APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. (Consolidated Super. Ct. Nos. BF118941A & BF119693A).
The opinion of the court was delivered by: Wiseman, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant James Douglas Shaw was charged in case No. BF118941A with three counts of child molestation in violation of Penal Code*fn2 sections 647.6, subdivision (c)(2), and 288, subdivision (a), against two victims, B.M. and A.B. It was also alleged that Shaw had suffered three prior convictions in 1985 within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e). Count two was alleged as a serious felony within the meaning of section 1192.7, subdivision (c)(6).
In case No. BF119693A, Shaw was charged with three additional counts of child molestation in violation of section 647.6, subdivision (c)(2), and section 288, subdivision (a), involving a different victim, B.B. It was also alleged that Shaw had suffered three prior convictions within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e), and that the three 1985 convictions were serious felonies within the meaning of section 667, subdivision (a). A multiple-victim enhancement pursuant to section 667.61, subdivision (c), was also alleged. Counts one and two were alleged as serious felonies within the meaning of section 1192.7, subdivision (c)(6).
The court ordered the two cases consolidated for trial. The consolidated information charged as follows:
1§ 647.6, subd. (c)(2) 6 Strikes (§ 667, subds. (c)- (j) & § 1170.12. subds. (a)-(e)))Annoying/molesting w/prior 288B.M.12/16/05-1/14/06
2§ 288, subd. (a) Serious felony (§ 1192.7, subd. (c)(6)); 6 Strikes (§ 667, subds. (c)- (j) & § 1170.12, subds. (a)- (e)); 3 prior serious felonies (§ 667, subd. (a))Lews and lascivious act, child under 14A.B.2/01/06-6/01/06
3§ 647.6, subd. (c)(2) 6 Strikes (§ 556, subds. (c)- (j) & § 1170.12, subds. (a)- (e))Annoying/molesting w/prior 288 of child under 14A.B.2/01/06-6/01/06
4§ 288, subd. (a) Serious felony (§ 1192.7, subd. (c)(6)); multiple victim (§ 667.61, subd. (c)); § 667.61, subd. (e)(5)); 6 Strikes (§ 667, subds. (c)- (j) & § 1170.12, subds. (a)- (e)); 6 prior serious felonies (§ 667, subd. (a))Lews and lascivious act, child under 14B.B.2/1/03-2/28/03
5§ 288, subd. (a) Serious felony (§ 1192.7, subd. (c)(6)); multiple victim (§ 667.61, subd. (c); § 667.61, subd. (e)(5)); 6 Strikes (§ 667, subds. (c)- (j) & § 1170.12, subds. (a)- (e); 6 prior serious felonies (§ 667, subd. (a))Lews and lascivious act, child under 14B.B.3/01/03-6/12/04
6§ 288, subd. (c)(1) 6 Strikes (§ 667, subds. (c)- (j) & § 1170.12, subds. (a)- (e)); 6 prior serious felonies (§ 667, subd. (a))Lewd and lascivious act, child under 14B.B.6/13/04-6/12/05
Lewd and lascivious act, child under 14
The case was tried to a jury, which found Shaw guilty as charged on all counts and found the multiple-victim allegations true. In a bifurcated proceeding, Shaw admitted the prior-conviction allegations. He was sentenced to two consecutive terms of 45 years to life on counts four and five and to three consecutive terms of 25 years to life on counts one, two and six, plus a consecutive 20-year determinate term for the prior convictions. The term imposed on count three was stayed pursuant to section 654. The court awarded Shaw a total of 299 days of custody credit for time served.
In 1985, Shaw was convicted in three separate countsof molesting a nine-year-old fourth grader whom he was baby-sitting. The victim, A.J., testified at trial that Shaw pushed her on the bed and put his hand down her pants and digitally penetrated her vagina. Shaw told A.J. not to tell her parents or they would not love her anymore. In 1996, Shaw molested A.S., a relative, who was around 14 or 15 years old. This molest was not reported to authorities but was handled within the family. In 2007, Shaw was charged with molesting three additional victims, A.B., B.B., and B.M. The three girls ranged in age from 8 to 16 years.
A.B. testified that when she was eight, she was alone with Shaw in the bedroom. Shaw pushed her against the bed and when she fell back, Shaw moved his private parts in a circle between her legs. She said he kept trying to move them toward her, almost pushed them on her and then brushed his private parts against her vaginal area. A.B. said Shaw asked her if it "felt good." A.B. was afraid and pushed Shaw away and ran out of the room. A.B. reported the molestation to her mother a couple of months later after watching a television show about sexual predators. A.B.'s mother confronted Shaw, but he denied this ever happened. At trial, he testified the two of them were just playing around, roughhousing.
B.M. was friends with Shaw's stepdaughters. Between December 2005 and January 1, 2006, when B.M. was 16 years old, Shaw took B.M. with him to a ranch for a day of horseback riding. B.M. thought Shaw's family would be with him, but when he picked her up, he was alone. On the ride to the ranch, Shaw made B.M. uncomfortable by asking her if she was a virgin and by telling her she should lose her virginity to an older man. After they rode for two to three hours in the company of the ranch's owner, Shaw took B.M. home. On the ride home, Shaw asked B.M. for a hug. He pulled her to the center of the front seat and kissed her. He put his arm around her, moved his hand to her breast and began rubbing it. When she pushed his hand away, he told her to stop fighting. He also moved his hand up and down her inner thigh, rubbing it. B.M. asked him to stop, but Shaw told her he knew it felt good and that they could pull over anytime.
B.M. told her mother what had happened after seeing a television show about a girl her age going through the same thing. B.M.'s mother, Theresa M., contacted police. The two of them worked with the police to record conversations with Shaw in which they confronted him. In these conversations, Shaw ultimately admitted that he had molested B.M. Two of the recorded interactions were played for the jury at trial, a taped phone conversation between Shaw and B.M. and a videotaped meeting between Shaw, B.M., and her mother.
B.B. was Shaw's stepdaughter's good friend. She was 12 when Shaw first molested her. The molestation occurred when they were alone in a trailer at the ranch or in Shaw's truck or in B.B.'s house. Although B.B. could not remember specific dates, she testified that Shaw touched her breasts, inner thighs, and vaginal area, both over and under her clothes. She testified that he digitally penetrated her a number of times, although not often. She said Shaw often took her to school. It was during these times that Shaw molested B.B. Shaw told B.B. that if she told anyone, people would hate her. After B.B.'s father learned of the allegations made by A.B. and B.M., he asked B.B. a number of times whether she had been touched inappropriately. Since B.B. was embarrassed and was afraid she would lose her friendship with Shaw's stepdaughter, she initially denied any inappropriate contact. Finally, after Shaw had been arrested on the other charges, B.B. told police what had happened.
Carol W., a cousin of Shaw's wife, testified about an incident that occurred between her and Shaw in 1999. She was an adult at the time. Shaw came to visit and said Carol needed a massage. She was not interested, but Shaw followed her to the bedroom and pushed her down on the bed. He began rubbing her legs, thighs, and vaginal area. He demanded a kiss and would not let her go. Finally, he left. Carol W. eventually informed police. Shaw testified in his own behalf. He denied any inappropriate touching of the three victims, although he admitted the prior convictions.
I. Statute of Limitations, Counts I & VI
Shaw was charged in count one with a felony violation of section 647.6, subdivision (c)(2), annoying or molesting a child under the age of 18 and having been previously convicted of a violation of section 288, subdivision (a). The statute provides that a person found to have violated this section "shall be punished by imprisonment in the state prison for two, four, or six years." (§ 647.6, subd. (c)(2).) The offense was alleged to have occurred between December 16, 2005 and January 14, 2006. Prosecution began on April 30, 2007. Shaw contends that count one is barred by the one-year statute of limitations generally applicable to misdemeanor offenses, because section 647.6, subdivision (c)(2), does not change the underlying misdemeanor offense, it only enhances the sentence for recidivists. Shaw claims, "one should look to the conduct underlying the conviction to determine the applicable statute of limitations, without considering sentence enhancements due to recidivism."
Shaw relies on section 805, subdivision (a), which provides that "[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense." (§ 805, subd. (a).) He also relies on case authority holding that sentence-elevating enhancements are not elements of the underlying offense. (See People v. Bouzas (1991) 53 Cal.3d 467, 478 (Bouzas); People v. Turner (2005) 134 Cal.App.4th 1591 (Turner); People v. Whitten (1994) 22 Cal.App.4th 1761, 1765 (Whitten); People v. Coronado (1995) 12 Cal.4th 145, 152; People v. Merkley (1996) 51 Cal.App.4th 472, 476.)
This issue, the appropriate statute of limitations to be applied to section 647.6, subdivision (c)(2), has been addressed by two other appellate courts in People v. San Nicolas (1986) 185 Cal.App.3d 403 (San Nicolas), which addressed the issue in the context of section 647a, the statutory precursor to section 647.6, subdivision (c)(2), and People v. McSherry (2006) 143 Cal.App.4th 598 (McSherry). Both courts concluded that when a defendant is charged with felony child annoyance or molestation as a recidivist, the appropriate statute of limitations is the three-year felony statute of limitations. We conclude these cases are persuasive and follow their lead.
The court in San Nicolas noted that a violation of former section 647a was defined statutorily as an offense with variable punishments according to the criminal history of the defendant. The court also observed that the prior conviction required for the maximum penalty did not work as an enhancement, i.e., an additional term of imprisonment added to a base term, but instead converted what would otherwise be a misdemeanor into a felony offense with a greatly increased maximum penalty. (San Nicolas, supra, 185 Cal.App.3d at p. 407.) The court pointed out that to construe section 805 as the defendant in San Nicolas contends (and Shaw here) would lead to absurd results. "Such interpretation would erode the distinction between enhancements and elements of an offense in certain hybrid offenses. In effect, it would establish the same period of limitation for the prosecution of felonies and misdemeanors in those instances in which an offender's criminal history dictates the degree of the crime. That consequence surely could not have been intended by the Legislature and cannot be permitted. [Citation.]" (San Nicolas, supra, at p. 408.)
McSherry, a more recent decision, adopted the reasoning of San Nicolas, enhancing the analysis with a reference to the legislative history of subsequent changes to the law. The McSherry court looked directly at the language of the statute, which expressly provides for a maximum sentence of six years. Under section 805, subdivision (a), the applicable statute of limitations is determined by the maximum punishment proscribed. A literal reading of the governing statutes supports a finding that the applicable statute of limitation is three years. (McSherry, supra, 143 Cal.App.4th at pp. 603-604.) Next, the McSherry court noted that, "given the San Nicolas result in 1986, application of the misdemeanor statute of limitations in this case would run afoul of the rule of statutory construction that recognizes that where statutory language has been construed judicially, and the Legislature thereafter amends the statute but leaves the construed language intact, it is presumed the Legislature was aware of the prior construction and adopted it. [Citations.]" (Id. at p. 603.)
The court explained that section 647.6, subdivision (c)(2), is a subsequent statute on a similar subject that uses substantially similar language to the statute construed by San Nicolas.
"At the time of San Nicolas, section 802, subdivision (b), provided prosecution for a misdemeanor violation of former section 647a committed upon a minor under the age of 11 years, could be commenced within two years after commission ...