Opinion
B230348
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DONNELL BROWN, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA058712)
APPEAL from a judgment of the Superior Court of Los Angeles County. Harvey Giss, Judge. Reversed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Michael Donnell Brown appeals from the judgment entered following a jury trial in which he was convicted of misdemeanor battery as a lesser included offense of forcible oral copulation. Defendant contends that his conviction was barred by the statute of limitations. We agree and reverse.
BACKGROUND
A 23-count information filed April 30, 2008, charged defendant with the commission of various sexual offenses against two minors. Count 6 charged petitioner with forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2) on or between the dates of October 1, 2006, and March 8, 2007. (Undesignated statutory references are to the Penal Code.) The court granted defendant's section 1118.1 motion to dismiss five counts. Defendant objected to the trial court's sua sponte decision to instruct upon any and all lesser included offenses. The jury acquitted defendant of six counts, including the greater offense of forcible oral copulation in count 6, convicted him of the lesser offense of misdemeanor battery in count 6, and was unable to reach verdicts on the remaining counts. The trial court declared a mistrial as to the counts upon which the jury reached no verdict. Defendant objected to a retrial of those counts on the ground of double jeopardy. The trial court held that double jeopardy barred retrial of seven counts, but not five others. Defendant filed a petition for a writ of mandate with respect to the five remaining counts, and this court granted the petition with respect to each of these charges. (Brown v. Superior Court (2010) 187 Cal.App.4th 1511.)
At the sentencing hearing conducted after remittitur issued, defense counsel argued that the misdemeanor battery conviction was improper, in that misdemeanor battery was not a lesser included offense of forcible oral copulation. Counsel reminded the trial court that he had objected to the court's sua sponte decision to instruct upon battery. The trial court rejected counsel's argument and sentenced defendant to six months in jail, with presentence credits of 1,836 days.
DISCUSSION
Defendant contends that the misdemeanor battery conviction was barred by the one-year statute of limitations because the conduct upon which it was based allegedly occurred in the period of October 1, 2006, and March 8, 2007, but the information was not filed until April 30, 2008. The Attorney General concedes that the offense was time-barred, but contends that defendant forfeited his statute of limitations defense by failing to assert it specifically in the trial court.
The limitations period applicable to an offense that is necessarily included within a greater offense is the period applicable to the lesser included offense, without regard to the period applicable to the greater offense. (§ 805, subd. (b).) The limitations period for misdemeanor battery is one year. (§ 802, subd. (a).)
In People v. Williams (1999) 21 Cal.4th 335, the Supreme Court expressly declined to overrule a long line of cases holding that a defendant could assert the statute of limitations at any time. (Id. at pp. 337-338.) Instead, the court reiterated that "a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense." (Id. at p. 338.) "[I]f 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." (Ibid.) The same rules apply where the defendant is convicted of a time-barred lesser included offense. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090 (Beasley).)
The Attorney General relies upon People v. Stanfill (1999) 76 Cal.App.4th 1137 (Stanfill). Stanfill requested jury instructions on both lesser included offenses and the statute of limitations. (Id. at p. 1142, fn. 1.) The Court of Appeal found error in the instructions upon the statute of limitations. (Id. at pp. 1142-1144.) It then announced a rule for prospective application: "[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. In other words, a defendant must raise the issue in the trial court in order to preserve it for appeal." (Id. at p. 1150.)
Stanfill is readily distinguishable from the present case, in that defendant objected to the trial court's decision to instruct upon lesser included offenses. Although counsel did not specify the statute of limitations as a basis for that objection, defendant neither expressly waived his statute of limitations defense (Williams, supra, 21 Cal.4th at p. 338) nor "requested or acquiesced in the giving of instructions on the lesser offense" (Stanfill, supra, 76 Cal.App.4th at p. 1150). "To hold that [defendant] forfeited his statute of limitations defense with respect to the misdemeanor [battery] count[] in issue would contravene the long-standing principle, which People v. Williams, supra, 21 Cal.4th 335, expressly declined to overrule, that a defendant may not inadvertently forfeit the statute of limitations." (Beasley, supra, 105 Cal.App.4th at p. 1090.)
Accordingly, we reverse defendant's misdemeanor battery conviction.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
JOHNSON, J.