Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF114586A. Gary T. Friedman, Judge.
Lorilee M. Gates for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kelly Lebel, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Juan Francisco Rodriquez was convicted of three counts of lewd acts on children in violation of Penal Code section 288, subdivision (a). Because the lewd acts alleged in count 2 occurred in 1992 to 1995 and in count 3 in 1990 to 1994, appellant contends on appeal that his convictions on those two counts cannot stand because the statute of limitations expired. Respondent replies that the Legislature passed laws extending the statutory deadline, which took effect prior to expiration of the original period, therefore the filing of the criminal information was timely as to count 2. Respondent concedes that count 3 should be vacated because one of the statutory requirements for extension of the limitations period cannot be met as to count 3. As more fully explained herein, we conclude that respondent is correct. Therefore, we will vacate the conviction on count 3 but otherwise affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
On June 2, 2006, the district attorney’s office filed an information charging appellant in counts 1, 2 and 3 with committing lewd conduct in violation of section 288, subdivision (a). There were three different child victims and time periods involved. In count 1, the lewd acts were allegedly committed against K.R. between March 1, 2005 and January 4, 2006; in count 2, against J.S. between June 24, 1992 and June 23, 1995; and in count 3, against C.H. between July 26 1990 and July 25, 1994. As to counts 1, 2 and 3, a multiple victim enhancement was charged under section 667.61. Additionally, appellant was charged in count 4 with violation of section 288, subdivision (c)(1) (lewd conduct where child victim is under 14 of age and perpetrator is more than 10 years older) and in count 5 with violation of section 288a, subdivision (c)(2) (forcible oral copulation).
On November 8, 2006, appellant moved to withdraw his not guilty plea in order to file a demurrer to the information based on the statute of limitations. Respondent opposed, arguing the prosecution was timely under provisions allowing the case to be brought within one year after a report to a law enforcement agency by a person that was the victim of certain sexual crimes including violations of sections 288 and 288a. After considering the basis for the demurrer, the trial court denied appellant’s motion. An amended information was filed on February 26, 2007, to include allegations regarding the timeliness of the case for statute of limitation purposes. The new allegations included, as to counts 2 through 4, the fact that reports were made to a law enforcement agency on or about January 12, 2006 and January 31, 2006, regarding appellant’s conduct in violation of sections 288 and 288a against the minor victims.
The case proceeded to jury trial. The jury found appellant guilty on counts 1, 2 and 3, and found true the multiple victim enhancement. The jury acquitted appellant on counts 4 and 5. On July 26, 2007, the trial court sentenced appellant to a total of 10 years on counts 2 and 3 (i.e., the upper term of eight years on count 2, plus two years on count 3 based on one-third of the six-year midterm) and a consecutive term of 15 years to life on count 1. Appellant thereafter filed his notice of appeal.
STATEMENT OF FACTS
Prosecution Case
C.H. was the victim of the crimes alleged in counts 3 through 5. She was born in 1980 and was 26 years old at the time of trial. Appellant was her mother’s boyfriend of approximately 20 years. C.H. testified that when she was 11 or 12 years old, appellant groped her breasts, over and under her clothing, and touched her thighs and buttocks inside her pants. On one of the many occasions that appellant exposed himself to C.H., he came into her bedroom, blocked her ability to move and tried to force his penis into her mouth. C.H. testified that when she was 17 years old, appellant pulled down her pants and orally copulated her. C.H. told her mother about appellant’s conduct, but her mother did nothing. In January of 2006, C.H.’s seven-year-old daughter, K.R., disclosed that she had been molested by appellant. As soon as C.H. heard this, she called the police and reported her daughter’s molestation by appellant as well as her own.
K.R., the victim of the crime alleged in count 1, was eight years old at the time of trial. She said appellant was her grandfather. She testified that on one occasion, appellant put his hands inside her pants and touched her skin under her underwear on her side and buttocks and kept rubbing all over. K.R. told her mother, C.H., about the incident and was sad because “a man shouldn’t do that to a little girl.”
J.S., the victim of the crime alleged in count 2, was born in 1983 and was 23 years old at the time of trial. J.S. was the younger sister of C.H. J.S. testified that when she was nine years old, appellant often caressed her breasts under her training bra, rubbed her buttocks over and under her clothing, and he would make her “French kiss” him. On more than one occasion when appellant was exposing himself to J.S., appellant made her touch and kiss his erect penis. Appellant continued to molest J.S. in these ways until she was 11 years old.
Bakersfield Police Detective Scott Thatcher also testified for the prosecution’s case. He testified regarding his interview with C.H. and J.S. after the crimes were reported. Detective Thatcher also contacted and interviewed appellant on March 3, 2006. A tape recording of that interview was played for the jury. In that interview, appellant admitted touching K.R. on her buttocks inside her pants. He also admitted he knew it was wrong.
Defense Case
R.T. testified that she was appellant’s fiancée and the mother of C.H. and J.S. Although appellant was around the house a lot, he did not move in until 1999. She thought her daughters liked appellant, although they did not communicate with him -- they spoke only English and appellant spoke only Spanish. R.T. denied that her daughters ever reported to her that appellant molested them. Had she known, she would have reported him to the police. The only molestation of her daughters that R.T. was aware of was committed by her brother, Rufino, when C.H. was eight or nine years old and J.S. was five or six years old.
Prosecution Rebuttal
Detective Thatcher was called as a rebuttal witness for the prosecution. He testified that when he interviewed R.T., she initially denied that either of her daughters had reported the molestations, but later she admitted that they had told her of appellant touching them.
DISCUSSION
Appellant contends that his conviction on counts 2 and 3 for violation of section 288, subdivision (a), must be reversed because those counts were time-barred under the statute of limitations, and furthermore, that any attempt to revive such stale charges by the application of subsequent extensions of the limitations period would constitute an improper ex post facto law. We now consider these contentions.
I. Statute of Limitations and Ex Post Facto -- General Principles
The prosecution has the burden to prove that a crime occurred within the applicable statute of limitations. (People v. Linder (2006) 139 Cal.App.4th 75, 84.) However, because the statute of limitations is not an element of the offense, the prosecution need only demonstrate that the crime occurred within the applicable statute of limitations by a preponderance of evidence. (Id. at p. 85; People v. Smith (2002) 98 Cal.App.4th 1182, 1187.) “Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right ‘constitutes no part of the crime itself.’ [Citation.]” (People v. Linder, supra, at p. 84.)
The right to raise the statute of limitations on appeal may, in some circumstances, be forfeited, such as where the accusatory pleading sufficiently alleges the prosecution is timely and the issue is not properly raised in the trial court. (See People v. Thomas (2007) 146 Cal.App.4th 1278, 1288-1289.)
“[A] felony prosecution must be ‘commenced’ either three years (§ 801) or six years (§ 800) ‘after commission of the offense,’ depending upon the term of imprisonment statutorily available as punishment for the crime.” (People v. Frazer (1999) 21 Cal.4th 737, 743, fn. omitted; overruled on other grounds in Stogner v. California (2003) 539 U.S. 607, 610, 632-633 (Stogner).) Because the commission of lewd conduct against a minor in violation of section 288, subdivision (a), may be punished by an upper term of eight years, the applicable statute of limitations for that offense is six years. (§ 800; People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, 697.)
Legislation is sometimes enacted to extend an existing statute of limitations or to provide for an extension thereof under particular conditions. Such legislation may not be applied to revive an already expired statute of limitation in a criminal case, because that would constitute an ex post facto law. (Stogner, supra, 539 U.S. at pp. 618-619.) However, a statute that merely extends an unexpired limitations period is constitutionally permissible. “The Supreme Court made it clear … that the ex post facto clause ‘does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred.’” (People v. Vasquez (2004) 118 Cal.App.4th 501, 504, quoting Stogner, supra, at p. 633.) Thus, “the California Legislature may innovate by enacting a law providing for a supplemental period of prosecution following report by the victim and it is not an unconstitutional ex post facto law as applied to offenses for which there was no statute of limitations defense on the effective date of the new law.” (People v. Terry (2005) 127 Cal.App.4th 750, 776.) As relevant to the instant case, section 803, subdivision (f) (formerly subd. (g)) has been held to be a valid extension statute when applied to crimes that were not time-barred on its effective date of January 1, 1994. (People v. Terry, supra, at p. 776; People v. Vasquez, supra, at p. 504.)
This rule is now set forth in section 803.6, subdivision (b), which was added in 2004. (Stats. 2004, ch. 368, § 3.)
We now consider in greater detail the relevant statutes that provide for extension of the statute of limitations in cases (as here) of sexual crimes against minors.
II. Statutory Provisions Extending Limitation Period
“Beginning in the late 1980’s, lawmakers across the country became increasingly aware that young victims often delay 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. Hence, states which traditionally limited the time for prosecuting child molestation in a manner similar to sections 800 and 801 have started to substantially increase the time in which criminal charges can be filed after the assault occurred. Although they operate in a variety of ways, these new statutes generally apply to crimes committed both before and after their enactment. The new longer statutes of limitation are based on the apparent premise that both past and future sex crimes against children would otherwise go largely unpunished.” (People v. Frazer, supra, 21 Cal.4th at p. 744, fn. omitted.)
The California Legislature “took similar steps when it added subdivision (g) to section 803, effective January 1, 1994. (Stats. 1993, ch. 390, § 1.)” (People v. Frazer, supra, 21 Cal.4th at p. 744.) As originally enacted, subdivision (g) of section 803 provided that where specified sex offenses were committed against a minor victim, and where the limitation period in sections 800 or 801 had expired, a criminal complaint was nevertheless timely if filed “within one year of the date of a report to a law enforcement agency by … the victim of a crime.” (Stats. 1993, ch. 390, § 1.) “Under the literal terms of the 1994 law, the victim could be ‘any age’ at the time the report was made and the extended period in section 803 ([subd.] g) began to run.” (People v. Frazer, supra, at p. 745.) However, the extension only applied if “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.” (Stats. 1993, ch. 390, § 1; see People v. Frazer, supra, at p. 745, fn. 4.)
In 2005, section 803 was reorganized and the provisions previously contained in subdivision (g) were renumbered to subdivision (f). (Stats. 2005, ch. 479, § 3 [effective January 1, 2006]; People v. Thomas, supra, 146 Cal.App.4th at p. 1285, fn. 2.) In its essential provisions as highlighted above and relevant to this case, subdivision (f) of section 803 is substantially the same as former subdivision (g) of section 803. (See People v. Thomas, supra, at p. 1285, fn. 2; People v. Superior Court (Maldonado), supra, 157 Cal.App.4th at p. 701, fn. 6.) Thus, the core substantive provisions extending the statute of limitations under the described conditions have remained in force since originally taking effect in 1994.
The current language of section 803, subdivision (f), states in pertinent part as follows:
“(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.
“(3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.”
In addition to section 803, subdivision (f) (formerly subd. (g)), section 801.1 also sets forth an extension to the statute of limitations regarding enumerated sexual crimes against minors, including violation of section 288. Although prior wording of section 801.1 provided for a 10-year statute of limitations in such cases (see, e.g., Stats. 2004, ch. 368, § 1), the current version of section 801.1 which took effect on January 1, 2006 (see Stats. 2005, ch. 479, § 2) allows such cases to be prosecuted at any time before the victim’s 28th birthday (§ 801.1, subd. (a)). If subdivision (a) of section 801.1 does not apply, then such cases must be prosecuted within 10 years after commission of the offense (§ 801.1, subd. (b)).
Respondent acknowledges that section 801.1 cannot be utilized to extend the limitations period in this case unless section 801.1 took effect prior to expiration of the original six-year statute of limitation (see discussion in Part I above). For this reason, respondent abandons any reliance on section 801.1 as a potential basis for salvaging counts 2 and 3. Respondent concedes that although it was hypothetically possible the original six-year statute had not expired when section 801.1 (or its predecessor) became operative, respondent failed to meet its burden of proof on this issue. Respondent’s concession is correct. Based on the time frames alleged in counts 2 and 3, it appears the original six-year statute of limitations expired, or may have expired, before the limitations extension provided in section 801.1 or its predecessor statute ever took effect. Moreover, the jury was not instructed that it could only convict appellant based on acts occurring within a relatively narrow time frame that was within the statute of limitations. (See People v. Angel (1999) 70 Cal.App.4th 1141, 1147.) Under these circumstances, we agree that the applicability of the statute of limitation extension set forth in section 801.1 or the predecessor thereof was not established in accordance with the prosecution’s burden of proof. (See fn. 4 ante; People v. Linder, supra, 139 Cal.App.4th at p. 84 [the prosecution has the burden to prove that a crime occurred within the applicable statute of limitations].) For these reasons and because respondent has abandoned any reliance on section 801.1, we conclude that section 801.1 does not provide a basis for extending the statute of limitations in this case.
Before it was reenacted and renumbered as section 801.1, the 10-year statute of limitation contained in the earlier version of section 801.1 was previously set forth in section 803, subdivision (h), and before that in section 803, subdivision (i), first taking effect on January 1, 2001. (Stats. 2000, ch. 235, § 1; Stats. 2001, ch. 235, § 1.) Thus, effective as of January 1, 2001, the original six-year statute of limitations was extended to 10 years for the enumerated sexual crimes against minors. The difficulty here is that by January 1, 2001, the original six-year statute of limitations had already expired as to the acts in count 3 since they allegedly occurred between July 26, 1990 and July 25, 1994. Since the acts in count 2 allegedly occurred sometime between June 24, 1992 and June 23, 1995, the question of whether the original six-year statute had already expired as to count 2 when the new law took effect on January 1, 2001 depended on whether any of the lewd acts alleged therein occurred in the narrow time window from January 1, 1995 to June 23, 1995.
Accordingly, the statute of limitations issue before us depends solely on whether counts 2 and 3 were properly commenced pursuant to section 803, subdivision (f). We now turn to that question.
If the original six-year statute of limitations was extended pursuant to section 803, subdivision (f), that extension may allow section 801.1 to apply by “piggyback” as well. Assuming that is the case, it would merely highlight that the statute of limitations issue in this case hinges on compliance with section 803, subdivision (f).
III. Whether Prosecution of Counts 2 and 3 Was Timely Under Section 803, Subdivision (f)
As noted above, count 2 charged a violation of section 288, subdivision (a), based on acts against J.S. that allegedly occurred between June 24, 1992 and June 23, 1995. Count 3 charged a violation of section 288, subdivision (a), based on acts against C.H. that allegedly occurred between July 26, 1990 and July 25, 1994. Since the original information was not filed until June 2, 2006, which was well beyond the six-year period set forth in section 800, the prosecution of counts 2 and 3 was permissible only if a statute was enacted that extended the limitations period and the extension statute was in effect before the six-year period expired. As discussed previously, the provisions of section 803, subdivision (f) (formerly subd. (g)) have been in effect since 1994, which was long before the original six-year statute expired regarding the acts alleged in counts 2 and 3. Therefore, to the extent that the statutory conditions for applicability of section 803, subdivision (f), have been adequately established concerning such counts, they are not time-barred. We now consider whether those statutory conditions were in fact satisfied as to counts 2 and 3, respectively.
A. Count 2
A criminal prosecution is timely under section 803, subdivision (f), if the criminal complaint is filed “within one year of the date of a report to a California law enforcement agency” by the victim of certain sexual crimes, including violation of section 288. (§ 803, subd. (f)(1).) However, the extension only applies if “the crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual” (§ 803, subd. (f)(2)(B)), and there is independent evidence that “clearly and convincingly corroborate the victim’s allegation” (§ 803, subd. (f)(2)(C)).
As to count 2, a report was made by J.S. to law enforcement on January 31, 2006. Thus, as to count 2, the information filed on June 2, 2006 was timely if the other requirements were satisfied -- i.e., that the acts involved substantial sexual conduct and were sufficiently corroborated by independent evidence.
Under section 1203.066, subdivision (b), the term “‘substantial sexual conduct’” means “penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” J.S. gave fairly detailed testimony that beginning when she was nine years old, appellant often caressed her breasts, rubbed her buttocks, made her “French kiss” him, and on more than one occasion while appellant was exposing himself to J.S., appellant made her touch and kiss his erect penis. We conclude that appellant’s conduct of making J.S. engage in acts of touching and kissing his erect penis constituted “substantial sexual conduct” under the statutory definition. (See People v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243 [oral copulation includes any touching of mouth to sexual organ]; People v. Terry, supra, 127 Cal.App.4th at pp. 771-772 [the phrase “‘masturbation that is not mutual’” in section 803, former subdivision (g) (now subd. (f)) excludes only self-masturbation; touching of genitals in violation of section 288, subdivision (a) qualifies as masturbation and is substantial sexual conduct].)
Appellant objects that we cannot be sure of which act or acts the jury found that he committed. Not so. On this record and in light of the manner the case was argued to the jury, we agree with respondent that the jury either believed this victim or it did not. All of the lewd acts against J.S. were emphasized as a whole in closing argument and no portion of her testimony was singled out by either side. There was no reason apparent from the facts or argument for the jury to believe only some of J.S.’s testimony. We conclude the jury believed and credited all of the testimony of J.S. (See People v. Smith, supra, 98 Cal.App.4th at p. 1190.) Thus, the requirement of substantial sexual conduct was satisfied as to count 2.
At closing argument, the prosecutor summarized J.S.’s testimony that while she was 9 to 11 years of age, and while she was living at certain addresses, appellant put his hands in her pants, French-kissed her, rubbed her buttocks, made J.S. touch his penis and he made J.S. kiss his penis. J.S.’s entire testimony was emphasized as a whole, albeit the jury was told it must unanimously agree on at least one act. No reason was asserted by the defense attorney to disbelieve a portion of J.S.’s testimony. Rather, the defense attorney argued that all of J.S.’s testimony was untrustworthy and should not be believed. We note a different approach was taken by the defense attorney as to the testimony of C.H., in which reasons were presented to doubt or disbelieve certain portions of C.H.’s testimony (e.g., the oral copulation charge).
Finally, it is plain that count 2 was corroborated by independent evidence of a clear and convincing nature. The testimony of the other two victims, C.H. and K.R., who were part of the same extended family to which appellant had access, and who described the occurrence of remarkably similar sexual molestations by appellant that began when the victims were at approximately the same ages, clearly provided the required corroborating evidence. “Evidence of other sexual offenses committed by a defendant is uniquely probative to the former section 803, subdivision (g) corroboration determination.” (People v. Thomas, supra, 146 Cal.App.4th at p. 1290; see also People v. Mabini (2001) 92 Cal.App.4th 654, 659; People v. Yovanov (1999) 69 Cal.App.4th 392, 403-404.)
The corroboration does not have to be sufficient to support a conviction. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 683.)
We conclude that count 2 complied with all the requirements of section 803, subdivision (f), and therefore the prosecution of count 2 was timely and was not barred by the statute of limitations.
B. Count 3
Appellant contends as to count 3 that the requirement of “‘substantial sexual conduct’” is not met for purposes of section 803, subdivision (f). We agree. In closing argument, the prosecutor specified that the conduct involved in count 3 was appellant’s acts against C.H. of rubbing her buttocks and breasts. It is clear from this description that count 3 did not involve “‘substantial sexual conduct’” as defined in section 1203.066, subdivision (b), and therefore the extension of the statute of limitations set forth in section 803, subdivision (f) was inapplicable. Accordingly, we conclude that the statute of limitations expired as to count 3, and hence the conviction in count 3 must be vacated.
IV. Effect on Appellant’s Sentence
Because we affirm the conviction of appellant in count 2, the multiple victim provision of section 667.61, subdivision (b), still applies. Thus, the conviction in count 1 of 15 years to life remains the correct sentence. We vacate the conviction in count 3. The determinate term of eight years imposed against appellant on count 2 remains intact.
DISPOSITION
The conviction in count 3 is vacated and the superior court clerk is directed to correct the abstract of judgment by deleting the conviction in count 3 and the two-year sentence imposed thereon. In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J. Dawson, J.