Summary
In McSherry, we also relied on subsequent acts of the Legislature "indicat[ing] its intent to adopt the San Nicolas result."
Summary of this case from Anthony v. Superior CourtOpinion
No. B181229.
September 28, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are those portions enclosed within double brackets, [].
Appeal from the Superior Court of Los Angeles County, No. BA271123, Paul Enright, Commissioner.
Robert S. Gerstein for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Leonard James McSherry appeals the judgment entered after conviction by jury of attempted molestation of a child under the age of 18 years with a prior conviction of a lewd act in violation of Penal Code section 288. (Pen. Code, §§ 664, 647.6, subd. (c)(2).)] The trial court found McSherry had three prior convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to a term of 25 years to life in state prison.
Subsequent unspecified statutory references are to the Penal Code.
In the unpublished portion of the opinion, we reject McSherry's claims of evidentiary and instructional error. In the published portion of the opinion, we reject McSherry's claim the prosecution of the charged offense was not commenced within the applicable limitations period.
FACTUAL BACKGROUND
1. The current offense.
On the morning of March 10, 2003, a schoolyard supervisor at Hoover Elementary School in Los Angeles saw McSherry sitting in an Oldsmobile near the tetherball courts where numerous third graders were at play. The passenger side window, which was closest to the schoolyard, was down and McSherry was looking in the direction of the children and masturbating. The schoolyard supervisor waved her arms to get McSherry's attention. Finally, she said, "Hey," and McSherry, who was still masturbating, turned, appeared surprised and drove away. Although the children could have seen McSherry from their location, none actually did.
2. The prior uncharged incident.
The trial court permitted the jury to hear evidence of a prior similar incident in 1972. With respect to this incident, Julia F. testified that one morning when she was in the ninth grade she passed a car occupied by McSherry as she walked to school in Long Beach. McSherry was sweating, breathing hard and masturbating. McSherry asked Julia F. if she were still a virgin. Julia F. ran to school and reported what had happened.
While being transported to the police station following his arrest for this incident, McSherry admitted to Long Beach Police Officer Jetta Rodda that he may have been masturbating when he asked a girl some questions, but he had a towel on his lap. McSherry indicated he liked to masturbate while looking at minors but denied he ever would expose himself.
CONTENTIONS
McSherry contends the trial court erroneously admitted evidence of the prior incident and improperly refused to permit the defense to establish the date of the prior incident. McSherry also contends CALJIC No. 2.50.01 permitted the jury to find he harbored the requisite intent to annoy or molest children if it found, by a preponderance of the evidence, that he committed the prior offense. In a supplemental opening brief, McSherry asserts the instant prosecution is barred by the statute of limitations.
DISCUSSION [] [[Begin nonpublished portion.]]
See footnote, ante, page 598.
[[1. Evidence of the prior similar incident properly admitted. a. Background. Before trial commenced, the People sought leave to introduce evidence of numerous prior similar incidents committed by McSherry in addition to the 1972 incident presented to the jury. These incidents consisted of McSherry's abduction and sexual abuse of a child, which resulted in conviction of a lewd act (§§ 288) in 1974, and McSherry's repeated presence at elementary and middle schools in 2002 and 2003, which resulted in his conviction of three counts of loitering around school grounds (§§ 653g) in 2003. During the investigation of the loitering offenses, a note that included a license plate number and the word "blonde" was found in McSherry's car. The registered owner of the vehicle had a nine-year-old daughter with blond hair. The trial court denied the People's request to present evidence of the 1974 conviction of a lewd act as too prejudicial and excluded evidence of the loitering incidents in 2002 and 2003 on the ground the time required to present the evidence exceeded its probative value. The trial court also admonished the prosecutor to ensure that no prosecution witness mentioned that McSherry had been incarcerated from 1988 until 2001. When the prosecutor expressed concern the trial court's ruling would permit McSherry to argue the 1972 incident had been an isolated event, the trial court indicated it would reconsider its ruling in that event. The prosecutor then proposed omitting the date of the 1972 incident and noted the jury would be able to estimate the date of the incident because Julia F. obviously had aged since that time. The trial court adopted the prosecutor's proposal. The trial court later indicated evidence of the date of the prior offense falsely would suggest McSherry had been a "fine, upstanding citizen" after 1972. Thereafter, in denying McSherry's motion for new trial based on the exclusion of evidence of the date of the prior incident, the trial court noted the probative value of the prior incident would have been substantially greater had the trial court permitted the People to introduce evidence of the 1974 incident, the 2002/2003 incidents and/or McSherry's incarceration. The trial court also observed there were many similarities between the 1972 incident and the charged incident, and it was obvious from Julia F.'s current appearance that the prior incident occurred a long time ago. b. McSherry's contentions. McSherry contends: evidence of the 1972 incident should have been excluded under Evidence Code sections 1101 and 352 because it was not sufficiently similar to the charged offense to be relevant to his intent in 2003 and because the prejudicial effect of the evidence outweighed its probative value; and the trial court erred in excluding evidence of the date of the 1972 incident. He also contends the giving of CALJIC No. 2.50.01 was error and that he was prosecuted untimely. (1) Evidence of the prior incident admissible on issue of specific intent. McSherry contends the 1972 incident was not sufficiently similar to the charged incident to warrant the inference he harbored the same intent on each instance. ( People v. Thompson (1980) 27 Cal.3d 303, 317, 320-321.) McSherry notes that in 1972, he called to the child and deliberately attracted her attention to the fact he was masturbating. However, in the current offense, McSherry did not seek to attract the attention of the children and none even looked in his direction. McSherry claims his conduct in the charged incident, if anything, reflects a change in disposition over the intervening 31 years such that it was an abuse of discretion to admit evidence of the prior incident. Additionally, McSherry asserts the probative value of the prior incident was outweighed by the danger the jury would be misled to find McSherry harbored the same intent in both incidents, thereby compensating for the lack of any such evidence in the current case. McSherry claims the jury naturally, but improperly, would use the prior incident to fill the evidentiary gap in the evidence of the current offense. McSherry's claims are not persuasive. Although uncharged misconduct is not admissible to prove criminal disposition (Evid. Code, §§ 1101, subd. (a)), it may be admissible to prove identity, intent, or the existence of a common design or plan, among other things (Evid. Code, §§ 1101, subd. (b)). ( People v. Carter (2005) 36 Cal.4th 1114, 1147; People v. Roldan (2005) 35 Cal.4th 646, 705; People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 401-402 fn. 6.) The ruling of a trial court on the admissibility of evidence of a prior uncharged offense is entrusted to the sound discretion of the trial court and will not be overturned except upon a finding of manifest abuse. ( People v. Carter, supra, at p. 1147; People v. Roldan, supra, at p. 705; People v. Kipp, supra, at p. 369.) The relevance of uncharged misconduct to prove identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between the uncharged misconduct and the charged offense. ( People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.) The greatest degree of similarity is required to be relevant on the issue of identity. ( People v. Ewoldt, supra, 7 Cal.4th at p. 403.) In contrast, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." ( People v. Steele (2002) 27 Cal.4th 1230, 1244; People v. Ewoldt, supra, at pp. 402.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" ( Ibid. People v. Carter, supra, 36 Cal.4th at p. 1149; People v. Kipp, supra, 18 Cal.4th at p. 371.) Here, the People had to prove McSherry had the specific intent to molest or annoy the children in the school yard, and that he was motivated by an abnormal sexual interest in children. ( People v. Lopez (1998) 19 Cal.4th 282, 289; People v. McFarland (2000) 78 Cal.App.4th 489, 494.) Accordingly, the prior similar incident, which included McSherry's admission that he enjoyed masturbating while looking at children, was material and relevant to an issue that was central to the case, namely, whether McSherry harbored the specific intent required for the charged offense. Contrary to McSherry's contention, the 1972 offense was sufficiently similar to the charged offense to permit the jury to infer that McSherry harbored the same intent on each occasion. Our Supreme Court repeatedly has "`"recognized `that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution."' [Citations.]" ( People v. Roldan, supra, 35 Cal.4th at p. 706.) Here, in both instances, McSherry drove to a school area where children were present, parked his car where children could see him and masturbated while looking at children. These incidents were sufficiently distinctive to support the inference McSherry harbored the same intent on each occasion. Indeed, it is unlikely that McSherry committed such similar acts with dissimilar mental states. If anything, McSherry's claim the 1972 incident differed fundamentally from the charged incident went to the weight to be accorded the evidence, not its admissibility. (2) Evidence not made inadmissible by Evidence Code 352. Application of Evidence Code section 352 similarly does not require exclusion of the evidence. The prior offense was no more inflammatory than the charged offense and, because McSherry was arrested for the prior offense, it is unlikely the jury would have been inclined to punish McSherry for the prior offense. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Ortiz (2003) 109 Cal.App.4th 104, 118.) Additionally, the trial court excluded extensive evidence McSherry frequented schools in 2002 and 2003, and that he had been convicted of a lewd act in 1974. These incidents would have reflected adversely on McSherry's intent and would have demonstrated that McSherry continued to commit sexual offenses against children after the 1972 incident. McSherry seeks to avoid this conclusion by arguing the loitering incidents of 2002 and 2003 would have undercut any claim of similarity between McSherry's current conduct and his behavior in 1972 because these most recent incidents all involved McSherry driving in a car or riding a bicycle near places were children gather but doing nothing to attract their attention. Thus, this evidence would have supported the conclusion McSherry's conduct in 1972 did not reflect his intent in the charged offense. However, it appears to be rather obvious that evidence of these similar incidents would have permitted the jury to infer that McSherry harbored an abnormal sexual interest in children and thus was relevant to his intent in the current offense. The trial court also excluded evidence of McSherry's incarceration, which would have demonstrated McSherry's inability to commit similar offenses between 1988 and 2001. Based on McSherry's incarceration, the trial court properly could determine the hiatus between the prior offense and the charged offense had little impact on the probative value of the evidence. (See People v. Steele, supra, 27 Cal.4th at p. 1245.) In any event, the similarities between the prior offense and the charged offense outweighed the remoteness of the prior offense. Accordingly, the trial court reasonably could conclude that remoteness did not require exclusion of the evidence. ( People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch (2001) 91 Cal.App.4th 274, 284-285.) In sum, the trial court committed no abuse of discretion in permitting the People to introduce evidence of the 1972 incident. To the contrary, the trial court's ruling reflects a thoughtful balancing of McSherry's right to a fair trial against the People's right to prove their case. (3) No reversible error in exclusion of evidence of the date of the prior incident. McSherry contends it is reasonably probable he would have obtained a more favorable result had he been able to introduce evidence of the date of the prior incident. He claims this evidence would have shown the prior incident to have been remote in time, a factor that is highly relevant in determining the weight to be given the evidence. McSherry asserts the fact he may have intended to annoy the victim in 1972 would have been diminished in the minds of the jurors if they had known it occurred 31 years earlier. McSherry concludes the trial court's ruling imposed a substantial limitation on his ability to present a defense and the error requires reversal. Putting aside the fact McSherry did not object specifically to the exclusion of evidence of the date of the prior incident (see People v. Harris (2005) 37 Cal.4th 310, 341), no abuse of the trial court's discretion appears. As previously noted, the trial court adopted the prosecutor's suggestion to omit evidence of the date of the 1972 incident in order to reduce the possibility the jury would discount the probative value of the incident due to its age. In making this ruling, the trial court properly balanced the competing factors and reasonably concluded that, in order to avoid giving the jury a false impression of McSherry, and to avoid presenting evidence of his other offenses and/or his incarceration, it was appropriate to exclude evidence of the date of the prior offense, which might have allowed McSherry to argue the 1972 incident had been an uncharacteristic and isolated event. Moreover, any error must be seen as harmless. Based on Julia F.'s appearance at trial and her testimony the incident occurred when she was in the ninth grade, the jury necessarily was aware that a significant period of time had elapsed between the prior incident and the charged offense. Thus, even without mention of the exact date of the prior incident, the passage of a substantial number of years was obvious to the jury. In any event, exclusion of the date of the prior incident did not prevent McSherry from arguing the prior incident was so different from the current offense that it was not reflective of his intent in 2003. Thus, exclusion of evidence of the date of the 1972 incident does not require reversal of McSherry's conviction. 2. CALJIC No. 2.50.01 did not relieve the People of the burden of showing McSherry was motivated by an unnatural interest in children. McSherry also contends CALJIC No. 2.50.01 improperly permitted the jury to infer a disposition to commit sexual crimes against children based on nothing more than proof of the prior offense by a preponderance of the evidence. He argues the cautionary language in CALJIC No. 2.50.01, that proof of the prior offense "is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime" does not tell the jurors that each element of the charged crime must be proved beyond a reasonable doubt. Given that the necessary intent may be established solely by reference to the prior offense, the trial court should have instructed the jury on the requirement that it find each element of the charged offense beyond a reasonable doubt as the trial court did in People v. Hill (2001) 86 Cal.App.4th 273, 278-279. People v. Reliford (2003) 29 Cal.4th 1007 rejected the claim that CALJIC No. 2.50.01 allowed the jury to find a charged sex offense proven beyond a reasonable doubt if it found the prior sex offense was proven beyond a reasonable doubt. ( People v. Reliford, supra, at p. 1015.) Reliford concluded a reasonable jury would not be misled by the instruction concerning either the purpose for which the evidence of prior misconduct could be used or the prosecution's burden of proving the current charges. ( Id. at p. 1013.) Reliford held that where a jury is instructed as to each element of the crime charged, the burden of proving each element beyond a reasonable doubt and on the requirement of joint operation of conduct and the requisite intent, there is no reasonable possibility the jury could be mislead to believe it could convict on the current charges solely on the basis of proof of prior uncharged offenses. ( Id. at pp. 1013-1016.) Because the trial court fully instructed the jury in this case, it was not error to give CALJIC No. 2.50.01. McSherry asserts Reliford is not responsive to the problem raised in a prosecution for a violation of section 647.6, subdivision (c)(2), which requires a showing the acts of the accused were "` motivated by an unnatural or abnormal sexual interest or intent with respect to children.'" ( People v. Maurer (1995) 32 Cal.App.4th 1121, 1127.) He claims that, if the jury found the prior incident true by a preponderance of the evidence, the instruction permitted it to infer a disposition to commit sex crimes relating to children, thereby fulfilling the motivation element of the current offense. This was prejudicial where the evidence related to the current offense, standing alone, did not establish beyond a reasonable doubt that McSherry harbored an unnatural or abnormal sexual interest in children. Accordingly admission of the prior incident was prejudicial. McSherry's attempt to distinguish Reliford is unavailing. As noted in Reliford, nothing in CALJIC No. 2.50.01 authorizes a jury to use the preponderance of the evidence standard in any context other than the preliminary determination of whether McSherry committed a prior sexual offense. The instruction explicitly indicated the People had the burden of proving McSherry's guilt of the charged offense beyond a reasonable doubt. Thus, there is no reasonable likelihood the jury would have considered the instruction to permit it to find an unnatural or abnormal sexual interest in children based solely on proof of the prior incident. Indeed, the instruction specifically told the jury a finding McSherry had committed the prior offense was not sufficient by itself to prove guilt and the inference to be drawn was "simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." Consequently, McSherry's claim of instructional error fails.]]
Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b) provides in part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . other than his or her disposition to commit such an act."
The trial court instructed the jury in the words of CALJIC No. 2.50.01 as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] "`Sexual offense' means a crime under the laws of the state or of the United States that involves any of the following: [¶] A. Any conduct made criminal by Penal Code section 314. . . . [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. It may also be considered to determine if the defendant had the necessary intent and motive to commit the present crime. If you find that defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged offense."
The trial court also instructed the jury pursuant to CALJIC No. 2.50.1 that: "You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crime or sexual offenses. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime."
3. McSherry was prosecuted timely.
The jury convicted McSherry of an attempt to annoy or molest a child under the age of 18 years. The offense of annoying or molesting a child under the age of 18 years generally is a misdemeanor that is punishable by a maximum term of one year in the county jail. (§ 647.6, subd. (a).) Where, as here, the defendant has a prior conviction of a lewd act in violation of section 288, the offense is a felony punishable by two, four or six years in state prison. (§ 647.6, subd. (c)(2).)
McSherry contends that because the conduct underlying his conviction is a misdemeanor violation of section 647.6, subdivision (a), the applicable statute of limitations is one year. (People v. Turner (2005) 134 Cal.App.4th 1591 [ 36 Cal.Rptr.3d 888]; § 802, subd. (a).) Because the information in this case was filed more than one year after the charged incident, McSherry concludes the conviction must be reversed. (People v. Williams (1999) 21 Cal.4th 335, 339-342 [ 87 Cal.Rptr.2d 412, 981 P.2d 42].)
Section 802, subdivision (a) directs that "prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense."
We disagree. In order to determine the applicable limitations period for an offense, section 805, subdivision (a), directs that we look to the "the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense." (§ 805, subd. (a).)
In a case involving a violation of former section 647a with a prior conviction of a lewd act, which is the precursor of section 647.6, subdivision (c)(2), People v. San Nicolas (1986) 185 Cal.App.3d 403 [ 229 Cal.Rptr. 650], held the statute of limitations period for prosecution of a violation of former section 647a varied according to the criminal history of the offender. Because the defendant in San Nicolas had a prior conviction of a violation of section 288, he was subject to imprisonment in the state prison. ( People v. San Nicolas, supra, at p. 406.) Accordingly, the three-year statute of limitations applied. (§ 801 [an offense punishable by imprisonment in the state prison shall be commenced within three years].)
Former section 647a provided: "Every person who annoys or molests any child under the age of 18 is a vagrant and is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment. Every person who violates this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or the county jail not exceeding one year. Every person who violates this section is punishable upon the second and each subsequent conviction or upon the first conviction after a previous conviction under section 288 by imprisonment in the state prison."
We find the reasoning of San Nicolas persuasive. Because section 647.6, subdivision (c)(2) is an "offense punishable by imprisonment in the state prison," the three-year statute of limitations applies. (§ 801.) Turner, the case McSherry relies upon, is distinguishable. The defendant in Turner was charged with residential robbery, which generally must be prosecuted within three years. The trial court ruled the allegation of prior convictions within the meaning of the Three Strikes law subjected the defendant to a maximum term of 25 years to life in state prison. Thus, the robbery was punishable by "imprisonment in the state prison for life" and therefore could be prosecuted "at any time." (§ 799.) Turner rejected this view and concluded the conduct underlying the conviction, regardless of any recidivism provisions, determines the limitation period. Thus, the three-year statute of limitations controls.
Applying Turner here, McSherry asserts that because the conduct underlying his conviction, absent McSherry's recidivism, constituted a misdemeanor, the applicable statute of limitations is one year. However, Turner involved the Three Strikes law, which constitutes an alternate sentencing scheme. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527 [ 53 Cal.Rptr.2d 789, 917 P.2d 628].) Thus, the term imposed under the Three Strikes law cannot be considered the "maximum punishment prescribed by statute for the offense" under section 805, subdivision (a). Accordingly, Turner properly rejected the trial court's reliance on the Three Strikes law to determine the statute of limitations.
On the other hand, annoying or molesting a child with a prior conviction of a lewd act in violation of section 288 is a felony punishable by a term of two, four or six years in state prison. (§ 647.6, subd. (c)(2).) Because the maximum term prescribed by statute for a violation of section 647.6, subdivision (c)(2), is six years, the applicable statute of limitations is three years.
Additionally, given the San Nicolas result in 1986, application of the misdemeanor statute of limitations in this case would run afoul of the rule of statutory construction that recognizes that where statutory language has been construed judicially, and the Legislature thereafter amends the statute but leaves the construed language intact, it is presumed the Legislature was aware of the prior construction and adopted it. (People v. Modiri (2006) 39 Cal.4th 481, 499 [ 46 Cal.Rptr.3d 762]; People v. Martinez (1995) 11 Cal.4th 434, 446 [ 45 Cal.Rptr.2d 905, 903 P.2d 1037].)
Applying that rule here, we note that former section 647a was judicially construed in San Nicolas and section 647.6, subdivision (c)(2), was a subsequent statute on a similar subject that used substantially similar language. At the time of San Nicolas, section 802, subdivision (b), provided prosecution for a misdemeanor violation of former section 647a committed upon a minor under the age of 11 years, could be commenced within two years after commission of the offense. (Stats. 1985, ch. 1172, § 2, p. 3957.) In 1991, the Legislature amended section 802, subdivision (b), to increase the applicable age of the child from 11 years to 14 years and to add an express reference to section 647.6. (Stats. 1991, ch. 129, § 1, p. 1328.)
The Legislature amended section 802, subdivision (b), again in 2002 to increase the limitation period for a violation of section 647.6 when the victim was under the age of 14 years from two to three years. (Stats. 2002, ch. 828, § 2.) By effecting these amendments without disturbing the judicial construction of the limitations period applicable to a violation of the precursor of section 647.6, subdivision (c)(2), the Legislature indicated its intent to adopt the San Nicolas result that the applicable statute of limitations for that offense is three years. (People v. Lopez (2003) 31 Cal.4th 1051, 1060 [ 6 Cal.Rptr.3d 432, 79 P.3d 548].)
This conclusion is buttressed by the legislative analysis of the bill effecting the 2002 amendment prepared by the Senate Committee on Public Safety, which indicated the applicable statute of limitations for child annoyance with a prior conviction was three years or more. The Assembly Committee on Public Safety similarly indicated that, "[i]n situations involving repeat offenders, the applicable statute of limitations is three years." (Assem. Comm. on Public Safety, Analysis of Assem. Bill No. 2499 (2001-2002 Reg. Sess.) as introduced on Feb. 21, 2002, p. 7.)
The full quote of the legislative analysis by the Senate Committee on Public Safety stated: "Under current law, if a person has previously been convicted of child annoying as a misdemeanor, a second or subsequent conviction is punishable as a felony. Existing law also provides that any person convicted of child annoying after a previous felony conviction for the same offense or other specified felony sex offenses is a felony, with an increased prison term. Sexually motivated touching against a child under the age of 14 [years] is a felony under Penal Code section 288(a). [¶ ] The applicable statutes of limitations for all of these felony offenses is three years or more, depending upon the penalty term, under current law." (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2499 (2001-2002 Reg. Sess.) as amended June 27, 2002, p. J.)
Based on these representations of the current law made to the Legislature by the various committees, the amendment of section 802 in 2002 demonstrates the Legislature's intent to adopt the reasoning of San Nicolas that a violation of section 647.6, subdivision (c)(2), is governed by the three-year period of limitations.
Consequently, we conclude the prosecution of McSherry, which was commenced within three years of the charged offense, was timely.
DISPOSITION
The judgment is affirmed.Kitching, J., and Aldrich, J., concurred.
Appellant's petition for review by the Supreme Court was denied January 17, 2007, S147951. Moreno, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.