Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F3831
NICHOLSON, J.
A jury found defendant Gary Lee Elrite guilty of two counts of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a) -- counts 1 and 2), two counts of lewd and lascivious acts against a child of 14 or 15 years (§ 288, subd. (c)(1) -- counts 3 and 6), two counts of oral copulation of a child under the age of 16 (§ 288a, subd. (b)(2) -- counts 4 and 5) and one count of producing, distributing or exhibiting obscene matter (§ 311.2, subd. (a) -- count 7), and found all of the special allegations true, including an allegation pursuant to section 803, subdivision (f) (hereafter section 803(f)), a delayed reporting provision which extends the applicable statute of limitations for sex crimes against minors. The trial court sentenced defendant to an aggregate term of 22 years eight months in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the People failed to plead that counts 2, 3 and 4 were brought within the applicable statute of limitations, (2) the trial court improperly applied section 803(f) to counts 1, 5 and 6 based on the second (i.e., the later) of two reports by the victims, and (3) application of section 803(f) in that manner violated principles of ex post facto and due process. We direct the trial court to make a correction to the abstract of judgment and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and W.A. married in 1993 and moved into a home in Redding, together with W.A.’s three sons, her nine-year-old daughter, D., and defendant’s father. W.A.’s 12-year-old daughter, L., moved into the home shortly thereafter. Within months, defendant began sexually abusing his stepdaughter, L., touching her and engaging in oral sex and sexual intercourse with her on a regular basis. The first incident involving L. occurred just after she turned 13. One night, as L. and D. lay on the floor of the bedroom they shared, defendant came into the room and began fondling L.’s breasts and vagina. He then had sexual intercourse with her while D. slept on the floor nearby. When defendant was finished, he instructed L. to douche to avoid getting pregnant. He warned her not to tell anyone and threatened to “take her family away.” L. was afraid and did not tell anyone what had happened.
D. was born in September 1983.
L. was born in December 1980.
The second incident involving L. occurred one night when, after everyone else had gone to sleep, defendant entered L.’s bedroom, woke her up, took her into the hallway, stood her up against a closet door and inserted a dildo into her vagina.
Defendant sexually abused L. regularly, touching her and having oral sex and sexual intercourse with her at least 50 times before she turned 14. The abuse continued “almost nightly” until L. turned 16. As a result of defendant’s sexual abuse, L. became pregnant when she was 16. L. began using alcohol and marijuana, some of which she obtained from defendant. She terminated the pregnancy, but because she was under the influence of drugs at the time, she could not recall at trial whether she had done so by throwing herself down a ravine or having an abortion.
Within the first year of moving into the Redding house, defendant was also sexually abusing D. on a regular basis. The abuse escalated, beginning with an incident that occurred when defendant, while driving D. to a friend’s house, parked his van on some railroad tracks just miles from their home and had sexual intercourse with D. in the back of the van. Defendant began regularly engaging in sexual intercourse with D. D. did not tell anyone about the abuse because defendant told her not to tell and because she was humiliated and feared her mother would get divorced again if she found out.
One night, L. went to the bathroom and saw defendant engaging in oral sex with D., then just 11 years old. On at least one occasion, defendant sexually abused both L. and D. at the same time.
In late 1996, after L. turned 16, she told her mother that both she and D. were being abused by defendant. L. and D. immediately moved out of the house in Redding and lived with their grandparents and with friends. Thereafter, in 1997, L. and D. both reported the abuse to Detectives Carol Birch and Steve Birch. W.A. eventually moved out and divorced defendant.
The record contains no details regarding the 1997 report to law enforcement other than that a report was made.
Defendant continued to visit L. and D. after they moved out of the Redding house. Both girls were regularly drinking alcohol and using drugs which were often provided by defendant. When defendant learned the abuse had been reported, he made repeated attempts to keep D. from talking to law enforcement, telling her they were “soul mates” who were meant to be together and warning her that he would go to prison for a long time unless she changed her story. D. recanted “for the drugs” and because she believed defendant. L. eventually recanted as well. As instructed by defendant, both L. and D. told detectives they caught defendant having an affair and threatened that if he did not tell their mother, they would tell her “he was doing stuff to [them].”
Defendant continued to have sex with D., who was then 14 or 15 years old. D. moved back into the Redding house with defendant, where he continued his sexual relationship with her and continued to provide her with drugs and alcohol. D. testified that she continued to have sex with defendant “[f]or the drugs.”
Defendant continued to engage in oral sex and sexual intercourse with D. until she turned 19, often videotaping their encounters, and using sex toys and showing D. pornography. As a result of the sexual abuse, defendant impregnated D. when she was 13, and again when she was 17. Both pregnancies were terminated.
On March 30, 2004, Shasta County Sheriff’s Detective Pamela Depuy received a videotape depicting defendant and D. engaged in sexual intercourse at defendant’s house.
On March 31, 2004, Depuy interviewed L. and showed her portions of the videotape. L. reported the abuse by defendant and stated she believed D. was approximately 14 or 15 at the time the tape was made. Depuy also interviewed D. and showed her the tape. D. reported the abuse and confirmed that she was the person in the video with defendant.
Detectives executed a search warrant at defendant’s home in Redding on June 8, 2004, and found videotapes (some depicting sex acts between defendant and D.), numerous sex toys, gels, lotions, condoms, sex aids, handcuffs, leather straps, and pornographic magazines and movies.
On October 18, 2004, defendant was charged by felony information with two counts of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)), one as to L. for conduct occurring between December 4, 1993, and November 30, 2004 (count 1), and one as to D. for conduct occurring between September 1, 1994, and August 31, 1997 (count 2); two counts of lewd and lascivious acts against a child of 14 or 15 years (§ 288, subd. (c)(1)), one as to D. for conduct occurring between September 1, 1998, and August 31, 1999 (count 3), and one as to L. for conduct occurring between December 6, 1994, and November 30, 1996 (count 6); two counts of oral copulation of a child under the age of 16 (§ 288a, subd. (b)(2)), one as to D. for conduct occurring between September 1, 1997, and August 31, 1999 (count 4), and one as to L. for conduct occurring between December 6, 1994, and November 30, 1996 (count 5); and one count of producing, distributing, or exhibiting obscene matter (§ 311.2, subd. (a)) for conduct occurring between March 1, 2004, and March 31, 2004 (count 7). The information also alleged defendant committed the offenses described in counts 1 and 2 against more than one victim (§ 667.61); defendant engaged in substantial sexual conduct in committing the offenses in counts 1 and 2 (§ 1203.066, subd. (a)(8); and as to count 2, defendant used obscene matter depicting sexual content (§§ 311, 311.3).
The information was amended on June 6, 2005, to include an additional charge of unlawful sexual intercourse (§ 261.5, subd. (c) -- count 8) as to a third victim, S.L., for conduct occurring between November 17, 1998, and November 17, 2000.
The information was amended a second time on October 3, 2006, striking count 8 and specially alleging that counts 1, 5 and 6 were subject to the statute of limitations as set forth in section 803(f) based on the report L. and D. made to law enforcement on March 31, 2004.
At the time the second amended information was filed in 2006, section 803(f) provided, in relevant part: “(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, 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.” (Stats. 2005, ch. 479, § 3.)
On October 3, 2006, defendant filed a motion to dismiss counts 1 through 6 as time-barred, challenging the People’s reliance on section 803(f) (referred to in defendant’s motion as “§ 803(g)”). The People opposed the motion, arguing, among other, things that counts 2, 3 and 4 were subject to the 10-year statute of limitations set forth in section 801.1, subdivision (b) (hereafter section 801.1(b)).
The provisions of section 803(f) were first codified in former section 803, subdivision (g), effective January 1, 1994. (Stats. 1993, ch. 390, § 1, p. 2226.)
Section 801.1(b) provides: “Notwithstanding any other limitation of time described in this chapter, if subdivision (a) does not apply, prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense.”
At the October 16, 2006, hearing on the motion, the People filed a third amended information striking those portions of time within which the conduct was alleged to have occurred to comport with section 801.1(b). Based on that amendment, defendant conceded that section 801.1 “did extend that statute of limitations for ten years . . . .” and withdrew his motion as to counts 2, 3 and 4. Defendant claimed, however, that counts 1, 5 and 6 were time-barred because the People failed to file a charging document within one year of L. and D.’s first report to law enforcement in 1997. The court rejected defendant’s argument and denied the motion. In doing so, the court noted the language of section 803(f) does not require that the triggering report be the first report made by the victim, only that it be “a report having been made when a person was over eighteen and where the statute of limitations had already expired.” The court also expressed doubt that the Legislature, in enacting section 803(f), ever intended for a defendant to benefit from having persuaded his minor victim to recant a report.
The jury found defendant guilty on all counts and found all of the special allegations true. Prior to sentencing, defendant admitted several aggravating factors -- that his prior convictions as an adult were numerous or of increasing seriousness, that he had served a prior prison term and that his prior performance on probation or parole was unsatisfactory -- in exchange for dismissal of two additional cases pending against him.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends that section 800 was the only statute of limitations in effect at the time counts 2, 3 and 4 were allegedly committed and, because the People failed to plead that former section 803, subdivision (i) (hereafter section 803(i)) extended the statutes of limitation to 10 years, those counts are time-barred. We disagree.
Section 803, subdivision (h) (hereafter section 803(h)), effective on January 1, 2001, is the predecessor statute to section 801.1(b). (Stats. 2000, ch. 235, § 1.) Subdivision (h) became subdivision (i) in 2002. (Stats. 2001, ch. 235, § 1.)
Section 800 provides that “prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense.” Section 801 provides that “prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
On January 1, 2001, section 803(h)(2) became effective and provided a 10-year statute of limitations “for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001 . . . .” One year later, subdivision (h)(2) of section 803 became subdivision (i)(2). Section 801.1(b), enacted in 2004, superseded section 803(i)(2) without significant modification.
As a preliminary matter, defendant conceded at trial that counts 2, 3 and 4 fell within the 10-year limitations period of section 801.1(b) [formerly section 803(i)] and withdrew his motion to dismiss as to those counts. His doing so arguably constituted an affirmative waiver of the very claim he now raises on appeal. “Although . . . defendants may not forfeit the statute of limitations if it has expired as a matter of law, they may certainly lose the ability to litigate factual issues such as questions of tolling.” (People v. Williams (1999) 21 Cal.4th 335, 344; see also People v. Padfield (1982) 136 Cal.App.3d 218, 226-227 [assertion of statute of limitations on appeal after plea of no contest to information not time-barred on its face constitutes waiver of right to litigate factual question whether offense was time-barred].)
In any event, defendant’s claim fails on the merits. Defendant was charged in count 2 with violating section 288.5, subdivision (a). According to section 800, the statute of limitations for section 288.5 is six years. Given that count 2 was alleged to have occurred between January 2, 1995, and August 31, 1997, the earliest the statute of limitations could have expired for that offense was January 2, 2001. (People v. Angel (1999) 70 Cal.App.4th 1141, 1145-1147.) Thus, the statute of limitations on count 2 would not have expired before the 10-year statute provided in section 803(i)(2) took effect. Extension of the unexpired six-year limitations period was therefore permissible. (Stogner v. California (2003) 539 U.S. 607, 618 [156 L.Ed.2d 544, 556] (Stogner).) The same goes for counts 3 and 4, both of which are subject to a three-year statute of limitations pursuant to section 801. The earliest the limitations periods could have expired in counts 3 and 4 was September 1, 2001, and January 2, 2001, respectively, well after the 10-year statute in section 803(i)(2) became effective.
Defendant argues the statute of limitations is an element of the offense and the government is therefore required specifically to allege the statutes in the charging document. (People v. Bunn (1997) 53 Cal.App.4th 227, 233 (Bunn), overruled on other grounds by People v. Frazer (1999) 21 Cal.4th 737, 765, fn. 28; In re Demillo (1975) 14 Cal.3d 598, 601-602; People v. Zamora (1976) 18 Cal.3d 538, 564, fn. 25 (Zamora); Cowan v. Superior Court (1996) 14 Cal.4th 367, 374.) Defendant is wrong. As those cases make clear, the People “must plead and prove that the prosecution was commenced within the statutorily prescribed time period.” (Bunn, supra, 53 Cal.App.4th at p. 234; see also In re Demillo, supra, 14 Cal.3d at p. 601; Zamora, supra, 18 Cal.3d at p. 564, fn. 26.) That pleading requirement means that, when filed, “[a]n accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations . . . .” (People v. Crosby (1962) 58 Cal.2d 713, 724.) Here, the charging document alleged the time periods within which the offenses occurred, and those time periods comported with applicable statutes of limitations. The People were not required specifically to plead section 801.1(b) or its predecessor statute, section 803(i).
II
Defendant next contends the trial court improperly applied section 803(f) to counts 1, 5 and 6 based on the report made by the victims in 2004 rather than the 1997 report. Again, we disagree.
Section 803(f) permits prosecution of specified sexual offenses against children after the principal statute of limitations has expired if (1) prosecution is commenced within one year of the victim reporting the abuse to law enforcement, (2) the offense involved substantial sexual conduct, and (3) there is independent evidence that clearly and convincingly corroborates the victim’s allegation. It is the first element with which defendant takes exception, claiming that the first report by L. and D. in 1997 triggered section 803(f) and counts 1, 5 and 6 are time-barred as a result of the failure to commence prosecution within one year of that first report.
No one disputes that the victims reported defendant’s sexual abuse to law enforcement in 1997. However, D. and L. both testified that defendant not only persuaded them to recant that report, but provided them with an alternate story to give instead. Based on that testimony, the trial court found the 1997 report did not trigger section 803(f), reasoning in part that defendant should not reap the benefit of having coaxed his victims into recanting by claiming the one-year statute was activated despite that the victims recanted. We agree.
Section 803(f) is wholly dependent upon allegations by the victim, without which there would be no report to trigger the statute’s limitation period. Neither a report by someone other than the victim, nor corroboration of the alleged crime by itself, is enough to activate section 803(f). (See Ream v. Superior Court (1996) 48 Cal.App.4th 1812, 1818 [report by defendant’s ex-wife and corroborating evidence insufficient to prompt section 803(f)].) Defendant argues the purpose of the statute is to “give law enforcement a reasonable time to investigate and decide whether to prosecute after having received a report of sexual misconduct that they previously were unaware of.” Defendant cites no authority for that proposition which, if true, would require law enforcement to spend valuable time and resources investigating allegations the victim herself no longer supports and, as was the case here, disputed with contradictory information. In any event, the fact that law enforcement received information about a possible crime in 1997 prior to the second report is of no consequence because the 1997 report was effectively withdrawn when the victims recanted. Thus, the 2004 report was the “first” report of sexual abuse by L. and D. for purposes of section 803(f).
Because we find no error in the court’s application of section 803(f) based on the victims’ 2004 report, we need not address defendant’s remaining contentions in that regard.
III
Defendant argues that under Stogner, supra, 539 U.S. 607, the use of section 803(f) “to validate a prosecution based on a successive report” which would otherwise be time-barred violated the ex post facto and due process clauses of the United States Constitution.
Section 803(f) (formerly subd. (g)), as originally enacted, went into effect on January 1, 1994. (Stats. 1993, ch. 390, § 1, p. 2226.)
In Stogner, the United States Supreme Court considered whether section 803, subdivision (g) violated the ex post facto clause. There, the defendant was charged with sex-related child abuse committed between 1955 and 1973. Section 803 revived the charges, which had expired some 22 years before the prosecution was initiated. (Stogner, supra, 539 U.S. at pp. 609-610.) The United States Supreme Court held that section 803, subdivision (g), as applied to crimes that were already time-barred when the section was enacted on January 1, 1994, violates ex post facto principles. (Id. at pp. 609, 611-621.) Stogner also found, however, that the ex post facto clause does not prevent the state from extending time limits for future offenses or for prosecutions not yet time-barred. (Id. at p. 632; People v. Vasquez (2004) 118 Cal.App.4th 501, 505.)
Here, the Legislature could extend the limitations period for section 803(f) so long as the causes of action were not time-barred as of January 1, 1994, the effective date of the original statute. The six-year statute of limitations on count 1 ran, at the earliest, on December 4, 1999, well after section 803(f) was enacted. Similarly, the three-year statute of limitations on counts 5 and 6 ran, at the earliest, on December 6, 1997, again well after the enactment of section 803(f). Defendant’s convictions under those counts do not run afoul of ex post facto principles or due process.
IV
Count 6, a charge of section 288, subdivision (c)(1), is shown on an attachment page to the abstract of judgment, but is incorrectly listed as count 1, not count 6. The trial court is directed to amend the abstract of judgment to list the correct count number, count 6, on the attachment page.
DISPOSITION
The trial court is directed to amend the abstract of judgment to list the correct count number, count 6, on the attachment page and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: DAVIS, Acting P. J., ROBIE, J.