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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Harold SOWERS, Defendant and Respondent.

No. D022402.

Decided: December 11, 1995

Paul J. Pfingst, District Attorney, Thomas F. McArdle, Deputy District Attorney, Cyndi Jo Means, Deputy District Attorney, for Plaintiff and Appellant. M. Lee Haugen and Gideon Margolis, El Cajon, for Defendant and Respondent.

We are presented in this appeal with the following issue:  Does Penal Code 1 section 803, subdivision (g) (hereafter section 803(g)) constitutionally revive jurisdiction to prosecute specified crimes when the statute of limitations for the crimes had expired before the effective date of section 803(g)?

1. Factual and Procedural Background

In 1994 defendant Harold Sowers (Sowers) was charged by information with felonies which occurred in 1974 based on alleged sexual misconduct involving a child.   Although prosecution of the offenses charged would ordinarily have been barred by the statute of limitations, the information pleaded facts bringing the case within the provisions of newly enacted section 803(g).2

Sowers moved to dismiss on the basis the statute of limitations had expired in 1977.   Sowers argued section 803(g) was not intended to apply, and pursuant to ex post facto law could not constitutionally be applied, to permit prosecution for crimes the statute of limitations for which had expired before the enactment of section 803(g).   The People opposed the motion, arguing section 803(g) was intended to apply to Sowers' crimes, and that prosecution of Sowers pursuant to section 803(g) was not prohibited by ex post facto law.   The trial court granted Sowers' motion to dismiss and the People appeal.3

We conclude, as a matter of statutory construction, that section 803(g) does not permit prosecution of crimes for which the statute of limitations had expired prior to the effective date of section 803(g).

2. Section 803(g) Applies Only to Offenses for Which the Statute of Limitations Had Not Expired Prior to January 1, 1994

 The court is without jurisdiction to proceed with any criminal complaint filed after expiration of the statute of limitations for the criminal offense.  (People v. Chadd (1981) 28 Cal.3d 739, 756–757, 170 Cal.Rptr. 798, 621 P.2d 837.)   The original statute of limitations for the offenses charged against Sowers expired in 1977.   Thus, for more than 16 years the state was without power to prosecute Sowers for the offenses charged in the information.

In 1993 the Legislature amended Penal Code section 803.  (See Stats.1993, ch. 390, pp. 1854–1855.)   Among the changes was the addition of subdivision (g), which sets forth a new statute of limitations for certain enumerated sex offenses.   Subdivision (g) provides:

“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 [enumerated sexual offenses].   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.”

This statute became effective on January 1, 1994.  (Cal. Const., art. 4, § 8(c)(1).)

 Statutes are presumed to act prospectively, and they are to be so interpreted absent a clear indication the Legislature intended the law to act retroactively.  (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585  It has long been the law that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.”  (§ 3.)  Because there is no express statement in either the statute or the accompanying Legislative Counsel's Digest (see Stats.1993, ch. 390, pp. 1854–1855) declaring that section 803(g) was intended to apply retroactively, the presumption is that section 803(g) operates only prospectively.

Applying section 803(g) “prospectively” would clearly permit prosecution for crimes where all of the “triggering events,” including expiration of the longer statute of limitationsas required by subdivision (g)(1) of that section, occurred after January 1, 1994.   The question is whether the Legislature intended section 803(g) to revive a jurisdictional bar to prosecution when expiration of the statute of limitations occurred before the effective date of the statute.

 A. Using Section 803(g) to Permit Prosecution of Otherwise Time–Barred Prosecutions Would Give Section 803(g) Retroactive Effect

 The People first contend the Legislature intended application of section 803(g) to permit prosecution of Sowers' otherwise time-barred offenses because it would not constitute a retroactive application of a penal statute.   The People's argument is predicated on the contention that the “retroactivity” analysis is synonymous with and indistinguishable from an ex post facto analysis.   From that predicate, the People argue section 803(g) applied to otherwise time-barred offenses does not offend “ex post facto” limitations and a fortiori its application to otherwise time-barred offenses is not “retroactive.” 4  We reject the People's argument because we disagree with the predicate.   Although “[e]very ex post facto law must necessarily be retrospective[,] every retrospective law is not an ex post facto law.”  (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648.)   Although the People quote from Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 to support the argument, the quoted language only acknowledges that a law is retroactive if it transgresses the types of laws which Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 concluded were within the ex post facto clause.  (Tapia, supra, at p. 288, 279 Cal.Rptr. 592, 807 P.2d 434.)   The statement merely restates the proposition recognized in Calder:  a law violating ex post facto protections is retroactive.   However, it does not follow from that premise that a law not violating ex post facto protections is necessarily not retroactive.

The courts have repeatedly held a law is retroactive, regardless of whether the law is labeled a “procedural” or a “substantive” law, when the impact of the law would substantially change the legal consequences of events occurring, or interfere with rights or obligations existing, before the law became effective.  (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1205–1207, 246 Cal.Rptr. 629, 753 P.2d 585;  United States v. Security Industrial Bank (1982) 459 U.S. 70, 79–80, 103 S.Ct. 407, 413, 74 L.Ed.2d 235;  Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391, 182 P.2d 159.)   If section 803(g) is applied to permit the prosecution of Sowers and thus permit prosecution for offenses the statute of limitations for which expired prior to January 1, 1994, it would act retroactively:  the legal consequences of events occurring before the effective date of section 803(g) (e.g., the failure to prosecute before the applicable limitations period expired) would be changed because a jurisdictional bar extant for 16 years would evaporate.

 B. The Presumption of Prospectivity Is Not Overcome by Sufficient Indications of a Contrary Intent

As previously discussed, a cardinal rule of statutory interpretation is that statutes are presumed to operate prospectively only and will be so construed unless it is clear the Legislature intended that the statute operate retroactively.  (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1207, 246 Cal.Rptr. 629, 753 P.2d 585.)  Section 803(g) contains no express statement that it was to act retroactively, leaving intact the presumption that a new statute reviving jurisdiction to prosecute time-barred offenses will act only on claims for which the statute of limitations has not yet run.  (See Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1378–1379, 246 Cal.Rptr. 587.)

The absence of an express statement of retroactivity appears particularly significant.   The Legislature has demonstrated that when it intends to revive jurisdiction to prosecute claims involving sexual abuse for which the statute of limitations has expired, it is able to fashion language expressly declaring that intention.   For example, in 1986 the Legislature adopted Code of Civil Procedure section 340.1, which enacted a three-year statute of limitations for a civil action for injury from certain defined acts of child molestation.  (Stats.1986, ch. 914, § 1, pp. 3165–3166.)   As part of that legislation, the statute, which became effective January 1, 1987, declared the new three-year period would apply to any action commenced after January 1, 1987, including “[a]ny action which would be barred by application of the period of limitation applicable prior to January 1, 1987.”  (Former Code Civ.Proc., § 340.1, subd. (e)(1).)   Thus, the original version of that statute expressly declared itself applicable to claims for which earlier statutes of limitation had expired.

In the same 1993–1994 Legislative Session which produced section 803(g), the Legislature amended Code of Civil Procedure section 340.1.   As part of that amendment, the Legislature declared its intent to abrogate the holding in David A. v. Superior Court (1993) 20 Cal.App.4th 281, 24 Cal.Rptr.2d 537, in which the court held that certain earlier changes to the statute of limitations which became effective on January 1, 1991, did not resurrect claims which had lapsed before the effective date of the statute.   The Legislature, declaring it did intend the statute to revive such claims, relettered former subdivision (k) as subdivision (o) and added the following highlighted language:

“(o) The amendments to this section enacted at the 1990 portion of the 1989–90 Regular Session shall apply to any action commenced on or after January 1, 1991, including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991.

“(p) The Legislature declares that it is the intent of the Legislature, in enacting the amendments to this section ․ that the express language of revival added to this section by those amendments shall apply to any action commenced on or after January 1, 1991.”  (Stats.1994, ch. 288, § 1, pp. 1614–1617 (new language emphasized).)

Thus, when the 1993–1994 Legislature wanted to revive time-barred claims in cases involving child sexual abuse, it did so with express language.   We infer from the absence of express language in section 803(g) that the Legislature did not intend retroactivity.

Resort to the legislative history also suggests the Legislature did not anticipate section 803(g) would apply to resurrect jurisdiction over cases where the statute of limitations had expired prior to January 1, 1994.   The author of the bill enacting section 803(g) had requested an opinion from the Legislative Counsel on whether application of section 803(g) to cases such as this one would be permissible.   The Legislative Counsel opined that under existing case law such as Sobiek v. Superior Court, supra, 28 Cal.App.3d 846, 106 Cal.Rptr. 516, section 803(g) could not be applied to resurrect jurisdiction over cases in which the statutes of limitation had already expired.   While the evidence does not show this opinion ever came to the attention of the Legislature as a whole, such as by its placement in the legislative record, the record at a minimum shows the author or any person who asked about the bill was given this opinion.   This evidence supports the conclusion that to the extent any concerns were raised as to retroactivity, the Legislative Counsel's opinion assured section 803(g) would not be retroactive.

Two additional considerations support an interpretation that section 803(g) was not intended to operate retroactively.   First, section 803(g) was included in the chapter of the Penal Code governing all criminal statutes of limitation.  (See Pen.Code, pt. 2, tit. 3, ch. 2, §§ 799–805.5.)   Among the provisions of that chapter is section 805.5, which provides:

“(a) As used in this section, ‘operative date’ means January 1, 1985.

(b) Except as provided in subdivision (c), this chapter applies to an offense that was committed before, on, or after the operative date.

(c) This chapter does not apply, and the law applicable before the operative date does apply, to an offense that was committed before the operative date, if:  (1) [p]rosecution for the offense would be barred on the operative date by the limitation of time applicable before the operative date․”  (Emphasis added.)

 Because section 805.5 existed at the time section 803(g) was adopted, we presume the Legislature was aware of section 805.5 and adopted section 803(g) in harmony with section 805.5.  (Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446, 147 Cal.Rptr. 265.)   To construe section 803(g) as reviving jurisdiction to prosecute Sowers, it would be necessary to construe section 803(g) as being in conflict with section 805.5(c)(1) and to assume a legislative intent partially to repeal section 805.5(c)(1)'s declaration that prosecution of crimes with expired limitations would not be revived.  “Generally, we will not presume the existence of [an intent partially to repeal existing laws] in the absence of an express declaration.  [Citations.]   Repeals by implication are not favored, and are recognized only when there is no rational basis for harmonizing two potentially conflicting laws.”  (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449.)

 Second, militating against the interpretation of retroactive application of section 803(b) is the familiar admonition that when faced with uncertainty as to a statute the policy of this state is to construe penal statutes as favorably to a defendant as the statutory language and circumstances may permit.  (People v. Fenton (1993) 20 Cal.App.4th 965, 968, 25 Cal.Rptr.2d 52;  see also Toussie v. United States (1970) 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 [“[C]riminal limitations statutes are ‘to be liberally interpreted in favor of repose.’ ”) ]   Retroactive application of section 803(g) is at best unclear, and absent firm guidance from the Legislature we are reluctant to construe the statute as urged by the People.

The People assert section 803(g) on its face demonstrates it is applicable to the prosecution of Sowers because it specifies the one-year statute “shall apply only if” the limitations period otherwise applicable to the crime has expired.   The People reason this provision evidences an intent that section 803(g) operate on all crimes for which the statute of limitations has expired, including crimes for which the statute of limitations expired before 1994.   However, the purpose of that provision in section 803(g)(1) is equally susceptible to a different construction.   In the absence of subdivision (g)(1), a report of the crime less than five years (if § 800 were applicable) or two years (if § 801 were applicable) after the crime occurred could arguably trigger the one-year statute, giving a defendant the benefit of a shortened statute of limitations.  Section 803(g)(1) can be read as merely ensuring the “one year after reporting” statute will not be construed to apply if the longer three- or six-year statute has not yet run.5

The People also cited the legislative history surrounding the bill enacting section 803(g).   These materials demonstrate the evil which the Legislature sought to curb:  offenders escaped punishment because the molestation was revealed only after the victim became an adult and after the six-year statute had elapsed.  (See, e.g., Assem.Com. on Public Safety, Bill Analysis of AB 290 (April 13, 1993) p. 2.)   However, we are reluctant to infer from such statements an intent that the statute operate retroactively to extend expired limitations when those statements are equally susceptible to the inference that the Legislature found it important to take corrective action to avoid nonexpired statutes of limitation from expiring.

 The People finally assert failure to apply section 803(g) to this case would be inconsistent with the rules of interpretation that statutes should be construed to give them effect and validity (In re Cregler (1961) 56 Cal.2d 308, 311, 14 Cal.Rptr. 289, 363 P.2d 305) and to avoid absurd results (People v. Sample, supra, 161 Cal.App.3d 1053, 1058, 208 Cal.Rptr. 318).   The People argue that failure to apply section 803(g) would delay its effectiveness and impose the “absurd” result of postponing application of section 803(g) until at least three years after January 1, 1994.   However, interpreting section 803(g) to operate prospectively only gives section 803(g) immediate effect on January 1, 1994, because if the triggering events to section 803(g), including expiration of a statute of limitations, occur anytime after January 1, 1994, section 803(g) applies.   Indeed, this construction accords with the longstanding judicial view that new laws which extend criminal statutes of limitation apply only to extend limitations which have not yet expired (see, e.g., People v. Lewis (1986) 180 Cal.App.3d 816, 823, 225 Cal.Rptr. 782).   The Legislature is presumed to have been aware of this view when enacting section 803(g).  (McColgan v. Jones, Hubbard, etc., Inc. (1938) 11 Cal.2d 243, 247, 78 P.2d 1010.)

3. Conclusion

 We conclude that section 803(g) was intended to operate prospectively only and that it does not revive jurisdiction to prosecute offenses for which the statute of limitations had expired prior to January 1, 1994.


The judgment is affirmed.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   It is unnecessary to describe the alleged conduct in any detail because the parties do not dispute that if section 803(g) constitutionally applies, prosecution would otherwise be permitted pursuant to the provisions of section 803(g):  the alleged crimes were among those enumerated in section 803(g);  the alleged victim was under the age of 18 at the time of the conduct;  the alleged crimes involved “substantial sexual conduct” and there was qualifying “independent” corroboratory evidence;  the longer limitations period had expired;  and the criminal complaint was filed within one year following the victim's initial report of the alleged crimes to law enforcement officials.

3.   On appeal, Sowers reasserts his statutory construction and ex post facto arguments, and raises a new issue:  that the due process clause protects him from having to defend against these ancient charges.   It is unnecessary to reach the due process argument because of our conclusion on the statutory construction issue.

4.   Sowers asserts section 803(g), if applied to him, would violate ex post facto protections.   Although Sowers and the People cite a string of cases “holding” that an extension of the limitations period after the original period had run violates ex post facto law, only three cases actually contain that holding:  Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414 (Lynch ), Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 106 Cal.Rptr. 516 (Sobiek ), and People v. Gordon (1985) 165 Cal.App.3d 839, 212 Cal.Rptr. 174 (Gordon ).   In the remainder of the cases cited, statements akin to Lynch were pure dicta because those cases involved laws extending the limitations period before the original period had run, which has never been viewed as violating ex post facto law.  (See, e.g., People v. Sample (1984) 161 Cal.App.3d 1053, 1056–1058, 208 Cal.Rptr. 318;  People v. Smith (1985) 171 Cal.App.3d 997, 1001, 217 Cal.Rptr. 634.)   We view Lynch, Sobiek and Gordon as unpersuasive.   First, the “law” upon which Lynch, Sobiek and Gordon relied was the suggestion in Falter v. United States (2d Cir.1928) 23 F.2d 420 that an extension of the limitations period after the original period had run might violate ex post facto law.   However, that suggestion was dictum because the issue in Falter was whether extending the limitations period before the original period had run violated ex post facto law, and the holding was in the negative.  (Id. at pp. 425–426.)   Thus, the “law” upon which Lynch, Sobiek and Gordon relied was entirely dictum.More importantly, Lynch, Sobiek and Gordon appear undercut by Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30.   Youngblood narrowed the application of the ex post facto clause to laws which (1) criminalize conduct which was innocent when done, (2) increase the punishment for past conduct or (3) eliminate a defense available at the time the crime was committed.  (Id. at p. 42, 110 S.Ct. at p. 2719.)   In evaluating the third category, Youngblood appears to conclude the ex post facto clause barred laws changing a defense to criminality of the conduct (i.e., the types of facts excusing or mitigating culpability) rather than laws changing the effect of facts extraneous to the criminal conduct.   For example, Youngblood jettisoned an earlier holding in Kring v. State (1883) 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506.   In Kring the old state law had provided that a plea of guilty to second degree murder operated as an implied acquittal to first degree murder and that law was changed after the crime was committed.   The defendant's guilty plea to second degree murder was later vacated for unrelated reasons and he insisted the plea, by operating as an implied acquittal to first degree murder, barred retrial for first degree murder, insisting that the new law providing to the contrary could not deprive him of the defense because of ex post facto law.   The Kring court agreed.  (Id. at pp. 235–236, 2 S.Ct. at p. 455.)  Youngblood overruled Kring, reasoning the change of law in Kring did not deprive the defendant of a “defense” based on the elements of the offense but only deprived him of a defense based on laws regulating the effect of a guilty plea, which was not the type of law included within ex post facto protections.  (Youngblood, supra, 497 U.S. at pp. 48–50, 110 S.Ct. at pp. 2722–2723.)   By analogy, although reviving jurisdiction after a statute of limitations has expired deprived Sowers of a “defense” in a colloquial sense, it did so by altering the effect of events extraneous to the criminal conduct rather than by changing the elements of the crime or the matters assertable as excuse or justification at the time of the crime.   Because Youngblood is controlling (see Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434 [state and federal ex post facto clauses interpreted identically] ) and a law changing the effect of the passage of time is analogous to a law changing the effect of a guilty plea, Youngblood's analysis appears to call into question the continued vitality of Lynch, Sobiek and Gordon.

5.   The People attempt to negate this construction of subdivision (g)(1) by asserting that the language of section 803(g) (i.e., “Notwithstanding any other limitation of time described in this section, a criminal complaint may be filed within one year ․”) precludes any danger of having a shorter limitations period apply because the prosecutor “may ” file within one year, and the “notwithstanding” clause leaves untouched the ability to file under the longer limitations of sections 800 and 801.   However, the “notwithstanding clause” does not refer to sections 800 and 801, but instead states that “[n]otwithstanding any other limitation of time described in this section ․”—to wit, section 803.  Section 803 does not contain longer limitations periods, but instead describes various tolling provisions.   The “notwithstanding clause” does not assure the availability of other statutes but simply assures that other tolling clauses will not be applied when section 803(g) is available.

McDONALD, Associate Justice.

BENKE, Acting P.J., and HALLER, J., concur.

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