Filed 9/25/14 P. v. Parrish CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C069281

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F08653)

         v.

AQUILLA PARRISH et al.,

                   Defendants and Appellants.




         Defendant Aquilla Parrish and her daughter, Quilla Parrish, were charged by
information with grand theft in violation of Penal Code section 487, subdivision (a)
(statutory references that follow are to the Penal Code) arising from their scheme to
fraudulently obtain money from the CalWORKS and In Home Health Services programs.
Ultimately, each entered a no contest plea to one count of a violation of section 487,
subdivision (a) with the agreement that the remaining counts would be dismissed and the
court would order full restitution to the County of Sacramento. As to Quilla, the People


                                                             1
also agreed that it would not pursue charges arising from an investigation into an
unrelated case.
       Defendants appeal arguing that each received the ineffective assistance of counsel
for their respective attorneys’ failure to advise them that prosecution of one of the counts
that had been dismissed may have been barred by the relevant statute of limitations and
the attorneys’ failure to challenge that count on those grounds.
       We reverse and remand the matter for further proceedings.

                                FACTS AND PROCEEDINGS

       Aquilla and Quilla were charged by information as follows:
       In Count One, the People charged that, between May 1, 2002 and April 30, 2003,
by means of fraudulent representation and pretense, Aquilla and Quilla stole $23,199.40
from the CalWORKS program which was the property of the Sacramento County
Department of Human Assistance, in violation of section 487, subdivision (a).
       In Count Two the People charged that, between April 1, 2003 and April 30, 2006,
Quilla and Tyree Deshawn White, by means of fraudulent representation and pretense,
stole $69,450.69 from the CalWORKS program which was the property of the
Sacramento County Department of Human Assistance, in violation of section 487,
subdivision (a).
       In Count Three, the People charged that, between August 15, 2006 and
November 14, 2007, Quilla and Larry Darnell Beverly, by means of fraudulent
representation and pretense, stole $35, 958.37 from the CalWORKS program which was
the property of the Sacramento County Department of Human Assistance, in violation of
section 487, subdivision (a).
       In Count Four of the information, the People charged that, between August 17,
2007 and March 25, 2008, by means of fraudulent representation and pretense, Aquilla
and Quilla stole $3,166.80 from the In Home Support Services program which was the


                                             2
property of the State of California and the County of Sacramento, in violation of section
487, subdivision (a).
       In Count Five of the information, the People charged that, between March 26,
2008 and November 16, 2009, by means of fraudulent representation and pretense,
Aquilla and Quilla stole $46,445.36 from the In Home Support Services program which
was the property of the State of California and the County of Sacramento, also in
violation of section 487, subdivision (a).
       Finally, in Count Six, the People charged that, on October 20, 2008, Quilla
violated section 532(a) in that she unlawfully, knowingly, designedly and fraudulently
gained possession of money, property, labor, and service of another.
       On May 20, 2011, Aquilla entered a plea of no contest to Count Five of the
information and waived her rights pursuant to People v. Harvey (1979) 25 Cal.3d 754
(Harvey) in return for the People’s agreement to dismiss, as to her, Counts One and Four
of the information and the parties’ further agreement that Aquilla would be sentenced to
state prison for a period of two years and would be subject to a restitution order arising
from all three of the counts in which she was named.
       Also on May 20, 2011, Quilla entered a plea of no contest to Count Five and
waived her Harvey rights in return for an agreement to dismiss, as to her, Counts One,
Two, Three, Four, and Six and the parties’ further agreement that Quilla would be
sentenced to state prison for a period of three years, subject to a restitution order based on
all counts and that the People would no longer pursue and would not charge Quilla with
other crimes then under investigation.
       On September 9, 2011, the court heard and denied each defendant’s motion to
withdraw her no contest plea and sentenced defendants as follows:
       The court denied Aquilla probation and sentenced her to state prison for a term of
two years. Among other orders, Aquilla was ordered to pay, jointly and severally with
Quilla, restitution to the County of Sacramento in the amount of $23,199.40, the loss

                                              3
alleged in Count One, and $49,612.16 to the County of Sacramento, the losses alleged in
Counts Four and Five.
       The court also denied Quilla probation and sentenced her to state prison for a term
of three years. Among other orders, Quilla was ordered to pay, jointly and severally with
her various codefendants, restitution to the County of Sacramento in the amount of
$23,199.40, the loss alleged in Count One, $49,612.16, the losses alleged in Counts Four
and Five, $69,440.69, approximately the loss alleged in Count Two, $35,958.37, the loss
alleged in Count Three, and, to the individual victim in Count Six, $5,625.
       Having obtained certificates of probable cause, defendants appeal.

                                        DISCUSSION

       Because we are able to resolve the issues raised in this appeal without a detailed
recitation of the facts underlying the crimes alleged in the information, we will relate
them only briefly here.

       According to the probation reports, regarding Counts One, Two, and Three,
between May 1, 2002 and November 14, 2007, Quilla obtained $128, 608.46 from the
CalWORKS program by falsely claiming that her mother, Aquilla, and her other
codefendants, were providing her child care while she was attending school. During this
period, she was not attending school. Regarding Counts Four and Five, between
August 17, 2007 and November 16, 2009, Quilla obtained $49, 612.16 from the In Home
Support Service program by falsely claiming Quilla was severely disabled and required
her mother’s assistance in order to live safely in her home. As to Count Six, Quilla was
responsible for failure to pay the rent for a home she had rented from a private party.




                                             4
                                              I

                             Ineffective Assistance of Counsel

       Both defendants raise a single issue for us to consider on appeal, arguing that each
received ineffective assistance of counsel for their attorneys’ failure to assert a defense to
Count One based upon the expiration of the statute of limitations as to that count or to
advise them of that defense prior to entering their no contest pleas. They claim that, had
they known the prosecution of Count One was barred by the statute of limitations, they
would not have entered into the plea agreements that they did, that their pleas of no
contest were not knowing, intelligent and voluntary and that, therefore, they are entitled
to withdraw their pleas of no contest.
       The People agree that the matter should be remanded to the trial court for further
proceedings to determine whether the prosecution under Count One was barred by the
statute of limitations, tacitly conceding that defendants did not receive effective
assistance of counsel in entering their pleas pursuant to the negotiated settlement.
       As set forth above, Count One of the information charged that, between May 1,
2002 and April 30, 2003, Aquilla and Quilla fraudulently obtained $23,199.40 from the
CalWORKS program by falsely claiming that Quilla was attending school and that
Aquilla was providing care to Quilla’s children, thus violating section 487, subdivision
(a).
       Section 801.5 sets forth the statute of limitations for this offense and provides that
a “prosecution for any offense described in subdivision (c) of Section 803 shall be
commenced within four years after discovery of the commission of the offense, or within
four years after the completion of the offense, whichever is later.” (§ 801.5.) Section
803, subdivision (c)(1) lists “grand theft of any type” as coming within its provisions.
(§ 803, subd. (c)(1).) Thus the prosecution of these defendants for the theft alleged in




                                              5
Count One of the information had to be commenced within four years of discovery, or
completion, of the offense, whichever was later.
       At the time the information was filed charging Count One, a prosecution was
deemed commenced when (a) an indictment or information was filed; (b) a complaint
was filed charging a misdemeanor or infraction; (c) a case was certified to the superior
court; or (d) an arrest warrant or bench warrant was issued, provided the warrant named
or described the defendant with the same degree of particularity required for an
indictment, information, or complaint. (Former § 804.)
       The complaint in this matter was deemed an information and the information was
filed November 4, 2010 after both appellants waived a preliminary hearing. Count One
alleges that the offense set forth therein was completed on April 30, 2003 and, unless the
statute was tolled by late discovery of the offense, the prosecution had to commence not
later than April 30, 2007. On the face of the complaint at least, prosecution of the offense
described in Count One was time-barred by the time the prosecution commenced on
November 4, 2010, more than seven years after the offense was complete.
       In People v. McCary (1985) 166 Cal.App.3d 1 (McCary) the defendant was
charged with sodomy of a child under the age of 14 (§ 286, subd. (c)), and three acts of
lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)), among
other charges. Defendant was also charged with a serious felony enhancement under
section 667, subdivision (a). Just before trial began, defendant pleaded guilty to two of
the counts alleging a violation of section 288 (a) (lewd and lascivious conduct) in return
for a dismissal of the remaining counts and the serious felony enhancement. At the time
of the plea, the People explained that they were willing to dismiss the other charges to
spare the victim and because the People had “evidentiary problems” with the sodomy
count, specifically that the doctor who examined the victim was of the opinion she had
not been sodomized.



                                             6
       Subsequently, defendant moved to withdraw his plea, explaining that he had been
under extreme emotional distress at the time of the plea and that he had not been
previously aware of the physician’s opinion that the child victim had not been sodomized.
The motion was denied.
       On appeal, defendant argued that he had suffered ineffective assistance of counsel.
This court agreed on the grounds that, at the time of his plea, due to a change in the law,
defendant was not subject to the five year serious felony enhancement. His attorney was
either unaware of or failed to inform defendant of that prior to his plea. We said that the
serious felony enhancement added five years to a minimum possible term of
imprisonment of three years for a total minimum term of eight years as opposed to three
years. We held that counsel’s failure to know or to convey to the defendant the fact that
he was not subject to the five-year enhancement before he entered his plea did not meet
the standard of a reasonably competent attorney and that defendant was prejudiced
thereby.
       We found that defendant’s ignorance of the invalidity of the enhancement was a
factor bearing on whether defendant’s plea was based on mistake, ignorance or
inadvertence which affected defendant’s free and clear judgment. We said: “In pleading
guilty and receiving a dismissal of the enhancement, defendant avoided the possibility of
having his sentence increased by a mandatory five years over a minimum possible three
years. Furthermore, the record suggests the plea bargain was not highly attractive to
defendant in the first place, for he moved for withdrawal on grounds unrelated to the
enhancement and while still unaware of its invalidity. Moreover, the sodomy charge was
dismissed for certain evidentiary problems of which defendant was made aware prior to
pleading. Accordingly, it can be fairly concluded the promise to dismiss the
enhancement charge was a substantial inducement in defendant’s decision to plead guilty.
Since the enhancement charge was invalid to begin with, the promise to dismiss it was of
no value.” (McCary, supra, 166 Cal.App.3d at p. 10; see also People v. Johnson (1995)

                                             7
36 Cal.App.4th 1351 [ineffective assistance of counsel where defendant agreed to a 20-
year term after his counsel told him his maximum term was 38 years when it was, in fact,
27 years].)
        The same result must obtain here. On this record, there is no indication that
counsel for the defendants researched the statute of limitations issue relating to Count
One nor does the record reflect any challenge to Count One on those grounds. While a
conviction on Count One would have added only eight months to the maximum sentence,
defendants’ terms to state prison were for two and three years. We cannot say that, had
they known they were not subject to the additional eight-month sentence they would not
have insisted on a more favorable agreement. Moreover, if it turns out that Count One is
barred by the statute of limitations, the restitution order arising from that count cannot
stand. In sum, counsels’ “ ‘representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.’ (Strickland [v. Washington
(1984) 466 U.S. 668, 688] [80 L.Ed.2d [674,] 693-694]; accord, [People v.] Pope
[(1979)] 23 Cal.3d [412], 423-425.)” (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
Defendants were prejudiced thereby.
        Finally, in these circumstances, “the appellate court must look to see if the record
contains any explanation for the challenged aspect of representation. If it does, the court
must inquire whether the explanation demonstrates that counsel was reasonably
competent and acting as a conscientious, diligent advocate. For example, where the
record shows that counsel’s omissions resulted from an informed tactical choice within
the range of reasonable competence, the conviction must be affirmed. (Citation omitted.)
In contrast, where the record shows that counsel has failed to research the law or
investigate the facts in the manner of a diligent and conscientious advocate, the
conviction should be reversed since the defendant has been deprived of adequate
assistance of counsel. (Citation omitted.)” (People v. Pope (1979) 23 Cal.3d 412, 425-
426.)

                                              8
       We can discern no reasonable tactical decision not to challenge Count One as
being beyond the limits of the relevant limitations period. While one might speculate that
counsel did investigate into this issue and found that discovery of the fraudulent conduct
tolled the statute for a time sufficient to bring the prosecution within the period set forth
in section 801.5, that would have us looking for a reasonable tactical decision based on
pure speculation rather than looking for a reasonable explanation based on facts
contained in the record of trial which we may not do.
       On this record, defendants were not afforded the effective assistance of counsel
and the matter must be returned to the trial court.

                                              II

                                         The Remedy

       While the parties appear to agree that defendants did not receive the effective
assistance of counsel, they do not agree on the remedy. Defendants say the matter must
be returned to the trial court where the defendants may withdraw their plea. The People
say that, given the discovery provisions of section 801.5, the matter should be returned to
the trial court for that court to determine, at least initially, whether discovery of the crime
alleged in Count One came within the four year limitation period. We think the latter is
the appropriate remedy here. It may be, given a challenge to Count One on limitations
grounds, the People will be able to show that Count One was not barred by the statute of
limitations. In that event, defendants’ pleas must stand. If the People cannot make that
showing, defendants are entitled to withdraw their pleas and the prosecution will proceed
from there. (See People v. Lynch (2010) 182 Cal.App.4th 1262, 1275-1277.) If the
People can make that showing, defendants’ motion to withdraw their pleas should again
be denied.




                                               9
                                      DISPOSITION

      The judgment is reversed and the matter is remanded to the trial court for
proceedings consistent with this opinion.




                                                      HULL                 , Acting P. J.




We concur:




      MURRAY               , J.




      DUARTE               , J.




                                            10
