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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Sang Ho LEE, Defendant and Respondent.

No. H017172.

Decided: May 08, 1998

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Sr. Assistant Attorney General, W. Scott Thorpe and Janet Gaard, Deputy Attorneys General, for Plaintiff and Appellant. Daniel Jensen, Santa Clara, and Hinkle, Jachimowicz & Pointer and Albie J. Jachimowicz, San Jose, for Defendant and Respondent.

 The issue in this case is whether an expired statute of limitations on a criminal offense may be revived by subsequent legislation extending the limitations period, specifically Penal Code section 803, subdivision (g).

On April 23, 1997, an indictment was filed in the Santa Clara County Superior Court jointly charging Sung Hwan Lee in counts one through eleven, and respondent in counts ten and eleven, with lewd and lascivious conduct with a child under the age of 14 by force or fear (Pen.Code, § 288, subd. (b)(1)).   The counts charging respondent allegedly occurred at a specified period in either 1982 or 1983.   The charging document acknowledged that the normally applicable six-year statute of limitations had expired with respect to these offenses, but alleged that prosecution was permitted under Penal Code section 803, subdivision (g).   On May 2, 1997, Sung Hwan Lee filed a demurrer and motion to dismiss counts six through eleven, claiming they were barred by the statute of limitations.   On May 5, 1997, respondent joined the demurrer and motion to dismiss as to counts ten and eleven.   The prosecution filed an opposition on June 12, 1997.   On July 10, 1997, the court sustained respondent's demurrer.

 Appellant Attorney General contends that respondent's prosecution, initiated pursuant to Penal Code section 803, subdivision (g), does not violate ex post facto principles although the previously applicable statue of limitations for the crimes with which he was charged had expired prior to the effective date of section 803, subdivision (g).   We affirm.

The ex post facto clauses of both the United States and the California Constitutions prohibit retroactive application of penal statutes.  (U.S. Const., art.   I, § 10, cl. 1;  Cal. Const., art.   I, § 9.) The clauses are analyzed identically.  (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955;  Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-296, 279 Cal.Rptr. 592, 807 P.2d 434.)   United States Supreme Court precedent not only controls the federal constitutional question, but also provides persuasive authority as to whether a statute is an ex post facto law under California law.  (People v. Helms (1997) 15 Cal.4th 608, 614, 63 Cal.Rptr.2d 620, 936 P.2d 1230.)

“ ‘The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government.  [Citation.]   But the principle on which the Clause is based-the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties-is fundamental to our concept of constitutional liberty.  [Citations.]   As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.’  (Marks v. United States (1977) 430 U.S. 188, 191-192 [97 S.Ct. 990, 992-993, 51 L.Ed.2d 260].)”  (Wright v. Superior Court (1997) 15 Cal.4th 521, 534, 63 Cal.Rptr.2d 322, 936 P.2d 101, dissent by J. Mosk.)

The most widely recognized quotation in cases involving the application of the ex post facto clause to a statute of limitations is found in Falter v. United States (2d.Cir.1928) 23 F.2d 420.   In Falter, the defendants were charged with defrauding the United States.   The crime was committed at a time when the statute of limitations was three years.   Before that period expired, the statute of limitations was extended to six years.   The defendants argued that the amendment was ex post facto legislation.   The court rejected their claim, for reasons explained by Judge Learned Hand:  “Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease on 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 sta [t]e forgives it.”  (23 F.2d at pp. 425-426.)

This dicta concerning whether, the statute of limitations having run as to an offense, a later statutory amendment extending the filing would apply to that offense, was cited in Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 106 Cal.Rptr. 516.  Sobiek held that if the statute of limitations had run before the amendment extending the time, the new limitation would constitute an ex post facto law.   Numerous California cases are in accord.  (See e.g. People v. Masry (1986) 179 Cal.App.3d 1149, 1151-1152, 225 Cal.Rptr. 174;   People v. Gordon (1985) 165 Cal.App.3d 839, 849-852, 212 Cal.Rptr. 174;   People v. Smith (1985) 171 Cal.App.3d 997, 1001, 217 Cal.Rptr. 634;  People v. Sample (1984) 161 Cal.App.3d 1053, 1057-1058, 208 Cal.Rptr. 318;   People v. Lewis (1986) 180 Cal.App.3d 816, 820-823, 225 Cal.Rptr. 782;  People v. Eitzen (1974) 43 Cal.App.3d 253, 265-267, 117 Cal.Rptr. 772;  People v. Snipe (1972) 25 Cal.App.3d 742, 745-748, 102 Cal.Rptr. 6.)

The crimes charged against appellant are alleged to have been committed in 1982 or 1983, when the statute of limitations was six years.   Thus, the statute of limitations expired as to these offenses in 1988 or 1989.   This prosecution commenced in 1997, under the authority of Penal Code section 803, subdivision (g).   Subdivision (g) extends the statute of limitations for filing a criminal complaint against an individual charged with committing a sex crime against a minor.   It 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.1  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 has 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 Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, the reviewing court considered subdivision (g) and held that a criminal statute of limitations may be extended before, but not after, it has run as to a particular offense.  Lynch was followed by People v. Bunn (1997) 53 Cal.App.4th 227, 61 Cal.Rptr.2d 734, another case in which the defendant was charged with sex crimes under subdivision (g).  Bunn holds that when the criminal limitations period originally applicable to an offense has run, subsequent statutory amendments reviving or extending the period are barred under ex post facto principles.

Appellant urges us to depart from Bunn, Lynch, Sobiek, and the rest.   Appellant emphasizes the United States Supreme Court case of Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, and asserts that the expansive reading of the ex post facto clause found in those cases is no longer appropriate.   In Youngblood, the court was not faced with a statute of limitations issue, but rather with the question of a criminal law void at its inception.   While the defendant's challenge to his sentence was pending, the Texas legislature enacted a law authorizing the courts to reform void sentences.   The Fifth Circuit, however, held that the prior rule barring reformation of void verdicts was a “substantial protection” (id. at p. 40, 110 S.Ct. at p. 2718) that could not be taken away from a defendant after the fact.

The Supreme Court reversed the opinion of the Fifth Circuit, overruling the line of prior cases holding that a law violates the ex post facto clause if it eliminates a “substantial protection” in place when the offense was committed.   The court adopted the formulations of ex post facto laws set forth in Calder v. Bull (1798) 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 and Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 as being “faithful to our best knowledge of the original understanding of the Ex Post Facto Clause.”   (Collins v. Youngblood, supra, 497 U.S. at p. 43, 110 S.Ct. at p. 2719.)   The court stated:  “'It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”'   (Collins v. Youngblood, supra, 497 U.S. at p. 42, 110 S.Ct. at p. 2719.)

Appellant contends that of the three categories of proscribed laws, only the third, deprivation of a defense that was available at the time the act was committed, is potentially applicable here.   From this, and two lower federal court cases, the Attorney General reasons that the statute of limitations is not a true defense.   These cases are distinguishable.   Both U.S. v. Knipp (6th Cir.1992) 963 F.2d 839 and U.S. v. Brechtel (5th Cir.1993) 997 F.2d 1108 involve only an extension of an unexpired limitations period and, like all the cases before them, found no constitutional impediment to the extension of a statutory period where the previous limitations period had not yet run.   In both, the language of Judge Hand in Falter is cited with approval.

However, in the context of its holding, the Knipp court stated the following, upon which appellant relies:  “Pleading an expired limitations period is certainly a defense in the general sense that it is a defensive measure.   More particularly, however, it is a matter in bar of prosecution and as such is distinguishable from a ‘pure’ defense, which defeats one or more of the elements of the crime.   This distinction was noted and strongly reinforced by the Court in Youngblood when the Court, after an extended analysis, decided to overrule Kring v. Missouri [ (1883) ] 107 U.S. 221 [2 S.Ct. 443, 27 L.Ed. 506], because in Kring it had erred in confusing procedural defenses with defenses to the elements of the crime․  [¶] Thus, ‘defense’ as used in Beazell [v. Ohio, 269 U.S. 167, 46 S.Ct. 68] means a defense related to the definition or elements of the crime.   It does not have the much broader meaning assigned to it by defendants, because a plea in bar is not related to the definition of a crime and is not pleaded as a nullification of one or more of its elements or as an excuse or justification for its commission.   Accordingly, defendants' reliance on Youngblood is entirely misplaced.”  (963 F.2d at pp. 843-844;  accord, Brechtel, supra, 997 F.2d at p. 1113.)

The Brechtel court specifically said “Of course, the instant case requires no decision concerning the propriety of legislation reviving criminal liability after lapse of the previously applicable limitations period.”  (997 F.2d at p. 1113, fn. 14.)

Recently, our Supreme Court observed that “Obviously, the statute [of limitations] exists partly for the defendant's benefit.   In Zamora, we identified other policy considerations underlying such statutes:  ‘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 limitations 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.’  (People v. Zamora [1976], 18 Cal.3d [538] at p. 547 [134 Cal.Rptr. 784, 557 P.2d 75].)”  (Cowan v. Superior Court (1996) 14 Cal.4th 367, at pp. 374-375, 58 Cal.Rptr.2d 458, 926 P.2d 438.)

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.  “[Brechtel and Knipp ] 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.)   We decline appellant'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.

The order of the superior court sustaining the demurrer is affirmed.


1.   Subdivision (g) provided:  “Notwithstanding any other limitation of time described in this section, a criminal complaint may be filed within one year of the date of a report to a 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.   This subdivision shall apply only if both of the following occur:  [¶] (1) The limitation period specified in Section 800 or 801 has expired.  [¶] (2) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation which 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 which would otherwise be inadmissible during trial.   Independent evidence shall not include the opinions of mental health professionals.”  (Stats.1996, ch. 130, § 1.)An amendment, expressing the legislative intent that this section be retroactive, provided:  “(3)(A) Effective July 1, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and if the complaint is filed within the time period specified in this subdivision, it shall revive any cause of action barred by Section 800 or 801.[¶]  (B) Effective January 1, 1997, through June 30, 1997, 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 either of the following occurs:  [¶] (i) The complaint is filed within the time period specified in this subdivision. [¶] (ii) The victim made the report required by this subdivision to a law enforcement agency between January 1, 1994, and January 1, 1997, and a complaint was not filed within the time period specified in this subdivision or was filed within the time period but was dismissed, but a complaint is filed or refiled on or before June 30, 1997.”Subsequent changes to this statute do not affect this case.

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.

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