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Name: In re McSherry
Case #: B199945
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 11/28/2007
Summary

Because Penal Code section 647.6, subdivision (c) is a felony offense, with the prior conviction requirement being an element of the offense, an attempted commission of the offense is also a felony subject to the statute of limitations governing felonies. A jury found petitioner guilty of attempted child annoyance with a prior conviction, and after finding three prior “strike” convictions true, the court sentenced petitioner to prison for 25 years to life. Petitioner argued that section 647.6, subdivision (c)(2) applied only to the completed offense and, therefore, section 664 (the attempt statute) did not apply so as to subject him to the felony statute of limitations. He concluded that since his offense was not a felony, under this theory, the prosecutor failed to timely commence prosecution within the required misdemeanor time period, a year from the offense. His claim was rejected by the appellate court which described section 647.6 as a hybrid offense, punishable either as a misdemeanor or a felony, as determined by whether a prior conviction was proved. Because of the prior conviction in petitioner’s case, the offense was a felony subject to the felony statute of limitations and, thus, was timely prosecuted.