PEOPLE v. TOBIAS

Reset A A Font size: Print

Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Joel Robert TOBIAS, Defendant and Respondent.

No. H018163.

Decided: March 29, 1999

Chris R. Redburn, San Francisco, Attorneys for Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe, Supervising Deputy Attorney General, Janet Gaard, Deputy Attorney General, Attorneys for Appellant.

Defendant was charged by information in September 1997 with, among other things, committing three counts of forcible lewd or lascivious acts on a child under the age of 14 (Pen.Code, § 288, subd. (b)(1)).1  The information alleged that these three offenses had occurred between June 13, 1979 and June 12, 1980.   It was specially alleged that, although the otherwise applicable limitations period had expired, the offenses could still be prosecuted under Penal Code section 803, subdivision (g) because the complaint was filed within one year of the minor-victim's report to a law enforcement agency, the offenses involved “substantial sexual conduct” and there was “independent” corroborative evidence.   Defendant filed a motion to dismiss these three counts on the ground that they were barred by the statute of limitations.2  He argued that Penal Code section 803, subdivision (g)(1), which purported to permit the revival of an expired statute of limitations, violated the U.S. Constitution's ex post facto clause.3  The court dismissed these three counts, and the People filed a timely notice of appeal.   On appeal, the People argue that the revival of the statute of limitations under Penal Code section 803, subdivision (g) does not violate the U.S. Constitution's ex post facto clause.   We agree and reverse.

ANALYSIS

In 1979 and 1980, the limitations period for a violation of Penal Code section 288 was three years.  (People v. Smith (1985) 171 Cal.App.3d 997, 1001, 217 Cal.Rptr. 634.)   In 1981, the period was extended to five years, and in 1982 to six years.  (Smith at p. 1001, 217 Cal.Rptr. 634.)   Penal Code section 803, subdivision (g), which provides for an indefinite extension of the limitations period under certain circumstances, took effect in 1994.  (Stats.1993, ch. 390, § 1.) This subdivision was also subsequently amended in 1996 and 1997.  (Stats.1996, chs. 130, § 1;  1023, § 389.1.)

At the time this prosecution commenced, Penal Code section 803, subdivision (g) provided, in pertinent part, as follows:  “(g)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.[¶]  (2) This subdivision applies only if both of the following occur:  [¶] (A) The limitation period specified in Section 800 or 801 has expired.  [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim's allegation.   No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial.   Independent evidence does not include the opinions of mental health professionals.  [¶] (3)(A) This subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if any of the following occurred or occurs:  [¶] (i) The complaint or indictment was filed on or before January 1, 1997, and it was filed within the time period specified in this subdivision. [¶] (ii) The complaint or indictment is or was filed subsequent to January 1, 1997, and it is or was filed within the time period specified within this subdivision. [¶] (iii) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was not filed within the time period specified in this subdivision, but a complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.”  (Pen.Code, § 803, subd. (g).)

It is uncontested in this case that the requirements of Penal Code section 803, subdivision (g) were satisfied, and the action was statutorily revived.   The only question is whether the Legislature's revival, by means of Penal Code section 803, subdivision (g), of this action after the expiration of the previously-applicable limitations period violated the U.S. Constitution's ex post facto clause.4

The definitive case on the meaning of the U.S. Constitution's ex post facto clause is Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30.  Collins was endorsed by the California Supreme Court in Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434.  (Tapia at pp. 293-294, 279 Cal.Rptr. 592, 807 P.2d 434.)   In Collins, the defendant argued that the ex post facto clause prohibited any law which “deprives an accused of a ‘substantial protection’ under law existing at the time of the crime.”  (Collins at p. 44, 110 S.Ct. 2715.)   The U.S. Supreme Court disagreed.   In its view, the ex post facto clause prohibited only three types of laws.  “[Application of a law which] does not punish as a crime an act previously committed, which was innocent when done;  nor make more burdensome the punishment for a crime, after its commission [ 5 ];  nor deprive one charged with crime of any defense available according to law at the time when the act was committed ․ is not prohibited by the Ex Post Facto Clause of Art. I, § 10.”  (Collins at p. 52, 110 S.Ct. 2715.)   The court clarified that an individual was only deprived of an available “defense” within the meaning of the Ex Post Facto Clause if there were post-offense “ alterations in ‘the legal definition of the offense.’ ”   (Collins at p. 50, 110 S.Ct. 2715;  accord People v. Helms (1997) 15 Cal.4th 608, 614, 63 Cal.Rptr.2d 620, 936 P.2d 1230.)   Even the more expansive view of the Ex Post Facto Clause favored by the separate concurrence in Collins acknowledged that “[t]he mere possibility of a capricious and unlikely windfall is not the sort of procedural protection that could reasonably be judged substantial from the perspective of the defendant at the time the offense was committed.”  (Collins at p. 61, 110 S.Ct. 2715 (conc. opn. of Stevens, J.).)

The precise parameters of the prohibition on alterations in the “legal definition of the offense” is the question before us.   This semantic expression of this prohibition has been fixed for more than seven decades.   It had its origin in Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (Beazell at pp. 168-169, 46 S.Ct. 68), and the U.S. Supreme Court has continued to endorse it after Collins.   In California Department of Corrections v. Morales (1995) 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588, the U.S. Supreme Court, citing Collins, reiterated that the ex post facto clause only prohibits changes in the law which retroactively alter (1) “the definition of crimes” or “the definition of criminal conduct” or (2) increase “the punishment for criminal acts” or “the penalty by which a crime is punishable.”  (Morales at pp. 504, 506 fn. 3, 115 S.Ct. 1597.) A recent Ninth Circuit Court of Appeals decision rejecting an ex post facto challenge to the extension of an unexpired limitations period held that alterations in statutes of limitation do not violate the Ex Post Facto Clause.  “Only statutes withdrawing defenses related to the definition of the crime, or to the matters which a defendant might plead as justification or excuse fall within the latter group.   Plainly, extension of the limitations period neither criminalizes previously innocent conduct nor enhances the punishment for an existing crime.”  (U.S. v. Bischel (1995) 61 F.3d 1429, 1436, emphasis added.)

Penal Code section 803, subdivision (g) (hereafter 803(g)) did not make a previously innocent act criminal nor did it increase the punishment for a crime after its commission.   The only question is whether 803(g) altered “the definition of the crime” with which defendant is charged.   There are no U.S. Supreme Court or California Supreme Court cases considering whether a “defense” premised on the statute of limitations is a violation of the U.S. Constitution's ex post facto clause.

The California Court of Appeal cases on this issue seem to have been most heavily influence by a comment in dicta in a 1928 federal circuit court opinion written by Judge Learned Hand. In Falter v. United States (1928) 23 F.2d 420, the issue was whether the extension of an unexpired limitations period violated the ex post facto clause.   Judge Hand rejected the argument using the following language.  “Perhaps they [the defendants] would be right, if the earlier statute had once run in their favor.   But the period had not run, and the argument is, and must be, that any change after the commission of the crime, and while the time is running, is within the constitutional prohibition․  [¶] ․ Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life.   The question turns upon how much violence is done to our instinctive feelings of justice and fair play.   For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest.   But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.”   (Falter at pp. 425-426.)

 We are not persuaded by this dicta.   The circumstances of a particular case might well demonstrate that it would be “unfair” to subject a defendant to an extended limitations period for an offense.   However, the “fairness” of a particular law is not part of the restricted analysis mandated by Collins for determining whether the law violates the ex post facto clause.   We reject Falter 's suggestion that the extension of an expired statute of limitation violates the U.S. Constitution's ex post facto clause.6

The California appellate cases also do not offer a persuasive justification for concluding that the ex post facto clause bars elimination of a statute of limitations “defense” after the commission of the offense and the expiration of the limitations period.   In Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 106 Cal.Rptr. 516, the First District Court of Appeal held that an extension of the limitations period after the commission of the offense and after the expiration of the previously-applicable limitations period violated the ex post facto clause.  (Sobiek at p. 850, 106 Cal.Rptr. 516.)   The court relied solely on Judge Hand's comment in Falter.  (Sobiek at p. 850, 106 Cal.Rptr. 516.)

In Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, the Second District Court of Appeal, relying heavily on Sobiek and devoting little analysis to the ex post facto principles set forth in Collins, held that Penal Code section 803, subdivision (g) violated the U.S. Constitution's ex post facto clause by extending the limitations period after its expiration.7  (Lynch at pp. 1226-1228, 39 Cal.Rptr.2d 414.)   The Second District characterized as an “extreme proposition” the assertion that “new criminal statutes of limitations reviving and extending expired limitations periods would never violate ex post facto protections.”  (Lynch at p. 1227, 39 Cal.Rptr.2d 414.)   It rejected this position solely on the ground that it was inconsistent with Sobiek and its progeny.  (Lynch at p. 1227, 39 Cal.Rptr.2d 414.)

In People v. Bunn (1997) 53 Cal.App.4th 227, 61 Cal.Rptr.2d 734, the First District, after subjecting the contention to considerably more analysis, agreed with the conclusion reached in Lynch.  (Bunn at pp. 235-236, 61 Cal.Rptr.2d 734.)   The court stated that the critical question was whether the extension of the statute of limitations deprived the defendant of “any defense available according to law at the time when the act was committed” within the meaning of Collins.  (Bunn at p. 233, 61 Cal.Rptr.2d 734.)  Bunn concluded that the extension of an expired limitations period deprived a defendant of such a “defense” because (1) California considers the statute of limitations to be an “element of the offense,” (2) the prosecution must plead and prove that the offense occurred within the applicable limitations period and (3) it is a defense to a charge that the alleged offense did not occur within the applicable limitations period.  (Bunn at pp. 233-234, 236, 61 Cal.Rptr.2d 734.)   The First District also suggested that extension of an expired statute of limitations would increase the punishment after the commission of the offense because the punishment provided at the time of the offense was linked to a prosecution brought within the then-applicable limitations period.  (Bunn at pp. 237-238, 61 Cal.Rptr.2d 734.)

We do not find these justifications convincing.   While California considers the statute of limitations to be a substantive rather than procedural issue (People v. Zamora (1976) 18 Cal.3d 538, 547, 134 Cal.Rptr. 784, 557 P.2d 75), it is neither technically nor substantively true that California defines crimes in terms of the limitations period.   For instance, Penal Code section 288 does not and did not state that lewd acts are only criminal if a prosecution is commenced within a certain period.   Further, it would make no sense to do so.   An offender cannot know or even speculate at the time of the commission of the offense as to whether or when a prosecution might be commenced.   The possibility that a prosecution will not be commenced within the then-applicable limitations period is a “mere possibility of a capricious and unlikely windfall [which] is not the sort of procedural protection that could reasonably be judged substantial from the perspective of the defendant at the time the offense was committed.”  (Collins at p. 61, 110 S.Ct. 2715 (conc. opn. of Stevens, J.).)   Hence, we simply cannot conclude that the limitations period is part of the “legal definition of the offense” within the meaning of Collins.

Statutes of limitation have very different purposes than statutes defining criminal offenses.  “The possibility of self-reformation by the criminal offender may lessen the need for society to impose corrective sanctions and society's impulse for retribution may correspondingly diminish as time passes.   Statutes of limitation also encourage the swift and effective enforcement of the law, hopefully producing a stronger deterrent effect.   They tend to limit the chance that the first offense will spawn blackmail of the offender by others threatening disclosure - crime breeding more crime.   Finally, adoption of a period of limitation represents a legislative recognition that for all but the most serious of offenses (such as murder or kidnaping) a never-ending threat of prosecution is more detrimental to the functioning of a civilized society than it is beneficial.”  (Zamora at p. 547, 134 Cal.Rptr. 784, 557 P.2d 75.)

We recognize that statutes of limitation serve valid purposes.   However, none of these purposes has the slightest relationship to the “definition of the offense” to which the ex post facto clause prohibits post-offense alterations.   In our view, changes in the limitations period are not alterations in the “legal definition of the offense” within the meaning of Collins and therefore do not violate the U.S. Constitution's ex post facto clause.   Whether such changes violate some other statutory or constitutional protection is not an issue before us in this case.

CONCLUSION

The judgment is reversed.

I respectfully dissent.

The prosecution here was commenced under the authority of Penal Code section 803, subdivision (g) extending the statute of limitations for filing a criminal complaint against an individual charged with committing a sex crime against a minor.   Subdivision (g) provides a limitations period of one year from the date a person of any age reports that he or she was a victim of a lewd act while under the age of eighteen, regardless of the date the offense was committed.   In 1995, this court filed an opinion authored by Presiding Justice Cottle concluding that there was no reason to depart from the well-settled rule that when the criminal limitations period originally applicable to an offense has run, ex post facto protections bar a subsequent statutory amendment from reviving or extending the period.1  I recently concurred in an opinion authored by Justice Elia, in which we again determined that ex post facto protections bar a subsequent statutory amendment from reviving an expired statute of limitations in Penal Code section 803, subdivision (g).  Although the Supreme Court has granted review in this case (and others),2 I remain convinced that our opinion is correct.

To outline our reasons briefly:  Penal Code section 803, subdivision (g) does not simply reset the clock by extending the time period defined by the previous statute of limitations, but rather changes entirely the way in which time is kept.   The statute expressly recites that this new kind of limitations period is intended to revive criminal causes of action for which the old limitations period had expired.   In effect, it creates an indefinite, perhaps lifelong, threat of prosecution for those who could be accused of the enumerated sex crimes with minors.   In the recent cases of Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414 and People v. Bunn (1997) 53 Cal.App.4th 227, 61 Cal.Rptr.2d 734, the reviewing courts considered Penal Code section 803, subdivision (g) and concluded that a criminal statute of limitations may be extended before, but not after, it has run as to a particular offense.   Ex post facto principles prevent such a revival.   I agree.   Both Bunn and Lynch discuss whether the statute of limitations is an element of or a defense to a crime within the meaning of the ex post facto clauses.   Both conclude that whether the statute of limitations technically is an element or defense or not, the fact that the prosecution was commenced within the statutory period is clearly an essential matter that the People must prove.  “[U.S. v. Brechtel (5th Cir.1993) 997 F.2d 1108 and U.S. v. Knipp (6th Cir.1992) 963 F.2d 839] simply cannot be squared with the California cases that consider the statute of limitations to be an element of the offense, and an expired limitations period to be a matter of defense-indeed, a complete defense-to prosecution on the time-barred charges.”   (People v. Bunn, supra, 53 Cal.App.4th at p. 236, 61 Cal.Rptr.2d 734, emphasis in original.)   I would decline the attorney general's invitation to depart from the well-settled rule that when the criminal limitations period originally applicable to an offense has run, ex post facto protections bar a subsequent statutory amendment from reviving the period.

I see no reason to depart from this court's prior conclusions.

FOOTNOTES

1.   Thirty-one counts of incest (Pen.Code, § 285) involving a different victim were also charged in addition to a single count of failing to register as a sex offender (Pen.Code, § 290, subd. (g)).  These counts are not involved in this appeal.

2.   Defendant raised several arguments in his motion to dismiss, but only the ex post facto claim was argued to the court.   The court dismissed these counts solely on the ground that prosecution of these counts would violate the U.S. Constitution's ex post facto clause.

3.   “No Bill of Attainder or ex post facto Law shall be passed.”  (U.S. Const., art. I, § 9.)

4.   This issue is currently before the California Supreme Court in Davis on Habeas Corpus (S062716) and People v. Frazer (S067443).

5.   The punishment for a Penal Code section 288 violation in 1979 and 1980 was three, five or seven years in state prison.   The subsequent increase in the length of the prison term may not constitutionally be applied to the alleged 1979 and 1980 offenses.

6.   We also note that Collins does not support Falter 's distinction between the revival of an expired statute of limitations and the extension of an unexpired statute of limitations.   In our view, a change in the statute of limitations applicable to an offense will never alter the “legal definition of the offense” regardless of whether the limitations period has expired.

7.   Lynch was a writ proceeding in which the People declined to file any opposition to the defendant's petition.

1.   The Supreme Court granted review in our case as it did with several other cases reaching the same conclusion.   These cases were all then dismissed.  (People v. Regules (S048880), rev. dism. Apr. 24, 1997.)

2.   People v. Lee (S071007), review granted July 29, 1998;  Davis on Habeas Corpus (S062716) and People v. Frazer (S067443), review granted March 11, 1998.   Review has recently been denied in two of this district's opinions following Lee:  People v. Rupp (H018343, rev.den.Feb. 24, 1999) and People v. Carlton (H017837, rev.den.Jan. 13, 1999).

MIHARA, J.

BAMATTRE-MANOUKIAN, Acting P.J., concurs.