P. v. Monplaisir CA4/2

Filed 6/25/13 P. v. Monplaisir 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055168

v. (Super.Ct.No. INF064806)

DONALD JOSEPH MONPLAISIR, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Reversed and remanded with directions.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Donald Joseph Monplaisir appeals after he pleaded no

contest to 12 counts of committing a lewd and lascivious act on a child under age 14
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(Pen. Code, § 288, subd. (c)(1)), and 36 counts of unlawful sexual intercourse with a

minor (Pen. Code, § 261.5, subd. (c), (d)). He contends that he should be entitled to

withdraw his plea, because he was mistakenly told that he would be able to appeal the

denial of his speedy trial motion. The People concede that defendant should be afforded

the opportunity to withdraw his plea. We reverse and remand with directions.

FACTS AND PROCEDURAL HISTORY

The facts as to the offenses are derived from the probation report. The victim,

defendant’s daughter, was two years old when she went to live with her paternal

grandmother in Haiti. The victim was eight years old when defendant came to Haiti for a

visit. Defendant kissed her with an open mouth kiss. He also wanted the victim to take a

shower with him, but the grandmother overheard and intervened, telling defendant his

request was inappropriate.

When the victim was 11 years old, she went to visit an aunt in New York.

Defendant was also visiting. Both defendant and the victim were sleeping on a pull-out

sofa when the victim woke up one night as defendant held her in his arms and caressed

her breasts. Defendant attempted to penetrate her with his penis, but the victim felt pain

and began to cry. Defendant stopped and told the victim he was sorry.

That same year, the victim also visited her father at his home in New Jersey. She

stayed with defendant for about one month. During that time, defendant began regularly

touching her breasts and vagina. The victim told an older cousin about the molestation,

but no one did anything further to report, investigate or stop the abuse.

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 When the victim was 12 years old, she again visited her aunt in New York.

During this visit, defendant had sexual relations with his daughter. The victim wrote a

letter about the incident, which was later discovered by her grandmother. The victim’s

grandmother became angry, and accused the victim of lying; her grandmother also said

that, if it was true, the victim must have been asking for it.

Every year thereafter, when the victim would visit with her father, he would

engage in sexual intercourse with her, as well as mutual oral sex. Defendant told his

daughter that sexual relationships like theirs were common, but that “people did not talk

about it.” Defendant claimed to be “teaching” the victim about sex.

When the victim was 14 years old, her grandmother died. The victim then went to

live with her father in La Quinta, California. When the victim came to live with him,

defendant ended his relationship with his girlfriend, and immediately began having

regular sex, about two or three times a week, with the victim. Defendant told the victim

that he had sex with her so that he would not catch a sexually transmitted disease from

someone else.

On at least one occasion while the victim was living with defendant, the victim’s

brother walked in on defendant and the victim while they were having sex. Defendant

followed his son out of the room; when he returned, he told the victim that her brother

had not seen anything. Another time, defendant took the victim to a motel to have sex.

On this occasion, he told her to “make noise,” because when he had sex with her at home,

they normally had to be quiet so no one would hear them.

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 Usually, after having sex with the victim, defendant would make her go into the

bathroom, where he would press on her abdomen in an effort to squeeze his semen out of

her body to avoid pregnancy.

Defendant maintained this sexual relationship with the victim until she left home

for college at age 18. When she returned home at age 19, she told defendant she would

no longer allow him to have sex with her because she had learned from a college friend

that it was wrong.

The victim finally reported the molestations to law enforcement officers in

approximately March 2009. The Riverside County District Attorney’s Office filed a

felony complaint alleging 59 separate counts for offenses that allegedly occurred between

1990 and 1994.1 Shortly after the proceedings began, defendant filed a motion to dismiss

the charges as barred by the statute of limitations. Defendant argued that the statute of

limitations provided in Penal Code section 803, pertaining to late discovery or disclosure

of sex offenses against minors, did not exist in 1994, the last date on which an offense

here was alleged to have taken place. The applicable statute of limitations in 1994 was

six years for these offenses. Penal Code section 803, subdivision (f), was not enacted

until 2005, more than six years after the last molestation offense. Accordingly, defendant

1 The original complaint alleged: (1) 12 counts of violation of Penal Code section
288, subdivision (c)(1) (lewd and lascivious act on a child under age 16 and more than 10
years younger than the perpetrator), one for each month between August 1990 and July
1991; (2) 47 counts of violation of Penal Code section 261, subdivision (a)(2) (rape by
means of force, violence or fear), one for each month between August 1990 and June
1994.

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argued that the statute of limitations had expired before the provision relied on here had

come into existence. Even if Penal Code section 803 applied, however, defendant argued

that there was no independent corroboration of the victim’s allegations.

The prosecutor opposed the motion, arguing that the statute of limitations had not

expired. The provision now included in Penal Code section 803, subdivision (f), had

previously existed in another subdivision of the statute; the prior version had been in

effect in 1994. The prosecutor pointed to Stogner v. California (2003) 539 U.S. 607 [123

S.Ct. 2446, 156 L.Ed.2d 544], in which the United States Supreme Court held that the

version of Penal Code section 803 in effect at that time, did violate the ex post facto

clause when applied to prosecutions that were already time-barred. The Supreme Court

also noted, however, that it would not be a violation of ex post facto principles to extend

the statute of limitations as to prosecutions that were not yet time-barred at the time the

extension is enacted. (Stogner, at pp. 618-619; see also People v. Vasquez (2004) 118

Cal.App.4th 501, 504.)

While the motion to dismiss was pending, the court suspended proceedings when

it expressed a doubt as to defendant’s mental competence. After reviewing the ensuing

reports, the court declared defendant competent to stand trial.

In November 2009, after several months of discovery and other proceedings,

defense counsel filed a purported “supplement” to the motion to dismiss, alleging that

reports of the molestations had come to the attention of law enforcement officials as early

as 2001, so that the current prosecution in 2009 was not timely. The prosecutor

responded that the circumstances in 2001 did not trigger the statute of limitations. In

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2001, defendant had filed a missing person report, stating that his daughter, the victim,

was missing, having allegedly taken his car. Later, defendant telephoned the

investigating officer to say that the victim had called and, according to defendant, the

victim was accusing defendant of molesting her. Defendant, however, denied to the

officer that he had molested the victim. The prosecution argued in opposition that

defendant’s disclosure to law enforcement officers, in the context of a different

investigation, that his daughter may have accused him of molesting her is not the same

thing as a report of molestation to law enforcement by a victim. The victim’s report to

law enforcement is the event that starts the running of the statute of limitations; no such

victim report happened in 2001. The hearing on the motion was continued a number of

times, until the trial court eventually denied the motion in March 2010.

In May 2010, defendant renewed the motion again urging that defendant’s

statement to officers in 2001, in the context of a different investigation (victim had taken

defendant’s car and was missing), to the effect that his daughter was accusing him of

molesting her, was sufficient to initiate the statute of limitations. The court again denied

the motion.

The matter proceeded to preliminary hearing. Although the magistrate indicated

some uncertainty as to the element of duress with respect to the rape charges, ultimately

defendant was held to answer on all charges.

Defendant moved to set aside the information under Penal Code section 995, on

the ground that there was no probable cause to support the charges, again based on the

theory that the statute of limitations had expired. Defendant argued that he could not be

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held to answer, because the evidence indicated that law enforcement had received notice

of the molestation allegations in 2001, and the limitations period should have begun at

that time, consistent with the policies underlying the extended reporting period under

Penal Code section 803, subdivision (f). In addition, the trial court had refused to take

judicial notice of a transcript in connection with one of the earlier dismissal motions,

particularly the testimony of the police officer who had spoken to defendant in 2001 and

to whom defendant had related the statement that the victim was accusing defendant of

molesting her. Of course, at the same time, defendant also denied to the officer that any

touching had taken place. Defendant offered the explanation that the victim was making

such accusations simply because she was angry with defendant, in the context of her

having taken his car and disappeared.

The People opposed the motion to dismiss, arguing that the evidence at the

preliminary hearing was sufficient to hold defendant to answer on the charges, and

detailing the evidence supporting the lewd and lascivious act charges (counts 1-12), and

the rape charges (counts 13-59). Penal Code section 803, subdivision (f), the applicable

statute of limitations, provides that the period begins to run upon the 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 [one of the enumerated sex crimes] . . . .”

Any report in 2001 was not made “by a person . . . alleging that he or she . . . was the

victim” of the charged crimes. The prosecutor argued that defendant was not deprived of

any due process rights as to the preliminary hearing as he had a dismissal motion on the

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same ground (statute of limitations) heard and denied the same day as the preliminary

hearing.

At the hearing on the probable cause motion to dismiss, the court expressed

concern about the “duress” element with respect to the rape charges. Although the victim

was defendant’s daughter and defendant had begun the molestations at an early age, the

victim for several years had not lived with defendant and defendant had not made any

threats toward her or used physical force to secure her compliance. Rather, the victim

felt compelled by her relationship with defendant, and she feared that he would become

upset if she refused. The molestations continued until the victim was 17 or 18 years old,

much older than the victims in other cases that had found coercion implied in the parent-

child relationship.

The court denied the motion to dismiss the information insofar as the statute of

limitations was involved. However, it found insufficient proof of duress to sustain the

rape charges. The court accordingly denied the motion as to counts 1 through 12, the

lewd and lascivious act counts, but granted the motion as to counts 13 through 59, the

rape charges.

After this ruling, defendant filed another motion to dismiss the remaining 12

counts, again alleging that the statute of limitations had run. This time, defendant’s

motion focused on the requirement in the statute that there be corroborating evidence of

substantial sexual conduct, and argued that there was insufficient independent evidence to

corroborate the victim’s allegations.

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 The People opposed the motion, noting that the victim had, by arrangement with

the police, made a pretextual telephone call to defendant, which was recorded. In the

course of that telephone call, defendant made certain admissions that independently

supported the victim’s allegations. Defendant had made remarks during his police

interview that also supported the allegations. The court denied the motion.

By this time, in August 2010, the matter was scheduled for trial on counts 1

through 12. Both parties announced ready for trial. However, this court issued a stay of

the trial proceedings pending the People’s appeal of the dismissal of the rape charges.

The People had also filed a related writ proceeding, in which this court issued a

peremptory writ in the first instance, granting the People’s petition to reinstate the rape

counts. (People v. Superior Court (Monplaisir) (Oct. 27, 2010, E051644) [nonpub.

opn.].) Defendant had disciplined the victim in the past by beating her, and the victim

had testified that she was concerned he might physically abuse her if he was strongly

upset by her refusal to cooperate. Accordingly, the evidence showed that the victim acted

or failed to act because of her subjective fear. This was sufficient to meet the probable

cause standard to hold defendant to answer for the rape charges. (Ibid.) The People

abandoned the appeal because of the relief granted on the writ. Defendant sought further

review of this court’s order in the writ proceedings; this court denied rehearing and the

California Supreme Court denied review. The case was remitted to the trial court once

again on February 28, 2011.

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 The trial court set the matter for a trial readiness conference on all the charges.

Defendant filed a new motion to dismiss the charges, this time on the ground of violation

of his statutory right to a speedy trial. The trial court denied this motion.

On July 7, 2011, both parties again announced ready for trial. On the eve of trial,

the People filed a first amended information (1) reinstating counts 13 through 48, and

(2) amending the allegations to charge unlawful sexual intercourse with a minor more

than three years younger than the perpetrator or unlawful nonforcible sexual intercourse

with a person under age 16 (Pen. Code, § 261.5, subds. (c) & (d), respectively), rather

than rape by duress (Pen. Code, § 261, subd. (a)(2)). Twelve counts of rape previously

charged (between August 1990 and July 1991) were not renewed in the first amended

information. The amended charges covered conduct alleged between August 1991 and

July 1994.

On the last day to begin trial, July 13, 2011, defendant requested a continuance to

the next day, as negotiations were ongoing to resolve the matter. The following day, July

14, 2011, defendant agreed to change his plea. Defendant accepted the court’s offer to

plead no contest to all charges in exchange for a 20-year prison term, plus credits under

Penal Code section 4019 (maximum exposure was 38 years eight months). In addition,

defendant would be granted a certificate of probable cause to appeal on the statute of

limitations issue, as well as alleged violation of his statutory speedy trial rights as to

counts 1 through 12. The People objected to the plea.

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 The trial court accepted defendant’s change of plea, and sentenced him to the

agreed-upon term of 20 years. The court also duly signed the certificate of probable

cause.

At sentencing, the trial court denied probation, imposed a total prison commitment

term of 20 years, and ordered defendant to pay $10,000 as a restitution fine, with a

concomitant $10,000 parole revocation fine.

Defendant filed a timely notice of appeal.

ANALYSIS

I. Defendant Is Entitled to Withdraw His Plea Because It Was Induced in Part by a

Promise to Issue a Certificate of Probable Cause to Review the Denial of His Speedy

Trial Motion, a Nonappealable Order

Defendant agreed to plead no contest based in part on the inducement that the

court would grant a certificate of probable cause to review the denial of his motion to

dismiss counts 1 through 12 for alleged violation of his statutory right to a speedy trial.

As defendant now recognizes, the denial of a statutory speedy trial motion is not

reviewable on appeal. In Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, the

court held that the admission of the allegations of a juvenile petition—analogous to a

guilty plea—constitutes an admission of all the facts essential to establish guilt. “ ‘The

essence of a defendant’s speedy trial or due process claim in the usual case is that the

passage of time has frustrated his ability to establish his innocence. The resolution of a

speedy trial or due process issue necessitates a careful assessment of the particular facts

of a case in order that the question of prejudice may be determined. [¶] Where the

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defendant pleads guilty, there are no facts to be assessed. And since a plea of guilty

admits every element of the offense charged, there is no innocence to be established.’

[Citation.] Thus, ‘the cases are virtually uniform in holding that a claim of speedy trial

violation—whether statutory or constitutional—does not survive a guilty plea.’

[Citations.]” (Id. at p. 792.)

Defendant contends that, because his plea was induced by the unenforceable

promise that the speedy trial issue had been preserved for appeal, he must be entitled to

the opportunity to withdraw his appeal. The People concede that the speedy trial issue is

not cognizable on appeal, and that defendant, who relied on the promise that the issue

was preserved, should be afforded the opportunity to withdraw his no contest plea. We

agree that the lower court’s issuance of a certificate of probable cause cannot render a

claim reviewable that is not cognizable on appeal. (See People v. Sanders (2012) 203

Cal.App.4th 839, 847-848.)

We order the matter remanded to permit defendant the opportunity to withdraw his

plea. (See Ricki J. v. Superior Court, supra, 128 Cal.App.4th 783, 792.)

II. The Statute of Limitations Had Not Expired

Defendant again raises the issue that the statute of limitations had run as to all the

charged offenses, based on the notion that defendant’s remarks to an officer in 2001

initiated the running of the limitation period.

The People suggest that we need not address the issue, as it may not be ripe for

decision. We have agreed with defendant, and the People concede, that the judgment

must be reversed and the matter remanded to allow defendant the opportunity to

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withdraw his plea. If defendant elects to withdraw the plea, the matter will be returned to

trial, i.e., prejudgment status. At the trial level, defendant has moved numerous times to

dismiss on the basis that the statute of limitations has run, and each time that motion has

been denied. He may seek appellate review of that ruling after a judgment, but the

appellate court generally does not issue advisory opinions in cases in which no judgment

has been entered. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 860.) Because defendant

has been granted the primary relief he seeks—the opportunity to return the case to

prejudgment status—appellate (i.e., postjudgment) review of pretrial rulings made by the

trial court is arguably inappropriate at this point. As the People also point out, if

defendant withdraws his plea, it is unknown what specific charges the prosecution will

elect to proceed upon, and therefore it is unknown what tolling provisions may apply.

(See, e.g., Pen. Code, § 803, subds. (d), (f).)

However, it is also not certain that defendant will in fact elect to withdraw his no

contest plea to these charges. The sentence he received, 20 years, amounts to an average

of less than one year per count, and is significantly less than the potential maximum

exposure he faces should he elect to withdraw his plea and stand trial. Should defendant

ultimately decide not to withdraw his plea, the statute of limitations issue would remain

unreviewed; moreover, if defendant’s contention is meritorious, and the statute of

limitations on the currently charged offenses has expired, it would be unjust to require

him to go through the expense and difficulties of a trial on the merits in order to obtain

appellate review. For that reason, we deem it expedient to address the issue on the

merits. Further, the issue is one of pure statutory construction; it presents an issue of law,

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which we review independently. (People ex rel. Lockyer v. Shamrock Foods Co. (2000)

24 Cal.4th 415, 432.)

Defendant points out that, when he contacted police in 2001 about the victim

running away with defendant’s car, he informed an officer that the victim had telephoned

him and, because she was angry with defendant, she was accusing defendant of having

molested her. At the same time, defendant firmly denied to the officer that he had

engaged in any inappropriate behavior. Defendant contends that his 2001 self-serving

report and denial of the alleged accusations of molestation, were sufficient to begin the

running of the extended statute of limitations under Penal Code section 803. That is, a

law enforcement agency had received information sufficient to alert the authorities to the

victim’s molestation claims. Under Penal Code section 803, subdivision (f)(3), the

complaint was not brought within one year of the report to law enforcement because it

was not filed until 2009. Therefore, the statute of limitations on the charged offenses had

expired long before the instant proceedings began.

We disagree. We begin, as in any case of statutory construction, with the

language of the statute itself. “Generally, a reviewing court’s ‘fundamental task in

construing a statute is to ascertain the intent of the lawmakers so as to effectuate the

purpose of the statute. [Citation.]’ [Citation.] The analysis starts with an examination of

the actual words of the statute, giving them their usual, ordinary meaning. [Citation.]”

(Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1513-1514.)

Penal Code section 803, subdivision (f), provides in relevant part: “(1)

Notwithstanding any other limitation of time described in this chapter, a criminal

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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 [specified sex-related] crime [against a minor]. . . .

“(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, . . . .

“(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.”

The salient point is the language that the complaint must be filed within one year

after, “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 [specified

sex-related] crime . . . .” (Pen. Code, § 803, subd. (f)(1), italics added.) The plain words

of the statute state that the extended statute of limitations begins to run when the matter is

reported to a law enforcement agency by the victim of a qualifying sex crime. Here, the

victim never made a report to law enforcement until 2009. The information defendant

relayed to a law enforcement officer in 2001: (1) was not a report made by the victim;

(2) occurred tangentially in the context of an investigation into an entirely different

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matter; and (3) was minimized, and indeed wholly denied, by defendant, the reporting

party, in such a manner as to explain away and discourage any active investigation into

the alleged accusation. Ream v. Superior Court (1996) 48 Cal.App.4th 1812 held that the

“clear and unambiguous” language of the provision requires a report by the victim.

Indeed, “The statute makes no reference to a report by a person who is not a victim.” (Id.

at p. 1818.)

Defendant contends that this case is distinguishable from Ream. He urges that the

information he provided in 2001 was substantively sufficient to trigger the statute of

limitations, and he argues that the policies underlying the statute, as explained in Ream,

were satisfied in this case, so that the lack of a report by the victim herself in 2001 should

be excused. In Ream, the defendant was charged with sex offenses against the victim,

who was age six or seven at the time of the alleged offenses, and about age 13 at the time

the charges were brought. The defendant’s ex-wife had turned over to law enforcement

some photographs of the defendant engaging in the acts, apparently while the victim was

asleep, or perhaps drugged. (Ream v. Superior Court, supra, 48 Cal.App.4th at pp. 1815-

1816.) The photographs depicted acts that had taken place more than six years before the

prosecution began, so that there was no corroboration for any acts that took place within

the ordinary statute of limitations period. As to the extended statute of limitations under

Penal Code section 803 (Pen. Code, § 803, former subd. (g), now subd. (f)), the victim

herself had not made any report, and in fact denied that the defendant had molested her.

(Id. at p. 1816.) The defendant had moved to dismiss the case as beyond the statute of

limitations. The People opposed the motion, arguing that the victim appeared to be

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unaware of the molestations, and it would be absurd to require the law enforcement

officers to inform her of the crimes committed against her so she could make a report

herself, when ample undisputed evidence had been provided by the report of another

person (the ex-wife). (Id. at pp. 1818-1819.) The Court of Appeal rejected the People’s

argument, i.e., that there should be an implied exception to the victim-reporting

requirement for victims who are unaware of the crimes.

The court stated, “We do not agree that application of section 803(g) according to

its plain language achieves an absurd result. So applied, section 803(g) does not require

the People to inform the victim of the crimes committed against her; it simply requires a

report to law enforcement by the victim to remove the bar of the statute of limitations

absent which, in this case, prosecution remains time-barred. [Fn. omitted.]

“Nor is it absurd to extend the statute of limitations for aware but not for unaware

victims. The Legislature may well have recognized that youthful victims of sexual abuse

may be dissuaded from reporting abuse at the time of its occurrence by shame, fear of the

consequences, intimidation by the abuser, or psychological trauma. [Fn. omitted.] The

Legislature may reasonably have intended to enlarge the statute of limitations to

accommodate only such cases. . . . If it were the intent to enlarge the statute of

limitations in cases where an unconscious minor was the victim of a sex offense in order

to allow prosecution even while the victim remains unaware of her victimization, the

Legislature presumably would have expressly said so.

“The remaining and related issue is whether the Legislature actually intended for

the report of a sexual offense by a person other than the victim to trigger the extended

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statute of limitations of section 803(g), despite the plain language of the statute requiring

a report by the victim. Again, because the People are not required to inform the victim of

the crimes committed against her, the plain language of section 803(g) does not conflict

with the legislative intent of subdivision (d) of Penal Code section 288 to protect child

victims from psychological harm.

“ . . . [T]he Legislature was concerned with the problem of child victims of sex

crimes who wait until they are adults to report sex offenses committed against them. . . .

[¶] . . . [¶]

“Nothing in the legislative history suggests the Legislature intended, despite the

use of language inconsistent therewith, to extend the statute of limitations upon the report

of a non-victim or to extend the statute of limitations in cases of unconscious victims of

sex offenses who, unaware of their victimization, are unable so to report. If the

Legislature had intended those results, it would have expressly said so. [Fn. omitted.]”

(Ream v. Superior Court, supra, 48 Cal.App.4th at pp. 1820-1821.)

Defendant here contends that the purpose of the statute is to “ensure that the

perpetrator does not escape notice of law enforcement due to the child’s inability to

report.” He argues that Ream is not directly on point. Ream holds that the statute of

limitations “is not tolled, even where photographic evidence shows that the child has

been abused, where the victim is presently still a minor, where the child is unaware of the

abuse, and where the reporter is a third party.” (Citing Ream v. Superior Court, supra, 48

Cal.App.4th at p. 1821.) Defendant argues that the “rationale is that there is no

psychological harm where the child is unaware of the abuse. If at some point after she

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becomes an adult, she is made aware of the abuse, she can still report it to law

enforcement, provided there is corroboration and the complaint is filed within one year of

the report. [¶] The legislative intent for extending and tolling the statute of limitation

under this provision is (1) to protect the rights of children who cannot communicate for

themselves, who are afraid to do so, and have no one to confide in, and (2) to ensure that

the prosecution has the ability to prosecute the case within [one] year of law

enforcement’s being put on notice of such allegations.” Defendant argues that the

policies underlying the statute were satisfied here, because (a) law enforcement had been

put on notice of the allegations in 2001, (b) the victim here had not been threatened to

keep her from reporting the molestations to law enforcement, (c) she was not a person

who was unable to communicate the matter or who had no one to confide in, which was

demonstrated when she confronted defendant in front of her brother at one point, and

when she complained to other adults both before and after she reached adulthood.

Defendant argues that, “the legislative intent of protecting children who do not know they

were abused, who cannot communicate for themselves, or who are afraid to do so or have

no one to confide in was not at issue in this case. [The victim] did not fall within the

class of persons the exception to the statute of limitations was meant to protect.”

Defendant argues that he is therefore “entitled to repose.”

Defendant’s argument is without merit. The victim here falls precisely within the

class the statute was meant to protect. It was intended to protect victims of childhood

abuse who were (or who become) aware of that abuse. The triggering event, under the

plain language of the statute, is a report by the victim to law enforcement. Here, that

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report took place in 2009, and the complaint was filed within one year of the report. The

statute contains no required elements that there have been no other report to law

enforcement before the victim makes a report, it does not require proof that the victim

was personally threatened or pressured not to make any earlier report, it does not require

the victim to demonstrate that the victim was never able to communicate with others

about the abuse before reporting it to law enforcement officers, it does not require a

preliminary minitrial on the victim’s knowledge or lack thereof, or his or her actions and

inactions with respect to the allegations before making a report to law enforcement

officers.

To accept defendant’s construction would be to disqualify not only unaware

victims from the tolling provisions of the extended statute of limitations, but also many

victims who are aware of the molestations (the protected class defined in Ream), but who

cannot jump additional hurdles to prove the “legitimacy” of their behavior in making the

complaint. The statute does not require a victim to overcome any such hurdles. It only

requires a report by the victim to law enforcement.

Here, the victim did make a report to law enforcement in 2009, and the instant

prosecution was timely filed after that report. Defendant’s argument that the statute of

limitations as to the instant charges had expired is without merit.

III. The Restitution Fine Issue Is Moot

Defendant also has raised the issue that the trial court erred in imposing a

restitution fine of $10,000, as well as a corresponding parole revocation fine in the same

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amount. Defendant argues that he did not agree to these fines in the plea agreement, and

that the court should have imposed the minimum fines of $200 in each instance.

If defendant elects to withdraw his no contest plea, the issue is moot. The issue of

restitution fines and parole revocation fines may be revisited upon the imposition of a

new judgment. Defendant may, however, ultimately decide not to withdraw his plea.

Defendant argues that the imposition of a $10,000 restitution fine, the maximum allowed,

was a matter not contemplated by, and a significant deviation from, the plea to the court.

Defendant was never advised, pursuant to Penal Code section 1192.5, of the imposition

of a $10,000 maximum restitution fine (and parole revocation fine) as a consequence of

his plea. Defendant urges that, should he elect not to withdraw his plea, the proper

remedy is to reduce the restitution fine and the parole revocation fine to the applicable

statutory minimum of $200. (People v. Walker (1991) 54 Cal.3d 1013, 1027, 1029.)

Defendant’s reliance on Walker is misplaced. The California Supreme Court in People v.

Villalobos (2012) 54 Cal.4th 177 (Villalobos), overruled Walker to the extent that mere

silence in the record about the imposition of a statutorily mandated punishment was

treated as a basis for a defendant’s belief that the plea agreement excluded imposition of

the punishment. The California Supreme Court held that when a restitution fine is not

mentioned in the plea agreement, or otherwise discussed during the plea proceedings, the

amount of the fine is set at the court’s discretion, according to statute. In other words, the

plea agreement is not violated by the imposition of a statutorily mandated term that was

omitted from the agreement. (Id. at pp. 183-184.) This is so, even if the omitted term

consists of a substantial restitution fine.

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 DISPOSITION

Defendant pleaded no contest to all charges, based in part on the promise to issue a

certificate of probable cause to preserve the speedy trial issue for review. After a plea of

guilty or no contest, a claim of violation of speedy trial rights does not survive. Because

defendant was induced to plead no contest on the promise to preserve a nonreviewable

claim for appeal, the judgment is reversed, and the matter remanded to afford defendant

the opportunity to withdraw his no contest plea.

In order to aid defendant in deciding whether or not to withdraw his plea, we have

reviewed and determined his oft-raised claim that the statute of limitations has expired

with respect to the instant charges. We have now resolved that issue adversely to

defendant; the statute of limitations has not expired and the charges are properly brought

within the extended tolling provisions of Penal Code section 803, subdivision (f).

If defendant elects to withdraw his plea, then his claim that the restitution fine and

parole revocation fine were greater than agreed is moot. The court shall consider the

issue anew if and when a new judgment of conviction arises. The trial court should, in

that case, follow the procedures recommended by the California Supreme Court in

Villalobos, including properly advising defendant of the fines as consequences of any

plea or judgment, and including consideration of the fines in plea negotiations.

(Villalobos, supra, 54 Cal.4th at p. 186.) If defendant ultimately elects not to withdraw

his plea, however, the absence of discussion of the restitution fine and parole revocation

fine in the plea agreement is not, in itself, a basis for belief that imposition of a statutorily

mandated punishment was excluded from the plea agreement. Unless defendant has

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other evidence to support a claim that the imposition of the restitution and parole

revocation fines were intended to be excluded from the plea agreement, the mere absence

of advisement and discussion during the plea negotiations does not provide a basis upon

which to challenge the fines imposed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.

We concur:

HOLLENHORST
Acting P. J.

RICHLI
J.

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