Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA070686. Eric C. Taylor, Judge.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BIGELOW, P.J.
Ernest Bernard Moore pled no contest to three counts of perjury. On appeal, he contends the prosecution suppressed evidence which tended to show the charges against him were time-barred. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Using false social security numbers and variations on his name, Moore applied for and was issued six different driver’s licenses by the department of motor vehicles (DMV). A February 13, 2009 information charged Moore with six counts of perjury in connection with applications for a driver’s license (Pen. Code, § 118, subd. (a)), made on the following dates: November 17, 1993 (count 1), October 14, 1994 (count 2), April 3, 2001 (count 3), October 22, 2003 (count 4), February 26, 2002 (count 5) and August 24, 2007 (count 6). The information was amended to include a special allegation as to counts 1 to 5 that the false information was not discovered until November 16, 2007, when a DMV investigator was contacted by TransUnion credit reporting agency regarding irregularities in Moore’s credit report and his use of multiple social security numbers and driver’s licenses. As a result, the three-year statute of limitations for the perjury charges did not begin to run until the time of discovery. (§§ 801, 803.)
All section references will be to the Penal Code unless otherwise specified.
Moore pled no contest to counts 1-3 in exchange for the dismissal of counts 4-6. The plea agreement was arranged between the prosecutor, Moore’s counsel in this action and his counsel in a federal case against him in Washington, D.C. The parties and the trial court agreed to continue sentencing in this matter until after his plea agreement in the federal matter was finalized and he had been sentenced there. According to Moore’s federal counsel, “if he gets convicted, sentenced out here in California before he gets sentenced in Washington in the Washington case, which is the first one to be in the system—this one comes from that case on a search warrant back there—then he will be affected very substantially as a career offender per federal recommended guidelines.” Moore’s counsel also requested that his sentence in this matter be made concurrent to his federal sentence. Under the plea agreement, the prosecution did not object to this request. Moore was sentenced to 50 months in the federal matter.
The trial court in this matter sentenced Moore to a total term of four years to run concurrently with his federal sentence. Moore timely appealed and the trial court granted a certificate of probable cause pursuant to section 1237.5. We appointed appellate counsel, who submitted a brief raising no issues and requesting that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We notified Moore on March 18, 2011, that he had the option to submit by brief or letter any grounds of appeal, contentions or argument which he wished us to consider. Moore submitted a supplemental brief on April 27, 2011, and also filed a petition for writ of habeas corpus, case No. B232202, on April 11, 2011.
DISCUSSION
Section 801 provides that, with certain exceptions, a prosecution for perjury under section 118 shall be commenced within three years after commission of the offense. For purposes of the statute of limitations, a felony prosecution commences when either “[a]n indictment or information is filed, ” “[a] complaint is filed charging a misdemeanor or infraction, ” “[t]he defendant is arraigned on a complaint that charges the defendant with a felony, ” or “[a]n 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.” (§ 804.) The limitations period does not begin to run until the discovery of the offense. (§ 803, subd. (c).)
In his supplemental brief, Moore argues that the prosecutor suppressed exculpatory material that showed the DMV discovered he lied on the driver’s license applications well before the discovery date alleged in the information. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).) As a result, the charges were time-barred under the statute of limitations. We reject Moore’s suppression argument on a number of grounds.
First, the Supreme Court has held that Brady does not require disclosure, prior to entry of a plea agreement, of affirmative defense information. (United States v. Ruiz (2002)536 U.S. 622, 633. The court explained, “When a defendant pleads guilty he or she... forgoes not only a fair trial, but also other accompanying constitutional guarantees.” (Id. at pp. 628-629.) Instead, “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson (1976) 397 U.S. 759].” (Tollett v. Henderson (1973) 411 U.S. 258; People v. Black (2004) 116 Cal.App.4th 103, 111.)
Additionally, Moore’s supporting declaration confirms that he knew of this purportedly exculpatory evidence and pressed his attorney to raise the issue of the date of discovery at the preliminary hearing. According to Moore, his attorney refused to object on statute of limitations grounds. Given these circumstances, we find there was no prejudice to Moore and instead, he has waived his right to raise this issue on appeal. (Brady, supra, 373 U.S. at pp. 88-89; People v. Padfield (1982) 136 Cal.App.3d 218.) In People v. Padfield, the information alleged discovery of the crime within the limitations period, an allegation that, if true, would make the prosecution timely. (Id. at p. 225.) The defendant pleaded nolo contendere, then sought to assert the statute of limitations on appeal. The court held the defendant had waived his right to litigate the factual question whether the offense was time-barred, explaining, “when the pleading is facially sufficient, the issue of the statute of limitations is solely an evidentiary one.” (Id. at p. 226.) “By pleading nolo contendere, defendant admitted the sufficiency of the evidence establishing that the statute of limitations was tolled.... Having admitted the sufficiency of that evidence by his plea, he cannot now challenge it with a forked tongue on appeal. In short, a defendant ‘cannot admit the sufficiency of the evidence by pleading guilty and then question the evidence by an appeal under section 1237.5....’ [Citation.]” (Id. at p. 227.)
Not surprisingly, Moore contends he received ineffective assistance of counsel for failure to raise the timeliness issue in his petition for writ of habeas corpus. We address Moore’s writ petition by separate order.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., GRIMES, J.