1 Filed 9/25/14 P. v. Parrish CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. AQUILLA PARRISH et al., Defendants and Appellants. C069281 (Super. Ct. No. 09F08653)

Defendant Aquilla Parrish and her daughter, Quilla Parrish, were charged by information with grand theft in violation of Penal Code section 487, subdivision (a) (statutory references that follow are to the Penal Code) arising from their scheme to fraudulently obtain money from the CalWORKS and In Home He alth Services programs. Ultimately, each entered a no contest plea to one count of a violation of section 487, subdivision (a) with the agre ement that the remaining count s would be dismissed and the court would order full restitution to the County of Sacramento. As to Quilla, the People2 also agreed that it would not pursue char ges arising from an investigation into an unrelated case. Defendants appeal arguing that each receiv ed the ineffective assistance of counsel for their respective attorneys’ fa ilure to advise them that pr osecution of one of the counts that had been dismissed may have been barre d by the relevant statute of limitations and the attorneys’ failure to challenge that co unt on those grounds. We reverse and remand the matter for further proceedings.

F ACTS A ND P ROCEEDINGS Aquilla and Quilla were charge d by information as follows: In Count One, the People charged that, between May 1, 2002 and April 30, 2003, by means of fraudulent representation and pret ense, Aquilla and Quilla stole $23,199.40 from the CalWORKS program which was th e property of the Sacramento County Department of Human Assistance, in viol ation of section 487, subdivision (a). In Count Two the People ch arged that, between April 1, 2003 and April 30, 2006, Quilla and Tyree Deshawn White, by means of fraudulent representation and pretense, stole $69,450.69 from the CalWORKS pr ogram which was the property of the Sacramento County Department of Human As sistance, in violatio n of section 487, subdivision (a). In Count Three, the People charged that, between August 15, 2006 and November 14, 2007, Quilla and Larry Darn ell Beverly, by means of fraudulent representation and pretense, stole $35, 958 .37 from the CalWORKS program which was the property of the S acramento County Department of Hu man Assistance, in violation of section 487, subdivision (a). In Count Four of the info rmation, the People charged that, between August 17, 2007 and March 25, 2008, by means of fraudulent represen tation and pretense, Aquilla and Quilla stole $3,166.80 from the In Home Support Services program which was the3 property of the State of California and the Co unty of Sacramento, in violation of section 487, subdivision (a). In Count Five of the information, th e People charged that, between March 26, 2008 and November 16, 2009 , by means of fraudulent representation and pretense, Aquilla and Quilla stole $46,445.36 from the In Home Support Services program which was the property of the State of Californi a and the County of Sacramento, also in violation of section 487, subdivision (a). Finally, in Count Six, the People charged that, on October 20, 2008, Quilla violated section 532(a) in that she unlawfu lly, knowingly, designedly and fraudulently gained possession of money, property, labor, and service of another. On May 20, 2011, Aquilla entered a plea of no contest to Count Five of the information and waived her rights pursuant to People v. Harvey (1979) 25 Cal.3d 754 ( Harvey ) in return for the People’s agreement to dismiss, as to her, Counts One and Four of the information and the parties’ further ag reement that Aquilla wo uld be sentenced to state prison for a period of two years and wo uld be subject to a re stitution order arising from all three of the counts in which she was named. Also on May 20, 2011, Quilla entered a plea of no contest to Count Five and waived her Harvey rights in return for an agreement to dismiss, as to her, Counts One, Two, Three, Four, and Six and the parties’ further agreement that Quilla would be sentenced to state prison for a period of three years, subject to a restitution order based on all counts and that the People would no lo nger pursue and would not charge Quilla with other crimes then unde r investigation. On September 9, 2011, the court hear d and denied each defendant’s motion to withdraw her no contest plea and sentenced defendants as follows: The court denied Aquilla probation and sent enced her to state prison for a term of two years. Among other orders , Aquilla was ordered to pay, jointly and severally with Quilla, restitution to the Count y of Sacramento in the amou nt of $23,199.40, the loss4 alleged in Count One, and $49, 612.16 to the County of Sacramento, the losses alleged in Counts Four and Five. The court also denied Quilla probation and sentenced her to state prison for a term of three years. Among other orders, Quilla was ordered to pay, jointly and severally with her various codefendants, restitution to th e County of Sacramento in the amount of $23,199.40, the loss alleged in Count One, $49 ,612.16, the losses alleged in Counts Four and Five, $69,440.69, approximately the loss alleged in Count Two, $35,958.37, the loss alleged in Count Three, and, to the indi vidual victim in Count Six, $5,625. Having obtained certificat es of probable cause, defendants appeal.

D ISCUSSION

Because we are able to reso lve the issues raised in this appeal without a detailed recitation of the facts underlying the crimes alleged in the informat ion, we will relate them only briefly here. According to the probation reports, regarding Counts One, Two, and Three, between May 1, 2002 and November 14, 20 07, Quilla obtained $ 128, 608.46 from the CalWORKS program by falsely claiming th at her mother, Aquilla, and her other codefendants, were providing her child care wh ile she was attending school. During this period, she was not attending school. Re garding Counts Four and Five, between August 17, 2007 and November 16, 2009, Quilla obtained $49 , 612.16 from the In Home Support Service program by falsely claiming Quilla was severely disabled and required her mother’s assistance in orde r to live safely in her home. As to Count Six, Quilla was responsible for failure to pay the rent for a home she had rented from a private party.5 I Ineffective Assistance of Counsel
Both defendants raise a si ngle issue for us to consider on appeal, arguing that each received ineffective assistance of counsel for their atto rneys’ failure to assert a defense to Count One based upon the expirati on of the statute of limitations as to that count or to advise them of that defense prior to entering their no contest pleas. They claim that, had they known the prosecution of Count One wa s barred by the statute of limitations, they would not have entered into th e plea agreements that they di d, that their pleas of no contest were not knowing, inte lligent and voluntary and that, therefore, they are entitled to withdraw their pleas of no contest. The People agree that the matter should be remanded to the trial court for further proceedings to determine whether the pros ecution under Count One was barred by the statute of limitations, tacitly conceding that defendants did not receive effective assistance of counsel in entering their pl eas pursuant to the negotiated settlement. As set forth above, Count One of the information charged that, between May 1, 2002 and April 30, 2003, A quilla and Quilla fraudulently obtained $23,199.40 from the CalWORKS program by falsely claiming that Quilla was attending school and that Aquilla was providing care to Quilla’s children, thus violating sect ion 487, subdivision (a). Section 801.5 sets forth the statute of lim itations for this offense and provides that a “prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later.” (§ 801.5.) Section 803, subdivision (c)(1) lists “g rand theft of any type” as coming within its provisions. (§ 803, subd. (c)(1).) Thus the prosecution of these defendants for the theft alleged in6 Count One of the information ha d to be commenced within four years of discovery, or completion, of the offense, whichever was later. At the time the information was filed charging Count One, a prosecution was deemed commenced when (a) an indictment or information was filed; (b) a complaint was filed charging a misdemeanor or infraction; (c) a case was certified to the superior court; or (d) an arrest warrant or bench warrant was issued , provided the warrant named or described the defendant with the same degree of particularity required for an indictment, information, or complaint. (Former § 804.) The complaint in this ma tter was deemed an informa tion and the information was filed November 4, 2010 after both appellants waived a preliminary hearing. Count One alleges that the offense set forth therein was completed on April 30, 2003 and, unless the statute was tolled by late discovery of the offense, the prosecution had to commence not later than April 30, 2007. On the face of the complaint at le ast, prosecution of the offense described in Count One was time-barred by the time the prosecu tion commenced on November 4, 2010, more than seven years after the offense was complete.
In People v. McCary (1985) 166 Cal.App.3d 1 ( McCary ) the defendant was charged with sodomy of a child under the age of 14 (§ 286, subd. (c)), and three acts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)), among other charges. Defendant was also charge d with a serious felony enhancement under section 667, subdivision (a). Just before tr ial began, defendant pleaded guilty to two of the counts alleging a violation of section 288 (a) (lewd and lascivious conduct) in return for a dismissal of the remaining counts and th e serious felony enhancement. At the time of the plea, the People explained that they were willing to dismiss the other charges to spare the victim and because the People ha d “evidentiary problems” with the sodomy count, specifically that the doctor who examined the vic tim was of the opinion she had not been sodomized.7 Subsequently, defendant moved to withdraw his plea, explaining that he had been under extreme emotional distress at the time of the plea and that he had not been previously aware of the physic ian’s opinion that the child victim had not been sodomized. The motion was denied. On appeal, defendant argued that he had su ffered ineffective assistance of counsel. This court agreed on the ground s that, at the time of his plea, due to a change in the law, defendant was not subject to the five year se rious felony enhancement. His attorney was either unaware of or failed to inform defendant of that prior to his plea. We said that the serious felony enhancement added five years to a minimum possible term of imprisonment of three years for a total minimu m term of eight years as opposed to three years. We held that counsel’s failure to know or to convey to the de fendant the fact that he was not subject to the five-year enhancem ent before he entered his plea did not meet the standard of a reasonably competent a ttorney and that defe ndant was prejudiced thereby. We found that defendant’ s ignorance of the invalidit y of the enhancement was a factor bearing on whether defendant’s pl ea was based on mistake, ignorance or inadvertence which affected defendant’s free a nd clear judgment. We said: “In pleading guilty and receiving a di smissal of the enhancement, defe ndant avoided the possibility of having his sentence increased by a mandatory five years over a minimum possible three years. Furthermore, the record suggests th e plea bargain was not highly attractive to defendant in the first place, for he moved for withdrawal on grounds unrelated to the enhancement and while still unaware of its invalidity. Moreover, the sodomy charge was dismissed for certain evidentiary problems of which defendant was made aware prior to pleading. Accordingly, it can be fairly concluded the promise to dismiss the enhancement charge was a subs tantial inducement in defendant ’s decision to plead guilty. Since the enhancement charge was invalid to begin with, the promise to dismiss it was of no value.” ( McCary , supra , 166 Cal.App.3d at p. 10; see also People v. Johnson (1995)8 36 Cal.App.4th 1351 [ineffective assistance of counsel where defendant agreed to a 20- year term after his counsel told him his maxi mum term was 38 years when it was, in fact, 27 years].) The same result must obtain here. On this record, there is no indication that counsel for the defendants res earched the statute of limita tions issue relating to Count One nor does the record reflect any challenge to Count One on those grounds. While a conviction on Count One would have added onl y eight months to the maximum sentence, defendants’ terms to state pris on were for two and three years. We cannot say that, had they known they were not su bject to the additional eight- month sentence they would not have insisted on a more favorab le agreement. Moreover, if it turns out that Count One is barred by the statute of limitations, the rest itution order arising from that count cannot stand. In sum, counsels’ “ ‘represent ation fell below an objective standard of reasonableness . . . under preva iling professional norms.’ ( Strickland [ v. Washington (1984) 466 U.S. 668, 688] [80 L.Ed .2d [674,] 693-694]; accord, [ People v. ] Pope [(1979)] 23 Cal.3d [412], 423-425.)” ( People v. Ledesma (1987) 43 Cal.3d 171, 216.) Defendants were prejudiced thereby. Finally, in these circumstances, “the appe llate court must look to see if the record contains any explanation for th e challenged aspect of represen tation. If it does, the court must inquire whether the explanation de monstrates that counsel was reasonably competent and acting as a conscientious, dili gent advocate. For example, where the record shows that counsel’s om issions resulted from an inform ed tactical choice within the range of reasonable compet ence, the conviction must be affirmed. (Citation omitted.) In contrast, where the record shows that counsel has fail ed to research the law or investigate the facts in the manner of a diligent and conscientious advocate, the conviction should be reversed since the defendant has been deprived of adequate assistance of counsel. (Citation omitted.)” ( People v. Pope (1979) 23 Cal.3d 412, 425- 426.)9 We can discern no reasonable tactical decision not to cha llenge Count One as being beyond the limits of the relevant limitati ons period. While one might speculate that counsel did investigate into this issue and found that discovery of the fraudulent conduct tolled the statute for a time sufficient to bri ng the prosecution within the period set forth in section 801.5, that would have us looki ng for a reasonable tactical decision based on pure speculation rather than looking for a reasonable explanation based on facts contained in the record of trial which we may not do. On this record, defendants were not affo rded the effective a ssistance of counsel and the matter must be retu rned to the trial court.

II The Remedy While the parties appear to agree that defendants did not receive the effective assistance of counsel, they do not agree on the remedy. Defendants say the matter must be returned to the trial cour t where the defendants may wit hdraw their plea. The People say that, given the discovery pr ovisions of section 801.5, th e matter should be returned to the trial court for that court to determine, at least initially, whether discovery of the crime alleged in Count One came within the four year limitation peri od. We think the latter is the appropriate remedy here. It may be, give n a challenge to Coun t One on limitations grounds, the People will be able to show that Count One was not barred by the statute of limitations. In that event, de fendants’ pleas must stand. If the People cannot make that showing, defendants are entitled to withdraw their pleas and the pr osecution will proceed from there. (See People v. Lynch (2010) 182 Cal.App.4th 1262, 1275-1277.) If the People can make that showing, defendants’ motion to withdraw thei r pleas should again be denied.10 D ISPOSITION The judgment is reversed and the ma tter is remanded to the trial court for proceedings consistent with this opinion.

HULL , Acting P. J.

We concur:

MURRAY , J.

DUARTE , J.