People v. Hartman CA4/2 ( 2021 )

Filed 9/1/21 P. v. Hartman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074000
v. (Super.Ct.No. RIF1803429)
LARRY LEE HARTMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Barry A. Taylor, Judge.
Affirmed with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
In 2018, Larry Lee Hartman was charged with having committed forcible rape in
1996. (Pen. Code, § 261, subd. (a)(2); unlabeled statutory citations are to this code.) The
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information also alleged that Hartman fell under two provisions of the One Strike law
(§ 667.61) because the offense allegedly was committed during a burglary and when
Hartman entered an inhabited dwelling with intent to commit forcible rape. (§ 667.61,
subds. (d)(4), (e)(2).)
A jury convicted Hartman of forcible rape and found true the allegation that the
rape was committed during the commission of a burglary. Hartman was sentenced to 15
years to life in state prison.
On appeal, Hartman argues that the rape charge was time-barred. In the
alternative, he argues that certain fines and fees should be vacated and the case remanded
because the trial court allegedly failed to consider his ability to pay. We correct an error
in the abstract of judgment but otherwise affirm.
DISCUSSION
A. Statute of Limitations
Hartman argues that prosecution for the forcible rape count was time-barred
because he was charged 12 years after the offense and the statute of limitations for a
forcible rape charge is six years. He argues that for purposes of determining the
applicable limitations period, the plain language of sections 799 and 805 precludes
consideration of the maximum punishment prescribed for the One Strike law allegation.
The People counter that we should follow People v. Perez (2010) 182 Cal.App.4th 231(Perez), which held that for purposes of determining the statute of limitations, the
maximum sentence for the offense is the sentence provided by the One Strike law. In
Perez, the court held that the life sentence under the One Strike law resulting from a
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multiple victim finding was the proper basis for determining the applicable limitations
period. (Perez, supra, at pp. 239-240.) As a result, prosecution for the offense could
“‘be commenced at any time.’” (Id at pp. 237, 239) We agree with the reasoning and
analysis of Perez, which applies with equal force to the One Strike law allegation found
true as to Hartman.1
For purposes of determining the applicable statute of limitations for an offense,
section 805 provides that “[a]n offense is deemed punishable by the maximum
punishment prescribed by statute for the offense, regardless of the punishment actually
sought or imposed. Any enhancement of punishment prescribed by statute shall be
disregarded in determining the maximum punishment prescribed by statute for an
offense.” (§ 805, subd. (a).) The maximum punishment for a violation of section 261,
subdivision (a)(2) (forcible rape), is a prison term of eight years. (§ 264, subd. (a).) An
offense punishable by eight years or more shall be commenced no more than six years
after the commission of the offense unless otherwise specified in section 799. (§ 800.)
Section 799 provides that for “an offense punishable by death or by imprisonment in the
state prison for life or for life without the possibility of parole,” prosecution “may be
commenced at any time.”2 (§ 799, subd. (a).) Under the One Strike law, forcible rape
1 Hartman did not forfeit the issue by failing to raise it in the trial court, because a
criminal defendant may raise the statute of limitations for the first time on appeal.
(People v. Williams (1999) 21 Cal.4th 335, 340-341.)
2 Subdivision (b) of section 799 now provides that prosecution for forcible rape and
other enumerated offenses committed on or after January 1, 2017, “may be commenced
at any time.” (§ 799, subd. (b)(1), (2).)
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committed during the commission of a burglary is subject to a mandatory sentence of 15
years to life in prison. (§ 667.61, subds. (b), (d)(4), (e)(2).) This court has recognized
that the One Strike law is an alternate sentencing scheme “and not a true ‘enhancement.’”
(People v. Jones (1997) 58 Cal.App.4th 693, 709 & fn. 9; People v. Lopez (2004) 119
Cal.App.4th 355, 360.)
We independently review which statute of limitations applies on undisputed facts.
(People v. Brown (2018) 23 Cal.App.5th 765, 772.) We also independently review
questions of statutory interpretation. (People v. Sanchez (2020) 48 Cal.App.5th 914,
918.) When interpreting a statute to determine the Legislature’s intent, we look first to
the language of the statute. (Ibid.) When the statute’s language is unambiguous, the
plain language controls. (Ibid.)
Hartman argues that under section 805 the punishment required by the true finding
on the One Strike law allegation is not relevant to determining the limitations period
because section 805 states that the maximum punishment for determining the limitations
period is that prescribed by “statute for the offense” (§ 805, subd. (a)), which he argues
means the forcible rape offense without consideration of the One Strike law allegation.
We are not persuaded.
Perez is directly on point. There, a jury convicted the defendant of multiple
counts of committing lewd and lascivious conduct under section 288 against different
victims and found true multiple victim allegations under the One Strike law as to each
count. (Perez, supra, 182 Cal.App.4th at p. 234.) The defendant argued on appeal that
the limitations period was governed by the maximum sentence for the offenses without
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consideration of the punishment under the One Strike law. (Perez, at p. 236.) Relying on
People v. Jones (2009) 47 Cal.4th 566 (Jones) and People v. Brookfield (2009) 47 Cal.4th
583 (Brookfield), Perez rejected the defendant’s argument. (Perez, at pp. 237-239.)
Perez summarized: The cases “make clear that determining whether an offense is
punishable by life imprisonment must take into account an alternative sentencing scheme
that applies to the offense based on other criminal conduct that the trier of fact has found
to have occurred.” (Id. at p. 237.)
Jones and Brookfield both involved the interplay between “section 186.22, which
targets participants in criminal street gangs; and section 12022.53, also known as ‘the 10–
20–life law.’” (Brookfield, supra, 47 Cal.4th at p. 588.) Jones considered whether the
punishment of life imprisonment prescribed when an offense is found to be committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) rendered the offense a
“‘felony punishable by death or imprisonment in the state prison for life’” under section
12022.53, subdivision (a)(17), thus triggering application of the 20-year enhancement for
personal use of a firearm. (Jones, supra, 47 Cal.4th at p. 569, italics omitted.) Jones
answered the question in the affirmative. (Ibid.) In reaching that conclusion, Jones
reasoned that the sentencing provision at issue “‘sets forth an alternate penalty for the
underlying felony itself, when the jury has determined that the defendant has satisfied the
conditions specified in the statute.’” (Id. at p. 576, italics omitted.) In other words, the
sentencing provision “sets forth the penalty for the underlying felony under specified
conditions.” (Id. at p. 578, italics omitted.) By contrast, a sentencing enhancement
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provides for a term of imprisonment imposed in addition to the sentence imposed for the
underlying offense. (Ibid.; Brookfield, at p. 591.)
Brookfield further explained that when a crime is found to have been committed to
benefit a criminal street gang, the consequent life term does not “constitute a sentence
enhancement, because it is not imposed in addition to the sentence for the underlying
crime (here, shooting at an inhabited dwelling); rather, it is an alternate penalty for that
offense. Because the felony that [the] defendant committed (shooting at an inhabited
dwelling) was punishable by a life term under section 186.22[, subdivision] (b)(4)
(because it was committed to benefit a criminal street gang), he committed a ‘felony
punishable by . . . imprisonment in the state prison for life’ within the meaning of
subdivision (a)(17) of section 12022.53.” (Brookfield, supra, 47 Cal.4th at p. 591, italics
omitted; Perez, supra, 182 Cal.App.4th at p. 239.)
On the basis of that reasoning, Perez concluded: “Section 667.61 is an alternate
penalty scheme that, when charged, defines the length of imprisonment for the
substantive offense of violating section 288, subdivision (b)(1). Thus, the unlimited
timeframe for prosecution set out in section 799 for an offense ‘punishable by death or by
imprisonment in the state prison for life . . .’ applies,” given the life sentence required by
the One Strike law because of the true findings on the multiple victim allegations.3
(Perez, supra, 182 Cal.App.4th at pp. 239-240.)
3 Hartman argues that Perez, supra, 182 Cal.App.4th 231, erred by relying on Jones,
supra, 47 Cal.4th 566, and Brookfield, supra, 47 Cal.4th 583, because neither case
involved statute of limitations issues or the One Strike law. Hartman does not explain
[footnote continued on next page]
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Like the defendant in Perez, Hartman argues that we should follow People v.
Turner (2005) 134 Cal.App.4th 1591 (Turner). (See Perez, supra, 182 Cal.App.4th at
p. 240 [discussing Turner].) Turner concluded that the mandatory life sentence for a
third strike conviction could not be considered in determining the limitations period.
(Turner, supra, at pp. 1597-1598.) Looking to sections 799 and 805, Turner interpreted
the “offense” referred to in those statutes to mean “the current felony for which the
defendant is to be, or is being, prosecuted, not the facts of prior convictions, because the
prior convictions are based on records of prosecutions that have already been brought.”
(Turner, at p. 1597.) Because punishment under Three Strikes law “is an alternative
punishment that is imposed based upon the fact of the defendant’s recidivism, and it is
imposed upon conviction of ‘a felony,’” Turner concluded that the open-ended
limitations period of section 799 did not apply. (Turner, at p. 1597, italics omitted.)
Perez rejected the defendant’s argument that the reasoning in Turner applied to
allegations under the One Strike law. (Perez, supra, 182 Cal.App.4th at pp. 240-242.)
Perez explained that Turner’s reasoning was inapposite because One Strike law
allegations concern the characteristics of the charged offense, not the characteristics of
the defendant (e.g., that the defendant is a recidivist). (Perez, at p. 241.) Thus, the One
why those distinctions matter or how they undermine the reasoning of Perez. We
conclude that they do not. The Supreme Court explained the distinction between
sentence enhancements and alternate penalties in general, and we see no basis to limit
application of that distinction to the specific sentencing provision at issue in those cases.
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Strike law sentence is the “punishment prescribed by statute for the offense.” (§ 805,
subd. (a); Perez, at pp. 241-242.)
Similarly, the One Strike law allegation found true here did not concern past,
unrelated criminal conduct by Hartman. Instead, it concerned the characteristics of the
charged offense—Hartman committed forcible rape during the commission of a burglary.
Thus, the maximum “punishment prescribed by statute for the offense” (§ 805, subd. (a))
was 15 years to life in state prison (§ 667.61, subd. (b)). We consequently conclude that
the open-ended limitations period of section 799 was properly applied and Hartman’s
prosecution was not time-barred.4
B. Ability to Pay Hearing
Hartman was sentenced in September 2019. The court imposed a $10,000
restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)(1)),
and a $30 court facilities fee (Gov. Code, § 70373, subd. (a)(1)). With respect to the
restitution fine, the court acknowledged that it could impose a minimum fine of $300 and
recognized that the probation department recommended $4,500. In imposing the
maximum fine allowed by statute, the court stated: “Under the circumstances of this
case, the Court makes a finding of $10,000 restitution fine payment, but [whether] the
State is able [to] collect any part [of] that [is] problematic, I suspect.” Defense counsel
did not object. The trial court did not discuss on the record the court operations and
4 Because we conclude that under the plain language of sections 799 and 805 the
rape prosecution was not time-barred, we need not and do not address Hartman’s
arguments concerning the legislative history of certain recent amendments of section 799.
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facilities fees, but both fees were included in the sentencing minute order and the abstract
of judgment.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, which was decided
before Hartman was sentenced, Hartman argues that the fine and fees should be vacated
and the case remanded because the trial court allegedly failed to consider his ability to
pay. With respect to the restitution fine, the record demonstrates otherwise. The trial
court expressly acknowledged that Hartman probably would not have the ability to pay
the $10,000 restitution fine, commenting that it would likely be difficult for the state to
collect any amount of the fine from Hartman. But the statute provides that ability to pay
is only one factor among several to consider when imposing a restitution fine above the
minimum (§ 1202.4, subd. (d)), and here the trial court imposed the maximum fine
because it thought the circumstances warranted the maximum amount. We therefore
reject Hartman’s argument that the trial court failed to consider his ability to pay the
restitution fine.
The record does not contain any affirmative indication that the trial court also
considered Hartman’s ability to pay in connection with the court operations and facilities
fees. Defense counsel did not object, which Hartman argues amounted to ineffective
assistance. Assuming for the sake of argument that counsel’s performance fell below an
objective standard of reasonableness, Hartman cannot carry his burden of demonstrating
that “counsel’s deficient performance was prejudicial, that is, there is a reasonable
probability that, but for counsel’s failings, the result would have been more favorable to
the defendant.” (People v. Sepulveda (2020) 47 Cal.App.5th 291, 301; Strickland v.
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Washington (1984) 466 U.S. 668, 687-692.) Given the trial court’s imposition of the
maximum $10,000 restitution fine despite the court’s expectation that Hartman would not
be able to pay it, it is not reasonably probable that the trial court would have declined to
impose the additional $70 in fees had counsel objected that Hartman did not have the
ability to pay those fees either.
C. Abstract of Judgment
The abstract of judgment does not include the true finding under section 667.61,
subdivision (e)(2), so on our own motion we direct the trial court to correct the abstract of
judgment accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to amend the abstract of judgment to include the true
finding on the allegation that the offense was committed during the commission of a
burglary under section 667.61, subdivision (e)(2). The trial court shall forward a copy of
the amended abstract of judgment to the California Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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