Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF120948. Jeffrey Prevost, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Between 2000 and 2004, defendant Jesse Lloyd Hall molested his two cousins R.H. (R.) and J.H. (J.) and another girl, S.M. (S.) In 2002, defendant had been accused of sexually molesting another cousin, J.L., but no charges were filed. Defendant was convicted in this case of 11 counts of lewd and lascivious conduct with a minor under the age of 14, one count of lewd and lascivious conduct with a minor under the age of 16, and four counts of oral copulation with a minor. Defendant now contends:
1. He received ineffective assistance of counsel and was denied his Sixth Amendment right to present a defense when his trial counsel conceded his guilt on some of the charges during closing argument.
2. His convictions in counts 7, 8, and 9 were barred by the applicable statute of limitations.
3. He is entitled to additional custody credits.
We agree with defendant that he is entitled to additional presentence custody credits. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of three counts of committing a lewd act upon S. (Pen. Code, § 288, subd. (a)), one count of committing a lewd act upon S. while she was under the age of 16 and he was over the age of 21 (§ 261.5, subd. (d)), and four counts of oral copulation of S. while she was under the age of 18 (§ 288a, subd. (b)(1)). The jury also found defendant guilty of four counts of committing lewd acts against R. (§ 288, subd. (a)) and four counts of committing lewd acts against J. (§ 288, subd. (a)). The jury found true for all counts that defendant committed offenses against multiple victims. (§ 667.61, subd. (e)(5).)
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced defendant to a total indeterminate term of 168 years to life.
II
FACTUAL BACKGROUND
A. Incidents Involving S.
S. was born in February 1989. She grew up in Moreno Valley with her mother. In 1998, she met defendant; she was nine years old, and he was 16 years old. Defendant had several cousins, including J.L., J., and R. Defendant and J.L. lived with Victoria H., who was their aunt.
Defendant was born on April 17, 1982. He would have turned 18 years old in April 2000, and 21 years old in 2003.
Defendant began babysitting S. and her little sisters and brothers because S.’s mother was out drinking or doing drugs. As S. approached 10 years old, she spent more time with defendant alone. S. and defendant became close friends, and she developed a crush on him. When S. was still nine years old, she told defendant that she loved him and then kissed him on the lips. After that, defendant initiated kissing her and told her that he loved her.
When S. was still nine years old, she and defendant started kissing with their tongues. Defendant then initiated sex with S. The first time they had sex, defendant took off her pants and underwear. She straddled on top of defendant, who was wearing boxers. Defendant put his penis in her vagina. She was scared but did not stop it. Defendant ejaculated. After this first time, they had sexual intercourse every time they saw each other.
When she was 11 years old, S. found out that defendant’s cousins were accusing defendant of molesting them. After these allegations surfaced, defendant moved to Perris. S. and defendant got together when they could and had sexual intercourse. During this time, defendant would sometimes digitally penetrate S.’s vagina with his finger.
When S. was 10 years old, she and defendant would have sexual intercourse almost every day. When S. was 11, she had sex with defendant “a good couple hundred” times. When S. was 12 years old, they had sexual intercourse approximately 30 times. In 2001 (when S. was 12 years old), S.’s mother caught defendant kissing S.’s neck. Defendant was sent away. While defendant was away, S. dated another boy.
Defendant returned from Perris and moved back in with Victoria just as S. turned 13 years old. S. was then moved into a foster home. When she was 13 or 14 years old and defendant was 19 years old, while she was staying at a foster home in Moreno Valley, she met up with defendant, and they had sexual intercourse. He also used his fingers to penetrate her vagina, and they engaged in oral copulation. Between the ages of 13 and 14, defendant and S. had sexual intercourse 10 times and engaged in oral copulation 5 or 10 times.
S. moved back into her mother’s home just as she turned 14 years old. S. and defendant resumed their sexual relationship. When S. was 14 years old and defendant was 20, they had sexual intercourse approximately 20 times and engaged in oral copulation 5 to 10 times. They had sexual intercourse 10 to 15 times between February and May 2004, while S. was 15 years old. During at least one of those occasions, defendant put his finger in her vagina.
When S. was 14 or 15 years old, she started to become concerned that they were going to get caught, so she would ask defendant to stop while they were having sex. Defendant would tell her that he loved her and convince her to continue.
In March 2004, S.’s mother started questioning her relationship with defendant. They eventually ended the relationship. In August 2004, S. committed herself into a mental facility due to suicidal thoughts and self-mutilation. She started to question whether her relationship with defendant was right. J.L. was in the same mental facility with S. While in the facility, J.L. told S. that the allegations of sexual abuse by defendant that she had made in 2002 (that will be set forth, post) were true. S. became hysterical. S. told members of the hospital staff about the sexual activity between her and defendant. The police were contacted.
S. agreed to make phone calls to defendant that would be monitored by the police. She made the first call to defendant on August 17, 2004. During the call, defendant never admitted that he had had intercourse with her. He admitted that they had kissed. He did not want to be on the phone with S. because he felt it endangered him. Defendant then indicated he was not sure if there was another person on the line and she was trying to get him to admit he had done something to her.
The audiotapes of these pretext phone calls were played for the jury.
A second call was made by S. on August 24, 2004. Defendant initially told her that he could not talk to her because of the accusations. S. then lied to defendant and told him that she was pregnant. She asked him to take a DNA test. Defendant denied that they had had sex and then accused her of recording the conversation. Defendant told her that his grandmother was sick because of the accusation and that he hoped she was going to try to straighten everything out.
S.’s mother confirmed that she let defendant babysit her children because she was abusing drugs and alcohol and was unable to take care of them. S. was 14 years old when her mother caught defendant kissing S.’s neck while they sat on the edge of S.’s bed. S.’s mother instructed defendant to stay away from S. S.’s mother had seen S. with cuts on her arms, legs, stomach, and breasts due to self-mutilation. When she got a call from the staff at the mental facility that S. was accusing defendant of molesting her, S.’s mother immediately called the police.
Kathy P. had known S. since S. was eight or nine years old. Kathy saw S. daily when S. was between 11 and 15 years old because Kathy drove her home from school. When S. was dropped off, defendant was usually waiting for S. at the end of the driveway. He would give her a hug and put his arm around her.
Tracy, Kathy’s daughter, met S. when S. was 9 or 10 years old. S. started calling defendant her boyfriend when she was 11 or 12 years old and told Tracy that they were having sex. S. had told Tracy that there were times that she did not want to have sex with defendant, but he would “force” her. In 2004, J.L., who was also Tracy’s friend, told her that defendant had molested her.
B. Incidents Involving R.
R. was born in September 1988 and had lived with Victoria, defendant, and J.L. for a short period when she was 10 years old and full time since she was approximately 12 years old. Defendant and J.L. were her cousins.
When R. was 10 years old and living with Victoria, and defendant was 16 years old, she and defendant were in his room alone together. Defendant’s door was closed. R.’s pants were off. She was lying on her back on the bed, and he inserted his penis into her vagina. She felt a “sharp pain” one time. They had sex an additional two or three times when she was 10 years old and another two or three times when she was 11 years old, which would have been in 1999; defendant would have been either 17 or 18 years old. They no longer had sex after she was 12 years old because she tried to stay away from defendant.
When she was between 12 and 13 years old, defendant touched her buttocks and breasts by either rubbing or grabbing them. Defendant touched her breasts and buttocks at least two times when she was 12 years old, and another two times when she was 13 years old. The touching on her buttocks was more like slapping. R. could not be sure that, when these events occurred, defendant was over 18 years old. The touching of her buttocks and breasts made her uncomfortable.
When J.L. told R. in 2002 that she had been molested by defendant, R. told J.L. that she had also been molested. J.L. asked her to report the abuse, but R. did not want to because she was scared.
C. Incidents Involving J.
J. was born in August 1988. She had spent summers at Victoria’s house. Defendant had touched her breasts, buttocks, and vagina over her bathing suit while they were in the backyard pool together during these summers. This occurred from the time she was eight years old until about the time she was 13 years old. Defendant touched her vagina over her bathing suit at least two times in the summer of 2001. He touched her breasts and vagina more than two times in the summer of 2002.
On more than one occasion, J. had been in defendant’s room sitting on the couch, and he had put his hand on her upper thigh and moved his hand up toward her vagina. He had touched her vagina over her clothes while doing this. He usually did this when it was dark and they were watching a movie. He had also slapped her on the buttocks while they were in the house together.
J. never reported what defendant had done to her because he had threatened her when she was 11 or 12 years old by holding a sword to her neck and telling her never to tell anyone what he did to her. Defendant had told her that she had a “nice ass” but a bad attitude.
When J. was 11 years old, she stayed the night at R.’s house. Defendant was also staying the night. Defendant came into their room and forced each of them to give him a kiss goodnight. He made them use their tongues to kiss him.
When J. finally reported the molestation in 2004, Victoria told her that she was lying and manipulative and was tearing the family apart. In 2002, J.L. told J. that defendant had made her take off her clothes and kneel on the floor, and then defendant rubbed his penis against her. He made her touch his penis and kiss him. When J.L. reported the abuse in 2002, Victoria called her a liar.
J. had been kicked out of defendant’s bedroom when S. was also in there, so S. and defendant would be alone. She had seen S. on numerous occasions sit on defendant’s lap, which she thought was inappropriate.
D. Prior Incidents Involving J.L.
J.L. was born in February 1989, and lived with Victoria because her parents had died. J.L. denied at trial that defendant had ever touched her inappropriately. She claimed that she lied about any previous allegations of sexual abuse at the hands of defendant.
J.L. recalled reporting in 2002 that defendant started molesting her when she was five years old and continued until she was in the third or fourth grade. He would pull her pants down and have her get down on her knees. He would then stand behind her and rub her stomach and naked buttocks. She could feel his penis rubbing on her buttocks. He would move his penis between her legs and she would feel “slime” on her buttocks.
J.L. claimed at the time of trial that she only made the sexual allegations to get defendant out of her house. She was successful because he was forced to move in with her aunt, who lived in Perris. Once defendant was out of the house, she immediately dropped the charges.
J.L. denied she ever told anyone she had sexual intercourse with defendant. Even though she indicated that she had lied in 2002, she made the same allegations in May 2004 when the investigation in this case started and continued to confirm her allegations made in 2002 as late as December 2005.
If J.L. told S. in the mental facility that defendant had molested her also, she would have been lying. J.L. did tell J. that defendant had rubbed his penis on her, but she had lied to her. Victoria never told J.L. to come to court and lie. Victoria and J.L. had been visiting with defendant in jail during the pendency of this trial.
Katherine F. had known J.L. since she was five or six years old. J.L. told Katherine that she had her pants off one time when she was 9 or 10 years old, and defendant told her to get on top of him. His penis was exposed. She then was “rubbing” on him. Katherine did not recall telling anyone that J.L. had told her that defendant had put his penis “inside” her.
In early 2002, Erin S. was told by J.L. that defendant had molested her, but she gave Erin no details. In 2004, Erin again talked to J.L. about the molestation. J.L. told her that defendant had put his penis inside her while she was bent over a pillow and that it hurt.
E. Other Witnesses and Investigation
Victoria had taken care of defendant since he was two years old when her brother could no longer take care of him. J., J.L., R. and defendant were all blood cousins. R. and J. lived with Victoria off and on through the years.
One of Victoria’s brothers told her that she should watch defendant and S. because he thought there was inappropriate behavior between the two of them. Victoria told defendant not to lock the door to his room if one of the children was in there. Victoria did think that S. had a crush on defendant and that she acted inappropriately by hugging him and sitting on his lap. Although Victoria was told by R., J., and J.L. that defendant had molested them, she did not know whether to believe them or defendant.
Victoria had been given the police reports in this case by defendant’s attorney. She had shown them to R. and J.L., who had both seen their statements contained in those reports prior to their testimony. Dale H. was Victoria’s brother and J.’s father. Dale had observed inappropriate behavior between S. and defendant. One time, he observed S. change into her pajamas, then sit on the couch with her legs over defendant, and she covered them with a blanket. Dale pulled defendant aside and told him that their behavior looked “bad” and that he should watch himself.
Dale was aware of times that defendant and S. were in defendant’s room alone with the door closed. It appeared as though S. had a crush on defendant.
Riverside County Sheriff’s Sergeant Cheryl Owens was involved in the investigation of these incidents. In 2004, Sergeant Owens had interviewed J.L. and also observed an interview between J.L. and a person from Child Protective Services, specifically, the Riverside County Child Assessment Team (RCAT).
During the RCAT interview, J.L. expressed her fear of Victoria, who had told J.L. that she had dreamed up the molestation. J.L. told Sergeant Owens that she did not want to pursue the allegations against defendant because she had been in therapy and had moved on.
During the investigation, J.L. had told Sergeant Owens that she had not been in contact with her because Victoria had taken Sergeant Owens’s business card from her. In August 2004, J.L. told Sergeant Owens that she wanted to prosecute defendant. She said she would be in trouble with Victoria for talking to the police.
An investigator working with Sergeant Owens was told by defendant in December 2004 that S. was his ex-girlfriend and that the relationship ended in June 2004. He said they had only hugged and kissed. Defendant also admitted that he played husband and doctor with J.L. and R. when he was 11 years old, but he did not recall any inappropriate touching. Defendant told the investigator that he had gone to the girls and apologized if they thought he touched them inappropriately.
III
SIXTH AMENDMENT CLAIMS
Defendant claims that his counsel conceded his guilt during closing argument, which violated his Sixth Amendment rights to present a defense and to effective assistance of counsel.
A. Additional Factual Background
Defendant was represented by Jorge Hernandez. During closing argument, counsel began by stating, “Now, it’s never been my contention—it’s never been the contention of the defense that nothing happened. I think I would be a fool if I stood up here and said nothing occurred. I’d have zero credibility if I stood up here and said absolutely nothing happened. But I said in opening statement that what I wanted you guys to examine were the details. And I wanted you to look at operative dates.”
Hernandez then addressed the various charges and victims. He argued that the “butt slapping” alleged by R. was not inappropriate sexual touching. Defendant did not have a lewd and lascivious intent. He admitted that defendant touching R.’s breasts was sexual, but the dates that this occurred did not match the charged crimes. He argued that the jury should find defendant not guilty of counts 13 through 16, the counts involving R.
Hernandez then stated that J. was a more difficult witness because there were no inconsistencies in her testimony. He argued the incidents in the pool either occurred before defendant was 18 years old or were not sexual. He then stated, “Now, in terms of the couch and the thigh and the vaginal area, I’ll leave that one to you. I’ll leave that one to you. I won’t say anything on that one. [¶] What . . . I don’t want to do is sound like an idiot up here. If . . . the approach was he didn’t do a damn thing and all these folks are lying, I . . . wouldn’t have very much credibility. [¶] And at the beginning of this I told you what the issues were. Plain and simple. Look at that operative date.”
As for the allegations by S., Hernandez argued that she was not specific as to any of the dates alleged by the prosecution. Her testimony about their first sexual encounter was not credible, as she claimed that his penis had just “slipped” into her vagina. There was no discussion of pain or trauma. It was also incredible that she and defendant were having sex hundreds of times when she was 9 and 10 years old. She had no specifics on any time frame or acts. Hernandez attacked her statements regarding when sexual acts occurred when she was between the ages of 12 and 14. Furthermore, the pretext calls showed that S. did possess some sophistication.
Hernandez argued S. testified there was no intercourse when she was between 13 and 15 years old and that it followed that the oral copulation did not happen. He also pointed out to the jury that there was no testimony that defendant was over 21 years of age as alleged in counts 4, 5, and 6.
Hernandez asked the jury to distance itself from the emotions in the case and focus on the dates and specifics. Defendant was not guilty beyond a reasonable doubt because there was no evidence supporting defendant’s age when the acts occurred. The jury acquitted defendant on four counts (counts 5, 6, 11, and 12), which were alleged to have been committed by defendant against S.
B. Analysis
1. Sixth Amendment right to present a defense
Defendant claims, relying upon People v. Frierson (1985) 39 Cal.3d 803, 817-818 (Frierson), that he did not “authorize” Hernandez’s “concession” to the jury on J.’s allegations and that such concession denied him his Sixth Amendment right to present a defense.
Once a defendant is represented by counsel, counsel is “captain of the ship” and generally responsible for trial and defense strategy. (In re Horton (1991) 54 Cal.3d 82, 95 [“‘[b]y choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics’”].) However, the decision whether to plead guilty, and the decision whether to present a defense to a charge, are both fundamental rights reserved to the defendant himself. (Ibid.; People v. Davis (1957) 48 Cal.2d 241, 256 [“[w]hatever trial strategy or tactics an attorney may employ in the defense of an accused he may not enter a plea of guilty to a felony without the consent of his client”]; People v. Diggs (1986) 177 Cal.App.3d 958, 970 [defense counsel’s closing argument directly contradicted the defendant’s trial testimony; thus counsel “effectively withdrew a crucial defense and admitted his client’s guilt without his client’s consent”].)
In Frierson, trial counsel refused, despite defendant’s express desire to the contrary, to present a diminished capacity defense during the penalty phase of a death penalty case. (Frierson, supra, 39 Cal.3d at p. 805.) The California Supreme Court reversed the penalty phase judgment finding that defendant had been clear that he wanted to present a diminished capacity defense, that the record supported there was an express conflict between defendant and his counsel on this issue, and that the decision not to present the diminished capacity defense essentially eliminated any viable defense. (Id. at pp. 811-815.)
Frierson has been interpreted to apply, however, “‘only in case of an express conflict arising between the defendant and counsel that the defendant’s desires must prevail’” (People v. Bradford (1997) 15 Cal.4th 1229, 1332), and only when the defense requested has “‘credible evidentiary support’” (People v. Jones (1991) 53 Cal.3d 1115, 1139).
While it is true that Hernandez did not present a compelling argument to the jury regarding J.’s accusation that defendant had touched her leg and moved his hand toward her vagina while they were sitting on the couch, he never conceded defendant’s guilt. He acknowledged that J. had testified consistently and that she was a difficult witness to combat. However, he advised the jury to look to the details and insisted that the other allegations by J. involving touching in the pool did not constitute lewd and lascivious conduct or that defendant was not 18 years old at the time the offenses occurred. Although Hernandez did not vehemently argue regarding defendant’s innocence of these charges and advised the jury that he would be an “idiot” to take the approach that everyone was lying, his argument cannot be characterized as a concession of defendant’s guilt because he took the stance that the prosecution had not proven the details of the offenses beyond a reasonable doubt.
In fact, Hernandez did not concede any of the incidents. Rather, he chose to attack the claims made by R. by insisting that even if some of the “butt slapping” occurred, defendant did not have a lewd or lascivious intent. Furthermore, he focused on the dates that the events occurred, claiming that defendant was not of the age alleged in the charges involving R. He attacked S.’s credibility and the dates involved. At no time did Hernandez concede the charges as alleged by defendant. Therefore, defendant’s claim that he was deprived of a defense is not supported by the record.
Furthermore, there does not appear (as there did in Frierson) that there was an express conflict between defendant and Hernandez as to how closing argument was to be presented. As noted, ante, Hernandez did not concede the charges against defendant. Furthermore, defendant’s statements to the trial court made during his People v. Marsden (1970) 2 Cal.3d 118 (Marsden) hearing evidenced more of a disappointment with Hernandez’s argument rather than a breach of an agreement to present his defense as authorized by defendant. Defendant has not explained how he would have presented argument differently, especially in light of the strong testimony by four young girls that defendant had acted inappropriately with them.
After the verdict was rendered by the jury, defendant made a Marsden motion. Defendant claimed that Hernandez had failed to be “effective and competent counsel” at his trial. Defendant disagreed with how Hernandez handled closing argument. Defendant was concerned that Hernandez conceded the allegations made by J. and was still preparing his argument during the prosecution’s closing argument. Hernandez responded that it was his choice as to how to conduct argument. Defendant responded, “And, yes, he chose to do the cross-examination and the closing arguments the way that he chose to do it. My . . . point is that I do not believe the way he chose to do it and the way he presented it and the way he went up there and spoke and his choice not to cross-examine certain other witnesses was not competent and effective. Not . . . in a case like this where words [are] everything. [¶] There was no physical evidence in my case. Disputing what somebody says is the only . . . way to show that I didn’t do these things. And that’s not what he did.”
Finally, Hernandez’s argument persuaded the jury to find defendant not guilty of four of the counts.
We cannot say, based on a review of the entire closing argument given by Hernandez, that he conceded any of the counts or that his closing argument was in express conflict with the wishes of defendant. There was no violation of defendant’s right to present a defense guaranteed by the Sixth Amendment.
2. Ineffective assistance of counsel
Defendant alternatively claims that Hernandez’s closing argument amounted to ineffective assistance of counsel.
In order to establish a claim of ineffective assistance of counsel, a defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) In evaluating counsel’s actions at trial, “[a] court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (Dennis, at p. 541.)
Counsel is not ineffective when he or she admits obvious weaknesses in a defense case. (People v. Mayfield (1993) 5 Cal.4th 142, 177.) While “a defense attorney’s concession of his client’s guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel,” in some cases complete candor is a good “trial tactic[].” (People v. Gurule (2002) 28 Cal.4th 557, 611-612; see also People v. Diggs, supra, 177 Cal.App.3d at p. 970.)
Here, trial tactics and strategy led Hernandez to be completely candid with the jury that something happened between defendant and these girls but that defendant did not have a lewd or lascivious intent, or that any such sexual activity did not happen at the times alleged by the prosecution. This is a permissible trial tactic. (People v. Gurule, supra, 28 Cal.4th at p. 612.) Obviously, Hernandez was in the best position to view the witnesses and the jury’s reaction to their testimony. It was reasonable for trial counsel to argue to the jury, based on his observations, that something had happened between defendant and J., R., and S., but that the prosecution had not proved the allegations beyond a reasonable doubt.
We also conclude that such statements by Hernandez in closing argument could not have prejudiced defendant. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.) Initially, as previously stated, defendant was found not guilty of four counts. Furthermore, we do not believe that Hernandez conceded defendant’s guilt as to any of the charges.
Finally, the evidence against defendant was strong. Initially, although J.L. had recanted by the time of trial, there was strong evidence presented that defendant had sexual intercourse with her and that she reported it in 2002. Further, the testimony by S. was compelling. This young girl fell in love with defendant when she was only nine years old, and defendant encouraged the relationship. The evidence that defendant engaged in inappropriate behavior with her was overwhelming. She testified frankly about their sexual activity, and numerous witnesses testified that they had seen them act inappropriately together. J.L.’s testimony showed that defendant had a predisposition to commit unlawful sexual acts with minors, and the jury was instructed they could use such evidence as showing his predisposition to commit these types of crimes. (Evid. Code, § 1108.) Based on his predisposition to commit sexual offenses, and the testimony of J. and R., the jury could conclude that defendant’s “butt slapping” and touching of their breasts was lewd and lascivious conduct. Furthermore, R. had testified regarding prior sexual intercourse between her and defendant, which supports that his actions were not innocent. J. had no inconsistencies in her testimony. Hernandez’s argument in light of this strong evidence could not prejudice defendant.
Defendant has not shown that he received ineffective assistance of counsel or that his Sixth Amendment rights were violated in any way.
IV
STATUTE OF LIMITATIONS
Defendant contends that his convictions in counts 7, 8, and 9 are barred by the three-year statute of limitations of section 801.
This is the first time that defendant has raised the statute of limitations issue. However, it is clear based on long-standing California Supreme Court precedent that the question of whether the statute of limitations has run can be raised at any time. (People v. Williams (1999) 21 Cal.4th 335, 341; People v. Chadd (1981) 28 Cal.3d 739, 756-757; People v. Rose (1972) 28 Cal.App.3d 415, 417.)
A. The 10-year Period of Limitations of Section 801.1, Subdivision (b) is Applicable to Counts 7, 8, and 9
In his opening brief, defendant argued that the applicable statute of limitations in effect at the time the information was filed on September 8, 2005, was section 801 (three years), and therefore the limitations period for counts 7, 8, and 9, had expired. According to section 801, the prosecution for a violation of section 288a, subdivision (b)(1) (oral copulation of a minor under the age of 18 as alleged in counts 7, 8, and 9) must commence within three years after the violation. (§ 801.) Defendant contended count 7 occurred during the time period of April 7, 2000, through and including February 13, 2001, and argues the 3-year period would have expired on April 7, 2003. Count 8 occurred during the time period of February 14, 2001, through and including February 13, 2002. Hence, the period would have expired on February 14, 2004. Finally, count 9 occurred during the time period of February 14, 2002, through and including February 13, 2003. Defendant contends the time period would have expired on February 14, 2005, which was before the filing of the information. The information did not allege any tolling provisions for these counts.
Defendant asserts that the counts expired on the first day of the one-year period that the acts occurred but provides nothing to support such a claim. The prosecution was based on ongoing abuse throughout the one-year time period, and therefore counts 7, 8, and 9 would have expired on February 13, 2004, February 13, 2005, and February 13, 2006, respectively, under section 801.
Pursuant to section 804, a prosecution commences when any of the following occurs: “(a) An indictment or information is filed”; “(b) A complaint is filed charging a misdemeanor or infraction”; “(c) A case is certified to the superior court”; or “(d) An 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.”
Defendant argues that the prosecution commenced when the information was filed on September 8, 2005. Since the statute of limitations on counts 7, 8, and 9 had already run by the time the prosecution filed the information, the counts are time barred. The People contend the prosecution commenced when the complaint was filed, which was the same day that arrest warrants were issued, December 21, 2004.
We need not resolve this issue since we conclude, post, that the applicable period of limitations for counts 7, 8, and 9 was the 10-year period of limitations in section 801.1, subdivision (b). When the information was filed on September 8, 2005, on the face of the information, the time period on all three counts had not run.
The People initially conceded in the respondent’s brief that the applicable statute of limitations for count 7 was section 801, and that the statute of limitations would have expired at the time the prosecution commenced. They argued that the 10-year statute of limitations in section 801.1, subdivision (b) applied to counts 8 and 9, claiming the effective date of the statute was January 1, 2005, which was prior to the expiration of the limitations period for counts 8 and 9.
Section 801.1, subdivision (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.” A violation of section 288a is listed in section 290, subdivision (c).
Subdivision (a) of section 801.1 provides, “Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section . . . 288a . . . 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.” The People stated in their respondent’s brief that subdivision (a) of section 801.1 was effective on January 1, 2006, and have provided no further authority that it also was an extension of another statutory scheme. The People claimed that section 801.1, subdivision (a) would nonetheless apply to count 8 because, under subdivision (b), the limitations period would not have expired before the enactment of subdivision (a). However, according to the plain language of subdivision (b), it is only applicable if subdivision (a) is not applicable. Hence, relying on subdivision (b) to extend the period in subdivision (a) would be improper.
Just prior to oral argument, the People advised this court of the recent case of In re White (2008) 163 Cal.App.4th 1576. In White, the appellate court concluded that section 801.1, subdivision (b) was not a new statute, but rather was a renumbering of an existing statute (§ 803). The White court concluded that section 801.1, subdivision (b) was “continually in effect since January 1, 2001.” (White, at p. 1583.) The People withdrew their concession that the 10-year limitations period did not apply before January 1, 2005. Since White was decided after the People filed their responding brief, we will consider its application here despite the original concession by the People that the effective date of section 801.1, subdivision (b) was January 1, 2005.
Applying the 10-year period of limitations first to count 9, it was alleged the offenses occurred between February 14, 2002 (which was after the effective date of section 801.1, subdivision (b)), and February 13, 2003. Hence the earliest date that the statute of limitations would have expired was on February 14, 2012, well after the filing of the information on September 8, 2005.
In count 8, it was alleged that the acts occurred between February 14, 2001 (again after the effective date of section 801.1, subdivision (b)), through and including February 13, 2002. The earliest date that the statute of limitations on this count would have expired is February 14, 2011 -- once again, long after the prosecution commenced.
Finally, applying the 10-year period of limitations to count 7, the offenses were alleged to have occurred between April 7, 2000 (which would have preceded the effective date of the 10-year period of limitations), and February 13, 2001. If section 801.1, subdivision (b) is applied, the earliest that the period of limitations would have expired was April 7, 2010.
Even though some of the acts committed by defendant that constituted count 7 were committed prior to January 1, 2001, which would have preceded the effective date of section 801.1, subdivision (b), we do not believe its application here would violate ex post facto principles. Legislation is sometimes enacted to extend an existing statute of limitations or to provide for an extension thereof under particular conditions. Such legislation may not be applied to revive an already expired statute of limitations in a criminal case, because that would constitute an ex post facto law. (See Stogner v. California (2003) 539 U.S. 607, 609, 618-619, 632-633 [123 S.Ct. 2446, 156 L.Ed.2d 544].) However, “[t]he Supreme Court made it clear . . . that the ex post facto clause ‘does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred.’” (People v. Vasquez (2004) 118 Cal.App.4th 501, 504, quoting Stogner, at p. 633.)
Even though some of the acts that constituted count 7 occurred before the effective date of section 801.1, subdivision (b), since the period of limitations of three years in section 801 had not expired, section 801.1, subdivision (b) could be applied to count 7.
We do not address the People’s argument that the tolling provisions of section 803, subdivision (f)(1) should apply to counts 7 and 8 since we find that section 801.1, subdivision (b), applies. According to section 803, subdivision (f)(2)(A), that section “applies only” if the limitation period in section 801.1 has expired. Since we have concluded that at the time the prosecution commenced in this action the 10-year period of limitations in section 801.1, subdivision (b) had not expired, section 803 is not applicable.
Although defendant contended at oral argument that the People had to allege section 801.1, subdivision (b) in the information as a tolling period, he has provided no authority to support that claim. We have been unable to find authority that section 801.1, subdivision (b) is in fact a tolling period. Rather, it is the applicable statute of limitations, which is a question of law. The parties do not dispute the applicable time periods for counts 7, 8, and 9. Hence, on the face of the information, the prosecution commenced on counts 7, 8, and 9, prior to the expiration of the statute of limitations for those counts.
B. Equal Protection
Defendant claims, should this court conclude that section 801.1, subdivision (b) is applicable, that application to him would violate his equal protection rights. First, defendant claims that under the holding in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), section 288a, subdivision (b)(1) was excluded from the list of offenses in section 290, subdivision (c) (formerly section 290, subd. (a)(1)(A)). Accordingly, defendant’s violations of section 288a, subdivision (b)(1) do not qualify under section 801.1, subdivision (b), which applies only to those offenses described in section 290, subdivision (c).
The only authority that defendant provides is Hofsheier itself. However, as will be discussed in more detail, post, Hofsheier involved a violation of section 288a, subdivision (b)(1) against a victim who was 16 years old and claimed to be similarily situated to a person who has sexual intercourse with a 16-year-old minor. (Hofsheier, supra, 37 Cal.4th at p. 1193.) Hofsheier did not order that section 288a be eliminated in its entirety from section 290, subdivision (c). Rather, it excluded mandatory registration for “persons convicted of oral copulation with 16- or 17-year-old minors . . . .” (Hofsheier, at p. 1208.) It did not intend to exclude all violations of section 288a. Hofsheier was restricted to its facts. (Hofsheier, at p. 1198.)
Obviously anticipating our rejection of this argument, defendant additionally contends that section 801.1, subdivision (b), under the circumstances here, violates equal protection by extending the statute of limitations period for oral copulation with a minor, but not for a person who has sexual intercourse with a minor.
The equal protection clauses of both the federal and state Constitutions ensure that individuals who are similarly situated with respect to the laws receive like treatment. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Individuals who are not similarly situated need not be treated equally. (People v. Green (2000) 79 Cal.App.4th 921, 924.) The first step in an equal protection analysis, therefore, is to determine if the two identified groups are similarly situated. (Hofsheier, 37 Cal.4th at p. 1199.) Our inquiry is not whether the two groups are similarly situated for all purposes, but whether they are similarly situated for the purposes of the law that is being challenged. (Ibid.)
In Hofsheier, the defendant, who was then 22 years old, engaged in voluntary oral copulation with a 16-year-old girl. He pleaded guilty to felony oral copulation in violation of section 288a, subdivision (b)(1), and mandatory sex offender registration was ordered under section 290. On appeal, the defendant contended that the mandatory lifetime sex offender registration requirement violated the equal protection clauses of the federal and state Constitutions, in that someone convicted of unlawful sexual intercourse under the same circumstances would not face mandatory sex offender registration. (Hofsheier,37 Cal.4th at pp. 1193-1194.) The question before the court in Hofsheier thus was whether a mandatory lifetime sex offender registration requirement for an adult convicted of voluntary oral copulation of a minor 16 years old or older, but not for an adult convicted of voluntary sexual intercourse with a minor 16 years old or older, violated the equal protection clause. (Id. at p. 1198.) The court found the persons convicted of the two offenses were similarly situated, and there were no rational grounds for treating them differently. (Id. at p. 1207.)
Here, defendant was convicted of violating section 288a, subdivision (b)(1) for oral copulation committed when S. was 11, 12, and 13 years old. Defendant contends that he is similarly situated with a person who is convicted of having unlawful sexual intercourse with a minor under section 261.5. Defendant claims since section 290 does not include section 261.5, section 801.1, subdivision (b) violates equal protection by extending the period of limitions for oral copulation but not for having unlawful sexual intercourse with a person under the age of 14.
In People v. Manchel (2008) 163 Cal.App.4th 1108, a case decided prior to oral argument but not addressed by the parties, a 29-year-old man pleaded guilty to violating section 288, subdvision (b)(2) for committing oral copulation of a 15-year-old victim. On appeal, the defendant argued, relying upon the reasoning of Hofsheier, that since under section 288, subdivision (b)(2), he would be subject to mandatory registration for his acts against his 15-year-old victim, but if he had sexual intercourse with her he would not be subject to registration, the imposition of mandatory registration requirement violated his equal protection rights. (Manchel, at pp. 1110-1111.)
Section 288a, subdivision (b)(2) provides, “Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.” Defendant was not charged under this section as he was not yet 21 years old when the offenses alleged in counts 7, 8, and 9, occurred.
The Manchel court noted that based on the disparity of age between defendant and his victim, defendant would have been subject to prosecution for a lewd and lascivious act pursuant to section 288 whether or not he engaged in oral copulation or had unlawful sexual intercourse with his victim. (People v. Manchel, supra, 163 Cal.App.4th at p. 1114.) Accordingly, the Manchel court concluded that there was no equal protection violation, since the defendant’s “sexual conduct with his victim, irrespective of whether he engaged in oral copulation or sexual intercourse, constituted a lewd act with the meaning of section 288, subdivision (c)(1) and exposed him to mandatory sex offender registration.” (Id. at p. 1115.)
The reasoning in Manchel equally applies in this case. Here, counts 7, 8, and 9 refer to charges involving S. The oral copulation charges were alleged for time periods all occurring prior to her 14th birthday, i.e., April 7, 2000, through and including February 13, 2003. Section 288 provides for conviction for lewd and lascivious conduct if the victim is under the age of 14. Hence, had defendant committed an act of sexual intercourse against S. while she was under the age of 14, he would have been subject to prosecution not only under section 261.5, but also under section 288. As noted in Manchel, since the defendant was similarly situated to persons who were subject to mandatory registration in addition to those who were not, the defendant could not meet the similarly situated prong of the equal protection analysis. (People v. Manchel, supra, 163 Cal.App.4th at p. 1115.)
This conclusion is also supported by Hofsheier. The California Supreme Court noted in its opinion, “We are not here concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse. (See §§ 264 [rape], 288 [lewd or lascivious acts with victim under the age of 14], 288a, subd. (c)(1) [oral copulation with a minor under 14 years of age], 288a, subd. (c)(2) [forcible oral copulation], 290, subd. (a)(2) [convictions requiring registration].)” (Hofsheier, supra,37 Cal.4th at p. 1198.)
Under the circumstances present in the instant case, defendant cannot show that the exclusion of section 261.5 from section 290 results in section 801.1, subdivision (b) violating his equal protection rights. We may have agreed with defendant had S. been 14 years or older. However, under the present circumstances, defendant was similarily situated with persons who would be subject to mandatory registration and with those who were not. As such, we conclude on the face of the information filed by the People that the statute of limitations on counts 7, 8 and 9 had not run.
V
SENTENCING
Defendant claims he is entitled to additional presentence custody credits. The People concede the issue.
According to the probation report, which calculated the time period between defendant’s arrest, which was December 21, 2004, and the original date of sentencing, November 3, 2006, defendant was entitled to 683 days of actual custody time and 102 days of section 2933.1 conduct credits, for a total of 785 days. At the time of sentencing on January 19, 2007, the trial court took into account the probation report, but awarded defendant 111 days of conduct credit and did not recalculate the actual time. According to the two abstracts of judgment prepared in this case, defendant was granted total credits of 785 days, which consisted of 683 actual credits and 102 conduct credits.
The minute order from sentencing does not include the award of credits.
After November 3, 2006, defendant spent an additional 77 days in custody, for which he was entitled to an additional 12 days of conduct credits. Hence, we conclude the proper award of custody credits was 874 days, consisting of 760 actual days plus 114 days of conduct credits.
VI
DISPOSITION
The judgment is affirmed. The trial court is directed to award defendant 874 days of presentence custody credits, consisting of 760 actual days and 114 days of conduct credits, and to file an amended abstract of judgment to so reflect.
We concur: HOLLENHORST, Acting P.J., MILLER, J.