People v. Rosenschein

THE PEOPLE, Plaintiff and Respondent, v. TODD ROSENSCHEIN, Defendant and Appellant.

E071453

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

December 6, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1600966)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed.

John F. Schuck under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

A jury convicted defendant and appellant, Todd Rosenschein, of one count of importing a large-capacity magazine (LCM) that holds more than 10 rounds into California. (Pen. Code, § 32310, subdivision (a).)¹ On appeal, defendant asserts his conviction must be reversed for five reasons: (1) His prosecution was barred by the statute of limitations; (2) his trial counsel was ineffective for failing to raise a statute of limitations defense; (3) there was no substantial evidence that he imported the LCM; (4) he voluntarily "surrendered" the LCM to law enforcement; and (5) section 32310 violates his Second Amendment rights. We reject defendant's contentions and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2016, defendant called the police because his wife had "gone crazy" and pointed a gun at him. Defendant waited outside for the police to arrive and, upon their arrival, informed them that he had disarmed his wife, unloaded the gun, and left it in the garage. Defendant's wife exited the house crying and "almost hysterical." Based on her statements and appearance, the responding officers determined she should be placed on a 72-hour mental evaluation hold under Welfare & Institutions Code section 5150.

While speaking with the officers, defendant handed them a magazine with a 12-round capacity from his front pocket. The officers informed defendant that the magazine had been illegal since 2014. (§ 32310, subd. (a).) Defendant stated he had legally obtained the magazine while stationed in the Navy in Florida and had brought it with him when he moved to California "years ago." Defendant further stated that he knew he "couldn't have" the magazine and explained that he had forgotten to get rid of it.

In October 2016, the People filed a felony complaint against defendant charging him with one count of violation of section 32310, subdivision (a). The complaint alleged "that on or about June 3, 2016, . . . defendant[] did willfully and unlawfully manufacture, cause to be manufactured, import into the State of California . . . a [LCM]" in violation of section 32310, subdivision (a).

In May 2017, the People filed an information, charging defendant with a felony violation of section 32310, subdivision (a), and again alleging that defendant imported the LCM into California on June 3, 2016.

At the People's request, the section 32310, subdivision (a) charge was subsequently reduced from a felony to a misdemeanor. A jury found defendant guilty as charged. The trial court placed defendant on three years of probation.

Defendant timely appealed.

III.

DISCUSSION

A. Defendant Forfeited His Statute of Limitations Defense

Defendant argues for the first time on appeal that his section 32310, subdivision (a) charge was barred by the three-year statute of limitations. The People assert defendant forfeited the argument because he did not raise it in the trial court. We agree.

The applicable statute of limitations is three years. (§ 801; see People v. Crabtree (2009) 169 Cal.App.4th 1293, 1309-1310 [explaining that three-year statute of limitations applies to misdemeanor charge if originally charged as a felony].) Defendant contends his 32310, subdivision (a) charge, filed in 2016, was barred by the three-year statute of limitations because he committed the underlying offense of importing the LCM in 2009, when he moved from Florida to California.

A defendant may "forfeit factual issues relating to the statute of limitations when, as here, the information alleges facts indicating that the prosecution was timely." (People v. Simmons (2012) 210 Cal.App.4th 778, 793.) If the charging document "allege[s] that the action is timely, any objection to the sufficiency of the evidence to prove timeliness must be raised in the trial court in the first instance—typically, by requesting a jury instruction on the subject." (People v. Ortega (2013) 218 Cal.App.4th 1418, 1427-1428.) Put another way, if a charging document's allegations indicate the charge is timely, but the defendant contends the charge is untimely, the defendant must make that argument in the trial court or it is forfeited on appeal. (Id. at pp. 1427-1428; see also People v. Padfield (1982) 136 Cal.App.3d 218, 226 [holding defendant forfeited statute of limitations defense when charging document alleged defendant committed crime within statute of limitations period and defendant pled no contest]; People v. Simmons, supra, 210 Cal.App.4th at p. 793 ["We also conclude that a defendant may forfeit factual issues relating to the statute of limitations when, as here, the information alleges facts indicating that the prosecution was timely."].)

Here, both the October 2016 complaint and May 2017 information alleged that defendant violated section 32310, subdivision (a) in June 2016—well within the three-year statute of limitations. The People therefore pled facts to avoid the three-year statute of limitations. Because defendant did not challenge that allegation in the trial court, he has forfeited his right to do so on appeal. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1439 [holding that if "the People plead facts to avoid the bar of the statute of limitations, and the defendant fails to put the People to their proof in the trial court, then the defendant forfeits the statute of limitations issue and cannot raise it for the first time on appeal"]; accord, People v. Thomas (2007) 146 Cal.App.4th 1278, 1288, disapproved on other grounds by People v. Shockley (2013) 58 Cal.4th 400, 406.) Accordingly, we need not reverse defendant's conviction or remand to the trial court for a determination as to whether the charge was timely. (See People v. Ortega, supra, 218 Cal.App.4th at pp. 1427-1428.)

B. The Record Does Not Affirmatively Show Defense Counsel Was Ineffective

Defendant argues, and the People do not dispute, that even if he forfeited his statute of limitations argument, he can raise it "under the rubric of ineffective assistance of counsel." (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [appellate court may address forfeited argument to avoid a subsequent claim of ineffective assistance of counsel on habeas corpus].) The People nonetheless argue defendant cannot show that his defense counsel was ineffective for failing to raise a statute of limitations argument in the trial court. We agree.

To find that defendant suffered prejudicial ineffective assistance of counsel, defendant must show (1) his counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent his counsel's error, it is reasonably probable that the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)

A criminal conviction will be reversed for ineffective assistance of counsel only if the record "affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Zapien (1993) 4 Cal.4th 929, 980.) "Generally, claims for ineffective assistance of counsel are more appropriately litigated on habeas corpus because the reasons for defense counsel's actions or omissions can be explored." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1075.)

"[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistant of counsel "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)

The record here sheds no light on why defendant's counsel did not pursue a statute of limitations defense. Indeed, there is no record evidence showing whether defense counsel knew of that potential defense, or whether counsel decided to forego it for tactical reasons.

Defendant's counsel, however, reasonably may have opted not to assert a statute of limitations defense because it was inconsistent with defendant's theories that (1) someone else imported the LCM and (2) defendant did not intentionally import it. In closing argument, defendant's counsel argued: "[W]e've got an inference that [defendant] imported [the] magazine into California because he had it on his person. . . . Is there any other reasonable conclusion that could possibly be drawn from the fact that he had it on his person? Well, sure there is. Somebody else imported it. . . . [I]s it reasonable to say, yeah, somebody else brought it in? I submit that it is." Defense counsel further argued there was "no way" the prosecution had proven defendant had "wrongfully intended to bring [the magazine] into California."

But to assert a statute...