P. v. Fanning
Filed 3/14/07 P. v. Fanning CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CECIL NEWTON FANNING II, Defendant and Appellant. | E039341 (Super.Ct.No. RIF104515) OPINION |
APPEAL from the Superior Court of Riverside County. John V. Stroud, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed.
Kristin A. Erickson for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Meagan J. Beale, and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
On July 9, 2002, the District Attorney of Riverside County filed a complaint that charged defendant and appellant, Cecil Newton Fanning II (hereafter defendant) with two counts of lewd and lascivious conduct with a child under the age of 14 in violation of Penal Code section 288, subdivision (a).[1] Both counts alleged that the act occurred in Riverside County between June 30, 1990, and June 29, 1991, and that the victim of both counts was defendants daughter G.F., who was under the age of 14 at the time the acts occurred. The complaint also included an allegation that the prosecution was initiated in accordance with former section 803, subdivision (g) (hereafter section 803(g)),[2]in that on or about July 10, 2001, G.F. reported to the Riverside County Sheriffs Department that while under the age of 18 years, she was molested by defendant, a criminal complaint was filed within one year of the date of that report, the statute of limitations set out in section 800 had expired, the charges involve substantial sexual conduct, and there is independent evidence that clearly and convincingly corroborates the victims allegation.
Following a preliminary hearing at which the investigating deputy sheriffs were the only witnesses, the district attorney filed a two-count information that charged defendant with committing two violations of section 288, subdivision (a) in Riverside County on or about June 30, 1990, through and including June 29, 1991. Like the complaint, the information also alleged that the prosecution was initiated in accordance with the provisions of section 803(g). On February 6, 2004, the district attorney filed an amended information that, like the previous pleadings, alleged two violations of section 288, subdivision (a), and that differed from the original information only in that the amended information included details of the corroborating evidence required under section 803(g).
On March 26, 2004, after obtaining leave of court but over defendants objection, the district attorney filed a second amended information that charged defendant with committing two violations of section 288, subdivision (a), in Los Angeles County from January 1, 1988 to May 31, 1991.[3] The information also included eight additional counts, four of which charged defendant with violating section 288, subdivision (c), by molesting G.F., a child under the age of 16 between June 30, 1991, and June 29, 1992, and four of which charged violations of section 288, subdivision (c) between June 30, 1992, and June 30, 1993. Like its predecessors, the second amended information also included allegations under section 803(g) that stated, in pertinent part, that G.F. had reported the molestations to law enforcement on July 10, 2001.
As he had with the prior pleadings, defendant demurred to the second amended information asserting in this demurrer that the pleading was time-barred because it included charges that were not established at the preliminary hearing. In its opposition, the district attorney asserted that after the preliminary hearing, A subsequent review of other records and the transcripts of the victims interviews with law enforcement indicate that [defendant and his family] moved to Riverside County in June, 1991, not 1990. Since the victim [who was born on June 30, 1977] turned fourteen in June, 1991, at generally the same time that she moved to Riverside County, the appropriate charge for the conduct occurring in Riverside County is [] section 288(c), not 288(a). Accordingly, the People have prepared a Second Amended Information, to reflect this correction, as well as to add additional charges proved at the preliminary hearing. In the district attorneys view, the second amended complaint was authorized under section 1009 in that the amendment merely clarified details, such as the date the crimes occurred and the locations where the crimes were committed.
After the jury found him guilty on all 10 counts, defendant again challenged the timeliness of the charges, the challenge this time taking the form of a motion to set aside the convictions. The trial court granted that motion with respect to counts 3 through 10 but denied it as to counts 1 and 2. Defendant challenges the latter aspect of the trial courts ruling in this appeal and also raises other claims of error. We agree with defendant, for reasons we now explain, that the prosecution failed to file the charges within the time specified in section 803(g) and therefore the charges were untimely. Because we will reverse the judgment and direct that the charges against defendant be dismissed, defendants remaining claims of error are irrelevant and we will not address them.
DISCUSSION
The issue in this appeal is whether counts 1 and 2 of the second amended information were timely filed or whether they are barred by the statute of limitations. Under section 800,[4]the prosecution had six years from the date the crime occurred within which to file the section 288, subdivision (a) charges alleged in counts 1 and 2. The parties do not dispute that the six-year time period had long expired and that in filing the charges against defendant, the prosecution relied on section 803(g). At the time the complaint was filed in this case, section 803(g) provided in pertinent 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 crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. [] (2) This subdivision applies only if both of the following occur: [] (A) The limitation period specified in Section 800 or 801 has expired. [] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victims allegation. No evidence may be used to corroborate the victims allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals. (Stats. 2001, ch. 235, 1.)
Defendant contends that section 803(g), means what it says and that a prosecutor has one year from the date of the victims report to law enforcement within which to investigate the report and file charges. After the one-year time period has expired, the information may not be amended to add charges that were included in the victims original report. In other words, defendant contends section 1009, which confers discretion on the trial court to amend a pleading according to proof, does not apply to actions brought under section 803(g) unless the proposed amendment occurs within the one-year period following the victims report to law enforcement.
The district attorney in this case filed the original complaint on July 9, 2002, the last day it could be filed under section 803(g). The prosecution did not file the charges included in the second amended information until after the one-year period specified in section 803(g) had expired. Because the charges alleged in the second amended information are based on information the victim provided in her original report to law enforcement, those charges are untimely under defendants analysis. The Attorney General contends that the charges alleged in counts 1 and 2 are the same charges filed in the original complaint, namely violations of section 288, subdivision (a), and that the changes were made in accordance with section 1009 to merely clarify errors. The record on appeal indicates otherwise.
In its March 2004 motion to file the second amended pleading, the deputy district attorney acknowledged that the prosecution had not adequately investigated G.s claims and that it was not until [a] subsequent review of other records and the transcripts of the victims interviews that law enforcement officers realized that G. and her family moved to Riverside County in June 1991, rather than in June 1990, as alleged in the complaint. As a result of that inadequate investigation, the dates, locations, and crimes committed were incorrectly alleged in the original complaint. In other words, the prosecutions original complaint did not charge the correct crimes. The district attorney did not allege and charge the correct crimes until 2004 when the prosecution sought to amend its pleading a second time. Because the one-year period specified in section 803(g) had expired before the district attorney sought to amend the pleading, the charges alleged in the second amended information were untimely.
In short and simply put, the district attorney failed to investigate the information the victim provided. As a result, the district attorney did not file the correct charges in its complaint. Because the one-year time period specified in section 803(g) had expired before the district attorney sought to amend its pleading, all charges revealed in the victims original report to law enforcement were barred by the one-year limitation period specified in section 803(g). (Cf. People v. Terry (2005) 127 Cal.App.4th 750, in which the victim testified at the preliminary hearing and purportedly revealed facts about other previously undisclosed molestations such that her testimony could constitute a new report under section 803(g).) The charges set out in counts 1 and 2 were time-barred and therefore the trial court should have granted defendants motion to dismiss those charges.
DISPOSITION
The judgment is reversed with directions to the trial court to dismiss the charges against defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Richli
J.
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[1]All further statutory references are to the Penal Code unless indicated otherwise.
[2]All further references to section 803(g) refer to the version in effect at the time the complaint was filed.
[3]Count 2 of the second amended information alleged that the crime occurred in Riverside County, but that error was corrected in the trial court by interlineation and insertion of the correct county.
[4]Section 800 provides that a crime punishable by imprisonment for eight years or more shall be commenced within six years after the commission of the offense. ( 800.) Lewd and lascivious conduct with a child under the age of 14 is punishable by a term of imprisonment of three, six, or eight years in state prison. ( 288, subd. (a).) Therefore the pertinent limitations period is six years.
