Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063792A
Lambden, J.
Defendant Wilfredo Cortez Cauyong was found by a jury to have engaged in repeated lewd and lascivious acts between 1994 and 2001 against two young nieces, who were 18 and 19 years of age at the time of defendant’s 2009 trial. He was convicted on 24 counts of engaging in lewd and lascivious acts on a child. The jury found that he engaged in substantial sexual conduct regarding many of these counts, and also found to be true a multiple victim allegation made pursuant to California’s “One Strike” law, Penal Code section 667.61, which required imposition of an indeterminate life sentence. The trial court sentenced him to an indeterminate term of 29 years to life.
All statutory references herein are to the Penal Code, unless otherwise stated.
Defendant’s appeal seeks reversal of the judgment regarding all, or most, of the counts, largely because they were time-barred, based on statute of limitations claims that he raises for the first time in this appeal. The People concede he may first raise these claims on appeal, but argue that most of the counts were timely prosecuted for multiple reasons.
Specifically, defendant argues that, at most, only two counts were timely prosecuted, regarding only one of the girls, for which he was sentenced to two six-year terms. The People respond, first of all, by arguing that 22 of the counts were timely prosecuted pursuant to the One Strike law andthe court’s imposition, as recommended by the prosecution, of determinate sentences for these counts was unauthorized by law. They ask us to vacate these sentences and remand with instructions to the trial court to impose 22 mandatory indeterminate life terms pursuant to the One Strike law. The wide gulf between the parties’ positions highlights the confounding tangle of evolving laws and developing legal issues in this area of the law.
We reject defendant’s arguments; and we also reject the People’s argument that 22 of the counts were subject to sentencing under the One Strike law. We conclude, consistent with one of the People’s alternative arguments, that while counts 1 through 4 do not appear to have been timely prosecuted as indicated on the face of the information, counts 5 through 24 were timely prosecuted pursuant to section 801.1, subdivision (a). We also conclude, and the parties agree, that counts 1 through 4 should be remanded to the trial court to determine if they were timely prosecuted pursuant to Penal Code section 803, subdivision (f). Accordingly, we affirm the judgment for counts 5 through 24. We reverse the judgment for counts 1 through 4 and remand the matter to the trial court to determine whether these counts were timely prosecuted, as well as for resentencing in light of any counts found to be time-barred on remand and regarding imposition of sentence pursuant to the One Strike law, which the trial court previously attached to count 1 in violation of ex post facto principles, as conceded by the People.
In light of our remand, we conclude it is premature to determine whether or not the trial court could impose sentence pursuant to the One Strike law for either count 3 or count 4, an issue we raised during this appeal in a supplemental briefing order, and we do not discuss the issue further in this opinion. Also, given our conclusions on the statute of limitations, remand, and sentencing issues, we have no need to, and do not, further address defendant’s alternative ineffective assistance of counsel claim.
Defendant also argues for reversal of judgment on all counts because the trial court erred in its rulings regarding his claims of juror misconduct. We find no merit in these arguments.
BACKGROUND
On June 1, 2007, the San Mateo County District Attorney filed an information charging defendant with 24 counts, each alleging he committed a lewd and lascivious act on a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The first 12 counts alleged acts against “Jane Doe #1” (Jane 1), and the second 12 alleged acts against “Jane Doe #2” (Jane 2). In 14 of the counts, it was alleged that defendant engaged in substantial sexual conduct with a victim under the age of 14 within the meaning of section 1203.066, subdivision (a)(8). It also was alleged in the last paragraph of the information that during the commission of the above “offenses(s), ” defendant committed an offense specified in section 667.61, subdivision (c), against more than one victim, within the meaning of section 667.61, subdivision (e)(5), the One Strike law.
At the trial in January of 2009, the following evidence was presented.
Defendant asks that we strike the People’s statement of facts because it does not recite evidence submitted at trial. The People, contending that the facts are not in dispute, submit as their statement of facts the probation officer’s summary of events that was submitted to the court below. Defendant does not establish grounds for striking this summary. However, the People’s statement of facts does not cite support in the record for any of its “facts, ” and appears to refer to matters that were not part of the evidence submitted at trial. This is poor practice; in any event, it does not merit our review and we disregard it. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 [appellate court may disregard any factual contention not supported by a proper citation to the record]; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the Rules of Court require factual assertions to be supported by citations to the record].) We summarize the facts herein based on defendant’s statement of facts and our own review of the record.
The Prosecution’s Case
Jane 1 and Jane 2 were sisters, born in 1989 and 1990 respectively. In 1994, they and their mother, Eileen, who was separated from the girls’ father, moved into Eileen’s parents’ house on Bellevue Street in Daly City and, after moving out, the girls continued to stay there when Eileen was working. Siblings of Eileen lived at the parents’ house with their spouses. This included defendant, who was married to one of Eileen’s sisters, and stayed in an upstairs bedroom. Relatives, including defendant, would babysit Jane 1 and Jane 2 at the Bellevue Street house when Eileen was at work.
Jane 1 and Jane 2 Disclose Their Accounts of Abuse
Jane 1 testified that Jane 2 told her in November 2006 that defendant had raped her when Jane 2 was little. Jane 1 told Jane 2 to tell someone, but did not tell her that defendant had done similar acts to her.
In December 2006, Jane 1 disclosed in her high school peer assistance class that defendant had abused her. The teacher, upon learning that Jane 1 had not reported this abuse, took her to his office. Jane 1 knew he would have to report her information. She told him that she had not reported the abuse earlier because she was afraid she would not be believed and thought that the abuse was partly her fault, but was now disclosing the abuse because she had found out the previous week that defendant had also abused Jane 2, and was worried about defendant’s eight-year-old daughter.
The teacher called Jane 2 to his office. Jane 1 said that when she, as a little girl, and defendant were alone at her grandmother’s house, defendant had kissed her on the mouth, touched her private parts through her clothing, made her pull her pants down, made her touch his penis, eventually had intercourse with her when she was about five years old, and did so more than once. She said she went along with defendant’s demands because he threatened to hurt her mother or her family. Jane 2 said that defendant had had her sit on his lap, kissed her on the mouth, touched her, and had intercourse with her one time, which had caused her to bleed. Both Jane 1 and Jane 2 said that the abuse stopped when defendant moved out of their grandparents’ house.
The teacher called Child Protective Services (CPS), which reported the allegations to the police. Detective Harrison testified that he spoke to Jane 1 and believed he spoke to Jane 2 at their school.
Jane 1’s Testimony About Defendant’s Acts
Jane 1 testified that one day at the Bellevue Street House, when she was a five-year-old kindergartener, defendant became angry and told her to go upstairs with him to his bedroom, where he locked the door and sat on the bed with her. He touched her body, including her chest and vagina, over her clothes. He told her not to tell anyone or he would hurt her mother. She believed him and told no one. He touched her every day after school until some weeks later, when he touched her chest and vagina under her clothes, kissed her, and put his penis in her vagina, which hurt her the first time he did it. He did this “every time” she went into his bedroom. She made noises when it happened, but he covered her face with a pillow or his hand and told her to stop. After this first time, he put his penis in her vagina “a lot, ” every time she went into his room. He also masturbated himself, and had her touch his penis with her hand.
Defendant put his penis in Jane 1’s vagina from the time she was in kindergarten through the third grade whenever she was at the Bellevue Street house, which was almost every day during the school year and on days during the summer. He did so less when Jane 1 was in fourth grade because she was in after-school programs and did not go to the house as much. It happened less after fourth grade, when he stopped yelling at her to go upstairs.
Jane 1 thought that when she was in fifth grade she kicked defendant between his legs, whereupon he raped her, but did not have a specific memory of it. She also recalled seeing her sister go into defendant’s bedroom alone, and suspected she was also being molested by him, but did nothing about it.
The sexual incidents with defendant stopped when Jane 1 was “maybe 10” because she was not going to the house as much. There were no further incidents after defendant and his wife moved away towards the end of Jane 1’s time in fifth grade. She would see defendant at family functions, where he would touch her “butt” and try to kiss her when no one was looking.
Jane 1 first revealed details of what defendant had done to her when Detective Harrison interviewed her. She was afraid defendant would hurt her mother if she told anyone, and had seen him hit his wife and daughter. She also thought that telling would drive her family apart.
On cross-examination, Jane 1 also testified that she asked to go places with defendant, went on trips with him, and one time went with him to the Philippines without her parents. She also gave defendant pictures, on which she wrote that she loved him.
Jane 2’s Testimony About Defendant’s Acts
Jane 2 testified that she stayed at the Bellevue Street house when her mother went to work. When Jane 1 and their cousin Ken came home from school, they played together downstairs. Jane 2 saw Jane 1 go up to defendant’s bedroom on occasion when defendant called her.
When Jane 2 was four, defendant would make her and Ken sit on his lap and pretend to drive in his car. When Jane 2 did this, defendant’s hand would touch her vagina over her clothes. She hurt and was uncomfortable, but did not say anything to the others.
Defendant started calling her into his bedroom when she was in kindergarten. The first time, he told her to close the door and lock it, remove her pants, and lie on the bed, which she did. He got on top of her and put his tongue in her mouth, but she bit his tongue and he stopped kissing her. Her underwear came off and defendant touched her vagina with his finger. He put his penis inside her vagina and told her to shake the bed, but to be quiet. She did not scream because she did not know it was wrong; she also was afraid of defendant because he yelled and was mad all the time. Afterwards, she hurt and found blood on her underwear.
At first, Jane 2 testified that this happened “a couple of other times, ” and that she was not sure how many. Later, she testified that “it happened a lot... like, every other instance.” She told Harrison it happened only once because she remembered defendant directing her only that one time. She testified that she did not have specific detailed memories of the other days when it happened, but that it happened “a lot.”
Sometimes, at defendant’s instruction, when the children watched a movie or listened to music in defendant’s room, Jane 2 would fall asleep on the bed next to defendant when Ken was also in the bed. Sometimes, she would wake up and Ken would be gone. Defendant would put his tongue in her ear. Other times, he would feel around her vagina through her clothes. He did this once when Ken was in the bed, but she did not say anything to Ken.
From the time Jane 2 was in kindergarten until the fourth grade, defendant touched her vagina a couple of times a month, including during the summer. Except for a few times, he did this over her clothes. It stopped when she was in fourth grade, when defendant moved away. Once, when she was in fifth or sixth grade, defendant told her in his parked car that “he would eat [her] out” and put his hand on her thigh or knee, and she left the car. She did not recall any incidents occurring after that.
On cross-examination, Jane 2 said she did not tell anyone what defendant did to her because she was afraid of him. She did not recall defendant specifically threatening her. She remembered that she told Detective Harrison that defendant put his finger inside her vagina one time, but at trial she was not sure this occurred. She also told Harrison that defendant touched her vagina nearly every day, although, she testified, it happened “several” times a month. She did not tell anyone before the week she testified that defendant touched her clitoris. She denied in previous interviews that defendant touched her “thing” inside her clothes with his “thing” after first grade, that “anything happened in the room” with defendant during second grade, and that “anything happened with [defendant]” during third grade.
On redirect, Jane 2 testified that during her interview with Harrison she distinguished between defendant putting his finger into the hole of her vagina and in between the lips of her vagina. She was uncomfortable with the talk and also referred to her “thing.” She told Harrison that during kindergarten, defendant put his finger in her “thing, ” meaning touched her clitoris, five times, and maybe as many as 10. She also told him that it would happen at least three or four times a month. At one point, she told Harrison that defendant would touch her “thing” outside her clothing “almost every day” during kindergarten. She testified that she was feeling confused about the timing of how often and when incidents occurred when she spoke to Harrison. Over time, she had more time to think about it, and testified incidents happened “[t]he majority of the time that [she] spent” at the Bellevue Street house, more than once a month, at least once each school year, and at least once each summer vacation period.
Other Prosecution Evidence
The girl’s mother, Eileen, testified that she learned of the allegations for the first time on December 20, 2006, from Harrison. When her daughters were young, she did not notice anything unusual when she bathed them, and did not notice or hear them complain about their private parts. The girls took family trips where defendant went along.
Lydia C. was a sister-in-law to defendant, and lived in the Bellevue Street house from 1995 to 2005. In 1995, she worked during the day, usually coming back to the house around 4:30 p.m. She recalled that sometimes one or the other of the girls would go upstairs to defendant’s room, at his call, to pluck his white hair, which, she said, children commonly do for men in Filipino culture. The girls were scared, did not want to go upstairs, and made excuses, but defendant was very demanding. The girls would go up to defendant’s room and the door would be closed. Sometimes they came downstairs crying. Defendant would say they were fighting, but Lydia never saw them fight. She expressed her concerns, apparently to her mother-in-law, but this continued. Defendant was like a father figure to the girls.
Clinical Social Worker Miriam Wolfe testified as an expert in child sexual abuse accommodation syndrome. She said that abused children often engage in secrecy, helplessness, entrapment and accommodation, delayed, conflicted or unconvincing disclosures, and retraction. In her experience, it was common for children to continue to be in the presence of their abusers.
The parties entered into a stipulation concerning a forensic nurse practitioner’s January 2007 physical examinations of Jane 1 and Jane 2, which was read to the jury. Jane 1 told the nurse practitioner that the last incident with defendant occurred seven years before the examination; defendant penetrated her vagina with his finger and penis; she experienced pain and bleeding with the first penetration; and since the abuse she had had consensual sex with another person. The nurse practitioner found an “absence of hymenal tissue at the six o’clock position, ” which was an abnormal finding, was definite evidence of sexual contact, and was consistent with the history provided by Jane 1. However, the nurse practitioner was not able to state defendant caused it.
Jane 2 told the nurse practitioner that defendant’s acts occurred when she was five to nine years old; defendant penetrated her vagina with his penis on one occasion and his finger on several occasions; she experienced bleeding with the first penetration; and she had since had consensual sex with another person. The nurse practitioner found an “absence of hymenal tissue at the one o’clock position” and multiple notches on the hymen, which was an abnormal finding, definite evidence of sexual contact and consistent with the history provided by Jane 2. However, the nurse practitioner was not able to state defendant caused them.
The Defense Case
Ken L. testified for the defense. He was born in 1989, and was first cousin to Jane 1 and Jane 2. The three played together from kindergarten or the first grade. Relatives babysat him at the Bellevue Street house while his parents worked. His grandfather or defendant would meet him after school and bring him to their house around 3:30 p.m. He and Jane 1 would watch television or movies, or play video games, in defendant’s room. Defendant would be there sometimes, and started going to the Bellevue Street house regularly after school in second grade. He was close to Jane 1 and Jane 2, and stopped spending time with them in seventh or eighth grade. Jane 1 never mentioned that defendant did anything to her, and Ken did not see anything that suggested Jane 1 did not want to be around defendant.
Verdict and Sentencing
The jury found defendant guilty on all counts, and found the substantial sexual contact and One Strike allegations to be true.
Defendant moved for a new trial and also requested an evidentiary hearing based on his contentions of juror misconduct. The court denied both. As requested by the prosecution, the court sentenced defendant to one indeterminate prison term of 15 years to life for count 1 pursuant to the One Strike allegation. It imposed terms totaling 14 years for counts 2, 3, 14, and 15, to run consecutively, and six-year terms for each of the remaining counts, to run concurrently. Defendant was sentenced to a total indeterminate term of 29 years to life.
Defendant filed a timely notice of appeal. During this appeal, we sought, and received, supplemental briefing from the parties regarding the application of the One Strike law to the counts prosecuted, the possible remand of this matter for further proceedings in order to determine whether or not counts 1 through 4 were timely prosecuted pursuant to Penal Code section 803, subdivision (f), and resentencing.
DISCUSSION
I. Statute of Limitations
Defendant argues that prosecution of the offenses was time-barred because the prosecution did not plead and prove circumstances that extended the applicable statute of limitations, which required prosecution within six years. He asserts that we should remand this matter for a determination of which offenses were time-barred under statutes and the ex post facto clause of the federal Constitution.
The People first argue that counts 3 through 24 were not time-barred because the One Strike law allegation applied to these counts. They assert the court erred when, at the recommendation of the prosecution, it imposed determinate sentences for these counts rather than indeterminate life sentences under the One Strike law, and request that we remand the matter for resentencing. The People also make two alternative arguments, they being that counts five through 24 commenced within the limitations period established by section 801.1, subdivision (a) and, if section 801.1, subdivision (a) does not apply, that counts 7 through 12 and 16 through 24 commenced within the limitations period established by section 801.1, subdivision (b).
We reject the People’s One Strike argument. However, we agree that counts 5 through 24 were timely prosecuted pursuant to section 801.1, subdivision (a). We also agree with the parties that we should reverse the trial court’s judgment regarding counts 1 through 4 because of a lack of evidence that these counts were timely prosecuted. We agree that we should remand the matter to the trial court for a determination as to whether or not counts 1 through 4 were timely prosecuted pursuant to Penal Code section 803, and for resentencing pursuant to the One Strike law. In light of our conclusions, we do not need to further consider the People’s argument regarding section 801.1, subdivision (b).
A. The Information
The information, filed on June 1, 2007, charged defendant with 24 counts of lewd and lascivious acts on a child under 14 years of age. Each count alleges an act that occurred over a number of months; altogether the offenses alleged spanned from April 14, 1994 to May 30, 2001.
The counts are evenly divided between the two girls. Counts 1 through 12 identify Jane 1 as the victim. Count 1, to which the court attached the indeterminate life term pursuant to the One Strike allegation, alleges that defendant engaged in a lewd and lascivious act against Jane 1 (i.e., sexual intercourse) between April 14, 1994 and August 31, 1994. Counts 2 through 4 allege that defendant engaged in lewd and lascivious acts against Jane 1 between September 1, 1994 and May 30, 1996. Counts 5 through 12 allege defendant committed offenses that, collectively, occurred from June 1, 1996 to May 30, 2000. Counts 13 through 24 identify Jane 2 as the victim. They allege defendant committed offenses that, collectively, occurred from June 1, 1996 to May 30, 2001. All 12 counts involving Jane 1, and counts 14 and 17 involving Jane 2, contain allegations of substantial sexual conduct with a child under 14 years old within the meaning of section 1203.066, subdivision (a)(8).
The last paragraph of the information, which immediately followed the recitation of count 24 without any heading or additional spacing between them contained the only One Strike law allegation stated in the information. In this last paragraph, it was alleged that “during the commission of the above offenses(s), ” defendant committed an offense specified in section 667.61, subdivision (c) against more than one victim, meaning Jane 1 and Jane 2, within the meaning of section 667.61, subdivision (e)(5).
The information does not contain any statute of limitations allegations, and the parties concede that no statute of limitations issues were raised below.
B. Discussion
Defendant argues that prosecution of all of the offenses alleged was time-barred, based on the six-year limitations period stated in section 800 and People v. Lamb (1999) 76 Cal.App.4th 664, 675, which held that the usual six-year statute of limitations applies to lewd act offenses. (Id. at p. 675.) Defendant points out that the information was filed on June 1, 2007, but the last date alleged for any of the charged offenses is May 30, 2001. Therefore, defendant argues, the six-year limitations period for prosecution of all the charged offenses had expired when the information was filed. The People disagree and present alternative arguments for why most of the counts were timely prosecuted.
Generally, “the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed, ” determines the applicable limitations period. (§ 805, subd. (a).) “Once the statute of limitations for an offense expires without the commencement of prosecution, prosecution for that offense is forever time-barred.” (People v. Robinson (2010) 47 Cal.4th 1104, 1112.) A law enacted after expiration of a previously applicable limitations period violates the ex post facto clause of the federal Constitution when it is applied to revive a previously time-barred prosecution. (Stogner v. California (2003) 539 U.S. 607, 632-633.)
The long-standing rule requires the prosecution file a charging document that is not, on its face, time-barred. (People v. Terry (2005) 127 Cal.App.4th 750, 774.) Furthermore, “ ‘when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time, ’ ” regardless of whether the issue is raised in the trial court. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1439.) Given that neither party contends any formal search warrant was issued here, the statute of limitations ran until the information was filed on June 1, 2007. (People v. Terry, supra, at p. 764.)
Section 804, upon which the court relied on for this conclusion in People v. Terry, supra, 127 Cal.App.4th at page 764, was subsequently amended so that, effective January 1, 2009, a prosecution was commenced when, among other things, “the defendant is arraigned on a complaint that charges the defendant with a felony.” (§ 804; Stats 2008, ch. 110, § 1.)
We reject the People’s principal argument in response that the One Strike law allegation applied to 22 of the counts, rendering them timely, but conclude that 20 of the 24 counts were timely prosecuted based on one of the People’s alternative arguments, and agree with the parties that, given this conclusion, remand is appropriate to determine if the remaining counts were timely brought. We turn now to a discussion of the People’s arguments.
1. The One Strike Allegation
As the People point out, section 667.61, the One Strike law, is an alternative sentencing scheme that provides indeterminate sentences for felony sex crimes committed under particular circumstances. (People v. Anderson (2009) 47 Cal.4th 92, 99.) As written when the information was filed, section 667.61 provided, among other things, that any person convicted of committing a lewd and lascivious act in violation of section 288, subdivision (a), who is also convicted in the same case of committing such an act against more than one victim, “shall” be punished by imprisonment in the state prison for 15 years. (§ 667.61, subds. (b), (c), (e).) “[T]he statutory language of section 667.61, subdivision (b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims[.]” (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) “The law expressly divests trial courts of authority to avoid these severe [One Strike] sentences: it provides that courts are barred from exercising their traditional discretion to ‘strike’ any of the triggering circumstances specified in the One Strike law.” (People v. Hammer (2009) 30 Cal.4th 756, 761.)
Section 667.61 was amended in 2010 in minor ways and partially renumbered, which amendment is not relevant to our discussion. (Stats 2010, ch. 219, § 16.) Our references to section 667.61 and “former section 667.61” herein are to section 667.61 as it was in effect prior to the 2010 amendment.
Furthermore, as the People point out, there is no limitations period for a crime that is punishable by life imprisonment. (§ 799; People v. Frazer (1999) 21 Cal.4th 737, 743.) The People argue that a One Strike allegation allows them to commence the prosecution of a One Strike offense at any time pursuant to section 799, as found in People v. Perez (2010) 182 Cal.App.4th 231, 236-242. Defendant argues that, to the extent that Perez so held, it was wrongly decided, and cannot be reconciled with the holding by Division One of this District in People v. Turner (2005) 134 Cal.App.4th 1591.
We do not need to determine the parties’ debate regarding Perez because the People failed to prove more than a single One Strike allegation. Therefore, defendant cannot be sentenced to multiple life sentences for multiple One Strike allegations. Former section 667.61 required that the circumstance or circumstances used as the basis for imposing a One Strike sentence be “pled and proved.” (Former § 667.61, subd. (f); see also People v. Mancebo (2002) 27 Cal.4th 735, 743, 747-748 (Mancebo) [finding that a previous version of section 667.61 and due process considerations required that the circumstances be specifically pled and found].) If the People decide not to plead and prove allegations about these triggering circumstances, they cannot seek a One Strike sentence pursuant to the doctrines of waiver and estoppel. (Id. at pp. 744-745, 749 [holding that the trial court could not impose a One Strike sentence in the absence of the requisite pleadings, regardless of whether the facts underlying such pleadings were pled and proved].)
The court sentenced defendant to an indeterminate life sentence for his count 1 conviction based on the jury’s finding that the One Strike allegation was true. However, the People acknowledge in this appeal that the One Strike allegation cannot apply to either count 1 or 2 because they allege acts that occurred before section 667.61’s November 30, 1994 effective date. The parties agree that ex post facto principles preclude such an application, which is correct as indicated in People v. Acosta (2009) 176 Cal.App.4th 472, 476-477, People v. Hiscox (2006) 136 Cal.App.4th 253, 257, and People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.
Although the prosecution sought only a single indeterminate life sentence pursuant to the One Strike law, the People now argue on appeal that the One Strike law allegation applies to counts 3 through 24 as well, making these counts timely because One Strike allegations can be brought at any time pursuant to People v. Perez, supra, 182 Cal.App.4th at pages 236-242. The People urge us to remand the matter for resentencing so that an indeterminate life term can be imposed for each of these counts.
Defendant disagrees for multiple reasons. First, he argues that the People’s position is meritless because they did not charge this case so as to seek mandatory “One Strike” life terms for all the counts. In his supplemental briefing, he also argues that the People did not “prove” the application of the One Strike law to more than one count. Therefore, defendant contends, the People did not meet the “plead and prove” elements recognized in Mancebo, supra, 27 Cal.4th at pages 743, 747-748. We conclude that, regardless of the People’s charging of the case, which is at least ambiguous, the People did not prove that more than a single One Strike offense occurred, as indicated by the jury’s finding regarding the One Strike allegation submitted to it. Therefore, counts 3 through 24 are not rendered timely by the One Strike allegation. Also, the People have forfeited the appellate claim that the One Strike law allegation applies to all of the counts by not seeking more than a verdict for a single One Strike allegation and a single life sentence.
As we have discussed, the People alleged 24 different counts of lewd and lascivious conduct, 12 involving Jane 1 and 12 involving Jane 2. They did not plead One Strike allegations as a part of each of the information’s 24 counts. Instead, they pled a single allegation in the last paragraph of the information immediately following the recitation of count 24, without a separate heading or any spacing between it and count 24, and without stating that the allegation applied to a particular count. The allegation stated:
“It is further alleged that during the commission of the above offense(s), [defendant] committed an offense specified in Penal Code section 667.61[, subdivision] (c), against more than one victim, [Jane 1]... and [Jane 2]... in violation of Penal code section 667.61[, subdivision] (e)(5).”
The People contend that the phrase “during the commission of the above offense(s)” indicates the allegation sought a One Strike sentence for each and every count. Defendant contends the allegation applied to a single count only. We are not convinced by the People’s contention because of the ambiguity created by the use of the phrase, “above offense(s), ” with its inexplicable parentheses. This contrasts sharply with the facts in the one case the People cite to support its argument. In People v. Perez, supra, 182 Cal.App.4th 231, the information charged defendant with four counts of committing a lewd or lascivious act on a child by force or fear in violation of section 288, subdivision (b)(1), each against a different victim. “The information alleged with regard to each count that defendant fell under the alternative, and more severe, punishment scheme set forth in the ‘One Strike’ law[.]” (Perez, at p. 234, italics added.) Certainly, this is the better practice to avoid ambiguity such as that presented in this case.
However, we need not determine this pleading issue because, regardless of our conclusion about what was pled, the only thing “proved” was that a single offense occurred that was subject to the One Strike law. The jury’s verdict finding the One Strike allegation to be true did not refer to multiple offenses, or include the phrase, “during the commission of the above offense(s).” Instead, the jury found true only that “defendant... committed an offense specified in Penal Code [s]ection 667.61 [subdivision (c)] against more than one victim, [Jane 1] and [Jane 2], in violation of Penal Code section 667.61[, subdivision] (e)(5).” (Italics added.) Thus, the People did not plead and prove a One Strike allegation was true for more than one offense. (Former §667.61, subd. (f) (italics added); see also Mancebo, supra, 27 Cal.4th at pp. 743, 747-748). The People contend that the verdict form did not “restrict the application of the allegation to a single count, ” but this ignores that the form used the singular tense. The People further argue that “the gravamen of the One Strike allegation, i.e., the commission of specified offenses against multiple victims, cannot be factually or logically restricted to a single count.” We do not further consider this argument however, because it has no relevance regarding what the jury determined the People had actually proved, which was a single One Strike allegation. The People do not explain how this single proven allegation applies to multiple counts. We conclude that it does not.
Also, the People’s recommendations in their sentencing memorandum were consistent with the limited proof they obtained. The People relied on the jury’s One Strike verdict to assert that the court “must begin by imposing a sentence of ‘15 years-to-life’ on count one (or whatever count the court selects) because the jury found that substantial sexual conduct was perpetrated against two victims. (§ 667.61, subd. (g).) This life sentence is mandatory.” The People asserted that the remainder of the counts was subject to determinate sentences.
Thus, the record indicates that the People proved only a single One Strike offense. Therefore, they have no basis for now seeking One Strike sentences for more than one offense. (Mancebo, supra, 27 Cal.4th at pp. 743, 747-748.)
Furthermore, as defendant argues in his supplemental briefing, the People, by failing to seek a verdict beyond a single One Strike offense or more than a single indeterminate life sentence, have forfeited their right to claim on appeal for the first time that counts 3 through 24 all were subject to the One Strike law. (See People v. Botello (2010) 183 Cal.App.4th 1014, 1028-1029 [prosecution’s failure to ensure jury findings or obtain a sentence pursuant to section 12022.53, subdivision (e)(1), regarding firearm enhancements, along with its failure to plead the provision (an issue we have not decided herein), resulted in its forfeiture to rely on the provision for the first time on appeal].)
Also, as we have discussed and the parties have acknowledged, the court should not have imposed a sentence pursuant to the One Strike law for count 1 because of ex post facto principles. (People v. Acosta, supra, 176 Cal.App.4th at pp. 476-477; People v. Alvarez, supra, 100 Cal.App.4th at p. 1178.) However, the parties do not contest that the court was authorized to impose a single life sentence pursuant to the One Strike law for one of the counts that was timely brought. The parties do not argue that, and we are unaware of any reason why, the court cannot upon remand resentence defendant consistent with this opinion and any further determinations regarding the timeliness of counts 1 through 4, and that this resentencing can include a single life sentence pursuant to the One Strike law for a count that has been timely prosecuted and is subject to the One Strike law.
In short, we conclude that the People’s arguments that the One Strike allegation applies to counts 3 through 24, making them timely, and that remand for the imposition of mandatory indeterminate life sentences is necessary, lack merit, and that the People forfeited their appellate claim by not seeking a verdict for multiple allegations and multiple indeterminate life sentences below. We also agree with the parties that the application of the One Strike law to count 1 violates the ex post facto clause of the federal Constitution, and see no reason why resentencing under the One Strike law should not occur under the circumstances.
2. Section 801.1, subdivision (a)
The People argue in the alternative that counts 5 though 24 were timely prosecuted pursuant to section 801.1, subdivision (a), which went into effect on January 1, 2006. (Stats 2005, ch. 479, § 2.) Defendant argues that section 801.1, subdivision (a) does not apply at all and, if it did, all but two of the counts against him (counts 23 and 24 regarding Jane 2) were untimely because a previously applicable six-year limitations period to prosecute the counts expired before section 801.1, subdivision (a) went into effect, rendering any revival by section 801.1, subdivision (a) a violation of the federal Constitution’s ex post facto clause. (Stogner v. California, supra, 539 U.S. at pp. 632-633.) The People, noting that the extension of an unexpired limitations period is not constitutionally prohibited (id. a p. 618), argue that the time to prosecute counts 5 through 24 had not expired pursuant to a previously applicable 10-year limitations period; therefore, section 801.1, subdivision (a) applied to them and they were timely prosecuted. The People are correct.
Section 801.1, subdivision (a) provides that, “[n]otwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section... 288... that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim’s 28th birthday.”
Defendant’s only argument for why section 801.1, subdivision (a) does not apply at all appears to be that it was not specifically pled by the prosecution. We are not aware that the prosecution was required to do anything more than file pleadings, which show on their face that the prosecution was not time-barred. (See People v. Terry, supra, 127 Cal.App.4th at p. 774.) The prosecution met this burden regarding section 801.1, subdivision (a) by alleging the birthdates for Jane 1 and Jane 2 and the dates of the offenses. Therefore, defendant’s argument is without merit.
As for which counts were timely filed pursuant to section 801.1, subdivision (a), we first point out the parties do not dispute that, regardless of whether a six-year or 10-year limitations period applied to the counts when section 801.1, subdivision (a) became effective on January 1, 2006, counts 23 and 24 were timely brought because the offenses alleged therein occurred within six years of section 801.1, subdivision (a)’s effective date, i.e., after June 1, 2000. The parties also do not contest that, conversely, regardless of which limitations period previously applied, section 801.1, subdivision (a) did not make counts 1 through 4 timely, because the offenses alleged therein occurred more than 10 years before section 801.1, subdivision (a)’s effective date, i.e., no later than May 30, 1996. The parties’ dispute, therefore, is regarding counts 5 through 22, which allege section 288, subdivision (a) offenses that occurred between June 1, 1996 and May 30, 2000.
Defendant argues that the six-year statute of limitations contained in section 800 applied to counts 5 through 22 before section 801.1, subdivision (a) went into effect on January 1, 2006 and, therefore, the time to prosecute the offenses alleged in these counts expired before that date. Section 800 states that, subject to an irrelevant exception, “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.” This provision has applied to section 288, subdivision (a) offenses in the past. (See, e.g., In re White (2008) 163 Cal.App.4th 1576, 1579-1580.)
According to the People, however, “[defendant] ignores the applicable statute of limitations on the date Penal Code section 801, subdivision (a), became effective. On January 1, 2006, Penal Code section 801, subdivision (b), already authorized a 10-year limitations period for violation of Penal Code section 288. Upon its effective date, Penal Code section 801.1, subdivision (a), could therefore lawfully extend the applicable limitations period for a violation of Penal Code section 288 committed on or after January 1, 1996, because the limitations period for those offenses had never lapsed.” (Italics added.) The People also contend elsewhere in their briefing that the 10-year limitations period contained in section 801, subdivision (b) went into effect on January 1, 2005, and had been continuously in force in different forms since January 1, 2001.
Defendant responds that the People’s argument is fatally flawed because “according to the plain language of [section 801.1, ] subdivision (b), it is only applicable if subdivision (a) is not applicable. Hence, relying on subdivision (b) to extend the period in subdivision (a) would be improper.”
The People are correct, although their argument is inartfully presented. The 10-year limitations period contained in what they refer to as section 801.1, subdivision (b), did become effective on January 1, 2005—but as former section 801.1. (2004 Stats., ch. 368, § 1.) Specifically, this former section 801.1 (which contained no subdivisions) stated: “Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of [s]ection 290 shall be commenced within 10 years after commission of the offense.” (Former § 801.1, Stats 2004 ch. 368, § 1.) A felony offense in violation of Section 288 (a violation of Section 288, subdivision (a) was the offense charged in all of 24 counts of the information) was one of the offenses described in subparagraph (A) of paragraph (2) of subdivision (a) of former section 290 throughout 2005, including as it was amended during that year. (Former § 290, subd. (a)(2)(A), Stats. 2004, ch. 429, § 1, ch. 731, § 1, ch. 761, § 1.3, Stats. 2005, ch. 704, § 1, ch. 722, § 3.5.) The more expansive limitations period in the later-enacted section 801.1, subdivision (a) was not a part of this original section 801.1. Therefore, this original 10-year limitations period applied in all relevant cases, and not merely as a lesser alternative in the event a more expansive period did not apply.
We take judicial notice on our own motion of the legislative history referred to in this opinion pursuant to Evidence Code sections 459, subdivision (a) and section 452, after giving notice to the parties pursuant to Evidence Code section 459, subdivisions (c) and (d).
Section 803.6, which also became effective on January 1, 2005 (Stats. 2004, ch. 368, § 3), further clarifies that former section 801.1, not section 800, applied immediately before section 801.1, subdivision (a) became effective in 2006. Section 803.6, subdivision (a) states, “If more than one time period described in this chapter applies, the time for commencing an action shall be governed by that period that expires the latest in time.” (§ 803.6, subd. (a); In re White, supra, 163 Cal.App.4th at p. 1581.)
However, the People can only pursue counts that were always timely until section 801.1’s January 1, 2005 effective date. Because the offenses charged in the disputed counts describe acts that occurred as far back as 1996, and could have expired before 2005, we must also determine whether a 10-year or six-year limitations period applied before section 801.1’s January 1, 2005 effective date. We conclude that the prosecution of section 288 felony offenses was continuously subject to a 10-year limitations period since 2001. As explained in In re White, supra, 163 Cal.App.4th at pages 1580-1583, former section 801.1 was in substance the same as a statutory provision that first became effective on January 1, 2001 as former section 803, subdivision (h)(1), and remained continuously in effect, although renumbered, until January 1, 2005. (In re White, at pp. 1580-1583.) These provisions also applied a 10-year limitations period to felony offenses described in former section 290, subdivision (a)(2)(A) (In re White, at pp. 1580-1583.), and section 288 was continuously described in that subdivision as section 290 was amended between 2001 and 2005. (Former section 290, Stats. 2000, ch. 649, § 2.5; Stats. 2002, ch. 17, § 1, ch. 664, § 171; Stats, 2003, Ch. 538, § 1, ch. 540, § 1, ch. 634, § 1.3; Stats. 2004, ch. 429, § 1, ch. 731, § 1, ch. 761, § 1.3, Stats 2005, ch. 704, § 1, ch. 722, § 3.5.)
The relevant provision is now contained in subdivision (c) of section 290, and continues to describe a section 288 offense. (§ 290, subd. (c).)
To summarize, the prosecution of counts 5 through 24 was timely commenced in June 2007 pursuant to section 801.1, subdivision (a) because the People’s right to pursue them did not expire before section 801.1, subdivision (a) went into effect on January 1, 2006. Up to January 1, 2001, the People could have prosecuted offenses that occurred as far back as January 1, 1995, pursuant to section 800’s six-year limitations period. As of January 1, 2001, this limitations period was extended to 10 years pursuant to statutory provisions that ultimately were incorporated into former section 801.1 on January 1, 2005. Former section 801.1 in turn remained in effect until the amended section 801.1, subdivision (a) went into effect on January 1, 2006. Counts 5 through 24, therefore, were not time-barred.
3. Remand
Although we conclude counts 1 through 4 were not timely prosecuted as indicated on the face of the information, they might still be found to have been timely prosecuted pursuant to section 803, subdivision (f), as it was in effect when the People filed their information in 2007. The parties agree that, given the state of the record, it is appropriate to remand for further trial court proceedings to determine the issue, which may include consideration of evidence not presented at trial. We agree as well. Defendant argues that this should be a jury determination, which has not been agreed to by the People. We conclude that the court should make the determination.
Section 803, subdivision (f), as in effect in 2007, stated in relevant part:
“(f)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may 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 the victim of a crime described in Section... 288....
“(2) This subdivision applies only if all of the following occur:
“(A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.
“(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.
“(C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.
“(3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.” (Former § 803, subd. (f); Stats. 2005, ch. 479, § 3.)
Counts 1 through 4, although time-barred as alleged, each included an allegation of substantial sexual conduct, as described in subdivision (b) of section 1203.66, which the jury found to be true. There was no determination, however, as to whether there was “independent evidence that corroborates” the allegations of either Jane 1 or Jane 2, as required by section 803, subdivision (f)(2)(C), since the statute of limitations issue was not raised at all below. Therefore, we must determine whether to remand these counts for further proceedings to determine their timeliness pursuant to section 803, subdivision (f).
People v. Williams (1999) 21 Cal.4th 335 (Williams) guides our determination of this issue. There, defendant was convicted of perjury. On appeal, he raised for the first time the argument that his prosecution was time-barred as indicated on the face of the information. The appellate court remanded the matter for a hearing on whether the action was timely and ordered the trial court, if it found the statute of limitations had run, to vacate the judgment; if the statute of limitations had not yet run, the judgment of conviction was to stand. (Id. at p. 338.) The Supreme Court affirmed the appellate court’s decision to remand the matter to the trial court to determine whether the statute of limitations barred the conviction, stating: “Here, the district attorney could easily have alleged in the information either that an arrest warrant issued before the time period had expired, or that the action was filed timely after the discovery of the crime, or both (assuming either allegation is factually supported). The silent record is partly the defendant’s fault for not raising the issue at trial. It was, however, the prosecution’s fault in the first instance for filing an information that, on its face, was untimely. In that situation, the fairest solution is to remand the matter to determine whether the action is, in fact, timely.” (Id. at p. 345.)
This quote also indicates that the trial court may consider evidence upon remand that was not presented at trial to determine whether or not counts 1 through 4 were time-barred, a view of Williams that the People and defendant share.
Williams applies to the circumstances of the present case. The prosecution filed an information that, on its face, does not indicate counts 1 through 4 were timely brought. Nonetheless, any of these counts could have been timely prosecuted pursuant to section 803, subdivision (f), but there were not sufficient factual determinations made below to decide the issue, since defendant never raised the statute of limitations issue. Therefore, pursuant to Williams, we remand counts 1 through 4 for a court hearing to determine their timeliness pursuant to section 803, subdivision (f).
Defendant argues that these statute of limitations issues should be decided by a jury, not the court, because he never waived his right to a jury trial. We disagree. Defendant asserts in his opening brief that “at least with respect to the counts that did allege substantial sexual conduct and thus potentially may be saved under the extension provisions, ‘the fairest solution is to remand the matter to determine whether the action is, in fact, timely.’ ([Williams], supra, 21 Cal.4th at [p.] 345.)” After the People replied that defendant has conceded to a remand in which the trial court made determinations, defendant argues in his reply brief that he is entitled to review of the statute of limitations issues by a jury, rather than by the court. Although he relies entirely on Williams in his opening brief to assert remand is appropriate, he argues in his reply brief that we should distinguish his case from Williams because Williams involved an action in which a jury trial had been waived, a matter commented on by the court in discussing the appellate court’s decision to remand for further bench proceedings.
Defendant’s argument is unpersuasive. As we have discussed, our Supreme Court determined in Williams, supra, 21 Cal.4th 335, that a defendant does not forfeit his or her right to raise a statute of limitations issue on appeal by not raising the issue below, provided that the charging document indicates on its face that the action is time-barred. (Id. at p. 341.) The court also held that “[i]f the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing.” (Ibid.) Although defendant correctly points out that Williams affirmed an appellate court’s remand for a court hearing in an action in which defendant waived a jury trial (id. at pp. 338, 347), nothing in the court’s holding is cabined by the particular procedural history of that case. Accordingly, as defendant acknowledges, the Fourth District recently concluded in an appeal after a jury trial that nothing in the holding of Williams “suggests that statute of limitations questions must be submitted to a jury if the defendant does not raise the statute of limitations issue until after he has been convicted of the offense, or that remand for a court hearing should occur only when the defendant has waived his right to a jury trial.” (People v. Lynch (2010) 182 Cal.App.4th 1262, 1269, 1277.) Rather, Williams appears to provide “guidance as to what appellate and trial courts should do in any situation in which the charging document is untimely on its face, but the defendant fails to raise the issue until after trial.” (Ibid., fn. omitted.) The Lynch court reversed judgment as to the counts contested as time-barred, remanded the matter for the court’s determination as to whether these counts were time-barred, and ordered the trial court to reinstate the judgment of conviction as to each timely count. (Id. at p. 1278.) We agree with the conclusion of the Lynch court and take this same approach.
4. Resentencing
We also asked the parties to provide supplemental briefing on what should occur below regarding resentencing on all or part of the remaining counts, should the trial court determine upon remand that some or all of counts 1 through 4 are time-barred, in light of the trial court’s initial sentencing decisions. The parties do not contest that resentencing consistent with this opinion would be appropriate. They also agree that generally, on remand, defendant cannot receive a greater sentence following a successful appeal. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311-1312.) We agree as well.
The People argue that there is “[a]n exception to this rule... for unauthorized sentences in which the trial court imposed an unlawfully short sentence” pursuant to People v. Serrato (1973) 9 Cal.3d 753, 764-765 that supports imposition of multiple life sentences for all remaining counts pursuant to the One Strike law. We need not address this argument further in light of our conclusions regarding the People’s prosecution of the One Strike law below.
II. Juror Misconduct
Defendant also argues that his conviction must be reversed because the trial court erred in its rulings regarding his claims of juror misconduct. We find no merit in these arguments.
A. The Proceedings Below
After the presentation of the evidence and before closing arguments, the court substituted in alternate Juror No. 2 for another juror (having substituted in alternate Juror No. 1 earlier for another juror). The next day, during deliberations, the foreperson of the jury sent a note to the court, which stated, “We need for the judge to determine whether jurer [sic] alt. #2 undestands [sic] what’s going on with charges, responsibly.” The court responded in writing that it needed additional time to discuss the matter with counsel and suggested that the jury recess for the evening and resume deliberations the next morning.
The next morning, the court discussed the note with counsel and proposed the following response:
“Once a juror is selected, the nature of a juror’s understanding of the nature of the charges is not within the purview of the court, so long as he or she is willing and able to deliberate. Jurors have different backgrounds, education levels, emotional capacities and ways of expressing themselves. [¶] Be as patient as you can possibly be with each other in explaining your views to each other, and in allowing others to explain their views, during your deliberations. Treat one another courteously and with dignity, recognizing your different backgrounds, and the fact that you have never worked with each other before. [¶] It is the duty of each of you to talk with one another and to deliberate in the jury room. The role of each of you is to be an impartial judge of the facts, not to act as an advocate for one side or the other. Please try to work together to decide the issues before you. [¶] Please reread Jury Instructions 1110 and 3550.”
Counsel stipulated to forego a hearing with alternate Juror No. 2, and agreed to the wording of the court’s response. However, defense counsel asked that the court add that “each juror is entitled to his or her own individual opinion.” The prosecutor objected on the ground that CALCRIM No. 3550 sufficiently addressed the matter. The court denied the request, and sent its written response to the jury.
At 9:17 a.m., the court received a handwritten note from Juror No. 4. The note stated: “I think one juror-Alternate # 2 has English as a second language. Therefore receptive language is better than expressive language. I am not sure it has impact on his cognition [sic] of the facts. I believe that rereading parts of the transcript will/may help break him today.” (Cross-out in the original.)
The prosecutor suggested that the court send a response stating that if the jury needed to have the transcript reread, they needed to specify which parts. Defense counsel objected that the note received by the court did not indicate that the jury collectively or individually wanted the transcript reread, but insinuated that the alternate juror needed it, although there was no indication that he wanted or needed anything reread, nor that he had any problems with the language or with understanding anything.
Defense counsel further argued that the crossing out of the word “break” clearly showed the jury’s intention to coerce alternate Juror No. 2 “into coming to another conclusion for that which may have been expressed by the majority, ” and moved for a mistrial. The prosecutor responded that it was “completely speculative” because the word “break” had been removed from the note, and nothing in the note indicated that the jury was pressuring or coercing the individual juror.
The court found that the note was not clear, that there were many interpretations, and would not speculate. It considered sending a note telling the jurors that they had a right to request a read back of testimony, but needed to specify the parts requested, and denied defendant’s request for a mistrial.
Defense counsel then made a series of motions. First, he moved for a hearing to question Juror No. 4, whom he said he saw that morning sitting with alternate Juror No. 2 on the bench outside the jury room having an animated discussion about something. Defense counsel asserted they might have been discussing alternate Juror No. 2’s understanding, and moved for the court to question Juror No. 4 about whether they discussed any part of the case. The prosecutor argued this was speculation. The court found the defense counsel’s observations insufficient to require a hearing, and denied defendant’s motion.
Defense counsel then moved that the court conduct a hearing to ask alternate Juror No. 2 whether Juror No. 4 had been talking to him about the case outside the jury room and whether he felt intimidated, or whether Juror No. 4 or others were trying to “break” him. Once more, the prosecutor argued defense counsel’s request was based on speculation. The court denied this motion as well. Defense counsel then moved again for a mistrial, which the court also denied.
Over defendant’s objection, the court sent a note to the jury at 9:35 a.m. The note stated that “before testimony can be read back, the testimony being requested must be specified.”
At 11:05 a.m., the jury informed the court that it had reached a verdict. The jury convicted defendant of all charges.
Before sentencing, defendant retained new counsel, who moved for a new trial based in part on the court’s refusal to grant defendant’s motions for a mistrial and a hearing on purported juror misconduct. Defense counsel also asked the court to conduct an evidentiary hearing to examine jurors regarding the purported misconduct issue. The court denied these requests. It stated, “There is nothing inappropriate about jurors having a conversation out in the hallway. There just simply was no evidence of misconduct in this case except to the extent that we contort and read into language that which I don’t think is a fair inference.” The court also stated that even if there was misconduct, it did not rise to the level of reversible error.
B. Analysis
Defendant argues that the “[n]otes from [the jury foreperson and Juror No. 4] coupled with defendant counsel’s observations demonstrated a strong probability that juror misconduct was occurring and triggered a duty of the court to inquire to determine whether there was juror misconduct, and the court’s failure to do so, or to grant [defendant’s] motions for a mistrial and later for a new trial, requires reversal.” We disagree.
A juror is subject to discharge if he or she acquiesces to the majority simply because the majority has reached a verdict, as this undermines a defendant’s right to a unanimous verdict. (People v. Wilson (2008) 43 Cal.4th 1, 27.) A juror who violates a court’s order not to discuss the case with other jurors outside of jury deliberations is also subject to discharge. (People v. Halsey (1993) 12 Cal.App.4th 885, 892.)
A trial court must conduct a sufficient inquiry to determine the existence of juror misconduct “whenever the court is put on notice that good cause to discharge a juror may exist.” (People v. Burgener (1986) 41 Cal.3d 505, 519.) “When a court is informed of allegations which, if proven true, would constitute good cause for a juror’s removal, a hearing is required.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051; see also People v. Tuggles (2009) 179 Cal.App.4th 339, 383-384 [defendant has a due process right to a hearing on juror misconduct].) “Thus, where the trial court is presented with a credible prima facie showing that serious misconduct has occurred, the trial court may order jurors to appear at a hearing and to answer questions about whether misconduct occurred.” (Tuggles, at pp. 385-386.)
However, “not every incident involving a juror’s conduct requires or warrants further investigation.” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) In particular, “caution must be exercised in determining whether a juror has refused to deliberate. California courts have recognized the need to protect the sanctity of jury deliberations.” (Id. at p. 475.) “Jurors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.” (Id. at p. 476.) “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” (People v. Ray (1996) 13 Cal.4th 313, 343.)
The trial court acted within its discretion when it found no need to further investigate with regard to alternate Juror No. 2. Defense counsel argued juror misconduct based on the cross out of the word “break” in Juror No. 4’s note, but, as the court indicated, any theories about the use of the word were speculation. Similarly, defense counsel’s conclusions from the observation that Juror No. 4 and Juror No. 2 were engaged in an animated exchange outside the jury room were speculative. The court acted well within its discretion to conclude that these episodes were not sufficient bases for allegations of misconduct, and did not err by denying counsel’s motions for further hearings and inquiries.
For these same reasons, the court did not err in denying defendant’s motions for a mistrial and a new trial. The trial court must grant a motion for mistrial when a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.) The trial court possesses broad discretion, however, in ruling upon such a motion, which we review for an abuse of discretion. (Ibid.)
Similarly, in ruling on a request for a new trial based on jury misconduct, the trial court must determine whether the affidavits supporting the motion are admissible; if so, whether the facts establish misconduct; and, if they do, whether the misconduct was prejudicial. (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) “A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion.” (Id. at p. 704.)
The court did not abuse its discretion in the present case when it denied defendant’s motions for a mistrial and a new trial because it could reasonably conclude that there was no evidence of juror misconduct before it, given the speculation presented to it. Defendant’s argument is without merit.
DISPOSITION
The judgment of conviction is affirmed regarding counts 5 through 24. The judgment is reversed regarding counts 1 through 4 and the matter remanded for a determination as to whether the prosecution of each of these counts was timely pursuant to section 803, subdivision (f), as it was in effect when the People filed their information in June 2007. Following such a determination, the court shall reinstate the judgment of conviction as to each count that it determines has been timely prosecuted.
The matter is also remanded for resentencing consistent with this opinion and the court’s determinations on remand regarding what counts may be time-barred, and including regarding the One Strike law allegation found by the jury to be true, which the court improperly applied to count 1 in violation of the ex post facto clause of the federal Constitution. The court shall not impose an aggregate sentence greater than that originally imposed. After resentencing, the trial court shall prepare a new abstract of judgment and send a certified copy of it to the Department of Corrections.
We concur: Kline, P.J.Richman, J.