Opinion
F040185.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. CALVIN ALBERT STEVENS, Defendant and Appellant.
Rudolph Kraft for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Raymond L. Brosterous and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Calvin Albert Stevens, was convicted of one count of continuous sexual abuse of a minor (Pen. Code, § 288.5) and one count of lewd and lascivious acts against the same minor (§ 288, subd. (a)). The trial court subsequently sentenced appellant to a total term of 16 years.
All further references are to the Penal Code unless otherwise indicated.
Appellants convictions related to a single victim, T.S. The jury acquitted appellant of oral copulation (§ 228a, subd. (f)), sodomy (§ 286, subd. (c)(1)), statutory rape (§ 261.5, subd. (d)) and sexual penetration (§ 289, subd. (e)) relating to T.S.. Appellant had also been charged with a total of five other sex offenses against two additional victims, Arianne H. and J.S.; however, the jury acquitted appellant of these remaining charges.
On appeal, appellant contends that his convictions must be reversed because they are barred by the statue of limitations. We agree that the prosecution initiated the charges beyond the applicable statute of limitations and that the defect was apparent on the face of the complaint. However, we further conclude that the tolling provisions of section 803, subdivision (g), apply to the case, thus the prosecution is not absolutely barred. Despite the applicability of section 803, subdivision (g), the jury was never instructed regarding its requirements. We conclude trial counsels failure to raise the statute of limitations as a defense and his further failure to request instructions regarding section 803, subdivision (g), constituted prejudicial ineffective assistance of counsel. Thus, we will reverse appellants convictions and remand the cause for a new trial.
Because we will reverse appellants convictions based on the statute of limitations, we need not address appellants remaining claims.
FACTS
J.S. is appellants four-year-old grandson. Appellants son is J.S.s father. While visiting his grandmother, Debra S., J.S. stated that appellant had touched his penis and his "butt." Debra immediately called the police and reported the incident. Jennifer, J.S.s mother, testified that, when she became aware of her sons allegation, she told the officers to talk to T.S. because T.S. had lived with appellant for a long time.
The jury acquitted appellant of all offenses relating to J.S.
T.S. was born on August 11, 1981. She testified that she moved into appellants home when she was nine years old and in the fourth grade, at the time her mother became engaged to appellant. She and her mother moved out the following year. During the time lived with appellant, he became a father figure to her and she continued to see him frequently after she and her mother moved from his house. T.S. ultimately moved back in with appellant when she was in the eighth grade and moved out permanently approximately two weeks prior to her 16th birthday.
When T.S. was 10 years old and in the fifth grade, appellant began molesting her. One evening T.S. went to bed and later awoke in the living room with appellant inserting his penis into her mouth. She stated that, when she awoke, she rolled over and pretended like she was asleep. T.S. explained that she orally copulated appellant approximately 20 times before she was 14 years old. The instances usually occurred when she was in the car with appellant during a trip. She would fall asleep in the front seat with her head on appellants lap and wake up with appellant placing his penis into her mouth. T.S. also explained that appellant would provide her with alcohol at his house and that she would sometimes wake up after drinking to find appellant attempting to place his penis in her mouth.
The jury acquitted appellant of oral copulation.
When T.S. was 12 years old and in the seventh grade, she recalled having sexual intercourse with appellant. She and appellant had been playing cards and appellant told her if she won he would give her $500; however, if he won she would have to do what he told her to do. Thinking she had a winning hand, T.S. accepted the bet. T.S. lost the hand and appellant initially acted like he was going to have her clean in order to pay off the debt. After T.S. washed the windows, appellant told her he wanted to have sex with her and she complied. After this incident, appellant had sex with her more than 10 times before she turned 14.
The jury acquitted appellant of statutory rape.
T.S. also testified that appellant would have sex with her once to twice a week after the first incident.
T.S. also recounted an instance when she was 13 or 14 years old and in the eighth or ninth grade, at which time appellant attempted to have anal intercourse with her in the shower. She stated that this occurred once or twice. She also recounted an instance when she was in the fifth or sixth grade when appellant digitally penetrated her. T.S. testified that appellant did this more than once; however, she did not remember how often it occurred.
The jury acquitted appellant of engaging in sodomy with T.S..
The jury acquitted appellant of sexual penetration.
T.S. testified that she had told her friend Erica about the molestations when she was 15 years old. Erica also testified and stated that T.S. had told her she had been molested.
A number of other young girls also either lived at or stayed frequently at appellants house for short periods of time. Summer S. lived with appellant for a short time in 1992 when she was in the eighth grade. Arianne H., a friend of Summer, also lived at appellants house for a short time when she was in the 10th grade. When she was not living at the house, Summer frequently spent the night. Erica S., who was divorcing appellants son at the time of trial, testified that she lived with appellant for approximately six weeks in 1999. Nicole W., a friend of T.S., also spent the night at appellants house on a number of occasions. The girls testified that appellant provided them with alcohol when they visited his house.
Nicole W. recalled one occasion when appellant attempted to molest her while she was spending the night. Nicole was sleeping on the couch and awoke when she felt appellant pulling her hand toward his crotch. She attempted to pull away but he grabbed her hand again and brushed up against her breast. Nicole said "no" and rolled over, and appellant went to lie on the floor next to T.S.. Nicole relayed the incident to Erica, who was also staying overnight at appellants house. Erica told T.S. about the incident and T.S. appeared angry. Then Erica and Nicole left the house.
Arianne also testified that appellant had molested her when she lived with him. On the first occasion, she awoke and found appellant attempting to place his penis inside of her mouth. Appellant then took her to his room and placed her on the bed and began kissing her legs and thighs. When appellant came close to her vagina, Arianne began crying and appellant stopped. On another occasion, Arianne recalled spending the night at appellants house after drinking with her friends. When she awoke, she was wearing different clothes than she had gone to bed in. She had also seen appellant run out of her room naked. At some point she spoke to appellant about the incident and he said that he had tasted her and she tasted "so sweet." On another occasion, appellant had told her he had sex with her when she was asleep. Arianne testified that while she was living with appellant he told her he would let her have more freedom if she acted like his wife.
The jury acquitted appellant of all counts relating to Arianne.
Summer testified that Arianne had told her about being molested by appellant. She recalled Arianne stating that she had orally copulated appellant.
Dr. Susan Streeter testified regarding child accommodation abuse syndrome. She explained that it was not uncommon for children not to report instances of sexual abuse. In addition, she explained that false reporting of sexual abuse was uncommon outside of custody disputes.
Defense Case
Matthew Stevens, appellants son, testified that he did not witness any inappropriate behavior between appellant and T.S.. He noted that Arianne, Summer, Erica, Nicole and Jennifer were regular visitors at appellants house and that the girls would sneak alcohol from appellants house when they visited. The girls would have a party at appellants house when he was not home. Matthew never witnessed appellant giving the girls alcohol. Regarding appellants character, Matthew described appellant as an honest person and not prone to commit the charged offenses.
Daniel Stevens also testified that he did not believe the allegations against his father and stated that he had never witnessed his father engage in any inappropriate behavior.
Appellant testified in his own defense. He denied all of the charges against him stating that he never engaged in inappropriate behavior with any of the children. Appellant admitted to buying alcohol for T.S. on approximately 10 occasions. He did so because T.S. was using drugs at the time and he thought it would be better for her to drink at home rather than to go out. Appellant admitted that providing T.S. with alcohol was not a good decision.
DISCUSSION
Appellants convictions must be reversed due to trial counsels failure to request instructions regarding the statute of limitations.
Appellant makes two related arguments regarding the statue of limitations: (1) that the charged crimes fell outside of the limitations period; and (2) to the extent that a tolling provision applied to his case, his attorney was ineffective for failing to request instructions regarding the tolling provision. As we will explain, the complaint failed to demonstrate, and the prosecution failed to prove, that the crimes took place during the applicable limitations period. As such, appellants convictions are barred unless a tolling provision applies. Section 803, subdivision (g), provides for the prosecution of certain sex crimes after the otherwise applicable statute of limitations has expired if certain conditions are met. We conclude that the provisions of section 803, subdivision (g), are present in this case; therefore, appellant could properly be tried for his crimes. However, trial counsel failed to raise the issue of the statute of limitations at trial, and further failed to request instructions regarding section 803, subdivision (g). We find these omissions deprived appellant of effective assistance of counsel; consequently, we will reverse appellants convictions and remand the cause for a new trial.
A. The charges were not brought within the statute of limitations.
Initially we note that appellant failed to raise the statute of limitations in the trial court. However, our Supreme Court has held that a defendant may raise the statute of limitations at any time where the charging document indicates on its face that the action is time-barred. (People v. Williams (1999) 21 Cal.4th 335, 341.) As we shall explain, the information in this case indicated that the charges were time-barred; thus, appellant is not prevented from raising the statute of limitations for the first time on appeal.
Appellant was charged with violating section 288 and 288.5 "[o]n or about the years of 1991 through 1994." Section 800 provides that prosecution for an offense punishable by eight or more years in the state prison must commence within six years of the commission of the offense. Both section 288 and 288.5 provide for a maximum punishment of at least eight years, thus each crime carried a six-year statute of limitations. (§§ 800; 805, subd. (a).) Consequently, in order to be timely the prosecution must have commenced prior to the end of the year 2000, as appellant was charged with a crime that occurred "through 1994."
We note that section 288.5, subdivision (c), prohibits the prosecution from charging a defendant with violations of both sections 288.5 and 288 which encompass the same time period and the same victim unless the charges are made in the alternative.
Section 804 provides that a prosecution is commenced when any of the following occurs:
"(a) An indictment or information is filed.
"(b) A complaint is filed charging a misdemeanor or infraction.
"(c) A case is certified to the superior court.
"(d) An 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."
This court has taken judicial notice of the fact that the arrest warrant was issued in this case on July 20, 2001. Pursuant to section 804, subdivision (d), the statute of limitations had not expired for any offense occurring after July 20, 1995, six years prior to the issuance of the arrest warrant. Thus, based upon the face of the information (the crime charged occurred "through 1994"), we must agree with appellants contention that the statute of limitations had expired for the charged offenses.
The case was certified to superior court on August 17, 2001, and the information was filed on August 30, 2001.
Respondent contends that despite the allegations in the information, the evidence supports a finding that the crimes were committed within the applicable time period. For the reasons that follow, we reject respondents arguments.
In the present case, the earliest the prosecution commenced was July 20, 2001, the date the arrest warrant issued. Therefore, any offense completed before July 20, 1995, was time-barred. The last day appellant could have committed an act that would qualify as a crime under section 288 or 288.5 was August 10, 1995, the day before the victims 14th birthday, as both crimes require the victim to be under 14 years of age. At trial, the victim testified that appellant committed numerous acts commencing in 1991 or 1992 when she was in fifth grade and ending approximately two weeks prior to her 16th birthday in 1997. Specifically, she testified that she orally copulated appellant approximately 20 times prior to her 14th birthday, and she had sexual intercourse with appellant more than 10 times prior to her 14th birthday. No specific evidence was adduced at trial indicating that appellant committed any of the lewd acts with the victim between July 20, 1995, and August 10, 1995, although the jury could infer from the evidence that such an act did take place in that time period. The jury was not instructed regarding the statute of limitations.
According to the victim the first instance of sexual intercourse occurred when she was in at least the seventh grade, which would have begun in 1993.
It is well settled the prosecution bears the burden to prove, by a preponderance of the evidence, that the prosecution began within the statutorily prescribed time period. (People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27; People v. Lopez (1997) 52 Cal.App.4th 233, 248.) This court has held that the prosecution fails to meet this burden where the evidence allows for a finding that the offense occurred either within or beyond the statute of limitations and where the jury is not instructed regarding the issue. (People v. Angel (1999) 70 Cal.App.4th 1141, 1147; People v. Gordon (1985) 165 Cal.App.3d 839, 852.) As the evidence allowed the jury to find that the offenses occurred outside of the limitations period and the jury was not instructed regarding the statute of limitations, we conclude that appellants crimes were time-barred unless the statute of limitations was tolled.
We are aware that Sixth District in People v. Smith (2002) 98 Cal.App.4th 1182, 1192, disagreed with our decision in Angel; however, we find Smith inapposite. In Smith, the court determined that, based upon the evidence adduced at trial, the jury necessarily found that the crimes occurred within the applicable statute of limitations, or the crimes occurred beyond the limitations period but were not time-barred due to the tolling provision set forth in section 803, subdivision (f). (Id. at pp. 1191-1192.) As we shall explain, although a tolling provision may likewise apply in this case, the failure to instruct the jury regarding that provision constituted prejudicial error. Therefore, Smith does not apply to the facts of this case.
B. The tolling provision of section 803, subdivision (g), applies to appellants crimes.
Section 803 outlines various tolling provisions. The question here is whether section 803, subdivision (g), is applicable to this case. That sections permits the filing of a section 288 or 288.5 charge where (1) the six-year statute of limitations has expired; (2) the complaint is filed within one year of the victim reporting the crime to law enforcement; (3) the crime involves "substantial sexual conduct"; and (4) "there is independent evidence that clearly and convincingly corroborates the victims allegation." (§ 803, subds. (g)(1), (2)(A) & (B).) "Substantial sexual conduct" is defined as "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." (§ 1203.066, subd. (b).)
As we have already explained, the six-year statute of limitations in this case had expired prior to the commencement of the prosecution. Furthermore, the evidence adduced at trial could lead to the inference that the complaint was filed within one year of the victim reporting the crimes to law enforcement and the testimony established that the crimes involved substantial sexual conduct. Thus, the first three elements of section 803, subdivision (g), were met. The question here is whether there is independent evidence that clearly and convincingly corroborates the victims allegation.
The testimony at trial established that the allegations appellant molested the victims were reported to law enforcement within one year of the trial date.
In People v. Yovanov (1999) 69 Cal.App.4th 392, 404, the court held that evidence of uncharged sexual misconduct "can be used to corroborate a victims allegation of sexual abuse under section 803(g)." The probative value of this evidence, the court explained, depends upon various considerations, "such as the frequency of the uncharged acts and their similarity and temporal proximity to the charged acts." (Ibid.) Yovanov did not decide whether such evidence, standing alone, could constitute clear and convincing corroborative evidence. People v. Mabini (2001) 92 Cal.App.4th 654, 659, however, confronted the issue and concluded a defendants sexual misconduct against an uncharged victim could, standing alone, constitute sufficient corroboration pursuant to section 803, subdivision (g).
At trial, evidence was produced that appellant engaged in sexual misconduct with two other charged victims, J.S. and Arianne, and that he had attempted to molest an uncharged victim, Nicole. In addition, Erica testified that she had seen appellant near the victim one evening while she was asleep on the couch, and that she had heard appellant breathing hard and it sounded like he was ejaculating. Furthermore, there was evidence that the victim had told a friend about the molestations. This evidence was certainly sufficient to support a finding that the victims claim of abuse was clearly and convincingly corroborated by independent evidence. Therefore, we conclude that section 803, subdivision (g), is applicable to appellants crime.
We express no opinion regarding whether appellants acquittal of the charges relating to J.S. and Arianne bar the use of those allegations as corroborative evidence pursuant to section 803, subdivision (g).
The United States Supreme Court recently held that section 803, subdivision (g), as applied to crimes that were already time-barred when the section was enacted, violates ex post facto principles. (Stogner v. California (2003) ____ U.S. ____ .) The holding in Stogner is limited to cases in which the previous statute of limitations had already run when the new statute of limitations was "enacted." (Id . at pp. 2449-2451, 2453.) Stogner acknowledged that "courts have upheld extensions of unexpired statutes of limitations ...." (Id . at p. 2453; see, e.g., Harris v. Superior Court (1988) 201 Cal.App.3d 624, 630, fn. 3; People v. Lewis (1986) 180 Cal.App.3d 816, 823; People v. Masry (1986) 179 Cal.App.3d 1149, 1152; People v. Sample (1984) 161 Cal.App.3d 1053, 1057.) Section 803, subdivision (g), became effective in 1994, well before the statute of limitations had run on appellants offense; thus, Stogner has no application to this case.
C. Counsel was ineffective for failing to request instructions on section 805, subdivision (g).
Although we have concluded that the tolling provision in section 803, subdivision (g), applies to appellant, we must further determine whether appellants trial counsel was ineffective for failing to request jury instructions regarding that section. In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate that trial counsels performance fell below the standard of reasonableness and that there is a reasonable probability the result would have been more favorable had his counsel provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Bolin (1998) 18 Cal.4th 297, 333.) Appellant must also show that the omission was not the result of a reasonable tactical decision. (People v. Gurule (2002) 28 Cal.4th 557, 611.)
We have already concluded that appellants convictions were barred by the statute of limitations provided in section 800. In addition, we have determined that the tolling provision provided in section 803, subdivision (g), applies to this case. Thus, the question becomes whether trial counsel was ineffective for failing to raise the issue in the trial court and for failing to request that the jury be instructed pursuant to section 803, subdivision (g). We answer the question in the affirmative.
There can be no dispute that trial counsel fell below the standard of reasonableness by failing to raise the statute of limitations as a complete defense to appellants crimes in the trial court. The statue of limitations is a jurisdictional requirement (People v. McGee (1934) 1 Cal.2d 611, 613, overruled on other grounds by Cowan v. Superior Court (1996) 14 Cal.4th 367), and it was clear on the face of the complaint that appellants crimes were time-barred. As the statute of limitations would provide appellant with a complete defense, his counsel could have no tactical reason for failing to raise the issue.
To the extent that counsel may have believed that section 803, subdivision (g), would apply to appellants crime, counsel could have no tactical reason not to request jury instructions on the issue. Where the statute of limitations is at issue, the question is one of fact for the jury to consider. (People v. Smith (2002) 98 Cal.App.4th 1182, 1192.)
Having the jury instructed that they had to find an additional element in order to convict could only have benefited him; therefore, we conclude appellants counsel was ineffective for failing to request the instructions.
We must now determine whether counsels conduct prejudiced appellant. In order to establish prejudice, the record must demonstrate "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) Given the state of the evidence and the verdicts returned by the jury in this case, we conclude there is a reasonable probability the jury would have returned a more favorable verdict had they been instructed regarding the corroboration requirement of section 803, subdivision (g).
Although there was independent evidence sufficient to corroborate the victims allegations in this case, we are unable to determine from the record whether the jury found such evidence persuasive. Much of the corroborative evidence consisted of claims that appellant had molested Arianne and J.S.. However, the jury acquitted appellant of the offenses relating to Arianne and J.S., indicating that they disbelieved that evidence. While the jury did convict appellant of two offenses relating to T.S., suggesting they believed her testimony on those points, we note that the jury acquitted appellant of four additional charges regarding T.S., suggesting they did not believe her testimony in its entirety.
Furthermore, the jury was instructed pursuant to CALJIC No. 2.27 that testimony by one witness that is believed by the trier of fact is sufficient to prove that fact. Therefore, the jury in this case could have based its conviction of appellant on T.S.s testimony alone. However, section 803, subdivision (g), requires independent evidence that clearly and convincingly corroborates the victims allegation. Although evidence was admitted which would satisfy the corroboration element, the jurys verdicts indicate that the jurors did not believe the additional corroborative evidence relating to the other victims. Additional evidence was introduced at trial, which, if believed, indicated that appellant had also attempted to molest Nicole. In addition, Erica testified that she had witnessed what appeared to be an instance of appellant molesting T.S.. While this evidence could have corroborated T.S.s testimony, it is impossible to determine whether the jury believed this evidence. As we have noted, the jury acquitted appellant of four of the six charged offenses against T.S., indicating that they did not believe all of the prosecutions evidence. Based on this record, we conclude that had the jury been instructed regarding the requirements of section 803, subdivision (g), there is a reasonable probability that the jury would have rendered a more favorable verdict. Thus, appellants convictions must be reversed and the cause must be remanded for a new trial.
The jury was instructed pursuant to CALJIC No. 2.50.01 that if it found, by a preponderance of the evidence, appellant committed a prior uncharged sexual offense, it may infer appellant had a disposition to commit the charged offenses. However, section 803, subdivision (g), requires additional evidence to clearly and convincingly corroborate the victims allegations.
DISPOSITION
The judgment is reversed.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.