People v. Everett

THE PEOPLE, Plaintiff and Respondent, v. KELVIN L. EVERETT, Defendant and Appellant. No. B111547 (Super. Ct. No. A041484) In re KELVIN L. EVERETT, on Habeas Corpus. No. B121604 California Court of Appeal Second Appellate District Division Seven Filed August 26, 1998 CERTIFIED FOR PARTIAL PUBLICATION*
        Petition for writ of habeas corpus considered with appeal from a judgment of the Superior Court of Los Angeles County. Richard R. Romero, Judge. Petition denied. Affirmed in part, reversed in part.

        Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

        Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

        A jury convicted appellant of kidnapping for the purpose of robbery (Pen. Code § 209, subd. (b); counts I and II; statutory references, unless otherwise noted, are to the Penal Code), robbery (§ 211; counts III and XIV), forcible oral copulation (§ 288a, subd.(c); counts V and XII), forcible rape (§ 261, subd. (2); counts VI and XIII), kidnapping (§ 207, subd.(a); counts X and XI) and found he had personally used a firearm (§ 12022.5) in the commission of each offense. Appellant was acquitted of one count of robbery (§ 211; count IV).
        In a bifurcated proceeding, the trial court found true allegations appellant had suffered five "serious felony" convictions (§ 667, subd. (a)(1)) and two state prison convictions (§ 667.5, subd. (b)).
        Appellant was sentenced to state prison for two consecutive life terms, with the possibility of parole, plus 63 years and 8 months.
        Appellant contends he was denied effective assistance of counsel, the trial court erred in admitting evidence he was arrested in New York, the prosecutor prejudicially appealed to jury sympathy, and the count III robbery sentence must be stayed pursuant to section 654.
        By supplemental letter brief appellant further contends the statute of limitations for each offense had expired before the information was filed, depriving the court of jurisdiction and requiring the reversal and dismissal of each offense.
        We find all but appellant's statute of limitations contention either moot or meritless. That contention requires the reversal of all counts except kidnapping for the purpose of robbery (counts I and II), which has no limitation period. We affirm those convictions and their enhancements.

FACTUAL BACKGROUND         The ten offenses involve two almost identical incidents, ¹ each involving a young couple at night in their car in Long Beach. Both occurred in 1988. We summarize each.

June 5, 1988 incident
        On Sunday, June 5, 1988, 17-year-old Tamara B. and her 18-year-old boyfriend, Kelvin Young, had gone to the movies and were on their way to Tamara's home. At about 11 p.m. Kelvin was eastbound on Willow when he stopped for a red light at Golden in Long Beach. Suddenly a heavy set Black man appeared on the passenger side, pointed a gun at Tamara's head and told Kelvin not to move or he'd shoot Tamara.
        The assailant, appellant, ordered Kelvin to get in back, lie down, and not look at him. Appellant asked Tamara to drive but when she said she couldn't drive a stick shift, he got in the driver's side, told Tamara to cover her face and drove to a dark alley.
        Appellant told Tamara and Kelvin that he and his wife had just been robbed and his wife raped, so he had to get revenge.
        Appellant robbed Tamara, forced her to orally copulate him and raped her. During the rape -- which lasted 10 to 15 minutes -- appellant's face was within a foot and a half of Tamara's. When he finished, appellant returned to the driver's side, drove to another location, removed a white bandana from his head and wiped all the areas he had touched.
        Appellant then took the car keys, told Tamara and Kelvin to count to 365, and then they could get the keys from the alley where he'd leave them. Appellant departed.
        Kelvin retrieved the keys, drove home and called the police.
        On October 10, 1988, Kelvin was shown a six photo "lineup" and identified appellant's photograph because of his eyes, thick moustache and round face.
        On January 23, 1996, Tamara attended a live lineup and identified appellant.
        On February 5, 1996, both Tamara and Kelvin identified appellant at the preliminary hearing. At trial both testified they were certain appellant was the perpetrator.

October 7, 1988, incident
        On October 7, 1988, about 1 a.m., 18-year-old Cheryl M. was sitting in a car across the street from her house on Caspian near Wardlow in Long Beach, talking to her boyfriend, Carl Banks. Appellant approached, pointed a gun at Carl's head and said he had just been robbed and was "getting his back." He told Cheryl to stop looking at him and took all their money.
        Appellant got in back, told Carl where to drive, and had Carl stop on Baltic, a dark, narrow street. Appellant exited, ordered Carl to lie face down in back, re-entered, forced Cheryl to orally copulate him, and raped her. Appellant then drove to Caspian and Wardlow, wiped the car clean of his fingerprints, told Cheryl and Carl to count to a certain number and then they could get the car keys where he would drop them. Appellant ran away.
        Cheryl and Carl called the police. A few days later when she was shown a six photo "lineup" Cheryl identified appellant. She identified him again at the February 5, 1996, preliminary hearing and at the January 1997 trial.
        In October 1995 Long Beach Police Department Detective Lomax took custody of appellant in Buffalo, New York. Appellant had been using the name Melvin Taper.
        It was stipulated three weeks prior to trial appellant weighed 272 pounds.
        Appellant did not testify or present alibi evidence.

DISCUSSION
[This Part Is Not Certified for Publication]
1. Ineffective assistance of counsel
        Appellant contends his trial counsel was ineffective for not calling an expert identification witness. The contention does not bear scrutiny.
        Although, as appellant notes, such expert testimony is admissible (People v. McDonald (1984) 37 Cal.3d 351) it does not follow that such testimony is required or even necessarily helpful to a defendant. Appellant cites no authority to support his contention and we are aware of none.
        A claim of ineffective assistance of counsel must be based upon more than speculation about what an expert, who was not called as a witness, might testify.

2. Evidence appellant was arrested in New York
        Over objection, the trial court admitted evidence that Long Beach Police Detective Lomax arrested appellant in Buffalo, New York sometime in October 1995 and that he had been using the name Melvin Taper.
        In a circular argument, appellant asserts the evidence could only be relevant if probative of flight, there was no evidence when appellant went to New York thus the evidence was not probative of flight, but "it is reasonably likely the jury considered this evidence for that purpose anyway."
        The contention is meritless.
        Appellant's departure for New York and his use of a false name were relevant to prove flight, consciousness of guilt, and to explain the lengthy delay in his apprehension and prosecution.
        The evidence was properly admitted.

3. Prosecutor appeal to jury sympathy
        Appellant contends the prosecutor improperly appealed to jury sympathy by asking Tamara B., on redirect, "Are you over this incident?" The witness answered "Not by a longshot am I over it. I'll probably never be over it." She added that since yesterday, when told she had to be in court today, she had not slept and when she closed her eyes she "could see it as if it was happening to me all over again." The contention is meritless.
        Defense counsel cross-examined Tamara B. at length (46 reporter transcript pages), emphasizing the almost nine years that had elapsed from crime to trial. For example, he asked "Would it be safe to say that the memory of the events has faded with time?"
        It was proper for the prosecutor, following such cross-examination, to show the witness's memory had not "faded" and her testimony was accurate and credible. ²

4. Count III robbery sentence: Section 654        
        Appellant was sentenced both for robbing Tamara B. (count III) and for kidnapping her for the purpose of robbery (count I). Appellant contends, and the attorney general concedes, such double punishment violates section 654 (Neal v. California (1960) 55 Cal.2d 11, 19; People v. Beamon (1973) 8 Cal.3d 625, 639). We need not order the sentence on count III stayed because, as we next explain, the conviction on count III, along with other counts, must be reversed.

[End of Part Not Certified for Publication] 5. Statute of limitations
        The Penal Code prescribes time limits upon the commencement of criminal prosecutions. The limits vary according to the maximum punishment for an offense. Offenses punishable by imprisonment in the state prison for less than 8 years must "be commenced within three years after commission of the offense" (§ 801). Second degree robbery is such an offense (§ 213). Offenses punishable by 8 years or more imprisonment must be commenced within 6 years (§ 800). Forcible oral copulation, forcible rape, and kidnapping are such offenses.
        As pertinent here, a prosecution is commenced when the information is filed or an arrest warrant issued (§ 804). Time may be tolled "up to a maximum of three years" if a defendant "is not within the state" (§ 803, subd. (d)). But, in order to toll the statute, the pleading must allege the tolling facts. (People v. Chadd (1981) 28 Cal.3d 739, 757).
        The robbery of Tamara B. occurred June 5, 1988, and of Carl Banks October 7, 1988. Time to commence a robbery prosecution expired June 5 and October 7, 1991, unless time was tolled. No tolling facts were alleged. The information was not filed until February 20, 1996, more than four years too late.
        The forcible oral copulation, forcible rape, and kidnapping offenses were also committed June 5 and October 7, 1988. Time to commence them, unless time was tolled, expired in 1994. The information was filed approximately a year and half later and did not allege any tolling facts.
        Although appellant failed to raise the statute of limitations bar in the trial court, in his habeas petition, or in either his February 18, 1998, opening brief or April 30, 1998, reply brief, the courts "have repeatedly held that a defendant may assert the statute of limitations at any time." (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)
        The attorney general suggests, somewhat tortuously, "this Court should adopt an approach which views a statute of limitations in a criminal case as an affirmative defense which is subject to forfeiture." We are not at liberty to do so because our Supreme Court has left intact its decisions to the contrary. (Cowan v. Superior Court, supra, 14 Cal. 4th at p. 374; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
        Since the district attorney commenced prosecution of the robbery (counts III and XIV), forcible oral copulation (counts V and XII), forcible rape (counts VI and XIII), and kidnapping (counts X and XI) offenses after their statutes of limitation had expired and failed to allege appellant had been out of state or that an arrest warrant had issued, we must reverse each of those convictions.
        However, appellant's contention the two kidnapping for the purpose of robbery convictions (counts I and II) must similarly be reversed is mistaken. Those offenses, because punishable "by imprisonment in the state prison for life . . . may be commenced at any time" (§ 799).

DISPOSITION         The convictions on counts I and II, kidnapping for the purpose of robbery, and all their enhancements (§ 12022.5, § 667, subd. (a)(1), § 667.5) are affirmed. The convictions on counts III, V, VI, X, XI, XII, XIII, and XIV are reversed. The sentence is vacated. The matter is remanded to the trial court for resentencing. The petition is denied.

We concur:
        LILLIE, J.
        JOHNSON, J.


*        Pursuant to California Rules of Court, rules 976(b) and 976.1 this opinion is certified for partial publication. This opinion is to be published in full with the exception of Discussion parts 1-4.

¹          Appellant was charged with a third almost identical incident but the prosecutor dismissed those charges immediately before trial because of "witness unavailability" despite the principal victim having testified at the preliminary hearing and having identified appellant as the perpetrator. (Evid. Code, § 1291.)
²          In his habeas petition appellant reiterates these three contentions without additional authority or elaboration. We find no need to separately address them.