PEOPLE v. PREASMYERNo. B206583.

THE PEOPLE, Plaintiff and Respondent,
v.
AMY LYNN PREASMYER, Defendant and Appellant.

Court of Appeals of California, Second District, Division Three.
Filed April 28, 2010.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

INTRODUCTION

A jury found defendant and appellant Amy Lynn Preasmyer guilty of the special circumstance, lying in wait murder of her then fiancée, Richard Cowles, Jr.; conspiracy to commit murder; and solicitation of murder. She was sentenced to life in prison without the possibility of parole. At her trial, the court excluded evidence of defendant's state of mind six years after the murder. On appeal, defendant contends the exclusion of that evidence was an abuse of discretion and violated her Sixth Amendment right to present a defense. She also contends that her conviction for solicitation of murder must be reversed, because the charge was time-barred. Finally, she raises various sentencing issues. We agree that defendant's conviction for solicitation of murder must be reversed and that minor modifications to her sentence must be made; but we otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background.

A. Events leading up to the murder of Richard Cowles, Jr., on August 12, 1997.

In July 1997, 21-year-old Richard Cowles, Jr. (Ricky) lived in a two-story apartment in Lancaster with his 16-year-old pregnant fiancée, defendant and appellant Amy Preasmyer.1 Amy's friends, Jennifer Kellogg and Sara Chapin, stayed with Ricky and Amy for about one week in August 1997. Ricky didn't approve of Jennifer and Sara because they did drugs. This caused friction between Amy and Ricky, who wanted them to leave; and on August 11, they fought about whether her friends should leave. Amy told Ricky she hated him. Amy's mother came over and told Ricky that Amy was not going home with her and that they had to work it out, as they were having a baby. But she agreed that Jennifer and Sara should move out, which they did.

Around this same time, Ricky went to Laughlin with his family during the weekend of August 9, 1997. Although she was invited to go with them, Amy stayed home, as did Ricky's sister, Shaelynn Cowles. While Ricky was away, Shaelynn went to Ricky's and Amy's apartment. Jennifer and Sara were there, as was William (Billy) Hoffman, with whom Jennifer hung out and did drugs. Billy also knew Amy; they had known each other since they were children and they lived down the street from each other, although they had not seen each other for years. He now lived in an apartment complex that was just a short walk from Amy's and Ricky's place. In addition to using drugs, Billy sold them, and that night at Amy's apartment he gave LSD to Shaelynn. That same weekend, Johnny Walz, Amy's former boyfriend, and Daniel Pitts drove down to see Amy at her request. Johnny and Amy kissed, and Amy gave Johnny a letter talking about how she was unsure of what was going on in her life and how she missed him. He left the next morning.

One month to a couple of weeks before August 12, 1997, Jennifer asked Billy if he would kill somebody. He said he would. Billy met with Jennifer and Amy at Amy's apartment. The girls gave Billy gloves and potatoes, which Billy believed would silence noise from the gun. Billy was shown the apartment's layout, including the master bedroom upstairs. Amy described Ricky's routine: he got off work around 5:00 p.m., parked his car in the garage and went straight upstairs to the bedroom. They discussed how to kill Ricky: because Ricky might resist, Billy thought he should knock him out before killing him. Billy was also given a picture of Ricky that he burnt after the murder. Although they did not discuss exact financial details, Billy expected to be paid $500-$1,000 for killing Ricky. It was clear, however, that he was to be paid.

Billy paid $100 to his close friend, David Asbury, for a gun.2 Billy, David and another friend, Joey Green, took the gun to the desert and practiced shooting it. They tried using potatoes as a silencer, but they exploded.

B. The day of the Murder: August 12, 1997.3

On August 12, Ricky, who worked for his father's electrical company, left for work in the morning. Amy left a note for him saying she would be home by 9:00, as they'd agreed that would be their "quiet time." Amy called him multiple times toward the end of his work day, asking what time he would be home and telling him to be home at 9:00 p.m. After work, Ricky declined his father's offer to get a drink, saying he had to get home because he and Amy were working on their relationship.

While Ricky was at work, Amy and Jennifer drove to Santa Monica in the morning and returned later that afternoon. They then went to see Shaelynn, Ricky's sister, who was working at McDonalds, about one mile from her brother's apartment. Amy and Jennifer insisted Shaelynn go to Baskin Robbins with them, which Shaelynn thought was odd, because they had never stopped by her work before. Although Shaelynn often went to her brother's apartment after work, Amy told Shaelynn not to come by the apartment after 9:00 p.m. that day because she and Ricky were going to be working on things.

Jennifer and Amy picked Billy up from his apartment around 5:00 or 6:00 p.m. and drove him to Amy's apartment. Billy had the gun, a claw hammer and a knife. When Ricky didn't come home, Billy left the apartment and started to head home, but Jennifer and Amy drove by. They stopped and told him that Ricky was running a little late but that he would be home soon, so Billy should go back to the apartment and wait for him. Billy returned to the apartment.

When he heard Ricky get home, Billy hid behind the bedroom door upstairs. When Ricky entered the room, Billy hit him with the hammer. Ricky turned and yelled, and Billy shot him in the forehead. Ricky fell to the ground, and Billy hit him with the hammer twice. Billy left through the front door and returned to his apartment. As they had previously agreed, Billy paged Jennifer with a "0" to indicate Ricky was dead.4 He also called Joey Green, who came and took the gun.

Meanwhile, Amy and Jennifer stayed out. Around 8:00 p.m., Sara and Jeff Shreves met up with Jennifer and Amy. Amy told Sara that Ricky would page her when he got home. They went to Kevin Tallwater's apartment, which was in the same complex where Amy's and Ricky's apartment was located. The friends stayed outside, although Jennifer went to the dairy with Jeff, and Amy went to Burger King with Sara. On their way back to Tallwater's apartment, Sara suggested they see if Ricky was home, but Amy said no because he hadn't paged her and the lights weren't on. Back at Tallwater's apartment, Jennifer called someone. When she was done, she said, "`Okay, we can go now.' " In separate cars, Jennifer and Jeff and Amy and Sara went to Amy's and Ricky's apartment. Amy and Sara arrived first.5 The front door was unlocked. Amy used the downstairs bathroom and asked Sara to go upstairs and see if Ricky was home. Uncomfortable with going upstairs, Sara checked the garage and saw that Ricky's car was there. She told Amy that Ricky was home, but Amy asked her to go upstairs and see if he was sleeping. Sara headed upstairs, but she smelled an odor and told Amy to check on him. Amy went upstairs and turned on the bedroom light. She screamed, and Sara ran upstairs.

Ricky was on the floor. Sara dragged Amy downstairs, and Amy ran outside, where Jennifer and Jeff had just arrived. Amy ran back inside and called 911. Sara asked Jeff to go upstairs. Jeff checked on Ricky, and he told the 911 operator he wasn't sure if Ricky had been shot.

Ricky was airlifted to a hospital. At the hospital, Amy was calm, although she became more emotional when it became clear that Ricky would not live. She went into his room and began to cry; she couldn't believe he was going to die because her birthday was coming up and he'd promised to buy her a car. Ricky died on August 15, 1997: he'd been shot once in the forehead (a near contact wound, meaning the gun was ½ to 2 inches from his head) and been struck three times with an instrument consistent with a claw hammer. He had no defensive wounds.

Ricky's wallet still contained his credit cards, identification, and $60 his father gave him just before leaving work on August 12. There were no signs of forced entry, although only Ricky and Amy had keys to the apartment. The apartment was not ransacked and nothing was taken. A .25 caliber bullet casing was found. On August 15, 1997, Ricky's sister, Jennifer Cowles Chavez, went to his apartment to clean it. In a trash can she found a note dated August 1, 1997 that Amy wrote to Jeff Burgener, a former friend of Ricky's who was in jail. Amy wrote that she and Ricky were doing "good," but they'd had a "huge fight" about, among other things, alcohol and drugs and respect. Ricky wanted to name the baby after him, but Amy wrote that she'd said, "No! I want a successful child. Shit, I'd name it Jeff before Rick."

C. The Days and Months Following Ricky's Murder.

The day after he killed Ricky, Billy went to work. He told his friend and coworker Heather Nadeau what he had done, and she took away the gloves and hammer.6 Billy's father took away his clothes. Billy also told Jermaine McKnight, Robert Bocock, Kyle Dunn and Robert Tulk that he had killed Ricky. Billy told Heather and Kyle that he'd committed the murder for the victim's girlfriend.

When Ricky died, Amy told Sara to be careful around Jennifer, because Amy thought she might have something to do with what happened to Ricky. Several days after Ricky's funeral, Amy went to the local fair where she laughed and had a good time. She told Kandice Orr that Ricky had ruined her birthday: he got her pregnant so she couldn't get high and drunk, and since he was dead, he couldn't get her a car.

When Joey Green was arrested for an unrelated crime in 1998, he told the police he had information concerning Ricky's murder. Billy was then arrested in April 1998 for Ricky's murder. Billy's family hired an attorney to represent him. In April 1998, he confessed to his attorney's legal assistant, Mary Briscoe, that he had killed Ricky. He also told Briscoe that Jennifer and Amy had asked him to do it and had helped him to plan the murder.7

At his 1999 trial, Billy denied killing Ricky, instead saying Joey Green killed him. Billy, however, was found guilty and sentenced to life without the possibility of parole. Later in 2002, in a letter to Ricky's family, Billy confessed his part in the murder. He then spoke to detectives; he thought he might get some benefit or change in his sentence, although nobody ever made such promises to him and detectives told him they could not and would not do anything for him. He decided to testify because it was the right thing to do.

Amy was arrested in 2005. While in custody, she had a jailhouse conversation with Jennifer that was secretly recorded. Amy said that "if Hoffmann doesn't testify, they don't have a fucking case against me. Pretty much know, that if Hoffmann testifies, he's gonna cross all my fuckin[g] peoples' paths one day or another cause `[y]ou can't stay PC'd-up forever bitch! That's all I got to say to you motherfucker! You can't stay PC'd-up forever motherfucker! And you're already sittin[g] in there for fuckin[g] life—because you testified against yourself.' [¶] So—if he don't testify, they don't have shit! Noth-ing. . . . Not a goddamn thing." (Italics omitted.)

II. Procedural Background.

On February 23, 2006, an information was filed charging defendant with count 1, special circumstance murder committed by lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15));8 count 2, conspiracy to commit murder (§ 182, subd. (a)(1)); and count 4, solicitation of murder (§ 653f, subd. (b)).9 The information alleged as to counts 1 and 2 that a principal was armed with a gun (§ 12022, subd. (a)(1)).10

On July 30, 2007, a jury found Amy guilty as charged. On February 5, 2008, after denying her motion for a new trial, the trial court sentenced defendant to life without the possibility of parole on count 1, plus one year for the gun enhancement. The court sentenced her to 25 years to life on count 2 and to six years on count 4, and stayed those sentences. The court imposed, among others, a $5,000 plus $30 court construction fee. The court awarded her 1,067 actual days served but no conduct credit. This appeal followed.

DISCUSSION

I. Defendant's State of Mind Six Years After the Murder.

Defendant introduced evidence of her state of mind at the time of and shortly after Ricky was murdered. The trial court, however, precluded Michelle Popp (defendant's friend since 2003) and Justin Rockey (her former fiancée) from testifying about matters relating to her state of mind years after the murder. Preclusion of that evidence, defendant contends, was an abuse of discretion under Evidence Code section 352 and a violation of her Sixth Amendment right to present a defense. After we set forth some additional facts, we explain why we disagree with that contention.

A. Additional Facts.

During trial on July 9, 2007, defense witness Dr. Suzane Dupee testified at an Evidence Code section 402 hearing (402 hearing). A physician and psychiatrist, Dr. Dupee, evaluated defendant. Her evaluation focused on defendant's emotional state "at the time of the instant offense . . . [a]nd also in particular her emotional reaction to the murder within the short—within a time frame close to the incident. [¶] So not seven years down the track, but within the next one or two years, but mostly about on that particular night and then the immediate time frame after that." By "immediate time frame," the doctor meant the two to six months after Ricky's murder. She examined the police report, transcripts from Billy Hoffman's trial, defendant's interviews with the police, a DVD of the crime scene, and the 911 call. She also interviewed defendant in June 2006.

In the Diagnostic Statistic Manual No. 4 (DSM-IV), there is a collection of disorders called anxiety disorders, one of which is acute stress disorder. Acute stress disorder is a "very brief" disorder that is an extended shock reaction to something very traumatic. It's a "time[-]limited diagnosis" that is basically "over" in one month. "So after one month, one does not suffer from technically an acute stress disorder." If symptoms persist, a diagnosis of post-traumatic stress disorder (PTSD) might be made. But Dr. Dupee didn't diagnose defendant with that because she didn't continue to have the large substantive symptoms that one has with PTSD.

Within the first month of Ricky's murder, defendant had nightmares, loss of sleep, and frequent episodes of crying. She didn't socialize as she once had, lacked motivation, had low energy, felt lonely, and was easily startled. In Dr. Dupee's opinion, with a reasonable degree of medical certainty, defendant suffered an acute stress disorder at the time Ricky was murdered, at least in that first month. With a reasonable degree of medical certainty, defendant's reaction in the "immediate month" following the incident was consistent with someone who suddenly found her boyfriend critically wounded.

The day following the 402 hearing, Michelle Popp and Justin Rockey testified for the defense. Popp met defendant in 2003, and they became close friends. When defense counsel asked Popp if there was a time when defendant exhibited a "depressed demeanor," the trial court sustained an objection on "foundation." At sidebar, defense counsel represented that Popp would say defendant was quiet and depressed one day, because the anniversary of Ricky's death was coming up and she was feeling down about it. The prosecutor pointed out that Dr. Dupee, at the 402 hearing, testified only about the four-week period immediately following Ricky's death, and therefore the proposed evidence was irrelevant. The court agreed: "Absolutely not, because it's not a relevant time period to the facts at issue in this case that sometime after 2003 she was depressed. [¶] If she wants to get on that witness stand and testify about that herself, but I do not see that as relevant and I see it as more prejudicial than probative and it's not coming in."

Defense counsel then raised a similar issue about the next witness, Rockey. He was going to testify that he and defendant shopped for a house, and she became upset after looking at a two-story house. Defendant told Rockey she was uncomfortable in two-story houses and would not live in one. The court made the same ruling: "No, not going there. This is all stuff that happened after 2003. It's not a relevant time period involved in any issue in this case." When Rockey immediately thereafter testified, defense counsel approached the bench to repeat her request to ask the witness about the two-story house, but the court continued to sustain the objection.

Dr. Dupee then testified before the jury that, as she had said at the 402 hearing, in her opinion, defendant suffered from acute stress disorder. The doctor described the disorder as having a "very, very limited and short" duration, lasting for a month. If the symptoms last longer than one month, then the diagnosis might change to PTSD, but she did not diagnose defendant with PTSD, although some of her symptoms persisted beyond a month. Based on her review, defendant's behavior and reaction were consistent with someone who didn't know she was going to find her boyfriend attacked in their home. But a person who has planned or participated in a murder could also experience acute stress disorder after seeing the victim.

B. The Trial Court did not Abuse its Discretion or Violate Defendant's Right to Present a Defense by Excluding the Evidence.

We easily reject defendant's contention that the exclusion of evidence of her state of mind in 2003—six years after Ricky's murder—was reversible error. Its exclusion was neither an abuse of discretion under Evidence Code section 352 nor an infringement of defendant's Sixth Amendment right to present a defense.

Relevant evidence is evidence having "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the risk its admission will necessitate undue consumption of time or create a danger of undue prejudice, of confusing the issues or of misleading the jury. (Evid. Code, § 352.) Evidence Code section 352 " `"empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." [Citation.]'" (People v. Harris (2008) 43 Cal.4th 1269, 1291.) We review the exclusion of evidence under Evidence Code section 352 for abuse of discretion (People v. Holloway (2004) 33 Cal.4th 96, 134), and we will not disturb a trial court's decision to exclude evidence under Evidence Code section 352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

We doubt that the proposed evidence here was relevant; and, even if it was, its relevance was so attenuated to any disputed issue that it was excludable under Evidence Code section 352. For example, Popp was going to testify that defendant acted morose around the anniversary of Ricky's death. But Popp didn't even know defendant in 1997, when Ricky was killed. She met defendant in 2003, six years after the murder. Popp therefore had no knowledge of defendant's state of mind during the time at issue, the month or so following Ricky's death.

Defendant, however, suggests that her state of mind outside of that very brief period of time was relevant. She points out that the prosecutor introduced evidence that she was emotionless and uncaring after Ricky's death; for example, at the hospital and at the fair. That evidence, however, concerned a time-frame immediately following the murder, the month or two thereafter. The defense countered this evidence by introducing other evidence that defendant was in fact upset at the hospital and that a friend took her to the fair to cheer her up. Evidence concerning how defendant behaved in 2003 was simply irrelevant to how she reacted to Ricky's murder in 1997 or to any acute stress disorder she might have suffered from in the month following his death.

Nonetheless, defendant persists by arguing that evidence her symptoms lasted longer than a month after Ricky's murder "could add [PTSD] to the diagnosis." The testimony of defendant's own expert belies that argument. Dr. Dupee diagnosed defendant with acute stress disorder only. She was quite clear—at the 402 hearing and in her testimony before the jury—that the disorder has a "very, very limited and short" duration of about one month following the traumatic event. Moreover, although defendant suggests that the evidence was relevant to a PTSD diagnosis, Dr. Dupee testified that there was insufficient evidence to diagnose defendant with PTSD, and she did not make that diagnosis. And to the extent defendant complains she was unable to get in evidence through Justin Rockey that she was afraid to live in two-story houses, that evidence came in through Dr. Dupee when she described "avoidance" as a symptom of acute stress disorder. The doctor said that defendant didn't want to go into two-story houses and avoided going upstairs in the evening if she was in one.

The exclusion of such irrelevant or tangential evidence did not implicate the Sixth Amendment. "A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations]." (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, "determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question `the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citation.]" (Cornwell, at p. 82; see also People v. Ayala (2000) 23 Cal.4th 225, 301 ["we have repeatedly held that `not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.' [Citation.]"]; Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi, supra, 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case].) Given that the challenged evidence was irrelevant or of marginal relevance, defendant's right to present a defense was not infringed on.

II. Statute of Limitations for Solicitation of Murder.

Defendant contends that her conviction for solicitation of murder must be reversed because it was time-barred. The Attorney General does not dispute that the charge was time-barred, but he counters that defendant forfeited the bar.11 We agree that the charge was time-barred and disagree that defendant forfeited the bar.

The law in California was formerly that a court lacked fundamental subject matter jurisdiction over a time-barred criminal action, even if the defendant waived the time bar. (People v. McGee (1934) 1 Cal.2d 611, 613-614, overruled by Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 (Cowan).) Our Supreme Court, in Cowan, then held that a court does not necessarily lack subject matter jurisdiction over a time-barred offense. (Cowan, at p. 374.) In addition to the basic rule that a defendant may assert the statute of limitations at any time, a defendant may expressly waive a time-bar for tactical reasons. For example, the defendant in Cowan was charged with murder. He pleaded guilty to the lesser offense of voluntary manslaughter, but the prosecution moved to set aside the plea when it realized that the voluntary manslaughter was time barred. Cowan held that the defendant could waive the statute of limitations when the waiver was for his benefit. "In this case, because the court had the power to proceed over the murder charge, it should also have the power to proceed over a lesser included (or even related) offense." (Id. at p. 373.) In so holding, Cowan was careful to distinguish between waiver (an intentional relinquishment of a known right) and forfeiture (losing a right by failing to timely assert it). (Id. at p. 371.) It declined to decide whether a defendant can forfeit the statute of limitations. (Id. at p. 374.)

That question was addressed in People v. Williams (1999) 21 Cal.4th 335, 338 (Williams), where the court held that a defendant "may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense."12 (Ibid.) The defendant in Williams was charged with an offense that the face of the information showed was time-barred. When he raised the time-bar for the first time on appeal, the People argued the defendant had forfeited his right to raise it. Addressing the forfeiture issue, the court reasserted that the statute of limitations cannot be forfeited by the mere failure to raise it.13 (Id. at p. 341.) The court rejected concerns that its ruling would allow gamesmanship: "We see no significant potential for gamesmanship or sandbagging when the defendant is convicted of a charged offense that the charging document indicates is untimely." (Id. at p. 346.) The potential for such tactics are more likely to occur in the context of convictions of time-barred lesser offenses when the charged crime is timely. (Ibid.) The court concluded "that a defendant may not inadvertently forfeit the statue of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. We leave to future appellate courts to decide other questions not involved here, such as the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time-barred." (Id. at p. 338.)

Our reading of Williams compels the conclusion that defendant here did not forfeit the statute of limitations. The solicitation of murder count was time-barred on the face of the information. Under Williams, defendant's mere failure to assert the statute of limitations below did not constitute a forfeiture of the time-bar. The Attorney General, however, tries to distinguish Williams by analogizing this case to People v. Stanfill (1999) 76 Cal.App.4th 1137 (Stanfill). In Stanfill, the defendant was charged with felony embezzlement, but the jury acquitted him of that crime and found him guilty instead of the misdemeanor equivalent, a lesser offense on which defendant had requested instruction. The lesser offense was time-barred, but defendant did not raise the bar until the appeal. Stanfill found that "a defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense." (Id. at p. 1150.)

Stanfill does not compel a finding of forfeiture here. Stanfill involved an uncharged lesser included offense. The time-barred offense at issue, solicitation of murder, was not an uncharged lesser included offense of murder. "An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense." (People v. Steele (2000) 83 Cal.App.4th 212, 217.) Solicitation of murder is not a lesser included offense of murder, because murder can be committed without soliciting it. At most, solicitation of murder is a lesser related offense to murder. Even so, solicitation of murder was a charged offense, again unlike the uncharged lesser misdemeanor offense in Stanfill.

Where an uncharged lesser included offense is at issue, Stanfill found the rationale for adopting a forfeiture rule compelling, given the potential for gamesmanship; for example, absent a forfeiture rule, a defendant has an incentive to remain quiet about a statute of limitations problem in order to secure instruction on a lesser included offense without expressly waiving the limitation problem. (Stanfill, supra, 76 Cal.App.4th at pp. 1147-1148.) If convicted of the lesser offense, the defendant could raise the statute of limitations on appeal, thereby garnering a windfall reversal of the conviction. (See generally, Cowan, supra, 14 Cal.4th at pp. 385-386 (conc. & dis. opn. of Brown, J.).)

A similar concern with gamesmanship is absent here. It is unclear what tactical advantage defendant could have received by allowing the solicitation charge to go forward. A jury was unlikely to convict her of the solicitation charge in lieu of the greater murder charge. Rather, if found guilty of solicitation of murder, it would seem that a guilty verdict on the murder charge would naturally follow, given that defendant successfully solicited Ricky's murder and he died. Defendant is therefore unlike the defendant in Cowan who wanted the time-barred lesser offense of voluntary manslaughter to go forward in order to give the jury the option of finding him guilty of that offense instead of the more serious murder charge. Indeed, Williams questioned how there could be sandbagging or gamesmanship where, as here, the defendant is convicted of a charged offense that is time-barred, as opposed to an uncharged lesser offense that is time-barred. (Williams, supra, 21 Cal.4th at p. 346.)

And contrary to the Attorney General's assertion that defense counsel was "fully aware" of the limitations problem, that assertion is completely unsupported by the citations to the record. Rather, the citations to the record the Attorney General provides at page 58 of its respondent's brief concern a discussion about Heather Nadeau's testimony and whether the statute of limitations had run on her being charged as an accessory under section 32. The misleading citations have nothing to do with the statute of limitations as to the solicitation of murder charge alleged against defendant. What the record shows is that the issue was simply never raised, but nothing in Stanfill supports a rule that mere acquiescence in giving instructions on a charged offense somehow constitutes forfeiture of the statute of limitations. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090 [nothing in the record indicated that the defendant requested or acquiesced in the instruction on a lesser included offense, and there was no forfeiture].)

Stanfill therefore provides no reason to deviate from the general rule announced in Williams: if the charging document indicates on its face that the charge is untimely, a defendant convicted of that charge may raise the statute of limitations at any time. In following that rule, we do not say that the statute of limitations can never be forfeited, we merely hold it was not forfeited here, where the record reveals no acquiescence, gamesmanship or sandbagging on the part of the defense to gain a tactical advantage by not raising the statute of limitations to a time-barred charged offense. Defendant's conviction for solicitation of murder must therefore be reversed.

III. Court Construction Fine.

The trial court imposed a $5,000 plus $30 court construction fine under Government Code section 70372. Defendant contends, and the Attorney General agrees, that the fine should be stricken because its imposition in this case violates constitutional prohibitions against ex post facto laws. We agree it should be stricken.

Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. An ex post facto law is a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed. (Stogner v. California (2003) 539 U.S. 607.) To determine whether a law is an ex post facto one we ask (1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether, despite legislative intent, the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature. (People v. High (2004) 119 Cal.App.4th 1192, 1196.) Government Code section 70372, the court construction fine, has a punitive purpose, as well as a fundraising, purpose. (High, at p. 1199; cf. People v. Alford (2007) 42 Cal.4th 749 [the court security fee in section 1465.8 was enacted for the nonpunitive purpose of funding court security].) Because it has a punitive purpose, defendant cannot be subject to it if it was not in effect at the time she committed the crimes in 1997. Government Code section 7037214 was enacted in 2002 and became effective January 1, 2003. (Stats. 2002, ch. 1082, § 4.) It was enacted and became effective after defendant committed the crimes at issue. Therefore, the fine cannot be applied to defendant and must be stricken.

IV. Custody Credits.

Believing that defendant was not entitled to worktime credits under section 2933.1, subdivision (a),15 the trial court awarded defendant 1,067 actual days served, but did not award worktime credits. Section 2933.2, which deprives defendants convicted of murder of worktime credits, only applies to murders committed on or after the date the section became operative on June 3, 1998. (§ 2933.2, subd. (d); People v. Reyes (2008) 165 Cal.App.4th 426, 437.) Because Ricky was murdered in 1997, defendant is entitled to an additional 160 days of worktime credit (15 percent of 1,067). The Attorney General agrees that defendant is entitled to these additional days of credit.

V. The Sentencing Hearing was not Rendered Fundamentally Unfair by the Absence of a Supplemental Probation Report.

At the February 5, 2008, sentencing hearing, the trial court remarked that it had the clerk pull the probation officer's report, which the court then read. What the court apparently reviewed was a pretrial probation report submitted in October 2005, years before defendant was sentenced in February 2008. Defendant contends that without a supplemental probation report, the sentencing hearing was fundamentally unfair. The matter therefore should be remanded so that the court can review an updated, supplemental report, which, defendant argues, might sway the court to resentence her to 25 years to life instead of life without the possibility of parole for special circumstance murder. We disagree.

Defendant argues that section 1203, subdivision (b)(1), required the trial court to have a current probation report before it sentenced her. That section provides: "[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer" to prepare a report. (§ 1203, subd. (b)(1), italics added; see also People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432 [probation reports are discretionary when the defendant is ineligible for probation ]; but see Cal. Rules of Court, rule 4.411(b) [even if the defendant is ineligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report].) Defendant was ineligible for probation. She was convicted of special circumstance murder by lying in wait, which, due to defendant's youth, carried a sentence of life without the possibility of parole or, in the court's discretion, 25 years to life. (§§ 190.2, subd. (a)(15), 190.5.) It is therefore not clear that the court had any obligation to order a supplemental probation report.

For this reason, the cases defendant cites are distinguishable. In People v. Dobbins (2005) 127 Cal.App.4th 176, an initial probation report was prepared in July 2003, and defendant was granted probation. A few months later, defendant violated the terms of his probation and the suspended sentence was imposed in March 2004, without a new probation report. The Court of Appeal noted that a probation report was not necessarily required for a defendant statutorily ineligible for probation. (Id. at p. 180.) It went on to hold that although the trial court erred in not ordering a supplemental report, the error was harmless. (Id. at pp. 181-182.)

In People v. Conners (2008) 168 Cal.App.4th 443, 456, because the initial probation report was devoid of information, the trial court itself requested a supplemental report, which was never provided. When new defense counsel requested a continuance and an opportunity to prepare a sentencing memorandum, the trial court denied the requests and imposed sentence. The Court of Appeal found that the failure to grant the continuance under these circumstances violated the defendant's statutory rights and rendered the sentencing hearing fundamentally unfair. (Id. at p. 457; see also People v. Leffel (1987) 196 Cal.App.3d 1310.)

In contrast to Conners, there was no clear violation of a statutory requirement that a supplemental probation report be ordered before defendant was sentenced. Nor did the trial court here, also unlike in Conners, make a finding that the report it did have was woefully inadequate. Still, defendant complains that the October 2005 probation report did not include her personal and employment history and "other like information," which might have been important to the court's exercise of sentencing discretion.16 These vague generalizations do not, however, specify what might have changed the court's analysis, which the record reveals was detailed and thorough. The notion, for example, that defendant was "arguably less culpable" than Jennifer Kellogg, who spearheaded the murder, was a theory well-developed at trial and one of which the court was well aware.

This leads us to conclude that if the trial court erred in not obtaining a supplemental probation report, any error was harmless under the standard in People v. Watson (1956) 46 Cal.2d 818, i.e., whether there was a reasonable probability of a result more favorable to defendant if not for the error. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) A probation report is advisory only, having the primary function of assisting the court in deciding a proper disposition after conviction. (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on other grounds as noted in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) The trial court here made it clear upon what it was basing its discretion to sentence defendant to life without the possibility of parole.

Specifically, before the trial court imposed sentence, defense counsel reminded the court it had the discretion to sentence defendant to 25 years to life instead of to life without possibility of parole. The prosecutor responded that given the "heinous and brutal" nature of the crime and the solicitation, life without the possibility of parole was proper. Ricky's father then gave a statement, after which the court gave its own lengthy statement. The court said that "a young man was brutally killed, and Amy Preasmyer, you are responsible for that. And the court does not feel that a sentence of [25] years to life is appropriate. [¶] This was, albeit, not a very smart plot, but a deadly plot, with engaging William Hoffman who, again, was another one of these individuals who had no moral compass at all, who was trying to make a name for himself, was so stupid that he never even got paid for what it is that he agreed to do. [¶] . . . [¶] But the lawlessness and the immorality of all of these people involved in this is just hard to accept, hard to understand. [¶] And certainly, I think there is a lot of people that wish they could turn back the clock and perhaps make a couple [of] different decisions. But that clock cannot be turned back, and Ricky Cowles can never be brought back. [¶] And Amy Preasmyer, you are going to spend the rest of your life in custody because of these actions that you took."

Given these statements and the trial court's intimacy with this lengthy case, there is no reasonable probability a supplemental probation report would have led to a different sentencing outcome. There being no statutory requirement that the trial court order a supplemental probation report under the circumstances here, we find nothing fundamentally unfair about the sentencing hearing. Remand is therefore unnecessary.

DISPOSITION

The judgment is reversed as to count 4, solicitation of murder. The court construction fine in the amount of $5,000 plus $30 is stricken. Defendant is awarded an additional 160 days of worktime credit. The clerk of the superior court is directed to modify the abstract of judgment and to forward the modified abstract to the Department of Corrections. The judgment is otherwise affirmed.

We concur.

CROSKEY, Acting P. J.

KITCHING, J.

FootNotes


1. Because some witnesses share last names, we will refer to witnesses by their first names.
2. David was charged with murder, along with Amy and Jennifer. He pleaded guilty to being an accessory and served a two-year prison term.
3. Billy, Amy and Jennifer had agreed that Ricky would be killed before August 12, but on the agreed upon date, Billy slept past the appointed time and the murder was rescheduled to August 12.
4. Jennifer came by later that night to buy drugs from Billy or to sell them to him.
5. Jennifer and Jeff took a detour so that Jennifer could drop off some marijuana to someone.
6. Nadeau testified at Billy's 1999 murder trial under derivative and use immunity for being an accessory after the fact.
7. Billy waived his attorney-client privilege at Amy's trial.
8. All further undesignated statutory references are to the Penal Code.
9. Count 3 was a duplicate count that was omitted.
10. An amended information was later filed naming Jennifer as a defendant. Jennifer's trial was severed from Amy's, and Jennifer pleaded guilty and was sentenced to 17 years in prison.
11. Solicitation of murder is punishable by three, six or nine years. (§ 653f, subd. (b).) Offenses punishable by imprisonment for eight or more years have a six-year statute of limitations. (§ 800.) The murder occurred on August 12, 1997, but the information was filed on October 18, 2005. It alleged the following counts against defendant: count 1, murder (§ 187, subd. (a)); count 2, conspiracy to commit a crime (§ 182, subd. (a)(1)); and count 3, solicitation of murder (§ 653f, subd. (b)). The information alleged that the solicitation occurred between July 29, 1997 and August 12, 1997, but it did not allege tolling of the limitations period.
12. A defendant may, however, forfeit the statute of limitations where the charging documents give notice of the issue; for example, the information alleges tolling of the statute. (Williams, supra, 21 Cal.4th at p. 344.)
13. Although Williams held that defendant did not forfeit the statute of limitations, the court remanded for a hearing regarding whether the limitations period had been tolled.
14. Government Code section 70372, subdivision (a)(1), provides in relevant part: "there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, . . ."
15. That section allows certain defendants to accrue 15 percent of worktime credits.
16. The October 2005 probation report referenced (other than the crimes at issue) a minor adult criminal history of a conviction for burglary, for which defendant received three years' summary probation.

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