Filed 1/11/18 P. v. Todd CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
RALPH EUGENE TODD,
Defendant and Appellant.


A151922

(San Mateo County
Super. Ct. No. SF398079A)


Ralph Eugene Todd appeals from a final judgment after he pleaded no contest to six counts of committing lewd or lascivious acts upon a child. (Pen. Code, § 288, subd. (a).) Having reviewed the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende), we find no arguable appellate issue and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case commenced on May 20, 2015. On November 7, 2016, the People filed an amended complaint against Todd alleging 52 counts of committing lewd or lascivious acts upon a child. (§ 288, subd. (a).)
Todd waived a preliminary hearing and was held to answer. On November 18, 2016, the People filed an information alleging Todd engaged in 52 counts of lewd or lascivious conduct “between January 22, 1999 and April 24, 2001.” As to all counts, it was alleged the offenses were serious and violent felonies (§§ 1192.7, subd. (c), 667.5, subdivision (c)), and that Todd engaged in substantial sexual conduct with a victim under 14 years of age (§ 1203.066, subd. (a)(8)). The People alleged the court had jurisdiction because the victim was under the age of 18 at the time of the commission of the offenses, and the prosecution commenced prior to the victim’s 40th birthday. (§ 801.1, subd. (a).)
On January 9, 2017, Todd moved to dismiss the information arguing it was barred by the statute of limitations. The People opposed the motion, and Todd filed a response. The court held a hearing on the motion and denied it.
On February 2, 2017, Todd changed his plea, and pleaded no contest to six counts of committing lewd or lascivious acts upon the victim, and he admitted the offenses were serious and violent felonies. The court struck the special allegations of substantial sexual conduct, and the court dismissed the remaining forty-six counts. The court sentenced Todd to ten years in prison.
In entering his plea, Todd did not admit the jurisdictional allegation under section 801.1, subdivision (a), and reserved the right to appeal with regard to the statute of limitations. The court granted Todd’s request for a certificate of probable cause based on Todd’s contention that “[t]he case was barred by the statute of limitations.”
DISCUSSION
Todd appealed. His appointed counsel filed an opening brief requesting this court to review the record to determine whether there are any arguable issues. Counsel informed Todd he had the right to file a supplemental brief on his own behalf. Todd filed a one-page letter brief.
We have reviewed the record pursuant to Wende and find no reasonably arguable appellate issue. In his letter brief, Todd contends the court erred in its ruling on the statute of limitations. We disagree.
Section 801.1, subdivision (a)(1) provides in part that “prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, that is alleged to have been committed when the victim was under 18 years of age, may be commenced any time prior to the victim’s 40th birthday.” Section 801.1, subdivision (b) provides in part that if “subdivision (a) of this section . . . does not apply, prosecution . . . shall be commenced within 10 years after commission of the offense.”
With regard to subdivision (a), Todd contends “the ‘as enacted’ clause” modifies not only “Section 289.5,” but also all the other Penal Code sections referred to in the subdivision. Todd implies section 801.1, subdivision (a) “does not apply” to his case because he pleaded no contest to acts of lewd or lascivious conduct that did not involve “penetration by an unknown object.” Todd contends that section 801.1, subdivision (b) applies, and that the charges against him are time-barred because the prosecution did not commence within 10 years after the commission of the offenses.
We are not persuaded. A review of when and how the relevant statutes were enacted and modified explains why Todd’s analysis is wrong. Chapter 293 of the Statutes of 1991 enacted former section 289.5, which related to “penetration . . . of the genital or anal openings of any person . . . by a penis or by any foreign object . . . [where] it cannot be established whether penetration was by a penis or by a foreign object . . . .” (Stats. 1991, ch. 293, § 1, p. 1822.) The Legislature repealed this section in 1993. (Stats. 1993–1994, 1st Ex. Sess., ch. 39, § 2, p. 8713.) The current version of section 289.5, which was added to the Penal Code in 1997, relates to a different subject matter—sex offenders fleeing to California to avoid prosecution, or custody, or confinement for convictions of certain offenses. (Stats. 1997, ch. 207, § 1, pp. 929–930.)
In 2005, the Legislature amended section 801.1, splitting the section into subdivisions (a) and (b), and adding the language imposing a longer limitations period for prosecutions for offenses described in “Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.” (Stats. 2004, ch. 368, § 1, p. 3470; Stats. 2005, ch. 479, § 2, pp. 3790–3791.) Section 289.5 addressed a different subject matter beginning in 1997, so it is apparent the Legislature referred to Section 289.5 “as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object” to distinguish between its earlier and later versions, and to clarify they were referring to the version enacted in 1991 and repealed in 1993.
Accordingly, we cannot read section 801.1, subdivision (a), in the way that Todd proposes: namely, as providing for a longer statute of limitations for prosecutions of lewd or lascivious conduct in violation of section 288 only if the conduct related to or involved “penetration by an unknown object.” Instead, the statute of limitations in section 801.1, subdivision (a), applies to violations of section 288 whether or not there was penetration with an unknown object.
If the section 288 offense occurred “when the victim was under 18 years of age,” then prosecution for the offense “may be commenced any time prior to the victim’s 40th birthday.” (§ 801.1, subd. (a).) Here, the prosecution was commenced on May 20, 2015, when the victim was 25 years old, alleging lewd acts committed when the victim was between 8 and 11 years old. As a result, the prosecution was not time-barred.
The judgment is affirmed.




_________________________
Jones, P. J.


We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.












A151922