California Court of Appeal Apr 22, 2014 No. E058295Unpublished
Filed 4/22/14 P. v. Blackburn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant, E058295
v. (Super.Ct.No. RIF1201580)
MICHAEL ROBERT BLACKBURN, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Reversed with directions.
Paul E. Zellerbach, District Attorney, and Kelli Catlett, Deputy District Attorney,
for Plaintiff and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and
Respondent.
1
I. INTRODUCTION
The People appeal from an order dismissing counts 1, 2, and 3 of the second
amended information charging defendant Michael Robert Blackburn with committing
lewd and lascivious acts (Pen. Code, § 288, subd. (a))1 on his former stepdaughter Doe,
between March 1997 and March 1999, when Doe was 9 to 11 years old. The charges
were dismissed on the ground they were time-barred. We agree with the People that the
charges are not time-barred. Accordingly, we reverse.
II. BACKGROUND
A. Overview
The record indicates that the trial court granted defendant’s section 995 motion to
dismiss counts 1, 2, and 3 because the preliminary hearing transcript showed defendant
committed lewd acts on Doe during 1994 and 1995, when Doe was six to seven years old.
The parties agree the 1994 and 1995 conduct is time-barred and defendant cannot be
charged with lewd acts based on conduct occurring before January 1, 1996. But at the
section 995 hearing, the prosecutor did not tell the court that later-occurring conduct
supported the lewd act charges, namely, evidence that defendant forced Doe to orally
copulate him numerous times between March 1997 and March 1999, within the
limitations period.
The second amended information alleges that the lewd acts charged in counts 1, 2,
and 3 occurred between March 1997 and March 1999, when Doe was 9 to 11 years old.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
These dates are within the applicable limitations period. (§ 801.1, subd. (a).) The
preliminary hearing transcript shows defendant forced Doe to orally copulate him
multiple times—at least six times—when Doe was 9 to 11 years old, between March
1997 and March 1999.
We agree with the People that the oral copulation evidence supports both the lewd
act charges in counts 1, 2, and 3 and the forcible oral copulation charges in counts 4, 5,
and 6. And contrary to defendant’s argument, the evidence supporting counts 1, 2, and 3
is not duplicative of the evidence supporting counts 4, 5, and 6. Thus, it is unnecessary,
as defendant further argues, to deem counts 1 to 3, and 4 to 6, pled in the alternative.
B. The Applicable Limitations Period
Until January 1, 2001, the limitations period for lewd and lascivious conduct was
six years. (Former § 800.) Effective January 1, 2001, former section 803, subdivision (h)
was amended to increase the limitations period from six years to 10 years for felony sex
crimes listed in section 290. (Stats. 2000, ch. 235, § 1, p. 2342.) Felony sex crimes listed
in section 290 include section 288, subdivision (a) violations, that is, lewd and lascivious
acts on a child under age 14. Effective January 1, 2006, section 801.1, subdivision (a)
was amended to allow prosecutions for felony sex offenses listed in section 290, which
includes lewd acts (§ 288, subd. (a)) to be commenced any time before the victim turns
age 28, provided the acts occurred when the victim was under age 18. (Stats. 2005, ch.
479, § 2, p. 3791.) The 2001 and 2006 amendments apply to any crimes on which the
limitations period had not lapsed as of the effective date of the amendments. (§ 803.6,
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subd. (b); Stogner v. California (2003) 539 U.S. 607, 632 [“extending time limits . . . for
prosecutions not yet time barred” is permissible].)
C. The Complaint and Preliminary Hearing
The complaint was filed on April 17, 2012, when Doe was 24 years old. Doe was
born in March 1988. Defendant is Doe’s former stepfather and was born in 1967.
Counts 1, 2, and 3 of the complaint alleged defendant committed lewd acts on Doe
between March 1996 and March 1998, when Doe was eight to nine years old. Counts 4
through 7 charged additional sex offenses: forcible sexual penetration between March
1997 and March 2000, when Doe was 9 to 11 years old (§§ 269, subd. (a)(5), 289, subd
(a); count 4); two counts of forcible rape between March 2002 and March 2003, when
Doe was 14 to 15 years old (§ 261, subd. (a)(2); counts 5 & 6), and one count of forcible
oral copulation between March 2003 and March 2004, when Doe was 15 to 16 years old
(§ 288a, subd. (c)(2); count 7).
At the preliminary hearing, the People called Ronald Braasch, a senior investigator
with the district attorney’s office who had interviewed Doe. A sworn peace officer for 28
years, Braasch worked in the sexual assault and child abuse unit. Doe told Braasch
defendant began molesting her when she was six or seven years old (between March
1994 and March 1996).
When she was six or seven years old, defendant would have Doe dance for him
while exposing her buttocks and would rub his hand over her panties on her buttocks and
vaginal areas. He would also make Doe watch pornographic movies while putting his
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penis through his zipper and making Doe masturbate him until he ejaculated. During the
same period, defendant had Doe play a “taste-test game.” He would blindfold Doe or
have her close her eyes, take food from the refrigerator, place it on her tongue, and ask
her what it tasted like. On five or six occasions while playing the taste-test game,
defendant put his penis in Doe’s mouth, ejaculated, and asked her what that tasted like.
As the parties agree, defendant cannot be prosecuted for lewd acts that occurred
during 1994 and 1995, or at any time before January 1, 1996. The limitations period on
that conduct expired on January 1, 2006, when the 10-year limitations period of former
section 803, subdivision (h), expired. Section 801.1, subdivision (a), which became
effective January 1, 2006, and which allows lewd act offenses that occurred when the
victim was under age 18 to be prosecuted before the victim turns age 28, does not apply
to the 1994 and 1995 conduct precisely because it was already time-barred when section
801.1, subdivision (a) went into effect. (People v. Robinson (2010) 47 Cal.4th 1104,
1112 [once limitations period has expired, prosecution is forever time-barred].) Thus, the
initial touchings and the taste tests (oral copulations) are time-barred to the extent they
occurred before January 1, 1996.
Braasch also testified that defendant had Doe orally copulate him numerous times
when she was between the ages of 9 and 11 (between March 1997 and March 1999).
During that period, defendant would take Doe to a room in their home that had a window
facing the driveway to be certain a car would not pull up while Doe was orally copulating
him. Defendant would also take Doe driving in a car and force her to orally copulate him
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as he was driving the car. Doe recalled that on one occasion, defendant forced her to
orally copulate him after he pulled over and parked the car in a neighborhood.
Doe feared disclosing the sexual abuse to anyone because she feared defendant
would physically harm her. Defendant had punished Doe and her brother by putting
them in a corner and hitting their heads into the wall. She had also seen defendant
commit acts of domestic violence against her mother. Defendant would tell her she had
to submit to his sexual requests and, if she refused, he would make her hold heavy
textbooks “out arm’s length, side to side, and . . . up in the air until she submitted to
him.”
Doe said the sexual abuse completely stopped when she was between the ages of
11 and 14. During this period, defendant was “the perfect father.” But when Doe was 14
and 15 years old (between March 2002 and March 2003), defendant forcibly raped,
sodomized, and digitally penetrated Doe. At the preliminary hearing, the defense orally
challenged counts 1 through 3 of the complaint as time-barred, but the court ruled the
limitations period had not run on the charges. Defendant was held to answer on all
charges of the complaint.
D. The Original, Amended, and Second Amended Information
On June 26, 2012, the People filed an original information charging defendant in
counts 1 through 7 with the same offenses and alleging the same time periods alleged in
the complaint. On July 30, 2012, defendant demurred to counts 1 through 7 of the
original information on the ground all of the charges were time-barred. Following a
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September 6, 2012, hearing, the demurrer was overruled as applied to the second
amended complaint.
On August 6, 2012, the People filed a first amended information, again alleging
lewd acts in counts 1, 2, and 3, but alleging the lewd acts occurred between March 1997
and March 1999, when Doe was 9 to 10 years old, one year later than alleged in the
complaint and original information. Counts 4, 5, and 6 charged three additional lewd
acts occurring between March 1997 and March 1999. Counts 7 through 10 alleged the
same charges as counts 4 through 7 of the complaint and the original information: one
count of forcible sexual penetration (count 7), two counts of forcible rape (counts 8 & 9),
and one count of forcible oral copulation (count 10), but changed the dates of these
offenses.
Finally, on August 13, 2012, the People filed the second amended information, the
subject of this appeal. Counts 1 through 3 and 7 through 10 remained unchanged from
the first amended information. But counts 4, 5, and 6 alleged forcible oral copulation
occurring between March 1997 and March 1999, the same time period as the lewd acts
charged in counts 1 through 3.
E. The Section 995 Motion to Dismiss
On October 19, 2012, defendant filed a section 995 motion to dismiss the lewd act
charges in counts 1, 2, and 3 as time-barred, and to dismiss counts 4 through 10.
Following a January 9, 2013, hearing, the court dismissed counts 1, 2, and 3 as time-
barred because the preliminary hearing transcript showed the lewd acts occurred in 1994
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and 1995 when Doe was six and seven years old.2 The court was under the mistaken
impression that counts 1, 2, and 3 were based on the 1994 and 1995 conduct, and neither
counsel informed the court that counts 1 through 6 were supported by the oral copulations
that occurred between March 1997 and March 1999, when Doe was 9 to 11 years old.
III. DISCUSSION
The People claim the lewd acts charged in counts 1, 2, and 3 are not time-barred
because those counts and counts 4, 5, and 6 are supported by at least six acts of forcible
oral copulation that occurred between March 1997 and March 1999. We agree.
Because the second amended information alleges that counts 1, 2, and 3 occurred
between March 1997 and March 1999, the People originally had six years, or until March
2003, to commence prosecution of the charges under former section 800.3 But former
section 803, subdivision (h), which became effective January 1, 2001, before the six-year
limitations period expired in March 2003, extended the six-year limitations period by
four additional years, to March 2007. (Stats. 2000, ch. 235, § 1, p. 2342.)4 The March
2007 date was further extended by the amendment, effective January 1, 2006, of section
2 Pursuant to the parties’ stipulation, the court dismissed counts 7 and 10, and those charges are not in issue on this appeal.
3 Former section 800 was enacted in 1984 and was in effect until September 30, 2011, when it was amended. (Stats. 2011, ch. 39, § 24, p. 1696.) The former statute provided that the prosecution of offenses punishable by eight or more years in prison (which includes lewd acts (§ 288, subd. (a)) had to be commenced within six years of the date the offense was committed. (Ibid.) 4 Because former section 803, subdivision (h) became effective two years before March 2003, when the original six-year limitations period on the lewd act charges expired, the new limitations period became March 2007.
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801.1, subdivision (a) to allow prosecutions for lewd acts, among other felony sex
offenses, to be commenced any time before the victims’ 28th birthday provided the
offenses occurred, as they did here, when the victim was under the age of 18 years. The
complaint was timely filed on April 12, 2012, when Doe was 24 years old.
Defendant argues that counts 1 through 3 “could be construed simply as
alternative pleadings of the acts alleged in counts 4 through 6” of the second amended
information. In other words, defendant argues that the acts of forcible oral copulation
supporting counts 4 through 6 are duplicative of, or are the same as, the evidence
supporting counts 1 through 3. We disagree.
Braasch’s testimony at the preliminary hearing indicated that Doe was forced to
orally copulate defendant at least six times during March 1997 and March 1999, when
she was 9 to 11 years old. The forcible oral copulations occurred in the family home,
while defendant was driving a car, and once when defendant pulled the car over in a
neighborhood. As defendant concedes, the acts of forcible oral copulation constitute
lewd acts on a child under the age of 14. (§ 288, subd. (a).)
Finally, Braasch’s testimony provided sufficient facts to support counts 1, 2, and
3, and 4, 5, and 6 based on the standard of Williams v. Superior Court (1969) 71 Cal.2d
1144. Under Williams, when it appears “from the preliminary examination that a public
offense has been committed, ‘and there is sufficient cause to believe the defendant guilty
thereof,’ the [judge] must make an order holding [the defendant] to answer.” (Id. at p.
1147.) Additionally, “‘“[s]ufficient cause” and “reasonable and probable cause” means
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such a state of facts as would lead a man of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of the guilt of the accused [citation] . . . .’
[Citation.]” (Ibid.)
Doe told Braasch the forcible oral copulations occurred “quite often” over “a two-
year period” when she was 9 and 10 years old. Defendant “would always pick a room
where he could see the driveway in case a car pulled up.” And as discussed, he also
forced Doe to orally copulate him on at least several occasions while he was driving in
the car, and once after he pulled the car over in a neighborhood. In sum, the evidence
indicates defendant forced Doe to orally copulate him at least six times between March
1997 and March 1999. Thus, counts 1 to 3 are not duplicative of, nor should they be
deemed pleaded in the alternative to, counts 4 to 6.
IV. DISPOSITION
The order of dismissal is reversed to the extent it dismissed counts 1, 2, and 3 of
the second amended information. The matter is remanded to the trial court with
directions to issue an order reinstating counts 1, 2, and 3.