Opinion
H043189
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. BART RICARDO GUILLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1496352)
A jury convicted defendant Bart Ricardo Guillen of 10 counts of lewd conduct on a child under the age of 14 and two counts of misdemeanor indecent exposure and found true a multiple victim allegation applicable to the lewd conduct counts. The trial court sentenced defendant to an aggregate prison term of 90 years to life. On appeal, defendant contends his misdemeanor indecent exposure convictions must be reversed because prosecution for those offenses was untimely. The Attorney General concedes that prosecution of the misdemeanors was time-barred. Because we accept that concession, we reverse defendant's misdemeanor indecent exposure convictions, strike the sentence imposed for those offenses, and affirm the judgment as modified.
I. PROCEDURAL HISTORY
On July 1, 2015, defendant was charged by information with 10 counts of lewd conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 1-10) and two counts of misdemeanor indecent exposure (§ 314, subd. (1), counts 11-12). The information alleged that the charged offenses occurred between May 1, 2002 and September 30, 2004. Multiple victims were alleged for counts 1 through 10. (§ 667.61, subds. (b) & (e)). On October 27, 2015, the information was amended to allege that the charged offenses occurred between May 1, 1999 and September 30, 2004.
All further statutory references are to the Penal Code unless otherwise indicated. --------
A jury convicted defendant of all 12 counts and found the multiple victim allegation to be true. The trial court sentenced defendant on January 8, 2016. The court imposed a term of 15 years on count 1, a concurrent term of 15 years to life on count 2, a consecutive term of 15 years to life on count 3, a consecutive term of 15 years to life on count 4, a concurrent term of 15 years to life on count 5, a consecutive term of 15 years to life on count 6, a concurrent term of 15 years to life on count 7, a consecutive term of 15 years to life on count 8, a concurrent term of 15 years to life on count 9, a consecutive term of 15 years to life on count 10, and a concurrent term of six months on counts 11 and 12, for an aggregate prison term of 90 years to life.
Defendant timely appealed.
II. DISCUSSION
Defendant contends, and the Attorney General concedes, that his convictions on counts 11 and 12 must be reversed because the statute of limitations barred his prosecution for misdemeanor indecent exposure. The Attorney General's concession is well-taken.
Section 314 provides that "[e]very person who willfully and lewdly . . . [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . is guilty of a misdemeanor. [¶] Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year. [¶] Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison."
Here, the information expressly charged the section 314 violations as misdemeanors and did not allege any of the facts necessary to elevate the offenses to felonies, such as that defendant had previously been convicted of indecent exposure or of violating Section 288. Accordingly, the one-year statute of limitations applicable to misdemeanors applies. (§ 802, subd. (a) ["prosecution for an offense not punishable by death or imprisonment in the state prison [i.e., a misdemeanor] shall be commenced within one year after commission of the offense"].)
"[I]f the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 338.) "The statute of limitations, when applicable, completely bars the prosecution." (Id. at p. 341.) Given the alleged date range of May 1, 1999 to September 30, 2004, the limitations period expired no later than September 30, 2005. But prosecution for the misdemeanors was not commenced until the information was filed on July 1, 2015. (§ 804, subd. (a).) The information indicated on its face that counts 11 and 12 were untimely, such that prosecution was barred. Defendant's convictions on those counts must be reversed.
III. DISPOSITION
Defendant's convictions for misdemeanor indecent exposure in counts 11 and 12 are reversed and the six-month concurrent term imposed on those counts is stricken. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.