P. v. McCarty

P. v. McCarty

Filed 6/30/08 P. v. McCarty CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE JOHN McCARTY, Defendant and Appellant.

A118354 (Lake County Super. Ct. No. CR033120)

Defendant pleaded guilty to a charge of failing to update his annual sex offender registration. He contends that the charge was barred by the statute of limitations and that he was improperly denied custody credits. We affirm.

I. BACKGROUND

Defendant was charged in an information, filed September 29, 2006, with failure to register as a sex offender upon entering and moving within the jurisdiction (former Pen. Code,[1]  290, subd. (a)(1)(A); count I), failure to update his sex offender registration annually (former  290, subd. (a)(1)(D); count II), being a felon in possession of a firearm ( 12021, subd. (a)(1); count III), and being a felon in possession of ammunition ( 12316, subd. (b)(1); count IV). The information also alleged two prior serious felony convictions for purposes of the Three Strikes law ( 667, 1170.12) and two prior prison terms ( 667.5, subd. (b)).

On February 23, 2007, defendant pleaded guilty to count II, which charged a failure to update his registration annually, and admitted that he had suffered two prior prison terms. The remaining counts were dismissed. The court imposed the upper term sentence of three years, enhanced by two additional years as a result of the prior prison terms. Defendant was not granted any custody credits.

In his opening brief, defendant raised two arguments. First, he contended that, by the time the information was filed, the statute of limitations had expired on his offense. Defendant argued that his offense is governed by the general three-year statute of limitations. ( 801.) For purposes of the felony statute of limitations, an offense is commenced by the filing of an information or indictment or by the issuance of an arrest warrant. ( 804, subds. (a), (d).) Defendant argued that the appellate record contained no arrest warrant for the violations charged in the information, and the information itself was not filed until September 2006, over three years after the date of defendants last alleged offense, in March 2003.

In addition, defendant argued that, if his conviction is upheld, the matter should be remanded for a determination of custody credits. The record demonstrates that defendant was arrested and jailed for an uncertain period of time as a result of a probation violation. The record does not contain a copy of the probation violation arrest warrant or, as far as we can determine, any other indication of the basis for the alleged probation violation. The probation report stated that defendant had never been arrested in this matter, and defense counsel did not raise the issue of custody credits. As a result, no consideration was given at sentencing to granting defendant credit for this period of incarceration under section 2900.5. Defendant argued that if the probation violation for which he was incarcerated related to his failure to register as a sex offender, he should have been granted credit for time served, and he requested a remand for such a determination.

After the filing of appellants opening brief in January 2008, the Attorney Generals office sent a letter to the clerk of the superior court, requesting a certified copy of any arrest warrant(s), and related documents if any, in the court file of defendants case. On March 27, 2008, the clerks office of this court received a letter from the clerk of the superior court enclosing a copy of the Attorney Generals letter and a series of documents referred to as the 3rd Supplemental Clerks Transcript. This supplement included certified copies of an arrest warrant for defendant, dated April 25, 2003, based on violations of sections 290[, subdivision] (g), 12021, and 12316[, subdivision] (b)(1) of the Penal Code, a warrant recall verification, dated April 7, 2004, and a warrant return notice, dated July 29, 2004. The arrest warrant refers to a complaint. The second supplemental clerks transcript contains a complaint, which is dated 18 days prior to issuance of the arrest warrant, alleging the same violations as the information under which defendant was later charged. In the respondents brief, the Attorney General argued that the issuance of the newly submitted arrest warrant tolled the statute of limitations.

II. DISCUSSION

A. Statute of Limitations

Prosecution for a criminal act generally must commence within the period of the statute of limitations, which runs from discovery of the offense. ( 800, 801, 803, subd. (c).) The filing of a criminal complaint does not generally commence the prosecution of a felony for statute of limitation purposes and, unless a formal arrest warrant issues or the case is certified to the superior court [citation], the statute of limitation ordinarily continues to run until an information is filed. (People v. Terry (2005) 127 Cal.App.4th 750, 764.) If the statute of limitations expires prior to commencement of the prosecution, a judgment of acquittal must be entered. (People v. Le (2000) 82 Cal.App.4th 1352, 1362.) Compliance with the statute of limitations is jurisdictional, and a failure can be raised at any point in the prosecution, including for the first time on appeal. (People v. Williams (1999) 21 Cal.4th 335, 341.) If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing. (Ibid., fn. omitted)

Issuance of the arrest warrant included in the third supplemental clerks transcript commenced defendants prosecution within a few weeks of the apparent discovery of his failure to register, thereby satisfying the statute of limitations. The statutory references in the arrest warrant itself and its reference to the complaint make clear that the warrant was issued in connection with the same prosecution under which defendant was convicted. Pursuant to section 804, subdivision (d), issuance of the arrest warrant commenced this prosecution in a timely manner.

In his argument, the Attorney General incorrectly refers to issuance of the arrest warrant as tolling the statute of limitations. Prior to 1984, this would have been accurate. At that time, a felony prosecution could be commenced only by the filing of an information or indictment, not by issuance of an arrest warrant. Once section 804 was enacted in 1984, adding issuance of an arrest warrant to the list of actions sufficient to commence a prosecution, it was no longer necessary to refer to issuance of an arrest warrant as tolling the statute of limitations. Rather, by commencing a prosecution, the arrest warrant ended the running of the statute. (See People v. Lewis (1986) 180 Cal.App.3d 816, 822;  804, subd. (d).)

For this reason, we reject defendants arguments that issuance of the warrant should have been pleaded in the information as grounds for tolling and that we should remand for a determination of whether the tolling in this case was in fact prejudicial. Because there was no tolling, these arguments are irrelevant.

Defendant suggests that the arrest warrant should be disregarded because it was not included in the original appellate record. We agree that the Attorney Generals attempt to augment the record with the arrest warrant was ineffective. The clerks transcript in a normal appellate record consists of the documents listed in California Rules of Court, rule 8.320(b). The arrest warrant is not included among the listed documents. If the Attorney General sought to have documents included in the appellate record beyond those listed in rule 8.320, he was required to apply to the superior court under rule 8.324, or to this court under rule 8.340(c). There is no indication of such an application. Further, while the clerk of the superior court is entitled to supplement the appellate record by letter, as occurred here, such a supplement may consist only of items otherwise required by rule or order. (Cal. Rules of Court, rule 8.340(b).) Because, as noted above, the arrest documents were not required to be included in the clerks transcript by rule or order, the superior courts letter supplementation of the record with the arrest documents was ineffective.

Nonetheless, we decline to remand or reverse on this basis because we may accomplish augmentation of the record on our own motion. Defendant does not contend that the arrest warrant and other arrest documents are inauthentic, and the documents have been certified by the clerk as a part of the trial court record.[2] To remand the matter for trial court consideration of the arrest documents would be a pointless exercise, since their implications are plain. Under California Rules of Court, rule 8.340(c), this court has the authority on its own motion to augment a criminal appellate record as provided in rule 8.155. In turn, rule 8.155(a)(1)(A) permits the court, on motion of a party or its own motion, to augment the appellate record with [a]ny document filed or lodged in the case in superior court. Accordingly, we exercise our authority under rule 8.340(c) to augment the appellate record with the documents included in the third supplemental clerks transcript. On the basis of that augmentation, we conclude that the prosecution of defendant commenced April 25, 2003, upon the issuance of the arrest warrant. The commencement was therefore well within the statute of limitations.

B. Credit for Time Served

Pursuant to section 2900.5, when a defendant has been held in custody as a result of proceedings related to the same conduct for which the defendant has been convicted, he must be granted credit against his sentence for the time spent in custody. ( 2900.5, subd. (b).) When a defendant is taken into custody as a result of a probation violation and the conduct constituting the probation violation is the same conduct for which he or she is later convicted, the defendant is entitled to custody credit. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) The burden of demonstrating entitlement to presentence custody credit is on the defendant, who must show that the conduct that led to his conviction was the sole reason for his presentence confinement. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 12581259.)

Defendant failed to carry his burden in this case. There is no evidence in the record that the conduct constituting the alleged probation violation was in any way related to the crime of which he was convicted, let alone that the two were identical. Defendant merely speculates that they might have been. Accordingly, there is no factual basis for finding error in the trial courts refusal of custody credit.

Defendant argues the trial court has the mandatory duty under section 2900.5, subdivision (c) to hold a hearing and make the requisite factual findings relating to credits, and therefore the matter should be remanded for such a hearing. On the contrary, there is nothing in section 2900.5, subdivision (c) that imposes a mandatory duty on the trial court to hold a hearing regarding custody credits, particularly when the defendant provides no evidence (and makes no contention) that he or she is entitled to credits.[3] Because defendant has provided no evidence that his probation violation was based on the same conduct as his conviction, there is no basis for reversal or remand for a determination of whether he should have been granted custody credits relating to the probation violation incarceration.

III. DISPOSITION

The judgment of the trial court is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1] All statutory references are to the Penal Code.

[2] Although defendants reply brief states that it is not undisputed fact that the prosecution was initiated by timely issuance of an arrest warrant, the briefs only rationale for this assertion is a reference to the opening brief. As discussed above, at the time the opening brief was filed, the record did not contain an arrest warrant for defendants prosecution. After the filing of the arrest warrant, the reasoning of the opening brief is no longer pertinent. The clerks certification establishes that the arrest warrant is authentic and was issued, and defendant provides no grounds for disputing this evidence.

[3] Section 2900.5, subdivision (c) states: For the purposes of this section, term of imprisonment includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.