P. v. Cepeda
Filed 8/19/09 P. v. Cepeda 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. DAVID D. CEPEDA, Defendant and Appellant. | C059977 (Super. Ct. No. 98F10893) |
In August 1999, defendant David D. Cepeda pled no contest to committing lewd and lascivious acts with a child under the age of 14 (Pen. Code, 288, subd. (a).)[1] He was sentenced to six years in state prison.
In March 2008, the United States District Court for the Eastern District of California granted defendants application for a writ of habeas corpus. The district court ordered defendants conviction and sentence vacated and defendant released from custody unless a new charging document was filed within 60 days.
On May 5, 2008, within the 60 days, the Sacramento County District Attorney filed an information charging defendant with seven counts of committing lewd and lascivious acts on a child under the age of 14 based on events taking place in October 1998. ( 288, subd. (a).) Counts three through five included allegations of substantial sexual conduct. ( 1203.066, subd. (a)(8).) The information was amended on May 16, 2008, to set forth offense dates ranging from March to October 1998.
In June 2008, defendant pled no contest to one count of committing lewd and lascivious acts on a child under the age of 14 and the remaining charges were dismissed. Defendant was given credit for time served and was released from custody.
Defendant appeals and obtained a certificate of probable cause. He contends the statute of limitations barred prosecution on all but one of the counts alleged in the May 16, 2008, amended information, including the count to which he pled. He argues that, having been misadvised by the trial court that none of the counts were time-barred, his plea should be set aside. As explained by the People, however, the trial court properly advised defendant that all of the counts were properly prosecuted within the 10-year statute of limitations.[2]
In 1998, the statute of limitations for section 288 violations was six years. ( 800.) However, on January 1, 2001, before the six-year limitations period for the counts charged in this case expired, an amendment to former section 803, subdivision (h)(1) extended the limitations period from six years to 10 years. (Stats. 2000, ch. 235, 1.) Former section 803, subdivision (h)(1) is now codified in section 801.1, subdivision (b). (Stats. 2004, ch. 368, 1; Stats. 2005, ch. 479, 2.) Under these amendments to sections 803 and 801.1, the prosecution of the charges commenced with the filing of the information on May 5, 2008, thus the counts were not time-barred. (In re White (2008) 163 Cal.App.4th 1576, 1580-1581.) All of the counts were alleged to have occurred in 1998, well within the 10-year limitations period.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
RAYE , Acting P. J.
BUTZ , J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] Hereafter, undesignated statutory references are to the Penal Code.
[2] After receiving the respondents brief, defendants appellate counsel acknowledged and conceded that, as set forth in the respondents brief, the charged counts were not time-barred.
