People v. San Nicolas

Opinion

EVANS, Acting P. J.

Defendant was charged by information with oral copulation with a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1)

1

—count II), forcible rape (§ 261, subd. (2)—count III), and two counts of child molestation with a prior section 288 offense (§ 647a—counts I and IV). A jury found him guilty of oral copulation with a minor, unlawful sexual intercourse (§ 261.5), a lesser offense to forcible rape, and both counts of child molestation. In a bifurcated trial in which defendant waived his right to a jury, the court found that defendant had been previously convicted of a section 288 offense. Defendant appeals contending (1) the court failed to exercise its discretion to exclude prejudicial evidence and (2) failed to force the prosecution to elect the acts relied upon to support the charges alleged in counts I and IV; (3) prosecution of the charges alleged in counts I and IV was barred by the statute of limitations; and (4) the court erred by instructing on the lesser offense of unlawful sexual intercourse. We affirm.

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II

Defendant next argues prosecution of the charges alleged in counts I and IV was barred by the statute of limitations. His contention is premised on the position that prosecution of any violation of section 647a must be commenced within

one

year of the date of the offense. He is wrong.

It is true that the prosecution of any offense not punishable by imprisonment in state prison must be commenced within one year after the com

[406]

mission of the crime. (§ 802.) The statute of limitations period for prosecution of offenses which are punishable by a maximum sentence of eight years in state prison, however, is three years. (§ 801.)

Section 647a provides that any person who commits child molestation may be fined up to $1,000 and/or imprisoned in county jail for a period of up to six months. However, if the offender has previously been convicted of the same crime or a section 288 offense, that person may be imprisoned in state prison for a maximum term of three years. (§§ 18, 647a.) Consequently, the statute of limitations period for prosecution of violations of section 647a may vary according to the criminal history of the offender.