IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
November 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROCK ANTHONY ALMEIDA, DEFENDANT AND APPELLANT.
(Super. Ct. No. MF032677A)
The opinion of the court was delivered by: Robie , J.
P. v. Almeida
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Rock Anthony Almeida was charged with committing a forcible lewd act upon a child under the age of 14 years in violation of Penal Code*fn1 section 288, subdivision (a) (among other charges). The complaint alleged that the act occurred sometime between August 1988 and August 1996. Defendant pled guilty to the charge.
Defendant contends for the first time on appeal that the lewd act charge, as pled, was facially time-barred, and because the record fails to disclose whether the charge was factually time-barred, the matter should be remanded to the trial court for a hearing to determine whether the charge was factually time-barred, and if so, to allow him to withdraw his plea.
Defendant is correct to this extent: given the eight-year date range for the offense pled in the complaint (August 1988 to August 1996), it cannot be determined from the face of the complaint whether the charge was timely filed. Thus, on its face, the lewd act charge was potentially time-barred. The record establishes, however, that the charge was in fact timely filed. Accordingly, there is no basis to remand the case for a hearing on the timeliness of the charge or to allow defendant to withdraw his plea.
Defendant further argues that the trial court erred in imposing an $80 court security fee because under section 1465.8, the applicable fee at the time of his conviction was only $30 per conviction. Defendant is correct. We will therefore modify the judgment to reflect the correct court security fee of $60 for defendant's two convictions.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, on January 2, 2010, a Manteca Police Officer was assigned to a molestation case that occurred over 15 years earlier. The officer interviewed four victims, all of whom declared that defendant had molested them. Specifically, victim three (Stephanie Doe) stated that defendant had molested her between the ages of 6 and 13. Defendant was subsequently arrested.
On January 7, 2010, defendant was charged with four counts of continuous sexual abuse of a child and two counts of committing a lewd and lascivious act upon a child. As relevant here, one of the lewd acts (count four) alleged that defendant committed a forcible lewd act upon Stephanie Doe "[o]n or about August 1988 through August 1996."
Defendant entered a plea of guilty to lewd acts (count four) and one of the continuous sexual abuse charges, and the remaining charges were dismissed. According to the prosecutor, the factual basis for the plea to the lewd act charge was that "[t]here was a time between either August of '88 through August of 1996 . . . in which the defendant had [Stephanie Doe] rub his penis until he ejaculated . . . ." Defendant agreed that the facts as stated by the prosecutor constituted the factual basis for the plea.
The trial court sentenced defendant to 12 years in prison for the continuous sexual abuse charge and a consecutive eight-year sentence for the lewd act charge. As part of his sentence, the court ordered defendant to pay certain fees, which included a court security fee of $80 required by section 1465.8.
Statute Of Limitations
Defendant contends that because the record on appeal does not establish whether the lewd act charge was factually time-barred, he is entitled to a hearing at the trial court to determine whether the lewd act charge was timely commenced. According to defendant, the provisions of section 803, subdivision (f) -- which allows a criminal complaint to be filed within one year of the date of a 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 a victim described in (as applicable here) section 288 -- have not been satisfied. Specifically, defendant argues that the record on appeal does not provide a factual basis to establish that the complaint was filed within a year of Stephanie Doe's report to the police, and thus it cannot be determined from the record before us whether the prosecution of the lewd act charge was barred by section 803, subdivision (f). He is wrong.
When a statute of limitations issue is properly raised on appeal, the appellate court must attempt to determine from the available record whether the action is time-barred. (People v. Williams (1999) 21 Cal.4th 335, 341.) Although our Supreme Court did not define "available record," defendant contends, without citing to any authority, that since the probation report was not part of the factual basis for his plea, it cannot be used as part of the record to establish the timeliness of the charge. We are not persuaded.
The "available record" from which an appellate court can determine whether a charge is time-barred should not be defined so narrowly as to exclude a probation report. This is especially true here, where defendant failed to exercise his right to object when entering his guilty plea to point out any errors or omissions in the probation report.*fn2 (See People v. Welch (1993) 5 Cal.4th 228, 235 [noting that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal].) Because of this failure, we can assume that the facts provided in the probation report are reliable and true. Thus, in making our determination as to the timeliness of the lewd act charge, we see no reason not to use the information provided in the probation report as part of the record on appeal.
According to the probation report, Stephanie Doe filed a report with a Manteca Police Officer on January 2, 2010. With this information, the prosecutor filed a complaint against defendant five days later on January 7, 2010. Because the record establishes that the prosecutor filed the complaint within a year of Stephanie Doe's report to the police in accordance with section 803, subdivision (f), a remand in this case to determine whether the lewd act charge was timely filed would be a waste of time and resources. The available record clearly establishes that the statute of limitations was satisfied. This issue is frivolous.
Court Security Fee
Defendant contends that the trial court improperly imposed an $80 court security fee. According to defendant, at the time he was convicted on June 30, 2010, section 1465.8 required a $30 court security fee for each conviction, and therefore, he should be required to pay $60, that is, $30 for each of the two counts in which defendant pled guilty. He is correct.
Effective January 1, 2010, section 1465.8 required a court security fee of $30 for every conviction of a criminal offense. (Stats. 2009, ch. 342, § 5.) Effective October 19, 2010, section 1465.8 was amended to raise the assessment to $40 for each conviction. (Stats. 2010, ch. 720, § 33.)
Defendant pled guilty on June 30, 2010, but was not sentenced until December 1, 2010. Thus, at the time defendant was convicted, the applicable court security fee was $30. (People v. Alford (2007) 42 Cal.4th 749, 754 [holding that the legislative history supports the conclusion that the Legislature intended to impose the court security fee to all convictions after its operative date].) Therefore, the $30 court security fee required at the time defendant was convicted should be applied to defendant and not the $40 court security fee required at the time he was sentenced.
The judgment is modified to reduce the section 1465.8 court security fee to $30 per count ($60 for defendant's two convictions). In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a copy thereof to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P. J. HOCH ,J.