Opinion
F074183
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ROY ORNELAS, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR041094)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Roy Ornelas was convicted of six counts of committing forcible lewd and lascivious acts on a child under the age of 14 years in violation of Penal Code section 288, subdivision (b)(1) and one count of continuous sexual abuse of a child under the age of 14 years under section 288.5. The trial court sentenced Ornelas to an aggregate determinate term of 36 years in prison. Ornelas was ordered to serve the middle term of six years for each of the six counts of committing forcible lewd and lascivious acts to be served consecutively. The court imposed an additional eight months for a violation of probation in a separate case to be served consecutively. The court dismissed the continuous sexual abuse conviction pursuant to People v. Johnson (2002) 28 Cal.4th 240, 245 (Johnson).
Unless otherwise stated, all further statutory references are to the Penal Code.
In Johnson, the California Supreme Court held that section 288.5 places limits on the prosecution's power to charge both continuous sexual abuse and discrete sexual offenses in the same proceeding. "'[N]o other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.'" (Johnson, supra, 28 Cal.4th at p. 243; see People v. Goldman (2014) 225 Cal.App.4th 950, 955.)
On appeal, Ornelas challenges the timeliness of one count of committing forcible lewd and lascivious acts on a child. He also alleges that any extension of the statute of limitations period was a violation of the ex post facto clause. The criminal conduct for which Ornelas was convicted took place against victim between 2002 and 2008. Ornelas was convicted of six counts under section 288, subdivision (b)(1), and each count referred to a different time period. The challenged count, count 7, covered the three-month period from March 4, 2002, to June 3, 2002. The other five counts covered the same three-month period, March 4 to June 3, of each following year, from 2003 through 2007. Ornelas contends that a 10-year statute of limitations applies to section 288, subdivision (b)(1). The information first alleging the charged conduct in count 7 was filed on May 29, 2012. Accordingly, Ornelas argues that only conduct occurring during the six-day period from May 29, 2002, to June 3, 2002, was filed within the 10-year statute of limitations period.
As the time specified for count 7 ran from March 4, 2002, to June 3, 2002, Ornelas alleges most of the three-month time period occurred after the relevant statute of limitations period expired.
Respondent counters that the Legislature extended the relevant statute of limitations period from 10 years to any time before the victim's 28th birthday. The victim was born in 1994, and was 18 years old at the time the information was filed against Ornelas. As such, respondent argues that the prosecution of Ornelas was timely. We agree. The relevant statute of limitations was extended while the 10-year statute of limitations period was applicable and running against Ornelas. Because the legislative extension occurred before the statute of limitations applicable to Ornelas expired, the prosecution of Ornelas was both timely and constitutional under the ex post facto and the due process clauses of the United States Constitution. We affirm.
Ornelas contends his conviction based on conduct occurring after the statute of limitations expired violated his due process rights requiring the prosecution to prove each element of the offense. This argument is effectively a restatement of his claim that the prosecution of count 7 was untimely under California law.
FACTUAL BACKGROUND
The facts relevant to this appeal are not in dispute. Victim was born in 1994, and was eight years old during the three-month time period in which the alleged lewd acts relating to count 7 occurred. Ornelas became victim's stepfather when she was around four years old and victim testified that he started molesting her at that age. Victim testified that Ornelas committed some type of sexual abuse almost every day. Around the time victim was in the second grade, Ornelas began forcing victim to orally copulate him nearly every day.
Although victim had difficulty remembering when specific events occurred, the prosecution argued there was sufficient evidence to convict Ornelas of lewd acts on a minor under section 288, subdivision (b)(1), during the period from March 4, 2002, to June 3, 2002, based on victim's statements that she was molested nearly every day.
DISCUSSION
I. Timeliness of the Prosecution of Count 7
Ornelas claims that the prosecution of count 7 was barred by the 10-year statute of limitations. To reiterate, the charged conduct relating to count 7 occurred between March 4, 2002, and June 3, 2002, when victim was eight years old. Count 7 was first alleged in the information filed on May 29, 2012, when victim was 18 years old.
Ornelas did not challenge the timeliness of count 7 at trial. Regardless, the statute of limitations can be raised at any time, even postconviction, absent an express waiver, if the timeliness of the charge is not apparent from the face of the charging document. (People v. McCullough (2013) 56 Cal.4th 589, 593; People v. Williams (1999) 21 Cal.4th 335, 338.)
Prior to 2001, the statute of limitations period for a violation of section 288, subdivision (b)(1), was six years. (Former § 800; People v. Angel (1999) 70 Cal.App.4th 1141, 1145.) On January 1, 2001, the enactment of legislation extended the statute of limitations for felonies enumerated in section 290, including violations of section 288, to 10 years. (Former § 803, subd. (h), as enacted by Stats. 2000, ch. 235, § 1; People v. Simmons (2012) 210 Cal.App.4th 778, 788 (Simmons); In re White (2008) 163 Cal.App.4th 1576, 1580 (White).) Section 803 underwent multiple changes in subsequent years, but the 10-year statute of limitations applicable to section 288, subdivision (b)(1) remained in effect. (White, supra, at pp. 1580-1581.)
However, beginning January 1, 2006, by operation of section 801.1, subdivision (a), the prosecution of certain sex offenses, including section 288 violations, were extended to "any time prior to the victim's 28th birthday" if the crime was "alleged to have been committed when the victim was under the age of 18 years." (Stats. 2005, ch. 479, § 2; Simmons, supra, 210 Cal.App.4th at p. 787.)
An even more recent amendment to section 801.1 allows the prosecution of such crimes, to be commenced any time prior to the victim's 40th birthday. (§ 801.1, subd. (a).)
Based on the above described legislative changes to the statute of limitations period, at the time Ornelas committed the acts charged in count 7 (Mar. 4 to June 3, 2002), the statute of limitations was 10 years and would expire during the period of March 4 to June 3, 2012. In 2006, while that statute of limitations was running against Ornelas, the statute of limitations period was extended to any time prior to the victim's 28th birthday. The charges here were filed prior to the victim's 28th birthday, as victim turns 28 years old in 2022. Accordingly, the charges were filed within the applicable statute of limitations.
II. The Ex Post Facto Clause and Extensions of the Statute of Limitations Period
Ornelas contends that the Legislature's extension of the statute of limitations to crimes committed before the statute of limitations period was enacted was a violation of ex post facto principles. The argument relies on the constitutional prohibition against laws with retroactive application to events occurring before their enactment and that disadvantage the offender by altering the definition of criminal conduct or increasing the punishment for a crime. (People v. Trujeque (2015) 61 Cal.4th 227, 256; People v. Rojas (2015) 237 Cal.App.4th 1298, 1306.)
For a statute of limitations to violate the ex post facto clause, it must: (a) punish as a crime an act previously committed that was innocent when done; (b) make the punishment for a crime more burdensome after its commission; or (c) deprive one charged with crime of any defense available according to law at the time the act was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42.) A statute violates the ex post facto clause if it either revives an expired criminal prosecution by retroactively extending the statute of limitations or reduces the quantum of proof necessary to convict. (Stogner v. California (2003) 539 U.S. 607, 615 (Stogner); United States v. Jenkins (9th Cir. 2011) 633 F.3d 788, 799, fn. 2.) However, a statutory change that extends an unexpired statute of limitations "while the limitations periods were still running on the claims" does not violate the Constitution. (Renderos v. Ryan (9th Cir. 2006) 469 F.3d 788, 795.)
In Stogner, the United States Supreme Court held that application of former section 803, subdivision (g), to revive a previously time-barred prosecution violated the ex post facto clause of the federal Constitution. (Stogner, supra, 539 U.S. at pp. 609-611, 632-633.) In reaching this conclusion, the high court stated that its decision "does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred." (Id. at p. 632.) Based on Stogner, California courts have held that the legislative extension of a statute of limitations to offenses committed before the previously applicable time period has expired does not violate ex post facto principles. (People v. Shaw (2009) 177 Cal.App.4th 92, 102; White, supra, 163 Cal.App.4th at p. 1583.) That is the case here. The previous 10-year statute of limitations applicable to Ornelas had not expired when the Legislature extended it in 2006 to a victim's 28th birthday.
Finally, the application of former section 801.1, subdivision (a) to this case does not "threaten[] the kinds of harm that ... the Ex Post Facto Clause seeks to avoid." (Stogner, supra, 539 U.S. at p. 611, italics omitted.) There is no manifest injustice here because there was no "retroactive effect[]," as the original statute of limitations period had not yet expired. (Ibid.) For the same reason, Ornelas cannot claim prejudice as he never became "'safe from ... pursuit'" because he had notice and "'fair warning'" in 2006 that even though the 10-year statute of limitations period would expire in 2012, he could still be prosecuted under the new limitations period enacted under section 801.1, subdivision (a). The charged acts relevant to count 7 were committed within three months after the original statute of limitations period expired. Moreover, six days of the time period in which the charged criminal conduct was alleged fell within the original 10-year statute of limitations period. Based on victim's testimony that she was subject to nearly continuous abuse, it is possible the prosecution presented sufficient evidence to convict Ornelas of count 7 based on actions occurring during the original statute of limitations period. The extension of the statute of limitations period here did not create "'manifestly unjust and oppressive' retroactive effects." (Stogner, supra, at p. 611.)
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SNAUFFER, J.