*1 Aug. S067443. 1999.] [No. PEOPLE, Plaintiff and Appellant,
THE FRAZER, Defendant and
RAYMOND LAWRENCE Respondent.
Counsel General, Daniel E. and Bill Lungren Lockyer, Williamson Attorneys George *5 Druliner, General, and David P. Chief Assistant Robert R. Attorneys Anderson, General, Gaard, Assistant Scott and Janet Attorney W. Thorpe General, Assistant for Plaintiff and Attorneys Appellant. T.
William for Defendant and Rigsby Respondent. Charles M. and John T. for California Sevilla Philipsborn Attorneys Criminal Justice as Amicus Curiae on behalf of Defendant and Respondent. B. B. for California Dashjian Law Offices of Michael Michael Dashjian Amicus Defense Counsel as on behalf of Defendant and Curiae Appellate Respondent.
Opinion BAXTER, J. the Penal Code1 has contained statutes of many years, For a fixed limitation child molesters within allowing alleged (See, 800.) number of after the crime was committed. years e.g., Recently, § (section to the added section subdivision Legislature (g) 803(g)), of such crimes for an additional scheme to permit prosecution one of the time the victim year independently period—within reports terms, the corroborated crime to law enforcement officials. its own new By whether the crime occurred before one-year period applies also after section became effective. The new law without 803(g) applies to whether the fixed statute of limitations for crime has regard already and had when section took effect. already 803(g) expired, expired, section Pursuant to section defendant was 803(g), charged violating children, one after the year lewd conduct within prohibiting against the crime to the The fixed limitations victim reported police. filed,
existence the crime occurred had run before the was when complaint and before section became effective. 803(g) constituted an
Defendant demurred on grounds 803(g) impermis- Constitutions, sible ex facto under the United States and California law post him of a statute of limitations defense under the unfairly deprived made clauses of the United States Constitution. No argument can defendants target that a law the time for never increasing filing charges statute of limitations was who committed their crimes before the new longer Rather, change only enacted. defendant challenged postcrime statutory who, him, accused of crimes insofar as it affected individuals like were the demurrer time-barred under law. The trial court sustained already prior affirmed. The sought and dismissed the case. The Court of Appeal People in this court. judgment review to section cannot
For reasons we defendant’s challenge explain, in Collins v. Youngblood under the formula prescribed prevail (Collins) for when determining 111 L.Ed.2d U.S. 37 to defend ex With respect legislation triggers protection. penal *6 claim, statutes authorizing there is no authority specifically ant’s However, the States in criminal cases. United Supreme like section of an to retain the benefit expired Court has rejected analogous attempts The court high a matter of substantive due statute of limitations as process. concerning that due process inquiries has also indicated any procedural factual in nature. Based of a criminal indictment are inherently timing except as otherwise stated. are to the Penal Code All further references se. We will per is not unconstitutional section 803(g) these principles, the judgment. therefore reverse Statutory Background
I. enacted in 1851 first statutes of limitation were California’s criminal scheme, sections 799 currently which appears in 1872. The entire codified 805.5, ch. (Stats. pp. §§ was overhauled 1984. through amend time, determined 4335-4337.) Legislature piecemeal At that inconsistent, confusing, a scheme that was had ment over years produced to balance sought revisions in cohesive rationale. and lacking the need to punish stale claims against pursue interest in barring state’s offenders, (Recommendation Relating cases. in serious particularly Revision (Jan. 1984) 17 Cal. Law for Felonies to Statutes of Limitation Limitation); see (Statutes generally, Com. Rep. Uelmen, Limitations Criminal Statute Sense out Making California 35.) L.J. (1983) 15 Pacific murder, embezzlement of public of limitations for
There is no statute funds, (§ 799.) life imprisonment. and certain other offenses punishable Otherwise, cases, sex crimes chil- against those including involving felony dren, set forth in sections are the limitation periods generally governed and 801. “commenced” either three years must be
Basically, felony prosecution offense,” commission (§ (§ 800) “after of the 801) depending or six years for the available as statutorily punishment the term of imprisonment upon the circumstances under which prosecution crime.2 Section 804 describes indictment, to include the time at which a criminal complaint, “commenced” (Id., (a) (b).) 805 makes clear “is subds. & Section or information filed.” statute” determines applicable the “maximum prescribed by punishment (Id., (a).) subd. defines the and also quoted phrase. period, in section 803. Accord- and 801 are contained to sections 800 Exceptions the exclusive circumstances (a), section 803 sets forth to subdivision ing or “tolled.” As be “extended” under such statutory periods may time, section 803 and continuing through present enacted in based while another running statutory period prosecution suspends 799, prosecution for an offense “Except provided as in Section 2Section 800 states: be commenced eight years for or more shall by imprisonment prison in the state punishable the offense.” years six after commission of within an offense “Except provided in Sections 799 Section 801 states: years three after prison the state shall be commenced within punishable by imprisonment commission of the offense.” *7 (id.,
on the same conduct court defendant in state pending against commencement (b)), subd. for certain offenses delays statutory period fraud, theft, and breach of until the crime is involving fiduciary duty limits, (id., (c)), discovered subd. and within certain of running suspends, (id., (d)). while defendant is absent from the state subd. statutory period id., (See (e), also added subd. Stats. ch. [delaying § start of certain and until Water Code Health and statutory period Safety discovered].) Code are violations 1980’s, in the late lawmakers across the became
Beginning country aware victims often sexual abuse increasingly young delay reporting because are offenders in of they easily manipulated by positions authority trust, children and because the crime or have difficulty remembering Hence, the trauma it can cause. states limited the facing which traditionally time for child molestation in a manner similar to sections 800 prosecuting and 801 have started to increase the time in which criminal substantially can be filed after the assault occurred.3 in a charges Although they operate of these new statutes to crimes committed both variety ways, generally apply before and after their enactment. The new statutes of limitation are longer based that both and future sex crimes premise against apparent past children would otherwise go largely unpunished.
The California took similar it added subdivision Legislature when steps (Stats. (the to section effective ch. (g) January 1994. § enacted, law).) As stated that where certain originally serious sex offenses were committed who was allegedly against victim time, under at the the “limitation where age period specified Section 800 or 801 has criminal is nonetheless expired,” complaint timely if it is filed “within one of the date of a to a law enforcement year report filing charges other in the time for in child sexual 3Increases states cases, policies underlying changes, are documented in recent abuse as well as such well Constitution, Adams, (See Retroactivity, legal writings. Beyond the Reach Courts?: The of (1997) (Retroactivity and Childhood Sexual Abuse 28 Pacific L.J. 796 & fn. 5 and Childhood Note, Abuse)-, Enough? Sexually Are and the Sexual Have We Gone Far Children Who Abused (1992) Legal legislative Prosecuting Abuser 8 St. John’s J. Judicial Means 339, 340-342, 355-357, 363-365; Porto, Hampshire’s Limita Comment. New New Statute of (1991) Policy? tions Child Sexual Assault: Is It Constitutional and Is It Good Public for 142-143, 159-162; Comment, Eng. Child Sexual Abuse and Criminal New L.Rev. 190-191, 197, Limitation: A Model 65 Wash. L.Rev. Statutes for Reform Comment, (A Reform)-, Limitations Child Sexual Abuse 201-203 Model Statute for for Criminology Utilizing Discovery Rule J. Crim. L. & A Time Offenses: 842, 843, for Reform Note, (A Legislatively En Reform)-, Application Retroactive 859-860 Time for (1989) 22 Ind. L.Rev. larged Statutes Limitations Child Abuse: Time’s No Bar to Revival Edwards, (Time’s Revival)-, Legal Sagatun see & Child Abuse and the No Bar to 113-144, 220-223.) System *8 crime.4 terms of the 1994 Under literal the victim about agency” made and the law, at the time the was report could be “any age” the victim However, statute to run. 803(g) began in section extended period corroborates and convincingly that clearly evidence “independent required circumscribed in which this stan- the manner victim’s allegation,” (Former dard could be met. 803(g)(2).) § to file child mo-
Prosecutors invoked foregoing provisions promptly crime, the victim reported based on the time charges lestation the statute of limitations of when the crime occurred or when regardless courts found no constitutional otherwise Some lower expired. set forth in even where the limitations 803(g) period bar to section applying had before 1994.5 January section 800 or 801 expired However, that were originally published in opinions enacted, did held that section as first 803(g), several Courts of Appeal as of of the crime otherwise time-barred where was apply rule date.6 This line of cases invoked general the statute’s effective absence of a clear of statutes in the disfavoring “retroactive” application 1, 1994, January read in full as follows: 4The version of section which took effect seq.], a criminal “Notwithstanding any other limitation of time described in 799 et [section agency by may year one of the date of a to a law enforcement complaint report be filed within she, any age alleging age years, of 18 was the victim person of that he or while under conduct], 288a [rape], [sodomy], a crime described in 288 [lewd [oral of Section abuse], foreign object], or penetration by copulation], 288.5 sexual 289 [sexual [continuous following [fleeing only both of the occur: apply sex This subdivision shall if 289.5 offender]. “(1) specified expired. The limitation in Section 800 or 801 has conduct, (b) “(2) as described in subdivision The crime involved substantial sexual mutual, 1203.066, excluding independent and there is Section masturbation which is not allegation. clearly convincingly the victim’s No evidence evidence that conoborates during allegation be inadmissible be used to corroborate the victim’s which would otherwise professionals.” opinions of mental health Independent trial. evidence shall not include 390, 1.) (Stats. ch. § denying judgment court 5(People Maloy Appeal v. reversed trial (Cal.App.) [Court under been dismissed as time-barred complaint motion to reinstate that had prosecutorial 22, 1995, 24, 1997, 803(g)], granted April on review dismissed review November (1995) 33 803(g); Lynch Superior Court light intervening amendments to section v. (Lynch) court overruled defendant’s Cal.App.4th Cal.Rptr.2d [trial 803(g), ruling later on time-barred under section but vacated complaint demurrer to 25, 1995.) May Appeal], mandate Court of review denied 24, 1997, 11, 1996, April review 6(People King granted December on (Cal.App.), review 803(g); People (Cal.App.), light intervening to section v. Sowers dismissed in amendments 14, 1996, intervening light granted April dismissed in review March on review granted 803(g); People (Cal.App.), September review amendments to section v. Richard G. 24, 1997, intervening to section light of amendments April review dismissed in 1223.) 803(g); Lynch, supra, Cal.App.4th intent.7 These decisions relied contrary on the absence of primarily explicit in the law it language “revived” the state’s stating ability defendants prosecute whom the fixed statute of limitations had run against before Some of these 1994. Court of decisions assumed a Appeal contrary *9 would violate ex interpretation principles.8 Judicial reluctance to in older child molestation cases apply 803(g) did not unnoticed go by Legislature. an amendment that became Through 1, 1997, the statute operative January identified in detail the cases greater that could be (Stats. prosecuted delayed crime. despite reporting (the ch. version).) 1996 amendment or § First, retained, the 1996 version without substantive all change, lang- Thus, that uage had been of the 1994 law.9 to section part according as amended 803(g)(1), a criminal if it is filed complaint timely no more than “one after a victim of to a year” “any age” law reports she, enforcement that he or under agency “while of 18 age years,” was abused the defendant. Like its sexually 1996 version predecessor, where “limitation applied Section 800 or 801 has period specified (Former expired.” evidence” 803(g)(2)(A).) “independent substantiating § 7(See retroactive, [stating provision no of the Penal Code expressly § “is unless so declared”]; People Hayes Cal.Rptr. v. Cal.3d 783 P.2d 719] [stating “generally basic rule of construction that presumed new statutes are operate prospectively retroactivity absent an express compelling declaration of or a clear and otherwise"]; implication Legislature Evangelatos that Superior intended v. Court Cal.Rptr. general 44 Cal.3d [explaining presumption 753 P.2d that prospectivity may language calling in favor of be “express overcome in the statute application” making “very Legislature retroactive or “extrinsic sources” it clear” that the result].) intended such a 8 16, 1995, 24, 1997, (People Regules (Cal.App.), granted review April November light intervening 803(g).) review dismissed in amendments to section amendment, language 9As a result of the imported original wholesale from the version 803(g) (2), reorganized newly configured of section into was subsections as follows: “(1) Notwithstanding any seq.], other limitation of time described in et [section complaint may year report be filed within one of the date of a to a enforcement law she, agency by person any age alleging age that or years, he while under the of 18 was 288, 288a, 288.5, 289, the victim of a crime described in Section 289.5. “(2) following applies only This subdivision if both of the occur: “(A) period specified expired. The limitation in Section 800 or 801 has conduct, “(B) (b) The crime involved substantial sexual as described in subdivision 1203.066, mutual, excluding independent Section masturbation that is not and there is convincingly allegation. clearly evidence that corroborates the victim’s No evidence during allegation be used to corroborate the victim’s would be inadmissible otherwise Independent opinions professionals.” trial. evidence does not include the of mental health (Stats. 1996, 130, 1.) ch. § defined no differently and was also still required, sallegation victim’ (Former 803(g)(2)(B).) than before. §
Second, that had previously added provisions amendment which, as language explained Critical here is new in the statute.10 appeared declining cases the line of Court Appeal in the targeted later opinion, before the that were time-barred in molestation cases section apply into existence. law came one-year made clear 1996 version
Specifically, before, arising to a cause of action set forth in section 803(g) “applies (Former on, date of this subdivision.” or after effective January *10 made The amendment also (3)(B).) explicit & 803(g)(3)(A) § or barred Section 800 cause of action by intent to “revive Legislature’s any the time the victim is filed one year 801” within complaint where officials, by enforcement as otherwise required the crime to law reported (3)(B)(i).)11 (Former statute. & 803(g)(3)(A) § be mentioning
An overview of section would not without 803(g) complete time, (Stats. a second effective June 1997. statute was amended 803(g) a amendment 10Languageincluded for the first time in section as result of (3), placed in subsection as follows: was before, 1, 1997, “(3)(A) arising July applies to a cause of action Effective this subdivision subdivision, on, 1, 1994, complaint and if the is filed January or after the effective date of this subdivision, any action barred this it shall revive cause of period specified within the time in by Section 800 or 801. 1, 1997, 30, 1997, “(B) to a cause January through applies June this subdivision Effective subdivision, 1, 1994, before, on, arising January the effective date of this of action or after following by or 801 if either of the any and it shall revive cause of action barred Section 800 occurs: subdivision!, “(i) period-specified the time in this complaint or] The is filed within “(ii) agency to a law enforcement report required The victim made the this subdivision 1, 1997, 1, 1994, the time January January complaint a was not filed within between and and dismissed, but the time but was period specified in this subdivision or was filed within 1.) (Stats. ch. complaint § a is filed or refiled on or before June 1997.” clause, savings appearing in special that the amendment also inserted a 11Wenote provision 803(g)(3)(B)(ii), quoted preceding in full in the footnote. This former section and 30, 1997, any child timely complaint “refile” a in gave June “file” or prosecutors until agency the crime to a law enforcement between reported case in which the victim molestation 1,1997, 1, 1994, “was not filed within January January complaint and in either and period but or filed within the time [one-year] period specified time was [the statute] terms, (Ibid.) savings appeared By special provision its own was dismissed.” applied regardless of when 803(g)(3)(B)(ii) a result of the amendment former section “before, on, 1994”), was (i.e., January and even where the effect occurred or after the crime (Former 803(g)(3)(B).) § that was otherwise time-barred. to “revive” (the ch. amendment).) The amendment rise to gave § time, the version of section which exists at the which will present be cited throughout opinion.12 803(g) currently
12Section provides in Ml as Mlows: “(1) Notwithstanding any other limitation of time et seq.], described [section complaint may year be filed within one of the a report date of to a California law she, agency by person any age alleging enforcement age that he or under while of 18 261, 286, 288, 288a, 288.5, years, was victim of a crime described in Section 289.5.
“(2) applies only This subdivision if following both of the occur: “(A) The period specified limitation in Section expired. 800 or 801 has “(B) conduct, (b) The crime involved substantial sexual as described in subdivision 1203.066, mutual, excluding Section masturbation that is not independent there is clearly convincingly evidence that allegation. corroborates the victim’s No evidence allegation be used to corroborate the during victim’s that otherwise be would inadmissible Independent trial. evidence opinions does not include the of mental professionals. health “(3)(A) before, on, applies arising This subdivision to a cause January of action or after subdivision, the effective date of this and it any shall revive cause of action barred Section following 800 or 801 if occurred or occurs: “(i) 1, 1997, complaint The or indictment January was filed on or before and it was filed within the time period specified in this subdivision. “(ii) complaint subsequent January or indictment is or filed and it is or period specified was filed within the time within this subdivision. *11 “(iii) The report required by victim made the agency this subdivision to a law enforcement 1, 1994, January after and a complaint or indictment was not period filed within the time subdivision, specified in this but a complaint days or indictment is filed no later than 180 after Court, the date on published opinion deciding which either a of the Supreme California the constitutional, question application of whether retroactive of this subdivision is becomes final or the United States Supreme opinion deciding question Court files an the of whether constitutional, application retroactive of this subdivision is whichever occurs first. “(iv) The made report required agency victim the this subdivision to a law enforcement January after complaint and a or indictment was filed period within time subdivision, indictment, specified in complaint, subsequently this but the or filed information dismissed, was but a complaint days new or indictment is filed no later than 180 after the date Court, published opinion Supreme deciding which either a of the California question constitutional, whether application retroactive of this is subdivision becomes final or the United Supreme opinion deciding question States Court files an of whether retroactive constitutional, application of this subdivision is whichever occurs first. “(B)(i) report required by If the victim made the this subdivision to a law enforcement 1, 1994, agency January complaint after and a or indictment period was filed within the time subdivision, indictment, specified complaint, subsequently in this but the or filed information dismissed, complaint notwithstanding was a new or any indictment be filed other law, to, provision including, (c) but not limited subdivision of Section 871.5 subdivi- (b) sion of Section 1238. subdivision, “(ii) dismissing An order an action filed under this which is entered or any prior days published becomes effective at time to 180 after the date on which either a Court, opinion deciding of the Supreme question California of whether retroactive constitutional, application of this is Supreme becomes final or the United States Court deciding opinion question application files an of whether retroactive of this subdivision brief, authorizing disturb core did not provisions In amendment date of a “one of the report within year” commencement of she that he or claiming of “any age” enforcement agency by person a law of 18 under the age enumerated sex crime “while the victim of an continues to where (§ one-year apply The 803(g)(1).) period years.” has and where “limitation 800 or 801 expired,” Section period specified clear, nature supports of a convincing, specified evidence” “independent However, the amend- (2)(B).) & (§ claim. 803(g)(2)(A) the victim’s enforcement describe “law used a new word—“California”—to ment (§ 803(g)(1).) must be made. report which agency” requisite that first unchanged language appeared amendment also left the state’s to file ability of the statute concerning the 1996 version Hence, with respect in cases that time-barred before 1994. were charges filed the one-year period provided or indictment within any complaint before, on, therein, after action or arising the statute to a cause of “applies subdivision, 1, 1994, and it shall revive the effective date of this January (§ 800 or 801.” 803(g)(3)(A).) cause of action barred Section directly amendment made changes In all other the 1997 respects, after cases in the victim crime here concerning reported applicable after or indictment is filed only and in which January complaint or or in which a complaint in section has one-year expired, is dismissed and later refiled. indictment filed within one year report in these (iv), (3)(B)(i)-(iii).) Of interest (§ & 803(g)(3)(A)(iii) particular however, the timeliness of prosecutions is language concerning provisions, court, instituted, reinstituted, of this a certain time after opinion within Court, decides whether “retroactive finally or the United States Supreme (iv), & (§ “is constitutional.” 803(g)(3)(A)(iii) the statute application” (3)(B)(ii), added.)13 italics *12 constitutional, first, terminating an action be considered an order whichever occurs shall not meaning the of Section 1387. within “(iii) constitutionality made Any ruling regarding retroactivity the of this subdivision or its by any any appellate court or intermediate previous proceeding,
in the course of the trial court, binding refiling.” upon shall not be provision, 803(g) only of its kind in California. A similar 13Section is not the statute (f), years (g) was enacted. added to section a few before subdivision subdivision was 1312, 1, (Stats. 5269.) 803(g) timeliness of child concerns the ch. While section § including “any age,” victims charges police report based on a made victim molestation adulthood, (f) year within which provides of section 803 one who have reached subdivision agency” by a responsible adult or victim prosecute reported to enumerated sex crimes “to (Id., (f)(1).) respects. provisions differ in certain years age.” subd. The two “under 18 the (f) evidence to corroborate require independent does not Subdivision of section 803 (f) alone in (Cf. of section 803 also stands report. 803(g)(2)(B).) Subdivision § victim’s History
II. Procedural 21, 1996, On October the district filed in Mendocino attorney complaint Court defendant County with one count of lewd conduct Municipal charging (a) a child under fourteen in age violation of section subdivision upon earlier, (section 288(a)), a The crime occurred 12 felony. allegedly years 1, 1984, between October and December victim underage 1984.14 addition, identified as Jessica F. In the complaint alleged prosecu- tion of the crime was authorized under section which was described 803(g), as an to statute of limitations in section 800. “exception” six-year
Defendant demurred on the the action ground was time-barred under as to section this no later than December “expired charge defendant, 1990.” could not be considered According complaint under section even timely 803(g) law enforcement officials re- assuming First, ceived the victim’s no more than one earlier. defendant year report asserted, as a matter of that the additional statutory interpretation, one-year where, here, limitations in section does not period 803(g) apply in section had six-year before section became period expired 803(g) alternative, effective on In 1994. defendant that a January urged construction of section would violate the ex contrary 803(g) Constitutions, clauses of the United States and California and the due clauses of the United States Constitution. On court sustained the demurrer and February municipal decision, ordered the case dismissed. In a statement written court reasoned that section should be 803(g) construed in defendant’s favor be- cause, as first enacted in it did not actions that were clearly govern However, time-barred before its effective date. the court did not apparently consider the 1996 amendment section which became effective 40 803(g), requiring involving that “at least one” enumerated sex crime the defendant and the victim period specified occur “within the limitation for that crime in either Section 800 or 801.” However, (§ (f)(2)(B).) one-year period provisions applies subd. in both where the (f)(2)(A) (§ (g)(2)(A).) expired.” in section 800 or 801 “has subds. & Moreover, changes section made corresponding 1997 amendments to result, (f) subdivision of the same section the same time. As a section subdivision (f)(3) express “retroactivity” virtually language contains “revival” and provisions identical 803(g)(3). under in section now review 288(a) changes, of a exception 14With few nonsubstantive has remained occurred, 288(a) allegedly through present same since when the crime time. Section act, currently “Any willfully lewdly person states: who commits lewd lascivious Code], including any constituting provided of the acts other crimes for in Part 1 the Penal [of *13 thereof, age upon body, any part or the or member of a child who is under the of 14 with or lust, to, years, arousing, gratifying passions, or appealing with the intent of or the sexual child, guilty felony by person punished imprisonment desires of that or the of a and shall be three, six, prison eight years.” in the state demurrer, before the on added bearing the days ruling language the the statute in defendant’s. Having on cases such as applicability the resolved the matter in favor of defendant on statutory grounds, municipal court did not reach the constitutional he had raised. questions
The moved in court to reinstate the People promptly superior complaint. that the amendment eliminated in They argued any ambiguity and authorized the of molestation where statutory filing charges language, the statute of limitations had before and where the otherwise expired victim the crime under the circumstances. The also reported People requisite the court to find no in the urged constitutional bar to use of section 803(g) motion, case. In defendant all present statutory renewed opposing simply and constitutional set arguments forth in the demurrer. previously
The court issued a written superior construc- ruling adopting People’s However, tion of the statute. the court found that “the clear intent legislative to revive causes of action barred statutes of limitation violates the already ex facto clauses of the United States California post and/or Constitutions by of a changing legal defendant’s conduct.” The motion consequences past to reinstate the was denied. complaint The Court of affirmed the in a People appealed. Appeal judgment
brief opinion used court in accepted reasoning superior denying reinstatement of the The Court of observed that complaint. Appeal two other courts had invalidated section on appellate ex face, grounds insofar as it on its time-barred to cases that applied, were before the law was Bunn v. passed. (People Cal.App.4th (Bunn); 232-239 Cal.Rptr.2d Lynch, Cal.App.4th 1226-1228.) Like Bunn and Lynch, the court in this case also relied language (2d 1928) Falter v. United States Cir. 23 F.2d (Falter), which is discussed later We granted opinion. People’s for review to petition address of the statute. constitutionality Application
III. of Statute matter, here, As a threshold assume as on parties appeal, section 803(g) in the case as a applies matter of construc present statutory statute, tion. Under this of the reading a felony which otherwise of section complies requirements 803(g) is whether or not timely the crime occurred before or not the January whether otherwise under section 800 or 801 before applicable expired January statute, 1994. Based on the and “extrinsic” “express language” record, evidence in the we have no doubt the statute legislative operates Court, this manner. (Evangelatos 1209.) 44 Cal.3d Superior *14 that the amount of time pass restricted 803(g) At no has section point commencement of the prosecution. of the crime between commission at the limits of the victim either on the age does the statute any Nor place made, or at the time criminal the statute is to trigger time a sufficient report Rather, a felony are filed. prosecution based on such a charges report under the literal is timely one year qualifying report commenced within even, if the limitations only, period indeed terms of section 803(g)(2)(A) or 801 “has expired.” under section 800 otherwise applicable in section that the one-year period ensures obviously The phrase quoted 800 and 801 conflict with sections or otherwise does override 803(g)(1) enforcement agency to a law victim the crime qualifying where the reports latter “has set forth in the provisions three-year six-year period before the other in section 803(g)—like the limitations In this way, period expired.” statute—serves prolong, same and “extension” “tolling” provisions shorten, child molestation felony the time in which rather than commenced. bemay be
However, that the crime must 803(g) in section nothing provides committed, 800 or 801 must expire, in section or that the period extended one-year apply. in order for the January after where section even 803(g) left no doubt that applies amendment before 1994. January statute of limitations expired existing seen, the Legisla- of which certain Court of Appeal opinions
As we have cases in such 803(g) section aware refused to apply ture was presumably of the time the one year were filed within charges where criminal even (Ante, fn. officials. crime to law enforcement the underlying victim reported at that the law was reasoned 6.) authority line of This once-published to “revive” pros- intent legislative insofar as it reflected least ambiguous the time 800 and 801 by under sections ecutions that were time-barred amendment, on the language enacted. Based section 803(g) this gap by providing to fill sought perceived the Legislature obviously the state’s ability limitations period one-year “revive[s]” compliance 801,” 800 or “barred Section action “any” to file felony charges on, January or after “before, crime occurred whether regardless added.) italics 1994,” (§ the statute. 803(g)(3)(A), effective date of the initial crimes all enumerated sex in prosecutions Because it explicitly applies crime “any” including January time “before” occurred limitations, necessarily the statute of “barred” by otherwise under sec- here, where, otherwise applicable the six-year period applies a contrary In order to reach before 1994. January tion 800 had expired *15 conclusion, we would have to read section to all covered 803(g) applying crimes, occurred, sex-abuse of when in cases in which regardless they except 1, the limitations in section had before January 800 801 period expired decline such a tortured 1994. We construction. Indeed,
The of the amendment confirms this view. legislative history Court Legislature familiar with the various highly opin- Appeal declined ions filed in and to “the section where apply 803(g) statute of had to previously applicable expired prior January (the (Assem. date effective of Section Floor As- 803(g)).” Analysis, 21, 1996, (1995-1996 Sess.) 1.) sem. Bill No. 2014 Reg. June The legislative record identified these Court of decisions name and Appeal by citation, original and summarized the and published constitutional (Id., 1-2; each analysis used to reach this conclusion. Sen. Com. on Crim. pp. Procedure, Analysis (1995-1996 Sess.) Assem. Bill No. 2014 June Reg. 7-9.) pp. record, to
According legislative reason for primary amending section 803(g) 1996 was these Court of decisions repudiate Appeal insofar as had construed the statute they in such restrictive manner. The amendment sought “clarify,” through “retroactivity” express “revival” that section be provisions, 803(g) filed within permitted charges one of the year victim’s even where of the crime was report, otherwise time-barred before (Sen. Com. on Crim. Proce- January 1994. dure, of Assem. Bill Analysis (1995-1996 Sess.) No. 2014 June Reg. 5-7; Sen. Floor (1995-1996 Assem. Bill pp. Analysis, No. Reg. Sess.) June 2-4.) pp. considered
Finally, Legislature the ex facto concerns rejected cited some Court of targeted cases as a basis for not Appeal section in a manner applying 803(g) consistent with its intent. underlying that a Legislative analysts increase in the statute of limi- opined postcrime Collins, tations was not the of criminal under type legislation prohibited U.S. time supra, 497 even where the limitations in existence at the (Assem. of the crime had Floor Assem. Bill No. already expired. Analysis, (1995-1996 21,1996, 2-3; June Sess.) Assem. Com. on Public Reg. pp. Safety, Analysis (1995-1996 Sess.) of Assem. Bill No. 2014 Reg. April 2-3.) Thus, consistent with in the allegations section serves complaint, 803(g) as an to section 800 in the case. We next consider the exception present parties’ arguments concerning of this result. constitutionality IV. Ex Post Facto Claim do not made defendant People dispute assumption because it retroactively the Court section 803(g) operates Appeal of the statute of limitations withdraws basis demurrer—expiration to assert under section was entitled before 800—which defendant (See (1981) 450 was enacted. Weaver v. Graham 960, L.Ed.2d law as [defining “chang[ing] retroactive *16 date”]; of acts before effective v. Tapia its legal consequences completed 282, 592, P.2d (1991) Court 53 Cal.3d 288 807 Superior Cal.Rptr. [279 434] however, [same].) The and the of defendant Court argue, Appeal People of are a they are mistaken to the extent maintain statutes limitation form to retroactive of ex facto even where legislation subject protection penal post of the occurs. We statutory period agree. expansion from excesses The ban on ex facto stems of post legislation15 as a means of legislation colonial rulers in using political retrospective 386, (3 (Calder (1798) Dall.) Bull 3 U.S. 388-389 warfare retribution. v. 648, Chase, Fellman, The J.) (Calder); L.Ed. see of (opn. 649-650] [1 (1976) 99.) It has “fair Defendant’s ensures Rights Today p. citizenry of the conduct law and of for warning” penalties imposed proscribed 24, Graham, (Weaver v. 450 U.S. 28 supra, those violating proscriptions. 188, 960, 963-964]; (1977) S.Ct. United 430 U.S. 191 Marks v. States [101 990, 992-993, are free to S.Ct. 51 L.Ed.2d In this individuals way, [97 fear that conduct be made act in reliance on law without their will after occurred. in a or fashion it has “arbitrary” “vindictive” punishable Graham, 963-964].) at (Weaver U.S. at 29 supra, p. v. 450 pp. [101 in the the United States Court decided Supreme nation’s Early history, criminal ex clause as only legislation opposed that the facto post applies contract, or other interests to statutes which affect property, retroactively 386, (3 (Calder, Dall.) 3 U.S. 390-392 supra, civil protected proceedings. I, I, 10) 9) (art. (art. prohibits Congress and the states § § 15The United States Constitution “pass[ing]” post “ex The California Constitution contains similar any from facto law.” I, (art. post clause no 9). consistently interpreted state ex facto We have provision § viewing cases differently Supreme United States Court as counterparts, from its federal 150, (1999) subject. (People v. 20 Cal.4th 158 authority [83 on the Grant persuasive 1138, 72]; (1999) Superior Cal.4th 1171 Cal.Rptr.2d [81 Hubbart v. Court 19 973 P.2d 584]; (1997) 16 Cal.4th 1220 Cal.Rptr.2d People [69 P.2d v. Snook 969 808]; Cal.Rptr.2d 614 Cal.Rptr.2d People P.2d v. Helms 15 Cal.4th [63 1230]; Cal.Rptr.2d People [13 P.2d v. McVickers Cal.4th Court, 282, 295-297.) 955]; Apparently because such Tapia Cal.3d Superior P.2d v. exists, challenge to section in terms post has framed his ex facto symmetry defendant every stage simplicity’s For proceedings. state Constitutions at of both federal and sake, singular item. post provisions to the ex facto opinion applicable this refer will Chase, J.); L.Ed. L.Ed. 396-397 (opn. at pp. 650-651] [1 652-653] Iredell, Paterson, J.), J.).) L.Ed. at 399-400 (opn. (opn. 653-654] Moreover, of the framers of the original with purpose keeping Constitution, certain is to ex only legislation subject post (Beazell Ohio protection. Calder,
68-69, (Beazell); (3 Dall.) at L.Ed. p. 216] Chase, J.).) L.Ed. at (opn. Beazell, summarized
According which Justice Chase’s definition of ex Calder, facto laws in statute as a crime an act “any which punishes done; committed, which was innocent when makes more which previously crime, commission, burdensome the its punishment which after one crime deprives charged available according law defense committed, the time when the act was as ex post facto. prohibited constitutional and the of it rest prohibition judicial interpretation upon laws, form, notion that whatever their to make innocent acts purport event, offense, criminal after the or to aggravate an are harsh and oppressive, *17 act, the criminal and that attributable to an either the quality legal the byor the nature or amount the punishment imposed definition of offense of commission, its enactment, should not be altered after the by legislative for fact, (Beazell, 167, to the of the supra, disadvantage accused.” U.S. 68, 68-69], 169-170 S.Ct. added.)16 italics [46 Collins, 37,
More
2715,
in
supra, recently,
U.S.
39-40
S.Ct.
[110
2717-2718],
facto,
a convicted sex offender
as ex
challenged,
post
postcrime
legislation
allowed a state court to
correct an unauthorized
summarily
Beazell,
foregoing
16The
excerpt
supra,
from
at pages
pages
269 U.S.
S.Ct. at
169-170 [46
68-69], omits from Justice
post
Chase’s definition of ex
facto
in
postcrime
laws Calder
evidence,
less,
legal
alteration in “the
rules of
testimony,
receives
or different
than the
[that]
offence,
required
law
at the time of the commission of the
in order to convict the offender.”
(3
(3 Dali.)
650].)
text,
U.S.
L.Ed.
explain
high
As we
above in the
the
[1
court
Collins,
approved
post
supra,
formulation of the ex
facto doctrine
Beazell’s
in
497 U.S.
doing,
S.Ct.
acknowledged
[110
In so
Collins
the
2719-2720].
difference between the
concerned,
postcrime evidentiary changes
Calder tests insofar as
were
offered
Beazell
following
clear,
the
explanation:
subsequent
“As cases
to Calder make
was not
[Calder]
prohibit
application
intended to
evidentiary
of new
rules in trials for crimes committed
(Collins,
changes.”
2719],
before the
supra,
at p.
p.
citing
497 U.S.
fn. 3
S.Ct. at
[110
202, 209-210,
Hopt
262].)
v. Utah
110 U.S.
S.Ct.
28 L.Ed.
[4
high
recently agreed
We note the
court
to review a Texas
of Appeals
Court
decision which
Utah,
Hopt
supra,
reject
relied on
U.S.
post
challenge
postcrime
an ex
facto
to a
altered,
defendant,
statutory change
adversely
evidentiary weight
which
to the
to be
victim,
placed
testimony by
a sexual assault
depending upon
reported
when the victim first
cert,
(Carmell
1998)
the crime.
(Tex.App.
granted
v. State
963 S.W.2d
June
234].)
“outcry
First, definition of ex facto was two-part legislation repeated (497 throughout Collins almost talismanic form. U.S. at statute “does not alter the definition of the crime p. challenged 2723] [the convicted, abuse, of nor aggravated sexual which [the defendant] does it he is as a result of that punishment increase eligible conviction”], S.Ct. at case defined ex post [approving of an in terms of the definition offense solely “altering laws *18 a 50 at a case S.Ct. increasing punishment”], p. [disapproving [110 2723] that did define ex facto in in ‘the laws terms of “alterations solely post or or of the legal definition offense’ ‘the nature amount punishment ”].)17 for its commission’ imposed
Second,
criticized
of its own decisions
high
court
some
language
the ex
more
to include
expansively
any
facto
defining
post
prohibition
“
the defendant of
‘substantial
change” which
“procedural
deprives
protec-
”
“
”
the time of the crime.
rights’ existing
tions’ or
‘substantial
at
personal
cases.
high
closely
two-prong
subsequent
17The
court has
adhered to
formula in
Collins’s
(Lynce
(1997)
Mathis
[approving
441
L.Ed.2d
S.Ct.
[117
63]
Collins
prevents
“altering the definition of
explaining
retroactively
it
lawmakers
from
Dept.
crime”];
Corrections
increasing
punishment
criminal conduct or
California
1600-1601,
v. Morales
514 U.S.
L.Ed.2d 588]
S.Ct.
[115
Collins,
Collins],
506-507,
[explaining that “after
[approving
p.
fn. 3
S.Ct. at
1602]
[115
post
legislative
change produces
some
the ex
is not
a
inquiry
focus
on whether
facto
ambiguous
change
but
alters the definition
‘disadvantage,’
. . .
on
such
sort
whether
penalty by
punishable”].)
which a crime is
of criminal conduct or increases the
(Collins,
2720-2721].)
at
at
497 U.S.
S.Ct.
Collins
supra,
p.
pp.
[110
because,
that such
was
whether
retroactive
explained
language
misleading
substantive,
criminal statute is deemed
or
it contravenes the ex
procedural
facto clause
if it redefines criminal conduct or
post
only
aggravates punish-
(Id.,
2720-2721].)
ment.
at
at
45-46
S.Ct.
Collins also
pp.
pp.
expressly
[110
overruled two
decisions that used the ex
facto clause to invalidate
prior
post
“ ‘
state statutes
of a
situation
to his disadvan-
party
“alter[ed]
’ ” (id., at
tage”
2721]),
S.Ct. at
but which fell into neither of
p.
pp.
[110
(Id.
2721-2724],
the two
47-52
S.Ct. at
prohibited categories.
pp.
[110
v. Missouri
overruling Kring
Finally, supra, 497 U.S. clarified that language 68, 68], 269 U.S. supra, prohibiting postcrime depriva- tions of “any defense available to law at the time when the act according was committed,” should not be misread as or creating third separate category Collins, ex facto impermissible post legislation. According supra, 497 2723], U.S. at S.Ct. at page “was linked page quoted phrase [in Beazell, 269 U.S. at supra, S.Ct. at to the pages pages 68-69]] definition prohibition alterations in ‘the legal of the offense’ or ‘the ” nature or amount of the for its punishment commission.’ In other imposed words, the only cannot be restricted or withdrawn for ex “defense[s]” are those on the purposes bearing “definition” or “elements” of the crime, charged “an involving excuse or for the conduct justification (Collins, such a underlying charge.” 497 U.S. at S.Ct. at p. 2723].)18
A
in the
time
statutory change
legal effect of the
postcrime passage
Collins,
does not
criminal conduct or
implicate
punishment
required by
Collins,
2715, 2723],
18To illustrate
principle,
this
used
49 [110
(C.C.D.Pa.
Hall,
1809)
(No.
285):
the facts in United States v. Hall
There also no in the change has been relevant punishment prescribed by Now, “three, six, 288(a). section as in a term of of base imprisonment be eight or where conviction under statute occurs. years” may imposed (Ibid.) time 288(a) unchanged Given nature of section since defend- F., ant Jessica no basis on to conclude that allegedly molested we see which the definition of the period “alter[s] (Collins, crime” [charged] or the [applicable] punishment.” “increase[s] 2720-2721].) S.Ct. Nevertheless, defendant insists section him 803(g) impermissibly deprives “aof ‘defense at available to law the time when the act according was (Collins, committed.’” supra, 497 U.S. 2719], Beazell, Defendant quoting occurred, observes when crime allegedly section 800 provided from immunity in the event did not commence prosecution six within of the to years charged crime. used Alluding reasoning by relied, instant Court of and other state court cases on which it Appeal defendant insists of the limitations in section 800 expiration provided Martinez, 21In supra, Cal.4th hypertechnical reading the defendant relied on a of the that, intent, argue 288(a) statute in addition to sexual requires conviction under section act, inherently commission of an involving genitals, “lewd” or intimate such as contact buttocks, rejected or female long-standing judicial breast. the claim based on the Martinez activity logically separate view “the lewd character of an apart cannot be determined and intent,” the perpetrator’s only way from particular that “the to determine whether a touching permitted is prohibited or is to the actor’s as inferred reference intent from all the (11 450.) Legislature’s circumstances.” at Cal.4th also relied on the obvious Martinez protecting sexually range interest children from a motivated broader contact than that (Id., 442-447, 449-452.) statutory made criminal elsewhere under the scheme. Martinez determining described the considerations relevant whether a violation has oc greater curred in detail as follows: “The trier of fact must find a of act and sexual union intent 20), (see beyond § such intent must be inferred from all the circumstances reasonable touching might A appear identity doubt. sexual in context because of of the perpetrator, touching, explanation, the nature or the absence of an innocent is more likely produce finding purpose that the act indeed committed a sexual was hand, persuaded beyond constituted violation the statute. On the if the other trier of fact doubt, circumstances, touching sexually a reasonable all the that the a child from motivated, nothing language, history, purpose in the of section 288 indicates that the touching might escape punishment simply should because it not be considered a means gratification (11 452.) population.” at p. sexual members mainstream Cal.4th *21 760 a
him with defense to criminal and which liability punishment complete could not later be under section consistent ex 803(g) post withdrawn with Bunn, (See 232-239; guarantees. Lynch, facto supra, Cal.App.4th 1223, 1226-1228.) supra, Cal.App.4th have the
We As we ex facto clause is concerned disagree. explained, post act’ “the criminal attributable to an as evidenced exclusively with quality offense amount of “either definition of the or the nature or legal by time (Beazell, it occurs. 269 U.S. punishment” supra, 68, 68-69], added.) S.Ct. italics The constitutional primary purpose is that conduct to ensure of a course guarantee consequences particular advance, can be assessed in fear that the rules meaningfully without Graham, (Weaver later v. criminality change. supra, and will punishment States, 960, 963-964]; v. supra, 450 U.S. S.Ct. Marks United 28-29 [101 reason, 992-993].) S.Ct. For this Collins made 191 [97 that bearing clear ex facto extends to protection only post “defense[s]” conduct, and or “excuse involving “definition” “elements” proscribed (497 or for its commission. U.S. justification” no these way of section to defendant’s case in violates Application 803(g) section no in the' act or intent elements which change makes principles. a a must reasonable doubt obtain conviction prove beyond 288(a), under section circumstances which can be used the defendant no occurred under section touching underage to show lewd child 288(a), or of state sentences as under punishment available range prison has 288(a). Section that where the victim 803(g) provides simply 288(a) a other sex crime waited violation of section enumerated report a otherwise agency, to law enforcement and where has period a there is an additional in which criminal one-year period complaint expired, be 803(g) regulates filed after made. Section may qualifying report time at child sexual elsewhere in the Penal abuse punished defined it Code be but does not withdraw a “defense” impermissibly charged, Collins, term of for facto that art is used ex purposes supra, post 37, 50 2723].22 vein, that if the state can file charges
In related defendant even argues that takes effect based on “extension” of postcrime Bunn, 233-236, supra, suggestions disagree Cal.App.4th also 22We 1223, 1226-1228, Lynch, supra, courts Cal.App.4th the manner in which California post ex facto context is relevant characterized criminal statutes of limitation outside the have Collins, Superior (See Cowan validity U.S. 37. to the of section under Court, disavowing [describing state court cases Cal.4th offense, and subject jurisdiction a time-barred criminal indicated trial court has no matter over benefit].) allowing affirmatively the statute of limitations their own defendants waive Cowan, before or after the statute purposes, its nature for various state law either Whatever before the statute of limitations in existence at the time of the crime expires, ex do not “revivals” of criminal principles permit postcrime that were time-barred before the new statute of limita- prosecutions longer *22 view, tions was enacted. Under this since the set section six-year period by had run before section was enacted and before a ostensibly 803(g) defendant, conduct lewd was filed the complaint charging against People could not section use defendant in a subsequently 803(g) timely prosecute fashion consistent ex facto guarantees. with Like the Court of in post Appeal case, Falter, this defendant such a insists conclusion is dictated by supra, F.2d and its We progeny. disagree. Falter, indicted, tried,
In three defendants were jointly convicted for to defraud the conspiracy United States means of a scheme to protracted induced, buy at surplus military goods below-market fraudulently prices. for a Writing unanimous of the Second Circuit Court of panel Appeals, Learned Hand Judge addressed the defendants’ main claim on at appeal and found length, sufficient evidence of fraudulent the mean- activity within of the ing federal statute under (23 had been filed. F.2d at charges 423-425.) Towards the end of the a series of other attacks on opinion, legal were judgment in rejected succinct terms. Pertinent here is relatively defendants’ claim in Falter that of their was barred prosecution conspiracy under the statute of applicable limitations and the ex facto clause of the post federal Constitution. issue,
On the latter the Falter court observed that at the time the fraudulent occurred, scheme in late through statute early applicable limitations commencement permitted three within years the crime. In November before the three-year period expired crime, to defendants’ respect the statute of limitations was amended to allow (Falter, prosecution within six-year 425.) 23 F.2d at period. supra, p. claim, Without describing nature of the precise constitutional Falter rejected defendants’ adverse suggestion the statute of “change [in crime, after the commission of the and while the limitations] time [original] [period] running,” constitutes a violation ex facto clause. post (Falter, Beazell, supra, 425.) F.2d The court cited p. language supra, 68-69], that the ex indicating post facto clause only against unfavorable protects retroactive changes limitations is not an “element” of the offense insofar as the “definition” of criminal conduct (Collins, Thus, is concerned. p. U.S. at to the extent crime, alters the statute of limitations to a applicable previously committed it does implicate “crime punishment” theory strict embraced for ex purposes in Collins. “
definitions of crime and and found ‘harsh punishment, nothing oppres- ” sive’ the state to benefit from increase in allowing postcrime (Falter, 425.) at Falter noted that a applicable 19th statutory period. New court had result the statute of reached different where century Jersey “had time of crime once run” before existing (Ibid., amendment enacted. Moore State expanding citing (E. 1881) & 203.) A. 43 N.J.L. As defendant in the emphasized present case, terms, Falter then in colorful between purported distinguish, permis- sible “extensions” of a criminal statute of limitations and postcrime imper- missible “revivals.”23 postcrime
Defendant
that no decision of the United States
Court
recognizes
Supreme
*23
has
Falter
this court
used the
from
to decide an ex
foregoing passage
post
Hence,
facto
raised
are not
the sort
here.
we
Falter
question
compelled by
to find a constitutional violation insofar as section
on its
803(g) applies,
face, to child
cases in which section 800 or
had
and
expired
molestation
801
hand,
1,
no
charges
criminal
were filed before
1994. On the other
January
defendant asks
embrace
Falter in
that we
foot-
principles expressed by
23, ante,
note
and
our own.
reasoning
correctly
such
Defendant
adopt
notes that
federal and state courts have cited the relevant
many
passage
over
as discussed further below.
approval
years,
However, Falter,
23
F.2d
and its
are
supra,
progeny
persuasive
for
Prelimi-
invalidating
on ex
facto
authority
post
grounds.
the distinction drawn in Falter
narily,
between permissible
impermis-
sible
to
the statute of limitations was
postcrime
unnecessary
expansions
the decision in that case. There
no
in Falter that the
question
three-year
was
“had
at
in existence at the time of the
not run”
period
conspiracy
the time the statute
amended and
took effect.
six-year
new
period
most,
(23
425.)
At
could be understood as raising
F.2d
the defendants
on a
ex
facto
based
challenge
statutory change
post
postcrime
the time
“while
time
filing
[three-year]
increased
conspiracy charges
(Ibid.)
Falter
such a
rejected
is
court'
[period]
running.”
correctly
Beazell, supra,
constitutional
based on
set forth in
challenge
principles
have been different if the
U.S. 167.
whether the result
Any question
might
“had
run”
to amendment of the statute
original limitations
once
prior
Falter,
the court in
(See Abuse, and Childhood Retroactivity Sexual L.J. Pacific 803(g) survives ex where challenge [section enacted]; was time-barred before statute was Time’s No Bar Revival, Ind. L.Rev. general conclusion [same regarding limitation].)24 retroactive of criminal statutes of expansion *24 Falter, 420, 425-426,
We recognize that
supra, 23 F.2d
has been
cited with
state,
in
courts
other
in
approval by
jurisdictions and
this
often in
cases
statutes
involving
increasing
time for
child sexual
prosecuting
based
abuse
on acts committed before the
change. As noted
by
however, the vast
of
People,
reject
these decisions
an ex
majority
facto
post
claim under circumstances
similar
those
issue in Falter—unfavorable
postcrime change in the statute of limitations involving defendants against
above,
Falter,
420, 426,
noted
suggestion
24As
supra,
23 F.2d
post
that ex
facto
problems arise
“dishonest[y]”
from the
reviving
already
of
expired
“unfair[ness]”
limitations
comport
does not
with the more technical
of ex post
protection
view
facto
Collins,
recently
terms,
supra,
confirmed in
whom the limitations period existing when the amendment took effect.25 25, ante, reached the cases cited footnote conclusion to defendants
inconsistent with our view that
of section
application
time-barred before
does not
January
whose
were
prosecutions
Not
more recent and
guarantees.
offend ex
one
surprisingly,
Falter,
23 F.2d
cases in this
seems
from
thoughtful
depart
group
420, 425-426,
in the statute of
change
whether
retroactive
questions
Collins,
criminal conduct and
under
limitations implicates
punishment
37.26
1342, 1350-1351;
25(See,
(11th
1998)
e.g.,
Cir.
142
U.S. Brechtel
U.S. v. Grimes
F.3d
v.
1108,
14;
1992)
(5th
1993)
(10th
Cir.
F.2d
1112-1113 & fn.
v.
Cir.
997
U.S.
979
Taliaferro
839, 842-844;
1399, 1402-1403;
1992)
(6th
Knipp
F.2d
v. Madia
F.2d
U.S. v.
Cir.
963
539-540;
538,
(9th
(8th
1992)
1959)
v.
266 F.2d
Cir.
955 F.2d
Clements United States
Cir.
397,
4;
934, 942-943;
(D.Conn. 1994)
Morgan
F.Supp.
&
v.
845
State v.
398-399
fn. U.S.
69, 76-78];
(1992)
(1994)
People
Mich.
Hirsch
765 Falter, It few courts have relied 23 appears reasoning supra, 420, 425-426, here, F.2d to decide the raised defendant precise question whether federal ex bar namely, facto from post principles Legislature the time increasing for where the defendant filing charges achieved before so changed. Our research repose discloses that no courts in fewer than five states have found a constitutional violation under such circumstances. In this result has been particular, states,27 reached in at least nine from other four from opinions—five California,28 two cases and followed including involving 803(g) the Court of here. Appeal
However, Collins, most of these decisions predate supra, 497 while do others not follow Collins insofar it as extends ex facto post only to protection laws redefine crimes or retroactively increase 28, ante, punishment. Because the cases cited in footnotes 27 and are based on an broad of ex impermissibly understanding facto post they principles, provide no meaningful defendant’s claim. support
We conclude that section is not an ex facto law insofar it post as face, on its to the applies, instant case. The are following decisions disap- Bunn, to the proved extent are they inconsistent with this view: supra, 227; 1223; Gordon, Cal.App.4th Lynch, v. People Cal.App.4th 839; Court, Cal.App.3d Sobiek v. Superior supra, 28 Cal.App.3d 846.
V. Due Process
Claim
here,
below,
Defendant
as
argues
that once the
six-year period
crime,
section 800 had
as to the
he
expired
charged
could
be prosecuted
under section
as thereafter
803(g),
consistent with federal
adopted,
due
Const.,
guarantees. (U.S.
process
Amends.)
5th & 14th
He alludes to sub
stantive
in civil cases to ensure
principles applied
that “vested”
27(Com.
(1989)
v. Rocheleau
On appeal, Supreme the state. to the defendant’s absence from had not been tolled due and, for the case was remanded in January reversed judgment (Chase, with the latter decision. not inconsistent proceedings further 1138-1139].) U.S. at court, Legislature the Minnesota in the trial While the case was pending included, time, a specific first scheme amended regulatory effect of thereunder. The to actions arising of limitations statute applicable *27 the which became July “to abolish change, operative defense that have the might otherwise made under [the defendant] [more generalized] statutes of limitation” which had chal- governed previously sale (Chase, or which had been in its in the case. lenged applied favor supra, 1139].) U.S. at S.Ct. at p. p. [65 court, On remand in the trial the defendant other argued, among things, that the new statute of limitations did and that not action apply plaintiff’s was time-barred under law. The defendant that to prior argued alternatively the extent amendment of the had scheme regulatory retroactively expanded limitations or withdrawn statute of applicable period limitations bar it behalf, had been entitled to previously assert its defendant was of its in violation the due deprived property clause of the process Fourteenth Amendment. The foregoing claims were the trial rejected by court, which entered again The judgment favor. Minnesota plaintiff’s (Chase, Court affirmed. Supreme supra, U.S. 308-309 S.Ct. at at pp. [65 1139-1140].) pp.
The defendant renewed its due attack on the new statute of process limitations in the United States Court. After Supreme noting that “substantial raised, federal had been questions” (Chase, the court rejected claim. supra, U.S. at S.Ct. 1140-1141].) at p. [65 Chase began by summarizing holding Campbell Holt U.S. 620 S.Ct. 29 L.Ed. the decision on which the (Campbell), [6 Minnesota Court Supreme had relied the defendant’s federal rejecting constitutional claim. “In this Court held that [Campbell], where of time lapse not has invested a with title real or a state party personal property, Amendment, legislature, consistently with Fourteenth may repeal limitations, extend a statute of even after right action barred thereby, restore to the his plaintiff and divest defendant of remedy, the statutory (Chase, bar.” 325 U.S. 1141].) S.Ct. Chase court recognized that “some state courts not have followed [the foregoing construing their constitutions similar to the provisions rule] (Id., due process clause.” at at p. 1141].) Chase also p. “some acknowledged criticisms” of U.S. “in Campbell, supra, 115 legal (325 literature.” S.Ct. at p.
Nevertheless, the court Campbell, supra, refused overrule 115 U.S. or otherwise from its depart “essential federal due holding” do from principles Legislature retroactive preclude making changes in the (Chase, detrimental applicable defense. 1137, 1143].) In so the court declined to doing, *28 debate to whether underlying Campbell
reexamine or “settle” the ancient that de- expiration are in nature such their prescriptive limitation periods affect the “rem- attendant or whether legal “right,” they merely the stroys at (Chase, such a at S.Ct. enforcing right. p. p. edy” [65 Instead, the of .) relied on a more view of statute Chase pragmatic 1142] decided, that such namely, that since was Campbell had evolved the of at the will of policy” existing legislature, laws are instruments “public “ (Id., has never as a ‘fundamental’ right.” and that their shelter been viewed at then denied relief to defendant at S.Ct. Chase p. p. Constitution for the reasons: following under the United States make an act state legislation “The Fourteenth Amendment does not of it it What does forbid operation. void because has some merely retrospective life, due rules of or without of law. Some liberty is taking property could be without changed retroactively hardship of law not probably that Assuming whether or in their origin. this wise unwise oppression, limitation, so like other of could be legislation, manipulated statutes of types Constitution, it certainly retroactive effects would offend that their so as to restore a cannot be said that the bar of statute limitation lifting lost mere of time is se offense through lapse per against remedy hard- out special Fourteenth Amendment. Nor has the pointed [defendant] class the bar in this effects which result from lifting ships oppressive force. This case where cases retrospective defendant’s] [the been different if the rule had known conduct would have been present say, does not and could say, hardly foreseen. change [The defendant] shelter a statute of limitation for upon it sold stock unregistered depending was that no course action from The nature of defenses shows liability. be that the old rule would undertaken on the by assumption [the defendant] commenced, no doubt When the action was defendant] continued. [the that lapse be to defend Minnesota public policy able invoking expected case, have been to the and its legitimate hopes of time had closed courts the time action But the existence of at disappointed. policy circumstances, not, a consti- did give commenced under [defendant] Whatever adjudication. before final change tutional right against policy disadvan- at the its change policy have grievance [the defendant] a federal no from this suit that has become it had acquired immunity tage, at S.Ct. (Chase, constitutional right.” .) 1143] arises interest no holding constitutionally protected of Chase—that run, can be and that such of limitations has protection
once statute been reaffirmed withdrawn consistent with process—has retroactively Farm, Inc. (See Plaut v. Spendthrift cases. court high subsequent U.S. 131 L.Ed.2d [noting 328] extended, statutes of “can be the Due limitation without violating Clause, after Process after the cause of the action arose and even the statute Myers, itself has Electrical Workers v. Robbins & Inc. expired”]; 50 L.Ed.2d claim that [rejecting *29 revive, enactment, was without constitutional to an “Congress power by which, filed, action of when is barred a limitations already running period”].)
We see no basis on to meaningful distinguish six-year which Chase, section 800 from the statute of limitations discussed 325 supra, criminal, civil, U.S. 304. That case a this involves rather than a statute of limitations is not such distinction. No of the United persuasive provision States Constitution confers criminal defendants a to explicitly “right upon virtue of time of repose” by length between commission the crime and (See commencement of the (1992) v. United 505 prosecution. Doggett States 647, 2686, 2699, U.S. S.Ct. (dis. 667-669 120 L.Ed.2d [112 opn. 520] Thomas, J.) (Doggett) trial].) Sixth Amendment to [discussing right speedy Nor does the federal Constitution itself a fixed or certain time in prescribe Adlestein, which indictment must (See occur after the crime. the Criminal Statute With Lesser at Limitations Trial Conflict of Offenses 199, (1995) (The 37 Wm. & L.Rev. Mary 250 & fn. 224 Criminal Statute of Limitations).)29 that,
isIt well settled aside from concerns procedural under the arising Fifth Amendment and claims of involving actual prejudice discussion, (see at trial “the post), statute of ... applicable is . . the . stale primary guarantee against criminal bringing overly charges.” (United 116, 773, 777, v. (1966) States Ewell U.S. 383 122 S.Ct. 15 [86 accord, 627]; 783, L.Ed.2d United States v. Lovasco 431 U.S. 789 [97 course, 29Of the Sixth Amendment of the United literally guarantees States Constitution “speedy” trial the “accused" prosecution! underway. language once “criminal This ]” apply has been only construed to where the formally publicly defendant either has been and (United indicted or has been held charge. arrested and to answer aon States v. 1, 1500-1502, Marion, 1497, 696]; MacDonald U.S. 456 6-7 S.Ct. 71 [102 L.Ed.2d 307, 313-315, 455, 459-461, supra, 463-464].) 404 U.S. 320-323 S.Ct. Insofar as it [92 trial, delay reduces risk of excessive and speedy guarantee between accusation trial incarceration, concern, against helps protect oppressive pretrial anxiety impairment and 647, ability against charge. (Doggett, supra, defend U.S. 505 654-655 S.Ct. [112 2686, Marion, 2691-2692]; 463].) supra, p. 404 at at p. generally U.S. 320 S.Ct. Courts [92 balance four speedy factors “on ad hoc basis” to whether a trial denied determine has been case, particular in a right length any delay, delay, once the has attached: reasons for the defense, right (Barker assertion of the prejudice Wingo to the defense. v. 2182, 2191-2192, accord, 101]; Doggett, supra, 407 U.S. 530 S.Ct. 33 L.Ed.2d 505 [92 p. at p. U.S. 651 S.Ct. at [112 770 see States v. Gouveia (Lovasco); 52 L.Ed.2d United
S.Ct. 2299-2300, 146]; (1984) S.Ct. L.Ed.2d U.S. 192 [104 MacDonald, S.Ct. U.S. supra, United States [102 Marion, 464].) Such 1501-1502]; S.Ct. supra, U.S. a limit a measure of “by specifying beyond statutes provide predictability a defendant’s a fair right there is an irrebuttable presumption U.S. at S.Ct. (Marion, supra, p. trial would be prejudiced.” omitted.) 464], fn.
However, no an act of “policy” criminal statutes of limitation are less (Chase, their in civil cases. than “grace” counterparts clear that such laws 1142].) The court has made high of the State and the assessments relative interests reflect “legislative (Marion, administering receiving justice.” defendant in cases, include both 464].) As in civil such interests *30 means of defense and the of individuals whose societal repose protection time. Cowan (Ibid.; be of see v. Superior might impaired by passage 367, Court, consider- 14 374-375 supra, [identifying “policy Cal.4th of and finding criminal statutes limitation ations” California’s underlying of limitations in this a defendant from the statute waiving none “prevent situation”].) in crimi- no statutes of limitation traditionally states have provided
Some cases, California, states, the time for do not limit including nal while many 799; see The Criminal Statute Limita- certain crimes. (E.g., prosecuting § of 223; tions, A L.Rev. fn. Model Reform, 37 Wm. & supra, Mary for 13, 14; 189, Reform, supra, & A Time 80 65 L.Rev. 191 fns. Wash. supra, for 842, 845-846.) statutes of limitation J. & Criminal Criminology Crim. L. the traditions underlying no rooted in the Constitution or more appear than their system American civil legal counterparts.30 defense in a criminal grievance It follows [the case] “[w]hatever it had no immunity to its disadvantage, acquired of change policy have accounts, English part common law. 30By all statutes of limitation were not of criminal 647, Marion, 307, 455, 462]; supra, (See Doggett, supra, 404 S.Ct. U.S. Thomas, 2686, J.) (dis. [discussing common law rule opn. of 667-668 Thus, Am.Jur.2d, Law, 291, 346.) against king”]; § Criminal “time does not run filing charges have existed regulating time for criminal and state statutes while federal Constitution, country this been in has adoption popularity States their since of United Limitations, (See supra, 37 Wm. & mystery. of The Criminal Statute viewed somewhat of 234, 241; Note, 233, 240, The Statute 252-256 & fns. Mary L.Rev. fn. of Pa.U. L.Rev. A Barrier to Prosecution Law: Penetrable Limitations Criminal However, and other 7.) governing property claims of limitation & fn. statutes 631-632 roots, history been easier and their has have more ancient apparently civil lawsuits Limitations, Mary (See supra, Wm. & L.Rev. The Criminal Statute scholars trace. realty date from to actions on English applicable statutes of limitation [noting that 256-257 that, limiting the comprehensive statute enacted a century Parliament 13th (Chase, from that has become a right.” federal constitutional [prosecution] U.S. Under no inter supra, existing due substantive is the pretation process principles Legislature without to limit statute of limitations claim in a criminal case after power deny Chase, it been has In light supra, contrary acquired. Cookman, (See conclusion is supra, foreclosed. State 920 P.2d Gillette, (conc. & J.) 1095-1097 dis. time to opn. increasing [amendment file child molestation does not due it charges offend insofar as process to defendants who achieved before applies repose statutory period Abuse, changed]; Retroactivity and Childhood L.J. Sexual Pacific 796, 802-804 does not offend substantive process guar [section Revival, antees]; Time’s No Bar to L.Rev. Ind. general conclusion retroactive stat regarding expansion
[same limitation].) utes of
The sole cited in authority of defendant’s federal due support clause, are cases ex theory resolving analogous claims under the post as discussed earlier in the We note that in defendant’s brief opinion. court, this merits in the claim that section a “vested” 803(g) impairs right violation of substantive due process guarantees inextricably intertwined ex his facto claim. arguments Both share the same headings discussion, textual and are the same case citations. accompanied by *31 However, as we have the previously reasoning explained, underlying Falter, 420, supra, 23 F.2d and other cases on defendant relies flawed. They rest an the expansive view of ex facto clause which Collins, 37, 2715, in disapproved 497 U.S. 45-52 S.Ct. [110 Collins, 2720-2724], Under the legislative branch is not from prohibited limitations, criminal a retroactively statute of because the expanding neither of definition an conduct nor increase in is involved. punishment Statutes the governing time at which a future criminal action be filed are not enactments on which defendants in may reasonably rely deciding whether to commit an act otherwise defined as criminal and to subject the in punishment under law existence at the time.
While defendant focuses for due
on the time at which
process purposes
the limitations
in section 800 or
801
expires, nothing compels
debt, contract,
torts];
Carpenter (1879)
see also Wood v.
time for actions on real property,
and
135,139
(11 Otto)
807,
“English
101 U.S.
L.Ed.
[explaining that
statute of
[25
808]
of
I.
adopted
21st
James
. . was
most
in
of
American colonies before
Revolution,
nearly
legislation
has
and
since been the foundation of
all
the like
of
in this
country”].)
find
he
“fundamental”
authorizes this court
to
“vested” or
acquired
Constitution
which section 803(g) imper-
under
United States
right
interferes. We decline to invalidate section
based on
new
missibly
Chase,
which,
325 U.S.
court
high
constitutional
under
right
has itself refused
embrace.31
assuming
no
suggested by
People,
31As
we reach
different conclusion even
we consider
Chase,
context and
process principles applied
due
outside
statute of limitations
substantive
supra,
it”]; 104 L.Ed.2d Graham Connor force—deadly used excessive or not—in the claims that law enforcement officers have {“All arrest, analyzed of a citizen should be investigatory stop, course of an or other ‘seizure’ free standard, ‘reasonableness’ rather than under a ‘substan- under Fourth Amendment its explicit textual process’ approach. provides Because the Fourth Amendment tive governmental protection against physically this sort of intrusive source of constitutional *32 Amendment, conduct, process,’ generalized the due must that not more notion ‘substantive claims”].) guide analyzing these be the expiration of the Nothing foregoing supports the defendant’s claim that in authorities right” 803(g) gives in to a “fundamental which section of limitations section 800 rise statute right may also be foreclosed to Recognition to of such a novel impermissibly seeks withdraw. “ ” the by’ ‘is other more United States specific provisions extent the matter covered the 833, 1708, S.Ct. (County 523 U.S. 843-844 [118 Sacramento v. Lewis Constitution. seen, 1715, 1043].) the circum- we the ex facto clause addresses 140 L.Ed.2d As have laws, form,” legislative by their can be “altered penal under which “whatever stances 167, enactment, fact, (Beazell, disadvantage supra, the 269 U.S. after the to the accused.” accord, Collins, 69]; supra, 2718- 497 U.S. S.Ct. [110 S.Ct. discuss, And, 2720].) “a role” in plays Fifth Amendment at least limited as shall the we indictment, not the and whether or the statute of regulating passage the of time between crime 2044, 2048].) (Lovasco, supra, S.Ct. has run. 431 U.S. 789 [97 course, Of due arbitrary substantive and process principles preclude where no fundamental interest is capricious legislation right liberty even Flores, (See at stake. Reno 507 U.S. S.Ct. of a lesser . . interest . demands no more impairment 1448-1449] [“The than a ‘reasonable fit’ . . governmental between . and the means purpose claims, to chosen advance that to what defendant purpose”].) Contrary section not 803(g) is unconstitutional under this deferential standard insofar Indeed, the time-barred statute “revives” as previously prosecutions. legislative history the statute based on the suggests, assumption past children, sex and future crimes even to corroboration against though subject evidence, by would otherwise independent go the diffi- unpunished given events, culty victims young experience remembering such reporting their emotional at hands of adult vulnerability including perpetrators, those in of trust. The means chosen positions Legislature—allowing within one official prosecution year retroac- report, inserting express and revival tivity provisions, corroboration— requiring independent seem well suited to particularly serious concerns addressing underlying reasons, For all 803(g). the foregoing we defendant’s reject substan- tive due challenge. defendant
Finally, suggests use of section provide additional one-year file period which to child molestation where charges 1, 1994, six-year period section 800 had before expired January violates his to a right fair trial under the Fifth Amendment of the United States that, Constitution. The seems to implication be by allowing indictment based on acts committed before January section 803(g) creates an risk that unacceptable ability contest the will charge be impaired by defendant, of time. passage According such a result is “fundamentally unfair” and offends (Lovasco, procedural process guarantees. 2051-2052]; see Medina v. California 120 L.Ed.2d Lovasco,
In the defendant was federal court charged with possessing and selling firearms that had been stolen from the United States mails about months earlier. Although were charges time-barred as a evidently matter, the defendant moved to dismiss the indictment on grounds of unreasonable prejudicial delay. At the ensuing defense hearing, evidence that the had presented most of its information acquired in the case the time a one month postal inspector’s report prepared after the crime. The defendant also established that two could witnesses who rebuttal, have been called on his behalf trial had since died. On *33 that the continued even prosecution explained investigation after the postal was report in order to determine prepared whether the had been weapons son, at from which handled mail the location defendant’s who supplied at the hearing, been stolen. Based on adduced had evidence they apparently court the motion to dismiss. granted the district affirmed. The court did not question The Circuit Court of Appeals Eighth indictment, to await namely, stated reason deferring prosecution’s determine whether other could be participants additional and to investigation Nevertheless, the was deemed unreason- ensuing delay linked to the crime. In favorable to the defense. testimony able since it resulted in loss conclusion, the defend- this court basically adopted reaching appellate a defendant suffers that “due bars whenever ant’s view process at (Lovasco, U.S. delay.” p. as result of prejudice preindictment 2048].) at S.Ct. p. [97 began by reaffirming Court reversed. Lovasco The United States Supreme role” in “a limited protecting the basic principle process plays where no statute of limita- even delay against “oppressive” preaccusation 2048].) at at court (431 high run. S.Ct. p. tions has U.S. p. [97 is necessary actual defense confirmed that prejudice” “proof However, (Ibid.) the lower courts such a constitutional claim. on prevail showing assumed that of prejudice erred in Lovasco insofar they that the due court made clear high in this context. The sufficient relied, Lovasco, the cases which it also inquiry contemplated (Id., S.Ct. “the reasons for the at delay.” p. consideration of requires 2049].) at p. satisfied where indict that the latter
Lovasco requirement explained in a cause” of defendant’s involvement ment is after “probable postponed “beyond sufficient to his prove guilt crime or even after evidence appears, at (431 at S.Ct. pp. doubt” is obtained. U.S. 791-792 pp. reasonable Rather, delay held that 2049-2050].) preaccusation the court prejudicial undertaken of the Fifth Amendment” when “the Due Process Clause offends ” (Id., at p. the accused.’ 795 [97 ‘to tactical over “solely gain advantage U.S. 307, Marion, 2051], at citing here, the court that need not be numerous reasons repeated For investiga rule could hamper legitimate that a contrary explained both beneficial to with nuanced decisions charging interfere unduly tions and of justice. the accused and administration in which “in abstract the circumstances describe Lovasco declined to that the noting delay dismissing prosecutions,” would require preaccusation “the not be outside applied particu- therein could constitutional rule adopted S.Ct. at (431 cases.” circumstances individual lar *34 However, 2052].) based on the factual record that had been p. developed Lovasco, the court concluded that it unfair” to “fundamentally (Id., 2052].) the defendant to stand trial. S.Ct. at require p. p. sustained, loss of Notwithstanding any evidence defense have record showed that the efforts to only government engaged legitimate discern the full of the criminal during 18-month scope enterprise period before were filed. charges to defendant to what seems in Lovasco or the due
Contrary nothing imply, on it which relied warrants wholesale invalidation of process principles section of when the crime occurred or 803(g), regardless when the charged seen, section 800 or 801 period otherwise As we have expires. have wide latitude in prosecutors conducting investigations whether and determining when indictments should be filed. Such discretion- ary decisions offend the United States Constitution where unfair only tactics involved, are motives and where the improper defendant’s to refute ability charge as a materially damaged result. As Lovasco recognized, no abstract,” court can make such a determination “in the without considering “the particular (431 circumstances of individual [the] case[ ].” 2052].) case,
Because
claim is not
in the
“ripe
adjudication”
we
present
whether,
no
Lovasco,
express
opinion
by analogy
set forth in
principles
defendant’s
procedural
have been
process rights
violated
12-year
between
lapse
commission of the
crime and the
alleged
filing
com-
(431
that,
U.S. at
plaint.
S.Ct. at
hold
p.
We
under
only
Amendment,
existing
of the Fifth
interpretations
there is no basis on which
invalidate
facially
either on
803(g),
its
ground
one-year
leads to excessive
period
or on the
charging delays,
ground.
section 803(g)
even where the
applies
in section
“has
six-year period
expired.”32
argument,
32After oral
requested
this court
supplemental briefs from the parties on the
validity
of section
(See
under the due
clauses of the state Constitution.
Cal.
Const.,
I,
7, 15.)
art.
suggests
Defendant
provisions deprive
Legislature
§§
these
power
to “revive” the statute of limitations after it has
doing,
run in criminal case. In so
he relies
exclusively
on our venerable
Gallagher
decision in Chambers v.
regardless the particular disagree. circumstances of case. We outset, Chambers, At the necessarily agree we do not with defendant that 177 Cal. 704, applies here. Chambers relied on the California Constitution to hold that the state new, longer Controller could not use statute of limitations unpaid to collect inheritance taxes *35 Disposition
VI. on asserted defend- any ground by Section is unconstitutional 803(g) the reversed. ant. of Court of is judgment Appeal J., J., Chin, J., and concurred. George, Werdegar, C.
KENNARD, a J., After thestatute of limitations for Dissenting. run, an for that offense under offense has state individual may prosecute to the a new law limitations “reviving” period? According expired of Judge the state do so. I In the words may disagree. oft-quoted majority, dead” is to Learned Hand: revive a “our already contrary prosecution “[T]o to a man of and fair For the state assure justice play. instinctive feelings assurance, its and its he has become safe from thereafter withdraw pursuit, (Falter v. United States (2d of us unfair dishonest.” Cir. seems most and 420, 1928) 425-426.) 23 F.2d
I
filed
On October
District
a
County
Attorney
Mendocino
count of child
in the
court
defendant
one
municipal
charging
complaint
underlying obligation
already
when the new statute took effect.
where
time-barred
However,
decided,
any
by
it
not been used
state court
years
80
since was
Chambers has
803(g)
any
involving
a
a
or in
case not
to strike down statute like section
in criminal case
civil
(See
(1950)
Exchanges
dispute.
People
form of tax
v. Universal Film
In crime defined in section subdivision (Former (b), statute was limited of limitations. subd. by six-year § 2543-2544.) amended Stats. That expired ch. § But in after the commission of the offense years alleged 1990. case, Legislature this after statute of limitations years expired, extended the statute of It so subdivi- indefinitely. did adding *36 a (section sion to section 803 that (g) 803(g)), providing alleging complaint (or a violation section other sexual offenses committed specified minor) a be filed within a after the against year alleged victim reports the incident to a there no time law enforcement limitation agency; later, such the making reports. years Legislature Two in added subpart (3)(A) to section that under “shall stating filed 803(g), complaint revive cause of action barred . .” by Section 800 . .
Defendant demurred the He the that on its complaint. argued complaint face that showed the had original six-year statute long expired before the Legislature extended the limitations section by enacting and that to him 803(g), with child molestation under the revived charge statute of limitations violated the ex of the facto clauses United States post Const., I, I, (U.S. 10; Const., California 9) Constitutions art. Cal. art. § § due well as “the clause.” The sustained the demurrer process magistrate case, the dismissed that the ruling violated the federal Constitutional ex facto After an provision barring laws. unsuccessful post court to reinstate attempt superior the the review complaint, People sought in the Court of Appeal, which affirmed judgment.
H federal, California Today, becomes the state only jurisdiction, permit “revival” under extended statute of after prosecutions limitations enacted statute of All other expiration original limitations. jurisdictions that have addressed the issue have concluded or prosecu- assumed these I, Constitution, tions violate article clause of the federal (See, state ... ex provides shall facto law . . . .” pass any post “[n]o ante, e.g., 27.) cases cited fh. maj. opn., p. fn. however, to the According the United States Court’s majority, Supreme recent (1990) decision Collins Youngblood 30],
111 L.Ed.2d did limita- which unlike this case not involve statute of tions, Therefore, has limited the of the ex facto clause. scope post undesignated statutory
1A11subsequent references are to the Penal Code. holds, no ex facto revival violate majority prosecutions longer post clause.
If, concludes, the ex as the revival do not violate prosecutions majority clause, remain: do violate the due they process two questions n the federal or the state Constitution? either guarantees devotes considerable time to first conclud- answering question, majority due But there is no federal violation. ing process majority ignores I state due Because find resolution this question process question. here, I, not decide the federal constitu- unlike do dispositive majority, tional issue.
III
claim,
In
relies on
defendant’s
majority
rejecting
federal
Chase
v. Donaldson
In the state Controller to collect sought court held the action violated under a revived statute of limitations. This (Chambers, 177 supra, the due clause of Constitution. process California had 708.) that the United States Court Cal. We acknowledged Supreme the due clause of reached a conclusion in contrary construing process U.S. 620. But we declined constitution in Campbell, supra, federal that our conclusion was observing “supported follow Campbell, (Chambers, supra, of decision in United States.” almost universal course 709.) 177 Cal. at p.
Chambers,
law,
makes
Cal.
is still
and the
supra,
majority
good
It
within the mainstream
no
to overrule it.
remains
attempt
squarely
modem
The
in other
judicial thought.
of courts
states which
majority
issue has arisen have declined to follow the United States
Court’s
Supreme
Securities,
decisions Chase
325 U.S.
Campbell, supra,
constitutions,
the due
clauses of their state
constming
process
holding
these clauses
state
from
time-
prohibit
legislature
reviving
barred civil actions. As the Rhode Island
Court stated recently:
Supreme
620],
“We are not unmindful that
115 U.S.
Campbell[, supra,
[William]
(1925)
1126]],
R.R.
[federal Waller Pittsburgh Corning Corp. *38 (D.Kan. 581, 1990) 742 court F.Supp. Kansas applying [federal law].)
Six other states have found legislation
time-barred civil actions
reviving
Garlock,
invalid under other
of their
provisions
(Johnson
Constitutions
v.
(Ala. 1996)
25, 28;
Inc.
682 So.2d
Doe v.
(Mo.
Roman Catholic Diocese
1993)
340-341;
862 S.W.2d
Gould
(1985)
v. Concord Hosp.
126 N.H.
1193, 1195];
405
A.2d
Cty.
[493
Soc. Serv. v. D. A. G.
Dept.
Jefferson
of
(1980)
1004, 1005-1006];
All of these decisions involved statutes of limitations in civil
as did
Securities,
court’s
high
decision in Chase
325 U.S.
and this
Chambers,
of Cal. 704. I am not aware
court’s decision in
of
the issue
here: whether revival
decision resolving
presented
published
time-barred
of the statute
extension
by legislative
criminal prosecution,
however,
limitations,
(See,
State v.
denies the defendant due process.
of three
P.2d
(1994)
[opinion
Cookman
Or.App.
[873
337-338]
matter,
court hearing
of intermediate appellate
judges
ten-judge panel
due
clause of Fourteenth
that revival
violate
concluding
process
prosecutions
Amendment;
with the result on other grounds],
three other judges agreed
1086].)
this dearth
(1996)
Why
The deal its citizens. fairly State of California has an to obligation Once it an irrefutable that it not initiate has made absolute and assurance will afterwards, a it renege on that when prosecution, may years promise memories have faded and evidence have been destroyed. may
The here that statutes limitations serve similar majority acknowledges societal interests in criminal and civil cases. Those interests “include both and the of individuals means of defense be repose protection might whose ante, 770.) of time.” at This court impaired by passage (Maj. opn., p. Chambers, those interests implicitly recognized importance 177 Cal. a civil case that the to collect holding state Controller’s action tax inheritance under a statute the due revived of limitations violated case, of the state If process Constitution. this is in a civil it impermissible b¿ should also ain criminal where the accused’s impermissible prosecution, is at stake. personal liberty however,
The a takes different to a mere majority, view. Relegating footnote its here cursory comment on of this court’s deci- applicability Chambers, sion in distinguish case majority attempts by observing ante, that it a 32.) involved civil tax fn. The (Maj. opn., dispute. Assume, instance, is majority’s view untenable. for that the statute of limitations for civil suit collect taxes and bringing unpaid for bringing taxes each five and that the charges failing were pay years, Legislature both reviving laws statutes of limitations after each had passed Under view of the expired. state’s civil tax action would majority, Constitution, violate the state but the rights under the taxpayer’s state’s criminal same would not. An odd and taxpayer unfair result indeed. also our majority looks to some decisions Courts of Appeal
basis of for its view here. Those of a civil upheld validity cases support statute of on common law causes of action based child- reviving abuse, Chambers, hood sexual on the by distinguishing Cal. ground that Chambers revival and not common precludes only (See, law causes of action. Court e.g., Liebig Superior This court has addressed Cal.App.3d Cal.Rptr. never event, distinction. In those decisions have no purported bearing testimony particularly likely alleged parent stepparent. 2Such when the is a molester allegations phenomenon bitterly False child molestation are not-uncommon contested custody child proceedings. *40 case, the of in a “In California all Chambers as here: applicability (In crimes are and there are common crimes.” re Brown no law 1017].) 510 P.2d 9 Cal.3d Cal.Rptr. Securities, decision high court’s in Chase Finally, its of rejection on which the bases defendant’s majority process federal Chambers, claim, no us to basis for reconsider our decision provides Cal. 704. “A in course the United change States Supreme Court, Constitution, for the federal is no justification change interpreting this state court’s of distinct of our Constitution. interpretation provisions This matters court should disabuse itself of the notion that in of constitu to the tional law and criminal we must always Ginger Rogers procedure play Fred high Astaire—always leading. rights court’s never The following, those state Constitution ‘are not on guaranteed by dependent guaranteed Const., I, 24; States see Raven v. (Cal. United Constitution.’ art. § P.2d 52 Cal.3d 351-355 Deukmejian Cal.Rptr. meaning We have duty give independent power force Cahill to the of our state charter.” provisions (People (dis. of Cal.4th 853 P.2d Cal.Rptr.2d opn. Kennard, J.).)
IV in this makes California the first and Today majority only jurisdiction time-barred of under an to allow criminal offenses country I holding. extended statute limitations. cannot this join an those it State of California has deal obligation fairly an limitations to accuses of crimes. statute of By allowing existing expire offense, assurance, before the state an gives today alleged view, unconditional, that it will not that offense. In always my prosecute the state the due of our state Constitution does guarantee permit later, of the relevant to withdraw assurance when recollections years lost or have evidence have been exculpatory may events faded became charged discarded. Because the offenses which defendant here limitations, I before extended the statute time-barred the Legislature upholding magistrate’s would affirm Court Appeal’s judgment order dismissing complaint.
Mosk, J., concurred. well-reasoned BROWN, J., concur in Justice Kennard’s I fully Dissenting. of a criminal statute and conclusion revival analysis
783 Const., (Cal. violates our state’s constitutional I, of due art. guaranty process. 7, 15.) I further should we not consider ourselves at the agree joined hip §§ with the United States Court in the California Consti- Supreme interpreting tution, whose this court (Cf. is with independent vitality charged preserving. 628, 283, (1999) Warden v. State Bar 21 Cal.4th 660 982 Cal.Rptr.2d [88 Brown, (dis. J.) P.2d of should opn. equal protection provisions 154] [state be of federal I write interpreted independently guaranty].) separately an additional emphasize on which the contravenes point majority’s holding to act government’s obligation with fundamental fairness. 367, Until (1996) Cowan v. Superior Court 14 Cal.4th 374 Cal.Rptr.2d [58 458, P.2d (Cowan), 926 this court had held that the statute categorically of limitations invokes fundamental matter v. subject jurisdiction. (People (1934) McGee 378].) 1 Cal.2d P.2d a number of Although other [36 states concluded to the “in California the contrary, statute of limitations constitutes a substantive rather than a which is not procedural right waived failure to assert it at the If of pleading stage. evidence was the reliability factor, sole certainly conviction based on a would be valid guilty plea Yet, of a notwithstanding limitation it is running period. now well settled conviction, that a even if based on a is to collateral plea guilty, subject attack if the charge originally barred limitation applicable period. (1976) v. Zamora (People 18 Cal.3d [Citations.]” Cal.Rptr. [134 75].) time, 557 P.2d “The therefore may be raised at before or point any McGee, after 613; judgment.” (People supra, Cal.2d at People v. (1981) Chadd 28 Cal.3d 837].) 621 P.2d Cal.Rptr. Accordingly, had burden People that the plead prove prosecu- tion was commenced within the (see In prescribed re Demillo Cal.3d 1181]), 535 P.2d Cal.Rptr. numerous Courts of have Appeal characterized it as an element (See of the offense. v. Bunn People Cal.App.4th Cal.Rptr.2d the rule Although is now (see modestly v. Williams tempered People 21 Cal.4th 42]; Cowan, 981 P.2d Cal.Rptr.2d 14 Cal.4th 374-375), for the pp. most defense remains part application absolute.
I have elsewhere this expressed my disagreement (See determination. Cowan, Brown, 14 Cal.4th at (conc. and dis. J.).) opn. Nevertheless, when the on the statutory period offense charged expired 1990 and when the enacted Penal Legislature Code section subdivision (g), defendant could have asserted the limitations defense at time and could have secured dismissal of the charges reversal his conviction.
Now, after long defendant achieved this jurisdictional repose, majority him of it without a deprives defendant qualm. have possibility trans committed offense does validate the majority’s Child heinous and among molestation will rank the most gression. always the act. odious of crimes. The victims suffer after long completion Nonetheless, that a will avoid potential guilty person just punishment *42 in all has inherent statutes of limitations. assumed this loss in Society (See Zamora, for 18 Cal.3d other considerations. v. exchange People 547; (1998) cf. County v. San 19 Cal.4th Wiley Diego 983]; (1989) P.2d U.S. Egan Duckworth Cal.Rptr.2d 2875, 2890-2891, (dis. L.Ed.2d of Mar S.Ct. opn. 166] shall, J.); States S.Ct. Abney v. United 661 [97 In re U.S. 52 L.Ed.2d Winship jeopardy]; 651] [double 1076-1077, Harlan, (conc. L.Ed.2d opn. 368] doubt]; J.) Mapp reasonable v. Ohio proof beyond [burden 1693-1694, 6 L.Ed.2d [exclusionary rule].) fit has seen the rules the limita Legislature change defining molestation, to child as well it to do. tions has respect authority matter, to defendant in these circumstances is another change Applying however, and one of constitutional dimension. Whether not such applica tion violates the ex view it most does certainly prohibition, my fundamental with California’s fairness. comport guaranty denied October
Respondent’s rehearing petition Kennard, J., Mosk, J., read was modified to above. opinion printed Brown, J., should be granted. were opinion petition