Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct.No. CC599465
Duffy, J.
A jury convicted defendant Jesús Carlos López of 14 counts of committing lewd or lascivious acts on a child under age 14 by force. (Pen. Code, § 288, subd. (b)(1).) The victims were defendant’s stepchildren. The jury found true allegations under the one strike law that he committed an offense against more than one victim. (§ 667.61, subds. (b), (c), & (e).) The information alleged that the crimes occurred between January 1, 1995, and October 1, 1998, but because of a statute of limitations that the parties agree applies, defendant could be punished only for crimes committed on or after August 1, 1995. The court sentenced him to a base term of 18 years in prison and imposed a consecutive term of 150 years to life in prison. An immigration hold was placed on defendant, who appears to be a citizen of Mexico.
All statutory references are to the Penal Code.
On appeal, defendant contends that the prosecution failed to prove that any of the crimes occurred within the period for which he could be punished under the statute of limitations, and therefore his convictions must be dismissed or reversed; that the trial court erred by answering a question by the jury outside the presence of defendant and his counsel; and that the court further erred in instructing the jury on other-crimes evidence and the credibility of a witness (defendant himself) who was previously convicted of misdemeanors.
We will affirm the judgment.
FACTS
Defendant was prosecuted for molesting his three stepchildren. Counts 1 through 6 alleged lewd or lascivious acts against Martin, 7 through 10 against Cindy, and 11 through 14 against David.
Defendant committed each charged crime while the family was living at a particular apartment complex in San Jose (hereafter the “Apartment Complex”). Defendant testified that he lived there during 1996, 1997, and 1998. Immediately before then, and as late as November 6, 1995, he and his family were living in another apartment elsewhere in San Jose.
I. Crimes Against Martin
Martin testified that he was born in March 1988. When he was about eight years old, defendant summoned Martin to his bedroom at the Apartment Complex. Defendant was lying naked on the bed and made Martin masturbate him (count 1) and orally copulate him (count 2) while further masturbating him (count 3).
Defendant later committed more sex crimes against Martin at the Apartment Complex. In the second incident he forced Martin to masturbate him (count 4). In the third incident he forced Martin to masturbate him (count 5) and orally copulate him (count 6).
II. Crimes Against Cindy
Cindy testified that she was born in December 1986. She, too, was sexually molested by defendant. When she was about seven or eight years old defendant called her into his bedroom and forced her to masturbate him twice (counts 7 and 8). In another incident, also when Cindy was seven or eight, defendant called her into his bedroom and told her to expose herself (count 9). In a third incident, defendant touched her buttocks with his penis (count 10). Each incident occurred at the Apartment Complex.
III. Crimes Against David
David was born in February 1985. In one incident defendant forced David to orally copulate him (count 11). In another, when David was between 11 and 13 years old, defendant forced David to sodomize him by holding on to David’s penis and inserting it in his anus (count 12). In another, also when David was between 11 and 13 years old, defendant orally copulated him (count 13). In another, defendant committed forcible sodomy against David (count 14). Each incident occurred at the Apartment Complex.
DISCUSSION
I. Claims Concerning Statute of Limitations and Ineffective Assistance of Counsel
The felony complaint in this case was filed on August 1, 2005. The parties agree that prosecution for any of the charged incidents that occurred before August 1, 1995, is time-barred by a 10-year statute of limitations, and further agree that prosecution for any such incident on or after that date is not so time-barred. (See § 801.1, subd. (b).) Defendant claims that the prosecution did not prove that the crimes occurred between August 1, 1995, and October 1, 1998, and that they could have been committed outside the period prescribed by the 10-year statute of limitations that both parties agree applies to his case. If so, he maintains, his convictions must either be dismissed with prejudice under double jeopardy principles or reversed. We conclude that defendant is not entitled to either form of relief.
The information alleged, the jury was instructed that it could find defendant guilty if it found, and the verdict form on each count recited that the crimes occurred between January 1, 1995, and October 1, 1998. (See People v. Smith (2002) 98 Cal.App.4th 1182, 1186-1187 [presenting a similar procedural background].)
The information must allege facts showing that the prosecution of a criminal case began within the period set by the applicable statute of limitations. (See People v. Williams (1999) 21 Cal.4th 335, 339.) A claim of bar by the applicable statute of limitations may be raised at any time. (Id. at pp. 339-341.)
When, as here, “the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. If the court cannot determine from the . . . record whether the action is barred” and “it is an appellate court, it should remand for a hearing.” (People v. Williams, supra, 21 Cal.4th at p. 341, fn. omitted.) By necessary implication, of course, we need not remand for a hearing when we are able to determine from the record that the bar does not apply. In similar terms, our opinion in People v. Smith, supra, 98 Cal.App.4th 1182, albeit addressing an instance in which the trial court had already “determine[d] that certain counts are not time-barred” (id. at p. 1189), stated that “despite the prosecution’s error in filing an information in which those counts appeared to be time-barred,” “if the reviewing court can determine from the available record, including both the trial record and the preliminary hearing transcript, that the action is not time-barred” “defendant’s convictions . . . will stand” (ibid.) on appeal.
“Although the prosecution has the burden of proving the crimes occurred within the applicable statute of limitations, the statute of limitations is not an element of the offense. [Citation.] Therefore, the prosecutor need only demonstrate that the crime occurred within the applicable statute of limitations by a preponderance of the evidence.” (People v. Smith, supra, 98 Cal.App.4th at p. 1187.) Because the bar may be submitted as an argument on appeal to challenge a conviction even though not presented in superior court, an answer to the challenge also may be submitted for the first time in this court and we will entertain both parties’ contentions. On appeal as at trial, the state, represented at this stage by the Attorney General, must demonstrate by a preponderance of the evidence that the bar does not apply.
The People have done so in this case. There was strong evidence, and certainly the requisite preponderance of it, that all of the charged crimes occurred after August 1, 1995, and hence within the agreed-upon 10-year statute of limitations period. According to the victims, all of the charged acts occurred at the Apartment Complex, and defendant himself testified that as late as November 6, 1995, he and his family were living at another location in San Jose and later moved to the Apartment Complex.
Defendant argues that Martin’s and Cindy’s testimony about the San Jose apartments they lived in and their age at the time of the sexual abuse is too ambiguous, or was too focused on responding to leading questions, for us to be able to conclude reliably that all of the charged incidents occurred following the family’s relocation to the Apartment Complex; and that, with similar ambiguity, David testified at one point that he was sexually abused “[m]ostly” at the Apartment Complex, implying that some of the charged incidents occurred elsewhere and therefore possibly before August 1, 1995.
It is clear, however, that notwithstanding any ambiguities in portions of each victim’s testimony, other testimony each victim gave establishes by a preponderance of the evidence that each charged incident occurred at the Apartment Complex, and hence after November 6, 1995. Nor do we read the record as showing that the prosecutor asked leading questions to direct the victim witnesses to the answers the prosecutor desired. The preponderance of the evidence is that none of the charged incidents is time-barred. Accordingly, defendant’s claim fails to persuade.
And because the underlying claim is merit less, defendant’s claim of ineffective assistance of counsel also is unavailing. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.) The prosecution established by a preponderance of the evidence that the crimes occurred later than November 6, 1995, within the limitations period both parties agree applies. Under those circumstances, any action by defense counsel to challenge the prosecution on grounds of a time bar would have been an idle act. “Representation does not become deficient for failing to make merit less objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Accordingly, we reject defendant’s ineffective assistance of counsel claim.
II. Claim of Improper Communication With Deliberating Jury
Defendant claims that the trial court violated his federal constitutional rights to due process of law, a fair trial, to be present during the proceedings, and to the assistance of counsel by replying to a question the jury posed during deliberations without requiring him and his counsel to be present. He has, however, waived these claims and cannot complain on appeal about the court’s action. Moreover, we would, were we required to reach the merits of defendant’s claims, find no prejudicial constitutional violation.
During deliberations the jury sent a note to the court about possible evidence in the case. The jury asked, “Did the defense in cross establish that a report was made or not made by Martin to the police or social worker in 2002? Is there any evidence of this report? Did the report include sexual abuse or physical abuse or both? Do we know the date of [the] report? When exactly?” The court stated in its minutes summarizing the day’s proceedings that “Both Counsel are notified of the note and of the Court’s intended response, of which both Counsel agree and concur.”
A. Waiver
The People argue that defendant waived his right to be present during the trial court’s reply to the jury’s inquiry when, as we read the record, his counsel acceded to the court’s proposed procedure to enter the jury room with only the court reporter. The People are correct. In People v. Jennings (1991) 53 Cal.3d 334, 383-384, our Supreme Court considered similar federal constitutional claims under materially indistinguishable circumstances, i.e., following the superior court’s response to a juror’s question during deliberations outside the presence of the parties and their counsel. Jennings held that by failing to move for a mistrial on the basis of the court’s communication, the defendant forfeited those constitutional claims. The same reasoning applies here, even though in Jennings the claims were forfeited, whereas here defense counsel waived them on behalf of defendant. (See People v. Williams, supra, 21 Cal.4th at p. 340, fn. 1 [forfeiture involves “losing a right by failing to assert it,” whereas waiver involves “intentionally relinquishing a known right”].) In Jennings, the court found the claims forfeited when, among other things, defense counsel never objected to the court’s responsive instruction when counsel had the opportunity to do so. (Id. at p. 383.) Defendant does not point us to anything in this record that would show that similar action by his counsel after the court’s action would have been impossible. Defendant has waived his claims.
A better record detailing the scope of defense counsel’s and defendant’s agreement to the procedure would have helped to forestall a number of possible legal challenges. (See U.S. v. Rodriguez (7th Cir. 1995) 67 F.3d 1312, 1315-1316; U.S. v. Berger (9th Cir. 2007) 473 F.3d 1080, 1095.) By failing to create such a record or arrange for the return of defendant and his counsel to the courtroom before answering the jury’s inquiry, the court ran the risk that a claim of improper criminal procedure could be made on review, and that risk was realized here.
B. The Merits of the Claims
Moreover, even if we were to reach the issue on the merits, we would find that defendant is not entitled to relief.
1. Instruction Not to Speculate About Evidence Not Admitted
It appears from the trial court’s response that the parties and the court were concerned that the jury was asking for the impermissible, namely to receive evidence that had not been presented to it during the evidentiary phase of the trial. The court, entering the jury room with a court reporter but without the parties and their counsel present, instructed the jurors that “ ‘you must determine what facts have been proved from the evidence received in the trial and not from any other source.[’] Okay. You’re not to speculate about anything, you’re not to speculate as to what the evidence might be, should be, will be. You can only decide the evidence from the evidence that was received during the course of the trial, which means the testimony of witnesses and any exhibits that were admitted, that’s evidence.”
To this point the court was reiterating to the jury certain language from CALJIC No. 1.00, an instruction it had previously given the jury.
“ ‘When reviewing [a federal constitutional claim concerning] a supposedly ambiguous [i.e., potentially misleading] jury instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People v. Ayala (2000) 24 Cal.4th 243, 289.)
There is no reasonable likelihood that the jury applied the challenged instruction so as to violate defendant’s constitutional rights. Defendant argues that the instruction that the jury was “not to speculate about anything, you’re not to speculate as to what the evidence might be, should be, will be” informed the jurors that they could not use their independent judgment to decide whether defendant was guilty beyond a reasonable doubt. We see no reasonable likelihood of such an interpretation of the instruction by the jurors. They had asked about matters that were outside the scope of the evidence admitted. The trial court instructed the jury, in a straightforward and unambiguous manner, to consider only the evidence that the evidentiary phase of the trial had produced. We reject defendant’s claims with regard to these instructions.
2. Instruction on Reading Back Testimony
Immediately following its instruction to consider only the evidence admitted during the evidentiary phase of the trial, the trial court requoted to the jury the language of CALJIC No. 17.43, an instruction that it had already given in open court: “During deliberations, any question or request you may have should be addressed to the Court on a form that will be provided. If there is any disagreement as to the actual testimony, you have the right, if you choose, to request a read back by the reporter. You may request a partial or total read back, but any read back should be a fair presentation of that evidence.”
Defendant argues that the trial court incorrectly instructed the jury that only if jurors disagreed about the testimony could they ask for a read back and that otherwise they were not entitled to one. As noted, he has waived the claim. If we were to consider the claim on the merits, we would find no reasonable likelihood that the jurors would have interpreted the court’s words so as to violate defendant’s constitutional rights. If the jurors firmly remembered the content of testimony they had heard and had no questions about it, they would be unlikely to ask to have it read back. If the jurors did have any question about the testimony, we see no reasonable likelihood that they would understand the court’s instruction as forbidding them to ask to have it read back unless they disagreed in an absolute sense—i.e., drawing diametrically different interpretations from it—as opposed to having different recollections of it. We reject defendant’s claims with regard to the instruction.
III. Claims of Error Regarding Instructions Given in Open Court
Defendant claims that his right to due process of law, including the right to a fundamentally fair trial, evidently under the Fourteenth Amendment to the United States Constitution, was violated by the language of instructions read to the jury in open court. We do not agree.
Evidence was introduced that defendant was convicted of two misdemeanors and two felonies for physically abusing his wife, the mother of the three stepchildren against whom he committed the charged sex crimes. (Defendant’s wife was deceased from unrelated causes at the time of trial.) The instructions at issue here arose from this evidence.
A. Instruction Limiting Consideration of Other-Crimes Evidence
Defendant claims the trial court violated his due process rights by instructing the jury, in a modified version of CALJIC No. 2.50, not to consider evidence of his “crimes other than that for which he is on trial” as tending to prove that he “is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining[] if it tends to show: [¶] The . . . existence of fear or duress, which is one of the elements of the crimes charged in Counts 1 through 14 inclusive . . . . [¶] . . . You’re not permitted to consider such evidence for any other purpose.”
Defendant maintains in essence that there is a reasonable likelihood that the jury would have understood the final sentence to mean the jurors could not consider evidence of defendant’s past misconduct as tending to prove that his stepchildren had a motive to fabricate their contentions that he sexually abused them. We do not agree.
Defendant’s stepchildren testified that he physically abused each one of them, precipitating dependency proceedings in which they were removed one or more times to foster homes. In his testimony on direct examination, defendant acknowledged that he was once “a very rough man” with regard to one of his stepchildren but asserted that he now knew that it was wrong to physically “discipline” his stepchildren in the manner in which he used to do it. He also acknowledged that he had “attacked” his late wife “verbally and physically” and described his self-described “very violent” behavior toward her in detail. He theorized in his testimony that David and Cindy had raised the sexual molestation allegations because defendant was “trying to gain custody of my children again,” meaning defendant’s natural-born children. At closing argument, defense counsel argued that the victims had “powerful motive[s] . . . to come in and give false testimony. We have late reportings of six to ten years. We have no physical evidence or forensic evidence to support any of their testimony. . . . [¶] . . . [¶] There were . . . major inconsistencies and inconsistent statements and outright lies actually told . . . .” Defense counsel argued that people have been known to “make false allegations of molestation in legal custody battles” and that it was “a powerful motive” in this case. In essence, counsel argued that there was a family conspiracy to frame defendant to prevent him from having custody of his natural children. Defense counsel concluded that “they’re trying to prevent my client from getting those other children, which are his, and he’s entitled to them.”
On appeal, defendant offers a different motive for the purportedly false claims: revenge for his physical abuse of his late wife. In any event, he maintains in effect that the instruction foreclosed the jury’s consideration of any evidence about a motive for false allegations by the victims.
With regard to defendant’s trial and to criminal trials generally, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.” ’ [Citation.] ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citation.] If the charge as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
There is no constitutional infirmity. “ ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ ” (Middleton v. McNeil, supra, 541 U.S. at p. 437.) The jury was instructed that it could consider, in evaluating witnesses’ credibility, “[t]he existence or nonexistence of a bias, interest or other motive.” The jury was well acquainted with a basis for considering bias under the foregoing instruction, namely defendant’s view that his stepchildren leveled false allegations against him because they had learned of his desire to have custody of his natural children. Considered as a whole, the charge to the jury, which encompassed the other-crimes instruction, fell within constitutional norms.
B. CALJIC No. 2.23.1
Defendant claims the trial court erred by instructing the jury that it could consider the fact of a misdemeanor conviction in assessing his credibility. We do not agree.
Defendant’s physical attacks on his late wife, which occurred in 1995, resulted in misdemeanor convictions of inflicting injury on a spouse (former § 273.5, subd. (a); Stats. 1993-1994, 1st Ex. Sess., ch. 28, § 2, p. 8612) and battery (§§ 242, 243, subd. (a)).
The court instructed the jury that it was entitled to consider the evidence of “past criminal conduct amounting to a misdemeanor” as a factor in weighing the credibility of defendant’s testimony.
Defendant does not dispute that if the misdemeanors of which he was convicted involved moral turpitude the jury was properly instructed that it might consider that evidence in evaluating his credibility. (See People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90, 91-92.) But he argues that his convictions were not for crimes of moral turpitude. With regard to section 273.5, subdivision (a), we do not agree. A conviction of section 273.5, subdivision (a), is a conviction for a crime of moral turpitude. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401-1402 [in which the defendant had suffered a felony conviction of the crime but the court addressed the question of whether a violation of section 273.5 involves moral turpitude in general terms].) Defendant urges that we reconsider Rodriguez, arguing that it has been criticized. It has, but not on a ground relevant to his claim. (See People v. Campbell (1999) 76 Cal.App.4th 305, 309; People v. Thurston (1999) 71 Cal.App.4th 1050, 1055, fn. 3.) Because the violation of section 273.5, subdivision (a), involved moral turpitude, the instruction was justified. (See Lepolo, supra, at pp. 91-92.) Whether defendant’s conviction for battery arising out of the same incident was a conviction for a crime of moral turpitude is a matter that we need not address, because the conviction under section 273.5, subdivision (a), alone warranted giving the instruction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.