Opinion
A112466
5-9-2007
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JOSE GUZMAN, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Appellant was convicted in January 2005 of five counts of violating Penal Code section 288, subdivision (a), by committing lewd and lascivious acts on a child under the age of 14, specifically his nine-year old daughter, starting in April 1991. Appellant contends that the statute of limitations bars his conviction, but the trial court held that the applicable statute had been extended by the enactment of former section 803, subdivision (g) (section 803(g)). Appellant contends that statute is an unconstitutional "revival statute." Consistent with the holdings of several of our sister courts, we disagree and hence affirm appellants conviction.
All statutory references are to the Penal Code, unless otherwise noted.
This section was amended in 2005, the amendment being effective February 28, 2005. (See current section 803(g) and Stats. 2005, ch. 2, § 3 & ch. 479, § 3.) We will refer to the version of section 803(g) which was operative as of the date of the first report of the crime and the filing of the complaint and information as "former section 803(g)."
II. FACTUAL AND PROCEDURAL BACKGROUND
On at least five different occasions during the period from April 1991 through April 1993, appellant asked his daughter, Jane Doe (born in April 1982), to rub lotion on his penis. At those times, appellant was naked and lying on a towel.
Appellant developed an erection but did not ejaculate.
These incidents were first reported to the police on March 13, 2003. A complaint alleging these acts was filed in Contra Costa Superior Court on April 28, 2003, and an information filed in March 2004 after appellant waived a preliminary hearing.
After a jury trial of approximately one week, appellant was, as noted, convicted on all five counts. The jury also found true an allegation contained in the information that the case was brought within the time period allowed by former section 803(g).
On January 24, 2005, the district attorney filed a notice of aggravating factors and, a week later, the jury found five of those factors true and one not true. It could not reach a verdict on one other charged factor.
On September 16, 2005, the trial court denied appellants motion for a new trial and, the following month, sentenced him to an aggregate term of 10 years in state prison. Appellant filed a timely notice of appeal.
III. DISCUSSION
As noted, appellant contends that former section 803(g) is an unconstitutional "revival statute." We disagree.
The acts for which appellant was convicted started, according to the evidence before the jury, in April 1991 and continued until April 1993. The statute of limitations thus commenced to run on the earliest of those dates. (See, e.g., People v. Angel (1999) 70 Cal.App.4th 1141; People v. Robertson (2003) 113 Cal.App.4th 389, 393, fn. 3 (Robertson).) The statute of limitations applicable to the charged offenses was and is six (6) years. (§§ 288, subd. (a), 800, 805.) Thus, absent any special provision extending the period of limitations or providing for its retroactive application, that period ran in April 1997.
However, in 1994 the Legislature enacted and, effective January 1, 1997, amended and reenacted, former section 803(g), which provided that a prosecution for a violation of (among other statutes) section 288, subdivision (a) would nevertheless be timely if (1) the prosecution was not then time-barred and (2) the complaint was filed within one year after the first report of the relevant offense. As noted, such was the case here, as (1) as of the later (1997) enactment of section 803(g), the six-year statute of limitations still had four months to run and (2) the first report to the police of the charged offenses was in March 2003 and the complaint was filed the following month.
Appellant argues this amendment of section 803(g) makes it an unconstitutional "revival staute," i.e., a statute which impermissibly revives causes of action which would otherwise be stale, citing the United States Supreme Courts decision in Stogner v. California (2003) 539 U.S. 607. However, our colleagues in Division Three of this court dealt with precisely this issue in People v. Renderos (2003) 114 Cal.App.4th 961, 965-966, where they wrote: "In Stogner, supra, the United States Supreme Court held ex post facto principles barred the application of section 803(g) to those cases where the statute of limitations on the charged offenses had expired before January 1, 1994. [Citation.] The court, however, expressly noted its holding did not affect or otherwise `prevent the State from extending time limits . . . for prosecutions not yet time barred. [Citation.] Thus, the only consequence of Stogner is that any enumerated crime must be committed or the limitations period in section 800 or 801 must expire after January 1, 1994 (the effective date of the statute) in order for the extended one-year period to apply. Because the limitations period in section 800 for all the offenses charged in this case expired after January 1, 1994, section 803(g) does not violate any constitutional provision against ex post facto laws. [Citations.] [¶] Renderos acknowledges `the Legislature could probably have enacted an extension of the statute of limitations in section 800 in 1994 that would have survived a challenge as an ex post facto law. He contends, however, section 803(g), by its express terms, cannot be read as merely `extending or `tolling the statute of limitations for crimes committed before January 1, 1994, where the limitations period under section 800 or 801 had not expired. He premises his argument upon two factors: (1) the proviso in subsection (2) of section 803(g) that [it] applies only if `the limitation period specified in Section 800 or 801 has expired; and (2) because there must always be an interim period in which the prosecution is time barred (between the expiration of the statute of limitations in section 800 or 801 and the filing of a report by the victim), section 803(g) cannot be interpreted as a `toll or `extension of the six-year statute of limitations. Thus, he argues section 803(g) can only be read as `reviving time-barred actions, which is prohibited by the ruling in Stogner. We conclude the statute can be read to withstand Rendeross ex post facto challenge. [¶] Subdivision (g) of section 803 provides: `Notwithstanding any limitation in section 800 or 801, the People may pursue a prosecution of certain sexual offenses involving minors within one year from the time a victim files a report. The proviso that the subsection does not apply unless the statute of limitations has expired in section 800 or 801 `obviously ensures that the one-year period in section 803(g)(1) does not override or otherwise conflict with sections 800 or 801 where the victim reports the crime to a qualifying law enforcement agency before the three-year or six-year period set forth in the latter provisions "has expired." In this way, the limitations period in section 803(g)—like other "tolling" and "extension" provisions in the same statute—serves to prolong, rather than shorten, the time in which a felony child molestation prosecution may be commenced. [Citation.] Thus, for those offenses committed before January 1, 1994, but where the statute of limitations in section 800 or 801 had not yet expired as of that date, section 803(g) can be read as `extending the statute of limitations so that a prosecution is timely if it is commenced no more than one year after a victim reports the abuse to an appropriate law enforcement agency. That the People could not prosecute the action until a report was filed by the victim [citation] does not support Rendeross contention the statute as applied to him had the effect of `reviving a prosecution barred by the statute of limitations. Because the statute of limitations under section 800 had not expired when section 803(g) became effective on January 1, 1994, section 803(g) permitted the People to commence prosecution for the offenses within one year after the filing of the report of abuse, notwithstanding the limitation period in section 800." (Fns. omitted; see also, to the same effect: Robertson, supra, 113 Cal.App.4th at pp. 392-394; People v. Superior Court (German) (2004) 116 Cal.App.4th 1192, 1195-1197; People v. Vasquez (2004) 118 Cal.App.4th 501, 503-506.)
Appellant acknowledges these precedents, but insists they were all incorrectly decided. We, however, agree with them and not him.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J.