Opinion
E066013
10-26-2017
THE PEOPLE, Plaintiff and Respondent, v. ALDO FIDEL CASAS ESCOBEDO, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1301756) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Aldo Fidel Casas Escobedo of 11 counts of lewd acts with a child under age 14 (counts 1-5, 9-14; Pen. Code, § 288, subd. (a)), three counts of lewd acts with a child under age 16 (counts 15-17; § 288, subd. (c)(1)), and three counts of unlawful sexual intercourse with a child under 16 (counts 18-20; § 261.5, subd. (d)). The trial court imposed a prison sentence of 34 years.
Further undesignated statutory references are to the Penal Code.
On appeal, Escobedo argues that the judgment on counts 18 through 20 must be reversed, because prosecution of those offenses is barred by the applicable three-year statute of limitations. We affirm the judgment.
I. FACTUAL BACKGROUND
The victim, born July 6, 1995, was taken into foster care in 2005, along with two younger brothers and a younger sister. The two girls were placed with a female foster parent (foster mother), while the two boys were placed with Escobedo. At the time, Escobedo and the foster mother were in a romantic relationship, and the foster mother had recently given birth to their daughter, but they did not live together. In 2006, Escobedo moved in with the foster mother.
The prosecution presented evidence that, after Escobedo moved into the home of the foster mother, he began sexually abusing the victim. The victim testified that Escobedo would regularly, two or three times a week, touch her on her genitals and breasts, both under and over clothing.
While the victim was in the care of Escobedo and the foster mother, Escobedo was also conducting a romantic relationship with the victim's biological mother (mother). When Escobedo would take the victim for visitation, she would observe him and mother kissing and talking "like boyfriend and girlfriend."
After about a year, when the victim moved out of the home of Escobedo and the foster mother, and resumed living with mother, Escobedo's sexual abuse of the victim temporarily stopped. A few months after the victim returned to the care of her mother, however, Escobedo moved in to mother's house. After moving in, Escobedo resumed sexually abusing the victim, and the abuse escalated to include oral sex and Escobedo rubbing the victim's anus with his penis. The victim testified that Escobedo would have sexual contact with her in one way or another once or twice a week during this period of time.
There was another pause in Escobedo's sexual abuse of the victim in 2006 or 2007, when he went to Cuba for seven months, and for about five months after his return. When the victim was 12 or 13 years old and in the sixth grade, however, Escobedo resumed his relationship with mother and moved back in with mother, the victim, and her siblings. When he did so, he resumed sexually abusing the victim. Escobedo began penetrating the victim's anus with his penis. The anal sex stopped when he began penetrating her vaginally with his penis. During this period of time, the victim testified, she believed that she and Escobedo "were boyfriend and girlfriend." They would have sex four or five times a week, while her siblings were outside or downstairs, and mother was at work.
When the victim was 14 years old, she went to Cuba with Escobedo for 21 days. They had sex every night they were there. When they returned from Cuba, Escobedo and the victim continued to have sex.
After the Cuba trip, but when the victim was still 14 years old, the family moved to a different home in the same city. She and Escobedo continued to have sexual intercourse five times a week.
In June 2010, police became involved, interviewing the victim about her relationship with Escobedo, but she did not tell the truth, because she did not want to be separated from him. On July 20, 2010, mother obtained a restraining order against Escobedo to prevent the victim from seeing him. The victim nevertheless continued to see him, and continued to have sexual intercourse with him.
At trial, Escobedo testified on his own behalf, and denied that he ever did anything sexually inappropriate with the victim.
II. PROCEDURAL BACKGROUND
On March 7, 2013, a 44-count felony complaint was filed against Escobedo. As relevant to the present appeal, the complaint included five counts (counts 40-44) of unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (d), "on or about June 6, 2009 through and including June 5, 2010." On the same date, Escobedo was arraigned on the complaint. The complaint did not allege any tolling provisions for these counts.
On October 25, 2013, a 20-count information was filed against Escobedo. It included three counts (counts 18-20) of committing unlawful sexual intercourse with a minor, in violation of section 261.5, subdivision (d), "on or about July 6, 2009, through and including July 5, 2010." The information did not allege any tolling provisions for these counts. At trial, the jury was instructed that the crimes charged in counts 18 through 20 were alleged to have occurred on or about July 6, 2009, through July 5, 2010.
After the jury returned its verdicts, finding Escobedo guilty on all 20 counts alleged in the information, the trial court imposed a sentence of 34 years, consisting of an eight-year term on count 1, consecutive two-year terms on counts 2 through 14, concurrent two-year terms on counts 15 through 17, and concurrent three-year terms on counts 18 through 20.
III. DISCUSSION
Escobedo contends that his convictions on counts 18 through 20 must be reversed, because the prosecution of those section 261.5, subdivision (d), offenses, alleged to have been committed "on or about July 6, 2009, through and including July 5, 2010," was not commenced within the applicable three-year statute of limitations. He argues that prosecution commenced only with the filing of the information on October 25, 2013. In the alternative, he argues that even if prosecution commenced on March 7, 2013, when he was arraigned on the felony complaint, the convictions must still be reversed as time-barred. We disagree with both of Escobedo's arguments.
The applicable statute of limitations period for a criminal offense generally "turns on the maximum punishment prescribed for the offense." (People v. Turner (2005) 134 Cal.App.4th 1591, 1595; § 805, subd. (a).) Unlawful sexual intercourse in violation of section 261.5, where the perpetrator is at least 21 and the victim is under 16, is punishable "by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of section 1170 for two, three, or four years." (§ 261.5, subd. (d).)
Section 801 provides, with exceptions not applicable here, that offenses punishable by imprisonment in state prison "shall be commenced within three years after commission of the offense." (§ 801.) Prosecution of a felony offense is commenced when an information or indictment is filed (§ 804, subd. (a)), the defendant is arraigned on a felony complaint (§ 804, subd. (c)), or when "[a]n arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint" (§ 804, subd. (d)). Pursuant to section 803, "[n]o time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter." (§ 803, subd. (b).)
The People argue that Escobedo forfeited his statute of limitations arguments by failing to raise them at trial. We disagree. "[W]hen the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time," including on appeal. (People v. Williams (1999) 21 Cal.4th 335, 341 (Williams).) "Thereafter, if the record establishes that the action is not time-barred, the conviction may stand; if, however, the appellate court cannot determine from the record whether the action is time-barred, it should remand for a further hearing. [Citation.] [¶] If, on the other hand, the charging document does allege that the action is timely, any objection to the sufficiency of the evidence to prove timeliness must be raised in the trial court in the first instance . . . ." (People v. Ortega (2013) 218 Cal.App.4th 1418, 1427-1428 (Ortega).)
Here, Escobedo contends that the charging document—whether that means the original felony complaint, or the later-filed information—shows on its face that the action is time-barred. This is an argument that may be raised at any time. (Williams, supra, 21 Cal.4th at p. 341.) However, if the document adequately alleged the action was timely, or if the evidence at trial established that the action was not time-barred, we may affirm. (Ortega, supra, 218 Cal.App.4th at p. 1427.)
The information was filed on October 25, 2013, more than three years after the time period when it alleged that counts 18 through 20 were committed, i.e., "on or about July 6, 2009, through and including July 5, 2010." Nevertheless, the period after Escobedo's March 7, 2013, arraignment on the felony complaint does not count towards the limitations period if it alleges "the same conduct." (§ 803, subd. (b); see § 804, subd. (a).) And it has long been the rule that an amendment of the accusatory pleading which merely changes the alleged dates of the crimes does not have the effect of charging different offenses; rather, it "relates back" to the date of the original pleading. (In re Application of Davis (1936) 13 Cal.App.2d 109, 113-114 (In re Davis).)
The facts of In re Davis are instructive. In that case, "[t]he defendant was charged with successive acts of incest upon the same female." (In re Davis, supra, 13 Cal.App.2d at p. 113.) In an information filed June 13, 1932, the defendant was accused of two acts of incest, one committed on August 5, 1929, the other on September 1, 1929. (Id. at p. 110.) At trial, to conform to the evidence, the information was amended to allege that the first act of incest occurred June 5, 1929, and that the second was committed June 15, 1929. (Id. at pp. 110-111.) The Court of Appeal concluded that the first charged act was barred by the statute of limitations, since it occurred more than three years before the information was filed, but the second count was not time-barred. (Id. at p. 111-112.) The second count was "valid" because "[t]he amendment of an information in a criminal case by merely changing the alleged date of the offense charged . . . like any other amended pleading, relates back to the date of the original filing of the information, and has the effect of tolling the running of the statute of limitations from the date of the filing of the original information." (Id. at pp. 113-114.) Applying this reasoning to the present case, counts 18 through 20 of the information relate back to the date of the original pleading, the date of Escobedo's arraignment on the felony complaint.
Escobedo's reliance on People v. Terry (2005) 127 Cal.App.4th 750 (Terry) to support his contention that counts 18 through 20 are time-barred is misplaced, because Terry is distinguishable on its facts. In Terry, the original pleading alleged, as relevant here, one lewd act count; an amended pleading added six more lewd act counts in the same time frame. (Id. at p. 757.) The court of appeal held that the amended pleading did not relate back to the original because the new counts did not allege the "same conduct" as the original, noting that the prosecutor had "maintained that each count represented a separate lewd act . . . ." (Id. at pp. 767-769.) Here, in contrast, the original pleading alleged five lewd act counts, while the amended pleading alleged three lewd act counts occurring in an overlapping time frame. Escobedo presents no reasoned argument as to why we should treat the information as dropping allegations regarding five specific lewd acts asserted in the felony complaint, and charging in their place three wholly separate lewd acts. A more plausible reading of events is that information alleges three of the same five lewd acts as alleged in the felony complaint, with slightly modified approximate dates. Lewd acts that allegedly occurred "on or about June 6, 2009 through and including June 5, 2010" (according to the original pleading) can be the same conduct as lewd acts that allegedly occurred "on or about July 6, 2009, through and including July 5, 2010." (See Ortega, supra, 218 Cal.App.4th at p. 1429 ["Lewd acts that allegedly occurred 'on or about' 1994 (according to the original information) can be the same conduct as lewd acts that allegedly occurred 'on or about' 1994 to 1995 (according to the amended information)."].) Viewed in that light, counts 18 through 20 of the information relate back to the date of Escobedo's arraignment on the felony complaint, March 7, 2013, for statute of limitations purposes. (§ 803, subd. (b); § 804, subd. (a); In re Davis, supra, 13 Cal.App.2d at pp. 113-114.)
Citing People v. Simmons (2012) 210 Cal.App.4th 778 (Simmons), Escobedo argues that even using March 7, 2013, as the date the prosecution commenced, counts 18 through 20 are time-barred because "this court should look to the earliest date in the range for the purpose of applying the statute of limitations." Again, however, Escobedo's authority is distinguishable on its facts from the present case. In Simmons, as relevant here, the defendant was charged with a single count of exhibiting pornography to a minor for purposes of seduction, in violation of former section 288.2, subdivision (a), arising out of a single incident. (Simmons, supra, at pp. 785-786, 788.) The information alleged that the offense, then governed by a three-year statute of limitations, was committed between February 9, 1999, and February 9, 2000, and at trial the People "presented substantial evidence that the crime occurred sometime during this time period, but not precisely when." (Id. at p. 789.) On this basis, the Court of Appeal concluded that the limitations period expired on February 9, 2002, based on the earliest date in the date range alleged in the information. (Ibid.) Simmons is not properly read to require that, in any case where a date range is alleged, the court must look at the earliest date in the range for purposes of applying the statute of limitations. Rather, Simmons stands for the proposition that, on the facts of that case, the evidence did not establish that the prosecution commenced within the applicable limitations period after the commission of the charged offense.
The present case, however, does not involve a single incident that occurred at some point during a range of dates. And there is substantial evidence that supports the conclusion that the charged offenses occurred in the later portion of the date range alleged in the information, within the applicable limitations period. The victim testified that she and Escobedo had sexual intercourse four or five times per week, beginning when she was 12 or 13 years old (no later than July 6, 2009, her 14th birthday) and continuing at least through June 2010. There was therefore substantial evidence Escobedo engaged in sexual intercourse with the victim at least three times between March 7, 2010 (three years before the prosecution commenced with defendant's arraignment on the felony complaint) and July 5, 2010 (the last day in the date range alleged in the information, and the day before her 15th birthday). Because the evidence supports the conclusion that Escobedo committed at least three acts of unlawful sexual intercourse against the victim within the applicable limitations period, his convictions on counts 18 through 20 are valid.
For similar reasons, People v. Angel (1999) 70 Cal.App.4th 1141 is unhelpful to Escobedo. He cites it for the proposition that convictions are time-barred where the charged offenses "could have occurred before or after the limitations period expired." (Id. at p. 1147.) But the facts of Angel are distinguishable, and the cited proposition does not apply in the context of the present case. In Angel, the applicable limitations period barred any offenses committed before July 20, 1989. (Id. at p. 1146.) Two of the charged offenses were alleged to have taken place in July 1989, but the evidence established only that the victim had been molested "on numerous occasions" and at least once a month. (Id. at pp. 1143-1144.) It was therefore possible that the victim had only been molested once in July 1989, prior to the 20th of the month. In those circumstances, the court of appeal found that the two offenses alleged to have been committed in July 1989 were time-barred. (Id. at p. 1147.) There is no similar ambiguity at work in the present case. Substantial evidence establishes that Escobedo had sexual intercourse with the victim at least three times, and indeed many more than three times, between March 7, 2010 and July 5, 2010. None of these offenses are time barred, and there is therefore ample support for the convictions on counts 18 through 20.
We find substantial evidence in the record establishes that prosecution of counts 18 through 20 of the information was timely commenced on March 7, 2013, when Escobedo was arraigned on the felony complaint.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MCKINSTER
Acting P. J. MILLER
J.