P. v. Mosqueda
Filed 5/11/06 P. v. Mosqueda CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JESUS GONZALEZ MOSQUEDA, Defendant and Appellant. | F046971 (Super. Ct. No. BF076549A) OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On October 18, 2004, an information was filed in the Superior Court of Kern County charging appellant Jesus Gonzalez Mosqueda with count I, attempted murder of Maria Mosqueda (Pen. Code,[1] §§ 664/187); count II, assault with a firearm on Maria Mosqueda (§ 245, subd. (a)(2)); count III, stalking Maria Mosqueda (§ 646.9, subd. (a)); count IV, attempted murder of Ross Sessions (§§ 664/187); count V, assault with a firearm on Ross Sessions (§ 245, subd. (a)(2)); and count VI, assault with a deadly weapon, a rifle, on Ross Sessions (§ 245, subd. (a)(1)). As to counts I, II, IV, V, and VI, it was alleged appellant personally used a firearm (§ 12022.5, subd. (a)(1), and in counts I, II, IV, and VI inflicted great bodily injury (§ 12022.7). Appellant pleaded not guilty and denied the enhancements, and his jury trial began the same day.
On October 20, 2004, the court granted appellant's motion for acquittal on count III, stalking.[2] On October 22, 2004, the jury returned the following verdicts: as to count I, not guilty of attempted murder of Maria Mosqueda, but guilty of the lesser included offense of attempted voluntary manslaughter, with both enhancements true; as to count II, guilty of assault with a firearm on Maria Mosqueda, with both enhancements true; as to count IV, not guilty of attempted murder of Sessions; as to count V, guilty of assault with a firearm on Ross Sessions, with the firearm enhancement true; as to count VI, guilty of assault with a deadly weapon with both enhancements true; the jury also returned a verdict of guilty on the lesser included offense of misdemeanor simple assault.
On November 22, 2004, the court denied probation and imposed an aggregate term of 13 years four months as follows: as to count I, the midterm of three years, with consecutive terms of four years for the firearm enhancement, and three years for the great bodily injury enhancement; as to count VI, the court stayed all but three years four months of the terms and enhancements imposed; as to counts II and V, the court stayed the terms and enhancements imposed pursuant to section 654.
On December 13, 2004, appellant filed a timely notice of appeal.
FACTS
On the evening of September 16, 1995, Ross Sessions (Sessions) met his friends Henry Alvarez (Alvarez) and Maria Mosqueda (Maria) at the Westfair Lounge in Bakersfield. Sessions knew Maria was Alvarez's girlfriend, and he saw Maria with Alvarez all the time. Sessions did not know Maria was married to appellant and had never seen appellant. Sessions visited with Alvarez and Maria for about 30 minutes.
At some point between 11:00 p.m. and midnight, Alvarez asked Sessions if he would escort Maria to her truck, and Sessions agreed. Alvarez remained in the bar, and Sessions and Maria walked into the parking lot and headed for her truck. Sessions testified that as they approached Maria's truck, they saw the driver's side windshield had been smashed, making it impossible to safely drive the vehicle. Maria became startled, shocked, and nervous when she saw the smashed window. She started to look around, and told Sessions that appellant's truck was parked across the street from the bar. Sessions testified that he saw an old Ford pickup truck parked behind bushes, and it was not clearly visible " unless you looked."
Sessions testified they went back to the bar and he retrieved his cell phone. Sessions and Maria returned outside, and Sessions called the police to report the vandalism. Maria said something " half in English, half in Spanish" about her husband, but Sessions " just blew it off. I didn't give it any thought to it."
Sessions still was on the telephone with the police department when Maria said that appellant was approaching them. Sessions did not know appellant but Maria pointed out appellant to him. Sessions testified that appellant walked briskly toward them, Maria walked toward appellant, appellant and Maria met near her truck, and they " were hollering at each other." Appellant and Maria argued for a while in Spanish, and then appellant ran across the street, towards his truck. Sessions thought appellant was going to leave.
Sessions testified that appellant retrieved a rifle from the bed of his pickup truck, and ran back toward Sessions and Maria. Sessions and Maria were standing about five to 10 feet apart in the bar's parking lot, and appellant " starting going towards Maria more than me." Appellant continued to run towards them and Sessions recognized appellant's weapon as a .22-caliber rifle. Appellant held the rifle at his side and fired two shots in quick succession at Maria, wounding her in the abdomen.
Sessions kept his eyes on appellant and he did not realize at that time that Maria had been wounded. Sessions testified that appellant looked at him and continued to point the rifle in his direction. Appellant ran toward Sessions and continued to hold the rifle at his waist. Sessions thought he heard two or three more shots, but could not remember if appellant fired at him. Sessions was afraid appellant was going to shoot him. Sessions dropped his cell phone, ran and tackled appellant, and fought with him on the street. They struggled over the rifle and appellant hit Sessions " upside the head with the stock of the rifle." As a result of the blow, the rifle's stock broke apart. Sessions and appellant continued to fight, and the rifle's trigger mechanism jammed and cut the webbing on Sessions's left hand.
Sessions testified appellant ran back to his truck and drove away. Sessions returned to the bar and found Maria and realized she had been wounded. Several bar patrons assisted Maria and placed towels around her body, which were already soaked in blood. Sessions stayed with Maria and waited for an ambulance.
Bakersfield Police Officers Hughes and Kilgore responded to the bar on the dispatch about the damaged truck, and discovered Maria was severely injured from two gunshot wounds. Maria was moaning, crying, upset, and appeared to be in distress. Officer Hughes testified Maria was bleeding heavily and he believed her wounds could be fatal.
The officers spoke to Sessions, who was in pain, his hand was bleeding, he was obviously nervous, and appeared scared. Sessions walked through the parking lot and showed the officers what happened. Sessions told the officers that appellant fired at him two or three times. In the bar's parking lot, the officers found two expended .22-caliber rounds, one live .22-caliber round which had not been fired, and the rifle's broken stock.
In the early morning hours of September 17, 1995, Sessions and Maria were taken to the hospital. Sessions testified he suffered dizziness, swelling, and bruises from the struggle and blow to the head. Sessions was treated in the emergency room for a contusion to the left occipital area of his scalp, and received four stitches on the webbing of his left hand. He was released that day.
Maria suffered two gunshot wounds to the abdomen and was actively bleeding when she was evaluated in the emergency room. One shot entered just below a rib, deflected off her hip bone, and exited her body. The other shot entered just below the right side of the rib cage, entered the abdomen, and remained in her body, and was potentially life-threatening because it was near major organs. Maria had abdominal surgery that day and the surgeons repaired the internal injuries. Maria was discharged from the hospital on September 20, 1995.
Officer Hughes spoke to Maria just after she arrived at the hospital, and she asked him to contact her son, Gabriel, to translate for her. Gabriel arrived at the hospital and acted as translator for Officer Hughes's interview with Maria. Maria was obviously in pain but more stable than when she was at the bar. Officer Hughes also spoke to Gabriel, who was angry and upset, and " wanted to act out in a violent nature" toward appellant.
On the night of the shooting, several officers searched the area for appellant and went to his house, but they were unable to find him. The officers continued their search after the shooting, but appellant was not located from 1995 to 2004. On July 7, 2004, officers located appellant at Plantation Elementary School in Kern County, laying concrete. Appellant was arrested and taken into custody. Appellant was still married to Maria.
Detective Herman Caldas interviewed appellant just after he was arrested, advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant waived his rights. Caldas asked appellant about the 1995 shooting of his wife. Appellant denied any involvement. Caldas advised appellant that witnesses placed him at the scene, and appellant said a witness paid people to frame him. Appellant said he was attacked by three subjects that night, changed his story, and said that he wrestled with one person and the weapon accidentally discharged. Appellant said it was an accident and he did not want to kill Maria, and " that if he wanted to shoot her, that he would shoot her on each eye." Appellant said the weapon was a BB gun. Detective Caldas said Maria was shot with a .22-caliber rifle, and appellant said the gun did not work.
Appellant told Detective Caldas that he happened to be passing by the Westfair Lounge and saw Maria's truck, there were about 30 officers in the parking lot when he saw Maria, and the police were there the entire time when he fired two shots at her. Detective Caldas said that was ridiculous. Appellant said he just wanted to talk to Maria, and saw her walk out of the bar with another person. Appellant admitted that he argued with Maria. Appellant also admitted he went to his truck and retrieved a rifle, and wrestled the guy who was with Maria. Appellant said the gun did not work and he used it as a club, he never tried to kill Maria, and it was an accident. Appellant said he discarded the rifle at a farm and fled to Mexico after the shooting.
Appellant told Detective Caldas that he loved Maria and she was a good person, but she did not love him anymore. Caldas asked appellant if he was angry when he saw his wife leave the bar with another man. Appellant said he tried to obey the law, but he was a little angry and a little drunk that night. Appellant also said he was trying to defend himself, it was " fate what had happened," and he did not feel guilty. Appellant said he assumed law enforcement would never catch up with him. Appellant repeatedly said it was an accident, but refused to explain how the " accident" occurred.
At the conclusion of the interview, appellant asked for permission to call Maria but Detective Caldas refused because she was a crime victim. Caldas asked if appellant had recently spoken to Maria, and appellant said they had talked the previous day.
After appellant was arrested, Detective Caldas called Maria, who was cooperative and willing to help. After that first conversation, however, Maria did not return Caldas's calls. During the course of trial, the prosecutor advised the court that Maria was unavailable, the investigator had not been able to serve Maria with a subpoena, and Maria's family indicated she did not want to be involved in the prosecution and wanted the matter dropped.
At trial, Gabriel Mosqueda (Gabriel), the 30-year-old son of appellant and Maria, was called as a prosecution witness. Gabriel testified that he was contacted by an officer the night of the shooting, informed of his mother's injuries, and immediately went to the hospital to see her. Gabriel spoke to an officer at the hospital, but he could not remember what he said. Gabriel testified that he saw appellant a short time after the shooting, but he could not recall the details. Gabriel testified that he was not angry at his father, and he did not want his father to go to jail.
A defense investigator testified about his interview with Ross Sessions just before the instant trial. According to the investigator, Sessions said someone hit him from behind while he was looking at the damage to Maria's car, he turned around and saw a Mexican male holding a rifle, the rifle was never pointed at him, they struggled over the rifle, and two shots were fired. At trial, however, Sessions disputed the investigator's account of his statement, and testified the investigator gave the impression he worked for the prosecution rather than the defense, and the investigator tried to " put words" into Sessions's mouth.
Appellant was convicted of attempted voluntary manslaughter of Maria, as a lesser included offense of attempted murder; assault with a firearm on Maria and Sessions, and assault with a deadly weapon on Sessions, with enhancements found true as to personal use of a firearm and infliction of great bodily injury. Appellant was found not guilty of attempted murder of Sessions.
On appeal, appellant asserts the instant prosecution was time-barred because the information failed to show the action against appellant was commenced within the statutory period; there was insufficient evidence that Sessions suffered great bodily injury; and appellant was improperly convicted in count VI of assault with a deadly weapon on Sessions because he only used the rifle as a club.
DISCUSSION
I.
THE STATUTE OF LIMITATIONS
Appellant contends his convictions for attempted voluntary manslaughter, assault with a firearm, and assault with a deadly weapon are time-barred and violated the statute of limitations because the information failed to show on its face that the instant action was commenced within the statute of limitations period. Respondent asserts that any limitations period for assault with a firearm and assault with a deadly weapon was tolled because an arrest warrant was issued in 1995. As to attempted voluntary manslaughter, respondent argues appellant waived the limitations argument because he acquiesced in the court giving instructions on the crime as a lesser included offense of the charge of attempted murder.
A. The Complaint
On September 16, 1995, Maria was wounded and Sessions was injured during the incident at the Westfair Lounge's parking lot. The police were unable to find appellant that night.
On October 3, 1995, a complaint was filed in the Municipal Court of Kern County charging appellant with count I, attempted murder of Maria, with firearm and great bodily injury enhancements; count II, assault with a firearm on Sessions; and count III, stalking Maria. The complaint alleged counts I and II occurred on September 16, 1995; and count III occurred between January 1 and September 16, 1995.
The police were unable to find appellant for nine years.
B. Apprehension of Appellant and the Preliminary Hearing
On July 7, 2004, appellant was taken into custody in Kern County.
On July 9, 2004, appellant was arraigned on the complaint and pleaded not guilty.
On July 23, 2004, the preliminary hearing was held and Officer Hughes testified about his investigation at the shooting scene. In the course of the hearing, Detective Caldas testified that appellant was arrested on July 7, 2004, Caldas interviewed appellant, and appellant said he " left the area and then fled to Mexico" after the shooting because " he knew there were witnesses that had seen what he had done," and he would be charged with a crime. Appellant also said that he had been living " on and off" with Maria after the shooting. Appellant was held to answer.
On August 2, 2004, an information was filed which charged appellant with count I, attempted murder of Maria; count II, assault with a firearm on Sessions;[3] count III, stalking Maria between January 1 and September 16, 1995; count IV, attempted murder of Sessions; count V, assault with a firearm on Sessions, and count VI, assault with a deadly weapon, a rifle, on Sessions. As to counts I, II, IV, V, and VI, it was alleged the offenses occurred in September 16, 1995, and appellant personally used a firearm and in counts I, II, IV, and VI inflicted great bodily injury. Appellant pleaded not guilty and denied the enhancements. The information did not state any allegations as to the statute of limitations.
C. Appellant's Motion to Dismiss
On September 14, 2004, appellant filed a motion to dismiss the accusatory pleading because the prosecution had been unreasonably delayed in violation of appellant's state and federal due process rights. The delay was more than nine years, between the occurrence of the crimes on September 16, 1995, and appellant's arrest on July 7, 2004, and the delay was prejudicial because appellant was unable to secure material witnesses and their memories were fading. Appellant further argued he had resided in Kern County during that entire period, he did not delay the prosecution, he briefly reunited with Maria, there was no evidence that he fled to Mexico, he did not know that charges were filed against him, and there was no reason for the prosecutorial delay.
Appellant asserted that aside from the night of the shooting, the police reports indicated the officers failed to further investigate appellant's whereabouts, even though he continued to live and work in Kern County. " If the officers were looking for [appellant] he would have been easy to find considering during the time in question the victim and [appellant] continued their relationship."
Appellant requested dismissal of the information because the nine-year delay between the shooting and his arrest violated his due process rights, the prosecution made no efforts to locate him, and there was no justification for the delay.
Appellant submitted his own declaration in support of his motion, and stated that between September 16, 1995 and July 8, 2004, he resided in Lamont, he did not know anything about the case until he was arrested, and he had done nothing to avoid service or delay the prosecution. Appellant submitted records from the traffic division showing he received traffic tickets in Kern County in 1997, 2002, and 2003. Appellant also submitted employment and tax records showing that he had construction jobs in Kern County and lived in Lamont during that time.
On September 22, 2004, the prosecution filed opposition to appellant's motion to dismiss, and argued that law enforcement agencies engaged in extensive and unsuccessful efforts to locate appellant after the shooting incident and the filing of the complaint, appellant's due process and speedy trial rights were not violated, any delay was caused by appellant, and he failed to show actual prejudice. Appellant's motion claimed he did not know charges were filed against him. When appellant was arrested, however, he admitted that he fled to Mexico after the shooting to avoid the charges in this case.
The prosecution submitted numerous documentary exhibits as to law enforcement's efforts to find appellant. A " Warrant Service History" and " Register of Actions" states that on October 3, 1995, a declaration was filed under penalty of perjury in support of an arrest warrant, and Judge Charles Pfister issued a $50,000 bench warrant for appellant's arrest. The warrant was assigned to a law enforcement agency on the same day. The instant record does not contain a copy of the actual warrant.
These exhibits further state that on October 4, 1995, the pending arrest warrant was assigned to a peace officer for execution, a worksheet was created and sent locally, and an entry was made in CLETS. The worksheet states that " due diligence" was reported on September 1, 1996, July 1, 1997, May 1, 1998, March 1, 1999, and January 1, 2000. On January 10, 2000, an officer extended the purge date for the bench warrant.
The exhibits reflect that on May 3, 2000, a check of California driver's license records revealed appellant claimed an address on Glencoe Place in Lamont since August 1999. On May 12, 2000, officers arrived at the Glencoe Place residence to execute the outstanding arrest warrant but no one was home. A neighbor told the officers appellant did not live there, but he visited as recently as two weeks earlier. On the same day, the officers contacted Maria, who said she had seen appellant in various locations in Lamont. Maria claimed she called the sheriff's department whenever she saw appellant, but appellant was gone when the officers responded.
The exhibits further reflect that " due diligence" was reported on September 1, 2001; July 1, 2002; May 1, 2003; and March 1, 2004. On July 7, 2004, appellant was arrested.
On September 28, 2004, the court was scheduled to hear argument on appellant's motion to dismiss. Defense counsel, however, requested to withdraw the motion, did not give an explanation for this request, and the court granted the request without discussion.
D. The Amended Information and the Instructions
On October 18, 2004, an amended information was filed which alleged the same offenses, but corrected count II as assault with a firearm on Maria instead of Sessions. The information did not state any allegations as to the statute of limitations. On the same day appellant's jury trial began.
After the parties rested, the court conducted the instructional conference on the record, with both the prosecutor and defense counsel present. Defense counsel repeatedly interjected comments and objections, and requested particular instructions. For example, appellant had been charged with two counts of attempted murder, as to Maria and Sessions. The court asked the prosecutor if she offered the appropriate instructions for attempted murder. Defense counsel objected to attempted murder instructions:
" [DEFENSE COUNSEL]: Since there's no evidence on that, could we stipulate to that not being brought in? That there not being a jury instruction to that?
" THE COURT: Well, there's two charges of attempted murder; correct?
" [DEFENSE COUNSEL]: Correct.
" THE COURT: And you're asking to instruct on that, those two counts; are you not ...?
" [THE PROSECUTOR]: Yes, Your Honor.
" [DEFENSE COUNSEL]: I'm asking that the instruction not be given due to the fact that there's been no evidence presented which shows any type of willful, deliberate premeditation."
The court asked the prosecutor to respond, and she argued there was more than enough evidence to support the attempted murder instructions. Defense counsel disagreed and challenged the prosecutor's evaluation of the evidence. The court agreed with the prosecutor and found sufficient evidence to instruct on attempted murder.
The court next turned to instructions for attempted voluntary manslaughter:
" [THE COURT]: Now you have [CALJIC No.] 8.41, attempted voluntary manslaughter, and you're asking the Court to give that instruction; is that correct?
" [THE PROSECUTOR]: As a lesser, yes, Your Honor."
The court read through the series of instructions on attempted voluntary manslaughter, and the prosecutor agreed with the court's decision. Defense counsel did not comment or object during this exchange between the court and the prosecutor.
The court then addressed instructions on abandonment of attempt, and asked if defense counsel wanted these instructions. Defense counsel agreed but the prosecutor objected. The court decided to give the instructions.
When the court reached the instructions for count III, stalking, defense counsel objected and argued there was no evidence of that crime. The court agreed and directed for an acquittal to be entered for the stalking charge. As for the assault offenses, defense counsel asked for instructions on battery and assault as lesser included offenses.
After the court read the instructions, the jury was excused to begin deliberations, but the court asked the parties if there were any additional issues about the instructions. Defense counsel advised the court that it should have read an instruction on mutual combat. The court asked if the parties wanted to bring the jury back and read additional instructions, the parties discussed the issue, and defense counsel declined.
As noted ante, appellant was convicted of attempted voluntary manslaughter of Maria as a lesser included offense of attempted murder, assault with a firearm as to Maria and Sessions, and assault with a deadly weapon as to Sessions.
E. McGee, Cowan, Williams, and the Statute of Limitations
Appellant contends his convictions for attempted voluntary manslaughter, assault with a firearm, and assault with a deadly weapon must be reversed because the instant prosecution was barred by the statute of limitations, there were no allegations in the information to indicate the statute was tolled, there is no evidence a valid arrest warrant was issued in this case to toll the statute, and defense counsel never agreed to the instructions on attempted voluntary manslaughter as a lesser included offense, which could be treated as a forfeiture of the limitations issue.
" Historically, the statute of limitations was viewed as a matter of subject matter jurisdiction, and a defendant's conviction of a time-barred offense was void, even if he failed to assert the statute of limitations as a defense in the trial court. [Citations.] Recently, however, the Supreme Court 'adjusted the rationale of these cases, although not their holdings' by abandoning the theory that a court lacks fundamental subject matter jurisdiction over a time-barred criminal charge. [Citation.]" (People v. Beasley (2003) 105 Cal.App.4th 1078, 1089 (Beasley).)
The California Supreme Court has developed and clarified these concepts in a series of cases. In People v. McGee (1934) 1 Cal.2d 611 (McGee), the court addressed whether the statute of limitations in criminal cases was jurisdictional, or an affirmative defense to be pleaded by the defendant. McGee noted the then-existing decisional law was in a " most confused state." (Id. at p. 613.)
" ... In our view, the more desirable rule is that the statute is jurisdictional, and that an indictment or information which shows on its face that the prosecution is barred by limitations fails to state a public offense. The point may therefore be raised at any time, before or after judgment. [¶] ... It follows that where the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, ... the power to proceed in the case is gone." (McGee, supra, 1 Cal.2d at pp. 613-614.)
In Cowan v. Superior Court (1996) 14 Cal.4th 367 (Cowan), the court expressly overruled McGee " to the extent it suggests a court lacks fundamental subject matter jurisdiction over a time-barred criminal action." (Id. at p. 374.) The defendant was charged with three 10-year-old murders. He entered into a plea agreement, pleaded no contest to one count of voluntary manslaughter, and the murder charges were dismissed. Prior to sentencing, however, the prosecutor moved to set aside the plea as illegal because the statute of limitations had run on the lesser offense. The defendant offered to waive the statute of limitations, but the court rejected the offer and granted the prosecutor's motion on the ground the defect was a jurisdictional one that could not be overcome by stipulation. (Id. at p. 370.)
Cowan held the trial court should have accepted the plea. Cowan began its discussion by noting the distinction between the concepts of waiver and forfeiture: " '" Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]" [Citation.]' [Citation.]" (Cowan, supra, 14 Cal.4th at p. 371.) Cowan held a defendant " may expressly waive the statute of limitations when ... the waiver is for his benefit." (Id. at p. 370.) Cowan then distinguished the circumstances in that case from those in earlier forfeiture cases, beginning with McGee, where the court had referred to the statute of limitations as " jurisdictional." (Id. p. 374.)
" Although our decisions involve forfeiture, and are thus easy to distinguish, we must reconsider some of the broad language of those decisions. In [McGee], we phrased the issue as whether the statute of limitations is 'jurisdictional.' Later cases have echoed this phrasing. We have even stated that the statute of limitations involves '" the power of the courts to proceed." ' [Citation.] If, indeed, a court lacks fundamental subject matter jurisdiction over a time-barred offense, then the parties cannot waive the statute of limitations, for it is settled that the act of a litigant cannot confer subject matter jurisdiction on the court. [Citations.] But none of our cases involved a lesser offense to a charged offense such as murder that was not time-barred and over which the court unquestionably did have jurisdiction, i.e., the power to proceed. We did not confront facts in which it might be to a defendant's advantage to waive the statute of limitations. We had no reason to anticipate a case like this where a rule stated for the defendant's benefit might actually harm the defendant. Our analysis requires a slight adjustment to accommodate the very different factual situation presented here. In this case, because the court had the power to proceed over the murder charge, it should also have the power to proceed over a lesser included (or even related) offense. 'Whether a defendant may waive the statute of limitations for purposes of jury instruction and possible conviction of a lesser-included offense is an issue separate from that of the legality of prosecution of an offense barred by the statute.' [Citation.]" (Cowan, supra, 14 Cal.4th at p. 373, italics in original.)
" The court may act in excess of jurisdiction in accepting a guilty plea to a time-barred lesser offense, but, contrary to our earlier broad statements, it does not lack fundamental subject matter jurisdiction." (Cowan, supra, 14 Cal.4th at p. 374, italics in original.) Cowan thus overruled McGee's " jurisdictional" rationale, but declined to reach the question of forfeiture.
" … As the defendant here seeks expressly to waive the statute of limitations, we have no need to decide whether we should overrule these cases entirely and hold that the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial." (Cowan, supra, 14 Cal.4th at p. 374.)
Justice Brown filed a concurring and dissenting opinion in Cowan, and argued the jurisdictional approach to the statute of limitations had unanticipated consequences with regard to lesser included offenses. (Cowan, supra, 14 Cal.4th at p. 385 (conc. & dis. opn. of Brown, J.).) As an illustration, Justice Brown pointed to People v. Rose (1972) 28 Cal.App.3d 415 (Rose), where the defendant was charged with murder and was convicted of voluntary manslaughter. On its own motion, Rose reversed the conviction on appeal, explaining the manslaughter conviction was barred by the statute of limitations. (Cowan, supra, 14 Cal.4th at p. 385 (conc. & dis. opn. of Brown, J.)), citing Rose, supra, 28 Cal.App.3d at pp. 416-418.) Although Rose recognized that the " 'state of the record may be the result of defense strategy pointed at preventing the jury from having to choose between murder and acquittal,'" the court nevertheless reversed finding the conviction jurisdictional defective. (Cowan, supra, 14 Cal.4th at p. 385 (conc. & dis. opn. of Brown, J.)), citing Rose, supra, 28 Cal.App.3d at p. 417.) Justice Brown believed such a result was a direct consequence of McGee, and stated that she would overrule McGee and hold that the statute of limitations constitutes an affirmative defense. (Cowan v. Superior Court, supra, 14 Cal.4th at pp. 386-387 (conc. & dis. opn. of Brown, J.).)
In People v. Williams (1999) 21 Cal.4th 335 (Williams), the court addressed forfeiture and the statute of limitations. The defendant was charged with an offense that was time-barred, based on the allegations in the information, but the information contained no additional allegations as to whether the statute of limitations barred the action. At trial, the defendant did not raise the statute of limitations. He pleaded not guilty, waived a jury trial, and the court found him guilty as charged. On appeal, the defendant argued for the first time that the prosecution was time-barred because the information alleged he committed the offense more than three years before it was filed, and it contained no other facts or tolling allegations that would make the prosecution timely. The People argued the defendant forfeited his right to raise this argument because he failed to assert it below. In the alternative, the People cited to evidence outside the appellate record, argued the prosecution was timely because an arrest warrant had been issued within the statutory time limit, and delayed discovery tolled the statute of limitations. (Id. at p. 338.)
Williams acknowledged that Cowan " adjusted" the analysis in McGee, but Williams declined to go any further to overrule McGee. (Williams, supra, 21 Cal.4th at pp. 337-338.) Williams held the statue of limitations was not an affirmative defense, and the defendant could raise the statute of limitations challenge on appeal. (Id. at p. 341.)
" We conclude that a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (Williams, supra, 21 Cal.4th at p. 338.)
Williams reiterated its holding in Cowan, however, that a court does not lack fundamental subject matter jurisdiction, i.e., the power to proceed, over a time-barred offense. (Williams, supra, 21 Cal.4th at p. 340.) But Williams declined to find that the statute of limitations was an affirmative defense, which was forfeited if not raised at trial. (Id. at p. 341.)
" Creating a new forfeiture rule would be bad policy. The statute of limitations, when applicable, completely bars the prosecution. To allow defendants to lose the protection of the limitation accidentally could mean that persons could languish in prison under convictions that could not have occurred had they merely thought of the statute of limitations in time. For example, suppose a person was charged with a burglary that had occurred 20 years earlier. The information, on its face, makes clear the prosecution is time-barred. The defendant had lived a law-abiding life in the interim. At arraignment, he forthrightly admits his guilt, waives his right to an attorney, and pleads guilty. The next day, he learns of the statute of limitations. We do not believe he should be bound forever. That is what we have repeatedly said for 60 years." (Williams, supra, 21 Cal.4th at p. 341.)
Williams noted that a forfeiture rule would be an " exercise in futility" because defendants would simply claim their attorneys were ineffective for not raising the statute of limitations at trial, and a forfeiture rule " would merely add a step to the litigation." (Williams, supra, 21 Cal.4th at p. 342.) Williams further noted the problem was limited to those cases in which the prosecution files a charging document that, on its face, indicates an offense is time-barred. (Id. at p. 344.)
" McGee does not apply to an information that, as it should, either shows that the offense was committed within the time period or contains tolling allegations. Although, under our cases, defendants may not forfeit the statute of limitations if it has expired as a matter of law, they may certainly lose the ability to litigate factual issues such as questions of tolling." (Williams, supra, 21 Cal.4th at p. 344.)[4]
Williams rejected the People's argument that requiring the defendant to raise the limitations issue at trial would encourage the parties to focus on the issue at that level, where an adequate record could be developed. (Id. at p. 345.)
" But our long-standing rule requiring the prosecution to file a charging document that is not, on its face, time-barred also encourages the parties to focus on the issue at that level. In a similar vein, the Attorney General complains that 'principles of due process are violated when a conviction is vacated based on a ground to which the People have no opportunity to respond.' However, the prosecutor has full control over the charging document. Here, the district attorney could easily have alleged in the information either that an arrest warrant issued before the time period had expired, or that the action was filed timely after discovery of the crime, or both (assuming either allegation is factually supported). The silent record is partly the defendant's fault for not raising the issue at trial. It was, however, the prosecution's fault in the first instance for filing an information that, on its face, was untimely. In that situation, the fairest solution is to remand the matter to determine whether the action is, in fact, timely." (Williams, supra, 21 Cal.4th at p. 345, italics in original.)
Williams next turned to the People's argument that a forfeiture rule would avoid " 'gamsesmanship,' and that without such a rule defense counsel might 'sandbag' the trial court." (Williams, supra, 21 Cal.4th at p. 346.)
" We see no significant potential for gamesmanship or sandbagging when the defendant is convicted of a charged offense that the charging document indicates is untimely. If the instant action is, in fact, time-barred and should have been dismissed long ago, defendant has not gained by his delay in asserting the claim. Similarly, if on remand, the trial court determines the action is not time-barred, the conviction will stand despite the prosecution's error in filing an information that appeared time-barred--again, resulting in no benefit to defendant.
" The 'gamesmanship' argument is generally made in the context of convictions of time-barred lesser offenses when the charged offense is timely. [Citation.] Although McGee itself applied only 'where the pleading of the state shows that the period of the statute of limitations has run' [citation], some intermediate appellate court decisions have extended its rule to convictions of lesser offenses. [Citation.] Conviction, by plea or otherwise, of a lesser offense than the one charged involves separate concerns and problems not present here. Issues regarding lesser offenses may arise in a variety of factual contexts. We express no opinion on the proper resolution of any such questions but leave them for future appellate courts to decide in cases that actually present them. Today's decision involves only a conviction of a charged offense that, so far as the face of the charging document shows, is untimely." (Williams, supra, 21 Cal.4th at p. 346, fns. omitted.)
Williams thus held the proper method for evaluating a statute of limitations defense, raised for the first time on appeal based upon a facially deficient pleading, was for the appellate court to review the entirety of the record. (Williams, supra, 21 Cal.4th at p. 341.) If the court could not determine " from the available record" whether the action was barred, the case may be remanded to the trial court for factual findings on the statute of limitations question. (Ibid.) " [I]f on remand, the trial court determines the action is not time-barred, the conviction will stand despite the prosecution's error in filing an information that appeared time-barred ...." (Id. at p. 346.) Williams remanded the matter for the trial court to determine whether the action was time-barred. If the trial court found the limitations period had run, it was instructed to vacate the judgment. If the trial court found the limitations period had not run, then the judgment of conviction would stand. (Id. at pp. 338, 346.)
As applicable to the instant case, we must determine the limitations periods for appellant's offenses, whether the limitations period had run, or whether these periods were tolled. Since appellant committed the offenses in 1995, we look to the statute of limitations applicable at that time. (People v. Angel (1999) 70 Cal.App.4th 1141, 1145, fn. 4 (Angel).) In 1995, as at the present time, in determining the applicable limitations period, an offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. (§ 805, subd. (a); People v. Guevara (2004) 121 Cal.App.4th 17, 24 (Guevara).)[5] In the case of a conviction of a lesser and necessarily included offense, the applicable limitations period is that for the lesser offense, regardless of the period applicable to the greater offense. (§ 805, subd. (b); People v. Statum (2002) 28 Cal.4th 682, 699 (Statum).)
The prosecution of an offense punishable by imprisonment for life may be commenced at any time (§ 799). The prosecution of an offense punishable by imprisonment for eight years or more shall be commenced within six years after the commission of the offense (§ 800). The prosecution of an offense punishable for a lesser term of imprisonment shall be commenced within three years (§ 801). A prosecution is typically commenced when an indictment or information is filed in a felony action (§ 804, subd. (a)).
In count I, appellant was charged with attempted murder, which could have been punishable by life imprisonment and thus commenced at any time. However, he was convicted of the lesser included offense of attempted voluntary manslaughter. In 1995, voluntary manslaughter carried a maximum term of 11 years (§ 193, subd. (a))), an attempt is punishable for one-half that term, or five and a half years (§ 664, subd. (a)), so the limitations period was three years.
In counts II and V, appellant was charged and convicted of assault with a firearm, which carries a maximum punishment of four years (§ 245, subd. (a)(2)). In count VI, appellant was charged and convicted of assault with a deadly weapon, which also carries a maximum punishment of four years (§ 245, subd. (a)(1)). The limitations period for each of these offenses was three years.[6]
Each of appellant's offenses thus carried limitation periods of three years. Appellant was charged and convicted of offenses which occurred on September 16, 1995, the complaint was filed on October 3, 1995, and the three-year limitation periods ended in 1998. However, appellant was not apprehended until July 7, 2004, the first information was filed on August 2, 2004, and the amended information filed on October 18, 2004. Neither the complaint nor the informations carried any allegations to support tolling of the limitations periods for these counts, and appellant has raised the specific issue of the statute of limitations for the first time on appeal.
Since appellant raises this issue for the first time on appeal, the question herein is " whether the record demonstrates that the crime charged actually fell within the applicable statute of limitations." (People v. Smith (2002) 98 Cal.App.4th 1182, 1193.) We are not limited to the face of the pleadings, but may examine the entire record for undisputed facts to determine whether the offenses are in fact time-barred. (Williams, supra, 21 Cal.4th at p. 341.) If there are undisputed facts providing a basis for tolling the limitations period, it is immaterial that such facts were neither expressly pleaded nor proved. (Lewis, supra, 180 Cal.App.3d at pp. 821-822.) " Nothing in the case law requires reversal or retrial for jurisdictional defects when those defects are as a matter of law cured on the undisputed record." (Posten, supra, 108 Cal.App.3d at p. 648.)
F. Attempted Voluntary Manslaughter
Appellant contends his conviction for attempted voluntary manslaughter is time-barred because it was not brought within three years of the commission of the offense, and there is no evidence to find the statute was tolled. Appellant acknowledges that in count I, he was charged with attempted murder, and such an action may be brought at any time (§ 799). Appellant correctly asserts that since he was convicted of attempted voluntary manslaughter as a lesser included offense, the applicable limitations period is that for the lesser offense, which is three years. (§§ 801, 805, subd. (b); People v. Statum, supra, 28 Cal.4th at p. 699.) As we discussed ante, the trial court instructed on attempted voluntary manslaughter as lesser included offenses of the two counts of attempted murder in this case.
In People v. Stanfill (1999) 76 Cal.App.4th 1137 (Stanfill), the court addressed a similar situation involving application of the forfeiture doctrine to the limitations period for a lesser included offense. The defendant was charged with felony embezzlement, and requested instructions on both lesser included offenses and the statute of limitations " generally." (Id. at pp. 1139, 1142, fn. 1). A jury convicted him of a lesser included misdemeanor offense. (Id. at p. 1139.) On appeal, the defendant argued the trial court misinstructed the jury by addressing the three-year felony limitations period for the charged crime, but not informing the jury of the one-year limitations period for the lesser-included misdemeanor. (Id. at pp. 1142-1144.)
Stanfill noted the case did not involve any express waiver of the statute of limitations, but instead presented the issue left undecided in Cowan and Williams, as to whether forfeiture should apply to the conviction of a time-barred lesser offense when the charged offense was not time-barred. (Stanfill, supra, 76 Cal.App.4th at p. 1146.) Stanfill held:
" [A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense." (Id. at p. 1150.)
In reaching this conclusion, Stanfill extensively reviewed Williams' discussion of the potential for gamesmanship and sandbagging, and Justice Brown's dissent in Cowan. (Stanfill, supra, 76 Cal.App.4th at p. 1147.) Stanfill held it would be unconscionable to allow a defendant to remain quiet about a statute of limitations problem in order to secure an instruction on a lesser offense in the trial court without expressly waiving the limitations problem. (Stanfill, supra, 76 Cal.App.4th at p. 1148.) Such a situation " exposes the potential for gamesmanship and sandbagging by the defense." (Id. at pp. 1147-1148.)
" … Just as a defendant before Cowan was tempted to remain quiet about an expired statute of limitations in order to secure the advantage of lesser offense instruction yet have any conviction reversed on appeal, so a defendant after Cowan has an incentive to do basically the same thing. Without a rule that acquiescence or failure to object acts as a forfeiture, the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived. This is an unconscionable result that calls for a forfeiture rule. Beyond removing the incentive for gamesmanship, 'requiring a defendant to raise a statute of limitations issue in the trial court ... would encourage the parties to focus on the issue at that level, where it can be fully explored and an adequate record developed.' (Cowan, supra, 14 Cal.4th at p. 387 (conc. & dis. opn. of Brown, J.).) We would also prevent surprise and prejudice to the prosecution. Because lesser included offenses are not charged in the accusatory pleading, '... there is no reason for the prosecution to include discovery or tolling allegations as to those offenses. [Citations.]' (Id., at p. 387, fn. 2.) Raising the issue in the trial court would allow an opportunity to amend the accusatory pleading to rectify those situations where tolling provisions might apply to the lesser offense. [Citations.] Finally, proper resolution of the issue in the trial court would, of course, remove any need for an appeal, reversal and retrial on that issue, a delay that could prejudice both parties by fostering stale evidence and dull memories (Cowan, supra, 14 Cal.4th at p. 387 (conc. & dis. opn. of Brown, J.))--paradoxically, the key reasons for having a statute of limitations in the first place." (Stanfill, supra, 76 Cal.App.4th at pp. 1148-1149, italics added.)
Moreover, any ineffective assistance of counsel claim would not necessarily have merit because defense counsel could have a tactical reason for acquiescing to the time-barred lesser offense and not raising the limitations bar in order to give the jury a choice between the greater offense and acquittal. (Stanfill, supra, 76 Cal.App.4th at pp. 1149-1150.)
In Beasley, the defendant was charged with multiple counts of assault with a deadly weapon but convicted of the lesser included offenses of misdemeanor assault. On appeal, the defendant argued the convictions were time-barred. The People relied on Stanfill and argued the defendant waived the statute of limitations by failing to raise it at trial, and acquiescing in the lesser included offense instructions. (Beasley, supra, 105 Cal.App.4th at pp. 1088-1089.) Beasley acknowledged and distinguished the holding in Stanfill from the case therein:
" In contrast [to Stanfill], nothing in the record indicates [the defendant] requested or acquiesced in the instruction on assault as a lesser included offense of assault with a deadly weapon, and no statute of limitations instructions were given. Accordingly, [Stanfill] is inapplicable. To hold that [the defendant] forfeited his statute of limitations defense with respect to the misdemeanor assault counts in issue would contravene the long-standing principle, which [Williams] expressly declined to overrule, that a defendant may not inadvertently forfeit the statute of limitations. [¶] Moreover, even if [the defendant] failed to preserve the statute of limitations issue for review, this court may exercise its discretion to review it. [Citation.]" (Beasley, supra, 105 Cal.App.4th at pp. 1089-1090.)
However, Beasley reversed the lesser included misdemeanor convictions instead of remanding the matter as directed in Williams. (Beasley, supra, 105 Cal.App.4th at p. 1090.)[7]
In the instant case, we find Stanfill's arguments persuasive and similarly conclude that appellant has forfeited a statute of limitations challenge to his conviction for attempted voluntary manslaughter because he acquiesced in the court giving instructions on the lesser included offense. As set forth ante, the trial court herein conducted the instructional conference on the record, the prosecutor and defense counsel extensively discussed the instructions with the court, and defense counsel repeatedly interjected objections or requested specific instructions. When the court addressed the attempted murder instructions, defense counsel objected and argued there was no evidence to support the two counts. The court overruled the objection, and then asked about instructions on attempted voluntary manslaughter as a lesser included offense of attempted murder. The prosecutor agreed and defense counsel did not object. When the court reached count III, stalking, defense counsel again objected and argued there was no evidence to support instructions for the offense. This time, the court agreed and entered an acquittal for that charge. Appellant's acquiescence to the attempted voluntary manslaughter instructions, as a lesser inclu
