation to appellant
Appellant contends that the trial court abused its discretion in denying probation to him. We disagree.
“A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.” (People v. Edwards (1976) 18 Cal.3d 796, 807 [overruled by statute on other grounds as stated in People v. Vega (1990) 224 Cal.App.3d 506, 512].)
Appellant argues on appeal that the trial court abused its discretion in denying probation because it failed to consider the events in question took place many years ago, the events were not corroborated, appellant’s lack of prior record, the jury had trouble with D.B.’s credibility, and an expert had testified that appellant was very likely not a pedophile. The record shows that the trial court considered appellant’s lengthy sentencing brief which raised those same issues. The trial court also considered the probation report which recommended against probation, and the guidelines of California Rules of Court, rule 4.414. Appellant’s further argument that the trial court did not consider the support of most of the family members, is belied by the reporter’s transcript. The trial court carefully considered arguments of counsel and the testimony of the witnesses at the sentencing hearing. Father testified as to appellant’s lack of remorse and the negative impact that appellant’s abuse had on D.B. Other witnesses, including appellant’s father and girlfriend, testified as to his good character, his lack of prior arrest record, and their hopes that probation would bring the family together.
California Rules of Court, rule 4.414 provides: “Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. [¶] (a) Facts relating to the crime [¶] Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.”
In denying probation, the trial court noted that it had conducted the trial, that appellant had been convicted of serious, multiple sex crimes, that appellant took advantage of his family relationship, that the victims were young and vulnerable, that D.B. suffered emotional injury and continues to struggle in school, that the family could reconcile even if appellant were imprisoned, and that appellant had not shown any remorse. In his reply brief, appellant contends that because the People concede counts 2 and 3 are barred by the statute of limitations, appellant was convicted of two rather than four sex crimes. His claim that the matter must be remanded for re sentencing because the trial court denied probation on the basis that he had been convicted of four sex offenses, is not well taken. As discussed, the trial court based its denial of probation on many other factors besides appellant’s conviction for multiple sex crimes.
We conclude that the trial court did not abuse its discretion in denying probation to appellant.
IV. The trial court did not violate appellant’s Sixth and Fourteenth Amendment rights or the ex post facto clause in imposing the upper term on counts 1 and 6
Appellant contends that under the dictates of Cunningham v. California (2007) 549 U.S 270 (Cunningham), the imposition of the upper term violated the ex post facto clause, his Sixth Amendment right to a jury trial, and his Fourteenth Amendment right to proof beyond a reasonable doubt of aggravating factors used to support that sentence. He argues that rather than remand for resentencing, we must reduce his sentence to the midterm. Appellant’s contention lacks merit. For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black), we find no constitutional violation in the trial court’s imposition of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court made it clear that, “[i]n accord with Blakely,... the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. 288) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. 292.)
However, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) In response to Cunningham, on March 30, 2007, the California Legislature amended section 1170, subdivision (b) to read: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” On July 19, 2007, in People v. Sandoval (2007) 41 Cal.4th 825, 853–855 (Sandoval), our Supreme Court judicially adopted the amendments for retroactive application and further held “the prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions.” We, of course, are bound by that decision, as appellant acknowledges. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Sandoval, supra, 41 Cal.4th at p. 855.)
There is no ex post facto violation because the trial court sentenced appellant on April 17, 2008, after the amendment of section 1170, subdivision (b) and the publication of Sandoval. Nor is there an ex post facto violation where the crimes were committed prior to the amendment of Section 1170, subdivision (b) or the publication of Sandoval because the amended statute “‘creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment... and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause.’” (Sandoval, supra, 41 Cal.4th at p. 854.)
Here, the trial court exercised its discretion as required under section 1170, subdivision (b) and Sandoval in imposing the high term “because of the age of the victim in that case. Extremely young and extremely vulnerable.”
We find that there was no violation of the ex post facto clause and appellant’s Sixth and Fourteenth Amendment rights.
DISPOSITION
We reverse the judgment of conviction and sentence on counts 2 and 3. In all other respects, the judgment is affirmed.
We concur: BOREN P. J DOI TODD, J.