Opinion
A148820
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CALVIN WILLIAM JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51500651)
Defendant Calvin William Johnson was found guilty of one count of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), for which he was sentenced to state prison. His sole contention on appeal is that prosecution of the offense was time-barred.
It was alleged in the second amended information that defendant committed the crime on a victim identified as Jane Doe #3 "[o]n or between September 11, 1990 and September 10, 1992." Ordinarily, the statute of limitation for this offense committed at that time would be six years. (See Ream v. Superior Court (1996) 48 Cal.App.4th 1812, 1815, & fn. 2.) However, since 1994, the time can be extended by Penal Code section 803. The language applicable here is in 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 . . . alleging that he or she . . . was the victim of a crime described in Section . . . 288." (Pen. Code, § 803, subd. (f)(1).)
Here, the jury made an express finding that "A complaint accusing the defendant of that crime was filed within one year of the victim's report." "When a statute of limitations issue has been tried to a jury, on appeal the question becomes whether there was substantial evidence to support the jury's [express or] implied findings." (People v. Le (2000) 82 Cal.App.4th 1352, 1362.) It is also pertinent to keep in mind that "although the prosecution has the burden of proof of ' "every ingredient of an offense beyond a reasonable doubt" ' [citations], the statute of limitations is not an ingredient of an offense but a substantive matter for which the prosecution's burden of proof is a preponderance of the evidence." (People v. Riskin (2006) 143 Cal.App.4th 234, 241.)
In our case, the victim, Jane Doe #3, made three reports, the first in 2003, the second in 2005, the third in 2015. The defense argued that the operative report was either the first or the second. The stipulated facts of the first two reports were given to the jury as follows (with minor editorial changes added):
"On June 28th, of 2003, the Sacramento Police Department responded to a report of domestic violence between (Jane Doe #3) and the defendant, Calvin Johnson.
"(Jane Doe #3) told the police that that they began to argue over (Jane Doe #3's) new boyfriend. (Jane Doe #3) told the police that the defendant grabbed her by the neck and pulled her toward him. (Jane Doe #3) got out of the car and the defendant left.
"(Jane Doe 3) told the police she was born on September 11th, 1978. (Jane Doe #3) told the police she had an 11-year-old daughter with the defendant, and has been in an on-and-off dating relationship for 11 years. (Jane Doe #3) told the police she did not receive any injuries, and did not want the defendant to go to jail.
"On January 24th, 2005 Sacramento sheriff deputies responded to a report of domestic violence between (Jane Doe #3) and the defendant, Calvin Johnson. (Jane Doe #3) told the police that they were arguing over the behavior of their child when the defendant gave (Jane Doe #3) a hard slap to the left side of her face.
"(Jane Doe #3) informed the police their child was (Jane Doe #2), and that (Jane Doe #2's) date of birth was May 8th, 1992.
"(Jane Doe #3) told the police her date of birth was September 11th, 1978. (Jane Doe #3) suffered an injury as a result of this. (Jane Doe #3) declined medical treatment and told the police she did not want the defendant arrested.
"On February 28th, of 2005, Sacramento County sheriff deputies responded to a report of domestic violence between (Jane Doe #3) and the defendant, Calvin Johnson. (Jane Doe #3) told the deputies they were involved in an argument when the defendant grabbed her by the shirt, causing her shirt to rip. The defendant pulled her to the ground and motioned as if he was going to kick her, but did not kick her.
"(Jane Doe #3) told the deputies she was scared of the defendant, and that she knew he would hurt her if he goes to jail and then gets out.
"The defendant was subsequently charged with two counts of domestic violence in Sacramento County, based on the January 24th and February 28th, 2005 incidents.
"The case proceeded to trial in Sacramento County. At trial, (Jane Doe #3) was uncooperative and refused to provide information that would assist in the prosecution of the defendant.
"The defendant was found guilty of misdemeanor corporal injury to a spouse under Penal Code section 273.5, and a violation of Penal Code section 243[, subdivision] (e)(1)."
Jane Doe #3 testified that in 2005 Jane Doe #2 complained of inappropriate touching by defendant. Jane Doe #3 told defendant to stay away from herself and Jane Doe #2. There was no evidence that this incident was reported to any law enforcement agency.
In his brief, defendant's appointed counsel describes the 2015 evidence as follows: "While investigating this case, Antioch Police Detective Brian Rose collected buccal swabs from appellant (on March 17, 2015), Jane Doe 3 (on January 6, 2015) and Jane Doe 2 (on January 21, 2015). On the day he took the buccal swab from Jane Doe 3, Detective Rose interviewed Jane Doe 3. She told him she met appellant when she was 13. She had sex with him four times in Oakland. Detective Rose did the math and concluded that Jane Doe 3 was 13 years old when she delivered Jane Doe 2."
From this starting point, defendant reasons as follows: "It does not take a mathematical wizard to concluded that these two reports from 2003 and 2005 by a victim of child sexual abuse to California law enforcement agencies could each set in motion the one-year statute of limitations extension set forth in section 803, subdivision (f)(1). The prosecution of appellant for that child sexual abuse was not commenced until January 20, 2015, when the original information was filed. Consequently, the prosecution of appellant under count 4 for committing a lewd act on Jane Doe #3, the only conviction in this case, was time-barred by the stipulated facts and must be reversed."
But "this case" has a more complicated beginning. It apparently started with another incident of domestic violence, and defendant's arrest on Christmas in 2014, which then moved into a sexual abuse investigation of another Jane Doe. Antioch Police Officer Rose testified that he observed a Children's Interview Center interview of Jane Doe #1 on December 30, 2014. Rose interviewed Jane Doe #3 on January 6, 2015. She told him she started having sex with defendant when she was 13. She was not asked whether she had ever made a report of sexual abuse concerning defendant, and Rose did not investigate whether Jane Doe #3 had made a prior report. He did, however, "run [defendant's] rap" and discovered there was no "indication on his rap that he had been arrested or investigated for what occurred with [Jane Doe #3]."
Jane Doe #3 was asked at trial: "Did you tell the police about the number of times that you had sex with the defendant, or in general that you had sex with the defendant, prior to your conversation with Detective Rose from the Antioch Police Department." Her answer—"No."
The stipulated facts concerning the 2003 and 2005 incidents describe domestic violence, not sexual acts. It was not until she spoke with Detective Rose on December 30 that Jane Doe #3 began addressing her sexual history with defendant in plain language and law enforcement began investigating that history. The initial criminal complaint against defendant was filed that same day. From this the jury could conclude that this was the first time Jane Doe #3 made "a report to a California law enforcement agency" within the meaning of Penal Code section 803, subdivision (f)(1). Consequently, there is substantial evidence in the record to support the jury's express finding that "A complaint accusing the defendant of that crime was filed within one year of the victim's report."
The judgment of conviction is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.