Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA067896, Dorothy L. Shubin, Judge.
California Legal Team and Okorie C. Okorocha for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Miguel Angel Pinzon appeals from the judgment entered following his no contest plea to one count of committing oral copulation with a person under the age of 16 years, contending that, by reviving his time-barred prosecution, Penal Code section 803, subdivision (f), violates federal and state constitutional guarantees against ex post facto laws. We affirm.
Statutory references are to the Penal Code.
Both the California and United States Constitutions prohibit ex post facto laws. (Cal. Const., art. 1, § 9; U.S. Const., art. 1, § 10.)
FACTUAL AND PROCEDURAL BACKGROUND
Pinzon was charged in an eight-count information filed on May 9, 2007 with one count of oral copulation with a person under the age of 16 years (§ 288a, subd. (b)(2)), six counts of oral copulation with a person under the age of 18 years (§ 288a, subd. (b)(1)) and one count of committing a lewd act upon a child (§ 288, subd. (c)(1)). At Pinzon’s preliminary hearing the victim, M.R., testified to ongoing sexual abuse by Pinzon between March 5, 1999 and March 4, 2001; during that time, M.R. was 15 and 16 years old. M.R. did not report the offenses to authorities until early August 2006 when she was 22 years old. When the crimes occurred, the applicable limitation period was three years from the commission of the offense and would ordinarily have expired no later than March 5, 2004. (§ 801.) However, the information specifically alleged the crimes were charged within one year of the victim’s report of the offenses to a law enforcement agency within the meaning of section 803, subdivision (f).
The information was subsequently amended with no change to the charged offenses.
Section 801 states: “Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
After this court summarily denied Pinzon’s petition for writ of mandate challenging his prosecution as time-barred, Pinzon pleaded no contest to one count of committing oral copulation with a person under the age of 16 years. Pursuant to the terms of his plea agreement, Pinzon was sentenced to the middle term of two years in state prison; and the remaining charges were dismissed. The trial court issued a certificate of probable cause, permitting Pinzon to renew his challenge to his prosecution as time-barred on appeal.
CONTENTION
Pinzon contends, as applicable to his case, section 803, subdivision (f), was enacted after the expiration of the three-year limitation period for the crimes with which he was charged and under Stogner v. California (2003) 539 U.S. 607 [123 S.Ct. 2446, 156 L.Ed.2d 544] (Stogner) impermissibly resurrected an otherwise time-barred prosecution in violation of the ex post facto prohibitions in the federal and California Constitutions.
DISCUSSION
1. The Applicable Law
a. Section 803, subdivisions (f) and (g)
Pinzon’s crimes against M.R. were committed between March 5, 1999 and March 4, 2001. He contends the statute of limitations for these offenses expired on March 4, 2004 (§ 801), and the trial court was without jurisdiction to convict him for violating section 288a, subdivision (b)(2).
At the time he was charged in 2007, section 803, subdivision (f), provided in part, as it does now, “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object. [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.”
Pinzon does not dispute, if valid, section 803, subdivision (f), is applicable to his case and its various requirements have been satisfied. Pinzon’s crimes involved substantial sexual contact; there was independent evidence that clearly and convincingly corroborated M.R.’s allegations; and the case was initiated within one year of M.R.’s August 1, 2006 report of the crimes to the Santa Barbara Police Department. (The preliminary hearing was held on April 24, 2007; the information was filed on May 9, 2007.) Nonetheless, emphasizing that the current version of section 803, subdivision (f), was not adopted until 2005 (see Stats. 2005, ch. 2, § 3, effective Feb. 28, 2005), Pinzon argues application of the statute’s extended limitations period to him constitutes an unconstitutional revival statute that violates the prohibition against ex post facto laws.
As originally drafted, section 803, subdivision (f), effective in 1990, provided “a criminal complaint may be filed within one year of the date of a report to a responsible adult or agency by a child under 17 years of age, that the child is a victim of a crime described in Sections 261, 286, 288, 288a, or 289. [¶] For purposes of this subdivision, a ‘responsible adult’ or ‘agency’ means a person or agency required to report pursuant to Section 11166. This subdivision shall only apply if: [¶] (1) The limitation period specified in Section 800 or 801 has expired, and [¶] (2) The defendant has committed at least one violation of Section 261, 286, 288, 288a, or 289, against the same victim within the limitation period specified for that crime in either Section 800 or 801.” (Stats. 1989, ch. 1312, § 1, pp. 5269-5270.)
Effective in 1994 section 803, subdivision (f), was amended to change the age of the reporting victim to “under 18 years of age” and to add to the list of enumerated sexual abuse offenses. (Stats. 1993, ch. 390, § 1, p. 2224.) At the same time section 803, subdivision (g), was enacted to extend the limitation period for certain sexual abuse offenses against a child victim when the initial report of the crimes occurred after the victim had reached adulthood. As originally adopted, subdivision (g) provided, “[A] criminal complaint may be filed within one year of the date of a report to a law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. This subdivision shall apply only if both of the following occur: [¶] (1) The limitation period specified in Section 800 or 801 has expired. [¶] (2) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation which is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim’s allegation. No evidence may be used to corroborate the victim’s allegation which would otherwise be inadmissible during trial. Independent evidence shall not include the opinions of mental health professionals.” (Stats. 1993, ch. 390, § 1, p. 2224.)
As enacted in 1994, these two subdivisions extending the time for prosecuting sex offenses against minors had different conditions for the delayed-reporting provisions to be triggered. Subdivision (f), the narrower provision, required the reporting victim to be a minor at the time the report was made and the alleged offender to have committed at least one, additional specified sexual abuse offense against the same victim within the applicable standard limitation period -- that is, with three years (§ 801) or six years (§ 800), of the victim’s report. Subdivision (g), the broader provision, allowed the report to be made by a victim of any age, so long as the specified sexual abuse offense occurred when the victim was a minor. Furthermore, subdivision (g) did not require the adult offender to have committed an additional, similar sexual abuse offense against the same victim within the limitation period. However, unlike subdivision (f), subdivision (g) required independent admissible evidence to corroborate the victim’s report and the reported offense to involve substantial sexual conduct. (See People v. Frazer (1999) 21 Cal.4th 737, 749, fn. 13, overruled on other grounds in Stogner, supra, 539 U.S. at pp. 649-650 [comparing § 803, subd. (f) & subd. (g)].) Notwithstanding their differences, as the Supreme Court explained, both subdivisions were intended to extend the otherwise expired standard limitation period for certain sexual abuse offenses committed against children, who “‘often delay in reporting sexual abuse because they are easily manipulated by offenders in positions of authority and trust, and because children have difficulty remembering the crime or facing the trauma it can cause.’” (Frazer, at p. 744, fn. omitted.)
Between 1997 and 2004 section 803, subdivisions (f) and (g), were amended several times in response to appellate court decisions “declining to apply section 803(g) in molestation cases that were time-barred before the law came into existence.” (People v. Frazer, supra, 21 Cal.4th at p. 747.) Virtually identical provisions were added to each subdivision expressly permitting “revival” and “retroactivity” based on delayed reporting. (See id. at pp. 745-749.) However, the core text of both subdivisions remained unchanged.
b. Stogner
In Stogner, supra, 539 U.S. 607 the United States Supreme Court held section 803, subdivision (g), as applied to the facts of that case, was an improper revival statute and, as such, violated the federal prohibition against ex post facto laws by permitting a prosecution for crimes as to which the limitations period had run prior to the adoption of the delayed-reporting statute. The defendant in Stogner had been charged with committing crimes between 1955 and 1973; and the generally applicable limitations period “had run 22 years or more before the present prosecution was brought” (id. at p. 610) -- well before the 1993 enactment of section 803, subdivision (g). “[A] law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.” (Stogner, at pp. 632-633.)
Nonetheless, distinguishing between a revival statute and an extension statute, the Supreme Court did not foreclose “the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred.” (Stogner, supra, 539 U.S. at p. 632.) California courts have determined “the only consequence of Stogner is that any enumerated crime must be committed or the limitations period in section 800 or 801 must expire after January 1, 1994 (the effective date of the statute), in order for the extended one-year period to apply.” (People v. Renderos (2003) 114 Cal.App.4th 961, 965; accord, People v. Vasquez (2004) 118 Cal.App.4th 501, 504-505; People v. Superior Court (German) (2004) 116 Cal.App.4th 1192, 1197.)
Following the Supreme Court’s decision in Stogner, supra, 539 U.S. 607, effective January 1, 2005 former section 803, subdivision (g), was amended to eliminate specific references to its retroactive application (Stats. 2004, ch. 368, § 2, p. 2693). Then, effective February 28, 2005 section 803 was repealed and reenacted by emergency legislation. (Stats. 2005, ch. 2, § 3 [repealed]; Stats. 2005, ch. 479, § 3 [reenacted]; see Historical and Statutory Notes, 50 West’s Ann. Pen. Code (2008) foll. § 803, pp. 271-272.) As reenacted, former subdivisions (f) and (g) were combined as new subdivision (f); former subdivision (h) became subdivision (g). As of February 28, 2005, subdivision (f), provided in part, as it does currently, that a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging, while a minor, the person was the victim of specified sexual abuse crimes, including oral copulation with a person under the age of 16 in violation of section 288a, provided the other statutory requirements for delayed reporting are satisfied.
2. Application of Section 803, Subdivision (f), in this Case Does Not Constitute the Revival of a Time-Barred Prosecution
Pinzon’s ex post facto argument rests on a fundamental distortion of the legislative history of section 803, subdivisions (f) and (g), and a basic misapprehension of the governing constitutional principles. Noting M.R. turned 18 years old in March 2004 when the three-year limitations period for his crimes -- committed between 1999 and 2001 -- would have normally expired, Pinzon argues he could not have been prosecuted under the then-existing version of section 803, subdivision (f), because M.R. was no longer a minor and there was no showing Pinzon had committed an additional sexual offense against her within the normal limitations period. Accordingly, any prosecution for those sex crimes would be time barred as of that date. No subsequent prosecution can be based on newly enacted section 803, subdivision (f), first effective on February 28, 2005, he then contends, without constituting an unconstitutional attempt to revive a time-barred prosecution, precluded by Stogner, supra, 539 U.S. 607.
Pinzon’s truncated version of the relevant legislative history, of course, omits any reference to former section 803, subdivision (g), adopted in 1994, which was in effect in March 2004 -- and continued to be in effect until it was reenacted as part of current section 803, subdivision (f) -- and permitted his prosecution through a date within one year of M.R.’s report of her sexual abuse by Pinzon to a California law enforcement agency. Pinzon was thus fully at risk for prosecution when the current version of section 803, subdivision (f), was adopted, effective February 28, 2005. At most, the newly redrafted subdivision (f) is an extension statute for Pinzon, not a revival statute, and is not in any respect invalid under Stogner, supra, 539 U.S. 607.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.