P. v. Dennis CA4/2 ( 2013 )

Filed 7/25/13 P. v. Dennis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055848
v. (Super.Ct.No. RIF135490)
STEVEN LESLIE DENNIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. W. Charles Morgan,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Reversed.
Daniel J. Kessler, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu E.
Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Steven Leslie Dennis appeals from his 2011 conviction for robbing a
bank in 2007, and his 60-year third-strike prison sentence, arguing the People failed to
prosecute him within the three-year statute of limitations. The People concede, and we
agree. The judgment of conviction is reversed.
FACTS AND PROCEDURE
On January 2, 2007, defendant robbed a Bank of America branch in Riverside.
Defendant stood in line and approached a teller when his turn arrived. Defendant
demanded cash, either orally or by presenting a note. The teller was overcome with fear
and fell down. A supervisor went over to see what was wrong and gave defendant about
$2700 in cash from the teller’s drawer.
On April 6, 2007, the People filed a felony complaint charging defendant with
second degree robbery (Pen. Code, § 211).1 The People also alleged defendant had two
prior “strike” convictions (§§ 667, subds. (c) & (e)(2)(A), and 1170.12, subd. (c)(2)(A)),
two prior serious felony convictions (§ 667, subd. (a)) and three prison priors (§ 667.5,
subd. (b)). Defendant was not arraigned on the complaint until April 29, 2011.
At the April 29, 2011, arraignment, defendant moved to represent himself.2 The
trial court granted the motion. Defendant pled not guilty and denied each of the prior
conviction allegations.
1 All section references are to the Penal Code unless otherwise indicated.
2 This may well have contributed to the statute of limitations issue not being
raised until this appeal.
2
The preliminary hearing was held on June 30, 2011, after which the trial court held
defendant to answer.
On July 14, 2011, the People filed an information charging defendant with two
counts of robbery on January 2, 2007, to include both the bank teller and her supervisor,
and renewed the prior conviction allegations.
On December 5, 2011, a jury convicted defendant of both robbery counts.
Defendant asked the trial court to appoint the Public Defender to represent him for his
bench trial on the prior conviction allegations and for his “Romero”3 motion. The court
did so.
On January 13, 2012, defendant admitted the prior conviction allegations. On
January 20, 2012, the trial court denied defendant’s Romero motion and sentenced him to
60 years in prison as follows: 25 years to life for each of the two robberies, to be served
consecutively, plus ten years for the two serious felony priors. The court dismissed the
prison prior allegations. This appeal followed.
DISCUSSION
Section 801 provides that “prosecution for an offense punishable by imprisonment
in the state prison . . . shall be commenced within three years after the commission of the
offense.” However, section 800 provides for a six-year statute of limitations for crimes
punishable by eight years or more in prison. Second degree robbery “is punishable by
imprisonment in the state prison for two, three, or five years.” (§ 213) Thus, the statute
3 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
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of limitations for prosecuting defendant’s second degree robberies is three years. (See
also People v. Turner (2005) 134 Cal. App. 4th 1591, 1600 [The maximum punishment for
statute of limitations purposes is based on the punishment for the commission of the
offense itself, without regard to the Three Strikes law.].)
The People were required to commence prosecution of defendant for the January
2, 2007, robberies no later than January 2, 2010. As pertinent here, a prosecution is
“commenced” when an information is filed (§ 804, subd. (a)), or when the defendant is
arraigned on a felony complaint (id., subd. (c)) or when an arrest warrant is issued which
names or describes the defendant with the same degree of particularity required of an
indictment, information, or complaint (id., subd. (d)). In contrast, the filing of a felony
complaint does not commence prosecution of the charges stated in the complaint.
(People v. Terry (2005) 127 Cal. App. 4th 750, 764 (Terry).)
Here, the People filed the felony complaint within the three year limitation, but
under Terry that did not “commence” the prosecution. The People did not arraign
defendant on the felony complaint until April 29, 2011, more than four years after the
offense, and similarly did not file the information until July 14, 2011. Thus, the People
did not commence prosecution within the three-year statute of limitations.
Defendant may raise this argument for the first time on appeal because the
charging document (here, the information) indicates on its face that the action is time-
barred. (People v. Williams (1999) 21 Cal. 4th 335, 340-341.)
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Finally, the People inform this court that the “trial file similarly [to the record on
appeal] does not contain evidence supporting tolling of the statue of limitations,” and thus
remand for litigation on tolling issues is not necessary.
DISPOSITION
The judgment of conviction is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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