Opinion
C098592
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. JESSE RAY WRIGHT, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 21F5675)
ROBIE, ACTING P. J.
A jury found defendant Jesse Ray Wright guilty of seven sexual offenses against a minor. The jury also found defendant not guilty of two counts of oral copulation with a child 10 years old or younger, but found him guilty of two counts of misdemeanor battery as a lesser included offense. On appeal, he argues his misdemeanor convictions were barred by the statute of limitations and must be reversed. The People agree. We agree with the parties and reverse the misdemeanor battery convictions.
This background includes only the substantive facts relevant to the misdemeanor battery convictions, as those are the only substantive facts relevant to the issue on appeal.
The minor was born September 9, 2009. Over the course of approximately two years, starting when minor was nine or 10 years old, defendant repeatedly sexually molested her. The molestations included defendant digitally penetrating her, making her masturbate him, and making her orally copulate him. The oral copulation started when she was 10 or 11 years old and continued until shortly before her 12th birthday, when she ran away from home. The minor was forced to orally copulate defendant more than once between August 2020 and July 2021, but she was not sure how many times.
On August 16, 2021, the minor ran away from home because she did not feel safe around defendant. She walked into her school looking panicked, breathing heavily and sweating, and bleeding from cuts. She told a teacher she was running away because of what was happening to her at home. The teacher called the police.
A complaint filed August 18, 2021, charged defendant with four counts of oral copulation/digital penetration with a child 10 years old or younger occurring on or between September 7, 2019, and September 6, 2020 (counts 1-4); two counts of lewd or lascivious acts with a child under 14 years of age occurring on or between September 7, 2019, and August 15, 2021 (counts 5 &6); two counts of oral copulation with a child under 14 years old occurring on or between September 7, 2019, and August 15, 2021 (counts 7 &8); and one count of sexual penetration with a foreign object on a victim under 14 years old occurring on or between September 7, 2019, and August 15, 2021 (count 9). Defendant was arraigned on the complaint the same day and pled not guilty to all the charges. Defendant waived preliminary examination and the prosecution filed an information alleging the same charges and adding a special jurisdictional allegation.
Toward the end of trial, the court granted the prosecutor's request to amend counts 1 through 4, limiting the conduct in counts 1 and 2 to oral copulation and the conduct in counts 3 and 4 to digital penetration. During discussions on jury instructions, the trial court noted it had "originated" instructions on the lesser included offenses of battery and assault, and asked the parties for any objections to the instructions. Neither party objected to the lesser included instructions or verdict forms. The next day, the trial court provided the modified jury instructions stating, "As to [c]ount[s] 1 and 2, oral copulation, age 10 or younger . . . the lesser included crimes are battery and simple assault." Neither party objected to the instructions.
The trial court also "originated" instructions on attempt as a lesser included offense. The next day the court deleted the attempt instruction, determining it was inappropriate.
The jury was not instructed on the statute of limitations for the lesser included offenses of misdemeanor assault or battery.
The People state the trial court instructed on the statute of limitations pursuant to CALCRIM No. 207. CALCRIM No. 207 as given set forth the timeframe in which the offenses were alleged to have occurred and informed the jury the prosecution was not required to prove the offense took place on a specific date, but only reasonably close to the timeframe. CALCRIM No. 3410 is the statute of limitations instruction. It provides that a defendant may not be convicted unless the prosecution proves by a preponderance of the evidence that the defendant's prosecution began within the applicable statute of limitations, and includes the particular number of years within which prosecution must begin after commission of the crime and the defendant's prosecution commenced.
The jury found defendant guilty as charged on counts 3 through 9. The jury found defendant not guilty of counts 1 and 2, oral copulation with a child 10 years old or younger, but found him guilty of the lesser included offense of misdemeanor battery as to both counts.
The trial court sentenced defendant to an aggregate term of 15 years, plus 30 years to life as follows: 15 years to life on counts 3 and 4, each; and determinate terms of six years on count 5; two years each on counts 6, 7, 8, and 9 (one-third the midterm); and a consecutive six months each on the misdemeanor lesser included offenses for counts 1 and 2.
Defendant appeals.
DISCUSSION
Defendant contends the misdemeanor battery convictions in counts 1 and 2 must be reversed as they "are time-barred by the applicable one-year statute of limitations." (Capitalization and boldface omitted.) The People agree. We agree with the parties.
There is no statute of limitations for oral copulation with a child 10 years old or younger. (Pen. Code, § 799, subd. (a).) Generally, the statute of limitations for a misdemeanor is one year. (§ 802, subd. (a).) If "the initial charge is a felony but the defendant is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanors applies." (People v. Mincey (1992) 2 Cal.4th 408, 453.) When applicable, the statute of limitations completely bars prosecution. (People v. Williams (1999) 21 Cal.4th 335, 341.) The prosecution bears the burden of proving the offense was committed within the applicable limitations period. (People v. Lopez (1997) 52 Cal.App.4th 233, 248-249.) A defendant may affirmatively, but not inadvertently, waive the statute of limitations. (Williams, at pp. 338, 340-342.) "[T]aken alone, general assent to a packet of jury instructions" does not waive the statute of limitations, as it "does not show [the] defendant understood the instructions would allow him to be convicted of a time-barred offense." (People v. Meza (2019) 38 Cal.App.5th 821, 828.)
Undesignated statutory references are to the Penal Code.
The prosecution of this case commenced on August 18, 2021, when defendant was arraigned on the complaint. (§ 804, subd. (c).) Counts 1 and 2 were alleged to have occurred between September 7, 2019, and September 6, 2020. Only conduct occurring between August 18, 2020, and September 6, 2020, fell within the applicable one-year statutory period.
The minor's testimony and interview statements were general as to dates and timeframes, referencing only her approximate age and where she lived at the time of the offenses. Although some information as to timing can be extrapolated from that general testimony, we cannot conclude the offenses necessarily occurred in the 33 days between August 18 and September 20, 2020. Defendant committed numerous acts and the offenses charged could have occurred before or after the limitations period expired. The prosecution did not prove the offenses necessarily occurred during the applicable period and the jurors were never instructed on the statute of limitations. "Absent such an instruction, the equivocal proof failed to overcome the prosecution's burden." (People v. Angel (1999) 70 Cal.App.4th 1141, 1147.) Since "we cannot tell whether the jury convicted [defendant] of offenses not shown to have been committed within the period of limitations," we must reverse the convictions. (Ibid.)
DISPOSITION
The convictions on counts 1 and 2 are reversed and the sentences vacated. The trial court is directed to dismiss these counts and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: BOULWARE EURIE, J., MESIWALA, J.