Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-090481-3
Margulies, Acting P.J.
Defendant Khalid Nemati was convicted of conspiracy to commit computer fraud after becoming involved in a community college grade-changing scheme. He contends his prosecution was barred by the statute of limitations because it was not commenced until more than three years after the last act in furtherance of the conspiracy alleged in the information. He also argues his conviction for conspiracy was supported only by the testimony of coconspirators, in violation of Penal Code section 1111. We affirm.
All statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged in an information filed May 8, 2009, with one count of conspiracy to commit computer fraud. (§§ 182, subd. (a)(1); 502, subd. (c)(1)(A).) The information states the conspiracy extended from September 2003 through February 12, 2006, and alleges 29 specific overt acts, which occurred between December 2004 and March 2006. Expressly addressing the statute of limitations, the information alleges the conspiracy was not discovered until February 15, 2006, and asserts the prosecution is timely under sections 801.5 and 803, subdivision (c), which establish a statute of limitations for certain felony offenses of four years from the date of discovery.
Defendant was one of several persons involved in a scheme to alter grades recorded in the computer system of Diablo Valley College (Diablo Valley), a community college with an enrollment exceeding 20, 000 students. A student who worked in the Diablo Valley admissions office, Rocky Servo, was given access to the school’s records database and discovered he could alter student grades recorded in the system. At some point in 2003, Servo began to accept money in return for changing students’ recorded grades. When Servo was fired from his job for unrelated reasons in 2004, he recruited a coworker to carry on the grade-change operation. When this student transferred to another school in 2006, he passed the business to a third student. The operation unraveled in February 2006, when this third student was terminated from the admissions office and confessed to police.
All of the witnesses who testified about defendant’s involvement in the fraud were themselves participants in the conspiracy. Servo knew defendant, also a student at Diablo Valley, prior to the commencement of the scheme. At some point in 2004, Servo began accepting grade-change requests from defendant on behalf of other students. Defendant gave Servo envelopes containing the requests and money collected from the requesting students, and Servo made or arranged for the changes. Servo continued to accept such requests from defendant after he left the admissions office in September 2004, passing them to his successor, and eventually met with defendant “four or five” times, accepting “two or three” grade-change requests each time. Four Diablo Valley students each testified they gave defendant a list of classes and cash and later learned their grades had been changed. Three of these students later pleaded guilty to misdemeanor charges in connection with the changes. The fourth, Selymon Shahsamand, pleaded no contest, but the charges were later dismissed.
In his own testimony, defendant acknowledged a passing acquaintance with Servo, admitted knowing another witness, Montu Sharma, from the local mosque, conceded acquaintance with a third witness, Mateen Rooshen, and said a fourth, Shahsamand, looked familiar. He denied any involvement in the grade-changing scheme, but he was unable to explain why the witnesses chose to implicate him.
Defendant was convicted. Immediately following the verdict, the trial court determined the prosecution was not time-barred because it satisfied the four-year statute of limitations of sections 801.5 and 803, subdivision (c). There is no record of the statute of limitations being raised by the defense earlier in the proceedings, and the jury was not asked to make any findings with respect to the issue. Defendant was placed on three years’ probation.
The clerk’s minutes for the last day of trial, during which the jury was charged and completed its deliberations, suggest that at some point defendant made a motion to dismiss on the basis of the statute of limitations, but the reporter’s transcript does not record the making of the motion. It is therefore unclear from the record whether the motion was made before or after the case was submitted to the jury. In any event, there is no indication defense counsel asked that the issue of timeliness be resolved by the jury, rather than by the court.
II. DISCUSSION
Defendant contends his prosecution was barred for failure to satisfy the statute of limitations and his conviction was not supported by corroborating non-accomplice evidence, as required by section 1111.
A. Statute of Limitations
As a preliminary matter, the Attorney General contends the statute of limitations was not properly raised in the trial court because defendant did not move to dismiss the information. While recognizing the trial court expressly ruled on the timeliness of the prosecution, the Attorney General argues the ruling was made “because the information contained an allegation regarding the statue of limitations, which the court was required to address, ” rather than in response to a motion to dismiss. While we, like the Attorney General, have been unable to locate a motion to dismiss in the reporter’s transcript, the clerk’s minutes state that such a motion was made. In any event, a motion to dismiss is not a necessary prerequisite to our consideration of the timeliness of the prosecution. When the facts underlying a statute of limitations bar are apparent from the face of the charging document, as is the case here, the issue may be raised for the first time on appeal. (People v. Williams (1999) 21 Cal.4th 335, 339, 341; People v. Thomas (2007) 146 Cal.App.4th 1278, 1288.)
Defendant’s claim of untimeliness is based on the allegations of the information. The statute of limitations for conspiracy is generally held to be three years, commencing with the last overt act committed in furtherance of the conspiracy. (People v. Zamora (1976) 18 Cal.3d 538, 548–549 (Zamora); People v. Prevost (1998) 60 Cal.App.4th 1382, 1401.) The last overt act in furtherance alleged in the information occurred on August 16, 2005. The statute ran from that date until an arrest warrant was issued on September 30, 2008, more than three years later. (§ 804, subd. (d); People v. Castillo (2008) 168 Cal.App.4th 364, 370 [issuance of arrest warrant stops running of statute of limitations].) Accordingly, under the allegations of the information, the prosecution was not commenced until after the expiration of the statute of limitations.
Although the information alleged two overt acts in March 2006, these were acts of concealment that did not toll commencement of the statute of limitations. (Zamora, supra, 18 Cal.3d at p. 554.) A third overt act was alleged to have occurred in “Fall of 2005, ” but, in addition to being vaguely pleaded as to time, this act also appears to have been one of concealment rather than in furtherance.
The Attorney General argues, notwithstanding the allegations of the information, the prosecution satisfied the statute of limitations because (1) there was evidence at trial of acts in furtherance of the conspiracy as late as February 2006, thereby proving the prosecution timely under a three-year statute and rendering any error in the information harmless; and (2) the prosecution was, in any event, governed by the four-year statute of limitation in sections 801.5 and 803, subdivision (c). Because we agree with the Attorney General that evidence was presented at trial proving the prosecution was timely commenced under a three-year statute of limitations, we need not consider whether a four-year statute should be applied instead.
Defendant argues this issue was waived by the Attorney General’s failure to raise it until oral argument. (E.g., Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1613, fn. 2.) There is no doubt the Attorney General’s unexplained failure to raise this obvious and straightforward argument for affirmance until oral argument could be deemed a waiver. Because on this record the argument is essentially one of law, however, we decline to exercise our discretion to find waiver. (Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1.) By an order filed after oral argument, we provided both counsel a full opportunity to address the issue in writing.
Assuming the information was defective, defendant’s failure to challenge the accusatory pleading on statute of limitations grounds prior to or during the trial rendered the defect harmless if, as the Attorney General argues, the evidence presented at trial demonstrated a timely prosecution. In People v. Lewis (1986) 180 Cal.App.3d 816, the defendant was charged with murder but convicted of the lesser included offense of involuntary manslaughter. Although a prosecution for manslaughter was untimely when judged solely on the facts pleaded in the information, which did not allege a tolling event, the defendant did not raise the issue in the trial court, and the jury was not instructed with respect to the statute of limitations. (Id. at pp. 820–821.) On appeal, the defendant argued for remand on the basis of the failure of the information to plead a timely prosecution. The court acknowledged the failure to plead facts demonstrating timely commencement of the action was an error of “jurisdictional proportions.” (Id. at p. 821.) It noted, however, that a warrant for the defendant’s arrest had issued shortly after the commission of the crime, thereby tolling the statute of limitations. Because there was no dispute the prosecution was timely in fact, the court held, the failure to plead compliance with the statute of limitations was “harmless.” (Ibid.; see similarly People v. Price (2007) 155 Cal.App.4th 987, 997–998; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641–1642, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901 & fn. 3; People v. Posten (1980) 108 Cal.App.3d 633, 648.) Essentially the same conclusion was reached by People v. Williams (1999) 21 Cal.4th 335, in which the Supreme Court held that the failure to plead compliance with the statute of limitations could be raised for the first time on appeal. (Id. at p. 339.) When such a claim is made, Williams held, “If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing.” (Id. at p. 341, fn. omitted.) Presumably the defect in the pleading is rendered moot if the court determines that the action in fact was not barred. If the pleading defect alone were sufficient to bar the prosecution, there would be no point in examining the record or holding a hearing on the issue.
Because the arrest warrant issued on September 30, 2008, the prosecutor was required to prove that acts in furtherance of the conspiracy occurred after September 30, 2005, to demonstrate timely commencement of the prosecution under a three-year statute of limitations. (Zamora, supra, 18 Cal.3d at p. 548; People v. Castillo, supra, 168 Cal.App.4th at p. 370.) The evidence of such acts was abundant and undisputed. The immediate successor to Servo, Julian Revilleza, assumed grade-changing duties after Servo’s firing in 2004. Although Revilleza did not describe any specific grade changes after September 2005, it can be inferred from his testimony that he made such changes periodically but continuously from the time he took over from Servo until he transferred to another college in January 2006, after training his replacement, Jeremy Tato. Revilleza also testified that he continued to receive requests for grade changes even after leaving Diablo Valley. These he forwarded to Tato. Tato testified he made several grade changes between January and February 2006. Finally, the grade changes requested by Shahsamand and arranged by defendant occurred in February 2006. All of this activity was undertaken in furtherance of the conspiracy. Defendant does not argue otherwise. Accordingly, there is no question the prosecution was timely commenced under a three-year statute of limitations.
Revilleza did testify to making grade changes noted on exhibits introduced at trial that likely contained post-September 2005 activities. Based on the materials in the appellate record, we cannot be certain of the dates of these changes.
Defendant argues the state’s power to proceed was lacking as a result of the failure of the information to plead facts satisfying the statute of limitations. Assuming this was true at the time the information was filed, defendant waived any argument based on the pleading defect by failing to raise it prior to or during trial. (People v. Lynch (2010) 182 Cal.App.4th 1262, 1276–1277.) Any such error was rendered moot, as discussed above, by the proof at trial of a timely prosecution.
Defendant also faults the trial court for erroneously ruling that the prosecution was governed by a four-year statute of limitations. Any error in this ruling was harmless, however, since the evidence demonstrated a timely prosecution even under a three-year statute of limitations.
For two reasons, we find no substance in defendant’s claim that his trial attorney “could have offered a defense” regarding the statute of limitations if the trial court had not made its purportedly erroneous ruling. First, the trial court’s ruling did not occur until after the jury rendered its verdict. The ruling therefore had no effect on defense counsel’s conduct of the trial. Second, the claim is entirely speculative. The testimony supporting the occurrence of acts in furtherance of the conspiracy after September 2005 was substantial and undisputed. There is no basis in the record for believing defendant could have raised any credible defense on the grounds of statute of limitations, and appellate counsel merely states the claim in a conclusory manner, without suggesting any factual basis for such a defense.
In light of the clear and undisputed nature of the evidence of a timely commencement of the prosecution, on the record before us any failure by trial counsel to raise the issue of the statute of limitations prior to or during trial did not constitute ineffective assistance of counsel because it was not prejudicial. (E.g., People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.)
The timing of the trial court’s statute of limitations ruling also refutes defendant’s claim he was deprived of his right to have the jury resolve the issue. While a defendant is entitled to have genuine factual issues concerning the statute of limitations submitted to the jury, the failure to raise these issues prior to submission of the case to the jury waives this right. (People v. Lynch, supra, 182 Cal.App.4th at pp. 1276–1277.) The only indication in the record that defendant ever raised the statute of limitations is the trial court’s ruling, which responded to a motion to dismiss made after the close of evidence. In the absence of a timely request from defense counsel to submit the statute of limitations issue to the jury, there was no error in the court’s failure to do so.
Pursuant to section 1111, a defendant cannot be convicted solely on the testimony of an “accomplice, ” defined as a person who is liable to the prosecution for the same offense charged against the defendant. In its jury instructions, the trial court properly identified Servo and the four witnesses who testified they gave money to defendant as accomplices to the conspiracy and instructed the jury that additional corroborating evidence was required to tie defendant to the crime. Defendant contends the jury’s implicit finding of such evidence was unsupported.
The Supreme Court recently summarized the principles governing the corroborating evidence necessary to supplement accomplice testimony under section 1111: “The corroborating evidence may be slight and entitled to little consideration when standing alone. However, it must tend to implicate the defendant by relating to an act that is an element of the crime. It need not by itself establish every element, but must, without aid from the accomplice’s testimony, tend to connect the defendant with the offense. The trier of fact’s determination on the issue of corroboration is binding on review unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.” (People v. Nelson (2011) 51 Cal.4th 198, 218 (Nelson).)
There was no direct evidence of defendant’s involvement in the conspiracy outside the testimony of the accomplices. No written communications by defendant relating to the conspiracy were submitted. While there was documentary evidence confirming that grade changes occurred at the times and in the manner claimed by the witnesses who paid defendant, none of this documentary evidence mentioned defendant. Further, each of the non-accomplice witnesses either was unaware of defendant or was familiar with his name only because it had been mentioned by one of the accomplices during the investigation.
Nonetheless, we conclude adequate corroborating evidence was provided by defendant’s own testimony that he knew both Servo and three of the four witnesses who claimed to have given him money to obtain grade changes. This acknowledgment confirmed that defendant was in a position to play exactly the role the witnesses unanimously claimed for him: that of intermediary between Servo, who controlled access to the persons making the grade changes, and the students who provided money to obtain grade changes. As required by Nelson, the admission thereby tends to implicate defendant by relating to an element of the crime—the agreement necessary between participants in a conspiracy.
There is little doubt this evidence is circumstantial, of slight probative value, and, standing alone, does not itself prove any element of the crime, but none of these objections precludes its sufficiency as corroborative evidence under section 1111. (People v. Thompson (2010) 49 Cal.4th 79, 124.) “ ‘It is only required that the evidence “ ‘ “tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth.” ’ ” ’ ” (People v. Sanders (1995) 11 Cal.4th 475, 535.) Defendant’s acknowledged personal connections, and his inability innocently to explain their incriminating nature, permitted the jury to be reasonably satisfied that the common story of these witnesses was true.
III. DISPOSITION
The judgment is affirmed.
We concur: Dondero, J., Banke, J.