P. v. >Adams>



























Filed 1/28/13 P. v. Adams
CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Shasta)








>

THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALVA ADAMS, Defendant and Appellant.

C067473 (Super. Ct. No. MC RD CRF090006037)

A jury
found defendant Dennis Alva Adams not guilty of href="http://www.fearnotlaw.com/">assault with intent to commit rape of an intoxicated
person (count 1) or assault with intent to commit rape of an unconscious
person (count 3), but guilty of the lesser included offense of misdemeanor
assault (Pen. Code, §
240)href="#_ftn1" name="_ftnref1" title="">[1]
as to both counts. The jury also found
defendant guilty of misdemeanor sexual
battery (count 7) and not guilty of the remaining charges (counts 2, 4, and
6).href="#_ftn2" name="_ftnref2" title="">[2] Defendant was placed on 36 months informal
probation, ordered to serve 30 days in county jail, stayed pending appeal, and
ordered to register as a sex offender pursuant to section 290.

Defendant
appeals. In his href="http://www.fearnotlaw.com/">opening brief, he contends, among other
things, that his convictions for simple assault (counts 1 and 3) must be reversed
because simple assault is a lesser included offense to misdemeanor sexual
battery. With this court’s permission,
defendant filed a supplemental opening brief, contending his convictions--all
misdemeanors--are barred by the applicable one-year statute of limitations set
forth in section 802, subdivision (a), and must be dismissed. The People agree both that “the assault
convictions are necessarily included lesser offenses to the sexual battery
count,” and that the complaint on its face indicates the sexual battery offense
is time-barred. The People request that
we “remand the matter back to the trial court for a hearing to determine
whether [the sexual battery offense is] time-barred with orders to vacate the
judgment if time-barred by the statute of limitations, but otherwise to affirm
the conviction for misdemeanor sexual battery . . . .”href="#_ftn3" name="_ftnref3" title="">[3]

We shall
reverse defendant’s convictions for simple assault (counts 1 and 3) because
those convictions are necessarily included offenses of misdemeanor sexual battery. We also shall reverse defendant’s conviction
for sexual battery because the complaint, on its face, indicates it is
time-barred and shall remand the matter to the trial court for a determination
as to whether the sexual battery offense is, in fact, time-barred. If it is determined that it is barred by the
applicable statute of limitations, the trial court shall dismiss the
action. If it is determined that it is
not time-barred, the trial court shall reinstate the judgment, and defendant
shall be free to renew the additional contentions related to the sexual battery
conviction raised in his initial opening
brief in an appeal from that judgment.href="#_ftn4" name="_ftnref4" title="">[4]

DISCUSSION

I

Defendant’s Convictions for Simple

Assault (Counts 1 and 3) Must Be Reversed

Defendant
contends, and the People concede, that defendant’s convictions for simple
assault (counts 1 and 3) must be reversed because simple assault is a lesser
included offense of sexual battery (count 7).
We agree and shall reverse defendant’s convictions on counts 1 and
3. (People
v. Alford (1991) 235 Cal.App.3d 799, 805, fn. 6; People v. Carapeli (1988) 201 Cal.App.3d 589, 595.)

II

Defendant’s Conviction for Sexual Battery Must Be

Reversed and the Matter Remanded to the

Trial Court for Further Proceedings

Defendant
contends his conviction for misdemeanor sexual battery is barred by the
applicable one-year statute of limitations, and thus, must be dismissed.

Defendant
was initially arrested on the morning of August 25, 2008, and posted a bond
with the superior court on August 27, 2008.
On Monday, August 24, 2009, the prosecutor signed a complaint alleging
that on August 25, 2008, defendant committed rape of an intoxicated person, committed
misdemeanor sexual battery, and possessed hydrocodone. The complaint was not date-stamped filed with
the Superior Court until August 28, 2009.
Neither the complaint nor the information alleges any facts tolling the
statute of limitation. The record
contains a copy of an unsigned declaration in support of an arrest warrant
dated August 24, 2009, which states that it is based on an attached copy of the
complaint. Defendant was arraigned on
the complaint on September 11, 2009.

With
certain exceptions not applicable here, the prosecution for a misdemeanor must
be commenced within one year after commission of the offense.href="#_ftn5" name="_ftnref5" title="">[5] (§
802, subd. (a).)

“[P]rosecution
for an offense 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) The defendant is
arraigned on a complaint that charges the defendant with a felony. [¶]
(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.”
(§ 804.)

Where, as
here, “the charging document indicates on its face that the action is
time-barred, a person convicted of a charged offense may raise the statute of limitations
at any time. 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.” (People v. Williams (1999) 21 Cal.4th 335, 341, fn. omitted.)

Here, the
complaint filed on August 28, 2009, does not contain any allegation of facts
tolling the statute of limitations. As the People point out, however, the record
suggests that an arrest warrant may have been issued before the statute of
limitations expired. As previously
discussed, the issuance of an arrest
warrant may constitute the commencement of a prosecution for purposes of
the statute of limitations. (§§ 802, subd. (a), 804.)

Because the
complaint, on its face, contains a charge for sexual assault that appears to be
time-barred, and the record does not establish otherwise, we shall reverse
defendant’s conviction on that offense, and remand the matter to the trial
court for a hearing on whether the sexual battery offense is, in fact,
timely. (People v. Williams, supra, 21 Cal.4th at p. 345.) If it is determined that the sexual battery
offense is barred by the applicable statute of limitations, the trial court
shall dismiss the action. If it is
determined that it is not time-barred, the trial court shall reinstate the
judgment as to count 7 (sexual battery) and defendant shall be free to renew
the contentions related to that conviction raised in his initial href="http://www.fearnotlaw.com/">opening brief in an appeal from that
judgment.

DISPOSITION

The judgment is reversed and the matter remanded to the
trial court for further proceedings consistent with this opinion.





BLEASE , Acting
P. J.





We concur:





HULL , J.





ROBIE , J.