Opinion
No. B181229.
May 15, 2006.
Appeal from the Superior Court of Los Angeles County, No. BA271123, Paul Enright, Commissioner.
Robert S. Gerstein for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Leonard James McSherry appeals the judgment entered after conviction by jury of an attempt to molest or annoy a child under the age of 18 years. (Pen. Code, §§ 664, 647.6, subd. (a).) Based on a prior conviction of lewd act in violation of section 288, the trial court sentenced McSherry as a felon. (§ 647.6, subd. (c)(2).) Because McSherry's conduct constitutes a misdemeanor absent the prior conviction of lewd act, and prosecution of the offense was not commenced within one year as required by section 802, subdivision (a), the judgment must be reversed.
Subsequent unspecified statutory references are to the Penal Code.
BACKGROUND
The evidence adduced at trial indicated that on the morning of March 10, 2003, a school yard supervisor at Hoover Elementary School in Los Angeles saw McSherry sitting in an Oldsmobile near the tetherball courts where numerous third graders were at play. The passenger side window, which was closest to the schoolyard, was down and McSherry was masturbating. Although the children could have seen McSherry from their location, none actually did.
A jury convicted McSherry of an attempt to annoy or molest a child under the age of 18 years. This offense generally is a misdemeanor that is punishable by a maximum term of one year in the county jail. (§ 647.6, subd. (a).) When the defendant has a prior misdemeanor conviction of this offense, he or she is punished as a felon. (§ 647.6, subd. (c)(1).) Where, as here, the defendant has a prior conviction of lewd act in violation of section 288, the offense is a felony punishable by two, four or six years in state prison. (§ 647.6, subd. (c)(2).) The trial court found McSherry had three prior convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to a term of 25 years to life in state prison.
CONTENTIONS
In a supplemental opening brief, McSherry contends the instant prosecution is barred by the statute of limitations. We agree and reverse the conviction. This resolution renders moot the evidentiary and instructional contentions raised in McSherry's opening brief.
DISCUSSION
McSherry contends that because the conduct underlying his conviction is a misdemeanor violation of section 647.6, subdivision (a), the applicable statute of limitations is one year. (§ 802, subd. (a).) The People concede the information was not filed until September of 2004, which is more than one year after the March 2003 incident. However, the People claim the three-year statute of limitations for felonies applies (§ 801) because McSherry was charged with a violation of section 647.6, subdivision (c)(2), which is a felony based on the allegation of a prior conviction of lewd act.
Section 802, subdivision (a) directs that "prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense."
The People rely on People v. San Nicolas (1986) 185 Cal.App.3d 403 [ 229 Cal.Rptr. 650], which rejected McSherry's argument in a case involving a violation of former section 647a, the precursor of 647.6, subdivision (a), which was enacted in 1987. San Nicolas held the allegation of a qualifying prior conviction rendered the offense a felony. Thus, the three-year statute of limitations applied. ( People v. San Nicolas, supra, at p. 407.)
The result in San Nicolas cannot be squared with People v. Turner (2005) 134 Cal.App.4th 1591 [ 36 Cal.Rptr.3d 888], which we believe is a better reasoned decision. The defendant in Turner was charged with residential robbery, prosecution for which generally must be commenced within three years. When the defendant sought dismissal on the ground the information had been filed outside the three-year period, the trial court ruled that, because the information also alleged prior convictions within the meaning of the Three Strikes law, the defendant faced "imprisonment in the state prison for life" and therefore could be prosecuted "at any time." (§ 799.) Turner rejected this view and concluded the legislative history of the limitation provisions, found in sections 799 through 805, revealed that prior convictions were irrelevant in determining the appropriate statute of limitations. Turner summarized the legislative history as follows: "In 1981, in recognition of the fact `that piecemeal amendment over the years had produced a scheme that was confusing, inconsistent, and lacking in cohesive rationale,' the Legislature referred the matter to the Law Revision Commission for comprehensive review. ( People v. Frazer (1999) 21 Cal.4th 737, 743 [ 88 Cal.Rptr.2d 312, 982 P.2d 180]; Stats. 1981, ch. 909, § 3, p. 3443.) In 1984, the Legislature overhauled the entire scheme. (Stats. 1984, ch. 1270, §§ 1-2, pp. 4335-4337.) The revised scheme reflected the primary recommendation of the Law Revision Commission that the length of a `limitations statute should generally be based on the seriousness of the crime.' ( 17 Cal. L. Revision Com. Rep. (1984) p. 313.) The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. [Citation.] It also served the procedural need to `provid[e] predictability' and promote `uniformity of treatment for perpetrators and victims of all serious crimes.' [Citation.] The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, `a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life in prison is a determination that society views the crime as the most serious.' [Citation.] [¶] Reflecting these principles, the current statutory scheme of limitations for the prosecution of crimes turns on the maximum punishment prescribed for the offense. The shortest limitation period of one year applies to most misdemeanors. (§ 802.) For most felonies, including wobblers, the applicable statute of limitations is section 801, which provides that the `prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after the commission of the offense.' If, however, the prosecution is for a felony `punishable by imprisonment in the state prison for eight years or more,' the prosecution may be commenced within six years. (§ 800.) Finally, with an exception not relevant here, only a prosecution for `an offense punishable by death or imprisonment in the state prison for life . . . may be commenced at any time.' (§ 799.) Section 805, subdivision (a) further specifies that for the purpose of determining the applicable limitation period, `[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.'" ( People v. Turner, supra, 134 Cal.App.4th at pp. 1594-1595.)
Turner concluded the meaning of the phrase "the maximum punishment prescribed by statute for the offense" in the first sentence of section 805, subdivision (a), refers to the offense itself without consideration of any recidivism provisions such as the Three Strikes law. Turner noted the statute refers to prosecution for an offense, "not to prosecution and punishment that applies to a particular offender, and which is based upon facts other than the commission of the offense for which he or she is being prosecuted. . . ." ( People v. Turner, supra, 134 Cal.App.4th at p. 1597.) Turner reasoned that, in the context of selecting the applicable statute of limitations, the maximum punishment prescribed by "statute for the offense" (§ 805, subd. (a), italics added) "therefore logically refers to the maximum punishment for the current offense for which the defendant is being prosecuted. . . ." ( People v. Turner, supra, at p. 1597.)
Applying Turner's reasoning here, we look to the conduct underlying McSherry's conviction to determine the applicable statute of limitations. Because McSherry's conduct, putting aside his prior conviction, constituted a misdemeanor, the applicable statute of limitations is one year. We reject the People's assertion that section 647.6, subdivision (c), defines a separate felony offense for which the limitations period is three years. Plainly, the Legislature intended that prior conviction allegations be disregarded when determining the applicable statute of limitations.
In reaching a contrary result, San Nicolas failed to give proper weight to the legislative history of sections 799 through 805 as detailed in People v. Turner, supra, 134 Cal.App.4th at pages 1594-1595. San Nicolas also misconstrued the second sentence of section 805, subdivision (a), which states: "Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense." San Nicolas held this directive to disregard enhancements did not apply to prior convictions because prior convictions are not enhancements. ( People v. San Nicolas, supra, 185 Cal.App.3d at p. 406.)
San Nicolas dismissed a comment of the California Law Revision Commission to section 805 that was directly at odds with its reading of the statute. The comment indicated that a violation of section 666, which punishes petit theft as a felony where the accused has a prior theft related conviction, is an enhancement for the purpose of section 805. Applying the rationale of the comment to this case, it is apparent that the offense of annoying or molesting a child under the age of 18 years similarly is a misdemeanor for statute of limitations purposes, even where the accused has a prior conviction that might otherwise result in punishment as a felon.
San Nicolas declined to follow the comment and concluded section 805 clearly intended to exclude only enhancements in determining the maximum punishment prescribed by statute for an offense. Because prior convictions are not enhancements, prosecution for a violation of section 666 did not involve an enhancement within the meaning of section 805. ( People v. San Nicolas, supra, 185 Cal.App.3d at pp. 406-407.) San Nicolas concluded, by a parity of reasoning, that a violation of section 647a with a prior conviction similarly defined a felony offense.
This view limits the term "enhancement" in section 805, subdivision (a), to the meaning the word conveys in sentencing contexts when it appears a more expansive meaning was intended. Based on the legislative history and the comment to section 805, it is apparent the Legislature intended to focus on the conduct underlying the conviction, stripped of enhancements. As the comment of the Law Revision Commission reveals, the term enhancement in this context includes prior conviction allegations. Indeed, the appropriate consideration is the offense, not the offender. ( People v. Turner, supra, 134 Cal.App.4th at p. 1597.)
Here, although McSherry was a recidivist, the conduct underlying his current offense was a misdemeanor. Accordingly, based on the foregoing discussion, the one-year statute of limitations for misdemeanor applies. It does not matter, in our view, whether the prior conviction allegation is found in the statute proscribing the conduct or in another statute such as the Three Strikes law.
Finally, the People note section 802, subdivision (b), expressly provides that a misdemeanor violation of section 647.6 may be commenced within three years if the offense involves a minor under the age of 14 years. Based thereon, the People argue the Legislature intended to specify some violations of section 647.6 as misdemeanors and others as felonies. Thus, a conviction of 647.6, subdivision (a) with a prior conviction must be treated as a felony. However, the fact the Legislature provided for a three-year statute where the victim is under the age of 14 years suggests the misdemeanor statute of limitations applies in other situations, including where the offense is punished as a felony based on a prior conviction allegation. This view is consistent with the expressed intent of the Legislature that the seriousness of the offense should determine the applicable period of limitations.
Section 802, subdivision (b) provides: "Prosecution for a misdemeanor violation of Section 647.6 or former Section 647a committed with or upon a minor under the age of 14 years shall be commenced within three years after commission of the offense."
In sum, we conclude section 647.6, subdivision (c)(2), does not define a felony offense for statute of limitations purposes but provides an alternate punishment for a misdemeanor violation of section 647.6, subdivision (a), where the offender has an enumerated prior conviction. Thus, the maximum punishment prescribed for the commission of the offense itself, without regard to any prior convictions, is one year in the county jail. Because the information was not filed within one year of the conduct underlying the conviction, the prosecution was untimely. This defect is jurisdictional and can be raised at any time. ( People v. Williams (1999) 21 Cal.4th 335, 339-341 [ 87 Cal.Rptr.2d 412, 981 P.2d 42].) Consequently, the conviction must be reversed.
DISPOSITION
The judgment is reversed.Kitching, J., and Aldrich, J., concurred.