In re T.H.
Filed 10/1/13 In re T.H. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
In re T.H., a Person
Coming Under the Juvenile Court Law.
C068165
(Super. Ct. No.
JV118170)
THE PEOPLE,
Plaintiff and Respondent,
v.
T.H.,
Defendant and Appellant.
Following
a contested jurisdictional hearing in 2011, the juvenile court found that in
2004, the minor,
title="">[1]
T.H., committed first degree felony murder (Pen. Code, § 187, subd. (a)),
first degree robbery in concert (§§ 211/213, subd. (a)(1)(A)) and first
degree burglary (§§ 459/460). The
minor contends the burglary adjudication
must be reversed because it was barred by the
toll the statute of limitations; or (2) in the alternative, the matter should
be remanded to the juvenile court for a determination of whether the
prosecution was timely. The minor also
contends the disposition minute order and commitment order must be corrected as
they reflect an incorrect date of birth and presentence custody credits. The People concede these points. The petition shows on its face the
prosecution of the burglary charge was time-barred and we cannot determine from
the record on appeal whether the statute of limitations was tolled;
accordingly, we must reverse and remand the matter to the juvenile court for a
hearing on the statute of limitations.
We also direct the juvenile court
to ensure the correct date of birth and presentence custody credits are
reflected in the disposition and commitment orders.
FACTUAL BACKGROUND
On the
morning of July 3, 2004,
Clayton Skinner’s father and brother found Skinner dead inside his home. Skinner had 17 lacerations on his scalp,
fractures to his skull and bruising and bleeding on the brain. Skinner also had blunt force injuries to his
chest, back, arms and legs. After
performing an autopsy, the medical examiner determined Skinner died from “blunt
force head injuries.â€
In August
2005, a Welfare and Institutions Code section 602 petition alleged the minor, then
age 14, had committed an unrelated attempted robbery. The minor failed to appear in court and the
court issued a bench warrant. On November 21, 2005, the minor was
taken into custody in Salt Lake City, Utah. His mother and family had moved there in
September 2005. The minor was extradited
from Utah to California. The minor admitted one count of misdemeanor
battery. The juvenile court found the
allegation true, placed the minor on six months’ probation and ordered him
released to his mother to return to Utah.
On February 12, 2009 and February 25, 2009, law enforcement
officers interviewed the minor in jail in Utah,
where he was awaiting trial on charges in Utah. On June
11, 2009, the juvenile court issued an arrest warrant for the
minor. The People filed a petition
alleging the minor (who by then was 18 years old) had committed five felony
offenses in 2004, when he was 13 years old.
Specifically, the petition alleged the minor had committed the following
offenses against Skinner: murder with malice
aforethought (§ 187, subd. (a)—count one), the murder was committed during
a home invasion robbery (§ 190.2, subd. (a)(17)) and the murder was
committed during the commission of a residential burglary (§ 190.2, subd.
(a)(17)); robbery in concert (§§ 211, 213, subd. (a)(1)(A)—count two);
burglary (§ 459—count three); burglary in concert on June 26, 2004 (§§ 211, 213, subd.
(a)(1)(A)—count four); and, assault with a deadly weapon and by means of force
likely to produce great bodily injury on June 26, 2004 (§ 245, subd. (a)(1)—count five).
The
juvenile court ordered the minor detained on December 21, 2009.
Following a contested jurisdictional hearing, the trial court dismissed
counts four and five—relating to the June
26, 2004 incidents—finding insufficient evidence to support those
allegations. The court found true the
allegations in counts one through three, murder, robbery in concert and
burglary. The juvenile court adjudged
the minor a ward of the juvenile court and committed him to the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities, for a maximum
confinement term of 25 years to life on the murder adjudication, not to exceed
the minor attaining 25 years of age. The
juvenile court also imposed terms of six years each on counts two and three, to
run concurrently, stayed execution of those terms under section 654 and awarded
the minor 497 days of presentence custody credit.
DISCUSSION
I. Statute of
Limitations—Burglary
The minor
contends the burglary count (count three) must be reversed as it is barred by
the statute of limitations.
The
statute of limitations for first degree burglary is three years. (§§ 459, 460, subd. (a), 461, subd. (a),
801; In re Gustavo M. (1989)
214 Cal.App.3d 1485, 1493-1494.) In
a criminal action, the statute of limitations is jurisdictional. Although a juvenile court proceeding is not a
criminal action, the statute of limitations may also bar prosecution of a
minor. (In re Gustavo M.,
that the prosecution is barred by the applicable statute of limitations, it
fails to state a public offense. The
issue is not forfeited by a failure to raise it in the trial court. (People
v. Williams (1999) 21 Cal.4th 335, 340-341; In re McGee, supra,
29 Cal.App.2d at pp. 649-650.)
The
People did not plead facts alleging the statute of limitations was tolled, the
juvenile court did not conduct any hearings on this issue, and the matter was
not litigated in the jurisdictional hearing.
On appeal, the Attorney General argues the statute of limitations may be
tolled for up to three years if a defendant is out of state when or after the
offense is committed. (§ 803, subd.
(d).) Here, there are documents in the
record which indicate the minor moved to Utah in September 2005 and was in
custody in Utah in December 2009. As of
December 18, 2009, the minor was arrested, transported and booked into the
Sacramento County jail. He returned to
California for court proceedings from December 2, 2005 to December 6,
2005. Other than those five days in
December 2005, the record does not reflect where the minor lived between
September 2005 and September 2008. This
record is not adequate for us to determine whether the action is
time-barred. Because the petition showed
on its face the action was time-barred, the juvenile court should have held a
hearing on this issue. Accordingly, we
order the matter remanded for a hearing on whether the burglary charge was
time-barred or the statute of limitations was tolled. (People
v. Williams, supra,
21 Cal.4th at p. 341.)
II. Corrections
to the Disposition and Commitment Orders
The minor
also contends the disposition minute order shows an incorrect date of arrest
and thereby incorrect custody credits
and the commitment order shows an incorrect date of birth. The People concede these errors should be
corrected. As we are remanding the
matter, we direct the juvenile court to correct the disposition and commitment
orders to reflect the minor’s correct presentence custody credits and date of
birth, respectively.
DISPOSITION
The
judgment is reversed and the cause is remanded with directions to conduct a
hearing to determine whether the burglary charge is time-barred. If so, the
juvenile court shall dismiss the burglary charge in count three. If not, the court shall reinstate the
judgment. The juvenile court shall also
correct the disposition and commitment orders in accordance with this
opinion.
BUTZ , Acting P. J.
We concur:
MAURO , J.
MURRAY , J.
name="_ftn1" title="">[1] Although T.H. was not a minor by the time the
matter was adjudicated, he was a minor at the time of the 2004 offenses and was
prosecuted as a minor.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Penal Code.
