Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA332477, Anne H. Egerton, Judge.
Lawrence R. Young & Associates and Lawrence R. Young, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The amended information charged defendant Jose Hernandez with 23 sexual offenses committed against Cesar G., a minor. Count 1, alleging continuous sexual abuse under Penal Code section 288.5, subdivision (a), along with counts 5 through 23, which charged lewd acts on a child under 14 years old, in violation of section 288, subdivision (a), all concerned acts of molestation committed between December 3, 1996, and January 30, 1998. Counts 2 through 4 alleged sexual offenses (§§ 288, subd. (c)(1), 288.2, subd. (a), 288.3, subd. (a)) against Cesar in 2007. Following a bench trial, defendant was convicted in counts 2 through 23. The trial court imposed a prison term of 43 years 8 months.
All further statutory citations are to the Penal Code. Count 1was dismissed in the interest of justice on the prosecution’s motion.
In his timely appeal, defendant contends the prosecution failed to prove the 19 counts of lewd act on a child under 14 years old were commenced within the extended statute of limitations periods set forth in both section 801.1, subdivision (a), and section 803, subdivision (f). He also contends there was constitutionally insufficient evidence to support his convictions on those counts. We affirm.
STATEMENT OF FACTS
Trial began on November 3, 2008, when Cesar, born in December 1991, was 16 years old. Cesar attended the 59th Street school in Los Angeles from July 1, 1997, to January 16, 1998. At that time, he and his family lived on West 59th Street. They moved away in January 1998. Typically, Cesar’s mother did not return home from work until 5:00 or 5:30 p.m. Cesar’s school day ended some four hours before that, so his sister or father would pick him up from school and take him home. Defendant and his family lived next door. Cesar played with defendant’s children at defendant’s house almost every day after school, returning home when it became dark outside.
Cesar testified that while in kindergarten he often visited defendant’s house to play with defendant’s younger children, Cindy and Jason. He would visit almost every day after school and sometimes on weekends. Defendant was usually present during those visits. Defendant made Cesar uncomfortable by playing an “airplane game” with him. Defendant would spin Cesar around while placing one of defendant’s hands on Cesar’s genitals, over his pants. Defendant would rub Cesar’s genitals over his clothes. This happened more than once. In addition, defendant made Cesar sit next to him in front of the television. Cesar complied with defendant’s instructions to rub defendant’s penis while defendant rubbed Cesar’s penis. This same scenario happened more than five times.
While Cesar was in kindergarten, defendant would take Cesar into defendant’s bedroom, pull Cesar’s pants down, and have Cesar kneel on the floor. Defendant penetrated Cesar’s anus with his penis, causing Cesar pain both at the time and later when Cesar used the bathroom. Cesar remembered that defendant penetrated Cesar’s anus “more than 15 times, more than 20 times.” Those sexual assaults occurred within an approximately three-month period, at a rate of three to four times a week. During the period when defendant was repeatedly sodomizing Cesar, the victim was often unable to control his bowels and would often soil his pants.
In the rebuttal case, Cesar confirmed that in the fall of 1997, defendant sodomized him between 36 and 48 times, while they were in defendant’s bedroom during the daytime.
Defendant’s mother and sister offered corroborative testimony. Cesar’s mother recalled that Cesar often played at defendant’s house after kindergarten. On a few occasions, she saw defendant at his house when Cesar played there. During that time, she was concerned because Cesar’s underwear were often soiled with feces. He had been toilet trained since before he turned three years old. Cesar stopped soiling his underwear when his family moved away in 1998, and Cesar no longer visited defendant’s house.
Vanessa G., Cesar’s older sister, was acquainted with defendant’s children, Luis, Cindy, and Jason. She was friends with Luis. Vanessa recalled that when her family lived next door to defendant’s family, Cesar went to defendant’s house to play two or three times a week. During that time, Cesar could not control himself and would defecate and urinate in his pants. When Vanessa’s family moved away in January 1998, they lost contact with defendant’s family. She did not reacquaint herself with Luis until 2007. She called Luis on Cesar’s cellular phone because hers was not working.
Cesar recalled that he did not have any contact with defendant after moving until September 2007, when defendant telephoned him. Cesar hung up on him. Defendant persisted in calling, and Cesar agreed to meet him for breakfast. Defendant drove Cesar to a restaurant. Defendant asked Cesar if he “ever had sex” and offered to take him to a prostitute. Defendant gave Cesar his phone number and a $20 bill. Defendant would call Cesar repeatedly, tell Cesar he wanted to see him, and that defendant was sexually aroused. Cesar was curious and eventually agreed to meet defendant to “have sex.” Defendant drove Cesar to a “lonely place,” where defendant sodomized Cesar. He drove Cesar home and gave him another $20. On a subsequent occasion, defendant gave Cesar a DVD of a gay pornographic movie.
Later that year, Cesar told his high school counselor about what defendant had done to him. The police arranged for Cesar to make recorded telephone calls to defendant from the police station. Recordings of those calls were played during trial. In one call, defendant asked if Cesar had “watched the movie.” When defendant tried to arrange for them to meet, Cesar expressed his worry that defendant would hurt him during sex, like he did when Cesar was little. Defendant assured him that “now that [Cesar] was big, it didn’t hurt... hurt [him] anymore.” In another call, Cesar recalled that he had experienced pain when he was five years old and defendant “penetrated” him. Defendant did not deny it, but assured him it would not hurt. He promised he would use a condom.
Detective Miriam Ramirez helped arrange the recorded phone calls, including the final one in which Cesar agreed to meet defendant. The detective and other officers went to the meeting place. They arrested defendant when he arrived. A pack of condoms was found on his person. Upon being taken into custody, defendant waived his Miranda rights and agreed to speak to the police. Defendant admitted intending to have sex with Cesar, but initially denied that he engaged in any inappropriate contact when defendant was younger. Later, however, defendant admitted that when Cesar visited to play with his children, Cesar touched defendant’s penis. On one occasion, defendant placed his penis in the opening of Cesar’s anus, but did not penetrate it. Defendant made a written statement to that effect.
Miranda v. Arizona (1966) 384 U.S. 436.
Defense
Defendant’s daughter Cindy testified that Cesar was her friend when they were next door neighbors. He would only visit her house when she invited him, and those visits were infrequent. Cesar would play outside on the swings. Cindy’s mother picked her up from school and stayed at home to watch her. Cindy’s mother did not allow her to bring friends inside the house. During the time they were neighbors, defendant worked every day except Sunday. He left for work in the early morning and did not return until it was dark, at 7:00 or 7:30 p.m.
Sonia Diaz, defendant’s wife, testified that her family moved to the West 59th Street residence in January 1997. Defendant was employed in the roofing business and worked Mondays through Saturdays. He typically returned in the evening for dinner. Diaz did not allow her children to bring friends home. Cesar played with Cindy in front of their home, but he never went inside. Cesar’s family moved away in January 1998.
Hong Jang was the roofing contractor who employed defendant full time as a roofer and foreman. Defendant typically arrived for work at 6:00 in the morning, Monday through Saturday, leaving work between 5:00 and 6:00 in the evening.
DISCUSSION
Statute of Limitations
Defendant contends the prosecution failed to establish that the crimes committed against Cesar in 1996 and 1997 were prosecuted within the applicable statutes of limitations. We disagree. The record unambiguously shows that those counts were prosecuted in a timely fashion under two statutory provisions—section 801.1, subdivision (a), specifying that prosecution for enumerated offenses 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,” and section 803, subdivision (f), specifying that a criminal complaint may be filed within one year of the date of reporting by a person alleging an enumerated offense committed when the victim was “under the age of 18 years.”
The trial court found the case was timely under both of the statutory extension provisions.
The earliest allegation of a lewd and lascivious act upon Cesar as a child under 14 years old was December 3, 1996. The felony complaint against defendant was filed on November 21, 2007, and the amended complaint, which contained all of the counts here at issue, was filed on November 3, 2008. In 1996, the statute of limitations for a section 288, subdivision (a) violation was six years. (§ 800.) On January 1, 2001, before the six-year limitations period expired, the Legislature enacted an amendment to former section 803, subdivision (h)(1), which extended the limitations period from six years to ten years. (Stats. 2000, ch. 235, § 1.) Former section 803, subdivision (h)(1), is now codified in section 801.1, subdivision (b). (Stats. 2004, ch. 368, § 1; Stats. 2005, ch. 479, § 2.) In 2005, the Legislature amended section 801.1, effective January 1, 2006—before the 10-year limitations period expired against defendant—by adding subdivision (a), which allows enumerated sex offenses including those under section 288, to be prosecuted at any time before the victim’s 28th birthday. (Stats. 2005, ch. 479 (S.B.111), § 2.)
The original complaint had the wrong dates for the subject offenses.
Additionally, in 2005, the Legislature amended section 803 to provide an alternative means for extending the limitations period for various sex offenses including lewd and lascivious acts against a child under section 288. (Stats. 2005, ch. 479, § 2.) Under section 803, subdivision (f)(1), “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... 288....”
Under these timely amendments to sections 801.1 and 803, the limitations period for prosecuting defendant for the section 288 charges never expired, and the underlying action was not time-barred. It is undisputed that defendant was prosecuted for the section 288 offenses before Cesar became 28 years old, and the felony complaint was filed within a year of Cesar’s reporting defendant’s sexual misconduct. Thus, at no time prior to the filing of the information did the limitations period for section 288 expire as to defendant.
(See In re White (2008) 163 Cal.App.4th 1576, 1583 [it is constitutionally permissible for the Legislature to extend a criminal statute of limitations period before expiration]; cf. Stogner v. California (2003) 539 U.S. 607, 618-619 [legislation may not be applied to revive an already expired statute of limitations in a criminal case].)
Nevertheless, defendant asserts as a matter of statutory construction that the sexual misconduct alleged did not come within the ambit of either section 801.1 or section 803. Section 801.1, subdivision (a), provides: “Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, 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.” (Emphasis added.) Defendant points to the text we have italicized, arguing it serves to modify all the enumerated felony offenses so that the limitations period is extended only when a defendant is alleged to violate one of those statutes by penetrating the victim by an unknown object. Defendant asserts that because the only acts of penetration here at issue were accomplished with his penis, not an “unknown object,” his crimes fell outside the purview of either section 801.1, subdivision (a) or section 803, subdivision (f), which contains the same language.
“Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words and give them their usual and ordinary meaning. [Citation.] The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent. [Citation.]” (Green v. State (2007) 42 Cal.4th 254, 260.)
Under those canons, it is obvious that the Legislature intended the italicized text to modify the reference to section 289.5, not the entire list of predicate felonies. The “unknown object” language is contained within the parenthetical phrase referring to Chapter 293 of the Statutes of 1991, which enacted a single statute, former section 289.5. That former statutory provision concerned the punishment for rape or sodomy, whether the penetration was by a penis or a foreign object. It was repealed effective November 30, 1994 (Stats. 1993-94, 1st Ex. Sess., ch. 39, § 2), and its substantive provisions were included in section 289. As the current section 289.5 concerns a different subject matter—flight from this state by sex offender to avoid prosecution or punishment—it is clear the Legislature included the parenthetical phrase to avoid confusion between the former and current versions of section 289.5.
More fundamentally, acceptance of defendant’s interpretation would undercut the legislative goal of protecting minors from a broad range of sex-related offenses. “‘It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ [Citations.]” (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290.) It follows that “our task is to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results.” (Ibid.)
It would be hard to imagine a more absurd consequence than to read the broadly phased time extensions set forth in section 801.1, subdivision (a), and section 803, subdivision (f), so that prosecutions for rape, sodomy, lewd and lascivious acts, continuous sexual abuse, oral copulation, and sexual penetration would survive the statutory time-bar only if committed by “an unknown object.” As the Attorney General points out, the Legislature defines rape and sodomy in terms of the offender’s penis. We will not attribute to the Legislature such an incoherent, self-contradictory intent.
Having rejected defendant’s statutory construction argument, we need not address his alternative contention that the prosecution failed to prove counts 5 through 23 were timely under section 803, subdivision (f). Timeliness under section 801.1, subdivision (a), was sufficient to justify defendant’s prosecution for those offenses. Nevertheless, we point out that his separate challenge under the former provision is meritless. To fall within section 803, subdivision (f), the prosecution must satisfy three criteria. Defendant only challenges the adequacy of the prosecution’s showing as to the third—the requirement of “independent evidence that corroborates the victim’s allegation.” (§ 803, subd. (f)(2)(C).)
Defendant argues that corroboration based on defendant’s admissions and testimony by Cesar’s mother and sister that the victim suffered from incontinence at the time of the childhood sexual assaults was not sufficient. Initially, defendant misapprehends the applicable legal standard. The prosecution was not obliged to present proof beyond a reasonable doubt. “California case law and statutory law designate preponderance of the evidence as the standard of proof of statute of limitations issues [citations] and clear and convincing evidence as the standard of proof of independent corroboration of the children’s accusations [citations].” (People v. Riskin (2006) 143 Cal.App.4th 234, 241-242.)
Defendant’s admission to the detective that Cesar touched defendant’s penis while on visits to his home to play with his children, along with his admission that defendant touched Cesar’s anus with his penis, provided strong independent corroboration. (See, e.g., People v. Thomas (2007) 146 Cal.App.4th 1278, 1290 [“Evidence of other sexual offenses committed by a defendant is uniquely probative to the former section 803, subdivision (g) corroboration determination.”]; People v. Yovanov (1999) 69 Cal.App.4th 392, 403-404.) The mere fact that defendant minimized the extent of his sexual abuse hardly disqualifies it as legitimate corroboration evidence. Further, defendant overlooks another strong aspect of corroboration on which the trial court relied—defendant’s failure to deny the prior acts of sodomy when confronted with them by Cesar in the recorded telephone calls.
Accordingly, the fact that there was no expert medical testimony to establish a causal link between Cesar’s childhood incontinence and defendant’s repeated acts of sodomy is wholly inconsequential. Cesar’s mother and sister provided verification that his reported condition was accurate. The lack of medical verification as to causality merely went to the weight of such corroborative evidence.
Sufficiency of Evidence
Defendant contends the evidence supporting his convictions was constitutionally insufficient because the evidence supporting counts 5 through 23 was “too general in nature and the victim too unsure of the number of times each” of the sexual assaults occurred. His claim fails because it amounts to no more than a request for us to reweigh the evidence and reassess witness credibility.
In assessing a claim of insufficiency of evidence, the appellate court’s task is to review “the whole record in the light most favorable to the judgment... to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) The federal standard of review is to the same effect: under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) Where substantial evidence supports the trial court’s finding, and other circumstances support a contrary finding, the trial court’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Here, the trial court found Cesar a credible witness, while finding defendant’s wife and daughter were biased and lacking in credibility. The trial court found the prosecution proved 19 violations of section 288, as follows: Two instances of rubbing Cesar’s penis during the “airplane game,” five instances in which defendant directed Cesar to rub defendant’s penis, five instances in which defendant rubbed Cesar’s penis, and seven instances of sodomy. All of those determinations found substantial support in the prosecution case. “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181; see In re S.C. (2006) 138 Cal.App.4th 396, 415 [recognizing “the fundamental rule that an appellate court does not reassess the credibility of witnesses or reweigh the evidence”].)
As defendant’s testimony was neither physically impossible nor inherently improbable—not to mention that it was strongly corroborated by defendant’s admissions—we conclude there was reasonable, credible, and solid evidence to support the trier of fact’s finding of guilt beyond a reasonable doubt as to all the challenged convictions.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J.ARMSTRONG, J.