P. v. Buckingham

Filed 8/7/07 P. v. Buckingham CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On January 31, 2006, the Kern County District Attorney filed an information in superior court charging appellant Joshua Shannon McProud aka Robert Steven Buckingham^[1]with second degree burglary of a vehicle (Pen. Code,  460, subd (b)).

On February 1, 2006, appellant was arraigned and pleaded not guilty to the substantive count.

On March 17, 2006, appellant declined a plea agreement entailing a 16-month term of imprisonment.

On March 27, 2006, jury trial commenced.

On March 28, 2006, the jury returned a verdict finding appellant guilty as charged.

On May 4, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to the middle term of two years on the substantive count. The court ordered appellant to provide samples of prints and bodily fluids (Pen. Code,  296), imposed a $200 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), imposed a $20 court security fee ( 1465.8), ordered appellant to pay $10,000 in restitution ( 1202.4, subd. (f)), and awarded 60 days of custody credits.

On the same date, appellant filed a timely notice of appeal.

On June 2, 2006, the court granted appellant bail on appeal.

STATEMENT OF FACTS

On January 3, 2000, Bakersfield Police Officer Greg Williamson went to Stockdale Glass Company on Easton Drive to investigate the burglary of a vehicle. Peter Roussel, owner of the firm, reported that his companys van had been burglarized of its contents sometime between December 31, 1999 and January 2, 2000.

Roussel had owned the company for 28 years. The company had a 1984 Chevrolet van and used it to store and transport equipment for the installation of glass. Roussel purchased the van from a leasing company and had owned it for several years at the time of the burglary. Roussel told Officer Williamson it was the custom of his firm to lock the van every night and to store the keys in the business office.

At the close of business on New Years Eve, December 31, 1999, the van was locked according to the firm practice. When Roussel returned to the business after the holiday weekend, he saw that the vented window on the passenger side had been pried open. The bottom of a window was dangling from the door frame. Roussel said glass had been broken out and was lying on the ground. He looked inside the vehicle and found that all of the glass installation equipment, including grinders, drills, a compressor, and a generator, was gone. He estimated the value of the property to be $10,000.

Heidi Roberson, a service technician with the Bakersfield Police Department, responded to the scene and lifted a fingerprint from the interior of the passengers side wing window at the top. The fingerprint was analyzed and determined to belong to one Joshua McProud. On January 11, 2006, Catherine Kibbey, a Bakersfield Police Department crime scene unit supervisor, compared appellants fingerprints with the print that Roberson lifted from the wing window. Kibbey testified the print matched the right middle finger of appellant.

Defense

Appellants sister, Roni Shannon Dansby, and mother, Shirlee Baker, testified appellant spent Christmas and New Years with them at their family home in Coleman, Texas. Baker said her mother was suffering from terminal cancer and appellants trip to Texas was a Christmas present to her. Dansby and Baker also said appellant did not leave Texas until January 2, 2000. On that date, he drove home to California with Dansby. Dansby said she and appellant arrived in Santa Clarita on January 3, 2000. Neither Dansby nor Baker had ever heard appellant use the name Joshua McProud.

DISCUSSION

I.

THE BURGLARY CONVICTION IS SUPPORTED BY SUBSTANTIAL

EVIDENCE

Appellant contends there was insufficient evidence to convict him of burglary of an automobile.

He specifically argues:

[T]he only evidence that connected appellant to a six-year-old auto burglary, was a single fingerprint found inside the wing window. The van sat unattended in the parking lot of the business to which it belonged over the long New Years Eve weekend of 1999 2000.

The owner of the van testified he had purchased the van used from an automobile leasing company only a few years earlier and had no information about other previous owners.

The defense presented evidence that appellant was at his familys home in Texas for Christmas and the millennium New Years celebration.

The prosecution presented no evidence that the fingerprint was left at or near the time of the burglary and not some earlier time; nor any evidence that the van was unaccessible to appellant prior to the burglary; nor any evidence that appellant was at any time in possession of the stolen property. Case law, both federal and state, instructs that a conviction cannot be based on solely on a fingerprint without more, as this constitutes mere conjecture. This failure of evidence is particularly important in the instant case as the van was 15 years old and the business had purchased it used only a few years before the burglary from an automobile leasing company. Both California and Federal cases hold that without something more, this is insufficient as a matter of law to uphold this conviction.

Penal Code section 459 states in relevant part:

Every person who enters any ... vehicle as defined by the Vehicle Code, when the doors are locked ... with intent to commit grand or petit larceny or any felony is guilty of burglary....

The common law element of breaking has never been an essential element of statutory burglary in California. Burglary from a vehicle is the lone exception, requiring that the doors of a vehicle be locked. Yet, neither forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary. Auto burglary can be committed only by entering a locked vehicle without the owners consent. Such burglary is only accomplished by altering the vehicles physical condition. At worst, this alteration is accomplished by smashing a window. At best, this alteration is accomplished by illegal unlocking the vehicle. These extremes, as well as other possible types of forcible entries, necessarily involve unlawfully altering the vehicles locked state. The burglary statute is to be construed flexibly in light of the legislative objective to make it more serious to break into interior sections of locked cars than merely stealing from them. (In re James B. (2003) 109 Cal.App.4th 862, 867-869.) The existence of a burglary does not turn on the locked or unlocked state of an area not involved in the entry. If the entry is made by unlocking one area of the vehicle, it is immaterial that some other area of the vehicle is already unlocked. In determining whether unlocking has occurred, courts focus on whether the securing devices, or parts of the vehicle, are broken or destroyed, such as when a window is smashed. (People v. Allen (2001) 86 Cal.App.4th 909, 914-915.)

In assessing a claim of insufficiency of the evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment. The court must determine whether the record discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ringo (2005) 134 Cal.App.4th 870, 880.) In order to succeed in a challenge on appeal to the sufficiency of the evidence, an appellant must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 793.)

We may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)

Appellant contends it was unreasonable for the trier of fact to conclude that the fingerprint evidence was sufficient to convict him where there were no additional circumstances supporting guilt. The California Supreme Court has long held that fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant. (People v. Johnson (1988) 47 Cal.3d 576, 601.) Appellant nevertheless focuses his attention on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes). In Mikes, the defendant was convicted of first degree murder with use of a deadly or dangerous weapon and was sentenced to state prison for 25 years to life. The governments case was based on the presence of defendants fingerprints on three chrome turnstile posts located near the victims body. Other, unidentifiable prints were also detected on the posts. In addition, other prints were detected at the crime scene but were not identified as defendants. On petition for writ of habeas corpus, the Ninth Circuit Court of Appeals reversed the judgment of conviction.

In Mikes, the prosecutions case rested exclusively on the theory that the defendants fingerprints were impressed on the turnstile posts during the commission of the crime. In certain cases, fingerprint evidence alone may support a conviction under certain circumstances. However, a different question is presented in fingerprint-only cases in which the prosecutions theory is based on the premise that the defendant handled certain objects while committing the crime in question. In such cases, the record must contain sufficient evidence from which the trier of fact could reasonably infer that the fingerprints were in fact impressed at that time and not at some earlier date. To meet this standard, the prosecution must present evidence sufficient to permit the jury to conclude that the objects on which the fingerprints appear were inaccessible to the defendant prior to the time of the commission of the crime. (Mikes, supra, 947 F.2d at pp. 356-357.)

The prosecution in Mikes rested its case on the theory that the defendants fingerprints were placed on the murder weapon at the time the crime was committed. However, the detached turnstile posts had only been in the victims basement for four months. Prior to that time, they had been on display in a store. The record failed to establish that the turnstile posts were inaccessible to the defendant during the relevant period preceding the commission of the offense. As a result, the Ninth Circuit concluded that the defendants conviction violated his right to due process and reversal was required. (Mikes, supra, 947 F.2d at pp. 358-359, 361.)

In Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-910, the victim was killed in her apartment. Police officers believe the assailant entered the apartment through the kitchen window. Officers discovered a fingerprint matching the defendants on the bottom inside edge of the windowsill. The fingerprint was the only evidence linking the defendant to the crime. The Ninth Circuit held the fingerprint constituted sufficient evidence to support the conviction because the inside of the victims windowsill was not a public place. Unlike the turnstile posts in Mikes, the fingerprint on the inside of the windowsill could not have been placed there at any time except during the commission of the crime. The print was consistent with someone reaching over the windowsill from the outside, which, the police concluded, was how the murderer entered the victims apartment.

In Schell v. Witek (9th Cir. 2000) 218 F.3d 1017 (Schell), the defendant filed a petition for writ of habeas corpus contending the states case lacked sufficient evidence to support the jurys guilty verdict on a burglary charge. The burglary took place in an apartment in 1991. The burglar stacked two milk crates on top of each other, removed a screen, and entered the apartment through a louvered window more than six feet off the ground. The burglar left the screen outside the apartment near the milk crates. The burglar also removed two of the louvered window panes and placed them on a microwave oven inside the apartment. Police discovered appellants fingerprint on the interior surface of one the panes. Relying on Mikes, the defendant claimed the single fingerprint on the glass louver was insufficient to prove he committed the crime. (Id. at pp. 1020-1022.)

The Ninth Circuit disagreed. The fingerprint was obtained from the interior of one of the two lower panes of a louvered window removed during the burglary. The window was more than six feet off the ground in a gated yard and not near a public walkway. As in Taylor, any jury reasonably could have inferred Schell left his fingerprint on the inside of the screen-protected window during the commission of the burglary. The apartment dweller said she washed the windows every six months and nothing in the record suggested that the pane had been purchased within the preceding six months. Moreover, the record evidence was irreconcilable with the assertion that the defendanta stranger to the apartment dwellermight have innocently touched the inside of the louver on some previous occasion. Viewing the facts in the light most favorable to the State, the Ninth Circuit held a reasonable jury could find Schell guilty beyond a reasonable doubt. (Schell, supra, 218 F.3d at p. 1023.)

In the instant case, we initially note that Mikes is not binding authority on California courts; rather it is persuasive authority. The California Supreme Court has repeatedly emphasized that fingerprints are the strongest evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator of the crime. (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587-1588.) Roussels business, Stockdale Glass, owned the Chevrolet van and used it to transport tools and equipment. The van was manufactured between 1984 and 1986 and Roussel purchased it from Dunlap Leasing and owned it for several years. Roussel said he employed about eight people at the time of the charged offense, but did not know appellant and had never employed him. According to Roussel, the passenger door of the van rolls up and down. And in front of that theres a vent glass that opens and closes manually. Roussel said the vent glass, also known as a wing window, had a steel frame that set into a socket or pivot.

On the first work day of year 2000, Roussel walked to the van and saw the passenger door was unlocked. The vent glass had been broken and the vent assembly had been jammed. The wing window was flopping on the bottom and the socket had been broken. Roussel said there was a pry mark where something was put underneath the vent glass and pried. Police technician Heidi Roberson found a fingerprint on the inside of the passenger side wing window of Roussels business van. The print was located at the top of the window, near the point where a tool had been used to pry open the side vent window.^[2] Lieutenant Greg Williamson said the fingerprint was analyzed and determined to belong to one Joshua McProud. Catherine Kibbey subsequently compared the fingerprint from the van with a set of appellants fingerprints and matched the print of the right middle finger.

From the foregoing evidence, a reasonable jury could have concluded the location of the print was not accessible to the public and was located where the thief would have placed his hand to force the wing window open. A reasonable jury could have further inferred that the thief then reached in through the broken vent/wing window, opened the door of the van, and removed the tools and equipment stored within. Appellant disagrees, stating in his reply brief:

It is highly probable that over the course of the few years that Mr. Roussel owned this van, many hundreds of people legitimately had access to the inside of this van on the job sites where his employees, equipment, and supplies traveled to each day, assisting his employees in loading or unloading equipment, or simply leaning against an open door talking to the glass installer about the plans for that day. A commercial van, used at many, many different locations, by different employees, having contact with various contractors, construction workers, and miscellaneous other individuals is not in the same class of fingerprinted surface as is the inside of a stationary window sill in someones home, as was the case in Taylor.

The very settled rule of appellate review is that a trial courts judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Appellants contention is speculative, does not reveal error on the face of the record, and requires this court to reweigh the evidence at trial. As noted above, we must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) Appellants fingerprint on the interior of the damaged wing window was sufficient to support the judgment of conviction of second degree burglary of a vehicle.

II.

COURT SECURITY FEE^[3]

Appellant contends the trial court erroneously imposed a $20 security fee under Penal Code section 1465.8 at the time of sentencing because the fee did not exist at the time the offense occurred.

The information filed January 31, 2006, stated:

COUNT: 001, ON OR ABOUT AND BETWEEN DECEMBER 31, 1999 AND JANUARY 3, 2000, JOSHUA SHANNON MCPROUD, DID WILLFULLY AND UNLAWFULLY ENTER GMC VAN AT STOCKDALE GLASS LOCATED AT 4040 EASTON DRIVE (A BUSINESS), WITH THE INTENT TO COMMIT LARCENY OR ANY FELONY, IN VIOLATION OF PENAL CODE SECTION 460(B), A FELONY.

In 2003, the Legislature enacted Penal Code section 1465.8 which provides in relevant part:

(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.

On March 28, 2006, the jury returned a verdict of guilt of second degree burglary on the substantive count of the information.

On May 4, 2006, the court sentenced appellant and stated in relevant part: ... Hell pay a fee of $10 pursuant to 1202.5, a fee of $20 pursuant to Penal Code Section 1465.8 ....

Appellant argues:

Penal Code section 1465.8 was passed on August 2, 2003 and went into effect 15 days later, on August 17, 2003. (Stats. 2003, ch. 159 (A.B. 1759)  27.) Appellants offenses occurred between December 31, 1999 and January 3, 2000. Sentencing occurred on May 4, 2006.

California Penal Code section 3 sets out, No part of ... [the Penal Code] is retroactive, unless expressly so declared.... [] ... []

Section 1465.8 violates section 3 because it adds new consequences to and increases appellants liability for his pre-enactment conduct. The fact that, arguendo, section 1465.8 may not involve punishment does not mean that it is not subject to section 3s prohibition against retroactive application. Regardless of whether the $20.00 fee is denominated punishment or a civil assessment, it constitutes a new legal consequence attached to the offenses committed by appellant. [Citation.] It increases appellants liability for conduct that was completed before the statutes operative date. Section 1468.5 violates section 3 because it necessarily adds to the legal consequences of appellants conduct.

As appellant points out, court security fees are authorized in criminal cases by Penal Code section 1465.8, which went into effect in August of 2003. (Stats. 2003, ch. 159, 25.) The statute states, in part: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . (Pen. Code,  1465.8, subd. (a)(1).) The statute further provides the fees collected shall be sent to the state for deposit in the Trial Court Trust Fund.

(Pen. Code,  1465.8, subd. (d).)

The distinction between fines and fees has been made, for example, for purposes of deciding whether a monetary assessment, imposed on the authority of a statute enacted after the defendants offense but before sentencing, implicates the prohibition against ex post facto laws. The issue in that situation is whether the assessment is penal in nature.

In People v. Rivera (1998) 65 Cal.App.4th 705, the assessment in question was a criminal justice administration fee imposed under Government Code section 29550.2, subdivision (a), to cover the costs of arresting and booking persons convicted of crimes. The court characterized the assessment as a form of user fee, and distinguished it from a restitution fine, which serves punitive as well as restorative purposes. On that basis, the court held retroactive application of the fee statute did not violate the constitutional prohibition against ex post facto laws. (People v. Rivera, supra, at pp. 710-711.)

More recently, in People v. Wallace (2004) 120 Cal.App.4th 867, Division Five of the Court of Appeal, Second Appellate District, came to the same conclusion with respect to the court security fee in particular. The court discussed the purpose of the fee at length and held it was not punitive. Thus, the fee could be imposed, without violating the ex post facto prohibition, on a defendant whose crime preceded the enactment of Penal Code section 1465.8. The appellate court noted the court security fee is intended to cover administrative costs and not to punish the offender. (People v. Wallace, supra, at pp. 874-875, 878-879.)

As we stated above, the fee is to be paid into the Trial Court Trust Fund, which was established by Government Code section 68085. Subdivision (a)(1) of that code section provides: There is hereby established the Trial Court Trust Fund for the purposes to fund trial court operations, as defined in [Government Code] Section 77003. This latter section includes within the definition of court operations, the salaries of court personnel, court-appointed counsel in juvenile proceedings, services and supplies relating to court operations and, subject to some limitations, the actual indirect costs for county general services attributable to court operations. (Gov. Code, 77003, subd. (a).)

Appellant submits that imposition of a monetary penalty on a defendant after a conviction in a criminal case has all the characteristics of punishment. However, the Legislature has treated the $20 security fee, which is imposed in criminal and civil cases, as a nonpunitive measure and we cannot override that treatment unless there is the clearest proof that Penal Code section 1465.8 is so punitive either in purpose or effect as to negate the Legislatures intention to treat it as a civil matter. (People v. Wallace, supra, 120 Cal.App.4th at p. 878.) Appellant fails to present such proof in the instant case.

Appellant further contends Penal Code section 3 precludes retroactivity under the circumstances of the instant case. Penal Code section 3 states: Not Retroactive. No part of it [referring to the Penal Code] is retroactive, unless expressly so declared. Penal Code section 3 embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. That rule of construction, however, is not a straitjacket.... (In re Chavez (2004) 114 Cal.App.4th 989, 993.) There remains the question of what the terms prospective and retrospective mean. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)

Certainly a law is retrospective if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct. Such a law, as applied to a past crime, change[s] the legal consequences of an act completed before [the laws] effective date, namely the defendants criminal behavior. [Citations.] Application of such a law to past crimes would also violate the constitutional rule against ex post facto legislation. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288.) However, [a] statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a partys liability for, an event, transaction, or conduct that was completed before the laws effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citation.] (People v. Williams (2004) 118 Cal.App.4th 735, 747.)

Here, although appellant committed the instant offense before the effective date of Penal Code section 1465.8, he was found guilty and sentenced in 2006. Therefore, his convictions did not occur until after the effective date of the statute. In our view, although appellants conviction was necessarily dependent on his earlier commission of the instant offense, the last act or event necessary to trigger the legal consequence of the court security fee was appellants conviction. Therefore, Penal Code section 1465.8 does not operate retroactively and the imposition of the court security fee does not violate Penal Code section 3.

III.

STATUTE OF LIMITATIONS

In his supplemental opening brief, appellant contends this matter is time-barred by the statute of limitations.

He argues that the prosecution is barred and this court must reverse his conviction:

On January 31, 2006, the prosecution filed an information in Superior Court alleging one count of a violation of Penal Code section 460, subdivision (b) which occurred between December 31, 1999 and January 3, 2000 against Joshua Shannon McProud, aka Robert Steven Buckingham. The information does not allege any facts to excuse the six-year delay in the filing of the information. Under the California Supreme Court decision in People v. Williams (1999) 21 Cal.4[th] 335, this matter cannot be forfeited by failure to object below, if the charging document is deficient on its face. This court must reverse the decision of the court below and vacate the conviction on this ground. [] ... []

The statute of limitations is a societal declaration that [the government] will no longer pursue a criminal after a certain period of time. [Citation.]

Former Penal Code section 800 is now contained in section 801. It requires that an information charging a violation of a felony (with exceptions not applicable here) be filed within three years after the commission of the offense. When filed, [a]n accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations [citations], and if a period of time in excess of that permitted by the statute has elapsed since the commission of the offense, further facts must be alleged to show absence of the defendant from the state for a sufficient period to toll the statute under Penal Code section 802. [Citations.] (People v. Crosby (1962) 58 Cal.21d 713, 724-725.) [] ... []

The statute of limitations, when applicable, completely bars prosecution and no judgment of conviction can be based upon crimes that fall outside the statute.... (Fn. omitted.)

Penal Code section 801 states:

Except as provided in Sections 799 [governing offenses punishable by death or life imprisonment] and 800 [offenses punishable by imprisonment for eight years or more], prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.^[4]

Penal Code section 804 states:

Except as otherwise provided in this chapter, for the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:

(a) An indictment or information is filed.

(b) A complaint is filed charging a misdemeanor or infraction.

(c) A case is certified to the superior court.

(d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.

Issuance of an arrest warrant may commence a criminal prosecution for purposes of the statute of limitations without engaging the protection of the Sixth Amendments speedy trial clause. (People v. Martinez (2000) 22 Cal.4th 750, 764-765.) When a charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. (People v. Terry (2005) 127 Cal.App.4th 750, 774.) A defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense, absent an express waiver. (People v. Williams (1999) 21 Cal.4th 335, 338.) The statute of limitations is a substantive matter which the prosecution must prove by a preponderance of evidence at trial if the defense puts the prosecution to its proof. (People v. Le (2000) 82 Cal.App.4th 1352, 1360.)

The information filed January 31, 2006, alleged in relevant part:

ON OR ABOUT AND BETWEEN DECEMBER 31, 1999 AND JANUARY 3, 2000 JOSHUA SHANNON MCPROUD, DID WILLFULLY AND UNLAWFULLY ENTER GMC VAN AT STOCKDALE GLASS LOCATED AT 4040 EASTON DRIVE (A BUSINESS), WITH THE INTENT TO COMMIT LARCENY OR ANY FELONY, IN VIOLATION OF PENAL CODE SECTION 460(B), A FELONY.

According to the probation officers report filed May 4, 2006, a police service technician discovered latent fingerprints on a window of the subject van on January 4, 2000. On February 22, 2000, a fingerprint comparison revealed the suspect was one Joshua McProud, also known as Robert Buckingham. The probation officer further reported: Officers attempted to locate the defendant; however, attempts proved futile, thus, an arrest warrant was issued for his arrest.^[5] The original record on appeal did not include a copy of a felony warrant for appellants arrest. In view of the statement of the probation officer, this court summoned and examined the superior court file in appellants case. A review of the superior court file revealed that the Honorable Charles P. McNutt, judge of the superior court, issued a warrant of arrest against one Joshua Shannon McProud (date of birth January 27, 1976) on July 19, 2000, the same date the criminal complaint was filed.

On May 24, 2007, this court transmitted a letter to respective counsel stating:

Pursuant to Evidence Code section 455, subdivision (a), the parties to the instant appeal are granted 20 days from the date of this letter to file simultaneous letter briefs and to present to this court information relevant to (1) the propriety of taking judicial notice of the matter (Evid. Code,  455, subd. (a)), and (2) whether the issuance of the felony arrest warrant on July 19, 2000 tolled the statute of limitations for purposes of this appeal.

The Office of the Attorney General declined to respond to our letter of May 24, 2007. After the grant of an extension of time, appellants counsel filed a supplemental letter brief on July 2, 2007. As to the propriety of taking judicial notice, appellant maintained such a course of action would be error because (a) the warrant was not presented to and considered by the trial court; (b) the appellate court could only take judicial notice of the existence of the warrant and not the truth of the hearsay statements set forth in the warrant; and (c) the warrant was expressly issued for one Joshua Shannon McProud (date of birth January 27, 1976) and not appellant (date of birth April 19, 1973) and the face of the warrant did not establish a tie between McProud and appellant.^[6]

As to the tolling effect of the warrant, appellant submits (a) the warrant naming McProud is facially deficient because it does not describe appellant with sufficient particularity as required by Penal Code section 804, subdivision (d); (b) the statute of limitations constitutes a substantive right and the prosecution bears the burden of pleading and proving commission of the charged offense within the applicable period of limitations; (c) the prosecution failed to plead and prove compliance with the statute of limitations in the instant case; and (d) the state and federal prohibitions against double jeopardy forbid a second trial to afford the prosecution another opportunity to supply evidence that it failed to muster in appellants first trial.

Issuance of a valid warrant for a criminal defendants arrest shortly after the commission of the crime tolls the limitation period as a matter of law. (People v. Lewis (1986) 180 Cal.App.3d 816, 821.) In Lewis, the appellate record included a copy of the warrant for the defendants arrest, the warrant was valid on its face, and the defendant did not suggest any possible defects in it. Therefore, the appellate court concluded it would be a waste of judicial resources to remand the case for a predestined result. (Id. at pp. 821-822.) In the instant case, appellant essentially maintains the warrant was deficient because it described the person to be arrested as one Joshua Shannon McProud and failed to establish any sort of nexus between McProud and appellant.

On July 19, 2000, the Kern County District Attorney filed criminal complaint No. 092332 charging Joshua Shannon McProud with the offense of second degree burglary (Pen. Code,  460, subd. (b)). On December 27, 2005, appellant was arraigned on the charge and the clerks minute order set forth the case title: People vs. McProud, Joshua Shannon and further stated: Booked as: Buckingham, Robert Steven. On January 11, 2006, the Honorable Sidney Chapin, judge of the superior court, called case No. 92332A for preliminary examination and asked: And, Mr. Buckingham, your true and correct name is Robert Steven Buckingham? Appellant relied, Yes, sir. During that proceeding Catherine Kibbey, crime scene supervisor for the Bakersfield Police Department, testified for the prosecution. Kibbey said she compared the latent fingerprint lifted by Technician Roberson with a California Justice Department fingerprint card for one Joshua McProud and set of freshly rolled fingerprints for appellant Robert Buckingham. Kibbey said the prints came from the same individual. The court subsequently held appellant to answer for the charged offense.

On January 31, 2006, the district attorney filed a felony information naming as defendant: JOSHUA SHANNON MCPROUD AKA ROBERT STEVEN BUCKINGHAM. On March 17, 2006, appellants counsel filed a noticed motion to continue the proceedings (Pen. Code,  1050) and referred to his client as the Defendant, JOSHUA SHANNON McPROUD, AKA ROBERT STEVEN BUCKINGHAM. On March 27, 2006, the first day of trial, the following exchange occurred outside the presence of the prospective jurors:

THE COURT: All right. Were going to take up now on the record the matter of the People of the State of California, as the information is titled, vs. Joshua McProud, whose apparently true name is Robert Steven Buchanan; is that correct?

MR. KRELL [defense counsel]: Your Honor, its Buckingham.

THE COURT: Buckingham. Im sorry.

MR. KRELL: Additionally, your Honor, just prior to the Court going on the record, I had spoken to the People about the use of Buckingham as the name for all purposes in this case rather than using the aka.

THE COURT: Yeah. Thats why I asked in chambers. So well style the case from this point forward as People vs. Robert Steven Buckingham. All right. The record will reflect that Mr. Buckingham is present out of custody, is represented by Mr. ... Krell[.]^[7]

As noted above, if a charging document indicates on its face that the charge is untimely, a defendant convicted of that charge may raise the statute of limitations at any time, absent an express waiver. (People v. Williams, supra, 21 Cal.4th at p. 338.) In addressing the statute of limitations, the Supreme Court has used the term waiver only in the sense of intentionally relinquishing a known right. (Id. at p. 340, fn. 1.) In the instant case, appellant never expressly relinquished his right to raise the statute of limitations. However, his counsel acknowledged to the trial court that appellantRobert Steven Buckinghamwas the same person as Joshua McProud, the individual named in the arrest warrant, the felony complaint, and felony information. In doing so, counsel essentially acknowledged that the court issued a valid warrant for appellants arrest shortly after the commission of the crime. Issuance of a valid warrant for a criminal defendants arrest shortly after the commission of the crime tolls the limitation period as a matter of law. (People v. Lewis, supra, 180 Cal.App.3d at p. 821.) The Supreme Court has held if an appellate court cannot determine from the available action whether an action is barred by the statute of limitations, it should remand to the trial court for a hearing. (People v. Williams, supra, 21 Cal.4th at p. 341.) Nevertheless, the law neither does nor requires idle acts. (Civ. Code, 3532.) Moreover, an attorney has no duty to make a futile request. (People v. Anderson (2001) 25 Cal.4th 543, 587.)

In view of trial counsels acknowledgment that McProud and appellant Buckingham were one and the same person, we may reasonably conclude that the issuance of the warrant shortly after the commission of the crime tolled the limitations period as a matter of law. Reversal on this ground is not required.

DISPOSITION

The judgment is affirmed.

_____________________

HARRIS, J.

WE CONCUR:

________________________

VARTABEDIAN, Acting P.J.

_____________________

KANE, J.

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^[1] The minute order for the hearing held on January 9, 2006 states: Defendant answers to true name of: Buckingham, Robert Steven. Thereafter, except for the information, court documents use the name of Robert Steven Buckingham.

^[2]Roussel testified, Towards the rear side of the vent, there was like a bar or screwdriver something that you could put in there and push down to try to get this thing to lift out or spring the vent assembly, as its commonly known, to open it up. And in the process of doing that its tempered glass it broke into real little pieces, shattered, fell down to the ground, so this became wide open.

^[3] We initially note the California Supreme Court has granted review in two recent cases, one of which found the court security fee could not be imposed retrospectively (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415), and another which concluded Penal Code section 3 did not prevent retroactive application of section 1465.8 (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508).

^[4]For purposes of determining the applicable statute of limitations, an offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. (Pen. Code,  805, subd. (a).)

^[5] On December 20, 2005, the court filed a minute order stating: RECALLED WARRANT OF ARREST. [] ARREST WARRANT ISSUED BY HON. MICHAEL LEWIS. BAIL SET IN THE AMOUNT OF $15,000.00. However, the record on appeal provided no further details on the warrant that was recalled.

^[6]Appellant did not specifically raise the issue of the statute of limitations in the trial court. Although the felony arrest warrant was part of the superior court file, the trial court did not refer to it in the proceedings below. An appellate court can, but is not required to, take judicial notice of documents that were not presented to the trial court in the first instance. (McMahan v. City and County of San Francisco (2005) 127 Cal.App.4th 1368, 1373, fn. 2.) The failure of a trial court to take judicial notice of a fact does not prevent an appellate court from giving proper effect thereto. (People v. Tossetti (1930) 107 Cal.App. 7, 12.) Because the existence of the warrant has a decisive bearing on the issue raised on appeal, we will take judicial notice of the warrant.

^[7]In acknowledging that Buckingham was the true name of McProud, counsel did not address or clarify the apparent discrepancy between McProuds purported date of birth (listed as January 27, 1976, on the felony warrant) and Buckinghams purported date of birth (subsequently listed as April 19, 1973, in the probation officers report).