APPEAL from a judgment of the Superior Court of Sacramento County, Jaime R. Roman, Judge. (Super. Ct. No. 06F10109)
The opinion of the court was delivered by: Hoch , J.
part. pub. order 6/27/11 (see end of opn.)
(Super. Ct. No. 06F10109)
In People v. Woodward (2004) 116 Cal.App.4th 821, we affirmed defendant Daniel Woodward's convictions for possessing child pornography (Pen. Code, § 311.11, subd. (a))*fn1 and committing a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)) against B., his daughter. (Id. at pp. 825-826.) While defendant was serving the resulting prison sentence, the Sacramento County District Attorney charged defendant with committing two counts of lewd and lascivious acts on a child under the age of 14 against T.C. and A.G. (§ 288, subd. (a).) Defendant was also alleged to have committed the offenses against multiple victims within the meaning of the "One Strike Law." (Former § 667.61, subd. (e)(5) (One Strike Law).)*fn2
A jury convicted defendant as charged and found true the multiple victim allegation. The trial court sentenced defendant to an aggregate term of 30 years to life in prison, composed of consecutive 15-year-to-life sentences.
On appeal, defendant contends (1) the prosecution commenced this case after the applicable six-year statute of limitations had run, (2) the failure to plead that he was not eligible for probation precluded the application of the One Strike Law, (3) the trial court erred in hearing defense counsel's motion for a hearing pursuant to Evidence Code section 782 even though defendant was not personally present, and (4) the trial court abused its discretion by sentencing him to consecutive terms while unaware of its discretion to impose concurrent terms and without stating its reason for imposing consecutive terms.
We vacate the sentence and remand the case so that the trial court may exercise its discretion in determining whether to impose consecutive or concurrent sentences. In all other respects, we affirm defendant's convictions.
FACTUAL AND PROCEDURAL HISTORY
In July 1999, defendant "met" T.A. online and they developed a relationship over the ensuing months. In December 1999, T.A. and her two daughters, T.C. and A.G., moved from Florida to live with defendant in Sacramento, California. T.C. was nine years old and A.G. was seven years old.
One day in spring 2000, defendant was sitting on the couch watching a movie with T.C. and A.G. T.A. was not home at the time. Defendant told A.G. to come to his bedroom with him. Defendant sat in his computer chair and instructed A.G. to sit on his lap. Defendant began touching A.G.'s leg before putting his hand into her pants. He rubbed her vagina and inserted his finger. Defendant stopped when T.C. called for her sister from the living room. Defendant told A.G. not to tell anyone.
T.A. and her daughters moved out of defendant's apartment after living with him for approximately three months. After moving out, T.C. and A.G. visited defendant twice a month. On two or three occasions, the girls spent the night at defendant's apartment.
During a sleepover in the spring of 2000, defendant and T.C. were sitting on a couch in the living room and watching a movie. T.C. was wearing a knee-length nightgown. Defendant was lying with his back against the end of the couch, and T.C. was "laying against him" in a "sort of spooning" position. Defendant put his hand on her vagina on the outside of her clothes. T.C. felt uncomfortable with the touching, which lasted about five seconds. She got up and left the room. After the incident, T.C. asked her mother to not spend the night at defendant's apartment anymore.
In May 2006, T.C. and A.G. reported to law enforcement that defendant had molested them.
In 2009, as part of its case-in-chief, the prosecution introduced evidence of defendant's prior child molestation offense in November 2000 pursuant to Evidence Code section 1108. The evidence concerned defendant's molestation of his daughter, B. On November 25, 2000, B. and her brother spent the night at defendant's house. B. was six years old and her brother was seven. On November 26, 2000, B. sat on defendant's lap while they watched a movie from his couch. She was wearing one of defendant's t-shirts but did not have any underwear on. Her brother was sitting in front of the couch with his back toward B. and defendant.
Defendant touched her vagina with his finger. He then announced that it was "bath time." B.'s brother continued to watch the movie while defendant and B. headed to the bathroom. After B. got into the bath, defendant "washed [her] as if [she] were a little girl." At the time, B. typically took baths by herself when at home with her mother.
Defendant took off his clothes and got into the bath with B. He made her "wash the lower part of his body all over, including his penis." Defendant's penis was erect. Defendant turned on the shower and rinsed both of them off. After the shower, defendant dried B. off with a towel and told her not to tell anyone.
Later that day, B. told her grandmother, who immediately reported the incident to the police. That night, the police went to defendant's apartment to question him about B.'s report of being molested. Defendant invited the police officers into the apartment where the officers observed a desktop computer with a picture of a girl with a dildo in her vagina. The desktop of the computer showed files related to incest and bestiality. Defendant told the police "that he was not a child molester, that he was doing research" on incest and bestiality.
The prosecution introduced a certified copy of the abstract of judgment showing defendant's conviction for committing a lewd and lascivious act against B. (§ 288, subd. (a).)
Defendant testified on his own behalf. He acknowledged having child pornography on his computer when the police came to question him in November 2000. Defendant stated that he had been "researching incest and bestiality, rape, and molestation" to educate himself on the subjects so that he could persuade a girlfriend who lived in Indiana to seek counseling for her childhood sexual abuse.
Defendant acknowledged that B. and her brother visited him on November 25, 2000. After arriving at his apartment around 7:00 p.m., B. and her brother quickly changed into defendant's t-shirts in lieu of their own pajamas. B. sat on defendant's lap while they all watched a movie. During the movie, B. began to tickle defendant, who tickled her back. Defendant admitted that he took a shower with B. but denied that she touched his penis or that he had an erection. Defendant acknowledged that he had been convicted for molesting B.
Defendant denied ever touching T.C. or A.G. inappropriately. He explained that A.G. could not have sat on his lap in his home office because of the shape of his ergonomic chair. Defendant denied that he ever fondled T.C.
Claimed Expiration of the Statute of Limitations
Defendant contends that the six-year statute of limitations for his crimes expired before the prosecution filed its complaint. We reject the contention.
Although defendant raises the statute of limitations issue for the first time on appeal, we consider it even though he might have presented it first in the trial court. As the California Supreme Court has explained, "a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 338.) Accordingly, we proceed to consider the merits of defendant's claim that his prosecution of section 288, subdivision (a), was time barred after six years.
Defendant was convicted of two counts of violating subdivision (a) of section 288. Ordinarily, a conviction of subdivision (a) of section 288 is subject to a maximum prison term of eight years.*fn3 Offenses subject to prison terms of no more than eight years must be prosecuted within six years after the offense was committed. To this end, section 800 provides that "[e]xcept as provided in Section 799, prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense." Thus, defendant asserts that prosecution was time-barred because the district attorney did not charge him until April 2008 -- more than six years after the offenses committed in 2000. Not so.
Offenses subject to life imprisonment do not have a limitation on the time to commence a prosecution. Section 799 provides, in relevant part, that "[p]rosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of ...