People v. Aguilar CA4/2 ( 2013 )

Filed 2/26/13 P. v. Aguilar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E054973
v. (Super.Ct.No. FVA1001458)
OSCAR ARMANDO AGUILAR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed in part; reversed in part.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
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A jury convicted defendant and appellant Oscar Armando Aguilar of five counts
of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1), counts 1-5)1, two
counts of rape by means of force, violence, or duress (§ 261, subd. (a)(2), counts 6 & 8),
and two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d), counts 7
& 9). The trial court sentenced defendant to eight years in state prison on count 6, and
imposed six years on count 8 to run consecutive to count 6; then, as to counts 7 and 9, the
court imposed one consecutive year on each count, for a total determinate sentence of 16
years. The court also imposed a 15-year-to-life term on each of counts 1 through 5, to
run consecutive to each other and to the determinate term. Therefore, defendant received
a total determinate term of 16 years, plus an indeterminate term of 75 years to life.
On appeal, defendant contends that: (1) the convictions on counts 7 and 9 should
be reversed because the statute of limitations had run on them by the time the information
was filed; and (2) this court should review the sealed rap sheets of the main prosecution
witnesses to determine whether those witnesses committed crimes involving moral
turpitude that could have been used to impeach them. The People concede and, we agree,
that counts 7 and 9 should be reversed. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe was born in 1988. When she was five years old, her mother, Virginia A.
(mother), entered into a dating relationship with defendant. Doe, mother, and defendant
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
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began living in the same house. In 1996, defendant and mother had a daughter together
named C.
The dating relationship between mother and defendant ended in 1998. However,
mother allowed defendant to continue seeing Doe and C. so he could help take them to
school and watch them after school. Right before Doe turned 10 years old, defendant
raped her at mother’s house. A week later, he raped her again. After that, defendant
raped Doe on a daily basis, Monday through Friday. He would either do it after he
picked her up from school, or some days he would pick her up in the morning, but instead
of taking her to school, he would rape her. Defendant threatened to kill mother and C. if
Doe resisted or told anyone about what he was doing.
For the next few years, defendant continued to rape Doe, on nearly a daily basis
during the week. When she refused, he would grab her wrists and bite her cheeks. He
also got a gun and would show it to her and tell her he was going to use it to kill her
mother and sister.
Defendant stopped raping Doe when she was 15 years old. Mother had a new
boyfriend who did not want defendant around. Her boyfriend stopped the arrangement
mother had with defendant transporting Doe and C. to and from school. In 2006, when
Doe was 18 years old, she finally told mother that defendant had forced her to have sex
with him from the age of nine to the age of 15. She also reported it to the police.
On September 17, 2010, the prosecution filed a felony complaint charging
defendant with five counts of continuous sexual abuse. (§ 288.5, subd. (a), counts 1-5.)
The abuse was alleged to have occurred between February 1, 1998 and May 17, 2002.
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After the preliminary hearing on October 4, 2010, defendant was charged by information
with the same five counts.
On July 8, 2011, the prosecution filed a first amended information alleging five
counts of aggravated sexual assault of a child under the age of 14. (§ 269, subd. (a)(1),
counts 1-5.) As with the original information, all five counts related to conduct involving
Doe and was alleged to have occurred between February 1, 1998 and May 17, 2002.
On September 12, 2011, the prosecution filed a second amended information,
which again alleged five counts of aggravated sexual assault of a child under the age of
14. (§ 269, subd. (a)(1), counts 1-5.) The information also alleged that defendant was 10
and more years older than Doe. All five counts related to conduct involving Doe and
were alleged to have occurred between February 1, 1998 and May 17, 2002.
On September 15, 2011, the prosecutor filed a third amended information and
added four additional counts. Count 6 alleged that defendant committed forcible rape of
Doe (§ 261, subd. (a)(2)), and count 7 alleged that defendant engaged in unlawful sexual
intercourse with Doe (§ 261.5, subd. (d)). The conduct in counts 6 and 7 was alleged to
have occurred between May 18, 2002 and May 17, 2003. Count 8 alleged that defendant
engaged in the forcible rape of Doe (§261.5, subd. (d)) between May 18, 2003 and May
17, 2004. Count 9 alleged that defendant engaged in unlawful sexual intercourse with
Doe (§ 261.5, subd. (d)) between May 18, 2003 and May 17, 2004. Defense counsel
objected to the amendment of the information as being untimely. However, the trial court
permitted the prosecution to file the amended information, based on the support of the
additional charges in the preliminary hearing transcript, the apparent lack of prejudice to
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defendant with regard to the additional charges, and the fact that defense counsel had
notice of the additional charges.
On September 22, 2011, the jury convicted defendant on counts 1 through 9.
ANALYSIS
I. Counts 7 and 9 Were Barred by the Statute of Limitations
Defendant was charged and convicted of two counts of unlawful sexual
intercourse with a minor, in violation of section 261.5, subdivision (d), in counts 7 and 9.
Defendant contends that the statute of limitations barred these two counts. The People
correctly concede.
Unlawful sexual intercourse in violation of section 261.5, where the perpetrator is
at least 21 and the victim is under 16, is punishable by imprisonment in a county jail not
exceeding one year or by imprisonment in the state prison for two, three, or four years.
(§ 261.5, subd. (d).) For purposes of the statute of limitations, an offense is deemed
punishable by the maximum punishment prescribed by statute for the offense. (§ 805,
subd. (a).)
Section 801 provides that offenses punishable by imprisonment in the state prison
“shall be commenced within three years after commission of the offense.”
Commencement of prosecution occurs when an information is filed. (§ 804, subd. (a)).
Section 803 provides for a tolling or extension of the statute of limitations under certain
circumstances and for particular enumerated offenses. However, section 261.5 is not
among the enumerated offenses. (See §§ 803, subd. (f)(1), 801.1.) Therefore, the People
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were required to commence prosecution against defendant for the violations of section
261.5 within three years of the date he committed the offenses. (§ 801.)
The conduct alleged in count 7 occurred during a period between May 18, 2002
and May 17, 2003, and the conduct alleged in count 9 occurred during a period between
May 18, 2003 and May 17, 2004. Thus, the latest that the People could have commenced
prosecution was May 17, 2006 for count 7 and May 17, 2007 for count 9. Defendant was
not charged with counts 7 and 9 until the third amended information, which was filed on
September 15, 2011. Since those charges were not filed until 2011, they were untimely.
Accordingly, counts 7 and 9 were time-barred and should be reversed.
II. The Rap Sheets Do Not Reveal Crimes of Moral Turpitude
Defendant requests that this court review the sealed rap sheets of Doe and mother
to see if the trial court erred in determining that they had not committed any crimes
involving moral turpitude. We find no error.
The prosecution here gave the trial court copies of the rap sheets of Doe and
mother. The court reviewed them and stated there were no allegations of any crimes
involving moral turpitude. The court then put the rap sheets “under seal in the court file
for potential appellate review.”
Defendant subsequently moved this court to augment the record with the sealed
rap sheets and to unseal them. This court granted the motion to augment the record, but
declined to unseal the rap sheets. Instead, we agreed to review the rap sheets and
determine which parties should receive copies. We then directed the clerk to send copies
of the rap sheets to counsel for respondent only.
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Upon review of the rap sheets of Doe and mother, we conclude that the court
properly determined that there were no allegations of crimes involving moral turpitude.
DISPOSITION
The convictions and resulting sentences on counts 7 and 9 are reversed, as they are
barred by the applicable statute of limitations in section 801. We direct the superior court
clerk to correct the abstract of judgment to reflect that the convictions and sentences for
counts 7 and 9 are reversed, and to forward a corrected copy of the abstract to the
Department of Corrections and Rehabilitation. In all other respects, we affirm the
judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
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