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Name: People v. McSherry
Case #: B181229
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 09/28/2006
Summary

Appellant was convicted of attempting to annoy or molest a child under 18, which is usually a misdemeanor offense (Pen. Code, sec. 647.6, subd. (a).) Because appellant had a prior conviction for a violation of section 288, the offense was a felony (sec. 647.6, subd. (c)(2).) On appeal, appellant contended that because the conduct underlying his offense was a misdemeanor, the applicable statute of limitations was one year, and because the information here was filed more than one year after the incident, the conviction had to be reversed. The appellate court disagreed and affirmed the conviction. In order to determine the applicable statute of limitations, section 805, subdivision (a) directs that the maximum punishment prescribed, not that actually sought or imposed, is the determinative factor. Further, legislative history shows the Legislature’s intent that Penal Code section 647.6, subdivision (c)(2) be governed by a three-year statute of limitations.