P. v.
Monplaisir
Filed 6/25/13 P. v. Monplaisir CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DONALD
JOSEPH MONPLAISIR,
Defendant and Appellant.
E055168
(Super.Ct.No. INF064806)
OPINION
APPEAL from the Superior Court of
County. Richard A.
Erwood, Judge. Reversed and remanded
with directions.
James M. Crawford, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General,
for Plaintiff and Respondent.
Defendant and appellant Donald
Joseph Monplaisir appeals after he pleaded no contest to 12 counts of committing
a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd.
(c)(1)), and 36 counts of unlawful sexual intercourse with a minor (Pen. Code,
§ 261.5, subd. (c), (d)). He
contends that he should be entitled to withdraw his plea, because he was
mistakenly told that he would be able to appeal the denial of his speedy trial
motion. The People concede that
defendant should be afforded the opportunity to withdraw his plea. We reverse and remand with directions.
FACTS
AND PROCEDURAL HISTORY
The facts as to the offenses are
derived from the probation report. The
victim, defendant’s daughter, was two years old when she went to live with her
paternal grandmother in Haiti. The
victim was eight years old when defendant came to Haiti for a visit. Defendant kissed her with an open mouth
kiss. He also wanted the victim to take
a shower with him, but the grandmother overheard and intervened, telling
defendant his request was inappropriate.
When the victim was 11 years old,
she went to visit an aunt in New York.
Defendant was also visiting. Both
defendant and the victim were sleeping on a pull-out sofa when the victim woke
up one night as defendant held her in his arms and caressed her breasts. Defendant attempted to penetrate her with his
penis, but the victim felt pain and began to cry. Defendant stopped and told the victim he was
sorry.
That same year, the victim also
visited her father at his home in New Jersey.
She stayed with defendant for about one month. During that time, defendant began regularly
touching her breasts and vagina. The
victim told an older cousin about the molestation, but no one did anything
further to report, investigate or stop the abuse.
When the victim was 12 years old,
she again visited her aunt in New York.
During this visit, defendant had sexual relations with his
daughter. The victim wrote a letter
about the incident, which was later discovered by her grandmother. The victim’s grandmother became angry, and
accused the victim of lying; her grandmother also said that, if it was true,
the victim must have been asking for it.
Every year thereafter, when the
victim would visit with her father, he would engage in sexual intercourse with
her, as well as mutual oral sex.
Defendant told his daughter that sexual relationships like theirs were
common, but that “people did not talk about it.†Defendant claimed to be “teaching†the victim
about sex.
When the victim was 14 years old,
her grandmother died. The victim then
went to live with her father in La Quinta, California. When the victim came to live with him,
defendant ended his relationship with his girlfriend, and immediately began
having regular sex, about two or three times a week, with the victim. Defendant told the victim that he had sex
with her so that he would not catch a sexually transmitted disease from someone
else.
On at least one occasion while the
victim was living with defendant, the victim’s brother walked in on defendant
and the victim while they were having sex.
Defendant followed his son out of the room; when he returned, he told
the victim that her brother had not seen anything. Another time, defendant took the victim to a
motel to have sex. On this occasion, he told
her to “make noise,†because when he had sex with her at home, they normally
had to be quiet so no one would hear them.
Usually, after having sex with the
victim, defendant would make her go into the bathroom, where he would press on
her abdomen in an effort to squeeze his semen out of her body to avoid
pregnancy.
Defendant maintained this sexual
relationship with the victim until she left home for college at age 18. When she returned home at age 19, she told
defendant she would no longer allow him to have sex with her because she had learned
from a college friend that it was wrong.
The victim finally reported the
molestations to law enforcement officers in approximately March 2009. The Riverside County District Attorney’s
Office filed a felony complaint alleging 59 separate counts for offenses that
allegedly occurred between 1990 and 1994.
Shortly after the proceedings began, defendant filed a motion to dismiss
the charges as barred by the statute of limitations. Defendant argued that the statute of
limitations provided in Penal Code section 803, pertaining to late discovery or
disclosure of sex offenses against minors, did not exist in 1994, the last date
on which an offense here was alleged to have taken place. The applicable statute of limitations in 1994
was six years for these offenses. Penal
Code section 803, subdivision (f), was not enacted until 2005, more than six
years after the last molestation offense.
Accordingly, defendant argued that the statute of limitations had
expired before the provision relied on here had come into existence. Even if Penal Code section 803 applied,
however, defendant argued that there was no independent corroboration of the
victim’s allegations.
The prosecutor opposed the motion,
arguing that the statute of limitations had not expired. The provision now included in Penal Code
section 803, subdivision (f), had previously existed in another subdivision of
the statute; the prior version had been in effect in 1994. The prosecutor pointed to
607 [123 S.Ct. 2446, 156 L.Ed.2d 544], in which the
States Supreme Court held that the version of Penal Code section 803 in
effect at that time, did violate the ex post facto clause when applied to
prosecutions that were already time-barred.
The Supreme Court also noted, however, that it would not be a violation
of ex post facto principles to extend the statute of limitations as to
prosecutions that were not yet time-barred at the time the extension is
enacted. (Stogner, at pp. 618-619; see also People v. Vasquez (2004) 118 Cal.App.4th 501, 504.)
While the motion to dismiss was
pending, the court suspended proceedings when it expressed a doubt as to
defendant’s mental competence. After
reviewing the ensuing reports, the court declared defendant competent to stand
trial.
In November 2009, after several
months of discovery and other proceedings, defense counsel filed a purported
“supplement†to the motion to dismiss, alleging that reports of the
molestations had come to the attention of law enforcement officials as early as
2001, so that the current prosecution in 2009 was not timely. The prosecutor responded that the
circumstances in 2001 did not trigger the statute of limitations. In 2001, defendant had filed a missing person
report, stating that his daughter, the victim, was missing, having allegedly
taken his car. Later, defendant
telephoned the investigating officer to say that the victim had called and,
according to defendant, the victim was accusing defendant of molesting her. Defendant, however, denied to the officer
that he had molested the victim. The
prosecution argued in opposition that defendant’s disclosure to law enforcement
officers, in the context of a different investigation, that his daughter may
have accused him of molesting her is not the same thing as a report of
molestation to law enforcement by a victim.
The victim’s report to law enforcement is the event that starts the
running of the statute of limitations; no such victim report happened in
2001. The hearing on the motion was
continued a number of times, until the trial court eventually denied the motion
in March 2010.
In May 2010, defendant renewed the
motion again urging that defendant’s statement to officers in 2001, in the
context of a different investigation (victim had taken defendant’s car and was
missing), to the effect that his daughter was accusing him of molesting her,
was sufficient to initiate the statute of limitations. The court again denied the motion.
The matter proceeded to preliminary
hearing. Although the magistrate
indicated some uncertainty as to the element of duress with respect to the rape
charges, ultimately defendant was held to answer on all charges.
Defendant moved to set aside the
information under Penal Code section 995, on the ground that there was no
probable cause to support the charges, again based on the theory that the
statute of limitations had expired.
Defendant argued that he could not be held to answer, because the evidence
indicated that law enforcement had received notice of the molestation
allegations in 2001, and the limitations period should have begun at that time,
consistent with the policies underlying the extended reporting period under
Penal Code section 803, subdivision (f).
In addition, the trial court had refused to take judicial notice of a
transcript in connection with one of the earlier dismissal motions,
particularly the testimony of the police officer who had spoken to defendant in
2001 and to whom defendant had related the statement that the victim was
accusing defendant of molesting her. Of
course, at the same time, defendant also denied to the officer that any
touching had taken place. Defendant
offered the explanation that the victim was making such accusations simply
because she was angry with defendant, in the context of her having taken his
car and disappeared.
The People opposed the motion to
dismiss, arguing that the evidence at the preliminary hearing was sufficient to
hold defendant to answer on the charges, and detailing the evidence supporting
the lewd and lascivious act charges (counts 1-12), and the rape charges (counts
13-59). Penal Code section 803,
subdivision (f), the applicable statute of limitations, provides that the
period begins to run upon the report to a California law enforcement agency “by
a person of any age alleging that he or she, while under the age of 18 years,
was the victim of [one of the enumerated sex crimes]
. . . .†Any report in
2001 was not made “by a person . . . alleging that he or she
. . . was the victim†of the charged crimes. The prosecutor argued that defendant was not
deprived of any due process rights as to the
dismissal motion on the same ground (statute of limitations) heard and denied
the same day as the preliminary hearing.
At the hearing on the probable cause
motion to dismiss, the court expressed concern about the “duress†element with
respect to the rape charges. Although
the victim was defendant’s daughter and defendant had begun the molestations at
an early age, the victim for several years had not lived with defendant and
defendant had not made any threats toward her or used physical force to secure
her compliance. Rather, the victim felt
compelled by her relationship with defendant, and she feared that he would
become upset if she refused. The
molestations continued until the victim was 17 or 18 years old, much older than
the victims in other cases that had found coercion implied in the parent-child
relationship.
The court denied the motion to
dismiss the information insofar as the statute of limitations was
involved. However, it found insufficient
proof of duress to sustain the rape charges.
The court accordingly denied the motion as to counts 1 through 12, the
lewd and lascivious act counts, but granted the motion as to counts 13 through
59, the rape charges.
After this ruling, defendant filed
another motion to dismiss the remaining 12 counts, again alleging that the
statute of limitations had run. This
time, defendant’s motion focused on the requirement in the statute that there
be corroborating evidence of substantial sexual conduct, and argued that there
was insufficient independent evidence to corroborate the victim’s allegations.
The People opposed the motion,
noting that the victim had, by arrangement with the police, made a pretextual
telephone call to defendant, which was recorded. In the course of that telephone call,
defendant made certain admissions that independently supported the victim’s
allegations. Defendant had made remarks
during his police interview that also supported the allegations. The court denied the motion.
By this time, in August 2010, the
matter was scheduled for trial on counts 1 through 12. Both parties announced ready for trial. However, this court issued a stay of the
trial proceedings pending the People’s appeal of the dismissal of the rape
charges. The People had also filed a
related writ proceeding, in which this court issued a peremptory writ in the
first instance, granting the People’s petition to reinstate the rape
counts. (People v. Superior Court (Monplaisir)
(Oct. 27, 2010, E051644) [nonpub. opn.].)
Defendant had disciplined the victim in the past by beating her, and the
victim had testified that she was concerned he might physically abuse her if he
was strongly upset by her refusal to cooperate.
Accordingly, the evidence showed that the victim acted or failed to act
because of her subjective fear. This was
sufficient to meet the probable cause standard to hold defendant to answer for
the rape charges. (Ibid.) The People abandoned
the appeal because of the relief granted on the writ. Defendant sought further review of this
court’s order in the writ proceedings; this court denied rehearing and the
California Supreme Court denied review.
The case was remitted to the trial court once again on February 28,
2011.
The trial court set the matter for a
trial readiness conference on all the charges.
Defendant filed a new motion to dismiss the charges, this time on the
ground of violation of his statutory right to a speedy trial. The trial court denied this motion.
On July 7, 2011, both parties again
announced ready for trial. On the eve of
trial, the People filed a first amended information (1) reinstating counts 13
through 48, and (2) amending the allegations to charge unlawful sexual
intercourse with a minor more than three years younger than the perpetrator or
unlawful nonforcible sexual intercourse with a person under age 16 (Pen. Code,
§ 261.5, subds. (c) & (d), respectively), rather than rape by duress
(Pen. Code, § 261, subd. (a)(2)).
Twelve counts of rape previously charged (between August 1990 and July
1991) were not renewed in the first amended information. The amended charges covered conduct alleged
between August 1991 and July 1994.
On the last day to begin trial, July
13, 2011, defendant requested a continuance to the next day, as negotiations
were ongoing to resolve the matter. The
following day, July 14, 2011, defendant agreed to change his plea. Defendant accepted the court’s offer to plead
no contest to all charges in exchange for a 20-year prison term, plus credits
under Penal Code section 4019 (maximum exposure was 38 years eight months). In addition, defendant would be granted a
certificate of probable cause to appeal on the statute of limitations issue, as
well as alleged violation of his statutory speedy
trial rights as to counts 1 through 12.
The People objected to the plea.
The trial court accepted defendant’s
change of plea, and sentenced him to the agreed-upon term of 20 years. The court also duly signed the certificate of
probable cause.
At sentencing, the trial court
denied probation, imposed a total prison commitment term of 20 years, and
ordered defendant to pay $10,000 as a restitution fine, with a concomitant
$10,000 parole revocation fine.
Defendant filed a timely notice of
appeal.
ANALYSIS
I. Defendant Is Entitled to Withdraw His Plea
Because It Was Induced in Part by a Promise to Issue a Certificate of Probable
Cause to Review the Denial of His Speedy Trial Motion, a Nonappealable Order
Defendant agreed to plead no contest
based in part on the inducement that the court would grant a certificate of
probable cause to review the denial of his motion to dismiss counts 1 through
12 for alleged violation of his statutory right to a speedy trial. As defendant now recognizes, the denial of a
statutory speedy trial motion is not reviewable on appeal. In Ricki
J. v. Superior Court (2005) 128 Cal.App.4th 783, the court held that the
admission of the allegations of a juvenile petition—analogous to a guilty
plea—constitutes an admission of all the facts essential to establish
guilt. “ ‘The essence of a
defendant’s speedy trial or due process claim in the usual case is that the
passage of time has frustrated his ability to establish his innocence. The resolution of a speedy trial or due
process issue necessitates a careful assessment of the particular facts of a
case in order that the question of prejudice may be determined. [¶]
Where the defendant pleads guilty, there are no facts to be
assessed. And since a plea of guilty
admits every element of the offense charged, there is no innocence to be
established.’ [Citation.] Thus, ‘the cases are virtually uniform in
holding that a claim of speedy trial violation—whether statutory or
constitutional—does not survive a guilty plea.’
[Citations.]†(
Defendant contends that, because his
plea was induced by the unenforceable promise that the speedy trial issue had
been preserved for appeal, he must be entitled to the opportunity to withdraw
his appeal. The People concede that the
speedy trial issue is not cognizable on appeal, and that defendant, who relied
on the promise that the issue was preserved, should be afforded the opportunity
to withdraw his no contest plea. We
agree that the lower court’s issuance of a certificate of probable cause cannot
render a claim reviewable that is not cognizable on appeal. (See People
v. Sanders (2012) 203 Cal.App.4th 839, 847-848.)
We order the matter remanded to
permit defendant the opportunity to withdraw his plea. (See Ricki
J. v. Superior Court, supra, 128
Cal.App.4th 783, 792.)
II. The Statute of Limitations Had Not Expired
Defendant again raises the issue
that the statute of limitations had run as to all the charged offenses, based
on the notion that defendant’s remarks to an officer in 2001 initiated the
running of the limitation period.
The People suggest that we need not
address the issue, as it may not be ripe for decision. We have agreed with defendant, and the People
concede, that the judgment must be reversed and the matter remanded to allow
defendant the opportunity to withdraw his plea.
If defendant elects to withdraw the plea, the matter will be returned to
trial, i.e., prejudgment status. At the
trial level, defendant has moved numerous times to dismiss on the basis that
the statute of limitations has run, and each time that motion has been
denied. He may seek appellate review of
that ruling after a judgment, but the appellate court generally does not issue
advisory opinions in cases in which no judgment has been entered. (See Salazar
v. Eastin (1995) 9 Cal.4th 836, 860.)
Because defendant has been granted the primary relief he seeks—the
opportunity to return the case to prejudgment status—appellate (i.e.,
postjudgment) review of pretrial rulings made by the trial court is arguably
inappropriate at this point. As the
People also point out, if defendant withdraws his plea, it is unknown what
specific charges the prosecution will elect to proceed upon, and therefore it
is unknown what tolling provisions may apply.
(See, e.g., Pen. Code, § 803, subds. (d), (f).)
However, it is also not certain that
defendant will in fact elect to withdraw his no contest plea to these
charges. The sentence he received, 20
years, amounts to an average of less than one year per count, and is
significantly less than the potential maximum exposure he faces should he elect
to withdraw his plea and stand trial.
Should defendant ultimately decide not to withdraw his plea, the statute
of limitations issue would remain unreviewed; moreover, if defendant’s
contention is meritorious, and the statute of limitations on the currently
charged offenses has expired, it would be unjust to require him to go through
the expense and difficulties of a trial on the merits in order to obtain
appellate review. For that reason, we
deem it expedient to address the issue on the merits. Further, the issue is one of pure statutory
construction; it presents an issue of law, which we review independently. (People
ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
Defendant points out that, when he
contacted police in 2001 about the victim running away with defendant’s car, he
informed an officer that the victim had telephoned him and, because she was
angry with defendant, she was accusing defendant of having molested her. At the same time, defendant firmly denied to
the officer that he had engaged in any inappropriate behavior. Defendant contends that his 2001 self-serving
report and denial of the alleged accusations of molestation, were sufficient to
begin the running of the extended statute of limitations under Penal Code
section 803. That is, a law enforcement
agency had received information sufficient to alert the authorities to the
victim’s molestation claims. Under Penal
Code section 803, subdivision (f)(3), the complaint was not brought within one
year of the report to law enforcement because it was not filed until 2009. Therefore, the
offenses had expired long before the instant proceedings began.
We disagree. We begin, as in any case of statutory construction,
with the language of the statute itself.
“Generally, a reviewing court’s ‘fundamental task in construing a
statute is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.
[Citation.]’ [Citation.] The analysis starts with an examination of
the actual words of the statute, giving them their usual, ordinary
meaning. [Citation.]†(Leavitt
v. County of Madera (2004) 123 Cal.App.4th 1502, 1513-1514.)
Penal Code section 803, subdivision
(f), provides in relevant part: “(1)
Notwithstanding any other limitation of time described in this chapter, a
criminal complaint may be filed within one year of the date of a report to a
California law enforcement agency by a person of any age alleging that he or
she, while under the age of 18 years, was the victim of a [specified
sex-related] crime [against a minor]. . . .
“(2) This subdivision applies only
if all of the following occur:
“(A) The limitation period specified
in Section 800, 801, or 801.1, whichever is later, has expired.
“(B) The crime involved substantial
sexual conduct, . . . .
“(C) There is independent evidence
that corroborates the victim’s allegation.
If the victim was 21 years of age or older at the time of the report,
the independent evidence shall clearly and convincingly corroborate the
victim’s allegation.
“(3) No evidence may be used to
corroborate the victim’s allegation that otherwise would be inadmissible during
trial.
opinions of mental health professionals.â€
The salient point is the language
that the complaint must be filed within one year after, “the date of a report
to a California law enforcement agency by
a person of any age alleging that he or she, while under the age of 18 years,
was the victim of a [specified
sex-related] crime
. . . .†(Pen. Code, §
803, subd. (f)(1), italics added.) The
plain words of the statute state that the extended statute of limitations
begins to run when the matter is reported to a law enforcement agency
crime. Here, the victim never made a
report to law enforcement until 2009.
The information defendant relayed to a law enforcement officer in 2001: (1) was not a report made by the victim;
(2) occurred tangentially in the context of an investigation into an
entirely different matter; and (3) was minimized, and indeed wholly
denied, by defendant, the reporting party, in such a manner as to explain away
and discourage any active investigation into the alleged accusation. Ream v.
Superior Court (1996) 48 Cal.App.4th 1812 held that the “clear and
unambiguous†language of the provision requires a report by the victim. Indeed, “The statute makes no reference to a
report by a person who is not a victim.â€
(Id. at p. 1818.)
Defendant contends that this case is
distinguishable from Ream. He urges that the information he provided in
2001 was substantively sufficient to trigger the statute of limitations, and he
argues that the policies underlying the statute, as explained in
that the lack of a report by the victim herself in 2001 should be excused. In Ream,
the defendant was charged with sex offenses against the victim, who was age six
or seven at the time of the alleged offenses, and about age 13 at the time the
charges were brought. The defendant’s
ex-wife had turned over to law enforcement some photographs of the defendant
engaging in the acts, apparently while the victim was asleep, or perhaps
drugged. (Ream v. Superior Court, supra,
48 Cal.App.4th at pp. 1815-1816.)
The photographs depicted acts that had taken place more than six years
before the prosecution began, so that there was no corroboration for any acts
that took place within the ordinary statute of limitations period. As to the extended statute of limitations
under Penal Code section 803 (Pen. Code, § 803, former subd. (g), now
subd. (f)), the victim herself had not made any report, and in fact denied that
the defendant had molested her. (
as beyond the statute of limitations.
The People opposed the motion, arguing that the victim appeared to be
unaware of the molestations, and it would be absurd to require the law
enforcement officers to inform her of the crimes committed against her so she
could make a report herself, when ample undisputed evidence had been provided
by the report of another person (the ex-wife).
(Id. at
pp. 1818-1819.) The Court of Appeal
rejected the People’s argument, i.e., that there should be an implied exception
to the victim-reporting requirement for victims who are unaware of the
crimes.
The court stated, “We do not agree
that application of section 803(g) according to its plain language achieves an
absurd result. So applied, section
803(g) does not require the People to inform the victim of the crimes committed
against her; it simply requires a report to law enforcement by the victim to
remove the bar of the statute of limitations absent which, in this case,
prosecution remains time-barred. [Fn.
omitted.]
“Nor is it absurd to extend the
statute of limitations for aware but not for unaware victims. The Legislature may well have recognized that
youthful victims of sexual abuse may be dissuaded from reporting abuse at the
time of its occurrence by shame, fear of the consequences, intimidation by the
abuser, or psychological trauma. [Fn.
omitted.] The Legislature may reasonably
have intended to enlarge the statute of limitations to accommodate only such
cases. . . . If it were
the intent to enlarge the statute of limitations in cases where an unconscious
minor was the victim of a sex offense in order to allow prosecution even while
the victim remains unaware of her victimization, the Legislature presumably
would have expressly said so.
“The remaining and related issue is
whether the Legislature actually intended for the report of a sexual offense by
a person other than the victim to trigger the extended statute of limitations
of section 803(g), despite the plain language of the statute requiring a report
by the victim. Again, because the People
are not required to inform the victim of the crimes committed against her, the
plain language of section 803(g) does not conflict with the legislative intent
of subdivision (d) of Penal Code section 288 to protect child victims from
psychological harm.
“ . . . [T]he
Legislature was concerned with the problem of child victims of sex crimes who
wait until they are adults to report sex offenses committed against
them. . . . [¶] . . . [¶]
“Nothing in the legislative history
suggests the Legislature intended, despite the use of language inconsistent
therewith, to extend the statute of limitations upon the report of a non-victim
or to extend the statute of limitations in cases of unconscious victims of sex
offenses who, unaware of their victimization, are unable so to report. If the Legislature had intended those
results, it would have expressly said so.
[Fn. omitted.]†(
pp. 1820-1821.)
Defendant here contends that the
purpose of the statute is to “ensure that the perpetrator does not escape
notice of law enforcement due to the child’s inability to report.†He argues that Ream is not directly on point.
Ream holds that the statute of
limitations “is not tolled, even where photographic evidence shows that
the child has been abused, where the victim is presently still a minor, where
the child is unaware of the abuse, and where the reporter is a third
party.†(Citing Ream v. Superior Court, supra,
48 Cal.App.4th at p. 1821.)
Defendant argues that the “rationale is that there is no psychological
harm where the child is unaware of the abuse.
If at some point after she becomes an adult, she is made aware of the abuse,
she can still report it to law enforcement, provided there is corroboration and
the complaint is filed within one year of the report. [¶]
The legislative intent for extending and tolling the statute of
limitation under this provision is (1) to protect the rights of children who
cannot communicate for themselves, who are afraid to do so, and have no one to
confide in, and (2) to ensure that the prosecution has the ability to
prosecute the case within [one] year of law enforcement’s being put on notice
of such allegations.†Defendant argues
that the policies underlying the statute were satisfied here, because (a) law
enforcement had been put on notice of the allegations in 2001, (b) the victim
here had not been threatened to keep her from reporting the molestations to law
enforcement, (c) she was not a person who was unable to communicate the matter
or who had no one to confide in, which was demonstrated when she confronted
defendant in front of her brother at one point, and when she complained to other
adults both before and after she reached adulthood. Defendant argues that, “the legislative
intent of protecting children who do not know they were abused, who cannot
communicate for themselves, or who are afraid to do so or have no one to
confide in was not at issue in this case. [The victim] did not fall within the class of
persons the exception to the statute of limitations was meant to protect.†Defendant argues that he is therefore
“entitled to repose.â€
Defendant’s argument is without
merit. The victim here falls precisely
within the class the statute was meant to protect. It was intended to protect victims of
childhood abuse who were (or who become) aware of that abuse. The triggering event, under the plain
language of the statute, is a report by the victim to law enforcement. Here, that report took place in 2009, and the
complaint was filed within one year of the report. The statute contains no required elements that
there have been no other report to law enforcement before the victim makes a
report, it does not require proof that the victim was personally threatened or
pressured not to make any earlier report, it does not require the victim to
demonstrate that the victim was never able to communicate with others about the
abuse before reporting it to law enforcement officers, it does not require a
preliminary minitrial on the victim’s knowledge or lack thereof, or his or her
actions and inactions with respect to the allegations before making a report to
law enforcement officers.
To accept defendant’s construction
would be to disqualify not only unaware victims from the tolling provisions of
the extended statute of limitations, but also many victims who are aware of the
molestations (the protected class
defined in Ream), but who cannot jump
additional hurdles to prove the “legitimacy†of their behavior in making the
complaint. The statute does not require
a victim to overcome any such hurdles.
It only requires a report by the victim to law enforcement.
Here, the victim did make a report to
law enforcement in 2009, and the instant prosecution was timely filed after
that report. Defendant’s argument that
the statute of limitations as to the instant charges had expired is without
merit.
III. The Restitution Fine Issue Is Moot
Defendant also has raised the issue
that the trial court erred in imposing a restitution fine of $10,000, as well
as a corresponding parole revocation fine in the same amount. Defendant argues that he did not agree to
these fines in the plea agreement, and that the court should have imposed the
minimum fines of $200 in each instance.
If defendant elects to withdraw his
no contest plea, the issue is moot. The
issue of restitution fines and parole revocation fines may be revisited upon
the imposition of a new judgment.
Defendant may, however, ultimately decide not to withdraw his plea. Defendant argues that the imposition of a
$10,000 restitution fine, the maximum allowed, was a matter not contemplated
by, and a significant deviation from, the plea to the court. Defendant was never advised, pursuant to Penal
Code section 1192.5, of the imposition of a $10,000 maximum restitution fine
(and parole revocation fine) as a consequence of his plea. Defendant urges that, should he elect not to
withdraw his plea, the proper remedy is to reduce the restitution fine and the
parole revocation fine to the applicable statutory minimum of $200. (People
v. Walker (1991) 54 Cal.3d 1013, 1027, 1029.) Defendant’s reliance on Walker is misplaced. The
California Supreme Court in People v.
Villalobos (2012) 54 Cal.4th 177 (Villalobos),
overruled Walker to the extent that
mere silence in the record about the imposition of a statutorily mandated
punishment was treated as a basis for a defendant’s belief that the plea
agreement excluded imposition of the punishment. The California Supreme Court held that when a
restitution fine is not mentioned in the plea agreement, or otherwise discussed
during the plea proceedings, the amount of the fine is set at the court’s
discretion, according to statute. In
other words, the plea agreement is not violated by the imposition of a
statutorily mandated term that was omitted from the agreement. (Id.
at pp. 183-184.) This is so, even
if the omitted term consists of a substantial restitution fine.
DISPOSITION
Defendant pleaded no contest to all
charges, based in part on the promise to issue a certificate of probable cause
to preserve the speedy trial issue for review.
After a plea of guilty or no contest, a claim of violation of speedy
trial rights does not survive. Because
defendant was induced to plead no contest on the promise to preserve a
nonreviewable claim for appeal, the judgment is reversed, and the matter
remanded to afford defendant the opportunity to withdraw his no contest
plea.
In order to aid defendant in
deciding whether or not to withdraw his plea, we have reviewed and determined
his oft-raised claim that the statute of limitations has expired with respect
to the instant charges. We have now
resolved that issue adversely to defendant; the statute of limitations has not
expired and the charges are properly brought within the extended tolling
provisions of Penal Code section 803, subdivision (f).
If defendant elects to withdraw his
plea, then his claim that the restitution fine and parole revocation fine were
greater than agreed is moot. The court
shall consider the issue anew if and when a new judgment of conviction
arises. The trial court should, in that
case, follow the procedures recommended by the California Supreme Court in
defendant of the fines as consequences of any plea or judgment, and including
consideration of the fines in plea negotiations. (Villalobos,
supra, 54 Cal.4th at
p. 186.) If defendant ultimately
elects not to withdraw his plea, however, the absence of discussion of the
restitution fine and parole revocation fine in the plea agreement is not, in
itself, a basis for belief that imposition of a statutorily mandated punishment
was excluded from the plea agreement.
Unless defendant has other evidence to support a claim that the
imposition of the restitution and parole revocation fines were intended to be
excluded from the plea agreement, the mere absence of advisement and discussion
during the plea negotiations does not provide a basis upon which to challenge
the fines imposed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] The original complaint alleged: (1) 12 counts of violation of Penal Code section
288, subdivision (c)(1) (lewd and lascivious act on a child under age 16 and
more than 10 years younger than the perpetrator), one for each month between
August 1990 and July 1991; (2) 47 counts of violation of Penal Code section
261, subdivision (a)(2) (rape by means of force, violence or fear), one for
each month between August 1990 and June 1994.
