Crummel v. Cambra

MEMORANDUM^**

The chronology of events and charges in this case is critical to its ultimate disposition. However, the record is ambiguous in this respect. We therefore vacate the district court’s order of February 15, 2002, and remand the case for clarification and reconsideration.

The State has represented to us that Crummel was originally charged and ultimately convicted of conduct that occurred in 1988. See, e.g., Appellee’s Supplemental Brief at 2-A. The record suggests, however, that Crummel was originally charged with conduct that occurred in 1987. See People v. Crummel, No. 08686, Reporter’s Transcript, December 15, 1995, p. 10 (citing People v. Sowers, 49 Cal.App.4th 230, 48 Cal.Rptr.2d 250 (1996)); People v. Crummel, No. 14671, Reporter’s Transcript, June 29, 1998, p. 111. The difference is important because it effects our Ex Post Facto analysis, c.f. Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003), and the application of California Penal Code §§ 803(b) (which applies only to charges based on “the same conduct”) and 803(g)(1) (which requires that charges be filed within one year from a victim’s report to police).¹

In light of the ambiguity in the factual record, the State’s new construction of the applicable statute of limitation, and the Supreme Court’s recent guidance in Stogner, we vacate the district court’s order of February 15, 2002, and remand the case for an evidentiary hearing to clarify the record and for reconsideration of Crummel’s habeas petition. The hearing should focus on resolving the question of whether Crummel was ultimately convicted in 1998 for the same conduct for which he was initially charged in 1995.

VACATED AND REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Judge Rymer argues in her dissent that we should decide this appeal on the record as is because we know that Crummel was convicted pursuant to a retroactive extension of the statute of limitation. With all due respect to Judge Rymer, we are not so sure. The State now argues that Crummel was not convicted under a retroactive extension of the statute of limitation because time was tolled while Crummel's initial charges were pending. This tolling argument may be decisive, but we cannot say until we have the district court's help in establishing an accurate record of events.