P. v. Alvarado

Filed 8/1/08 P. v. Alvarado CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following a court trial, defendant Salvador Alvarado was convicted of first degree burglary (Pen. Code 459, 460)[1] and sentenced to the two-year mitigated term, to be served concurrently with the sentence in an unrelated case. On appeal, defendant contends that the trial court erroneously overruled his demurrer based on the statute of limitations, and that the evidence adduced at trial does not overcome the statute of limitations bar. We find that the demurrer was properly overruled; however, we must reverse the conviction and remand the matter to the trial court with directions to determine whether the burglary charge was time-barred.

STATEMENT OF FACTS[2]

The facts underlying the offense are not pertinent to the issues raised in this appeal and may be briefly summarized as follows. On March 16, 2002, Joseph Aliottis house in Watsonville was burglarized. Jewelry and almost $3,000 in cash were taken. A window at the back of the residence appeared to have been the point of entry. Defendants latent fingerprints were found on the outside of that window. When defendant was interviewed by police on July 25, 2002, he admitted that he had pushed open the window, and he said a friend went inside. He denied entering the residence.

DISCUSSION

Overruling of Demurrer

Defendant contends that the trial court should have sustained his demurrer because the statute of limitations for burglary had run by the time the motion was heard. The parties agree that the applicable limitations period is three years. ( 801, 805, subd. (a).)

a.      Factual Background

For the purposes of the motion, the court and the parties assumed the following facts were true. The burglary occurred on March 16, 2002. A complaint charging defendant with the burglary was filed on August 27, 2002. A warrant for defendants arrest was issued on September 4, 2002. The complaint was dismissed on April 14, 2006.

The District Attorney charged defendant with the same burglary in a new complaint on April 17, 2006. On April 18, 2006, at the arraignment on the new complaint, defendant demurred to the complaint on the ground that the statute of limitations had run.

The demurrer was heard and overruled on April 28, 2006. That same day, defendant pleaded not guilty and a preliminary hearing was set for May 5, 2006. Defendant was held to answer on May 8, 2006. An information was filed on May 15, 2006.

b.      Applicable Statutes and Legal Principles

It is elementary that a statute of limitations sets forth the time period within which a prosecution for an offense may be commenced. Generally, the applicable limitations period begins to run upon the commission of the offense. (See, e.g., 799, 800, 801, 801.1, 802, 802.5.)

Section 803 provides: (a) Except as provided in this section, a limitation of time prescribed in this chapter is not tolled or extended for any reason. [] (b) No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter. Put differently, the limitations period is tolled that is, stops running during the time which a prosecution of the same person for the same conduct is pending.

Section 804 provides: [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) A case is certified to the superior court. [] (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.

Sections 803 and 804 restate the substance of repealed section 802.5, which related to the tolling of the limitation period on issuance of an arrest warrant or finding of an indictment, and recommencing a criminal action after dismissal. (People v. Le (2000) 82 Cal.App.4th 1352, 1358-1359.) Former section 802.5 read: The time limitations provided in this chapter for the commencement of a criminal action shall be tolled upon the issuance of an arrest warrant or the finding of an indictment, and no time during which a criminal action is pending is part of any limitation of the time of recommencing that criminal action in the event of a prior dismissal of that action. [Citation.] [T]he only substantive change in section 803, subdivision (b) was to adopt a broader concept than criminal action, as used in section 802.5, by replacing that language with same conduct in section 803. (Id. at p. 1358, fn. 10.)

Case law has also recognized that the issuance of an arrest warrant is an event which, under the prior statute, tolled the running of the limitations period (People v. Lewis (1986) 180 Cal.App.3d 816, 821) and which, under the current statutes, commences or starts a time period during which the running of the limitations period is tolled, or halted. (See People v. Williams (1999) 21 Cal.4th 335, 345 (Williams) [Here, the district attorney could easily have alleged in the information that an arrest warrant issued before the time period had expired]; People v. Greenberger (1997) 58 Cal. App.4th 298, 369; People v. Terry (2005) 127 Cal.App.4th 750, 764 [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 the statute of limitation ordinarily continues to run until an information is filed].)

c. Analysis

Defendant argues that the second prosecution for burglary was barred by the statute of limitations, because the second complaint in this case was filed more than three years after the offense was committed, the statute of limitations was not tolled by the issuance of the arrest warrant in the earlier prosecution, and the second complaint did not relate back to the first complaint. He relies primarily on the opinion in Le as support for his contentions.

Defendants reliance on Le is misplaced. In Le, the various felony offenses, including grand theft and insurance fraud, were alleged in a complaint to have been committed between May 1, 1987, and February 15, 1990. (Le, supra, 82 Cal.App.4th at p. 1355.) Arrest warrants for the defendants issued on June 12, 1992, and an indictment was returned on October 28, 1993. The defendants were tried on that indictment, which alleged: [T]his prosecution [was] commenced by the issuance of an arrest warrant on June 12, 1992, within the meaning of Section 804. (Ibid.)

At trial, after the prosecution rested, the defendants moved for acquittal on the ground that the prosecutor had failed to prove that the statute of limitations had not run. The court permitted the prosecution to reopen its case, introduce the arrest warrants into evidence, and call an investigator, who testified as follows: He had obtained the arrest warrants; the facts stated in the affidavit for the warrants were the same facts that were covered by the indictment and trial; however, the case tried under the indictment had a different case number from the case for which he had obtained the warrants, because the earlier case had been dismissed before a preliminary hearing was held; and he did not know when the dismissal occurred. The defendants were convicted and they appealed. (Le, supra, 82 Cal.App.4th at p. 1356.)

On appeal, the parties agreed that the applicable limitations period was three years, and that the indictment did not issue within three years of the alleged offenses. The issue was whether the evidence presented by the prosecution at trial adequately proved that the statute of limitations had not run. Relying on People v. Lewis, the Attorney General maintained that the prosecution had met its burden of proof by showing that the warrants had issued within three years of the offenses.

The Court of Appeal disagreed. It noted that Lewis was decided under former section 802.5, which had referred to the issuance of an arrest warrant as tolling the statute of limitations, whereas the statutes that replaced section 802.5 described issuance of an arrest warrant as commencing a prosecution ( 803), and further described tolling as nonexistent, except that [n]o time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time. ( 803, subd. (b).) Citing precedent, general rules of statutory construction and specifically the rule that courts construe application of the statute of limitations strictly in favor of defendants (82 Cal.App.4th at p. 1358), the Le court agreed with the defendants argument that under sections 803 and 804, the issuance of the arrest warrant began the tolling period arising from a prosecution of the same person for the same conduct. ( 803, subd. (b).) The statute of limitations would be tolled for the time during which prosecution ... [was] pending. (Ibid.) The defect in the prosecutions proof is it did not establish the length of the tolling period. To meet its burden of proof, the prosecution needed to prove the time during which the other prosecution was pending, when subtracted from the time between the commission of the offenses and the issuance of the indictment, yields a period less than three years. (Le, supra, 82 Cal.App.4th at p. 1357.) The court declined to interpret sections 803 and 804 as permitting the issuance of an arrest warrant to commence all original and subsequent prosecutions of the same conduct. (Id. at p. 1359.) Because the prosecution, at trial, had been put to its proof by the defense and had failed to prove, at trial, the duration of the tolling period, and because the defendants did not concede the relevant facts at trial or on appeal and the appellate record did not contain them, the Le court reversed with directions to enter a judgment of acquittal as to all of the defendants. (Id. at pp. 1361-1362.)

We adopt the Le courts interpretation of sections 803 and 804. Applying that courts reasoning to the facts of this case, however, does not assist defendant. Here, the undisputed facts for the purposes of the hearing on the demurrer, and the inferences therefrom, established the following. The three-year statute of limitations for burglary consisted of 1,095 days and began running on March 16, 2002. It continued running for 171 days, until September 4, 2002, when the arrest warrant issued. On that day, the prosecution commenced. The prosecution was pending until April 14, 2006, when it was dismissed. Pursuant to section 804, subdivision (b), the statute of limitations stopped running for the entire period of time from September 4, 2002, until April 14, 2006, and that period of time did not count as part of the limitations period. The statute of limitations resumed running on April 14, 2006, and continued to run for another 17 days, until May 23, 2006, when the filing of the new information, charging defendant with the same conduct, commenced the second prosecution. Thus, at the time the court overruled the demurrer on April 28, 2006, the statute of limitations had not yet run and still had 907 days left to run. The trial court did not err in overruling the demurrer.

Sufficiency of the Evidence on the Statute of Limitations

In his reply brief, defendant argues for the first time that, so far as the information showed, the burglary was time-barred, and the prosecution neither alleged in the information nor proved at trial any facts that would have demonstrated the statute of limitations had been tolled. Because the Attorney General did not have the opportunity to address this claim, we asked for supplemental briefing from the parties on the following questions: (1) Is there any evidence in the appellate record concerning the issuance of an arrest warrant or the dismissal of the predecessor complaint; and (2) Did the defendant either forfeit (Williams) or waive (Cowan v. Superior Court (1996) 14 Cal.4th 367 (Cowan) the statute of limitations bar at trial by agreeing to a set of undisputed facts at the hearing on the demurrer? As we explain below, the appellate record is devoid of any evidence concerning the issuance of an arrest warrant or the dismissal of the predecessor complaint, and we cannot find, on the facts before us, that defendant stipulated to the critical facts for trial purposes, or forfeited or waived the statute of limitations bar. Therefore, we must reverse the judgment and remand to the trial court for further proceedings.

a. Factual Background

In this case, as noted above, the information filed on May 15, 2006, alleged that defendant committed a burglary on March 16, 2002. The information did not include any tolling allegations. The parties agree that the applicable statute of limitations is three years. ( 802, subd. (b).) Therefore, as alleged in the information, the offense was time-barred on the face of the accusatory pleading.

Defendant challenged the second prosecution by way of demurrer and the parties agreed the court could proceed to adjudicate the motion on the basis of certain undisputed facts. In his written opposition to defendants motion, the prosecutor asked the court to take judicial notice of the file and records in case number F05630, the predecessor prosecution. The appellate record before us reflects that the trial court reviewed the court file and that defense counsel twice agreed to the courts recitation of the facts. However, nothing in the parties legal memoranda, or in the transcript of the proceedings on the demurrer, states that the defense agreed to those facts for the purposes of trial or conviction.

After the demurrer was heard, defendant was represented by a different public defender who unsuccessfully argued speedy trial and Mirandav. Arizona (1966) 384 U.S. 436 motions on defendants behalf. She proposed a court trial for the express purpose of preserving the speedy trial issue for appellate review; she did not mention the demurrer. By written stipulation signed by both parties, trial was submitted to the court on the basis of the preliminary hearing transcript, the transcript of defendants police interview and the police reports only. The stipulation made no mention of the statute of limitations, the arrest warrant, or the dismissal of the first complaint. The police reports contain only a warrant request describing defendant. At trial, the prosecutor presented no evidence about the prior warrant or the prior dismissal. Nor did he ask the court to take judicial notice of any court file and, so far as the appellate record discloses, the court did not do so. The Attorney General concedes that the actual arrest warrant and order dismissing the first complaint were not introduced in evidence and are not in the appellate record.

b. Applicable Legal Principles

An accusatory pleading must allege facts showing that the prosecution commenced within the applicable statute of limitations. (Williams, supra, 21 Cal.4th at p. 337.) If it does not, the statute of limitations bar may be raised for the first time on appeal (id. at pp. 338, 341) or at any time, including in a postconviction collateral attack on the judgment by way of habeas petition. (In re Demillo (1975) 14 Cal.3d 598; Williams, at pp. 337-338.) Moreover, at trial the prosecution bears the burden of proving that the charged offense was committed within the applicable period of limitations. [Citation.] The burden of proof on this issue is proof by a preponderance of the evidence. (People v. Lopez (1997) 52 Cal.App.4th 233, 248; see also People v. Smith (2002) 98 Cal.App.4th 1182, 1187 (Smith), citing People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27.)

c. Analysis

This appears to be a case where [t]he prosecutor did not allege facts in the information to avoid the [statute of limitations] bar, and defendant did not assert the statute of limitations in the trial court. (Williams, supra, 21 Cal.4th at p. 339.)

The Attorney General argues that the prosecution was not required to produce proof of issuance of the arrest warrant or dismissal of the prior prosecution because defense counsels agreement to the courts recitation of the facts at the hearing on the demurrer constituted a binding express or implied stipulation to those facts for the purposes of trial. In support of this proposition, he cites the following rule: Express admissions of counsel at the trial are binding. The principle laid down applies equally to the unequivocal conduct of counsel from which the jury could properly and reasonably consider that the fact was conceded. (1 Witkin, Cal. Evidence (4th ed., 2000) Hearsay, 100, p. 802, quoting People v. Peters (1950) 96 Cal.App.2d 671, 677.) However correct the rule, it has no application in the present context. Defense counsels stipulation to the facts was not made at trial, but at the hearing on the demurrer to test the facial sufficiency of the information. No one mentioned trial, or discussed the effect of counsels factual agreement at trial. In our view, counsels statements (I agree with the recitation that the court just outlined and I agree with the way the court just outlined it) did not unequivocally convey that counsel was agreeing to the courts recitation of the facts for all time and for all purposes; and they certainly did not constitute unequivocal conduct from which the trier of fact at the trial could properly and reasonably infer a factual concession.

Furthermore, we agree with defendant that even if we were to consider defense counsels statements a binding factual stipulation for trial purposes, surely that stipulation was overridden by the written stipulation, proffered and signed by successor counsel, which limited the courts consideration to the facts contained in the preliminary hearing transcript, the transcript of defendants police interview and the police reports. Accordingly, we find no stipulation of the facts for trial purposes.

The Attorney General correctly makes no argument that defendant has forfeited his statute of limitations claim. Indeed, such an argument would fly in the face of our Supreme Courts strongly stated policy against finding forfeiture of the statute of limitations bar on the basis of inadvertence. [A] defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. [I]f the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. (Williams, supra, 21 Cal.4th at p. 338.) However, the Attorney General does contend that, even if defense counsels agreement to the hearing courts recitation of the facts did not bind defendant at trial, defense counsels agreement nevertheless waived the statute of limitations bar, within the meaning of Cowan. This is so, he argues, because the parties stipulated to a court trial with the agreement that, if convicted, [defendant] would receive the lower two-year prison term to be served concurrent with the sentence in an unrelated matter. We disagree.

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. (Cowan, supra, 14 Cal.4th at p. 371, internal quotation marks omitted.) In Cowan, our Supreme Court held that a capital defendant could waive that is, intentionally relinquish the statute of limitations bar to conviction of an otherwise time-barred lesser offense in order to avoid the capital charge. In Cowan, the defendant received a valuable sentencing concession for giving up the statute of limitations bar. Here, defendant arguably received a sentencing concession, but if he did, it was not in exchange for giving up the statute of limitations bar. The Attorney General concedes that [d]efense counsel informed the court that the primary purpose of proceeding by way of court trial is so that Mr. Alvarados appellate rights are preserved on the speedy trial issue. There was no mention of the statute of limitations issue. Nothing in the record before us permits us to reliably infer that defendant intentionally relinquished the statute of limitations bar in exchange for any benefit at all. Accordingly, we find no waiver.

Finally, the Attorney General contends that reversal is not necessary because defendant suffered no prejudice. Citing People v. Lewis, he argues that because defendant agreed, at the hearing on the demurrer, to facts that supported the hearing courts ruling on that motion (i.e., the issuance of the arrest warrant and dismissal of the prior information), the failure to plead and prove those facts at the court trial was harmless. Lewis, however, is distinguishable. In that case, the appellate record included a copy of the arrest warrant on which the statute of limitations question turned. (Lewis, supra, 180 Cal.App.3d at p. 822.) That is not the case here. In the absence of such evidence, we must follow our Supreme Courts directive: 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. (Williams, supra, 21 Cal.4th at p. 341, fn. omitted.)

In Williams, our Supreme Court rejected the Attorney Generals argument that  principles of due process are violated when a conviction is vacated based on a ground to which the People have no opportunity to respond. (Williams, supra, 21 Cal.4th 345.) The court stated: [T]he prosecutor has full control over the charging document. Here, the district attorney could easily have alleged in the information either that an arrest warrant issued before the time period had expired or that the action was filed timely after discovery of the crime, or both (assuming either allegation is factually supported). The silent record is partly the defendants fault for not raising the issue at trial. It was, however, the prosecutions fault in the first instance for filing an information that, on its face, was untimely. In that situation, the fairest solution is to remand the matter to determine whether the action is, in fact, timely. (Ibid.) Inasmuch as the appellate record before us is devoid of any evidence to support a finding that the statute of limitations had not run, we must remand the matter to the trial court to determine whether the statute of limitations bars defendants conviction for burglary. If the trial court finds the statute of limitations had run, the court is instructed to vacate the judgment. If the trial court finds the statute of limitations had not yet run, the judgment of conviction shall stand. (Id. at p. 338.)

CONCLUSION

Defendants demurrer was properly overruled; however,the prosecutors failure to plead in the information or prove at trial facts demonstrating that the statute of limitations had not run requires us to reverse the judgment and remand the matter to the trial court for a hearing to determine whether defendants conviction is barred by the statute of limitations.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court to determine whether the statute of limitations bars defendants conviction. If the trial court finds the statute of limitations had run, the court is instructed to vacate the judgment. If the trial court finds the statute of limitations had not yet run, it shall reinstate the judgment of conviction.

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McAdams, J.

I CONCUR:

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Mihara, J.

Bamattre-Manoukian, Acting P.J., Concurring:

The record in this case reflects that the statute of limitations issue was fully litigated during the hearing on the demurrer and that defendant did not waive the issue. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) However, the prosecution bears the burden of proving at trial that the charged offense was committed within the applicable statute of limitations. (People v. Lopez (1997) 52 Cal.App.4th 233, 248.) In light of the following facts: (1) The Attorney General concedes that the arrest warrant and order dismissing the first complaint were not introduced into evidence at trial and are not in the record on appeal; (2) The trial court heard and determined its ruling on the demurrer on facts stipulated for purposes of that hearing only; (3) Defendant obtained new counsel after the hearing on the demurrer and prior to trial; and (4) The written stipulation on which trial was submitted to the court made no mention of either the statute of limitations or the demurrer stipulations; I agree that the matter should be remanded to the trial court for a hearing to determine whether the statute of limitations bars defendants conviction. (People v. Williams (1999) 21 Cal.4th 335, 345.) Therefore, I concur in the judgment only.

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BAMATTRE-MANOUKIAN, Acting P.J.

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2] The facts are drawn from the preliminary hearing transcript.