P. v. Manuel T.

Filed 11/20/06 P. v. Manuel T. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL T.,
Defendant and Appellant.
B188514
(Los Angeles County
Super. Ct. No. YA060900)
APPEAL from a judgment of the Superior Court of Los Angeles County, Francis
J. Hourigan III, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte,
Supervising Deputy Attorney General, and Dawn S. Mortazavi, Deputy Attorney
General, for Plaintiff and Respondent.
___________________________________

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Manuel T. appeals from the judgment entered following a jury trial in which he
was convicted of continuous sexual abuse of a child from July 1990 to July 1996 (the
information further alleged that the statute of limitations had been tolled) and a
postverdict plea of guilty to possession of methamphetamine. Defendant contends that
the trial court should have instructed, sua sponte, on the statute of limitations or
alternatively that such instructions should have been requested by trial counsel, and that
an upper term sentence was erroneously imposed. We affirm.
BACKGROUND
Defendant and Linda T. were husband and wife. At the time of trial they had six
children, ranging from 5 to 19 years of age. Kimberly T., the 19-year-old, was born in
1986. She had been placed with defendant and Mrs. T. as a foster child about July 1990,
and they adopted her four years later. Soon after Kimberly’s arrival in the home,
defendant began to sexually abuse her, primarily by committing acts of sodomy. The
sexual abuse continued for several years.
At one point during the 1995–1996 school year, Kimberly told a friend about
being molested. Kimberly testified that not long afterward her fifth grade teacher, Jeffrey
Siler, asked Kimberly if her father had been touching her. She said he had not. Mrs. T.
testified that she attended a meeting with defendant, Kimberly, Siler, and a school
representative. Kimberly was asked if defendant had been touching her and responded in
the negative. Siler told Kimberly that she had to apologize in front of the class for
making up a story.
In May 2004, Mrs. T. overheard an argument between Kimberly and defendant in
which Kimberly asked defendant if he remembered what he used to do to her and accused
him of being a child molester. Soon afterward, in response to Mrs. T.’s questioning,
defendant admitted, “‘Yes, I touched [Kimberly].’” Mrs. T. also heard defendant say to
Kimberly, “‘I’m sorry for what I did. I guess you’re going to be happy, because now
your mom is going to leave me.’”
Mrs. T. soon moved out of the home with the children and filed for divorce. She
did not immediately notify the police. Kimberly ultimately filed a complaint in

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December 2004. In investigating Kimberly’s allegations, a detective arranged to tape
record a telephone conversation between Kimberly and defendant. During the
conversation, defendant admitted that he had had sex with Kimberly and apologized for
his conduct.
In defense, defendant testified that he never had any sexual contact with Kimberly.
He asserted that Kimberly had a history of lying and blaming others and that Mrs. T.’s
testimony was untruthful. During the telephone conversation with Kimberly, defendant
lied about having molested Kimberly because Mrs. T. had advised beforehand “just to
play along with [Kimberly], then we can get on with our life when she goes to college.”
Teacher Siler testified that he did not recall either questioning Kimberly about improper
touching or meeting with her family on the subject.
DISCUSSION
1. Statute of Limitations
Defendant contends that the trial court prejudicially erred in failing to instruct, sua
sponte, and alternatively that trial counsel rendered ineffective assistance in failing to
request instructions, on the tolling of the statute of limitations under former Penal Code
section 803, subdivision (g) (further section references are to the Penal Code).1 We
disagree.
1 “In statutory amendments to section 803 in 2005, subdivisions (f) and (g) were
rewritten as subdivision (f) and former subdivision (h) was designated as subdivision (g).
[Citation.]” (People v. Linder (2006) 139 Cal.App.4th 75, 78, fn. 2.)
Former section 803, subdivision (g), which is now set forth in subdivision (f),
provided in pertinent part: “(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 . . . .
“(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.
(footnote continued on next page)

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As noted, Kimberly was born in July 1986, defendant was convicted of having
molested her between July 1990 and July 1996, and Kimberly first reported defendant to
the authorities in December 2004. Other than the allegation in the information of tolling
under former section 803, subdivision (g), the record contains no reference to the statute
of limitations.
The Attorney General argues that defendant has forfeited the statute of limitations
issue on appeal because he failed to raise it in the trial court. As stated in People v.
Williams (1999) 21 Cal.4th 335, 344, where, as here, the information contains tolling
allegations, a defendant may lose the ability to litigate this factual issue. Defendant
counters that Williams is inapplicable because Williams specifically left to “future courts”
“the rules to apply when the defendant does assert the statute of limitations at trial.” (Id.
at p. 345, fn. 3.) Defendant continues that he should be considered to have raised the
statute of limitations issue because tolling requires corroboration of the victim (former
section 803, subdivision (g)(2)(C)), and his trial defense included challenges to the
corroborating evidence.
Defendant has presented no authority to support his position that, by raising a
defense on the merits to the evidence presented against him, he should be credited with a
sub silentio challenge to a statute of limitations allegation. To the contrary, “[a]s a
general rule, the trial court need only instruct on the statute of limitations when it is
placed at issue by the defense as a factual matter in the trial. [Citations.]” (People v.
(footnote continued from previous page)
“(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.
“(3) No evidence may be used to corroborate the victim’s allegation that otherwise
would be inadmissible during trial. Independent evidence does not include the opinions
of mental health professionals.”

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Smith (2002) 98 Cal.App.4th 1182, 1192.) Because defendant did not raise a statute of
limitations issue at trial, his argument of sua sponte instructional duty must fail. We
therefore proceed to defendant’s alternative claim of ineffective counsel.
“To establish constitutionally ineffective assistance of counsel under either the
state or federal constitutional right to counsel, appellant must demonstrate (1) that his
attorney’s performance fell below an objective level of reasonableness, i.e., that counsel’s
performance was not within an objective level of reasonableness and thus did not meet
the standard to be expected of a reasonably competent attorney, and (2) that he suffered
prejudice as a result of that failure. . . .
“In addition, however, when the reason for counsel’s action or inaction is apparent
on the record, the court will determine whether that reason reflects reasonably competent
performance by an attorney acting as a conscientious and diligent advocate. If no
explanation appears, an ineffective counsel claim will be rejected unless the attorney was
asked for and did not offer an explanation, or there can be no satisfactory explanation.
[Citation.] In other cases the appellant is left to his remedy on habeas corpus where
evidence outside the record may shed light on the reason for the attorney’s action.”
(People v. Coddington (2000) 23 Cal.4th 529, 651–652, overruled on another point in
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.)
Defendant’s ineffective counsel claim fails under both prongs of this test. As
noted by defendant, the only aspect of tolling requirement that could possibly be in issue
was the existence of independent corroboration of Kimberly’s accusations. But had a
statute of limitations defense been raised, the jury would be instructed to find
corroboration by a standard less than reasonable doubt. (See People v. Linder, supra, 139
Cal.App.4th at p. 85 [“the prosecution’s burden of proof on the statute of limitations issue
is a preponderance of the evidence and as to the independent corroboration requirement,
clear and convincing evidence”].) A reasonably competent attorney trying this case
could well elect to forego a statute of limitations defense because the resulting
instructions would not only draw the jury’s attention to the strong corroborating evidence

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of the pretext telephone call, and do so under a standard of proof less than required for
conviction.
Nor did defendant suffer prejudice based on the lack of statute of limitations
instructions. “The failure to instruct on the need for corroboration is harmless where the
record contains substantial corroborative evidence. [Citation.]” (People v. Marquez
(1993) 16 Cal.App.4th 115, 122, disapproved on another point in People v. Cuevas
(1995) 12 Cal.4th 252, 275, fn. 5.) The pretext telephone call afforded such strong
corroboration here, defeating any claim of prejudice.
In addition, it is inconceivable defendant would have been convicted had the jury
doubted that the telephone call provided corroboration. Given the manner in which the
case was presented, the jury was required to determine that either Kimberly or defendant
was lying. If the jury had entertained a reasonable doubt that defendant was just playing
along during the telephone conversation as he claimed, he would have surely been
acquitted. That he was not cannot be blamed on the lack of instruction regarding the
statute of limitations. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1406 [“The
verdict demonstrates the jury disbelieved defendant’s entire testimony”].)
2. Sentencing
Defendant was sentenced to the upper term for continuous sexual abuse, the court
citing as factors in aggravation Kimberly’s vulnerability, defendant having taken
advantage of a position of trust, and defendant’s planning. Defendant argues that
notwithstanding the California Supreme Court’s opinion in People v. Black (2005) 35
Cal.4th 1238, judicial imposition of the upper term infringed his federal constitutional
jury trial right under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. We
recognize that Black will not be the final word on this issue. (See People v. Cunningham
(Apr. 18, 2005, A103501) [nonpub. opn.] cert. granted Feb. 21, 2006, No. 05-6551,
sub nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, ___ L.Ed.2d
___].) But for the time being, Black is the controlling authority. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, defendant’s contention must
be rejected.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO,, Acting P. J.
We concur:
ROTHSCHILD, J.
JACKSON, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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