P.
v. Aguilar
Filed
2/26/13 P. v.
Aguilar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR ARMANDO
AGUILAR,
Defendant and Appellant.
E054973
(Super.Ct.No. FVA1001458)
OPINION
APPEAL
from the Superior Court of San Bernardino
County. Ingrid Adamson Uhler, Judge. Affirmed in part; reversed in part.
Tonja
R. Torres, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant
Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Oscar Armando
Aguilar of five counts of aggravated sexual assault of a
counts 1-5)
title="">[1], two counts of rape by
means of force, violence, or duress (§ 261, subd. (a)(2), counts 6 & 8),
and two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d),
counts 7 & 9). The trial court
sentenced defendant to eight years in state prison on count 6, and imposed six
years on count 8 to run consecutive to count 6; then, as to counts 7 and 9, the
court imposed one consecutive year on each count, for a total determinate
sentence of 16 years. The court also
imposed a 15-year-to-life term on each of counts 1 through 5, to run
consecutive to each other and to the determinate term. Therefore, defendant received a total
determinate term of 16 years, plus an indeterminate term of 75 years to life.
On
appeal, defendant contends that: (1) the
convictions on counts 7 and 9 should be reversed because the statute of
limitations had run on them by the time the information was filed; and (2) this
court should review the sealed rap sheets of the main prosecution witnesses to
determine whether those witnesses committed crimes involving moral turpitude
that could have been used to impeach them.
The People concede and, we agree, that counts 7 and 9 should be reversed. Otherwise, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Jane
Doe was born in 1988. When she was five
years old, her mother, Virginia A. (mother), entered into a dating relationship
with defendant. Doe, mother, and
defendant began living in the same house.
In 1996, defendant and mother had a daughter together named C.
The
dating relationship between mother and defendant ended in 1998. However, mother allowed defendant to continue
seeing Doe and C. so he could help take them to school and watch them after
school. Right before Doe turned 10 years
old, defendant raped her at mother’s house.
A week later, he raped her again.
After that, defendant raped Doe on a daily basis, Monday through
Friday. He would either do it after he
picked her up from school, or some days he would pick her up in the morning,
but instead of taking her to school, he would rape her. Defendant threatened to kill mother and C. if
Doe resisted or told anyone about what he was doing.
For
the next few years, defendant continued to rape Doe, on nearly a daily basis
during the week. When she refused, he
would grab her wrists and bite her cheeks.
He also got a gun and would show it to her and tell her he was going to
use it to kill her mother and sister.
Defendant
stopped raping Doe when she was 15 years old.
Mother had a new boyfriend who did not want defendant around. Her boyfriend stopped the arrangement mother
had with defendant transporting Doe and C. to and from school. In 2006, when Doe was 18 years old, she
finally told mother that defendant had forced her to have sex with him from the
age of nine to the age of 15. She also
reported it to the police.
On September 17, 2010, the prosecution filed a felony complaint charging
defendant with five counts of continuous sexual abuse. (§ 288.5, subd. (a), counts 1-5.) The abuse was alleged to have occurred
between February 1, 1998 and May 17, 2002. After the
preliminary hearing on October 4, 2010, defendant was charged by
five counts.
On July 8, 2011, the prosecution filed a first amended information
alleging five counts of aggravated sexual assault of a
14. (§ 269, subd. (a)(1), counts
1-5.) As with the original information,
all five counts related to conduct involving Doe and was alleged to have
occurred between February 1, 1998 and May 17, 2002.
On September 12, 2011, the prosecution filed a second amended information,
which again alleged five counts of aggravated sexual assault of a child under
the age of 14. (§ 269, subd. (a)(1),
counts 1-5.) The information also
alleged that defendant was 10 and more years older than Doe. All five counts related to conduct involving
Doe and were alleged to have occurred between February
1, 1998 and May 17, 2002.
On September 15, 2011, the prosecutor filed a third amended information and
added four additional counts. Count 6
alleged that defendant committed forcible rape of Doe (§ 261, subd. (a)(2)),
and count 7 alleged that defendant engaged in unlawful sexual intercourse with
Doe (§ 261.5, subd. (d)). The conduct in
counts 6 and 7 was alleged to have occurred between May
18, 2002 and May 17, 2003. Count 8 alleged that defendant engaged in the
forcible rape of Doe (§261.5, subd. (d)) between May
18, 2003 and May 17, 2004. Count 9 alleged that defendant engaged in
unlawful sexual intercourse with Doe (§ 261.5, subd. (d)) between May 18, 2003 and May 17, 2004. Defense counsel objected to the amendment of
the information as being untimely.
However, the trial court permitted the prosecution to file the amended
information, based on the support of the additional charges in the preliminary
hearing transcript, the apparent lack of prejudice to defendant with regard to
the additional charges, and the fact that defense counsel had notice of the
additional charges.
On September 22, 2011, the jury convicted defendant on counts 1 through 9.
ANALYSIS
I. Counts 7 and 9 Were Barred by the Statute
of Limitations
Defendant
was charged and convicted of two counts of unlawful sexual intercourse with a
minor, in violation of section 261.5, subdivision (d), in counts 7 and 9. Defendant contends that the statute of
Unlawful
sexual intercourse in violation of section 261.5, where the perpetrator is at
least 21 and the victim is under 16, is punishable by imprisonment in a county
jail not exceeding one year or by imprisonment in the state prison for two,
three, or four years. (§ 261.5, subd.
(d).) For purposes of the statute of
limitations, an offense is deemed punishable by the maximum punishment
prescribed by statute for the offense.
(§ 805, subd. (a).)
Section
801 provides that offenses punishable by imprisonment in the state prison
“shall be commenced within three years after commission of the offense.†Commencement of prosecution occurs when an
information is filed. (§ 804, subd.
(a)). Section 803 provides for a tolling
or extension of the statute of limitations under certain circumstances and for
particular enumerated offenses. However,
section 261.5 is not among the enumerated offenses. (See §§ 803, subd. (f)(1), 801.1.) Therefore, the People were required to
commence prosecution against defendant for the violations of section 261.5
within three years of the date he committed the offenses. (§ 801.)
The
conduct alleged in count 7 occurred during a period between May 18, 2002 and May 17, 2003, and the conduct alleged in
count 9 occurred during a period between May 18,
2003
and May 17, 2004. Thus, the
latest that the People could have commenced prosecution was May 17, 2006 for count 7 and May 17,
2007
for count 9. Defendant was not charged
with counts 7 and 9 until the third amended information, which was filed on September 15, 2011. Since those
charges were not filed until 2011, they were untimely. Accordingly, counts 7 and 9 were time-barred
and should be reversed.
II. The Rap Sheets Do Not Reveal Crimes of
Moral Turpitude
Defendant
requests that this court review the
sealed rap sheets of Doe and mother to see if the trial court erred in
determining that they had not committed any crimes involving moral
turpitude. We find no error.
The
prosecution here gave the trial court copies of the rap sheets of Doe and
mother. The court reviewed them and
stated there were no allegations of any crimes involving moral turpitude. The court then put the rap sheets “under seal
in the court file for potential appellate review.â€
Defendant
subsequently moved this court to augment the record with the sealed rap sheets
and to unseal them. This court granted
the motion to augment the record, but declined to unseal the rap sheets. Instead, we agreed to review the rap sheets
and determine which parties should receive copies. We then directed the clerk to send copies of
the rap sheets to counsel for respondent only.
Upon
review of the rap sheets of Doe and mother, we conclude that the court properly
determined that there were no allegations of crimes involving moral turpitude.
DISPOSITION
The
convictions and resulting sentences on counts 7 and 9 are reversed, as they are
barred by the applicable statute of limitations in section 801. We direct the superior court clerk to correct
the abstract of judgment to reflect that the convictions and sentences for
counts 7 and 9 are reversed, and to forward a corrected copy of the abstract to
the Department of Corrections and
Rehabilitation. In all other
respects, we affirm the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
