THE PEOPLE v. CARLOS RICARDO BROCATTO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CARLOS RICARDO BROCATTO, Defendant and Appellant.

B213680

Decided: June 23, 2010

Howard Lynch for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Carlos Richardo Brocatto was found guilty by a jury of committing sodomy on a person under 14 years of age, continuous sexual abuse of a child and of committing lewd acts upon children.   Appellant was sentenced to 63 years to life in prison, was assessed a restitution fine of $10,000 and received various custody credits totaling 342 days.

Appellant raises a number of issues in his appeal from the judgment.   He also raises three issues in a petition for a writ of habeas corpus, to which respondent has filed an informal reply.   We affirm the judgment and deny the petition.

FACTS

1. The Family Relationships

Because the last names are repeated, and there are minors involved, we will use first names.

Abigail, Maria and Olivia are sisters.

Appellant, who is now 56 years old, has been in a romantic relationship with Abigail since 1993.   Abigail was previously married to Manuel;  there are three children of this marriage.   These are Manuel, Jr., Edgar and Richard.

Edgar and Richard, respectively 21 and 19 at the time of trial, both stated at one point that appellant had molested them when they were respectively around seven years old and 15 years old.   Richard wholly recanted these accusations in his trial testimony and Edgar made some remarks prior to trial that threw doubt on his statement that appellant had molested him.   At various times both Edgar and Richard stated that, as Manuel's sons, they were angry at appellant for taking up with their mother Abigail.   Richard and Edgar are respectively the victims of counts 1 1 and 2.2

Maria has three children.   One of these, J., testified that in 1998 or 1999, when she was 11 or 12 years old, appellant molested her.   J. is the victim of Count 3.3 Maria's son Michael was molested by appellant in July 2006, when Michael was 11 years old.   Michael is the victim of counts 4 and 5.4

Olivia has one child, Marisol, born in 1992.   Appellant molested Marisol in 1998.

In sum, the victims are Marisol, Michael, J., Richard and Edgar.   Although Marisol was a victim, appellant was not charged with molesting Marisol.   Evidence about appellant's misconduct with Marisol was admitted pursuant to Evidence Code section 1108.5  This is the basis of one of the contentions on appeal.

2. The Focus of Appellant's Claim That the Evidence Is Insufficient to Support the Verdict

Appellant bases his claim about the sufficiency of the evidence on two contentions.   First, he contends that there was ample evidence of a motive to manufacture or fabricate evidence.   Second, he claims that the length of time that elapsed between the molestations and the accusations throws doubt on the victim's ability to render an accurate account of the molestations.   As we discuss at length below, both of these contentions are limited to questioning the credibility of witnesses.

Neither contention applies to Michael, who was the victim of counts 4 and 5.

The first contention applies only to Richard (count 1) and Edgar (count 2).   The second contention applies to Richard, Edgar and J. (count 3).

3. Michael

Because neither of appellant's contentions applies to Michael, we note in abbreviated form the facts as they relate to this victim.

On July 10, 2006, appellant took Michael to work with him;  the location was a private residence where appellant was repairing the bathroom and doing some house painting.   As Michael bent over to mix a can of paint, appellant grabbed him from behind and rubbed himself against Michael's buttocks;  he also rubbed Michael's crotch.   There was other serious misconduct that is not necessary to detail.

Michael tearfully reported this incident two days after it happened to his mother, Maria.   It was Manuel, Abigail's ex-husband, who took Michael and Maria to the police station where Michael related what had happened.

4. Edgar

At the police station, Maria told Manuel that his sons Edgar and Richard had complained to the Mexican police that appellant had sexually abused them.   Manuel had not known of this.

When Manuel asked Edgar about this, Edgar, having learned of appellant's recent abuse of Michael, tearfully told his father that appellant started sexually abusing him when he was seven or eight years old, when his mother, Abigail, was away at work.   Edgar related acts of oral copulation and sodomy.   Edgar did not reveal this to anyone when he was a child because he did not know what to do.   He only came forward with this after he heard of appellant abusing Michael.   He did report this to Mexican authorities, however, when he and Richard were visiting their grandmother in Mexico.

Los Angeles Sheriff's Department Detective Ron Anderson interviewed Edgar, who related appellant's abuse.   Edgar told Anderson that he told his mother Abigail about the abuse but she said that Edgar was lying and that she would spend any amount of money to keep appellant out of jail.

Edgar did not want to testify against appellant but, after being taken into custody, he testified consistently with the foregoing during the preliminary hearing.   A defense investigator interviewed him in jail over a telephone line.   Edgar told this person that he did not remember appellant touching him and that he was concerned over who might be listening in on the conversation.

4. Richard

When his father Manuel asked Richard what appellant had done to him, Richard cried and said he did not want to talk about it.   Eventually, however, Manuel and Richard went to the sheriff's department where Richard was interviewed by Deputy Raymond Munoz.   Richard related that appellant had sodomized him, giving the details, and that, after passing out from a drink appellant had given him, he woke up naked in bed with appellant.   Richard repeated this statement to detective Anderson.   He also told Anderson that he was afraid of appellant and had only told Edgar about appellant's abuse.   But, when he heard about Michael, he decided to come forward because appellant had to be stopped.

During the trial, Richard acknowledged that he had told Anderson and Munoz that appellant had abused him, but he testified that he had fabricated the story of abuse and appellant had never abused him.   He stated that Manuel and Edgar told him that appellant was trying to take over Abigail's property and they had to stop him somehow.   Richard was angry with appellant because of his abuse of Michael and because he, Richard, did believe that appellant had abused Edgar.

5. J.

J. related that one day, while visiting in Abigail's home, appellant, while Abigail was away, told J. to bend over, removed her pants and underwear and rubbed up against her from behind.   After J. heard about Michael, she reported this incident to the local police department in San Pablo.

A year after this incident, J. told her mother Maria what appellant had done.   When Abigail and appellant were confronted with this, Abigail became furious and accused J. of lying, which was also the tack that appellant took.   Maria became unsure, did not want to hurt her sister, and chose not to go to the police.   J. concluded that no one believed her.

6. Expert Testimony

The prosecution called Dr. Jayme Jones, a clinical psychologist, to testify about the manifest complexities surrounding the testimony of adults who have been abused as children and of children testifying about the same topic.   The jury very likely found Dr. Jones's testimony to be helpful but we see no need to summarize Dr. Jones's testimony in this opinion.

DISCUSSION

The Appeal

1. We Decline to Address the Credibility Determinations of the Jury

“Except as otherwise provided by law, where the trial is by jury:  [¶] (a) All questions of fact are to be decided by the jury. [¶] (b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants.”  (Evid.Code, § 312.)   It has been held that an appellate court has “no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses ․ .” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, italics added, disapproved on another point in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866.)   This is not an isolated rule but is rather an integral part of the principles that govern appellate review of the sufficiency of the evidence.6

Appellant asks us to consider that there were allegedly hard feelings between Manuel, Abigail's ex-husband, and appellant and that this taints Edgar's and Richard's credibility.   We decline to do so.   The law is plain that even if we were inclined to do so, we would err if we weighed the credibility of witnesses.   This is a matter for the jury and not an appellate court.

This case illustrates why this rule makes good sense.   It is patently impossible to come to a reliable determination about Richard's credibility on a cold record.   Richard's demeanor on the witness stand, on the other hand, may well have persuaded the jury that his prior statements were to be believed and that his testimony was to be discounted.   In addition to the jury, we have the benefit of the sound judgment of the trial judge who was in a position to intervene if he thought, based on his own observations, that Edgar and Richard could not be believed.   This is why we leave the issue of credibility in the hands of the jury and of the trial judge.

For the same reason, we reject the invitation to question the credibility of the witnesses because they testified, with the exception of Michael, about events years in the past.

We decidedly reject appellant's claim that because of the supposed lack of credibility of the witnesses Edgar, Richard and J. his conviction violates the due process clause.   In the first place, this well-instructed jury did consider whether these witnesses could be believed.   That their decision went against appellant on this and other issues is no violation of due process.

2. The Trial Court Did Not Abuse Its Discretion in Admitting Appellant's Prior Act of Abusing Marisol

Marisol testified that when she was three or four years old, she was lying on a bed with appellant, who had no shirt on.   Marisol may or may not have had any clothes on.   Appellant touched her vagina with his hand.   This took place in Abigail's house while Abigail was away.

Before this testimony was admitted, the court had conducted a pretrial hearing on whether this testimony was admissible under Evidence Code section 1108, subdivision (a).7

Appellant contends that Marisol's testimony should not have been admitted because “her molestation ․ was different that the others alleged․  There was no evidence that the touching of the pubic area was for a sexual purpose.”

This contention is perilously close to nonsense.   The similarities in these acts of perversion are as compelling as they are appalling.   Appellant was taking advantage of the presence of small and defenseless children in Abigail's house, and of Abigail's temporary absence, to satisfy his urges.   In any event, “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose.   It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.”  (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, fn. omitted.)   As respondent points out, this case strongly resembles People v. Frazier in that appellant has a pattern of molesting young children in his family circle.  (Id. at p. 41.)

Admission of Marisol's testimony was well within the ambit of the trial court's discretion.  (People v. Branch (2001) 91 Cal.App.4th 274, 281-282 [in an appeal involving Evid.Code, §§ 1108 & 352, the reviewing court applies an abuse of discretion standard].)   The abuse of Marisol fits the pattern appellant set with Edgar, Richard, J. and Michael.

3. The Statute of Limitations Does Not Bar This Prosecution

(a) Stogner v. California (Counts I and II)

Citing Stogner v. California (2003) 539 U.S. 607, appellant contends that subdivision (f) of Penal Code section 803 is unconstitutional.   We set forth subdivision (f) of Penal Code section 803 in the margin.8

Stogner was a case in which the original limitations period of three years had expired by the time that Penal Code section 803 (hereafter section 803) was enacted in 1993.  (Stogner v. California, supra, 539 U.S. at p. 609.)   The court concluded that under these facts section 803 operated as an impermissible ex post facto law precluded by article I, section 9, clause 3 of the United States Constitution.  (Stogner v. California, at p. 611.)

In this case, the five charged offenses were committed in 1993 (count 1), 1992 (count 2), 1998 or 1999 (count 3) 9 and 2006 (counts 4 and 5).   Subdivision (f) of section 803 is a combination of statutes enacted in 1989 and 1994.   This is well before the six-year statute of limitations ran on counts 1 and 2. Thus, Stogner v. California does not apply to these two counts, or to any of the charged crimes.

(b) “Substantial Sexual Conduct” and Corroboration (Counts 1 and 2)

Substantial evidence supports the findings of the jury that there was “substantial sexual conduct” (§ 803, subd. (f)(2)(B)) and that Edgar's and Richard's statements were corroborated (§ 803, subd. (f)(2)(C)).10

Counts 1 and 2 involved sodomy and oral copulation, which constitute substantial sexual conduct under Penal Code section 1203.066.11

Evidence that the defendant committed similar offenses against a person or persons other than the victim constitutes corroboration for the purposes of section 803, subdivision (f).  (People v. Mabini (2001) 92 Cal.App.4th 654, 659.)   Appellant's assaults on J., Michael and Marisol, whose testimony was consistent and credible, are clear and convincing corroboration of Edgar's and Richard's statements.

(c) Count 3

The parties stipulated that the complaint against appellant was filed on December 29, 2006.   Count 3 charged a violation of Penal Code section 288, subdivision (a), which is made punishable by the same provision by terms of three, six or eight years.   Pursuant to Penal Code section 800,12 the statute of limitations on the offense charged in count 3 is six years.   Thus, the statute of limitations ran either in 2004 or 2005.

Subdivision (b) of Penal Code section 801.1 was enacted in 2004;  subdivision (a) of this statute was added in 2005.13  In 2004, Penal Code section 801.1 read as follows:  “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 Section 290 shall be commenced within 10 years after commission of the offense.”  (Stats.2004, ch. 368.)

Because the offenses alleged in count 3 occurred in 1998 or 1999, the prosecution of this offense was not barred by the statute of limitations.

4. There Was No Discovery Violation

During the trial, a report was found in the file of a social worker employed by the Contra Costa County Department of Children and Family Services, Paula Hollowell, that appellant had molested one of his nieces.   This was yet another molestation, in addition to those we have discussed.   Hollowell, who was called by the prosecution to testify about Marisol, brought the file with her to court and the report in question was found on the day she testified, which was Friday, April 4, 2008.

The prosecution immediately informed the defense and an in-chambers conference took place on the following Monday.   The gist of the matter is that after engaging in an extended discussion with both counsel, the trial court ruled that it would permit the prosecution to use this newly found report in its cross-examination of a defense expert.   The defense intended to have this expert testify that appellant was not a danger to others.   In light of the court's ruling, the defense decided not to call this expert.

Penal Code section 1054.7 provides that if material information becomes known within 30 days of trial, the prosecution must disclose this information immediately.   This is what was done here;  it is not disputed that the defense was informed of the report in Hollowell's file on the day it was found.   Thus, the prosecution followed, and did not violate, the law.   There was no “discovery violation.”   While appellant claims that this report should have been turned over prior to trial, that was hardly possible as the prosecution could not turn over something it did not know existed in the files of another county's social worker.

Appellant's real quarrel is with the court's ruling that allowed the prosecution to cross-examine the defense expert with this newly found report.   Appellant, however, gives no reason why this ruling was erroneous.   In any event, we see no error in this ruling.

Needless to say, we see no violation of Brady v. Maryland (1963) 373 U.S. 83 as the evidence in question was not suppressed but rather disclosed immediately upon learning of its existence.

Because we conclude that no errors were committed, we need not address appellant's contention that the doctrine of cumulative error requires a reversal.

The Petition

5. There Was No False Testimony

According to appellant Abigail told a defense investigator that Olivia was upset with Abigail and appellant for various reasons and this caused her to make false reports to the authorities that appellant was molesting the family's children.   Appellant claims that this shows that the prosecution presented false evidence.

Olivia was not a witness.   Even assuming that her reports to the authorities were false, this does not mean that the witnesses who testified presented falsehoods.   Other than Richard, and to a lesser extent Edgar, the testimony of the other witnesses was consistent and credible.   In fact, even if Olivia had testified, appellant's claim that her reports were false is stated as a conclusion and lacks any foundation.   Thus, even if appellant's complaints about Olivia were germane, and they are not, they are not credible.

The defense investigator also spoke with Richard and Edgar after the trial.   Once again, these two men equivocated about appellant.   The jury and the trial court were fully aware that both of these men had made various conflicting statements about appellant and nonetheless had returned verdicts on the counts involving Edgar and Richard.   It adds nothing to the case that after appellant had been found guilty, Edgar and Richard continued to reflect the family pressures that had been brought to bear on them.   This is neither new evidence nor does it amount to a showing that the prosecution presented false testimony.

The trial court was presented with the foregoing in the motion for a new trial.   The court found the proffered statements garnered by the defense investigator to be unreliable and not new evidence that would warrant a new trial.   The record demonstrates that this ruling was correct.

We are satisfied that all of this falls far short of a prima facie case.   (People v. Romero (1994) 8 Cal.4th 728, 737 [“When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief”].)

6. The Trial Court Did Not Err in Denying a Continuance

At the outset, appellant's claim that the court erred in denying his request for a continuance of the trial is confronted with two serious obstacles.

One. “The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.”  (People v. Beames (2007) 40 Cal.4th 907, 920.)

Two. One of the reasons that the trial court denied the continuance was that defense counsel falsely stated in support of the request that he was either in, or was about to, commence another trial.   In fact, he was not engaged in another court.   One would think that, unless some unique circumstances prevailed (and they did not), this would be enough to lead to a denial of the motion.

Given this rocky start, the case for a continuance does not improve as we parse through the circumstances of this motion to continue the trial.

The salient reason that the continuance was denied was that, as the court put it, the “case [has] been here for a year and two months.   It's a case that by law, as we all know, is entitled to priority.   And a year and two months is certainly not priority by anybody's standard.”   This is an appropriate and telling observation.   As we note again below, 14 months was more than adequate to prepare this case for trial.

It is also true that appellant is unable to make out a cogent case that the denial of the continuance prejudiced him.  “In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction.”   (People v. Samayoa (1997) 15 Cal.4th 795, 840.)   Appellant now claims that, given additional time, he would have discovered Hollowell's file.   But appellant neither explains how it would have come about that he would have known to ask for this file nor can he make a reasonable claim that had he known of the adverse report in the file he would have done anything differently.   If anything, he would have been in a worse position because the prosecution could have added this molestation under Evidence Code section 1108.  (See text, ante, p. 2, for the text of Evid., Code, § 1108.)

During the hearing on the motion to continue, defense counsel stated that “we do request additional time because of the investigation which is continuing.”   “To be entitled to a continuance on the ground of lack of preparation, ‘It must be shown on the motion that the defendant and his counsel had used due diligence and all reasonable effort to prepare for trial.   The motion on this ground is addressed to the discretion of the court [citation] and is properly denied when the defendant has already had ample time to prepare for the trial.’ ”  (People v. Johnson (1970) 5 Cal.App.3d 851, 859.)   One would think that 14 months is enough time to prepare most cases, including this one, for trial.

This claim also falls short of a prima facie showing.

7. The “Discovery Violation”

The petition simply repeats the argument about this issue presented in the opening brief.   For the reasons expressed in part 4, ante, this claim fails to make a prima facie showing.

DISPOSITION

The judgment is affirmed, and the petition for a writ of habeas corpus is denied.

We concur:

FOOTNOTES

FN1. Sodomy on a child (Pen.Code, § 286, subd. (c)(1))..  FN1. Sodomy on a child (Pen.Code, § 286, subd. (c)(1)).

FN2. Lewd and lascivious acts with child (Pen.Code, §§ 1203.066, subd. (b);  288)..  FN2. Lewd and lascivious acts with child (Pen.Code, §§ 1203.066, subd. (b);  288).

FN3. Lewd and lascivious acts with child (Pen.Code, § 288, subd. (a))..  FN3. Lewd and lascivious acts with child (Pen.Code, § 288, subd. (a)).

FN4. Both counts allege lewd and lascivious acts with child (Pen.Code, § 288(a))..  FN4. Both counts allege lewd and lascivious acts with child (Pen.Code, § 288(a)).

FN5. “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”  (Evid.Code, § 1108, subd. (a).).  FN5. “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”  (Evid.Code, § 1108, subd. (a).)

FN6. “André Gide once observed:  ‘Everything has been said already;  but as no one listens, we must always begin again.’   With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them;  that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.”  (Overton v. Vita-Food Corp., supra, 94 Cal.App.2d at p. 370.).  FN6. “André Gide once observed:  ‘Everything has been said already;  but as no one listens, we must always begin again.’   With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them;  that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.”  (Overton v. Vita-Food Corp., supra, 94 Cal.App.2d at p. 370.)

FN7. “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”  (Evid.Code, § 1108, subd. (a).).  FN7. “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”  (Evid.Code, § 1108, subd. (a).)

FN8. “(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 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.“(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.”  (Pen.Code, § 803, subd. (f), fn. omitted.).  FN8. “(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 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.“(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.”  (Pen.Code, § 803, subd. (f), fn. omitted.)

FN9. J. testified that the incident with appellant took place when she was about 11 or 12, which would make the year either 1998 or 1999..  FN9. J. testified that the incident with appellant took place when she was about 11 or 12, which would make the year either 1998 or 1999.

FN10. See footnote 8, ante, for section 803, subdivision (f)..  FN10. See footnote 8, ante, for section 803, subdivision (f).

FN11. “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”  (Pen.Code, § 1203.066, subd. (b).).  FN11. “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”  (Pen.Code, § 1203.066, subd. (b).)

FN12. “Except as provided in Section 799, 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.”   (Pen.Code, § 800.).  FN12. “Except as provided in Section 799, 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.”   (Pen.Code, § 800.)

FN13. “(a) Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, 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.“(b) Notwithstanding any other limitation of time described in this chapter, if subdivision (a) does not apply, prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense.”  (Pen.Code, § 801.1.).  FN13. “(a) Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, 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.“(b) Notwithstanding any other limitation of time described in this chapter, if subdivision (a) does not apply, prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense.”  (Pen.Code, § 801.1.)

FLIER, J.

RUBIN, Acting P.J. GRIMES, J.