P. v. Mayorga

Filed 2/10/10 P. v. Mayorga CA1/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant was convicted by jury trial of one count of continuous sexual abuse of a child (Pen. Code,  288.5, subd. (a)).[1] The information also contained a special allegation regarding the statute of limitations, pursuant to section 803, former subdivision (g)(1).[2] Near the end of trial, the court struck the special allegation at the request of the prosecution, and over defendants objection. On appeal, defendant contends that the striking of this allegation violated his constitutional rights to due process and effective assistance of counsel, and that the courts denial of his subsequent continuance motion was an abuse of discretion. We disagree and affirm.

I.
BACKGROUND

The victim told the police that she was molested by defendant, her grandfather, from the time she was six years old (June 14, 1991) until she was 13. Defendant admitted to the molestation both in a pretext call by the victim, and later to the police. The original complaint alleged two counts of continuous sexual abuse ( 288.5, subd. (a)), one occurring between June 14, 1991 and June 13, 1999 (count one),[3] and a second count occurring between March 3, 1988 and March 2, 1995 (count five), plus counts alleging individual violations of section 288, subdivision (a) (lewd conduct with a child under the age of 14) and one count alleging penetration by a foreign object ( 289, subd. (j)). An amended complaint dropped the charge of penetration with a foreign object , but otherwise remained essentially the same. Following defendants waiver of a preliminary hearing, an information was filed, containing essentially the same charges as the amended complaint. Finally, an amended information was filed alleging simply the two counts of continuous sexual abuse ( 288.5, subd. (a)).[4] The dates of these charges remained as in the original complaint.

At trial, the victim testified that defendant molested her on a regular basis from 1991 until 1995. Her parents divorced in 1995 and she moved, which distanced her geographically from defendant. The molestation thus occurred less frequently between 1995 and when defendant departed for Costa Rica in 1998. After this evidence was presented, the prosecutor moved to amend the information again, to allege that the molestation charged in count one[5] occurred between 1991 and 1995.[6] The court denied that request, but instead struck the special allegation relating to the statute of limitations, over defendants objection. Defendant was convicted of count one and was sentenced to 16 years in state prison.

This timely appeal followed.

I.
DISCUSSION

A. Striking of special allegation regarding statute of limitations pursuant to section 803, former subdivision (g).

Defendant argues that his entire defense below had been based upon this premise: the prosecution alleged that the charge in count one was timely filed pursuant to section 803, former subdivision (g), even though the ordinary statute of limitations had run; however, the ordinary statute of limitations had not run. The prosecution therefore could not prove an essential element of the section 803, former subdivision (g) allegation (the running of the ordinarily applicable statute of limitations), and defendant therefore had to be found not guilty. Thus, defendant contends, when the court struck the section 803(g) allegation shortly before final argument, he was caught by surprise and was denied the opportunity to present a defense to the jury, depriving him of his constitutional rights to due process and effective representation by counsel.

As the prosecution pointed out in their last minute motion to amend the information, the original complaint appeared on its face to have been filed on August 9, 2004, within the ordinary six-year statute of limitations applicable to a violation of section 288.5, subdivision (a) (see also  800), as count one alleged the crime occurred between June 14, 1991 and June 13, 1999.[7] However, considering the information relating to count one provided by the victim to the police, rather than the dates alleged in count one of the complaint, the molestation would have ended as of the victims 13th birthday, in June of 1998, and the ordinary statute of limitations would have expired in June of 2004. The filing of the original complaint in August of 2004 would, therefore, have been outside the ordinary six-year statute of limitations.[8] If the ordinarily applicable six-year statute of limitations had expired, however, the original complaint might still have been timely filed, under the special statute of limitations set forth in section 803, former subdivision (g), as the crime involved substantial sexual conduct with a victim under the age of 18, and the complaint was filed within a year of the victim reporting it to the police.

According to the prosecutions motion to amend, the evidence adduced at trial regarding when the abuse ended was inconsistent. The victim testified it ended sometime before defendant moved to Costa Rica in 1998, and the victims mother also testified that he moved there in that year. Defendants statement to the police (adduced by defendant at trial), however, was that as of March 12, 2007 (when he spoke with the police), it had been six or seven years since he had been in the United States, which would mean that the abuse ended as late as 2000 or 2001. Under that state of facts, the filing of the complaint was clearly within the ordinarily applicable six-year statute of limitations. When it became clear to the prosecution that defendant would argue that the failure of proof of the section 803, former subdivision (g) allegation, due to the inability to demonstrate that the ordinary statute of limitations had run, would require his acquittal, the prosecution requested that they be permitted to amend the information to allege that the abuse ended in 1995, a date clearly outside the ordinary statute of limitations, so that they could proceed under section 803, former subdivision (g), as alleged in the information. The trial court declined this request, but offered instead to simply strike the now inapplicable section 803, former subdivision (g) allegation; the prosecution accepted that offer. The court struck the allegation, over defendants objection.

Defendants proposed defense at trial, that the prosecutions inability to prove that the ordinary statute of limitations had run (thus rendering 803 inapplicable) required his acquittal, was misguided. As the trial court noted in ruling on the prosecutions motion to amend, such a result would be absurd, in light of the obvious legislative intent of broadening the statute of limitations by enactment of section 803, former subdivision (g), thereby providing additional protection for child victims of sexual assault. Had the case proceeded to the jury with the section 803(g) allegation intact, and if the evidence established that the crime occurred within the ordinary six year statute of limitations, the jury would presumably have found the special allegation to have not been proven. That would not mean, however, that they would have been required to find the defendant not guilty. The charged offense would then have been within the ambit of the six year limitation in section 800 and would simply have proceeded under that section.

Based upon the proof adduced at trial (and perhaps even before that), the section 803, former subdivision (g) allegation had been rendered inapplicable and therefore unnecessary surplusage. Thus the trial courts striking of the section 803, former subdivision (g) allegation was not an abuse of discretion, and no violation of due process or the right of counsel resulted.

B. Denial of defendants motion to continue.

Defendant also contends that the trial court abused its discretion when it denied his request for a continuance in order to prepare a new defense, after the court struck the section 803, former subdivision (g) allegation.

A defendant must demonstrate good cause to continue a trial, and the trial court has broad discretion to determine whether such good cause exists. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Roldan (2005) 35 Cal.4th 646, 670, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) In reviewing a trial courts decision to deny a motion to continue, we will not disturb the trial courts denial of such a motion absent a showing that it was arbitrary or capricious. (People v. Jordan (1986) 42 Cal.3d 308, 316.) We find no such abuse of discretion in the present case.

After the trial court struck the section 803, former subdivision (g) allegation, defendant filed a written motion to continue the trial for two months, alleging that the continuance was necessary in order to investigate facts surrounding the end of the course of conduct charged and when defendant left the country. The court denied this request, but, finding that the striking of the section 803, former subdivision (g) allegation did impact how defendant was going to present his defense, the court ruled that they would complete evidence that morning and then adjourn for the day, permitting defense counsel to close tomorrow and give [him] some extra time to prepare so [he didnt] have to just run right into it.

Under the circumstances, the trial courts ruling was reasonable, and certainly was not arbitrary or capricious. The issue of defendants absence from the country was always at issue, in order to assess generally when the molestations ended, and regarding the applicability of the three year staying of the otherwise applicable statute of limitations, pursuant to section 803, subdivision (d). Even under trial counsels misapprehension regarding the impact of the prosecutions potential failure to prove the applicability of section 803, former subdivision (g), the applicability of section 803, subdivision (d) was important in order to determine when the ordinary six year statute of limitations would have expired. Defense counsel below thus failed to demonstrate why a two month continuance was necessary in order to explore an issue that should have been explored prior to the commencement of trial.

III.
Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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[1] All further section references are to the Penal Code. A second count charging continuous sexual abuse was dismissed during trial, at the request of the prosecution.

[2] Section 803, subdivision (g)(1) was amended (Stats. 2007, ch. 579,  41, p. 3762) and is now subdivision (f)(1). The section permits the filing of charges involving substantial sexual conduct corroborated by clear and convincing evidence, despite the expiration of the otherwise applicable statute of limitations, if the victim reports to law enforcement that she was the victim of an enumerated sex offense while under the age of 18 and if the complaint is filed within one year of the report being made.

[3] It is unclear why the conduct was alleged to have ended in June 1999, as the victim would have turned 13 in June of 1998.

[4] All of the various charging documents contained various special allegations, including the statute of limitations allegations pursuant to section 803, former subdivision (g).

[5] Count two was dismissed, at the request of the prosecution, during trial.

[6] The reason for this motion to amend is explained in detail below.

[7] Because section 288.5 is a continuing course of conduct crime, the statue does not begin to run until the entire course of conduct is complete. (People v. Terry (2005) 127 Cal.App.4th 750, 763.) Thus the statute of limitations under section 800 would, by the allegations of the complaint and information, run six years from June 13, 1999, or June 13, 2005.

[8] However, as discussed more fully below, section 803, subdivision (d) allows for an extension of the statute of limitations (for up to three years), when a defendant is out of the state. Since the victim told the police that defendant left for Costa Rica in 1998, the ordinarily applicable statute of limitations of six years might have been extended under this provision. Thus the filing of the complaint in August of 2005 might have been timely, as it was within the six years provided for in section 800, as extended by section 803, subdivision (d). (See also 804.)