P. v. Alvarez
Filed 2/28/07 P. v. Alvarez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALVAREZ, Defendant and Appellant. | B185126 (Los Angeles County Super. Ct. No. SA053310) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Stephanie Sautner, Judge. Reversed in part and affirmed in part.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
Carlos Alvarez appeals from judgment entered following a court trial in which he was convicted of eight counts of committing lewd acts with a child under the age of 14, counts 5 through 12 (Pen. Code, 288, subd. (a)), two counts of forcible rape, counts 17 and 18 (Pen. Code, 261, subd. (a)(2)), and six counts of unlawful sexual intercourse with a minor, counts 32 through 37 (Pen. Code, 261.5, subd. (c)).[1] He was sentenced to prison for 31 years and four months and contends his conviction for unlawful sexual intercourse with a minor in count 32 must be reversed because prosecution of this count was time barred. Respondent agrees. For reasons stated in the opinion, we reverse the conviction in count 32 and in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 14, 2005, the district attorney filed an amended, 31-count information alleging 12 counts of committing a lewd act on K. F., a child under the age of 14 years, counts 1 through 12 (Pen. Code, 288, subd. (a)), four counts of committing a lewd act on K. F., a child of 14 or 15 years, counts 13 through 16, (Pen. Code, 288, subd. (c)(1)), seven counts of rape as to K. F., counts 17 through 23, (Pen. Code, 261, subd. (a)(2)), and eight counts of committing a lewd act on A. F., a child under the age of 14, counts 24 through 31, (Pen. Code, 288, subd. (a)). It was further alleged pursuant to Penal Code section 667.61, subdivisions (a) and (e)(3) and (5) that appellant inflicted great bodily injury upon K. F. in violation of Penal Code section 12022.8, and that appellant committed violations of Penal Code section 288, subdivision (a), against more than one victim.
On June 17, 2005, following presentation of the evidence and prior to closing arguments, the prosecution moved to amend the information to add counts 32 through 37, six counts of unlawful sexual intercourse with a minor (Pen. Code, 261.5, subd. (c)) as alternative counts to seven counts of forcible rape, counts 18 through 23. The prosecution noted there was no alternative count to count 17. The prosecution stated the counts were being offered as alternative counts to forcible rape should the court find sexual intercourse between appellant and K. F., but not by use of force or duress.
The motion to amend was granted and the date in count 32 was that stated in count 18, On and between March 17, 2001 and August 18, 2003.[2] The dates in counts 33, 34, 35, 36 and 37 were stated to conform to counts 19, 20, 21, 22 and 23 respectively.
DISCUSSION
Appellant contends his conviction for unlawful sexual intercourse with a minor in count 32 must be reversed because prosecution of this count was time-barred. Respondent agrees.
Pursuant to Penal Code section 801, Except as provided in [Penal Code Sections] 799 and 800,[[3]] prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense. A violation of Penal Code section 261.5, subdivision (c) is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. Thus the statute of limitations is three years.
K. F. testified she was born March 17, 1986 and that the crimes occurred when she was 15 years old. She turned 15 on March 17, 2001 and was 15 years old until March 17, 2002. Applying the three-year statute of limitations, the last date for commencement of prosecution within the permissible period would have been March 16, 2005. Count 32 was not filed until June 17, 2005.
As a violation of Penal Code section 261.5, subdivision (c) requires the victim and perpetrator be within certain age limits, it is not a lesser included offense to rape. (See People v. Scott (2000) 83 Cal.App.4th 784, 794.) [A]fter the statute of limitations has run, an information may not be amended to insert a charge which is not a necessarily included offense, even though it relates to the same conduct as was originally charged. [Citations.] (Harris v. Superior Court (1988) 201 Cal.App.3d 624, 628.) Additionally, a violation of Penal Code section 261.5, subdivision (c) is not an offense for which tolling is permissible. (See Pen. Code, 803, subd. (f).) The conviction in count 32 must, therefore, be reversed.[4]
DISPOSITION
The conviction in count 32 for unlawful sexual intercourse with a minor in violation of Penal Code section 261.5, subdivision (c) is reversed, and in all other respects the judgment is affirmed. The trial court is directed to prepare a new abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P.J.
MANELLA, J.
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[1] He was acquitted of four counts of committing lewd acts with a child under 14, four counts of committing lewd acts with a child of 14 or 15, and committing five counts of forcible rape. Eight counts of committing lewd acts with a child under 14 were dismissed as time barred.
[2] The evidence relative to counts 17, 18 and 32 established that when K. F. was 15 years old, appellant took her to a motel instead of taking her to middle school. Inside the motel room, appellant had K. F. undress and watch a woman and a man having sex on television. Appellant got on top of her, kissed her, told her she was going to be his woman and inserted his penis into her vagina. When she cried out in pain, he grabbed a towel and . . . said [she] was bleeding. After putting a condom on, he again inserted his penis into her vagina. K. F. was born in 1986.
[3] Penal Code section 799 relates to offenses punishable by death or life imprisonment, and Penal Code section 800 relates to offenses punishable by imprisonment for eight years or more.
[4] The trial court had sentenced appellant in count 32 to the middle term of two years, which had been stayed pursuant to Penal Code section 654.
