People v. Lewis

• Decision Date: 06 May 1986
• Citation: 180 Cal.App.3d 816,225 Cal.Rptr. 782
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Joseph LEWIS, Defendant and Appellant. E001347.

Page 782

225 Cal.Rptr. 782

180 Cal.App.3d 816

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Joseph LEWIS, Defendant and Appellant.

E001347.

Court of Appeal, Fourth District, Division 2, California.

May 6, 1986.

Review Denied July 23, 1986.

[180 Cal.App.3d 819] Albert E. Hirst III, Redlands, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., John W. Carney and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

OPINION

HERRIN, Associate Justice. ^*

Charged by information with murder (Pen.Code, § 187), defendant Michael Joseph Lewis was tried to a jury and convicted of the lesser included offense of involuntary manslaughter (Pen.Code, § 192). An allegation of firearm use (Pen.Code, § 12022.5) was found to be true. Defendant has appealed from the judgment sentencing him to state prison for a term of six years.

On this appeal, defendant contends: (1) prosecution and conviction for manslaughter is barred by the statute of limitations; (2) the prosecution should not have been permitted to impeach a defense witness with alleged prior inconsistent statements, and (3) the upper term should not have been imposed.

FACTS

Defendant shot and killed Edward Patrick Dennick at the Silver Dollar Bar in Yucca Valley on January 29, 1980. Dennick arrived at the bar first. While playing pool, he told his brother he owed defendant $75. When defendant entered the bar, he motioned for Dennick to step outside.

The testimony at trial provided varying accounts of what happened next. According to one version, supported by the victim's brother and other prosecution witnesses, defendant drew a gun, placed it against Dennick's chest, and deliberately pulled the trigger. Dennick's brother and another man then jumped on defendant and tried to subdue him. During this struggle the gun discharged a second time. Defendant struggled free, waved the gun around, and fled in a truck owned by his employer.

According to defendant's testimony, supported to varying degrees by other evidence, he stepped outside to engage Dennick in a fist fight. During the fight Dennick drew a gun from his waistband. Defendant grabbed at the gun and struggled for possession. While doing so he was attacked by Dennick's brother and another man. During the struggle the gun discharged three times. After the third shot defendant found he had the gun in his hand. He waved the others away and escaped.

Autopsy evidence indicated that the victim was killed by a single bullet which was fired with the muzzle of the gun not more than one-quarter inch from the victim's skin. The bullet entered on the right side of the sternum in mid-chest, penetrated the heart and lungs, and exited on the left side of the back. If the victim was standing erect, the gun must have been tilted downward. If the gun was held horizontally, the victim must have been leaning forward.

Defendant did not return to his employment and abandoned his employer's truck near Hemet. During the following years, by his own admission, he lived under various aliases in Arizona, Texas, and Alabama. A warrant was promptly issued for defendant's arrest on a charge of murder but efforts to locate him were unsuccessful until March 1984 when defendant was found in Alabama under the name of Irving Jones.

I

While there is no statute of limitations for murder (see Pen.Code, § 799), the statute of limitations for manslaughter is three years, running from the date of commission of the offense. (Pen.Code, § 801.) At the time of the crime in the present case, in 1980, the statute of limitations was three years calculated from the discovery of the offense. (Pen.Code, former § 800.) The distinction between discovery and commission has no significance here, however, because the Attorney General concedes the crime was discovered as soon as it was committed.

The information charged only the crime of murder and did not include any allegations of circumstances to toll the running of the statute of limitations. A defense based on the statute of limitations was not raised at trial nor was the jury instructed on it.

For the first time on appeal defendant urges that his conviction is jurisdictionally defective because the information was filed more than three years after the crime was discovered and did not include tolling allegations. He relies primarily on People v. Rose (1972) 28 Cal.App.3d 415, 104 Cal.Rptr. 702, in which a defendant charged with murder was convicted of manslaughter and raised a statute of limitations defense for the first time on appeal. The reviewing court, per Kaus, P.J., stated:

"It has been the law of this state ever since People v. Miller, 12 Cal. 291, that on an indictment for murder--which crime is, of course, not governed by any statutory period--filed more than three years after the homicide, there can be no conviction for the lesser included offense of manslaughter unless the accusatory pleading shows some bar to the application of the statute of limitations. None having been alleged here, the conviction is jurisdictionally defective and must be reversed. (People v. McGee, 1 Cal.2d 611, 613 .) This holding is compelled not only by the law of this state but by the overwhelming weight of authorities. (See also People v. Picetti, 124 Cal. 361 ; see generally Annot. 47 A.L.R.2d p. 887.)" (People v. Rose, supra, 28 Cal.App.3d at p. 417, 104 Cal.Rptr. 702, fn. omitted. See also, People v. Morgan (1977) 75 Cal.App.3d 32, 35-37, 141 Cal.Rptr. 863)

In this case, as in Rose, the failure to plead and prove facts showing timely commencement of the action was an error of jurisdictional proportions. Unlike Rose, however, the error here was not prejudicial and does not require reversal of the conviction. This is so because the issuance of a valid warrant for defendant's arrest shortly after the commission of the crime is an undisputed fact and the issuance of the arrest warrant tolled the limitations period as a matter of law. The existence of an event tolling the period being an undisputed fact, the error in failing to plead that event or to prove it to the jury is harmless.

A similar situation was presented in People v. Posten (1980) 108 Cal.App.3d 633, 166 Cal.Rptr. 661. There, as in Rose, the limitations issue was evidently overlooked in the trial court and circumstances sufficient to toll the limitations period had not been alleged in the information or proven at trial. However, at oral argument the defendant conceded he had been incarcerated in an out-of-state prison during the time in question. The court affirmed the conviction, stating: "Nothing in the case law requires reversal or retrial for jurisdictional defects when those defects are as a matter of law cured on the undisputed record.... To decide otherwise in this case would be to require further proceedings at the trial level which could be of no legal benefit to the appellant but which would most certainly waste his time and the taxpayers' money." (People v. Posten, supra, at pp. 648-649, 166 Cal.Rptr. 661.)

In the instant case, the appellate record includes a copy of the warrant for defendant's arrest issued on January 31, 1980. The warrant is valid on its face and defendant has not suggested any possible defects in it, though invited to do so. Instead, defendant's only serious argument concerning the warrant is that use of the warrant to establish timely commencement of the action would be an unconstitutional ex post facto application of former section 802.5 of the Penal Code. ¹

In January 1980, when the crime was committed, former section 800 of the Penal Code provided that a felony prosecution was commenced for statute of limitations purposes by the finding of an indictment, the filing of an information, or the certification of the case to the superior court. (Stats.1978, ch. 663, § 8, pp. 2133-2134.) Circumstances sufficient to toll the limitations period were specified in former section 802 and did not include the issuance of an arrest warrant. (Stats.1951, ch. 1674, § 23, p. 3834.)

In 1981, former section 802.5 was added, providing: "The time limitations provided in this chapter for the commencement of a criminal action shall be tolled upon the issuance of an arrest warrant ..." (Stats.1981, ch. 1017, § 3, pp. 3927-3928.) Former section 802.5 went into effect on January 1, 1982.

Finally, in 1984, former sections 802 and 802.5 were repealed and the current sections 802, 803, and 804 were adopted. Under section 804, issuance of an arrest warrant is now a commencement of the criminal action rather than merely a circumstance tolling the statutory period.

Former section 802.5 became effective after defendant's crime was committed but before the expiration of the three-year limitations period for manslaughter. Under these circumstances, defendant is mistaken in his assertion that application of the new legislation (former section 802.5) would run afoul of the constitutional prohibition against ex post facto laws.

A law which increases a limitations period or provides a new method of tolling it may be applied immediately to all crimes as to which the period has not yet run under the prior law. (People v. Gordon (1985) 165 Cal.App.3d 839, 851, 212 Cal.Rptr. 174; People v. Sample (1984) 161 Cal.App.3d 1053, 1057, 208 Cal.Rptr. 318) As has been expressly held, "the application of section 802.5 to crimes committed before the enactment but prior to the expiration of the three-year statute does not violate the constitutional prohibition against ex post facto laws." (People v. Sample, supra, at p. 1057, 208 Cal.Rptr. 318.)

As Judge Learned Hand so aptly put it "Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its...