PEOPLE v. OLECIK

Reset A A Font size: Print

Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Dennis David OLECIK, Defendant and Appellant.

No. H010467.

Decided: March 31, 1995

Mark Christiansen, Granite Bay, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Violet M. Lee, Deputy Atty. Gen., for respondent.

Dennis Olecik appeals after a jury convicted him of six counts of forcible lewd acts committed upon a child under the age of fourteen in violation of Penal Code 1 section 288, subdivision (b).   The trial court committed appellant to the Department of Corrections for a term of 36 years.

On appeal, appellant argues (1) the judgment must be reversed because the underlying charges were time barred;  (2) the victim's generic testimony was insufficient to support the judgment;  (3) the court erred in finding that the victim was unavailable as a witness and in admitting her previous trial and preliminary hearing testimony pursuant to Evidence Code section 1291 2 ;  (4) the court abused its discretion in permitting the introduction of medical evidence of herpes;  (5) evidence of prior uncharged offenses was improperly admitted;  (6) the best evidence rule precluded introduction of Officer Hernandez's testimony;  (7) the court committed prejudicial error in instructing the jury pursuant to CALJIC No. 2.62;  (8) the prosecutor committed misconduct by reading the historical note to section 288.5 during closing summation;  and (9) the court committed constitutional error in misinstructing the jury on the elements of section 288, subdivision (b).  In three separate arguments, appellant also challenges the court's decision to permit amendment of the information.   For reasons stated below, we affirm.

Facts And Procedural Background

Shawna B. was born on March 25, 1981.   Her mother, Robin, married appellant in December 1983.   In June 1985, the family—which consisted of Shawna, her older sister Jodi, Robin, and appellant—moved into a home on Revere Avenue in San Jose.   Jodi moved out of the residence in October 1985.   Shortly thereafter, appellant began molesting Shawna—then about 41/212 years of age—on a regular basis.   The molestations occurred once or twice a week at times when she was alone with appellant and continued until shortly before June 1988, when Robin left appellant and moved out of the Revere Avenue residence.

Shawna described various types of lewd acts which appellant committed during this period.   Among other things, appellant orally copulated Shawna, touched her vagina, and attempted an act of vaginal intercourse;  appellant also forced Shawna to orally copulate him, and touch his penis.   Whenever an act of molestation occurred, appellant threatened to hurt Shawna's mother if the victim told anyone about his conduct or refused to engage in the sex acts.   The molestations occurred at different times of the day and usually took place in appellant's bedroom.   Appellant also coerced the victim into watching pornographic movies by threatening to hurt Shawna's mother.

On one occasion, when Shawna and appellant were driving home from the San Jose flea market, appellant stopped the car and parked behind a large garbage dumpster.   He then ordered Shawna to get into the back seat of the car where he put his hand down Shawna's pants and touched her vagina;  he also told her to put her hand down his pants and touch his penis.   Appellant ordered Shawna not to tell anyone what had happened.

On another occasion, appellant attempted to penetrate Shawna's vagina with his penis.   Shawna complained of pain, but appellant persisted.   It was only after Shawna made a second complaint that appellant desisted.   Appellant told Shawna he would hurt her mother if she reported the incident.

On two occasions, appellant ordered Shawna into the shower.   Once inside the shower, appellant made Shawna rub his erect penis.   He also ordered her to put his penis in her mouth.   Afterward, he told Shawna not to tell anybody or “he would hurt [her] mom.”   On one of these occasions, appellant touched Shawna's vagina.

On March 5, 1991, Caryn Arquette, a representative for “Kids Safe,” spoke to Shawna's fourth grade class about child abuse.   After her presentation, Arquette made herself available to speak to the children on a private basis.   Shawna approached Arquette and indicated that she had been molested between the ages of six and eight-and-a-half by her mother's former husband.   Shawna told Arquette that appellant had threatened to hurt her if she told anyone about the molestations.   Shawna was crying and appeared to be upset as she made these disclosures.   Arquette reported the matter to Child Protective Services.

In May 1991, Shawna repeated the charges to Mitzi Nay, a treatment coordinator and therapist for the Child Abuse Center of Yolo County.   Shawna indicated that the molestations occurred when she was six to seven years old while she was living with appellant and her mother in San Jose.   Shawna also told Nay that appellant threatened to hurt her mother if she told anyone.   Using anatomically correct dolls, Shawna showed Nay the types of sexual acts which had occurred.

Shawna reiterated essentially the same allegations during an interview with San Jose Police Officer Gene Phillips on August 27, 1991.   During this interview, Shawna stated she had cooperated with appellant because he had threatened to hurt her mother if she did not perform the sexual acts or if she told anyone what had happened.

During a session with Laurie Snodgrass, a licensed therapist whom Shawna began seeing in March 1992, Shawna used anatomically correct dolls to illustrate various sexual acts which appellant had committed.   Among other things, Shawna used the dolls to demonstrate acts of oral copulation by the male upon the female and vice versa, as well as an attempted act of vaginal intercourse.   Shawna told Snodgrass that appellant committed these acts while she was living with him and during the time when she was four to six years of age.   As she had stated previously, Shawna told Snodgrass that appellant had threatened to harm her mother if she did not comply.

Christine Boswell, Shawna's maternal aunt, recalled an incident which had occurred between June and August 1985, when she was bathing Shawna.   When Boswell began to wash Shawna's hair, Shawna asked her not to wash her vaginal area because “that's what her dad did to her and it hurt her.”   Boswell reported the incident to Child Protective Services, but was told that nothing could be done without more proof.

Over appellant's objection, the court permitted the People to introduce evidence that both the victim and appellant were diagnosed as having contracted the herpes virus.

The trial court also overruled appellant's objection to the introduction of evidence of two uncharged acts of molestation which appellant was alleged to have committed against Shawna's older sister Jodi, who was fifteen years old at the time of trial.

Testifying in his own behalf, appellant denied ever having molested Shawna.

Discussion

I. The Statute of Limitations

Appellant contends the judgment must be reversed because the statute of limitations had expired.   We disagree.   Before explaining our conclusion, we first review the legal principles pertinent to statute of limitations law.

A. Statute of Limitations Law

[1] In a criminal case, the statute of limitations is a substantive rather than a procedural right.   As such, it may be raised at any time before or after judgment.  (People v. Morris (1988) 46 Cal.3d 1, 13, fn. 4, 249 Cal.Rptr. 119, 756 P.2d 843.)  “With the exception of capital cases, ․ the statute of limitations is jurisdictional and may not be waived.”  (People v. Whitfield (1993) 19 Cal.App.4th 1652, 1658, 24 Cal.Rptr.2d 210.)  “The fact that the statute of limitations is jurisdictional necessarily determines that a prosecution within the period specified is an essential element of the offense.”  (People v. Allen (1941) 47 Cal.App.2d 735, 748, 118 P.2d 927.)   “ ‘[A]n accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations․' ”  (In re Demillo (1975) 14 Cal.3d 598, 602, 121 Cal.Rptr. 725, 535 P.2d 1181;  People v. Crosby (1962) 58 Cal.2d 713, 724–725, 25 Cal.Rptr. 847, 375 P.2d 839.)

B. Procedural Background

The original felony complaint was filed on October 7, 1991.   It charged appellant with a single count of non-forcible lewd conduct in violation of section 288, subdivision (a), alleged to have occurred between January 1, 1989 and December 31, 1990.   An arrest warrant based upon the complaint was received for service on October 31, 1991.   On December 20, 1991, the People filed an amended felony complaint which charged a single violation of section 288, subdivision (a), alleged to have occurred between January 1, 1983, and December 1, 1988.3

At the conclusion of the preliminary examination on March 6, 1992, the magistrate held appellant to answer for trial in the superior court after determining there was sufficient cause to believe appellant was guilty of the offense charged within the amended felony complaint.

On March 23, 1992, an information was filed.   It charged six counts of forcible lewd conduct under section 288, subdivision (b).   Counts 1 and 2 alleged that the criminal acts occurred between January 1, 1985, and December 31, 1985.   Counts 3 and 4 alleged that the lewd conduct occurred between January 1, 1986, and December 31, 1986.   Counts 5 and 6 alleged lewd acts occurring between January 1, 1987, and December 31, 1987.

Prior to trial, the People moved to amend the information to allege that each of the charged offenses occurred between January 1, 1985, and December 1, 1987.   The motion was granted over appellant's objection.   After the cause was submitted to the jury, appellant admitted that Shawna, while under the age of 17, reported the molestation allegations on March 5, 1991, to Caryn Arquette, who qualified as a responsible person within the meaning of section 11166.   The admission was made in response to the People's request to amend the information to include a “tolling allegation.”

C. Section 803, Subdivision (f)

Having reviewed the procedural background, we next consider what statute of limitations applies to appellant's crime.   As we shall explain, we conclude that the limitations period specified in section 803, subdivision (f) is applicable.

[2] In general, prosecution of a section 288 offense ordinarily must be commenced within six years after the offense is committed.  (§ 800.)   This is so for the following reasons.   First, for purposes of computing the applicable limitations period, “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.”  (§ 805, subd. (a), emphasis added.)   Second, the commission of a lewd act, with or without force, is punishable by a maximum term of imprisonment of eight years.  (§ 288, emphasis added.)   Finally, section 800 provides that “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.”  (Emphasis added.)   Accordingly, the six-year limitation period applies to the prosecution of a section 288 offense.

There is an exception to this six-year limitation period.   It applies to certain sex offenses committed against a minor.   The exception is set forth in section 803, subdivision (f) 4 (hereafter “section 803(f)”).

At the time of trial, section 803(f) stated in relevant part:  “Notwithstanding any other limitation of time described in this section, a criminal complaint 5 may be filed within one year of the date of a report to a responsible adult or agency by a child under 17 years of age, that the child is a victim of a crime described in Sections 261, 286, 288, 288a, or 289.”   The statute defines a “responsible adult” or “agency” as a person or agency subject to the mandatory child abuse reporting requirements set forth under section 11166.

Section 803(f) applies “only if”:  “(1) The limitation period specified in Section 800 or 801 has expired;  and (2) the defendant has committed at least one violation of [the enumerated sex offenses] against the same victim within the limitation period specified for that crime in either Section 800 or 801.”   (Stats.1989. ch. 1312, § 1, p. 5270.)

To determine whether section 803(f) 6 applies here, we must first decide what the statute means.   In so doing, we recognize that in construing a statute, “a court should ascertain the intent of the Legislature so as to effectuate the law's purpose, and in determining intent the court first turns to the words used.  [Citation.]”  (People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)   However, “[w]hen statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.  [Citations.]”  (Ibid.)

[3] In this case, the statutory language and legislative history convince us that section 803(f) applies only if there are at least two offenses alleged, one committed within the general limitations period and one which would otherwise be time-barred.   Our reasoning is as follows.   Section 803(f) states that it applies “only if ” certain events occur.   The statute then lists two conditions.   These are (1) the normal limitations period has expired and (2) the appellant has committed at least one violation of the enumerated offenses within the ordinary limitations period.   The only reasonable construction of this language is that there must be at least two offenses alleged, one committed within the limitation period, and one committed outside the normal limitation period.

[4] Although the trial court assumed that section 803(f) was applicable because the amended felony complaint charged an offense which could have occurred either before or after the expiration of the six-year limitations period, we disagree with this interpretation.   The language of section 803(f)(1) and (2) is not reasonably subject to the construction that a single offense which may or may not have been committed in the applicable limitations period may serve as the basis for invocation of the extended limitations provision.   As noted above, section 803(f) contains two conditions, and requires that both occur.   A single offense which may have been committed either within or outside the applicable limitation period does not satisfy these two prerequisites.

Further, even if we assume that the statute is ambiguous on this point, the legislative history validates our interpretation.   The legislative history reveals that section 803(f) was enacted to address “a recurring difficulty in prosecuting cases of child victimization,” that is, the fact that many such cases remain unreported for years.  (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 782 (1989–1990 Reg.Sess.) as amended May 17, 1989.)   This is so “[b]ecause the children are often very young, confused, and guilty, they are afraid to report or may not even know that what happened is indeed a crime.   This is especially true in incest cases,․  As a result, many cases of child victimization cannot be prosecuted simply because the child did not report it until a number of years later and the statute of limitations had expired.”   (Ibid.)  An additional problem recognized by the sponsor of the bill “is that some abusers, particularly those with authority over the child, threaten and intimidate the child in order to keep the activity secret.”  (Ibid.)  According to the sponsor, “one third of the children who have been sexually abused are six years of age or younger ․ [and] generally will not report the crime until they are much older․”  (Ibid.)   This is a factor which often motivates the abuser to choose younger victims.  (Ibid.)  The sponsor believed “that it is wrong to let child abusers go unpunished simply because their victims were too young to report the crime within the period prescribed in the statute of limitations.”  (Ibid.)

An earlier version of AB 782 did not contain the requirements specified in subdivisions (f)(1) and (2).   The earlier version permitted prosecution for what would ordinarily have been time-barred offenses as long as the felony complaint was filed within one year of the child-victim's report to a qualifying person or agency.  (Assem.Bill No. 782 (1989–1990 Reg.Sess.) May 4, 1989.)   The bill was subsequently amended to include subdivisions (f)(1) and (2) in recognition of concern that the original version “could raise false hope among victims and create undue pressure upon district attorneys to prosecute stale cases which would be unlikely to result in guilty verdicts.”  (Sen.Com. on Judiciary, Analysis of Assem.Bill No. 782 (1989–1990 Reg.Sess.) as amended May 17, 1989;  Assem.Bill No. 782 (1989–1990 Reg.Sess.) August 30, 1989, emphasis added.)   Addressing this concern, the Senate Judiciary Committee suggested the following alternative:  “One alternative would be to permit punishment of any sex crime within one year of its report to a responsible adult by a minor only if there is an act of sex abuse by the defendant against the same victim within the three or six year statute of limitations.  [¶] This would permit prosecutors to focus on cases of continuing sexual abuse.   The passage of time since the earlier crime would be less of a factor because of the continuing nature of the offense.”  (Ibid.)  The latter suggestion was incorporated into the final version of the bill.

In view of the foregoing legislative direction, section 803(f)(1) and (2) must be construed as requiring that a minimum of two offenses be alleged, one committed beyond the general limitations period provided in section 800 or 801, and one committed within the period ordinarily applicable to the specified offenses.

[5] In sum, our analysis of section 803(f) indicates that it applies if (1) a criminal complaint is filed within one year of the date of a report;  (2) the report is made to a responsible adult or agency;  (3) the report is made by a child under 17 years;  (4) the report indicates that the child is a victim of an enumerated sex offense;  (5) the defendant has allegedly committed at least one offense outside the normal limitations periods specified in section 800 or 801;  and (6) the defendant has allegedly committed at least one offense within the normal limitation period for the enumerated offenses.

D. Applicability of Section 803(f)

[6] Having set forth section 803(f)'s requirements, we next apply them here so that we may determine whether appellant's prosecution was time-barred.   As discussed above, section 803(f) requires that a criminal complaint be filed within one year of the date of a report.

In this case, a felony complaint was filed on October 7, 1991, which was within one year of the March 5, 1991 report.   However, the complaint did not include the other allegations required under section 803(f).   For example, the complaint charged appellant with one count of violating section 288, subdivision (a), whereas section 803(f) requires that at least two offenses be alleged, one committed beyond the general limitations period provided in section 800 or 801, and one committed within the period ordinarily applicable to the specified offenses.   Further, section 803(f) requires allegations that a report was made to a “responsible adult or agency by a child under 17 years of age, that the child is a victim of a crime described․”  (§ 803(f).)   The October 7, 1991 complaint did not contain any such allegations.

An amended complaint was filed upon December 20, 1991, which was within one year of the March 5, 1991 report.   However, the amended complaint also failed to satisfy section 803(f)'s requirements.   The amended complaint charged appellant with one count of violating section 288, subdivision (a).   As discussed above, section 803(f) requires that at least two counts be charged.   Further, the amended complaint did not allege that a report was made to “a responsible adult or agency by a child under 17 years of age, that the child is a victim of a crime described․”  (§ 803(f).)

Thus, although the complaint and amended complaint satisfied section 803(f)'s requirement that a “criminal complaint may be filed within one year of the date of a report,” neither the complaint nor amended complaint met section 803(f)'s other prerequisites, since both the complaint and amended complaint only charged appellant with one count, and did not include allegations regarding the making of the report.

Further, the October 7, 1991, complaint and December 20, 1991, amended felony complaint charged a violation of section 288, subdivision (a).   Appellant was later charged and convicted of violating section 288, subdivision (b).   In addition, the October 7, 1991, complaint alleged that the crime occurred in 1989 and 1990.   The amended felony complaint alleged that the crime occurred between 1983 and 1988.   However, appellant was convicted of conduct occurring between January 1, 1985 and December 1, 1987.   Based upon these discrepancies, appellant contends that neither the felony complaint, arrest warrant, nor amended felony complaint tolled the one-year limitation period.

[7] In addressing appellant's contentions, we note that under section 804,7 a felony prosecution in this state is commenced upon the occurrence of certain specified events.   These events do not include the filing of a felony complaint.   Under section 804, prosecution commences upon any of the following events:  (1) the issuance of a valid arrest warrant;  (2) certification of a case to the superior court for trial;  or (3) the filing of an information in the superior court.

[8] Although section 803(f) refers to the filing of a criminal complaint, we believe that any of the section 804 events would also commence prosecution under section 803(f) and therefore toll the statute of limitations so long as the section 804 events occurred within one year of the report.   If the section 804 events occur within one year of the report, then section 803(f)'s time requirement is satisfied.   If section 803(f)'s time requirement is satisfied, then the essential purpose of section 803(f) is met.   What is important is that prosecution commence within one year of the report.   Whether the prosecution commences upon the filing of the complaint, issuance of the arrest warrant, certification of the case to superior court, or filing of the information is not dispositive so long as the one-year limitation period is satisfied.

[9] Further, the “accusatory pleading” is the first pleading of the People charging the defendant with the crime.  (§§ 691, subd. (d);  949;  950.)   In superior court, in felony prosecutions, the accusatory pleading is either an indictment brought by a grand jury (§§ 682, 737, 917, 949) or an information filed by the district attorney.  (§§ 682, 737, 739, 949.)   Since the accusatory pleading for a felony prosecution in superior court is not a complaint, we believe it would be unreasonable to insist that section 803(f)'s charging allegations be set forth in the complaint.

[10] Having decided that any of the section 804 events commence prosecution under 803(f), we conclude appellant's prosecution for violating section 288, subdivision (b) commenced on March 6, 1992, when the preliminary examination concluded and the magistrate bound appellant over for trial in the superior court.   Our reasoning is as follows.

First, under section 804, subdivision (c), a prosecution may commence when a case is certified to superior court.   Second, March 6, 1992, the date the case was certified, was within section 803(f)'s one-year limitation period.   As already noted, prosecution must commence within one year of the report.   The report was made on March 5, 1991.   In computing time, we exclude the first day and include the last day of the relevant period.  (Code Civ.Proc., § 12;  People v. Twedt (1934) 1 Cal.2d 392, 399, 35 P.2d 324.)   Thus, March 6, 1992, is within the one-year limitation period.

Third, although the magistrate held appellant to answer for the section 288, subdivision (a) charges in the amended felony complaint, the evidence at the preliminary examination gave appellant notice of the section 288, subdivision (b) charges.   The evidence supported charges of forcible lewd conduct.

Fourth, the fact that the preliminary examination evidence demonstrated forcible lewd conduct was demonstrated by the charges included in the March 23, 1992 information.   The original information, filed on March 23, 1992, charged appellant with six counts of violating section 288, subdivision (b).   Thus, the district attorney altered the charges from section 288, subdivision (a) to section 288, subdivision (b) based upon the preliminary examination evidence.

[11] Fifth, altering the charges from section 288, subdivision (a) to section 288, subdivision (b) was entirely proper.   Section 739 provides, in pertinent part, that “When a defendant has been examined and committed, ․ it shall be the duty of the district attorney ․ to file in the superior court ․ an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.”  (Emphasis added.)   Thus, an offense not charged in the felony complaint can still be charged by the information if shown by the preliminary examination evidence and if transactionally related to the crime for which the defendant was held to answer.  (People v. Thiecke (1985) 167 Cal.App.3d 1015, 213 Cal.Rptr. 731;  People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516, 223 Cal.Rptr. 741;  People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 6 Cal.Rptr.2d 242.)

Indeed, evidence at the preliminary examination often results in prosecutors charging defendants with offenses different from the offense for which the defendant was held to answer.   For example, a defendant was held to answer for manslaughter and then charged with murder.  (People v. Bird (1931) 212 Cal. 632, 644, 300 P. 23;  People v. McGee (1947) 31 Cal.2d 229, 233, 187 P.2d 706.)   A defendant was held to answer for receiving stolen property and then charged with grand theft.  (People v. Lancellotti (1957) 147 Cal.App.2d 723, 728, 305 P.2d 926.)   A defendant was committed for violating section 288.   Defendant was subsequently charged with violating 288a and with assault with a deadly weapon.  (People v. Evans (1952) 39 Cal.2d 242, 249, 246 P.2d 636.)

Accordingly, since appellant was put on notice of the section 288, subdivision (b) charges by virtue of the evidence at the preliminary hearing, we conclude his prosecution for violating section 288, subdivision (b) commenced on March 6, 1992, when the case was certified to the superior court, and which was within one year of the date of the March 5, 1991 report.

We must next determine whether the report was made to a responsible adult or agency;  whether the report was made by a child under 17 years;  and whether the report indicated that the child was a victim of an enumerated sex offense.  (§ 803(f).)   All these requirements were satisfied.   Appellant admitted that Shawna, while under the age of 17, reported the molestation allegations on March 5, 1991 to Caryn Arquette, who qualified as a responsible person within the meaning of section 11166.

[12] Finally, we must decide whether section 803(f)(1) and (2) were met.   As already discussed, section 803(f)(1) and (2) require a minimum of two offenses, one committed beyond the general limitations period provided in section 800 or 801, and one committed within the period ordinarily applicable to the specified offenses.   As we shall explain, these requirements were satisfied.

The preliminary examination evidence established probable cause to believe appellant had committed two predicate offenses.   The following evidence was presented at the preliminary examination.   Shawna was born on March 25, 1981.   At the time of preliminary hearing, she was ten years old.   In 1991, Shawna disclosed that she had been molested.   She told a woman who spoke to her class about the incidents.   Shawna said the molests started about one or two months after appellant, Shawna, and her mother moved into a house in San Jose.   The house was located at 1453 Revere Avenue.   Shawna said appellant molested her every week during the time they lived in the San Jose house.   They moved into the house in 1985.   They moved out of the house in 1988.

Among other things, appellant orally copulated Shawna, touched her vagina, and attempted an act of vaginal intercourse.   Appellant also forced Shawna to orally copulate him, and touch his penis.   Appellant threatened to hurt Shawna's mother if Shawna told anyone about his conduct or refused to engage in the sex acts.   The molestations occurred at different times of the day and usually took place in appellant's bedroom.   Appellant also coerced the victim into watching pornographic movies by threatening to hurt Shawna's mother.

This evidence established probable cause to believe the predicate offenses were committed.   Shawna said the molests occurred every week they lived in the San Jose house.   They lived in the San Jose house from 1985 to 1988.   Since prosecution for the section 288(b) charges commenced on March 6, 1992, any molests that occurred in 1985 were outside the six-year limitation period.   Similarly, any molests that occurred in 1987 were within the applicable six-year limitation period.

The March 23, 1992 information also charged appellant with committing the predicate offenses.   The information charged appellant with six counts of forcible lewd conduct under section 288(b).   Counts 1 and 2 alleged that the criminal acts occurred between January 1, 1985 and December 31, 1985.   Counts 3 and 4 alleged that the lewd conduct occurred between January 1, 1986 and December 31, 1986.   Counts 5 and 6 alleged lewd acts occurring between January 1, 1987 and December 31, 1987.

Thus, the offenses charged in counts 1 and 2, occurring between January 1, 1985, and December 31, 1985, were outside the six-year limitation period.   Further, the offenses in counts 5 and 6, occurring between January 1, 1987 and December 31, 1987, were within the six-year limitation period.

Finally, we must consider the effect of the amendment of the information.   As already noted, prior to trial, the information was amended.   The amended information alleged that each of the offenses occurred between January 1, 1985 and December 1, 1987.   Appellant was convicted of all six counts.   However, because the information was amended, it is impossible to determine whether the jury convicted appellant of crimes both within and beyond the six-year limitation period.   Does this fact mean that section 803(f)'s requirements were not met?   We conclude it does not.

[13] In reaching our result, we consider what must be proved before section 803(f)(1) and (2) are satisfied.   Must the defendant actually be convicted of two offenses, one within the limitation period, and one beyond it, before the jurisdictional requirement is met?   As we shall explain, a defendant's conviction of the two predicate offenses is not a prerequisite for invoking section 803(f)'s extended limitation period.

First, section 803(f) is unusual because the extended limitation period is conditioned upon there being at least two offenses, one within the statutory period and one beyond it.   Thus, unlike most limitations periods, which simply focus upon when the crime occurred and when the prosecution was commenced, section 803(f) also requires more than one incident of criminal conduct.   However, this “twist” should not mean the limitations issue cannot be resolved until the defendant is convicted.   Instead, if the preliminary examination evidence shows there is probable cause to believe a defendant committed the two predicate offenses, then section 803(f)(1) and (2) are satisfied.

Although appellant cites People v. Zamora (1976) 18 Cal.3d 538, 134 Cal.Rptr. 784, 557 P.2d 75, Zamora supports our result.   In Zamora, defendants claimed their grand theft convictions were barred because the theft was not discovered within the three-year limitation period.   The Supreme Court agreed.   In its decision, the court noted that the trial court had held a pretrial evidentiary hearing to determine whether reasonable diligence had been exercised to discover the thefts.   At the conclusion of the hearing, the trial court decided the pleading established reasonable diligence.   The issue was raised again at trial.   The jurors were instructed on issues related to the discovery question and the issue of reasonable diligence.   Although the jurors convicted the defendants, the California Supreme Court concluded there was not substantial evidence to support the jury's finding that the thefts were discovered within three years before the indictment was filed.  (Id. at p. 565, 134 Cal.Rptr. 784, 557 P.2d 75.)   For this reason, the court reversed the grand theft convictions.  (Id. at p. 574, 134 Cal.Rptr. 784, 557 P.2d 75.)

In discussing the trial court's evidentiary hearing on the discovery issue, Zamora noted, “In our earlier discussion of the rationales underlying the statute of limitations, we referred to the rule that the statute of limitations may properly be raised at any time before or after judgment.  [Citations.]  However, [prior cases] have dealt only with cases in which the accusatory pleading is deficient on its face, i.e., where it fails to plead facts showing that the prosecution is not barred by the statute of limitations.   The decision of the trial court in the instant case rested in large part on [a prior case] and the belief that since the statute of limitations is jurisdictional [appellant] should not be forced to undergo a trial on many other issues when an early resolution of the limitation question might obviate the necessity of undertaking a more rigorous trial on the merits․  [¶] ․ We are aware of our past statements that the limitation issue is, upon proof of probable cause to believe that the statute is not a bar, a question for the trier of fact.   But the limitation question is a basic jurisdictional issue and the bar thereof is aimed as much at the prevention of untimely prosecutions as it is at the prevention of untimely convictions.   If it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earliest possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed․  We conclude therefore that a trial court has within its discretion the power to hold an evidentiary hearing for purposes of determining whether as a matter of law the statute of limitations bars the prosecution․  If the People prevail after such a hearing, then the limitation issue must still be resolved by the jury if it remains disputed by the defendant.”  (People v. Zamora, supra, 18 Cal.3d at pp. 563–564, fn. 25, 134 Cal.Rptr. 784, 557 P.2d 75, emphasis added.)

Zamora also noted that, “in order to hold a defendant over for trial the People bear the burden of producing evidence (either before the grand jury or at the preliminary hearing) which demonstrates that there is probable cause to believe that the prosecution is not barred by the statute of limitations.   [Citation.]  We believe that the committing magistrate or the trial court will be aided in making the probable cause determination by specific pleading on the limitation issue.”  (People v. Zamora, supra, 18 Cal.3d at p. 565, fn. 26, 134 Cal.Rptr. 784, 557 P.2d 75.)

Thus, Zamora said the People must prove, either before the grand jury or at the preliminary hearing, that there is probable cause to believe the prosecution is not barred by the statute of limitations.  (Id. at p. 565, fn. 26, 134 Cal.Rptr. 784, 557 P.2d 75.)   If the People prevail, then the limitations issue still must be resolved by the jury if it remains disputed by the defendant.  (Id. at p. 564, fn. 25, 134 Cal.Rptr. 784, 557 P.2d 75.)   In the case of section 803(f)(1) and (2), the defendant will likely always dispute the limitations issue if section 803(f)(1) and (2) are interpreted to require that the defendant be convicted of the two predicate offenses.   The defendant will always dispute committing the underlying offenses, just as the defendant in a non-section 803(f)(1) and (2) case, for example, will dispute committing the underlying offense.   Our point is that when Zamora refers to the defendant “disputing” the limitations issue, it does not mean that the defendant is disputing the underlying charge of criminal conduct.   Instead, when Zamora refers to the defendant disputing the limitations issue, it is referring to disputes over the timing of the crime, or when the crime was discovered.

Interpreting Zamora to mean anything else, as applied to section 803(f)(1) and (2), would raise several problems.   For example, suppose a defendant was convicted of five offenses beyond the applicable period and acquitted of the offense within the six-year period.   In such a case, if guilt of the two predicate offenses was a prerequisite to satisfying the statute of limitations, then defendant's convictions for the five offenses would have to be reversed because the defendant was not convicted of one of the predicate offenses.   Such a result would be highly inefficient and wasteful of judicial resources.   It simply does not make sense to conclude that the statute of limitations, a jurisdictional issue, is only satisfied if the defendant is convicted of at least two of the crimes (one within the limitation period and one beyond it) with which he is charged.

Further, as Zamora noted, the People must prove statute of limitations compliance by a preponderance of the evidence.   If the limitation question within section 803(f) was interpreted as requiring that the defendant be convicted of the two predicate offenses, then troubling questions could arise.   Would the jury have to be instructed twice?   Would the jury have to be instructed, for the purpose of the limitations question, to determine by a preponderance of the evidence that the two predicate offenses had been committed?   And then also instructed, for the purpose of convicting the defendant, to determine beyond a reasonable doubt whether the two offenses were committed?

[14] Accordingly, under section 803(f), the defendant does not have to be convicted of the two predicate offenses before the jurisdictional requirement is satisfied.   It is enough if the People establish at the preliminary hearing probable cause to prosecute the defendant for the two predicate offenses.   If the People do so, and the defendant disputes issues related to the timing of the crimes or the report, then those timing issues are for the jury to resolve.  (People v. Zamora, supra, 18 Cal.3d at p. 564, 134 Cal.Rptr. 784, 557 P.2d 75.)

In this case, the preliminary examination evidence demonstrated probable cause to prosecute appellant for crimes occurring both within the six-year limitation period and beyond it.   Moreover, there were not any disputed limitations issues at appellant's trial.   Appellant did not dispute when the molests occurred—he did not claim that he could not have committed the 1985 acts because, for example, he was not at that time living with Shawna's mother, or was out of the area.   He did not deny being present in the house from 1985 through 1987 when the acts where alleged to have occurred.   Appellant simply denied committing the acts.  “[I]t is unlikely appellant's ability to defend was prejudiced [by any amendment of the date of the offenses, particularly where] his defense was not a specific alibi but a denial that molestations occurred at all.  [Citations.]”  (People v. Gil (1992) 3 Cal.App.4th 653, 659, 4 Cal.Rptr.2d 697, citing People v. Jones (1990) 51 Cal.3d 294, 319, 270 Cal.Rptr. 611, 792 P.2d 643.)

[15] Because appellant did not have to be convicted of the two predicate offenses, and because no limitations issues were disputed by appellant at trial, the fact that the information was amended does not make section 803(f) inapplicable.   It is of no significance that the amended information charged that all six counts occurred between 1985 and December 31, 1987.  (Cf. § 1009.)

Our analysis would be different if amending the information had made it impossible for section 803(f)(1) and (2) to be satisfied so that it was clear from the face of the pleading that the two predicate offenses were not alleged.   For example, if the information was amended to only charge acts in 1984, then the amendment would obviously be improper.8  In such a case, the amended pleading would show on its face that the prosecution was barred by the statute of limitations.  (Cf. People v. Padfield (1982) 136 Cal.App.3d 218, 226–227, 185 Cal.Rptr. 903 [where pleading facially insufficient, power to proceed gone but where pleading facially sufficient, statute of limitations becomes evidentiary issue subject to waiver].)

However, in this case, the preliminary examination evidence established probable cause to prosecute appellant for the predicate offenses, the original information showed that appellant was charged with offenses satisfying section 803(f)(1) and (2), and the amended information also charged crimes covering the time period both within and beyond the applicable limitation period.   Further, appellant did not dispute the times in which the crimes were alleged to have occurred.   Quite plainly, appellant received adequate notice of the timing of the crimes for which he was convicted and those crimes were within the period contemplated by section 803(f)(1) and (2).  (Cf. In re Davis (1936) 13 Cal.App.2d 109, 113, 56 P.2d 302 [proper to amend information to change the date of the offense charged so that limitation period satisfied].)

Moreover, the trial testimony reveals that the abuse began in 1985.   Even if all six counts occurred between 1985 and March 6, 1986, and were therefore outside the six-year limitation period, appellant was still at all times aware 32 the charges included conduct in 1985.   As noted, 1985 was the year they moved into the San Jose house, and 1985 was consistent with the evidence at the preliminary examination, the charges contained within counts 1 and 2 of the information, and also covered by the amended information.  (Cf. People v. Winters (1990) 221 Cal.App.3d 997, 1004, 270 Cal.Rptr. 740.)

By contrast, if all six counts were based upon conduct after March 6, 1986, then the conduct was within the ordinary six-year limitation period, and would not be time-barred in any event.

An examination of the competing policy considerations at issue also supports our construction.   Historically, the enactment of statutes of limitations has been motivated by various factors.  “To some extent, the concept of a period of limitation developed in recognition of the ever increasing difficulty faced by both the government and a criminal [appellant] in obtaining reliable evidence ․ as time passes following the commission of a crime.”  (People v. Zamora, supra, 18 Cal.3d at p. 546, 134 Cal.Rptr. 784, 557 P.2d 75.)   The “possibility of self-reformation by the criminal offender” was also viewed as a factor which could “lessen the need for society to impose corrective sanctions.”  (Id. at p. 547, 134 Cal.Rptr. 784, 557 P.2d 75.)  “Statutes of limitation also encourage the swift and effective enforcement of the law, hopefully producing a stronger deterrent effect․  Finally, adoption of a period of limitation represents a legislative recognition that for all but the most serious offenses (such as murder or kidnaping) a never-ending threat of prosecution is more detrimental to the functioning of a civilized society than it is beneficial.  [Citations.]”  (Ibid.)

In contrast, section 803(f) was enacted in order to ease the jurisdictional requirements in cases of continuing sexual abuse committed against child victims.   Given this fact, it would be anomalous to decide that the jurisdictional finding could never be made until after a verdict had been reached, or that an amendment such as occurred here could never occur.

Further, in these cases, many of the policy considerations underlying statutes of limitations are patently inapposite.   Although the statutes of limitations were enacted in part to protect a defendant from having to defend against stale charges, section 803(f) encompasses only those cases involving continuing offenses, so that at least one of the charged offenses will have occurred within the general limitations period and “[t]he passage of time since the earlier crime [will] be less of a factor because of the continuing nature of the offense.”  (Sen.Com. on Judiciary, Analysis of Assembly Bill No. 782 (1989–1990 Reg.Sess.) as amended May 17, 1989.)   Moreover, in cases of incest or continuing abuse, the possibility of self-reformation has obviously not been realized.   By the same token, the deterrent effect achieved by swift enforcement of the law is also inapt where the offenses, by their very nature, are difficult to detect and often continue for many years.   Indeed, as noted above, the offender often victimizes young children, who because of their very youth and vulnerability, often do not report the molestations until after the ordinary statute of limitations has expired.

Further, as the Legislature recognized in its enactment of section 803(f), the enforcement of a strict limitations period which does not take into account the youth and vulnerability of the child-victim, would result in many child abusers “go[ing] unpunished simply because their victims were too young to report the crime within the period prescribed in the statute of limitations.”  (Sen.Com. on Judiciary, Analysis of Assembly Bill No. 782 (1989–1990 Reg.Sess.) as amended May 17, 1989.)   Thus, contrary to cases involving non-repetitive crimes where society's interest in prosecution diminishes over time, society's interest in maintaining its ability to prosecute offenders who engage in continuing acts of molestation increases over time and is motivated by the compelling need to protect our youngest and most vulnerable citizens.

By requiring the prosecution to establish probable cause to show a defendant has committed the two predicate offenses, the People are prevented from prosecuting stale charges.   At the same time, by not requiring the defendant to be convicted of the two predicate offenses, we avoid the possibility of having to invalidate convictions simply because the defendant was acquitted of an offense occurring within the ordinary limitation period.   In this way, we promote section 803(f)'s expressed policy of easing the jurisdictional requirement in cases of continuing sexual abuse against children.

In sum, because it would be anomalous to require that a defendant be convicted of the two predicate offenses before determining whether the statute of limitations was satisfied, because of the purpose of section 803(f)—to provide an extended limitations period for cases of continuing child abuse—and because the preliminary examination and trial evidence, the information and amended information all demonstrated that the charges included two predicate offenses, we conclude that section 803(f)'s extended limitation period applied to appellant's case.   Because section 803(f) applied, appellant's prosecution was not time-barred.

II–IX. **

Disposition

The judgment is affirmed.

ELIA, Associate Justice.

COTTLE, P.J., and BAMATTRE–MANOUKIAN, J., concur.