PEOPLE v. THI LE

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Cam Thach THI LE, Defendant and Appellant.

The People, Plaintiff and Respondent, v. Alexander Sinclair, Defendant and Appellant.

The People, Plaintiff and Respondent, v. David E. Page, Defendant and Appellant.

Nos. G018045, G018046, G018057.

Decided: July 31, 1998

Kopeny & Powell and William J. Kopeny, Irvine, for Defendant and Appellant in No. G018045. Michael D. Abzug, Los Angeles, for Defendant and Appellant in No. G018046. Scovis & Scovis, and Arthur L. Scovis, Los Angeles, for Defendant and Appellant in No. G018057. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany and Crystal L. Bradley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Cam Thach Thi Le, Alexander Sinclair, and David E. Page appeal their convictions for multiple counts of grand theft and insurance fraud, contending the prosecution did not adequately plead and prove the statute of limitations had not run.1  We reverse with directions.

On June 12, 1992, arrest warrants issued for Le, Sinclair, and Page (collectively, the defendants) as the result of a complaint filed in West Orange County Municipal Court case number DVW 239475APOF that alleged illegal fee splitting, conspiracy, and multiple counts of insurance fraud and grand theft.   On October 28, 1993, the Orange County Grand Jury returned an indictment against the defendants charging illegal fee splitting against Sinclair and Page, nine counts of insurance fraud and six counts of grand theft against Sinclair and Le, six counts of insurance fraud and two counts of grand theft against Page and Le, the illegal practice of medicine against Le, and conspiracy against all defendants.   All of the violations were alleged to have occurred on dates between May 1, 1987, and February 15, 1990.   The indictment alleged:  “[T]his prosecution [was] commenced by the issuance of an arrest warrant ․ on June 12, 1992, within the meaning of Penal Code Section 804.” 2

After the prosecution rested, the court dismissed the conspiracy, illegal practice of medicine, and fee splitting counts for failure of proof, and certain other counts in the interest of justice.   Sinclair's lawyer inquired, “When they rest, that means that's the evidence;  [n]o more evidence?”   The court responded, “No more evidence.”   Le's counsel asked, “Are they precluded from reopening?”   The court replied, “The case is over, yes.   Yes, I am not going to let them reopen after a month and a half.”

The defendants all joined in a motion for acquittal, asserting the prosecutor failed to prove the statute of limitations had not run.   The prosecutor asked for a recess until the next day to respond, which the court ultimately granted.3  When court convened the next day, it expressed the sentiment that it should allow the prosecution to reopen.4  Defense counsel explained their theories of prejudice if the prosecution were allowed to reopen, renewed their objections, and Sinclair and Le rested.

The prosecution introduced the arrest warrants into evidence, and called Investigator Blochl.   He testified he obtained the warrants, that the facts stated in the affidavit for the arrest warrants covered the same subject matter as was being litigated in the trial, and the present case had a different case number than the one for which he obtained the warrants.   He knew the latter case had been dismissed before a preliminary hearing was held, but he did not know when.   The defendants were convicted of some, but not all, of the insurance fraud and grand theft counts.5

All parties agree the charges were subject to a three-year statute of limitations 6 and that the indictment was not issued within three years of any of the alleged offenses.   The dispute centers on whether the evidence that arrest warrants issued within three years of the offenses adequately proved the statute of limitations had not run.

Section 804 provides in relevant part, “For the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:  ․ [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.”   The Attorney General argues proof that arrest warrants issued within three years of the offenses was adequate.   He relies on People v. Lewis (1986) 180 Cal.App.3d 816, 225 Cal.Rptr. 782, where the court stated, “[T]he issuance of a valid warrant for defendant's arrest shortly after the commission of the crime is an undisputed fact and the issuance of the arrest warrant tolled the limitations period as a matter of law.   The existence of an event tolling the period being an undisputed fact, the error in failing to plead that event or to prove it to the jury is harmless.”  (Id. at p. 821, 225 Cal.Rptr. 782.)

The defendants respond 7 the Lewis court interpreted former section 802.5 which referred to the issuance of an arrest warrant as “tolling” the statute of limitations.  (Former § 802.5, repealed by Stats.1984, ch. 1270, § 1.) Present section 804 describes the act of issuing an arrest warrant as “commenc[ing]” a prosecution.   The defendants reason that although the issuance of the warrants may have commenced a proceeding in municipal court intended to culminate in a preliminary hearing and the issuance of an information in superior court, it did not commence this prosecution, which began with the grand jury's indictment.   In other words, the defendants argue that “prosecution,” as used in section 804, refers to the case in which the defendants are actually on trial.

They note section 803 deals with tolling and provides in relevant part:  “(a) Except as provided in this section, a limitation of time prescribed in this chapter is not tolled or extended for any reason. [¶] (b) No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.”   The defendants reason that, at most, the issuance of the arrest warrant began the tolling period arising from a “prosecution of the same person for the same conduct.”  (§ 803, subd. (b).)  The statute would be tolled for the time “during which prosecution ․ [was] pending.”  (Ibid.)

The defect in the prosecution's proof, the defendants argue, is it did not establish the length of the tolling period.   To meet its burden of proof, the prosecution needed to prove the time during which the other prosecution was pending, when subtracted from the time between the commission of the offenses and the issuance of the indictment, yields a period less than three years.8

 In resolving the dispute between the defendants' and the Attorney General's interpretation of the statutes, we construe application of the statute of limitations strictly in favor of the defendants.   (People v. Zamora (1976) 18 Cal.3d 538, 574, 134 Cal.Rptr. 784, 557 P.2d 75.)   Using this rule, general rules of statutory construction, and precedent, we conclude the defendants' interpretation is correct.

In Maytag v. Municipal Court (1982) 133 Cal.App.3d 828, 184 Cal.Rptr. 365, the Court of Appeal held that for statute of limitations purposes, the filing of a later complaint did not relate back to the filing date of the original complaint alleging the same charges, where the original complaint had been dismissed.  (Id. at pp. 830-831, 184 Cal.Rptr. 365.)   Implicit in the holding is the notion the two complaints were not for the same “prosecution,” even though they related to the same criminal violations.   The Legislature was presumably aware of Maytag when it enacted sections 803 and 804 in 1985.  (See People v. Overstreet (1986) 42 Cal.3d 891, 897, 231 Cal.Rptr. 213, 726 P.2d 1288 [Legislature is presumed to be aware of existing decisions and to have acted in light of them].)

The California Law Revision Commission comments to section 803 and 804 also support the notion multiple prosecutions for the same acts are distinct.  (See People v. Williams (1976) 16 Cal.3d 663, 667-668, 128 Cal.Rptr. 888, 547 P.2d 1000 [California Law Revision Commission comments are declarative of legislative intent].)  Section 803, subdivision (b) “continues the substance of former Section 802.5.”  (Cal. Law Revision Com. com., West's Ann. Pen.Code, § 803 (1996 pocket supp.) p. 25.)   The Commission comment to section 803 uses the term “subsequent prosecution” when referring to language in former section 802.5 addressing “recommencing the same ‘criminal action’ ” (Cal. Law Revision Com. com., supra, at p. 25, italics added), indicating earlier and later prosecutions are distinct, and the statute of limitations is tolled while the earlier prosecution is pending.9  The Commission comment for section 804 notes “[s]ubdivision (d) [referring to the issuance of an arrest warrant as commencing an action] continues the substance of portions of former Sections 800 and 802.5․”  (Cal. Law Revision Com com., West's Ann. Pen.Code § 804 (1998 pocket supp.) p. 31.)   Thus, nothing in the enactment of section 804 alters the interpretation of section 803.

 Finally, construing section 804, subdivision (d) as the Attorney General urges would violate the rule that statutes are to be construed so as to avoid rendering other legislation a nullity.  (See People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328.)  Section 804 lists the various acts that commence a prosecution for purposes of the statute of limitations, and lists virtually all of the ways a prosecution can be commenced.10  If those acts commenced not only the case to which they related but all later prosecutions for the same acts that might arise, section 803, subdivision (b) would be effectively unnecessary because tolling would not be necessary.   For these reasons, we conclude the issuance of the arrest warrants in case DVW 239475APOF commenced that prosecution, but it did not commence this case, 93ZF0165, which arose from an indictment.11

 The Attorney General suggests any error in the pleading or proof is cured on the undisputed facts of the case.12  In People v. Lewis, supra, 180 Cal.App.3d 816, 225 Cal.Rptr. 782, the court held that although the failure to plead and prove the statute of limitations was “of jurisdictional proportions,” that error was cured by the “undisputed fact” an arrest warrant had issued shortly after the commission of the crime, tolling the statute of limitations.  (Id. at p. 821, 225 Cal.Rptr. 782.)   Because the facts were undisputed, it would be a waste of resources to remand the case for a predestined result.  (Ibid.;  see also People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1642, 284 Cal.Rptr. 230;  People v. Posten (1980) 108 Cal.App.3d 633, 648-649, 166 Cal.Rptr. 661.)

Lewis is distinguishable for at least two reasons.   First, the facts here are not undisputed as they were in Lewis.   The Attorney General refers us to what is purportedly a dismissal of the complaint in the municipal court proceeding, and argues it shows a tolling period created by that action which made the present action timely filed.   But the document is merely an attachment to the prosecution's opposition to a new trial.   It does not contain a case number and the prosecution's representation as to the document's identity was not made under oath.   It was not offered as evidence at trial.   Most importantly, none of the defendants concede that the facts are undisputed, as was the case in Lewis.

 Second, even if the tolling period were undisputed, the prosecution would not be entitled to an affirmance.   In Cowan v. Superior Court (1996) 14 Cal.4th 367, 58 Cal.Rptr.2d 458, 926 P.2d 438, the Supreme Court overruled a body of case law, commencing with People v. McGee (1934) 1 Cal.2d 611, 36 P.2d 378, to the extent it held the statute of limitations is jurisdictional in the fundamental subject matter sense.  (Id. at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438.)   In doing so, however, the Court expressly declined to abandon the well established rule that the statute of limitations is a substantive matter which the prosecution must prove by a preponderance of evidence at trial if the defense puts the prosecution to its proof.  (Ibid.;  see also People v. Bunn (1997) 53 Cal.App.4th 227, 234, 61 Cal.Rptr.2d 734 and cases cited [statute of limitations is a matter of defense if asserted at trial, which prosecution must prove by a preponderance of the evidence];  People v. Fine (1997) 52 Cal.App.4th 1258, 1267, 61 Cal.Rptr.2d 254 [if facts concerning due diligence regarding statute of limitations are disputed, it becomes an issue for the trier of fact];  People v. Lopez (1997) 52 Cal.App.4th 233, 250, 60 Cal.Rptr.2d 511.) 13  The Cowan majority did not suggest the prosecutor's duty to prove its case is different in this instance than it is with any other “element” of its case.

In People v. Lewis, supra, 180 Cal.App.3d 816, 225 Cal.Rptr. 782, and similar cases, the defendant had either pleaded guilty or had been convicted of a lesser included offense at trial.   The defendant attacked, either in a pretrial motion or for the first time on appeal, the prosecution's failure to plead, and sometimes to prove as well, that the statute of limitations had not run.   The courts found pleading problems caused jurisdictional errors that were either cured on the record presented or that the prosecution was entitled to attempt to cure on remand.  (See, e.g., People v. Chadd (1981) 28 Cal.3d 739, 758, 170 Cal.Rptr. 798, 621 P.2d 837;  In re McCartney (1966) 64 Cal.2d 830, 832, 51 Cal.Rptr. 894, 415 P.2d 782;  People v. Guiterrez, supra, 232 Cal.App.3d at p. 1642, 284 Cal.Rptr. 230;  People v. Posten, supra, 108 Cal.App.3d at pp. 648-649, 166 Cal.Rptr. 661;  People v. Lewis, supra, 180 Cal.App.3d at pp. 821-822, 225 Cal.Rptr. 782;  People v. Park (1978) 87 Cal.App.3d 550, 571-572, 151 Cal.Rptr. 146;  People v. Morgan (1977) 75 Cal.App.3d 32, 40-41, 141 Cal.Rptr. 863;  People v. Rose (1972) 28 Cal.App.3d 415, 417-418, 104 Cal.Rptr. 702;  but see In re Demillo (1975) 14 Cal.3d 598, 601-602, 121 Cal.Rptr. 725, 535 P.2d 1181 [judgment vacated and petitioner discharged on habeas corpus where prosecution failed to plead tolling];  and see People v. Padfield (1982) 136 Cal.App.3d 218, 225-227, 185 Cal.Rptr. 903 [defendant's guilty plea admitted sufficiency of tolling allegations];  and see Cowan v. Superior Court, supra, 14 Cal.4th at p. 373, 58 Cal.Rptr.2d 458, 926 P.2d 438 [jurisdiction is not fundamental in this sense].)  That rule makes sense because in each case the prosecution never had an opportunity to prove the statute of limitations had not run.

But the result is different when the defense has challenged the prosecution to prove at trial that the statute of limitations has not run.   Many cases have discussed the distinction between the pleading and proof aspects of the statute of limitations.   For example, in People v. Lopez (1997) 52 Cal.App.4th 233, 60 Cal.Rptr.2d 511, the court explained that if the defense asserts in a pretrial motion that the statute of limitations has run, the court may decide the issue as a matter of law if the facts are not in dispute.  “On the other hand, if the evidence either establishes that the statute has not run or is conflicting on the question, the court should deny the motion because there has been no proof that the statute has run as a matter of law.  ‘If the People prevail after such a hearing, then the limitation issue must still be resolved by the jury if it remains disputed by the defendant.’  [Citation.]”  (People v. Lopez, supra, 52 Cal.App.4th at p. 250, 60 Cal.Rptr.2d 511, italics added;  see also People v. Bunn (1997) 53 Cal.App.4th 227, 234, 61 Cal.Rptr.2d 734 [statute of limitations is a matter of defense if asserted at trial];  People v. Fine (1997) 52 Cal.App.4th 1258, 1267, 61 Cal.Rptr.2d 254 [if facts concerning due diligence regarding statute of limitations are disputed, it becomes an issue for the trier of fact].) 14

 When a statute of limitations issue has been tried to a jury, on appeal the question becomes whether there was substantial evidence to support the jury's implied findings.  (People v. Zamora (1976) 18 Cal.3d 538, 565, 134 Cal.Rptr. 784, 557 P.2d 75.)   If there is not, the judgments are reversed.  (Id. at pp. 565, 574, 134 Cal.Rptr. 784, 557 P.2d 75.)

The prosecution presented sufficient evidence to show the prior prosecution commenced before the statute of limitations had run.   It presented no evidence, however, to show how long the statute was tolled by that prosecution.   The prosecution had its chance but failed to show the statute of limitations had not run by the time the indictment issued.

Our concurring and dissenting colleague asserts we are “depriv[ing] the prosecution of its only real chance to address the specific ‘jurisdictional’ issue raised for the first time in this court.”  (Conc. and dis. opn., Bedsworth, J., post at p. 333.)   That statement follows a lengthy explication of the arguments made in the trial court on the issue.   The gist of the recitation and our colleague's conclusion seems to be retrial should be allowed because the defense, intentionally or unintentionally, somehow sandbagged the prosecution into failing to prove its case.   We have already opined why the defendants' argument on appeal is not raised for the first time.

 Moreover, our colleague's view denies the nature of the statute of limitations as a part of the prosecution's proof at trial.   The defense has no duty to help the prosecution by showing it where its proof is lacking.  (See People v. Armitage (1987) 194 Cal.App.3d 405, 421-422, fn. 11, 239 Cal.Rptr. 515 [defendant could raise sufficiency of evidence claim despite failure to object at trial].)  Indeed, defense counsel, as an advocate, has an ethical duty to refrain from doing so.  (See In re Hall (1981) 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690 [trial counsel was incompetent, among several reasons, for turning defense information over to the police];  People v. Diggs (1986) 177 Cal.App.3d 958, 970, 223 Cal.Rptr. 361 [trial counsel was incompetent for effectively conceding guilt in final argument despite the defendant's claim to the contrary].)

The judgment is reversed with directions to enter a judgment of acquittal as to all defendants.15

I concur in the result reached by Justice Wallin-the matter must be reversed and cannot be retried.   However, my heart is with the dissent.   To require a prosecutor to prove a negative as an element of an offense defies the grand logic of the law.   As in civil cases, the burden of raising the statute of limitations should rest with the defendant by way of an affirmative defense.   That is my view, but not the Supreme Court's.   Consequently, I am forced to concur in the result of the lead opinion, albeit reluctantly.   The problem with our dissenting colleague's position is that in requiring the defendant to raise the statute of limitations by objection or some other means, he has placed an affirmative burden on the defendant to raise the issue.   In essence, the dissent has converted the prosecutor's burden of proving an element of the offense, that the statute of limitations has not run, into an affirmative defense by requiring the defendant to raise it in the first instance.   This cannot be done, although I wish it could.   Hopefully, our Supreme Court will revisit People v. McGee (1934) 1 Cal.2d 611, 36 P.2d 378 and Cowan v. Superior Court (1996) 14 Cal.4th 367, 58 Cal.Rptr.2d 458, 926 P.2d 438.

I reluctantly concur in reversal of the judgment, being compelled to do so by the slaggish remains of People v. McGee (1934) 1 Cal.2d 611, 36 P.2d 378, overruled on other grounds in Cowan v. Superior Court (1996) 14 Cal.4th 367, 374, 58 Cal.Rptr.2d 458, 926 P.2d 438.   I cannot join, however, in the lead opinion's order directing the trial court to enter a judgment of acquittal as to all defendants.

Le, joined by Sinclair and Page, contends the prosecution failed to prove this action was commenced within the three-year statute of limitations set forth in Penal Code section 801.1  Because such proof is considered an “element” of the People's case under the hoary authority of McGee, and proof was not satisfactorily shown at trial, appellants contend the judgment must be reversed with directions that acquittals be entered as to each defendant.   Under present authority, antiquated and Byzantine as it seems to me, I am compelled to agree reversal is required.   However, I see no reason to bar a retrial.

On June 12, 1992, arrest warrants issued for Le, Sinclair, and Page (collectively, defendants) as the result of a complaint filed in West Orange County Municipal Court case number DVW239475 alleging illegal fee splitting, conspiracy, and multiple counts of insurance fraud and grand theft.   Subsequently, on October 28, 1993, the Orange County Grand Jury presented an indictment containing the same charges and accusing Le of practicing medicine without a license.   All of the violations were alleged to have occurred on dates between May 1, 1987, and February 15, 1990.   The indictment further alleged, “[T]his prosecution [was] commenced by the issuance of an arrest warrant ․ on June 12, 1992, within the meaning of Penal Code Section 804.” 2

Following a demurrer and several pretrial motions unrelated to the statute of limitations, trial began on October 5, 1994.   Over the course of about a month and a half, the prosecution presented its case.   Once it rested, the court dismissed the conspiracy, illegal practice of medicine, and fee-splitting counts for failure of proof, and certain other counts in the interest of justice.   Then Sinclair's lawyer inquired, “When they rest, that means that's the evidence;  [n]o more evidence?”   The court responded, “No more evidence.”   Le's counsel asked, “Are they precluded from reopening?”   The court replied, “The case is over, yes.   Yes, I am not going to let them reopen after a month and a half.”

Upon hearing the court's response, defendants all moved for acquittal on the ground the prosecutor had failed to prove his case was brought within the three-year statute of limitations.   The court allowed the prosecution a recess to respond to this motion.

When court convened the following day, the learned trial judge-a former presiding justice of the court of appeal-observed that, based on the defendants' conduct and arguments since the filing of the indictment, he “had no idea this was coming up, of course.” He then asked, “[W]hy can't they prove it now?” Defendants immediately protested and accused the court of breaking its “promise” not to allow the district attorney to reopen.   After extended discussion, the court finally put an end to the argument, stating, “Well, this is a little bit too much gamesmanship.   This is an issue which was not raised at all.   They rested as to the issues we had before us.   I'm not going to go for that.   I will allow them to amend, if necessary, and prove.”3

The attorneys representing Le and Sinclair both complained that the proof was deficient because the prosecutor had neglected to offer the arrest warrants into evidence.   Since the warrants had not been introduced, counsel complained the evidence failed to demonstrate the date on which the “action” was commenced.   This is the failure of proof on which they relied.

Specifically, Le's attorney told the court, “The People have failed to prove [jurisdiction], although they have pled the facts which would justify a tolling of the limitation period.   And that fact, namely, is the date of the filing and the specifics of the filing of the warrants, as alleged․”  (Italics added.)   Similarly, Sinclair's attorney argued, the People “didn't prove the jurisdiction.   They know about it because they indicted it;  they know about the arrest warrant because they presented it.”   Thus, neither the court nor the prosecutor was put on notice that the defense was concerned about any defect in the proof other than the prosecutor's failure to show when the arrest warrants were filed-i.e., on June 12, 1992.

After argument, the court allowed the prosecutor to introduce the arrest warrants into evidence.   In addition, it permitted him to call Investigator Blochl as a witness.   Blochl testified that the facts in the affidavit he filed to secure the original warrants for the defendants' arrests covered exactly the same subject matter being litigated at trial, though the case number on the original complaint was different from the case number assigned to the indictment.   The prosecutor then rested again and the defendants' convictions followed.

On March 1, 1995, a date after the trial but before judgment was pronounced, the defendants moved to arrest judgment and for a new trial.   Again, the trial court heard argument on the limitations question and ordered that the parties brief the issue of whether the prosecution had adequately proven its case was not time barred.   The defendants then filed a joint motion to dismiss in which they argued, inter alia, that the indictment was barred because the district attorney had not proven that the indictment and the complaint were the same case-a different argument than they had made at trial.

The prosecutor countered with papers insisting he had already proven “Municipal Court case [DVW239475APOF was the] prosecution of the same person[s] for the same conduct as the Superior Court case ․ 93ZF0165.”   Attached as an exhibit to his opposition papers was a copy of the municipal court docket showing that the original complaint had been dismissed on November 1, 1993, in favor of what, as it became apparent, was a superseding indictment.   On April 10, 1995, after considering the parties' submissions, the court denied each of defendants' motions.

Now, on appeal, defendants' appellate counsel have come up with a third complaint about the prosecution's timeliness.  Penal Code section 803, subdivision (b) provides, “No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.”  (Italics added.)   Based upon Penal Code section 803, they claim that, because the prosecutor failed to present evidence showing how long the initial criminal complaint was “pending,” there is no way to know whether or for how long the statute of limitations was tolled prior to the filing of the indictment.

In other words, the argument now is that without proof of when the original complaint was dismissed, there is no way to ascertain whether the indictment was merely a continuation of the original action or a separate action brought beyond the time permitted by law.   This argument has merit and, reluctantly, I agree the judgment must be reversed.

My reluctance is twofold.   First, according to the evidence presented over the course of a month and a half at significant expense to the parties and the justice system, these defendants did exactly what the jury found they did.4  I do not take any joy in reversing a case when substantial evidence demonstrates guilt.

The second reason is this.   Criminal trials, we're told, are supposed to be a search for truth:  “ ‘․ a trial is not a game.   Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal.’ ”  (In re Misener (1985) 38 Cal.3d 543, 551, 213 Cal.Rptr. 569, 698 P.2d 637, quoting In re Ferguson (1971) 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234;  also see People v. Mayfield (1997) 14 Cal.4th 668, 766, 60 Cal.Rptr.2d 1, 928 P.2d 485;  People v. Barton (1995) 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531;  People v. Castro (1985) 38 Cal.3d 301, 309, 211 Cal.Rptr. 719, 696 P.2d 111;  cf.  People v. Peevy (1998) 17 Cal.4th 1184, 1197, 73 Cal.Rptr.2d 865, 953 P.2d 1212 [noting the United States Supreme Court's “emphasis upon the essential truth-finding function of the trial” even in the face of “government misconduct [that] was deliberate”];  Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019.)

Well, the system didn't give way here.   Reversal of this case because the prosecutor and a former presiding justice of the court of appeal failed to discern the nearly impenetrable intricacies of this particular statute of limitations argument-an argument it took excellent defense attorneys three tries to cadge together-trivializes the spirit of these worthy Supreme Court observations and conjures up Shakespeare's reference to “a tale Told by an idiot, full of sound and fury, Signifying nothing.”  (Shakespeare, Macbeth, act V, scene v, line 17.)

We know the truth in this case.   The record before us reveals:  (1) the defendants' crimes were alleged to have occurred between May 1, 1987, and February 15, 1990;  (2) a timely action was commenced against them by the filing of complaint number DVW239475APOF in the municipal court and by issuance of arrest warrants on June 12, 1992;  and (3) the complaint was dismissed on November 1, 1993, in favor of a superseding indictment which had already been presented in the superior court on October 28, 1993, charging the defendants with the same criminal conduct as had been charged in the criminal complaint.   Thus, in truth, this case was initiated within the period permitted by the three-year statute of limitations.

The reasons this fact was overlooked at trial are also manifest from the record.   First of all, the allegation that the prosecution had failed to prove the action was timely commenced was neither broached nor put in the form of a motion to dismiss until the close of the prosecution's case in chief-which, because of the nature of the case, had taken more than a month to complete.   While the court later indicated it had entertained a “vague question” about the statute of limitations during the proceedings, neither the court nor the prosecutor-both of whom understood the superseding nature of the indictment-had any inkling the defense would raise the issue, since months had passed without any suggestion of such a problem.

Second, once the issue was finally raised, all the attorneys and the trial judge concluded that the only “element” of the issue the jury needed to decide had to do with whether “the action” was commenced within the time permitted by the applicable statute of limitations.   But none of the defense attorneys corrected the court when it agreed to read the only CALJIC instruction that deals with the problem, CALJIC No. 4.70, using the date the warrants were issued as the date “the action” was commenced.   The jury was thus instructed:  “This action was commenced on the 12[th] day of June, 1992.   The defendants may be found guilty if you find that they committed any element [of] the crimes charged against them at any time within 3 years before the commencement of the action.”  (Italics added.)   The defense failed to lodge any meaningful objection to the giving of this instruction.

Counsel only objected to the prosecutor's proposed modification of the instruction, asking that the court change the standard wording, “if you find that he or she committed the crime,” to “if you find he or she committed any element of the crime charged.”   With or without this change, however, the instruction took the issue away from the jury, because it assumed “[t]his case” was the case for which the arrest warrants were issued.   The jury was thus never given the opportunity to decide whether the indictment was timely filed.

Finally, as I have already indicated, in explaining the basis for their motion to dismiss during trial, counsel for Le and Sinclair only complained that the prosecutor had never introduced the arrest warrants into evidence.   In response to their objections, the prosecutor supplied what all agreed was the missing proof and then concluded, along with the trial court, that the problem was solved.

Of course, appellate counsel has the ability to sit down with the record and, in the words of a great jurist, apply “the gift of hindsight as he leisurely picks over the carcass of a dead lawsuit,” unhindered by “the minute to minute and second to second strategic and tactical decisions which must be made ․ during the heat of battle.”  (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1001, 118 Cal.Rptr. 391.)   Le's appellate counsel has done just this, and done it very well.   He has constructed a persuasive argument that demonstrates the prosecution failed to prove the indictment was the same action as the original complaint for which warrants were issued.   Of course he is right, but the need to address that particular issue was never apparent to anyone during the trial.

Under the highly unusual circumstances of this case, however, reversal without the right to retry the case seems to me incomprehensible-and unfair to the citizenry of our State.   I see no alternative to a reversal of the judgment so long as what's left of People v. McGee, supra, 1 Cal.2d 611, 36 P.2d 378, continues to express the view of a bare majority of our Supreme Court.   But I perceive no case authority which would require this court to deprive the prosecution of its only real chance to address the specific “jurisdictional” issue raised for the first time in this court.

To the contrary, where an argument alleging lack of compliance with a statute of limitations is raised for the first time on appeal, we are entitled to take judicial notice of available factual information that sheds light on the truth.  (See, e.g., People v. Park (1978) 87 Cal.App.3d 550, 571, 151 Cal.Rptr. 146 [where the court of appeal took judicial notice of pending civil actions to establish the tolling of the statute of limitations];  Evid.Code, §§ 452, 459.)

The docket sheets in the record before us, appended to the motions the parties litigated before pronouncement of judgment, perspicuously demonstrate the original criminal complaint was still pending when the superseding indictment was filed on October 28, 1993, and it was not dismissed until November 1, 1993.5  Thus, the present action is merely a continuation of the original case within the meaning of Penal Code section 803, subdivision (b), and it was, in fact, “commenced” within the three-year statute of limitations.

Despite this conclusion, I recognize the jury was never given the opportunity to resolve the jurisdictional question because of instructional error.   As I have noted, the trial court removed the issue from the jury's consideration by reading CALJIC No. 4.70-erroneously instructing that “[t]his action,” i.e., the indictment, “was commenced on June 12, 1992.”   Because our Supreme Court has continued to treat compliance with the statute of limitations as an element of the prosecutor's proof rather than an affirmative defense, I would remand this case for retrial to give the prosecutor the opportunity to prove, at substantial cost to the taxpayers and our overburdened judicial system, what we already know to be true.  (See People v. Otto (1992) 2 Cal.4th 1088, 1116, 9 Cal.Rptr.2d 596, 831 P.2d 1178 [retrial not precluded where reversal due to error of law].)

Apparently, the lead opinion perceives this approach as an abandonment of precedent.   I do not.   I believe that when the Supreme Court rejected the idea that the statute of limitations is jurisdictional in the “fundamental subject matter” sense (Cowan v. Superior Court, supra, 14 Cal.4th at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438), it implicitly rejected the per se reversal which the lead opinion and my concurring colleague conclude is required.   Since Cowan, it is no longer necessary to stand out in the rain, cursing the weatherman.   Since this was not fundamental jurisdictional error, we could do the right thing the law allows us to do, rather than insisting, as the lead opinion does, that the law requires the wrong thing and there is nothing we can do about it.

I agree the correctness of the course I have charted is not pellucid.   In Cowan v. Superior Court, supra, 14 Cal.4th at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438, in an opinion authored by Justice Chin, a majority of our Supreme Court agreed there was “no need to decide whether [to] ․ overrule [McGee ] entirely and hold the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial.”   But Justice Chin took the occasion to pen a separate opinion to express the view that McGee 's treatment of the statute of limitations as an element should remain the law of California.  (14 Cal.4th at pp. 378-383, 58 Cal.Rptr.2d 458, 926 P.2d 438, conc. opn. of Chin, J.)

On the other hand, two other justices signed a separate opinion contending that concerns related to noncompliance with the statute of limitations should be raised as an affirmative defense (Id. at pp. 383-393, 58 Cal.Rptr.2d 458, 926 P.2d 438, conc. and dis. opn. of Brown, J.).   And Justice Baxter indicated he believes that analysis has “considerable merit.”  (Id. at p. 378, 58 Cal.Rptr.2d 458, 926 P.2d 438, conc. opn. of Baxter, J.)

The Cowan case did not present the proper vehicle for reconsideration of these statute of limitations issues.   Perhaps this one will.

FOOTNOTES

1.   The defendants raise numerous other grounds for reversal that we need not reach because we agree with this contention.*   *   *

2.   All statutory references are to the Penal Code.

3.   Before the court granted the prosecution's request for a recess, the prosecutor suggested the court could take judicial notice of the arrest warrants.   Defense counsel responded the prosecutor would need to reopen for the court to do that.   The court mused that if the case went immediately to the jury, the court would be required to return verdicts of not guilty based on the statute of limitations, and the prosecution would need to reopen to present proof to avoid that result.   The court indicated it had a “vague question” about the statute of limitations as the case went along, but that it had been none of the court's business.

4.   The court asked, “[W]hy can't they prove it now?”   Defense counsel noted the prosecution had rested, and the court responded, “Well, this is a little bit too much gamesmanship.   This is an issue which was not raised at all.   They rested as to the issues we had before us.   I'm not going to go for that.   I will allow them to amend, if necessary, and prove.”   When defense counsel reminded the court it had said the prosecution would not be allowed to reopen, the court said, “But I had no idea this was coming up, of course.”

5.   Because we find well taken the defendant's argument that the prosecution did not prove the statute of limitations had not run, it is unnecessary to set forth the facts underlying the charges.   In general, Le, who was not a doctor, ran a clinic through which she referred patients to Sinclair and Page, both medical doctors, for plastic surgery, generally on the patient's nose.   When insurance companies were billed, the forms listed procedures other than those that were performed, listed health reasons for the procedures that did not exist, and gave false addresses for where the surgeries were performed (which increased the payment amounts).

6.   Section 801 provides:  “Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”   Sections 799 and 800 deal with the embezzlement of public money and offenses punishable by death, imprisonment for life, and imprisonment for eight years or more, none of which are applicable here.

7.   Actually, defendant Le makes this argument, but the other defendants have effectively joined in it.

8.   We do not ascribe to our concurring and dissenting colleague's view that the defendants' argument on appeal is new.  (Conc. and dis. opn., Bedsworth, J., post.)   At trial the defendants first argued the prosecution had not proved the statute of limitations had not run, stating specifically the prosecution had not offered the arrest warrants into evidence.   They did not assert that was the only necessary evidence.   The prosecutor apparently agreed his proof was lacking because he sought and was granted permission to reopen his case.   At the hearing on the motion in arrest of judgment made after trial, the defendants made essentially the same claim they do now-the arrest warrant was for a different case.   Le's opening brief constitutes the first time the argument and reasoning has been well explicated, but that phenomenon is hardly unique and certainly has never been a reason for allowing a retrial, as our concurring and dissenting colleague would do.

9.   Former section 802.5 read:  “The time limitations provided in this chapter for the commencement of a criminal action shall be tolled upon the issuance of an arrest warrant or the finding of an indictment, and no time during which a criminal action is pending is a part of any limitation of the time for recommencing that criminal action in the event of a prior dismissal of that action․”  (Italics added.)   The Commission pointed out the only substantive change in section 803, subdivision (b) was to adopt a broader concept than “criminal action,” as used in section 802.5, by replacing that language with “same conduct” in section 803.  (Cal. Law. Revision Com. com., supra, at p. 25.)

10.   The entire section provides:  “For the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:  (a) An indictment or information is filed. [¶] (b) A complaint is filed with an inferior court charging a public offense of which the inferior court has original trial jurisdiction. [¶] (c) A case is certified to the superior court. [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.”  (§ 804.)

11.   Two cases on which the Attorney General relies do not impact this result.  People v. Whitfield (1993) 19 Cal.App.4th 1652, 1659, 24 Cal.Rptr.2d 210, and People v. Lewis, supra, 180 Cal.App.3d at p. 821, 225 Cal.Rptr. 782, both dealt with the original prosecution of criminal acts.   The courts correctly found the prosecutions commenced with the issuance of the arrest warrants.  People v. Miller (1987) 192 Cal.App.3d 1505, 238 Cal.Rptr. 168, which the Attorney General also cites, merely held the arrest warrant that commences a prosecution may be issued either by a municipal court judge or a superior court judge.  (Id. at p. 1507, 238 Cal.Rptr. 168.)

12.   The Attorney General does not make the argument expressly, but because our holding results in a termination of the action, we give him the benefit of the doubt.

13.   To the extent People v. McGee, supra, 1 Cal.2d 611, 36 P.2d 378 can be viewed as “hoary” (conc. and dis. opn., Bedsworth, J., post, at p. 329), it was considerably rejuvenated by Cowan regarding the prosecutor's responsibilities when put to the proof at trial.

14.   Those cases are analogous to this one and are distinguishable from pleading cases such as People v. Park, supra, 87 Cal.App.3d 550, 151 Cal.Rptr. 146 and People v. Morgan, supra, 75 Cal.App.3d 32, 141 Cal.Rptr. 863, on which our concurring and dissenting colleague relies.  (Conc. and dis. opn., Bedsworth, J., post at pp. 333, 334, fn. 6.)

15.   We do not delight in reversing this case for the reasons Presiding Justice Sills points out in his concurring opinion.   Indeed, insofar as our concurring and dissenting colleague's writing advocates eliminating the statute of limitations as part of the prosecution's proof and making it a procedural defense, we applaud him.   But as long as the statute of limitations remains a substantive defense, failure to prove it has not run results in an acquittal, as we hold here.

1.   With specified exceptions, section 801 requires a “prosecution for an offense punishable by imprisonment in the state prison [to] ․ be commenced within three years after commission of the offense.”

2.   Section 804 provides, “For purposes of this chapter, prosecution for an offense is commenced when any of the following occurs:  ․ [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.”

3.   As a separate ground for reversal, appellants insist they were entitled to rely on the trial court's “promise” not to allow the district attorney to reopen his case.   When the court reneged on its “promise,” they argue, they were deprived of a substantial right.   They candidly venture that, had the court not made its “promise,” they would not have revealed the defect in the district attorney's case until after the jury was discharged.   I reject appellants' argument.   When trial judges rule, they do not make “promises.”   They make “rulings.”   It should come as no shock to counsel that an initial “ruling” made by the trial court can and occasionally will change before a trial concludes.   That the trial judge retains discretion to alter his or her rulings as the situation warrants is no less than hornbook law.  (See, e.g., Dunn and Crivaro, Cal.Criminal Law:  Procedure and Practice (Cont.Ed.Bar 1998) pp. 806-807.)   And as we have said before, quoting the eminent philosopher and observer of the human condition, Yogi Berra, “ ‘The umpire ain't ruled until he's ruled’! ”   (City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1564, 255 Cal.Rptr. 682.)

4.   Sinclair insists the evidence was insufficient to support the judgment against him.   He is wrong.   The record provides ample evidence of his guilt.

5.   As Justice Reynoso wrote for the Court of Appeal in People v. Morgan (1977) 75 Cal.App.3d 32, 40, 141 Cal.Rptr. 863, “[t]he tolling of the statute of limitations is an essential element in the final power to pronounce judgment, but [it] is not part of the crime itself.”  (Ibid., citing People v. Crosby (1962) 58 Cal.2d 713, 723, 25 Cal.Rptr. 847, 375 P.2d 839;  accord People v. McGill (1935) 10 Cal.App.2d 155, 159, 51 P.2d 433.)   It is not an “element” of the offense that must be proven beyond a reasonable doubt to a jury;  rather, it must simply be proven before judgment and shown “by a preponderance of the evidence.”  (People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27, 134 Cal.Rptr. 784, 557 P.2d 75.)   Here, the “element” was proven before pronouncement of judgment.

WALLIN, Associate Justice.

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