California Court of Appeal Mar 11, 2014 No. E057263Unpublished
Filed 3/11/14 P. v. Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E057263
v. (Super.Ct.No. SWF10001902)
KENNETH RAY WILSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
William J. Capriola, 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, Senior Assistant Attorney General, and Melissa Mandel and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Kenneth Ray Wilson had two step-daughters. From when the younger
step-daughter (Jane Doe 4) was 11 or 12 until she was 14 or 15 — i.e., from about 1994
until about 1997 — defendant would frequently “grind” his lower body against hers. She
p. 8570; see now Pen. Code, § 667.61, subds. (b), (c)(8), (e)(4).)
Count 9 was allegedly committed “on or about 1994.” Doe 4 was born in
December 1982. She testified that defendant first started “grinding” on her when they
lived in San Diego (i.e., outside the trial court’s jurisdiction). The grinding continued
after the family moved to Temecula in 1994, when she was in sixth grade. It happened
“often,” though Doe 4 admitted, “I don’t remember exactly like if it was once a week or
1 A bill that is enacted in extraordinary session and subsequently signed by the governor goes into effect 91 days after the adjournment of the extraordinary session. (Cal. Const., art. IV, § 8, subd. (c)(1).) The 1993-1994 Extraordinary Session adjourned on August 31, 1994. (Sen. Final History (1993–1994 Ex. Sess.) p. 1.) The 91st day after August 31, 1994 was November 30, 1994.
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twice a week or once a month, but it happened several times. Like very often when he
would ask for a hug, that’s what he would do . . . .”
The grinding did not stop “until [Doe 4] was about 15 or close to 15.” At that
point, there was an incident in which she offered defendant money to drive her to
Oceanside. He said, “You don’t have to give me money, but you can give me something
else.” She realized that this was “crazy” and “wrong.” She told her mother, in
defendant’s presence, about the molestation, and it stopped.
To summarize this evidence, it does not conclusively establish that the lewd
touching in Riverside County started after November 30, 1994, when the One Strike Law
came into effect; it could have started as early as September 1994, when Doe 4 started the
sixth grade. However, it does conclusively establish that it continued after the One Strike
Law came into effect. It was still going on when Doe 4 was “close to 15” (though it
ceased to be a violation of Penal Code section 288 when Doe 4 turned 14, which occurred
in December 1996).
Accordingly, what is critical is the standard of review. How do we review an ex
post facto claim when the defendant has been convicted on a single count based on
evidence of multiple lewd acts, some before and some after the relevant statute went into
effect? This is complicated by the fact that defendant did not raise any ex post facto
claim below, so the parties may not have had an incentive to develop the evidence
relevant to this issue.
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The leading case on the standard of review under these circumstances is People v.
Hiscox (2006) 136 Cal.App.4th 253.
In Hiscox, the defendant was found guilty on 11 lewd act counts and was
sentenced on each count pursuant to the One Strike Law. (People v. Hiscox, supra, 136
Cal.App.4th at p. 256.) The information alleged that each of the lewd acts took place
sometime between 1992 and 1996. (Id. at p. 257.) The evidence did not indicate when
the acts occurred, other than that they occurred between 1992 and 1996. (Id. at p. 258;
see also id. at pp. 261-262.) The defendant raised an ex post facto claim for the first time
on appeal. (Id. at pp. 256, 258}
Preliminarily, the appellate court held that the defendant had not forfeited the
issue. (People v. Hiscox, supra, 136 Cal.App.4th at p. 259.) It explained that, while a
defendant must object to preserve factual sentencing issues that could be resolved at
sentencing, the defendant does not have to object to preserve factual sentencing issues
that could be resolved at trial. (Ibid.)
The court then stated: “Since the jury was not asked to make findings on the time
frame within which the offenses were committed, the verdicts cannot be deemed
sufficient to establish the date of the offenses unless the evidence leaves no reasonable
doubt that the underlying charges pertained to events occurring on or after November 30,
1994. [Citation.] It would be inappropriate for us to review the record and select among
acts that occurred before and after that date, or to infer that certain acts probably occurred
after that date. Hiscox has a constitutional right to be sentenced under the terms of the
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laws in effect when he committed his offenses. For a court to hypothesize which acts the
jury may have based its verdicts on, or what dates might be attached to certain acts based
on ambiguous evidence, would amount to ‘judicial impingement upon the traditional role
of the jury.’ [Citation.]” (People v. Hiscox, supra, 136 Cal.App.4th at p. 261.) “On this
state of the evidence, it simply cannot be said the prosecutor succeeded in establishing
that any particular offense was committed when section 667.61 was in effect.” (Id. at
p. 262.)
We may assume, without deciding, that Hiscox was correctly decided.2 Even if
so, it is distinguishable. Here, the evidence establishes beyond a reasonable doubt that
the jury’s guilty verdict did pertain to events after November 30, 1994. Doe 4 testified
that the molestation occurred repeatedly. She did not distinguish between the incidents.
Defendant simply denied that they occurred; he did not present any different defenses to
some than to others. Thus, the jury was presented with an “all or nothing” proposition —
it had to believe Doe 4 and conclude that all of the molestations occurred, or believe
defendant and conclude that none of them did. As it found defendant guilty, it
2 It could be argued — as the People did argue in Hiscox (People v. Hiscox, supra, 136 Cal.App.4th at pp. 258-259) — that an ex post facto issue cannot be raised for the first time on appeal if it turns on factual issues that could have been resolved at trial. If that is the law, then here, defendant has forfeited the issue.
It could also be argued that, when a defendant did not raise the issue below and did not demand a jury finding on when the crime occurred, the defendant cannot show that there was an ex post facto violation unless there is no substantial evidence that the crime occurred after the statute’s effective date. If that is the law, then here, defendant cannot show error.
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necessarily must have concluded that he committed all of the molestations, including the
ones after November 30, 1994.
We therefore conclude that sentencing defendant under the One Strike Law on
count 9 did not violate ex post facto principles.
II
THE STATUTE OF LIMITATIONS ON COUNT 9
Defendant contends that count 9 (a lewd act on Doe 4) was barred by the statute of
limitations.
At trial, defense counsel made a motion for acquittal (Pen. Code, § 1118.1) on
count 9, based on the statute of limitations. The trial court denied the motion.
Under Penal Code section 799, there is no limitations period for “an offense
punishable by death or by imprisonment in the state prison for life”; a prosecution for
such an offense “may be commenced at any time.” Here, as we held in part I, ante, the
One Strike Law could constitutionally be applied to count 9; thus, defendant was properly
sentenced to 15 years to life on this count. It necessarily follows that this count was not
time-barred. (People v. Perez (2010) 182 Cal.App.4th 231, 236-242 [One Strike Law “is
an alternate penalty scheme . . . . Thus, the unlimited time frame for prosecution set out
in section 799 . . . applies.”].)
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III
THE STATUTE OF LIMITATIONS ON COUNTS 3 AND 4
Defendant contends that his convictions on counts 3 and 4 for simple battery were
barred by the statute of limitations.
A. Additional Factual and Procedural Background.
Originally, count 3 charged aggravated sexual assault on a child. (Pen. Code,
§ 289.) Count 4 charged sexual intercourse or sodomy with a child 10 or younger. (Pen.
Code, § 288.7, subd. (a).) At defense counsel’s request, the jury was instructed on simple
battery and that simple battery was a lesser included offense with respect to both counts.
Ultimately, the jury found defendant not guilty of the charged greater offenses but guilty
of simple battery.
B. Analysis.
It has been held that “a defendant forfeits the right to complain on appeal of
conviction of a time-barred lesser included offense where the charged offense was not
time-barred and the defendant either requested or acquiesced in the giving of instructions
on the lesser offense.” (People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150.)
“Without a rule that acquiescence or failure to object acts as a forfeiture, the
defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver
and then, as an ace up his sleeve, secure reversal on the theory that he never expressly
waived. This is an unconscionable result that calls for a forfeiture rule. Beyond
removing the incentive for gamesmanship, ‘requiring a defendant to raise a statute of
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limitations issue in the trial court . . . would encourage the parties to focus on the issue at
that level, where it can be fully explored and an adequate record developed.’ [Citation.]
We would also prevent surprise and prejudice to the prosecution. Because lesser
included offenses are not charged in the accusatory pleading, ‘. . . there is no reason for
the prosecution to include discovery or tolling allegations as to those offenses.
[Citations.]’ [Citation.] Raising the issue in the trial court would allow an opportunity to
amend the accusatory pleading to rectify those situations where tolling provisions might
apply to the lesser offense. [Citations.] Finally, proper resolution of the issue in the trial
court would, of course, remove any need for an appeal, reversal and retrial on that issue, a
delay that could prejudice both parties by fostering stale evidence and dull memories
[citation] — paradoxically, the key reasons for having a statute of limitations in the first
place.” (People v. Stanfill, supra, 76 Cal.App.4th at pp. 1148-1149.)
Here, defense counsel affirmatively requested instructions on the lesser offenses.
Accordingly, she forfeited any contention that the lesser offenses were time-barred.
IV
CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that his total sentence of 105 years to life constitutes
unconstitutionally cruel and unusual punishment. He relies on the late Justice Mosk’s
view — expressed repeatedly in concurring opinions (People v. Deloza (1998) 18 Cal.4th
585, 600-602 [conc. opn. of Mosk, J.]), dissenting opinions (People v. Hicks (1993) 6
Cal.4th 784, 797 [dis. opn. of Mosk, J.]), and law review articles (Mosk, Nothing
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Succeeds Like Excess (1993) 26 Loy. L.A. L.Rev. 981) — that a term of years that is
impossible for a human being to serve constitutes cruel and unusual punishment. In
Justice Mosk’s view, “The maximum sentence that should be imposed is one a defendant
is able to serve: life imprisonment.” (People v. Deloza, supra, 18 Cal.4th at p. 602
[conc. opn. of Mosk, J.].)
Justice Mosk’s statements are the “voice of one crying in the wilderness” (Mark
1:3, Bible, King James Version); they have “no precedential value.” (People v. Byrd
(2001) 89 Cal.App.4th 1373, 1383.) In any event, defendant was not sentenced to a
determinate term of years; rather, he was sentenced to an indeterminate term of 105 years
to life. Even Justice Mosk acknowledged that a life term is not per se unconstitutional.
Defendant does not argue that the sentence was disproportionate to the offense or
to the offender. Accordingly, we need not and we do not address this issue.