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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,


                                              3
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


                                             4
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


                                              5
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


                                               6
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


                                             7
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.

                                             8
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


                                             9
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.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                  KING
                                                                                               J.
We concur:

RAMIREZ
                         P. J.

McKINSTER
                            J.
                                              10
