PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JERMAINE N. BEASLEY,
Defendant and Appellant.
No. B152073
Superior Court No.
YA046458 (Los
Angeles County)
Appeal from Superior Court of California, County of Los Angeles, Hon. Andrew Kauffman, Judge Presiding
MARTIN KASSMAN
ATTORNEY AT LAW
State Bar No. 136326
[Contact information, no longer current, appeared here.]
Attorney for Defendant and Appellant JERMAINE N. BEASLEY
III. Five of the Six Counts of Misdemeanor Assault Were Barred by the Statute of Limitations.
I. Introduction
Defendant and appellant Jermaine N. Beasley (hereafter Mr. Beasley) appeals from the Superior Court's order sentencing him to 15 years in state prison. (CT(1) 232-234.) A jury found Mr. Beasley guilty of 11 felony counts of inflicting corporal injury on a cohabitant, 3 felony counts of assault with a deadly weapon, and 6 misdemeanor counts of assault. (CT 181-200.) Mr. Beasley admitted the truth of an enhancement allegation that he served a prior prison term. (CT 202.)
The evidence regarding three of the eleven counts of inflicting corporal injury was not sufficient to allow a rational trier of fact to find Mr. Beasley guilty beyond a reasonable doubt. There was some evidence of a "traumatic condition" resulting from the behavior charged in either Count 6 or Count 8, but the evidence did not connect the injury to either specific count. There was no evidence of any traumatic condition resulting from the behavior charged in Count 10. The convictions on those counts must be reversed or modified to reflect convictions of a lesser included offense.
The evidence regarding two of the three counts of assault with a deadly weapon was not sufficient to allow a rational trier of fact to find Mr. Beasley guilty beyond a reasonable doubt. Neither the broomstick nor the vacuum cleaner extension used in the assaults charged as Counts 19 and 21 constituted a "deadly weapon," because neither object was used in a manner capable of producing, and likely to produce, death or great bodily injury. The convictions on those counts must be reversed or modified to reflect convictions of a lesser included offense.
Five of the six counts of misdemeanor assault were barred by the statute of limitations. The incidents charged in Counts 3, 5, 7, 9 and 11 all occurred more than one year before the prosecution was commenced. Mr. Beasley is entitled to assert the time-barred nature of those counts on appeal, even though he did not do so below. The convictions on those counts must be reversed.
II. Statement of Appealability
The judgment appealed from is final.
III. Procedural History
On February 1, 2001, the prosecution filed in Los Angeles County Superior Court an Information accusing Mr. Beasley of 12 felony counts of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) (Counts 1-2, 4, 6, 8, 10, 12, 14, 16-18, 20) and 9 felony counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (Counts 3, 5, 7, 9, 11, 13, 15, 19, 21). (CT 72-83.) The information also alleged that Mr. Beasley had previously served a prison term for a felony (Pen. Code, § 667.5). (CT 83-84.) Mr. Beasley pled not guilty to all counts and denied the special allegation. (CT 87.) Count 1 subsequently was dismissed after the defense pointed out that the criminal conduct described therein was alleged to have occurred more than three years before the complaint was filed. (CT 72-73, 91, 107.)
Jury trial began on June 25, 2001. (CT 130-131.) On June 29, 2001, the jury found Mr. Beasley guilty of the 11 remaining counts of inflicting corporal injury on a cohabitant; guilty of 3 counts of assault with a deadly weapon; and guilty of 6 misdemeanor counts of assault, a lesser included offense to assault with a deadly weapon. (CT 181-200.) Mr. Beasley then admitted the truth of the prior prison term allegation. (CT 202; RT(2) 556-561.)
At a sentencing hearing on July 30, 2001, the trial court sentenced Mr. Beasley to the upper term of four years in state prison on Count 2 and a consecutive one-year prison term (one-third of the mid term of three years) on each of the other ten counts of inflicting corporal injury on a cohabitant. (RT 565, 581-582; CT 232-233.)(3) The court added a consecutive one-year term for the prior prison term enhancement, for a total state prison commitment of 15 years. (RT 582-583; CT 232.) As to the three counts of assault with a deadly weapon, the trial court imposed the upper term of four years on each count and stayed the sentence pursuant to Penal Code section 654. (RT 581-582; CT 233.)(4) For each of the six misdemeanor counts of assault, the court imposed a 180-day county jail term, stayed pursuant to section 654. (RT 582; CT 234.)
Mr. Beasley filed a notice of appeal on July 30, 2001. (CT 235.)
IV. Facts
Gwilzen Rodil Garrido, aka Cheryl Garrido (hereafter Ms. Garrido), met Mr. Beasley on May 21, 1997. (RT 175.) Shortly after that, they began living together in Inglewood. (RT 176.)
Sometime around Ms. Garrido's birthday in March of 1988, the couple argued over Mr. Beasley's accusation that Ms. Garrido was cheating on him. Mr. Beasley grabbed a cable cord from the TV and whipped Ms. Garrido on the front of her thighs. The cord struck her more than three times, and she had bruises. (RT 177-179.)(5)
The next day, Ms. Garrido "got scared"; she called 911, then hung up. Mr. Beasley hit her on the chin with a curling iron; she could not recall at trial whether this happened before or after she called 911. (RT 182-184.) After Mr. Beasley took the phone off the wall and left, Ms. Garrido ran down the street to a pay phone and again called 911. (RT 185-186.) Officer Anne Bravo of the Inglewood Police Department came and talked to Ms. Garrido, who had a bruise on her chin and a "really small cut close to her shoulder, her collarbone is [sic]." (RT 187, 252, 292-293, 295-296.)(6) The wounds appeared fresh to Officer Bravo but did not require medical attention. (RT 252-253, 296.) Later that day, at Ms. Garrido's request, Officer Bravo took photographs of those injuries and of several bruises on Ms. Garrido's legs. (RT 188-189, 297-298.)
In May of 1998, Mr. Beasley and Ms. Garrido moved together to an apartment in Hawthorne. (RT 189-190.) Mr. Beasley left in August of 1998 but returned in May of 1999. (RT 190.) The windows in the apartment were covered with blinds, and each window had a plastic wand for turning and opening the blinds. (RT 191-192.) On more than one occasion in the summer of 1999, Mr. Beasley took a wand off the blinds and hit Ms. Garrido with it on her legs, back and arms. On the first occasion, Mr. Beasley hit her five or six times. The second occasion was shortly after that, but Ms. Garrido does not remember when during the summer these incidents happened. (RT 194-196.)(7) Ms. Garrido had big bruises on her legs, back and arms. (RT 196.) She did not receive any medical treatment for them. (RT 256-257.) She testified that she "wouldn't know" how many different times she suffered bruises from being hit with a plastic wand in the summer of 1999. (RT 196.) Around Christmastime in 1999, Mr. Beasley did the "same thing" again. Ms. Garrido said, "Stop. It hurts," but Mr. Beasley did not stop. (RT 198-199.)
In May of 2000, Mr. Beasley and Ms. Garrido moved to an apartment on Clyde Street in Los Angeles. (RT 203.) On July 3, 2000, Mr. Beasley grabbed a broomstick and hit Ms. Garrido "on top of my head really hard" with the handle. He hit her more than five times, "all over my head." Ms. Garrido was "seeing stars." When Mr. Beasley "went off to go look for something else to torture me with," Ms. Garrido armed herself with mace. When he returned, she sprayed him with it, then ran out of the apartment and down the street. She woke up in an ambulance and was taken to a hospital emergency room, where she was treated for head injuries and released. (RT 206-210, 309-310.)
A few days later, Mr. Beasley told Ms. Garrido to get down on her hands and knees, which she did. Mr. Beasley whipped her three or four times on her rear end with a belt. He also kicked her twice on her behind while wearing shoes. (RT 212-214.)(8) She suffered a bruise as a result but did not require medical treatment. (RT 218.)
On July 8, 2000, Mr. Beasley and Ms. Garrido took the bus to a Burger King in Inglewood. While the two were sitting in the restaurant, Mr. Beasley grabbed Ms. Garrido's cell phone and hit her in the mouth with it. Ms. Garrido's lip was "busted" and bleeding. (RT 218-220, 222-223, 270, 280, 323, 325-326, 328.)
The couple moved to Lawndale at the end of July or beginning of August of 2000. One day in November, Mr. Beasley hit Ms. Garrido twice with a vacuum cleaner extension. (RT 229-230.)(9) Ms. Garrido suffered bruises as a result. (RT 232-233.)
At some point after the vacuum incident, Mr. Beasley socked Ms. Garrido in the face with a clenched fist, which resulted in a bruise. She went to the sheriff's department and told an officer what Mr. Beasley had done. (RT 233-235.) Deputy Sheriff Ryan Campbell talked with Ms. Garrido at the Lawndale Service Center on November 19, 2000. She had "approximately a two-inch bruise to her right cheek" and a spot of dried blood on her right ear. (RT 347-349.) Deputy Campbell was given the name Jermaine Beasley as the suspect. (RT 351.)
About ten days later, according to Ms. Garrido, Mr. Beasley "beat me like he never beat me before." He beat her with a broomstick, socked her in the head and back, and kicked her a lot. (RT 236.) After he stopped, the couple got on a bus to go to Redondo Beach to pick up Mr. Beasley's check. On the bus, Mr. Beasley hugged Ms. Garrido with one arm while socking her on her side. When they exited the bus, Ms. Garrido ran into a bank and asked for help. Officers from the Redondo Beach Police Department came; Ms. Garrido told one of them that Mr. Beasley had beaten her. (RT 236-240.) The police took photographs, which depicted (among other things) bruises Ms. Garrido suffered on her arms and shoulders from the broomstick. (RT 240-241.) Redondo Beach Police Officer Mark Rodina arrested Mr. Beasley on November 27, 2000. (RT 384, 386-388.)
I. The Evidence Regarding Three of the Eleven Counts of Inflicting
Corporal Injury Was Not Sufficient to Allow a Rational Trier of Fact to Find Mr. Beasley Guilty Beyond a Reasonable Doubt.
The Due Process Clause of the Fourteenth Amendment requires that
a criminal conviction be based on evidence sufficient to "reasonably
support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia
(1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 99 S.Ct. 2781].) When a
conviction is challenged on the ground of insufficient evidence, the
appellate court must
review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Stanley (1995) 10 Cal.4th 764, 792.)
The offense of inflicting corporal injury on a cohabitant requires, among other things, that the infliction of injury result in a "traumatic condition." (Pen. Code, § 273.5, subd. (a).) The statute defines "traumatic condition" as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (Pen. Code, § 273.5, subd. (c).) As will be explained, there was evidence of a traumatic condition -- i.e., bruises -- with respect to either Count 6 or Count 8, but the evidence did not establish that the traumatic condition related to one count or the other. The evidence regarding Count 10 did not establish a traumatic condition at all.
Counts 6, 8 and 10 all were based on incidents in which Mr. Beasley allegedly beat Cheryl Garrido with a vertical blind wand (or "rod"). The information alleged, and the verdicts specified, that Count 6 occurred in July 1999, Count 8 in August 1999, and Count 10 in December 1999. (CT 76-78, 185, 187, 189.)
On direct examination, Ms. Garrido described two such incidents during the summertime of 1999. (RT 194-196.) The prosecutor then asked her about injuries:
Q Were you ever injured during the summer of 1999 as a result of him hitting you with the vertical blind rod?
A Yes.
Q Can you tell us about your injuries?
A I had big bruises all over my legs and my arms.
Q And -- and the summer of 1999, how many different times did you have any bruises from him beating you with the vertical blind rod?
A I had some bruises that was still healing, and I wouldn't know.
(RT 196.)
On cross-examination, Ms. Garrido responded affirmatively to questions in which defense counsel stated Ms. Garrido had testified that the first vertical blind wand incident occurred in July 1999 and the second in August 1999. (RT 256-257.) Ms. Garrido testified that she had not received any medical treatment for either incident. (RT 256-257). There was no other evidence about any injuries from the vertical blind wand incidents in the summer of 1999.
There was sufficient evidence to establish that Mr. Beasley struck Ms. Garrido with a vertical blind wand in July 1999 (Count 6) and again in August 1999 (Count 8). Mr. Beasley could properly have been convicted of the lesser included offense of battery on a cohabitant on both counts. (See People v. Jackson (2000) 77 Cal.App.4th 574, 580.)(10) There was, however, no evidence that the July 1999 incident (Count 6) resulted in a traumatic condition, and there was no evidence that the August 1999 incident (Count 8) resulted in a traumatic condition. The jury's guilty verdicts on the greater offense were unsupported as to Counts 6 and 8.(11)
Regarding the December 1999 incident (Count 10), there was no testimony about any resulting injury. (RT 198-199, 202-203.) The fact that Ms. Garrido told Mr. Beasley to stop hitting her with the wand because "[i]t hurts" (RT 199) does not establish a traumatic condition, for "the Legislature has differentiated infliction of pain from infliction of injury." (People v. Abrego (1993) 21 Cal.App.4th 133, 138; cf. People v. Jackson, supra, 77 Cal.App.4th at p. 578 ["The history of section 273.5 supports the inference that the Legislature intended to define a crime in which the corporal injury results from a direct application of force by the defendant upon the victim"].) In Abrego, the Court of Appeal rejected the prosecution's argument that the soreness and tenderness suffered by the victim were sufficient to constitute a traumatic condition within the meaning of section 273.5. The court held that the statute requires an "injury," such as a sprain, bruise, fracture, dislocation or concussion. (Abrego, supra, 212 Cal.App.4th at pp. 137-138.)(12)
For the foregoing reasons, as to Counts 6, 8 and 10, no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," even viewing the evidence in the light most favorable to the prosecution. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Johnson (1980) 26 Cal.3d 557, 576.) The requirements of due process were not satisfied. Accordingly, the judgment as to Counts 6, 8 and 10 must be either reversed or modified to reflect a lesser included offense that does not include the element of inflicting corporal injury resulting in a traumatic condition.(13)
II. The Evidence Regarding Two of the Three Counts of Assault with a
Deadly Weapon Was Not Sufficient to Allow a Rational Trier of Fact to Find Mr. Beasley Guilty Beyond a Reasonable Doubt.
The offense of assault with a deadly weapon (hereafter ADW) in
violation of Penal Code section 245, subdivision (a)(1), requires that a
defendant commit "an assault upon the person of another with a deadly
weapon or instrument other than a firearm or by any means of force likely
to produce great bodily injury." (Pen. Code, § 245, subd. (a)(1).) In the
instant case, the jury was instructed only on the theory that Mr. Beasley
assaulted Ms. Garrido with a deadly weapon, not that he assaulted her by a
means likely to produce great bodily injury. (CT 160; see RT 460-464
[discussion among trial court, prosecutor and defense counsel regarding
ADW instructions and arguments].) Even so, because this case did not
involve inherently dangerous weapons, any ADW convictions required the
jury to determine that the assaults were likely to produce great bodily
injury:
As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.
(People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
The trial court correctly instructed the jury on the meaning of "deadly weapon" and on the meaning of "great bodily injury," which "refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm." (CT 160; CALJIC No. 9.02 (6th ed. 1996).) The jury found Mr. Beasley guilty of three of the nine charged ADW counts (Counts 13, 19 and 21); it acquitted him of the other six counts by finding him guilty of the lesser included offense of misdemeanor assault. (CT 182, 184, 186, 188, 190, 192, 194, 198, 200.) As will be explained, the ADW convictions on Counts 19 and 21 were not supported by substantial evidence.
Count 19 alleged that Mr. Beasley assaulted Ms. Garrido "with a deadly weapon, to wit, broomstick," on or about November 27, 2000. (CT 82.) Ms. Garrido testified that, about ten days after a different incident in November 2000, Mr. Beasley "beat me like he never beat me before," "[w]ith a broomstick," socked her in the head and back, and kicked her. (RT 236.) Ms. Garrido did not directly state on what part of her body Mr. Beasley struck her with the broomstick; however, when being shown photos taken by a police officer, she testified as to a particular photo (Exhibit 8-D): "Those are from the broomstick that he hit me with earlier that day." (RT 241.) When the prosecutor asked what she was referring to, she testified: "My -- the bruises on my arms, my shoulders." (RT 241.)
The evidence on Count 19 was very different from that on Count 13, which showed that in July of 2000, Mr. Beasley struck Ms. Garrido on her head with a broomstick "really hard," and hit her on the head with it "more than five" times, to the point where she was "seeing stars." (RT 206-208.) As Division One of this Court observed long ago:
It has long been the established rule that in determining whether an instrument, not inherently deadly or dangerous, assumes these characteristics [of being used in such a manner as to produce great bodily injury], recourse may be had to the nature of the weapon, the manner of its use, the location on the body of the injuries inflicted and the extent of such injuries.
(People v. Russell (1943) 59 Cal.App.2d 660, 665, italics added.)
Striking a person on the arms or shoulders with a broomstick, blameworthy as it may be, is not likely to cause death or great bodily injury to the victim. The bruises on Ms. Garrido's arms and shoulders were "moderate harm," not "significant or substantial bodily injury or damage." (CALJIC No. 9.02 (6th ed. 1996).) No rational trier of fact could have concluded beyond a reasonable doubt that the broomstick was used in the November 2000 incident "in such a manner as to be capable of producing, and likely to produce, death or great bodily injury." (Ibid.; CT 160.)
Count 21 alleged that Mr. Beasley assaulted Ms. Garrido "with a deadly weapon, to wit, vacuum cleaner attachment," between November 1, 2000 and November 19, 2000. (CT 83.) Ms. Garrido testified that on one day in November 2000, Mr. Beasley struck her twice with a vacuum extension, made of "[p]lastic?," that was used to clean corners and ceilings. (RT 230.) She then testified as follows:
Q Where did he hit you?
A Over here and over here.
Q You're pointing to the back of your right arm or your right shoulder and your left side of your back?
A Yeah.
(RT 230-231.) Ms. Garrido testified that photographs taken by her cousin one week later showed "[m]y arm, my back, the bruise" from the vacuum extension. (RT 232-233.)
As with the broomstick in Count 19, the vacuum extension in Count 21 was not used in a manner capable of producing, and likely to produce, death or great bodily injury. Ms. Garrido suffered one blow with a plastic extension to her arm or shoulder on one side and one blow to the back on the other side, resulting in one or more bruises. Censurable as this assault may be, it did not constitute ADW, and no rational trier of fact could have found beyond a reasonable doubt that it did.
Because the evidence on Counts 19 and 21 could not "reasonably support a finding of guilt beyond a reasonable doubt," the ADW convictions on those counts violated Mr. Beasley's Fourteenth Amendment right to due process of law. (Jackson v. Virginia, supra, 443 U.S. at p. 318.) The judgment as to Counts 19 and 21 must be either reversed or modified to reflect the lesser included offense of misdemeanor assault, which does not include the element of use of a deadly weapon. (See CT 161, 163; CALJIC No. 9.00 (2002 rev.) (6th ed. 1996).)
III. Five of the Six Counts of Misdemeanor Assault Were Barred by the Statute of Limitations.
A. The Misdemeanor Assaults That Occurred More Than One Year Before the Information Was Filed on February 1, 2001, Were Time-Barred.
The Penal Code requires, with exceptions not applicable here, that "prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after the commission of the offense." (Pen. Code, § 802, subd. (a).) Misdemeanor assault -- of which Mr. Beasley was convicted in Counts 3, 5, 7, 9, 11 and 15 (CT 182, 184, 186, 188, 190, 194) -- is such an offense. (Pen. Code, § 241, subd. (a).) The applicability of the one-year statute of limitations is not affected by the fact that simple assault was a lesser included offense of ADW, rather than being explicitly charged in the information:
The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense.
(Pen. Code, § 805, subd. (b).)
Thus, in the absence of an explicit waiver of the statute of limitations (of which none appears in the record), Mr. Beasley could not properly be convicted of any misdemeanor assault that occurred more than one year before the prosecution commenced. (See Cowan v. Superior Court (1996) 14 Cal.4th 367, 376 ["There is no sua sponte duty to instruct on a time-barred offense for essentially the same reason there is no such duty to instruct on a lesser related offense: the defendant cannot properly be convicted of the lesser offense in either situation"].) For limitation purposes, a prosecution "commences" when any of the following occurs:
(a) An indictment or information is filed.
(b) A complaint is filed charging a misdemeanor or infraction.
(c) A case is certified to the superior court.
(d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.
(Pen. Code, § 804.)
Subdivisions (b), (c) and (d) of section 804 are inapplicable to the instant case. There was no complaint charging Mr. Beasley with misdemeanor assault. Mr. Beasley did not plead guilty before the magistrate, so there was no certification to the superior court.(14) Nor is there any indication in the record that an arrest warrant or bench warrant was issued; Mr. Beasley was arrested near the bank into which Ms. Garrido ran, after bank employees called the police. (CT 237.)(15) Under subdivision (a), therefore, the instant prosecution commenced when the information was filed, on February 1, 2001. (CT 72.)
The assaults of which Mr. Beasley was convicted in Counts 3, 5, 7, 9, and 11 all occurred more than one year before the prosecution commenced; i.e., they all occurred before February 1, 2000. (CT 182, 184, 186, 188, 190.) Accordingly, these five counts were barred by the statute of limitations, and Mr. Beasley could not properly be convicted of them. The judgment as to Counts 3, 5, 7, 9 and 11 must be reversed.
B. Mr. Beasley's Failure to Raise the Statute of Limitations Below Does Not Preclude Him From Raising It on Appeal.
Until recently, the California Supreme Court for many years "described the statute of limitations as limiting the court's subject matter jurisdiction and said that trial courts could not proceed in a time-barred case." (People v. Williams (1999) 21 Cal.4th 335, 337.)
Accordingly, "this court and the Courts of Appeal have repeatedly held that a defendant may assert the statute of limitations at any time." (Cowan v. Superior Court[, supra, 14 Cal.4th at p. 371].) In Cowan, we adjusted the rationale of these cases, although not their holdings, to accommodate a situation they did not anticipate. We held that the defendant "may expressly waive the statute of limitations when . . . the waiver is for his benefit" (id. at p. 370) and overruled language in prior cases "to the extent it suggests a court lacks fundamental subject matter jurisdiction over a time-barred criminal action." (Id. at p. 374.)
(Williams, supra, 21 Cal.4th at pp. 337-338.)
In Williams, the prosecution asked the Supreme Court to hold that the statute of limitations is an affirmative defense that is forfeited if the defendant does not assert it before or during trial. (Id. at p. 339.) The Supreme Court declined to "overrule entirely the previous line of cases"; it concluded "that a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense." (Id. at p. 338.) As to time-barred lesser included offenses, the court stated:
Conviction, by plea or otherwise, of a lesser offense than the one charged involves separate concerns and problems not present here. Issues regarding lesser offenses may arise in a variety of factual contexts. We express no opinion on the proper resolution of any such questions but leave them for future appellate courts to decide in cases that actually present them.
(Id. at p. 346.)
In a footnote, the court reiterated the advice it had given in Cowan -- that when a trial court considers instructing on lesser included offenses, it should determine whether there is a statute of limitations problem and, if so, elicit a waiver of the statute as a condition of giving the instruction. (Id. at p. 346, fn. 5.) The court added: "We leave to future courts, however, to decide the legal significance of the absence of an express waiver following conviction of a time-barred lesser offense." (Ibid.)
One published Court of Appeal opinion has addressed the issue left open in Williams. In People v. Stanfill (1999) 76 Cal.App.4th 1137, Division Two of the First District held:
[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense. In other words, a defendant must raise the issue in the trial court in order to preserve it for appeal.
(Id. at p. 1150, italics added.)
In stating that a defendant who acquiesces in instruction on lesser included offenses forfeits the right to complain that they are time-barred, the Stanfill court went further than necessary to decide the case before it, for in Stanfill, "the defense requested standard CALJIC instructions on . . . lesser offenses." (Id. at p. 1142, fn. 1, italics added.) In the instant case, there is no indication in the record that Mr. Beasley requested instruction on misdemeanor assault.
By the same token, there is no indication that Mr. Beasley objected to the instruction on misdemeanor assault, and this lack of objection might be regarded as acquiescence under the Stanfill analysis. Mr. Beasley respectfully submits, however, that the Stanfill dictum need not, and should not, be followed by this Court. As the Stanfill court recognized, its decision "contradicts a 27-year history of other Court of Appeal decisions -- some, incidentally, authored by justices who would later sit on the Supreme Court [citations]. There have been no minority decisions to the contrary . . . ." (Id. at p. 1153.) Stanfill is the first and only published opinion in California to hold that a criminal defendant forfeited the statute of limitations by failing to raise it in the trial court. It is by no means clear that the Supreme Court would agree; indeed, in her dissenting opinion in Williams, Justice Brown asserted that the majority opinion established a contrary rule:
Under the majority's "nonforfeiture" rule, a defendant could remain silent in the hope he would be convicted of the lesser included offense. [Citation.] If so, on appeal he could assert the statute of limitations and have the conviction reversed. . . . While the majority attempts to leave to another day the question of lesser included offenses [citation], the implications of the rule it affirms are in fact unavoidable.
(People v. Williams, supra, 21 Cal.4th at pp. 349-350 (dis. opn. of Brown, J.).)
It is true, as both Justice Brown and the Stanfill court noted, that a clever defendant could "sandbag" a trial court by deliberately keeping quiet about the time-barred status of lesser included offenses, persuading a jury to convict him of those offenses rather than the greater ones, then complaining on appeal that the lesser offenses were time-barred. (People v. Stanfill, supra, 76 Cal.App.4th at pp. 1146-1148.) Such a possibility could be foreclosed easily, if trial courts and prosecutors would follow the advice the Supreme Court gave in Cowan and reiterated in Williams -- to inquire into potential limitations problems before any instructions on lesser included offenses are given and to secure a waiver if necessary. (See id. at p. 1148 ["while Cowan has since urged all trial courts and prosecutors to beware of limitations problems and to secure an informed waiver as a condition of instruction whenever doubt arises [citation], the case before us shows that this advice is missing its audience. Stanfill was tried almost a year after Cowan was decided, yet the record shows no inquiry into the limitations problem and no waiver"].) Moreover, as the Stanfill court conceded, "a forfeiture rule could trap an unwary defendant who (1) did not know of the limitations bar, (2) was not apprised of it by trial counsel and (3) would not have wanted the lesser offense instruction had he known." (Id. at p. 1149.)
For the reasons stated, Mr. Beasley's failure to assert below that some of the misdemeanor assault counts were time-barred should not be regarded as a forfeiture of the issue. This Court should decide the statute of limitations issue on its merits.
For the foregoing reasons, the judgment as to Counts 6, 8, 10, 19 and 21 should be reversed or modified to reflect convictions of lesser included offenses; the judgment as to Counts 3, 5, 7, 9 and 11 should be reversed; and the matter should be remanded for resentencing.
Dated: January 26, 2002.
MARTIN KASSMAN
ATTORNEY AT LAW
[signature]
Attorney for Defendant and Appellant JERMAINE N. BEASLEY
1. "CT" refers to the Clerk's Transcript.
2. "RT" refers to the Reporter's Transcript on Appeal.
3. In its oral pronouncement, the trial court stated that it was imposing the four-year upper term on each of the subordinate corporal injury counts and "stay[ing] all but one-third of the mid term or one year." (RT 581-582.) The Abstract of Judgment sets forth the sentence as stated in the text. (CT 232-233.)
4. In its oral pronouncement, the trial court erroneously stated that Mr. Beasley was convicted of four counts of assault with a deadly weapon. (RT 581-582.) The Abstract of Judgment correctly reflects that there were three such counts. (CT 233.)
5. Testifying as the sole defense witness (RT 399-454), Mr. Beasley denied all of the alleged instances of physical abuse of Ms. Garrido, except for one incident on November 27, 2000, in which he admitted having punched and slapped her, essentially in self-defense (RT 415-416). The jury impliedly rejected Mr. Beasley's testimony by convicting him on all counts. The arguments in this brief concerning insufficiency of evidence rely solely on the prosecution's case. The factual summary in the text, therefore, omits Mr. Beasley's version of the events.
6. Officer Bravo testified that her contacts with Ms. Garrido occurred on March 24, 1998. (RT 293-297.) Ms. Garrido testified that the incident with the curling iron did not occur on that date. (RT 251.)
7. In cross-examining Ms. Garrido, defense counsel stated in his questions that Ms. Garrido had testified that the incidents occurred in July and August of 1999. Ms. Garrido affirmed these statements. (RT 256-257.)
8. Ms. Garrido testified on direct examination that Mr. Beasley instructed her to pull down her pants and that she did so. (RT 213.) On cross-examination, she admitted having previously told the prosecutor that she did not take her clothes off during this incident. (RT 261.)
9. When asked what the extension was made of, Ms. Garrido testified, "Plastic?" (RT 230.)
10. That the jury did not instead convict Mr. Beasley of the lesser included offense may be attributable to the trial court's confusing instructions. The court told the jury, "The crime of battery on a cohabitant is lesser to that of cohabitant beating, as charged in Counts 2, 4, 6, 8, 10, 12, 14, 16, 17, 18, and 20." (RT 522-523; CT 163.) The court never explained what constitutes "the crime of battery on a cohabitant." The court did set forth the elements of "a violation of Penal Code section 243, subdivision (e)(1), a misdemeanor." (RT 523-524; CT 164.) The jury, however, could not be expected to know that "a violation of Penal Code section 243, subdivision (e)(1), a misdemeanor" was the same as "the crime of battery on a cohabitant."
11. The trial court did not instruct the jurors that they must all agree that Mr. Beasley committed the same act. (See CALJIC No. 17.01 (6th ed. 1996).)
12. The Abrego court also rejected the prosecution's argument that the victim's emotional upset after the incident was enough to elevate the crime from simple battery to a violation of section 273.5: "the statute requires a 'corporal injury' rather than solely emotional harm." (Abrego, supra, 21 Cal.App.4th at p. 138.)
13. The Court apparently has discretion to modify the judgment rather than reverse it. In People v. Jackson, supra, in which Division Four of this Court found insufficient evidence to support a Penal Code section 273.5 conviction, the court held that Penal Code section 1181, subdivision 6, gave the court "the power to modify the judgment to a lesser, necessarily included offense [citation], which in this case is battery against a cohabitant in violation of Penal Code section 243, subdivision (e)(1)," and the court so modified the judgment and remanded the matter for resentencing. (People v. Jackson, supra, 77 Cal.App.4th 574, 580-581 & fn. 3.) In People v. Abrego, supra, Division Two of the Fourth Appellate District likewise found insufficient evidence to support a section 273.5 conviction. The court "modif[ied] the judgment under section 1260 to reflect a conviction for the lesser included offense of battery" and remanded the matter for resentencing. (People v. Abrego, supra, 21 Cal.App.4th at p. 138.)
14. One Court of Appeal decision appears to assume that a magistrate's holding a defendant to answer after a preliminary hearing constitutes the case's being "certified to the superior court" under subdivision (c). In People v. Angel (1999) 70 Cal.App.4th 1141, the defendant was held to answer on July 20, 1995, and an information was filed on August 3, 1995, after which there was a jury trial. (Id. at pp. 1143, 1145.) In the course of holding some of the counts time-barred, the Court of Appeal stated: "Under the facts of this case, then, the earliest prosecution can be said to have commenced is July 20, 1995, the date the case was certified to superior court. (§ 804, subd. (c).)" (Id. at p. 1146.) With due respect, the Angel court erred. The statute that sets forth the procedure for holding a defendant to answer does not speak of a magistrate's "certifying" the case. (Pen. Code, § 872.) The statute that governs felony guilty pleas before magistrates does require that a magistrate "certify the case" to the superior court. (Pen. Code, § 859a, subd. (a).) Moreover, if the Legislature had intended that a magistrate's holding a defendant to answer would "commence" a prosecution, there would have been no need to provide that the filing of an information commences a prosecution, for the latter is always preceded by the former. (Pen. Code, § 995, subd. (a)(2)(A).) In any event, in the instant case, it would make no difference to Mr. Beasley's limitation arguments if the date he was held to answer -- January 18, 2001 (CT 1-3, 68-71) -- were regarded as the date the prosecution commenced.
15. In People v. Angel, supra, the prosecution argued that the arrest of the defendant was the equivalent of the issuance of an arrest warrant under subdivision (d). The Court of Appeal rejected this argument: "[T]he statutory language is clear, and we are not free to interpret subdivision (d) of section 804 in such a way as to read the word 'warrant' out of existence. [Citation.] Moreover, subdivision (d) of section 804 is drawn from former sections 800 and 802.5. [Citation.] A review of the legislative history of former section 802.5 suggests the Legislature wanted those [sic] to be a finding of probable cause, by grand jury, magistrate, or judge, within the limitations period. [Citation.] In contrast to issuance of an arrest warrant, an arrest does not involve a finding of probable cause made by a neutral judicial officer or body." (People v. Angel, supra, 70 Cal.App.4th at p. 1146.)