Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD216414 Michael D. Wellington, Judge.
McCONNELL, P. J.
A jury convicted Francisco Javier Esquivel of six counts of committing a lewd act on a child. (Pen. Code, § 288, subd. (a).) Two of the crimes occurred in 2007 (counts 1 & 2) and four of the crimes occurred between 1989 and 1991 (counts 3-6). As to counts 3 through 6, the People relied on the statute of limitations specified in section 803, subdivision (f), which under certain circumstances extends the limitations period for sex crimes against minors. Esquivel contends on appeal that since section 803, subdivision (f) was enacted after his crimes occurred, its application violates the United States Constitution's prohibition against state ex post facto laws. We disagree, because application of the statute here did not revive an expired limitations period. Rather, it permissibly extended the limitations period when prosecution was still viable.
Further undesignated statutory references are also to the Penal Code.
As to counts 1 and 2, Esquivel contends the court abused its discretion by excluding testimony of two witnesses that they never saw any misconduct on his part, and the exclusion deprived him of a fair trial. We find no abuse of discretion. Even if the evidence was relevant, the court could reasonably exclude it under Evidence Code section 352. We affirm the judgment.
FACTS
One day in 2007, S.P., the then six-year-old great-granddaughter of Esquivel's wife, visited their home. The next day, S.P. revealed to her mother that during the visit Esquivel had rubbed her vaginal area over her clothing two different times. S.P.'s mother contacted the police, and S.P. told the responding officer and a forensic interviewer the same story. At trial more than two years later, S.P. testified that someone touched her "[i]n the private" during the visit, but she did not recall how many times. She identified Esquivel as the person who touched her.
During the investigation, sisters C.P. and I.P., the granddaughters of Esquivel's wife, accused him of molesting them between 1989 and 1991 when they were young children. I.P. testified that about four times when she was a passenger in Esquivel's car "he would feel on my breasts or touch my vagina." She described the contact as always "skin-to-skin." He also touched her vagina once in a back room of his home.
C.P. testified that when she sat next to Esquivel on his couch he would place a blanket over their laps "so he could touch me underneath the blanket to make it as discreet as possible." She said he touched her on "my breast area" and vagina "[o]ver the underwear." She estimated the touching occurred more than five or six times. Also, she testified that when she rode with him in his car he would reach over and touch her breast and vaginal areas over her clothing. Further, in his car and at his home, he made C.P. touch his bare penis.
DISCUSSION
I
Ex Post Facto Laws
Esquivel contends that as to counts 3 through 6, the application of section 803, subdivision (f) violates the federal Constitution's prohibition of state ex post facto laws. Esquivel concedes, however, that section 803, subdivision (f) was effective January 1, 1994, before the original statute of limitations ran on counts 3 through 6. (People v. Superior Court (Maldonado)(2007) 157 Cal.App.4th 694, 701, fn. 6; 1993 Stats., ch. 390, § 1.) Given this fact, we conclude his contention lacks merit.
Section 803, subdivision (f)(1) provides that notwithstanding any other limitations period, "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" under certain sections, including section 288. The statute applies when the original limitations period for the crime has expired, the crime involves substantial sexual conduct as defined in another statute, and independent admissible evidence corroborates the victim's allegation. (§ 803, subd. (f)(2)(A)-(C).)
In Stogner v. California (2003) 539 U.S. 607 (Stogner), the United States Supreme Court held the application of section 803, subdivision (f) (then subdivision (g)) to retroactively revive a time-barred prosecution violated the ex post facto clause under the federal Constitution. Specifically, the statute as applied there violated the second category of ex post facto laws by belatedly inflicting punishment where the defendant was, by law, not liable to any punishment because the prospect of prosecution had been extinguished by California law when the original limitations period expired some 22 years earlier. (Stogner, supra, 539 U.S. at pp. 611-612, 632-633.) The court explained that such a law was " 'manifestly unjust and oppressive' " in its retroactive effects, as it constituted a failure of the government to play by its own rules, and deprived the defendant of " 'fair warning' " that might have led him to preserve exculpatory evidence. (Stogner, supra, 539 U.S. at p. 611.)
To avoid confusion, we refer to the current subdivision (f) of section 803.
Historically, there have been four categories of prohibited ex post facto laws: Those laws that (1) criminalize acts perpetrated before their enactment, (2) aggravate a crime or make it greater after its commission, (3) increase the punishment for a crime after its commission, and (4) alter the legal rules of evidence after its commission to require a lesser or different showing for conviction. (Stogner, supra, 539 U.S. at p. 612, citing Calder v. Bull (1798) 3 U.S. 386, 390-391.)
Here, in contrast, it is undisputed that the limitations period for Esquivel's crimes committed between 1989 and 1991 had not run when section 803, subdivision (f) became effective on January 1, 1994. (§ 800 [six-year statute of limitations for offenses punishable by eight or more years in prison, such as § 288].) The Stogner court specifically recognized this distinction, stating its ruling "does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred." (Stogner, supra, 539 U.S. at p. 632, italics added.) Unlike the defendant in Stogner, Esquivel was subject to punishment for his crimes when the statute became effective, and thus in his case the statute did not inflict any punishment he could not have otherwise suffered. Whether under the original limitations period or the extension statute, Esquivel was always on notice he could be prosecuted. Several courts have held after Stogner that section 803, subdivision (f) is a valid extension statute when applied to crimes not time-barred on January 1, 1994, when the statute became effective. (People v. Terry (2005) 127 Cal.App.4th 750, 775; People v. Vasquez (2004) 118 Cal.App.4th 501, 506; People v. Superior Court (German)(2004) 116 Cal.App.4th 1192, 1197; People v. Renderos (2003) 114 Cal.App.4th 961, 965-966; People v. Robertson (2003) 113 Cal.App.4th 389, 393-394.) "The state makes no contract with criminals, at the time of the passage of an act of limitation, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether, as that power may see fit to declare." (People v. Terry, supra, at p. 776, italics omitted.)
In an effort to surmount this hurdle, Esquivel asserts the application of section 803, subdivision (f) to counts 3 through 6 violates ex post facto laws under the fourth category of such laws, because it imposes a different evidentiary requirement than was in place when he committed the crimes. Under Stogner, however, the extension of an unexpired limitations period would not fall within the fourth category either. Stogner explains:
"Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. [Citation.] And that judgment typically rests, in large part, upon evidentiary concerns - for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. [Citations.] Indeed, this Court once described statutes of limitations as creating 'a presumption which renders proof unnecessary.' [Citation.]
"Consequently, to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient. And, in that sense, the new law would 'violate' previous evidence-related legal rules by authorizing the courts to ' "receiv[e] evidence... which the courts of justice would not [previously have] admit[ted]" ' as sufficient proof of a crime [citations]." (Stogner, supra, 539 U.S. at pp. 615-616.)
A statute that extends, rather than resurrects, a pending limitations period does not "eliminate a currently existing conclusive presumption forbidding prosecution." (Stogner, supra, 539 U.S. at p. 616.) The court in Stogner noted that historically, legislators have frequently chosen to extend unexpired statutes of limitations rather than to attempt to revive time-barred prosecutions. The court endorsed this practice of "extending unexpired limitations periods" as "a tailored approach to extending limitations periods that has also been taken in modern statutes." (Id. at p. 617.)
Further, rather than permitting conviction on a lesser quantum of evidence (Stogner, supra, 539 U.S. at p. 616), section 803, subdivision (f) actually imposes a greater evidentiary burden on the People than exists under section 288. The elements for section 288, subdivision (a) are that the defendant "willfully touched any part of a child's body either on the bare skin or through the clothing"; or the defendant "willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing"; and the defendant "committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [himself] or the child"; and the child was under 14 years of age when the act occurred. (CALCRIM No. 1110.) Section 803, subdivision (f) imposes the additional elements of "substantial sexual conduct, "as described in subdivision (b) of Section 1203.066 (§ 803, subd. (f)(2)(B)), and independent corroborating evidence of the victim's claim. (Id. at subd. (f)(2)(C).) As is relevant here, "substantial sexual conduct" means masturbation of the victim. (§ 1203.066, subd. (b).)
Esquivel's reliance on Carmell v. Texas (2000) 529 U.S. 513 (Carmell) is misplaced. In Carmell, the high court held that a statute enacted after the commission of sex crimes that deleted the requirement of corroborating evidence, and allowed conviction on the testimony of the victim alone, violated the fourth category of ex post facto laws. The court explained, "A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof [citation]. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption." (Id. at p. 532.) In People v. Zandrino (2002) 100 Cal.App.4th 74, 83-84, the court distinguished the facts of Carmell and rejected the argument that section 803, subdivision (f) violates the fourth category of ex post facto laws.
Without the citation to any legal authority, Esquivel asserts the fourth category of ex post facto laws is violated by a law that imposes any type of different evidentiary requirements, even when the law decreases the likelihood of conviction by requiring greater evidence. The assertion lacks merit, as the danger of unfairness arises when a defendant is subject to conviction on evidence that would previously have been insufficient. There is nothing unjust or unfair about increasing the quantum of evidence required for a conviction, and Esquivel makes no cogent argument to the contrary. The court properly denied Esquivel's motion to dismiss the amended information as to counts 3 through 6 as time-barred.
Given our holding, we are not required to consider Esquivel's argument the erroneous application of section 803, subdivision (f) tainted the jury verdict as to counts 1 and 2.
II
Exclusion of Evidence
Additionally, Esquivel contends the court improperly excluded the testimony of two witnesses. The offer of proof was that Gloria Virgen would testify she "lived there [apparently in Esquivel's home] for a short period of time and saw nothing inappropriate." Wendy Cabrera would testify she was a next-door neighbor of Esquivel when she was between the ages of 12 and 16, she visited his home nearly daily, and "she never saw anything inappropriate either."
Only relevant evidence is admissible. (Evid. Code, § 350.) The court may exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Courts have wide discretion in determining whether evidence is relevant, and if so, whether it should be excluded under Evidence Code section 352. (People v. Mobley (1999) 72 Cal.App.4th 761, 792-793, overruled on other grounds in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.)
We find no abuse of discretion. The relevance of the proffered testimony is limited, and in any event, it would have been cumulative. Esquivel's wife and three of their adult children testified they lived with him at the relevant time or were at his home frequently, and they denied seeing any misconduct or that he had taken I.P. or C.P. in his car alone. Further, a female friend of the family who had known Esquivel for 20 years and visited his home frequently with her young daughters, testified "[h]e has always been like a grandfather to my children, " and she never saw him act inappropriately.
In any event, had the proffered testimony been admitted, it is unlikely the result would have been more favorable to Esquivel. The testimony would not have shown he had no opportunity to commit the crimes. "[W]hen a trial court misapplies Evidence Code section 352 to exclude defense evidence, ... the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (error harmless if it does not appear reasonably probable verdict was affected)." (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., IRION, J.