P. v. Shepard
Filed 2/5/10 P. v. Shepard CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. JAMES KELLY SHEPARD, Defendant and Appellant. | G042572 (Super. Ct. No. 07CF0858) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
FACTS AND PROCEDURAL BACKGROUND
Between May 2002 and September 2003, defendant James Kelly Shepard engaged in three acts of intercourse and one act of oral copulation with a female who was 13 years old when the activity began. The crimes, first reported in 2006, led to the filing of this criminal action in March 2007 that charged defendant with one count of lewd conduct on a child under age 14 (Pen. Code, 288, subd. (a); all further statutory references are to this code), with an allegation he had substantial sexual conduct with the victim; two counts of committing a lewd act on a child under age 16 ( 288, subd. (c)(1)); and one count of oral copulation of a minor under age 16 ( 288a, subd. (b)(2)).
On the first day of trial, defendant entered a plea of guilty to the charges and admitted the substantial sexual conduct allegation as to the first count. Shortly thereafter, he obtained new counsel and moved to withdraw the guilty plea. Defendant claimed his first attorney only met with him outside of court five times, failed to provide him with discovery materials and only briefly discussed the material with him. Citing the emotional trauma suffered by defendants own son and warning the prosecution would use [his] son against [him], defendant claimed his first attorney unexpectedly recommended he change his plea to guilty just before the commencement of trial, declaring it would be better for everybody. Claiming he felt overwhelmed and was given only five minutes to think about it, defendant asserted he broke down and agreed to plead guilty. Defendants first attorney also filed a declaration that countered the foregoing claims.
The trial court heard the motion to withdraw the guilty plea and denied it. It then sentenced defendant to six years in prison on count 1 plus concurrent two-year terms on the remaining charges. Defendant obtained a certificate of probable cause.
After defendant appealed we appointed counsel to represent him. Counsel filed a brief setting forth the facts of the case and the disposition. She did not argue against defendant but advised the court she had not found any issues to present on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) She suggested two issues to assist us in our independent review of the record, as set out below.
Defendant was given 30 days to file written argument on his own behalf, which he did, primarily reiterating the points initially raised in support of his motion to withdraw his plea. We examined the entire record to determine if any arguable issues were present, including those suggested by counsel and one by defendant, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
DISCUSSION
1. Denial of Motion to Withdraw Guilty Plea
Although a plea may be withdrawn for good cause ( 1018), defendant must show by clear and convincing evidence mistake, ignorance, . . . inadvertence or any other factor overreaching [his] free and clear judgment . . . . [Citations.] (People v. Waters (1975) 52 Cal.App.3d 323, 328.) In taking his plea the court went over each of defendants rights and his understanding of what he was doing, including defendants statements he had spoken to his lawyer, and found he had knowingly, intelligently, and voluntarily waived his rights and pleaded guilty. In denying the motion, the court thoroughly reviewed defendants claims, the declaration of former counsel, and the transcript documenting the plea. It did not abuse its discretion in determining that defendant understood the consequences of his plea and was not pressured to enter it. (Ibid.)
2. Statute of Limitations
The offenses were reported in February 2006. The complaint was filed March 9, 2007. The information alleged the offenses in counts 1 through 3, in violation of section 288, occurred between May 2002 and September 30, 2003. The statute of limitations for violating section 288 is six years from the date of the offense. ( 288, 800, 805, subd. (a); People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, 697.) The complaint was timely as to these counts.
The information alleged the offense in count 4, oral copulation with a minor under 16 ( 288a, subd. (b)(2)), occurred between May and September 2003. Under section 801.1, notwithstanding any other limitations periods, prosecution for a violation of section 288a is 10 years after the offense was committed. ( 801.1, subd. (b), 290, subd. (c).) Therefore the action was timely filed as to this count.
The usual statute of limitations for this offense is three years ( 288a, subd. (b)(2), 801) and but for the enactment of section 801.1, the statute of limitations would have run in 2006. However before the expiration of the limitations period section 801.1 was enacted. (Added by Stats. 2004, ch. 368, 1.) Thus there is no violation of ex post facto protection and prosecution is constitutionally permissible. (In re White (2008) 163 Cal.App.4th 1576, 1583; see Stogner v. California (2003) 539 U.S. 607, 609, 618-619 [123 S.Ct. 2446, 156 L.Ed.2d 544].)
3. Judicial Prejudice
Defendant asserts in his supplemental brief that the judge was prejudice[d] against [him], presumably, although not stated, because he denied the motion. There is no evidence in the record to support that claim. Denial of the motion was based on the courts analysis of the declarations of defendant and his former lawyer, his review of the transcript, and his own recollection of the events surrounding the plea, not on any prejudice.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
