California Court of Appeal Jun 25, 2013 No. E055168Unpublished
Filed 6/25/13 P. v. Monplaisir 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E055168
v. (Super.Ct.No. INF064806)
DONALD JOSEPH MONPLAISIR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Reversed and remanded with directions.
James M. Crawford, 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, Steve Oetting and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Donald Joseph Monplaisir appeals after he pleaded no
contest to 12 counts of committing a lewd and lascivious act on a child under age 14 1
(Pen. Code, § 288, subd. (c)(1)), and 36 counts of unlawful sexual intercourse with a
minor (Pen. Code, § 261.5, subd. (c), (d)). He contends that he should be entitled to
withdraw his plea, because he was mistakenly told that he would be able to appeal the
denial of his speedy trial motion. The People concede that defendant should be afforded
the opportunity to withdraw his plea. We reverse and remand with directions.
FACTS AND PROCEDURAL HISTORY
The facts as to the offenses are derived from the probation report. The victim,
defendant’s daughter, was two years old when she went to live with her paternal
grandmother in Haiti. The victim was eight years old when defendant came to Haiti for a
visit. Defendant kissed her with an open mouth kiss. He also wanted the victim to take a
shower with him, but the grandmother overheard and intervened, telling defendant his
request was inappropriate.
When the victim was 11 years old, she went to visit an aunt in New York.
Defendant was also visiting. Both defendant and the victim were sleeping on a pull-out
sofa when the victim woke up one night as defendant held her in his arms and caressed
her breasts. Defendant attempted to penetrate her with his penis, but the victim felt pain
and began to cry. Defendant stopped and told the victim he was sorry.
That same year, the victim also visited her father at his home in New Jersey. She
stayed with defendant for about one month. During that time, defendant began regularly
touching her breasts and vagina. The victim told an older cousin about the molestation,
but no one did anything further to report, investigate or stop the abuse.
2
When the victim was 12 years old, she again visited her aunt in New York.
During this visit, defendant had sexual relations with his daughter. The victim wrote a
letter about the incident, which was later discovered by her grandmother. The victim’s
grandmother became angry, and accused the victim of lying; her grandmother also said
that, if it was true, the victim must have been asking for it.
Every year thereafter, when the victim would visit with her father, he would
engage in sexual intercourse with her, as well as mutual oral sex. Defendant told his
daughter that sexual relationships like theirs were common, but that “people did not talk
about it.” Defendant claimed to be “teaching” the victim about sex.
When the victim was 14 years old, her grandmother died. The victim then went to
live with her father in La Quinta, California. When the victim came to live with him,
defendant ended his relationship with his girlfriend, and immediately began having
regular sex, about two or three times a week, with the victim. Defendant told the victim
that he had sex with her so that he would not catch a sexually transmitted disease from
someone else.
On at least one occasion while the victim was living with defendant, the victim’s
brother walked in on defendant and the victim while they were having sex. Defendant
followed his son out of the room; when he returned, he told the victim that her brother
had not seen anything. Another time, defendant took the victim to a motel to have sex.
On this occasion, he told her to “make noise,” because when he had sex with her at home,
they normally had to be quiet so no one would hear them.
3
Usually, after having sex with the victim, defendant would make her go into the
bathroom, where he would press on her abdomen in an effort to squeeze his semen out of
her body to avoid pregnancy.
Defendant maintained this sexual relationship with the victim until she left home
for college at age 18. When she returned home at age 19, she told defendant she would
no longer allow him to have sex with her because she had learned from a college friend
that it was wrong.
The victim finally reported the molestations to law enforcement officers in
approximately March 2009. The Riverside County District Attorney’s Office filed a
felony complaint alleging 59 separate counts for offenses that allegedly occurred between
1990 and 1994.1 Shortly after the proceedings began, defendant filed a motion to dismiss
the charges as barred by the statute of limitations. Defendant argued that the statute of
limitations provided in Penal Code section 803, pertaining to late discovery or disclosure
of sex offenses against minors, did not exist in 1994, the last date on which an offense
here was alleged to have taken place. The applicable statute of limitations in 1994 was
six years for these offenses. Penal Code section 803, subdivision (f), was not enacted
until 2005, more than six years after the last molestation offense. Accordingly, defendant
1 The original complaint alleged: (1) 12 counts of violation of Penal Code section 288, subdivision (c)(1) (lewd and lascivious act on a child under age 16 and more than 10 years younger than the perpetrator), one for each month between August 1990 and July 1991; (2) 47 counts of violation of Penal Code section 261, subdivision (a)(2) (rape by means of force, violence or fear), one for each month between August 1990 and June 1994.
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argued that the statute of limitations had expired before the provision relied on here had
come into existence. Even if Penal Code section 803 applied, however, defendant argued
that there was no independent corroboration of the victim’s allegations.
The prosecutor opposed the motion, arguing that the statute of limitations had not
expired. The provision now included in Penal Code section 803, subdivision (f), had
previously existed in another subdivision of the statute; the prior version had been in
effect in 1994. The prosecutor pointed to Stogner v. California (2003) 539 U.S. 607 [123
S.Ct. 2446, 156 L.Ed.2d 544], in which the United States Supreme Court held that the
version of Penal Code section 803 in effect at that time, did violate the ex post facto
clause when applied to prosecutions that were already time-barred. The Supreme Court
also noted, however, that it would not be a violation of ex post facto principles to extend
the statute of limitations as to prosecutions that were not yet time-barred at the time the
extension is enacted. (Stogner, at pp. 618-619; see also People v. Vasquez (2004) 118
Cal.App.4th 501, 504.)
While the motion to dismiss was pending, the court suspended proceedings when
it expressed a doubt as to defendant’s mental competence. After reviewing the ensuing
reports, the court declared defendant competent to stand trial.
In November 2009, after several months of discovery and other proceedings,
defense counsel filed a purported “supplement” to the motion to dismiss, alleging that
reports of the molestations had come to the attention of law enforcement officials as early
as 2001, so that the current prosecution in 2009 was not timely. The prosecutor
responded that the circumstances in 2001 did not trigger the statute of limitations. In
5
2001, defendant had filed a missing person report, stating that his daughter, the victim,
was missing, having allegedly taken his car. Later, defendant telephoned the
investigating officer to say that the victim had called and, according to defendant, the
victim was accusing defendant of molesting her. Defendant, however, denied to the
officer that he had molested the victim. The prosecution argued in opposition that
defendant’s disclosure to law enforcement officers, in the context of a different
investigation, that his daughter may have accused him of molesting her is not the same
thing as a report of molestation to law enforcement by a victim. The victim’s report to
law enforcement is the event that starts the running of the statute of limitations; no such
victim report happened in 2001. The hearing on the motion was continued a number of
times, until the trial court eventually denied the motion in March 2010.
In May 2010, defendant renewed the motion again urging that defendant’s
statement to officers in 2001, in the context of a different investigation (victim had taken
defendant’s car and was missing), to the effect that his daughter was accusing him of
molesting her, was sufficient to initiate the statute of limitations. The court again denied
the motion.
The matter proceeded to preliminary hearing. Although the magistrate indicated
some uncertainty as to the element of duress with respect to the rape charges, ultimately
defendant was held to answer on all charges.
Defendant moved to set aside the information under Penal Code section 995, on
the ground that there was no probable cause to support the charges, again based on the
theory that the statute of limitations had expired. Defendant argued that he could not be
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held to answer, because the evidence indicated that law enforcement had received notice
of the molestation allegations in 2001, and the limitations period should have begun at
that time, consistent with the policies underlying the extended reporting period under
Penal Code section 803, subdivision (f). In addition, the trial court had refused to take
judicial notice of a transcript in connection with one of the earlier dismissal motions,
particularly the testimony of the police officer who had spoken to defendant in 2001 and
to whom defendant had related the statement that the victim was accusing defendant of
molesting her. Of course, at the same time, defendant also denied to the officer that any
touching had taken place. Defendant offered the explanation that the victim was making
such accusations simply because she was angry with defendant, in the context of her
having taken his car and disappeared.
The People opposed the motion to dismiss, arguing that the evidence at the
preliminary hearing was sufficient to hold defendant to answer on the charges, and
detailing the evidence supporting the lewd and lascivious act charges (counts 1-12), and
the rape charges (counts 13-59). Penal Code section 803, subdivision (f), the applicable
statute of limitations, provides that the period begins to run upon the report to a
California law enforcement agency “by a person of any age alleging that he or she, while
under the age of 18 years, was the victim of [one of the enumerated sex crimes] . . . .”
Any report in 2001 was not made “by a person . . . alleging that he or she . . . was the
victim” of the charged crimes. The prosecutor argued that defendant was not deprived of
any due process rights as to the preliminary hearing as he had a dismissal motion on the
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same ground (statute of limitations) heard and denied the same day as the preliminary
hearing.
At the hearing on the probable cause motion to dismiss, the court expressed
concern about the “duress” element with respect to the rape charges. Although the victim
was defendant’s daughter and defendant had begun the molestations at an early age, the
victim for several years had not lived with defendant and defendant had not made any
threats toward her or used physical force to secure her compliance. Rather, the victim
felt compelled by her relationship with defendant, and she feared that he would become
upset if she refused. The molestations continued until the victim was 17 or 18 years old,
much older than the victims in other cases that had found coercion implied in the parent-
child relationship.
The court denied the motion to dismiss the information insofar as the statute of
limitations was involved. However, it found insufficient proof of duress to sustain the
rape charges. The court accordingly denied the motion as to counts 1 through 12, the
lewd and lascivious act counts, but granted the motion as to counts 13 through 59, the
rape charges.
After this ruling, defendant filed another motion to dismiss the remaining 12
counts, again alleging that the statute of limitations had run. This time, defendant’s
motion focused on the requirement in the statute that there be corroborating evidence of
substantial sexual conduct, and argued that there was insufficient independent evidence to
corroborate the victim’s allegations.
8
The People opposed the motion, noting that the victim had, by arrangement with
the police, made a pretextual telephone call to defendant, which was recorded. In the
course of that telephone call, defendant made certain admissions that independently
supported the victim’s allegations. Defendant had made remarks during his police
interview that also supported the allegations. The court denied the motion.
By this time, in August 2010, the matter was scheduled for trial on counts 1
through 12. Both parties announced ready for trial. However, this court issued a stay of
the trial proceedings pending the People’s appeal of the dismissal of the rape charges.
The People had also filed a related writ proceeding, in which this court issued a
peremptory writ in the first instance, granting the People’s petition to reinstate the rape
counts. (People v. Superior Court (Monplaisir) (Oct. 27, 2010, E051644) [nonpub.
opn.].) Defendant had disciplined the victim in the past by beating her, and the victim
had testified that she was concerned he might physically abuse her if he was strongly
upset by her refusal to cooperate. Accordingly, the evidence showed that the victim acted
or failed to act because of her subjective fear. This was sufficient to meet the probable
cause standard to hold defendant to answer for the rape charges. (Ibid.) The People
abandoned the appeal because of the relief granted on the writ. Defendant sought further
review of this court’s order in the writ proceedings; this court denied rehearing and the
California Supreme Court denied review. The case was remitted to the trial court once
again on February 28, 2011.
9
The trial court set the matter for a trial readiness conference on all the charges.
Defendant filed a new motion to dismiss the charges, this time on the ground of violation
of his statutory right to a speedy trial. The trial court denied this motion.
On July 7, 2011, both parties again announced ready for trial. On the eve of trial,
the People filed a first amended information (1) reinstating counts 13 through 48, and
(2) amending the allegations to charge unlawful sexual intercourse with a minor more
than three years younger than the perpetrator or unlawful nonforcible sexual intercourse
with a person under age 16 (Pen. Code, § 261.5, subds. (c) & (d), respectively), rather
than rape by duress (Pen. Code, § 261, subd. (a)(2)). Twelve counts of rape previously
charged (between August 1990 and July 1991) were not renewed in the first amended
information. The amended charges covered conduct alleged between August 1991 and
July 1994.
On the last day to begin trial, July 13, 2011, defendant requested a continuance to
the next day, as negotiations were ongoing to resolve the matter. The following day, July
14, 2011, defendant agreed to change his plea. Defendant accepted the court’s offer to
plead no contest to all charges in exchange for a 20-year prison term, plus credits under
Penal Code section 4019 (maximum exposure was 38 years eight months). In addition,
defendant would be granted a certificate of probable cause to appeal on the statute of
limitations issue, as well as alleged violation of his statutory speedy trial rights as to
counts 1 through 12. The People objected to the plea.
10
The trial court accepted defendant’s change of plea, and sentenced him to the
agreed-upon term of 20 years. The court also duly signed the certificate of probable
cause.
At sentencing, the trial court denied probation, imposed a total prison commitment
term of 20 years, and ordered defendant to pay $10,000 as a restitution fine, with a
concomitant $10,000 parole revocation fine.
Defendant filed a timely notice of appeal.
ANALYSIS
I. Defendant Is Entitled to Withdraw His Plea Because It Was Induced in Part by a
Promise to Issue a Certificate of Probable Cause to Review the Denial of His Speedy
Trial Motion, a Nonappealable Order
Defendant agreed to plead no contest based in part on the inducement that the
court would grant a certificate of probable cause to review the denial of his motion to
dismiss counts 1 through 12 for alleged violation of his statutory right to a speedy trial.
As defendant now recognizes, the denial of a statutory speedy trial motion is not
reviewable on appeal. In Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, the
court held that the admission of the allegations of a juvenile petition—analogous to a
guilty plea—constitutes an admission of all the facts essential to establish guilt. “ ‘The
essence of a defendant’s speedy trial or due process claim in the usual case is that the
passage of time has frustrated his ability to establish his innocence. The resolution of a
speedy trial or due process issue necessitates a careful assessment of the particular facts
of a case in order that the question of prejudice may be determined. [¶] Where the
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defendant pleads guilty, there are no facts to be assessed. And since a plea of guilty
admits every element of the offense charged, there is no innocence to be established.’
[Citation.] Thus, ‘the cases are virtually uniform in holding that a claim of speedy trial
violation—whether statutory or constitutional—does not survive a guilty plea.’
[Citations.]” (Id. at p. 792.)
Defendant contends that, because his plea was induced by the unenforceable
promise that the speedy trial issue had been preserved for appeal, he must be entitled to
the opportunity to withdraw his appeal. The People concede that the speedy trial issue is
not cognizable on appeal, and that defendant, who relied on the promise that the issue
was preserved, should be afforded the opportunity to withdraw his no contest plea. We
agree that the lower court’s issuance of a certificate of probable cause cannot render a
claim reviewable that is not cognizable on appeal. (See People v. Sanders (2012) 203
Cal.App.4th 839, 847-848.)
We order the matter remanded to permit defendant the opportunity to withdraw his
plea. (See Ricki J. v. Superior Court, supra, 128 Cal.App.4th 783, 792.)
II. The Statute of Limitations Had Not Expired
Defendant again raises the issue that the statute of limitations had run as to all the
charged offenses, based on the notion that defendant’s remarks to an officer in 2001
initiated the running of the limitation period.
The People suggest that we need not address the issue, as it may not be ripe for
decision. We have agreed with defendant, and the People concede, that the judgment
must be reversed and the matter remanded to allow defendant the opportunity to
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withdraw his plea. If defendant elects to withdraw the plea, the matter will be returned to
trial, i.e., prejudgment status. At the trial level, defendant has moved numerous times to
dismiss on the basis that the statute of limitations has run, and each time that motion has
been denied. He may seek appellate review of that ruling after a judgment, but the
appellate court generally does not issue advisory opinions in cases in which no judgment
has been entered. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 860.) Because defendant
has been granted the primary relief he seeks—the opportunity to return the case to
prejudgment status—appellate (i.e., postjudgment) review of pretrial rulings made by the
trial court is arguably inappropriate at this point. As the People also point out, if
defendant withdraws his plea, it is unknown what specific charges the prosecution will
elect to proceed upon, and therefore it is unknown what tolling provisions may apply.
(See, e.g., Pen. Code, § 803, subds. (d), (f).)
However, it is also not certain that defendant will in fact elect to withdraw his no
contest plea to these charges. The sentence he received, 20 years, amounts to an average
of less than one year per count, and is significantly less than the potential maximum
exposure he faces should he elect to withdraw his plea and stand trial. Should defendant
ultimately decide not to withdraw his plea, the statute of limitations issue would remain
unreviewed; moreover, if defendant’s contention is meritorious, and the statute of
limitations on the currently charged offenses has expired, it would be unjust to require
him to go through the expense and difficulties of a trial on the merits in order to obtain
appellate review. For that reason, we deem it expedient to address the issue on the
merits. Further, the issue is one of pure statutory construction; it presents an issue of law,
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which we review independently. (People ex rel. Lockyer v. Shamrock Foods Co. (2000)
24 Cal.4th 415, 432.)
Defendant points out that, when he contacted police in 2001 about the victim
running away with defendant’s car, he informed an officer that the victim had telephoned
him and, because she was angry with defendant, she was accusing defendant of having
molested her. At the same time, defendant firmly denied to the officer that he had
engaged in any inappropriate behavior. Defendant contends that his 2001 self-serving
report and denial of the alleged accusations of molestation, were sufficient to begin the
running of the extended statute of limitations under Penal Code section 803. That is, a
law enforcement agency had received information sufficient to alert the authorities to the
victim’s molestation claims. Under Penal Code section 803, subdivision (f)(3), the
complaint was not brought within one year of the report to law enforcement because it
was not filed until 2009. Therefore, the statute of limitations on the charged offenses had
expired long before the instant proceedings began.
We disagree. We begin, as in any case of statutory construction, with the
language of the statute itself. “Generally, a reviewing court’s ‘fundamental task in
construing a statute is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute. [Citation.]’ [Citation.] The analysis starts with an examination of
the actual words of the statute, giving them their usual, ordinary meaning. [Citation.]”
(Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1513-1514.)