P v. McSHERRY
Filed 5/15/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. LEONARD JAMES McSHERRY Defendant and Appellant. | B181229 (Los Angeles County Super. Ct. No. BA271123) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kevin A. Enright, Judge. Reversed.
Robert S. Gerstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Leonard James McSherry appeals the judgment entered after conviction by jury of an attempt to molest or annoy a child under the age of 18 years. (Pen. Code, §§ 664/647.6, subd. (a).)[1] Based on a prior conviction of lewd act in violation of section 288, the trial court sentenced McSherry as a felon. (§ 647.6, subd. (c)(2).) Because McSherry's conduct constitutes a misdemeanor absent the prior conviction of lewd act, and prosecution of the offense was not commenced within one year as required by section 802, subdivision (a), the judgment must be reversed.
BACKGROUND
The evidence adduced at trial indicated that on the morning of March 10, 2003, a school yard supervisor at Hoover Elementary School in Los Angeles saw McSherry sitting in an Oldsmobile near the tetherball courts where numerous third-graders were at play. The passenger side window, which was closest to the schoolyard, was down and McSherry was masturbating. Although the children could have seen McSherry from their location, none actually did.
A jury convicted McSherry of an attempt to annoy or molest a child under the age of 18 years. This offense generally is a misdemeanor that is punishable by a maximum term of one year in the county jail. (§ 647.6, subd. (a)) When the defendant has a prior misdemeanor conviction of this offense, he or she is punished as a felon. (§ 647.6, subd. (c)(1).) Where, as here, the defendant has a prior conviction of lewd act in violation of section 288, the offense is a felony punishable by two, four or six years in state prison. (§ 647.6, subd. (c)(2).) The trial court found McSherry had three prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to a term of 25 years to life in state prison.
CONTENTIONS
In a supplemental opening brief, McSherry contends the instant prosecution is barred by the statute of limitations. We agree and reverse the conviction. This resolution renders moot the evidentiary and instructional contentions raised in McSherry's opening brief.
DISCUSSION
McSherry contends that because the conduct underlying his conviction is a misdemeanor violation of section 647.6, subdivision (a), the applicable statute of limitations is one year. (§ 802, subd. (a).)[2] The People concede the information was not filed until September of 2004, which is more than one year after the March 2003 incident. However, the People claim the three-year statute of limitations for felonies applies (§ 801) because McSherry was charged with a violation of section 647.6, subdivision (c)(2), which is a felony based on the allegation of a prior conviction of lewd act.
The People rely on People v. San Nicolas (1986) 185 Cal.App.3d 403, which rejected McSherry's argument in a case involving a violation of former section 647a, the precursor of 647.6, subdivision (a), which was enacted in 1987. San Nicolas held the allegation of a qualifying prior conviction rendered the offense a felony. Thus, the three-year statute of limitations applied. (People v. San Nicolas, supra, at p. 407.)
The result in San Nicolas cannot be squared with People v. Turner (2005) 134 Cal.App.4th 1591, which we believe is a better reasoned decision. The defendant in Turner was charged with residential robbery, prosecution for which generally must be commenced within three years. When the defendant sought dismissal on the ground the information had been filed outside the three-year period, the trial court ruled that, because the information also alleged prior convictions within the meaning of the Three Strikes law, the defendant faced â€
