11/14/2020 People v.

Perez, G057348 | Casetext

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CARA A.I. "cheri" "pham" JX § AN

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People v. Perez
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Apr 28, 2020

G057348 (Cal. Ct. App. Apr. 28, 2020)

G057348

04-28-2020

THE PEOPLE, Plaintiff and Respondent, v. SUSANO RAMIREZ PEREZ, Defendant and
Appellant.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Susan Sillivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.

THOMPSON, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF0761) OPINION
Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge.
Affirmed and remanded with directions. Steven A. Torres, under appointment by the Court
of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sillivan Pithey, Assistant Attorney
General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff
2 and Respondent. *2

S.P. was raped in 2005. She immediately reported the rape and evidence, including her
clothing and a sexual assault kit, was booked on the same day. The sexual assault kit swabs
were promptly analyzed for DNA type, but no DNA from her attacker was found. Four
years later, S.P.'s clothing was analyzed for DNA type, and a stain on her jacket tested
positive for semen with a single DNA contributor. In 2016, a DNA sample taken from
defendant Susano Ramirez Perez was matched to the DNA on S.P.'s jacket.

At trial defendant was convicted of kidnapping to commit rape or sodomy (Pen. Code, §
209, subd. (b)(1),1 count one); forcible rape (§ 261, subd. (a)(2), count two); and sodomy by
force (§ 286, subd. (c)(2), count three) and sentenced to 30 years to life in state prison.
1 All statutory references are to the Penal Code.

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11/14/2020 People v. Perez, G057348 | Casetext

Defendant
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convictions must be reversed.2 He argues counts two and three were not prosecuted within 1

CARA A.I. "cheri" "pham"

the applicable 10-year limitations period prescribed by section 801.1, and the tolling
JX § AN

provisions of section 803, subdivision (g)(1) (§ 803(g)(1)) do not apply because the 2
Results People
biological evidence form S.P.'s jacket wasv.notPerez Copy Cite
analyzed for DNA type within two years after
the offenses.
Read WeAnalyses
reject this
0 argument
Briefs 0 and affirm
Citing Casesthe
0 convictions.
2 Defendant acknowledges the statute of limitations had not run on count one.

Defendant also argues, and the Attorney General concedes, he is owed one additional day of
presentence custody credit. We agree and remand the matter to the trial court with
directions to correct defendant's presentence custody credits.

FACTS AND PROCEDURAL HISTORY

In November 2005, S.P. was walking home from the store when defendant grabbed her
3 from behind in a chokehold. He said he had a gun and forced S.P. to walk to *3 an area less
visible from the street, where he raped and sodomized her for about 15 minutes before
letting her go.

S.P. went home and immediately called the police. Within a few hours, a sexual assault
nurse examined both S.P. and the clothing she was wearing during the rape. While
examining the clothing, the nurse noticed white stains on the back of S.P.'s jacket. The
stains were so significant she took additional photographs of them. The clothing was
booked into evidence at the police station on the same day. The nurse also took swabs from
S.P.'s body, sealed them in the sexual assault kit for S.P.'s case and gave the sexual assault
kit to the police.

In January 2006, a forensic scientist for the Orange County crime lab received and
processed S.P.'s sexual assault kit swabs. There was no DNA from S.P.'s attacker on any of
the swabs.

In April 2010, the Orange County crime lab received and processed S.P.'s clothing. The
stain on S.P.'s jacket came back positive for semen with a single contributor of DNA. In
March 2016, the crime lab matched a DNA sample from defendant to the DNA found on
S.P.'s jacket.

In April 2016, the Orange County District Attorney's Office filed a criminal complaint
against defendant. Defendant went to trial on an information which alleged counts one, two
and three. The information also alleged the 10-year statute of limitations period for counts
two and three was tolled pursuant to section 803(g)(1). The jury convicted defendant on all
counts and found the section 803(g)(1) tolling allegations true.

DISCUSSION
1. Statute of Limitations and Tolling for Counts Two and Three

The statute of limitations for counts two and three is 10 years. (§§ 801.1, subd. (b), 290,
4 subd. (c).) The parties agree this case was not prosecuted within the 10- *4 year limit of
section 801.1. But they disagree about whether the tolling provisions of section 803(g)(1)
apply.

Section 803(g)(1)(B) provides in relevant part a criminal complaint may be filed within one
year of the date on which the identity of the suspect is conclusively established by DNA
testing, if "biological evidence collected in connection with the offense is analyzed for
DNA type no later than two years from the date of the offense."
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11/14/2020 People v. Perez, G057348 | Casetext

Here,
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kit swabs) was analyzed for DNA type within two years from the date of the offense. But 1

CARA A.I.
that evidence "cheri" "pham"
did not identify defendant as the suspect. The biologicalJXevidence which § did AN

identify defendant as the suspect (i.e., the semen stain on the jacket) was not analyzed for 2
Results
DNA type within two years from People the date v.ofPerez Copy Cite
the offense. Thus, defendant contends the
tolling provisions
Read of section
Analyses 0 803(g)(1)
Briefs 0 do not
Citing apply.
Cases 0 We disagree.

We begin and end our analysis of section 803(g)(1) with the plain language of the statute,
for "[w]hen the statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it. [Citation.] The plain language of the statute
establishes what was intended by the Legislature." (People v. Fuhrman (1997) 16 Cal.4th
930, 937.) Under these circumstances our role "is simply to ascertain and declare what the
statute contains, not to change its scope by reading into it language it does not contain or by
reading out of it language it does. We may not rewrite a statute to conform to an assumed
intention that does not appear in its language. [Citation.]" (Vasquez v. State of California
(2008) 45 Cal.4th 243, 253.)

Again, the plain language of section 803(g)(1)(B) requires "biological evidence collected in
connection with the offense [to be] analyzed for DNA type no later than two years from the
date of the offense." And in this case, the sexual assault kit swabs (biological evidence
collected in connection with the offense) were analyzed for DNA type within two years
from the date of the offense. So, the tolling provisions of section 803(g)(1) apply. The plain
5 language of section 803(g)(1) does not require the *5 biological evidence which established
the identity of the suspect to be analyzed for DNA type within two years, and we will not
read that requirement into the statute.

Plus, the jury's true findings on the tolling allegations are reviewed for substantial evidence.
(People v. Castillo (2008) 168 Cal.App.4th 364, 369.) Here, the jury's true finding on the
tolling allegations are supported by substantial evidence because the sexual assault kit
swabs were analyzed for DNA type within two years.3 2. Defendant's Presentence Custody
Credits
3 The jury was properly instructed with CALCRIM 3410 (Statute of Limitations): "A defendant

may not be convicted of . . . Count 2 and . . . Count 3 unless . . . biological evidence collected
in connection with the offense is analyzed for DNA type no later than two years from the date
of the offense." --------

Defendant argues, the Attorney General concedes, and we agree, he is entitled to one
additional day of actual presentence custody credit.

DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to award
one additional day of actual presentence custody credit, amend the court minutes and the
abstract of judgment accordingly, and forward a certified copy to the Department of
Corrections and Rehabilitation.

THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.

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