Filed 2/26/13 P. v. Aguilar 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Respondent,                                       E054973

v.                                                                       (Super.Ct.No. FVA1001458)

OSCAR ARMANDO AGUILAR,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed in part; reversed in part.

         Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and

Respondent.




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         A jury convicted defendant and appellant Oscar Armando Aguilar of five counts

of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1), counts 1-5)1, two

counts of rape by means of force, violence, or duress (§ 261, subd. (a)(2), counts 6 & 8),

and two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d), counts 7

& 9). The trial court sentenced defendant to eight years in state prison on count 6, and

imposed six years on count 8 to run consecutive to count 6; then, as to counts 7 and 9, the

court imposed one consecutive year on each count, for a total determinate sentence of 16

years. The court also imposed a 15-year-to-life term on each of counts 1 through 5, to

run consecutive to each other and to the determinate term. Therefore, defendant received

a total determinate term of 16 years, plus an indeterminate term of 75 years to life.

         On appeal, defendant contends that: (1) the convictions on counts 7 and 9 should

be reversed because the statute of limitations had run on them by the time the information

was filed; and (2) this court should review the sealed rap sheets of the main prosecution

witnesses to determine whether those witnesses committed crimes involving moral

turpitude that could have been used to impeach them. The People concede and, we agree,

that counts 7 and 9 should be reversed. Otherwise, we affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

         Jane Doe was born in 1988. When she was five years old, her mother, Virginia A.

(mother), entered into a dating relationship with defendant. Doe, mother, and defendant



         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

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began living in the same house. In 1996, defendant and mother had a daughter together

named C.

       The dating relationship between mother and defendant ended in 1998. However,

mother allowed defendant to continue seeing Doe and C. so he could help take them to

school and watch them after school. Right before Doe turned 10 years old, defendant

raped her at mother’s house. A week later, he raped her again. After that, defendant

raped Doe on a daily basis, Monday through Friday. He would either do it after he

picked her up from school, or some days he would pick her up in the morning, but instead

of taking her to school, he would rape her. Defendant threatened to kill mother and C. if

Doe resisted or told anyone about what he was doing.

       For the next few years, defendant continued to rape Doe, on nearly a daily basis

during the week. When she refused, he would grab her wrists and bite her cheeks. He

also got a gun and would show it to her and tell her he was going to use it to kill her

mother and sister.

       Defendant stopped raping Doe when she was 15 years old. Mother had a new

boyfriend who did not want defendant around. Her boyfriend stopped the arrangement

mother had with defendant transporting Doe and C. to and from school. In 2006, when

Doe was 18 years old, she finally told mother that defendant had forced her to have sex

with him from the age of nine to the age of 15. She also reported it to the police.

       On September 17, 2010, the prosecution filed a felony complaint charging

defendant with five counts of continuous sexual abuse. (§ 288.5, subd. (a), counts 1-5.)

The abuse was alleged to have occurred between February 1, 1998 and May 17, 2002.

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After the preliminary hearing on October 4, 2010, defendant was charged by information

with the same five counts.

       On July 8, 2011, the prosecution filed a first amended information alleging five

counts of aggravated sexual assault of a child under the age of 14. (§ 269, subd. (a)(1),

counts 1-5.) As with the original information, all five counts related to conduct involving

Doe and was alleged to have occurred between February 1, 1998 and May 17, 2002.

       On September 12, 2011, the prosecution filed a second amended information,

which again alleged five counts of aggravated sexual assault of a child under the age of

14. (§ 269, subd. (a)(1), counts 1-5.) The information also alleged that defendant was 10

and more years older than Doe. All five counts related to conduct involving Doe and

were alleged to have occurred between February 1, 1998 and May 17, 2002.

       On September 15, 2011, the prosecutor filed a third amended information and

added four additional counts. Count 6 alleged that defendant committed forcible rape of

Doe (§ 261, subd. (a)(2)), and count 7 alleged that defendant engaged in unlawful sexual

intercourse with Doe (§ 261.5, subd. (d)). The conduct in counts 6 and 7 was alleged to

have occurred between May 18, 2002 and May 17, 2003. Count 8 alleged that defendant

engaged in the forcible rape of Doe (§261.5, subd. (d)) between May 18, 2003 and May

17, 2004. Count 9 alleged that defendant engaged in unlawful sexual intercourse with

Doe (§ 261.5, subd. (d)) between May 18, 2003 and May 17, 2004. Defense counsel

objected to the amendment of the information as being untimely. However, the trial court

permitted the prosecution to file the amended information, based on the support of the

additional charges in the preliminary hearing transcript, the apparent lack of prejudice to

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defendant with regard to the additional charges, and the fact that defense counsel had

notice of the additional charges.

       On September 22, 2011, the jury convicted defendant on counts 1 through 9.

                                        ANALYSIS

               I. Counts 7 and 9 Were Barred by the Statute of Limitations

       Defendant was charged and convicted of two counts of unlawful sexual

intercourse with a minor, in violation of section 261.5, subdivision (d), in counts 7 and 9.

Defendant contends that the statute of limitations barred these two counts. The People

correctly concede.

       Unlawful sexual intercourse in violation of section 261.5, where the perpetrator is

at least 21 and the victim is under 16, is punishable by imprisonment in a county jail not

exceeding one year or by imprisonment in the state prison for two, three, or four years.

(§ 261.5, subd. (d).) For purposes of the statute of limitations, an offense is deemed

punishable by the maximum punishment prescribed by statute for the offense. (§ 805,

subd. (a).)

       Section 801 provides that offenses punishable by imprisonment in the state prison

“shall be commenced within three years after commission of the offense.”

Commencement of prosecution occurs when an information is filed. (§ 804, subd. (a)).

Section 803 provides for a tolling or extension of the statute of limitations under certain

circumstances and for particular enumerated offenses. However, section 261.5 is not

among the enumerated offenses. (See §§ 803, subd. (f)(1), 801.1.) Therefore, the People



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were required to commence prosecution against defendant for the violations of section

261.5 within three years of the date he committed the offenses. (§ 801.)

       The conduct alleged in count 7 occurred during a period between May 18, 2002

and May 17, 2003, and the conduct alleged in count 9 occurred during a period between

May 18, 2003 and May 17, 2004. Thus, the latest that the People could have commenced

prosecution was May 17, 2006 for count 7 and May 17, 2007 for count 9. Defendant was

not charged with counts 7 and 9 until the third amended information, which was filed on

September 15, 2011. Since those charges were not filed until 2011, they were untimely.

Accordingly, counts 7 and 9 were time-barred and should be reversed.

              II. The Rap Sheets Do Not Reveal Crimes of Moral Turpitude

       Defendant requests that this court review the sealed rap sheets of Doe and mother

to see if the trial court erred in determining that they had not committed any crimes

involving moral turpitude. We find no error.

       The prosecution here gave the trial court copies of the rap sheets of Doe and

mother. The court reviewed them and stated there were no allegations of any crimes

involving moral turpitude. The court then put the rap sheets “under seal in the court file

for potential appellate review.”

       Defendant subsequently moved this court to augment the record with the sealed

rap sheets and to unseal them. This court granted the motion to augment the record, but

declined to unseal the rap sheets. Instead, we agreed to review the rap sheets and

determine which parties should receive copies. We then directed the clerk to send copies

of the rap sheets to counsel for respondent only.

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       Upon review of the rap sheets of Doe and mother, we conclude that the court

properly determined that there were no allegations of crimes involving moral turpitude.

                                      DISPOSITION

       The convictions and resulting sentences on counts 7 and 9 are reversed, as they are

barred by the applicable statute of limitations in section 801. We direct the superior court

clerk to correct the abstract of judgment to reflect that the convictions and sentences for

counts 7 and 9 are reversed, and to forward a corrected copy of the abstract to the

Department of Corrections and Rehabilitation. In all other respects, we affirm the

judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


McKINSTER
                           J.


CODRINGTON
                           J.




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