PEOPLE v. MALOY

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Appellant, v. Leroy Jesse MALOY, Defendant and Respondent.

No. F022332.

Decided: August 28, 1995

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., W. Scott Thorpe and Janet G. Bangle, Deputy Attys. Gen., for plaintiff and appellant. Paden, Conn & Sullivan and Gary L. Paden, Visalia, for defendant and respondent.

OPINION

On April 15, 1994, an amended complaint was filed in the Tulare County Municipal Court, charging respondent as follows:  counts 1, 2, 3, 4, 6, 7, 11, 12, and 13 charged respondent with committing a lewd and lascivious act upon a child under the age of 14 (Pen.Code,1 § 288, subd. (a)), a serious felony (§ 1192.7, subd. (c)(6));  count 5 charged respondent with oral copulation of a child under the age of 14 years by a person more than 10 years older than the victim (§ 288a, subd. (c));  count 8 charged respondent with forcible rape (§ 261, subd. (a)(2)), a serious felony (§ 1192.7, subd. (c)(3));  count 9 charged respondent with attempted forcible rape (§§ 261, subd. (a)(2), 664), a serious felony (§ 1192.7, subd. (c)(3));  and count 10 charged respondent with attempted oral copulation of a child under the age of 16 years by a person over the age of 21 years (§§ 288a, subd. (b)(2), 664).

On April 19, 1994, respondent appeared at arraignment pleading not guilty as charged.

On June 3, 1994, respondent filed a motion to dismiss the complaint for lack of jurisdiction.

On or about July 22, 1994, the court granted respondent's motion to dismiss the complaint.

On July 28, 1994, the prosecution filed a motion to reinstate the complaint.   The municipal court denied the motion on August 3, 1994.   Respondent filed an opposition on August 16, 1994.   The prosecution filed supplemental points and authorities in support of the motion on August 18, 1994.

On August 18, 1994, the court denied the prosecution's motion to reinstate the complaint.

On September 13, 1994, the prosecution filed a timely notice of appeal.

FACTS

In April 1994 respondent was charged by complaint with 13 sexual offenses committed against 5 different children, all which took place between January 1967 and April 1979.   All of the statutes of limitations applicable to each charge had expired before section 803, subdivision (g) had become effective on January 1, 1994.

DISCUSSION

WAS THE TRIAL COURT CORRECT IN DENYING THE PEOPLE'S MOTION TO REINSTATE THE COMPLAINT?

Appellant contends the trial court erred in denying the People's motion to reinstate the complaint because (1) prosecution of respondent does not violate the ex post facto clauses of the federal or state Constitutions, and (2) prosecution of respondent is not prohibited as a matter of statutory construction.

Does Prosecution of Respondent Violate the Ex Post Facto Clauses of the Federal and State Constitutions?

At issue is section 803, subdivision (g), which allows:

“․ [A] criminal complaint [to 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 ․ and there is independent evidence that clearly and convincingly corroborates the victim's allegation.”

Prosecution of respondent is clearly allowable under section 803, subdivision (g), as written;  however, as already stated, section 803, subdivision (g) became effective after the previous statute of limitations period had already run.

The United States Constitution and our own California Constitution contain identical language declaring that no “ex post facto law” shall be passed.   (U.S. Const., art. I, § 10, cl. 1;  Cal. Const., art. I, § 9.)   Over the years, both clauses have been interpreted uniformly.  (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 296, 279 Cal.Rptr. 592, 807 P.2d 434, stating, “[n]or does an independent meaning for the state ex post facto clause emerge from our own opinions.   Although this court has often cited the state clause together with the federal, we have never given the state clause an independent interpretation or held, in any case, that the state clause required a different result than the federal clause.”)

Early opinions by the United States Supreme Court “explained, ‘ex post facto law’ was a term of art with an established meaning at the time of the framing of the Constitution.”  (Collins v. Youngblood (1990) 497 U.S. 37, 41, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 [hereafter Youngblood].)

The United States Supreme Court greatly simplified ex post facto law in its Youngblood decision by adopting the definition of ex post facto as articulated in its early decisions of Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, and Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216.

Calder stated the core concerns of the ex post facto clause according to the original intent of the framers.

“ ‘1st.  Every law that makes an action done before the passing of the law, and which was innocent when done, criminal;  and punishes such action.   2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.   3d.  Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.   4th.  Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’  (Id, at 390 (emphasis in original).”  (Youngblood, supra, 497 U.S. at p. 42, 110 S.Ct. at p. 2719;  quoting Calder v. Bull, supra, 3 U.S. at p. 390.)

The Youngblood court noted that Beazell had stated the distilled understanding of the definition of an ex post facto law.  “The Beazell formation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause․”  (497 U.S. at p. 43, 110 S.Ct. at p. 2719.)

“ ‘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.’  (Id., [269 U.S.] at 169–170 [46 S.Ct. at 68].)”  (Youngblood, supra, 497 U.S. at p. 42, 110 S.Ct. at p. 2719.) 2

In Youngblood, the Supreme Court also overruled its earlier decisions of Kring v. Missouri (1882) 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, and Thompson v. Utah (1898) 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061, thereby rejecting “the proposition that a law violates the ex post facto clause simply because it eliminates a ‘substantial protection’ existing at the time an offense was committed.”  (Tapia v. Superior Court, supra, 53 Cal.3d at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434, quoting Youngblood, supra, 497 U.S. at p. 46, 110 S.Ct. at p. 2721.)   The California Supreme Court's decision in Tapia provides an excellent summary of this aspect of Youngblood:

“․ According to the high court, references in its earlier cases ‘to “substantial protections” and “personal rights” should not be read to adopt without explanation an undefined enlargement of the [ex post facto clause].’  [Citation.]   While the Legislature, or the electorate, cannot immunize a law from scrutiny under the ex post facto clause simply by labeling it ‘procedural,’ ‘the prohibition which may not be evaded is the one defined by the Calder categories.’  [Citation.]”  (Tapia, supra, 53 Cal.3d at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434.)

The California Supreme Court has expressly adhered to the Youngblood holding.  (See Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434.)

 Thus, because the United States Supreme Court was quite specific in its definition of what constitutes an ex post facto law, the ex post facto clause, after Youngblood, must now be interpreted in a very precise manner.3  As such, we agree with appellant that the correct analysis is to determine whether a change in the law falls into one of the prohibited categories;  if it does not, it does not violate the constitutional provision.

It is clear that section 803, subdivision (g), does not punish as a crime an act previously committed, which was innocent when done.   It is also obvious that our statute does not make more burdensome the punishment for a crime, after its commission.

Further, we see no basis to conclude the provision alters the rules of evidence in order to convict the offender on less or different evidence than the law required at the time of commission of the offense.   Therefore, the issue needed to be decided by this court is whether the revival of an expired statute of limitations deprives defendant of any defense available according to law at the time when the act was committed.

As such, it is necessary to determine the meaning of the word “defense” as articulated in Youngblood.   The Beazell court linked the word “defense” to a “prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or amount of the punishment imposed for its commission.’ ”  (Youngblood, supra, 497 U.S. at p. 50, 110 S.Ct. at p. 2723, quoting Beazell, supra, 269 U.S. at pp. 169–170, 46 S.Ct. at pp. 68–69.)

Appellant relies heavily on U.S. v. Knipp (6th Cir.1992) 963 F.2d 839 (hereafter Knipp ).   In Knipp, one of the issues faced by the federal court was whether an extension of a statute of limitations from five years to ten years violated the ex post facto clause of the United States Constitution in a case where the statute had not expired at the time of the extension.   The court held that it did not.

In Knipp the defendants argued “that the extension of the limitations period to ten years deprived them of the opportunity to plead the previous five-year limitations period as a bar to their prosecutions.”   (Knipp, supra, 963 F.2d at p. 843.)   The Knipp court, however, stated:

“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 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[, supra ], because in Kring it had erred in confusing procedural defenses with defenses to the elements of the crime․

“․

“Thus, ‘defense’ as used in Beazell 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.”   (Knipp, supra, 963 F.2d at p. 843.)

Later in the opinion, the Knipp court categorized the use of a statute of limitations as a procedural defense, and further attempted to clarify the meaning of “defense” in terms of ex post facto analysis.

“The defensive use of a statute of limitations is a procedural defense in the nature of a plea in bar.   Because it has nothing to do with the internal structure of the crime or its elements, it is not the kind of ‘defense’ that the Supreme Court was referring to in Beazell when it stated that the Ex Post Facto Clause was violated if a defendant was later deprived of a defense that had been available to him at the time he committed the crime in question.   Instead, the defensive use of a statute of limitations is merely a procedural matter, and it follows that Congress' extension of the statute of limitations in this case did not violate the Ex Post Facto Clause.”  (Knipp, supra, 963 F.2d at p. 844.)

Thus, Knipp creates a very limited definition as to what constitutes a “defense” under ex post facto law.   Respondent distinguishes Knipp on the basis that it is a federal circuit court case and also because it involves a statute of limitations that had not yet expired when the new law was enacted.

As authority on the issue, respondents point to Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, a recent case decided by the Second District Court of Appeal.   In Lynch the court was faced with the exact issue we are now asked to resolve:  whether the extension of the statute of limitations provided in section 803, subdivision (g) could revive and extend the statutory limitations period which was in effect when the charged sex offenses were committed but expired prior to the effective date of section 803, subdivision (g).   The court held that an ex post facto violation had occurred.

In Lynch the court stated:

“It is settled law in California that a criminal statute of limitations period, in effect on the date of an alleged offense, may lawfully be extended before, but not after, it has run as to the offense.  (Sobiek v. Superior Court [ (1972) ] 28 Cal.App.3d 846, 849, 851 [106 Cal.Rptr. 516];  1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Defenses, § 372, p. 427.   See also People v. Masry (1986) 179 Cal.App.3d 1149, 1152 [225 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 [208 Cal.Rptr. 318]․)”  Lynch v. Superior Court, supra, 33 Cal.App.4th at p. 1226, 39 Cal.Rptr.2d 414.)

 It is well established in our case law that California regards statutory limitations periods as a substantive rather than a procedural right.  (People v. Chadd (1981) 28 Cal.3d 739, 757, 170 Cal.Rptr. 798, 621 P.2d 837.)   However, as Youngblood and Tapia correctly point out, references in earlier cases to “substantial protections” and “personal rights” should not be read to adopt without explanation an undefined enlargement of the ex post facto clause.   Thus, categorizing something as either substantive or procedural is not conclusive in determining whether a change in the law violates the ex post facto clause.

There is, however, as appellant points out, a long line of California authority that has held that compliance with the statute of limitations must be demonstrated by the prosecution.  (In re Demillo (1975) 14 Cal.3d 598, 601, 121 Cal.Rptr. 725, 535 P.2d 1181;  People v. McGee (1934) 1 Cal.2d 611, 613, 36 P.2d 378.)

“ ‘[T]he statute of limitations ․ is jurisdictional, and ․ an indictment or information which shows on its face that the prosecution is barred by limitations, fails to state a public offense.’  [Citations.]  ‘An accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations [citations], ․’ [Citation.]  [¶]  There is no case law in California on the question of whether, the statute of limitations having run to an offense, a later statutory amendment extending the filing time would apply to that offense․”  (Sobiek v. Superior Court (1972) 28 Cal.App.3d at p. 849, 106 Cal.Rptr. 516.)

Sobiek then cites to the analysis in People v. Snipe (1972) 25 Cal.App.3d 742, 102 Cal.Rptr. 6 wherein the statute of limitations was extended prior to the expiration of the statute of limitations existent at the time of the crime.   Citing Snipe, the court in Sobiek stated:

“In holding that application of the amended three-year statute did not violate the ex post facto doctrine, as the change in the statute was merely procedural, the court said:  ‘An ex post facto law is a retrospective law applying to offenses committed before its enactment which by its necessary operation and in its relation to the offense, or its consequences, changes the situation of the defendant to his detriment.  [Citations.]  Constitutional limitations, therefore, are transgressed by retroactive procedural changes if they operate to deny the accused a vested defense or if they affect him in a harsh or arbitrary manner.  [Citation.]  As the United States Supreme Court pointed out in Beazell v. Ohio, 269 U.S. 167, 171 [46 S.Ct. 68, 69] ․, the distinction between a procedural change which transgresses the Constitution if given a retroactive application and one which does not is a matter of degree, and each case must be decided on its own facts.

“ ‘․

“ ‘The opinion in Falter v. United States, supra, 23 F.2d 420, is cogent.   In that case the defendants were accused of conspiracy to defraud the United States.   At the time the crime was committed, the statute of limitations was three years, but two years later the statute was amended, extending the limitation to six years.   After conviction the defendants sought reversal because the accusatory pleadings, albeit filed within six years after the crime was completed, were filed more than three years thereafter.   They argued that the amendment was ex post facto legislation.   In rejecting the argument, the eminent jurist, Mr. Learned Hand, had this to say:

“ ‘ “Perhaps they would be right, if the earlier statute had once run in their favor․  [Italics added.]

“ ‘ “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 [sic ] forgives it.” ’   (25 Cal.App.3d at pp. 746–748, 102 Cal.Rptr. 6.)

“It is the statement indicating that, if the statute of limitations had run before the amendment extending the time, the new limitation would constitute an ex post facto law that applies in the instant case.”  (Sobiek v. Superior Court, supra, 28 Cal.App.3d at pp. 849–850, 106 Cal.Rptr. 516.)

After a review of Beazell v. Ohio, supra, 269 U.S. 167, 46 S.Ct. 68, and Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, we conclude that the analysis in Sobiek v. Superior Court, supra, 28 Cal.App.3d 846, 106 Cal.Rptr. 516, is incorrect.   Specifically, Sobiek was decided in 1972 and did not have the benefit of the well defined criteria of Youngblood.   Therefore, we determine the issue must be revisited in light of Youngblood.   Likewise, because Lynch v. Superior Court, supra, 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, relies primarily upon Sobiek, we must respectfully disagree with the Lynch analysis.

 Initially, we note that our high court adopted the Youngblood analysis in Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434.   Therefore, it is that analysis which controls the issue of what constitutes a defense for purposes of ex post facto analysis.   Further, it must be borne in mind that the word “defense” as it is used before us is a term of art and must be defined according to the context in which it is used.   Thus, regardless of procedural or substantive distinctions as they may restrict, abate or bar prosecutions, the term defense as used in ex post facto analysis is not defined by its general consequence but rather by its specific application to the crime itself.

The foregoing conclusion is supported by Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, in which the court reviewed Kring v. Missouri, supra, 107 U.S. 221, 2 S.Ct. 443 which had defined an ex post facto law “as one which, ‘ “in relation to the offense or its consequences, alters the situation of a party to his disadvantage.” ’ ”  (497 U.S. at p. 47, 110 S.Ct. at p. 2721.)   The court in Youngblood rejected the analysis of Kring and reviewed its genesis in United States v. Hall, 26 F.Cas. 84 (No. 15,285) (D.Pa.1809) as well as its relationship to Calder v. Bull, supra, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, which was the initial analysis of ex post facto concepts.

The court's analysis of Kring and its reliance on Hall is best put forth in the words of the court.

“The Court's departure [in Kring ] from Calder's explanation of the original understanding of the Ex Post Facto Clause was, we think, unjustified.   The language in the Hall case, heavily relied upon in Kring and repeated in other decisions thereafter, does not support a more expansive definition of ex post facto laws.

“In Hall, a vessel owner was sued by the United States for forfeiture of an embargo bond obliging him to deliver certain cargo to Portland, Me.   As a legal excuse, the defendant argued that a severe storm had disabled his vessel and forced him to land in Puerto Rico, where he was forced by the Puerto Rican government to sell the cargo.   In dicta, Justice Washington hypothesized that, according to the law in effect at the time Hall forfeited the cargo, an ‘unavoidable accident’ was an affirmative defense to a charge of failing to deliver cargo.   His jury instruction then explained that a subsequent law imposing an additional requirement for the affirmative defense—that the vessel or cargo actually be lost at sea as a result of the unavoidable accident—would deprive Hall of a defense of his actions available at the time he sold the cargo and thus be an invalid ex post facto law.

“This analysis is consistent with the Beazell framework.   A law that abolishes an affirmative defense of justification or excuse contravenes Art. I, § 10, because it expands the scope of a criminal prohibition after the act is done.   It appears, therefore, that Justice Washington's reference to laws ‘relat[ing] to the offense or its consequences,’ was simply shorthand for legal changes altering the definition of an offense or increasing a punishment.   His jury charge should not be read to mean that the Constitution prohibits retrospective laws, other than those encompassed by the Calder categories, which ‘alte[r] the situation of a party to his disadvantage.’   Nothing in the Hall case supports the broad construction of the ex post facto provision given by the Court in Kring.

“It is possible to reconcile Kring with the numerous cases which have held that ‘procedural’ changes do not result in ex post facto violations by saying that the change in Missouri law did take away a ‘defense’ available to the defendant under the old procedure.   But this use of the word ‘defense’ carries a meaning quite different from that which appears in the quoted language from Beazell, where the term was linked to the prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or amount of the punishment imposed for its commission.’  [Citation.]  The ‘defense’ available to Kring under earlier Missouri law was not one related to the definition of the crime, but was based on the law regulating the effect of guilty pleas.   Missouri had not changed any of the elements of the crime of murder, or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge;  it had changed its law respecting the effect of a guilty plea to a lesser included offense.   The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories, but any change which ‘alters the situation of a party to his disadvantage.’   We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases.   We accordingly overrule Kring.”  (Youngblood, supra, 497 U.S. at pp. 49–50, 110 S.Ct. at p. 2723.)

 In our view, the term “defense” as it is employed in Youngblood refers to a defense that bears upon criminal culpability for the act constituting the crime.   In other words, the defense renders the act noncriminal, such as self-defense, or diminishes its culpability, such as heat of passion in manslaughter versus murder.   Further, the defense exists at the time the act was committed.   Thus, the defense must be integral to the nature of the act.   Therefore, abrogating the defense or changing it by more stringent statutory implementation would render the act culpable or would increase culpability.   In effect, an ex post facto law depriving one of a defense alters the nature of the act that constitutes the crime.

Respondent argues that the statute of limitations is an essential element of the crime.  “The fact that the statute of limitations is jurisdictional necessarily determines that a prosecution within the period specified is an essential element of the offense.”  (People v. Allen (1941) 47 Cal.App.2d 735, 748, 118 P.2d 927.)   Therefore, he maintains application of section 803, subdivision (g) would eliminate a defense because it would alter an element of the crime when committed.   However, such arguments fail to acknowledge that what is a defense is defined by its use in ex post facto analysis—not by its use generically or gratuitously.   Further, we perceive that the analysis of “element of a crime” as it pertains to defense refers to the conduct rendering the act criminal as opposed to that which must be proved in order to convict.   In this regard, People v. Crosby (1962) 58 Cal.2d 713, 25 Cal.Rptr. 847, 375 P.2d 839 is instructive.   In Crosby, the issue involved amending an indictment to allege facts sufficient to toll the statute of limitations.   The defendants in Crosby argued “that the statute of limitations is jurisdictional, and that an indictment that shows on its face that the prosecution is barred by limitation ‘fails to state a public offense.’ ”  (Id. at p. 722, 25 Cal.Rptr. 847, 375 P.2d 839.)   The Supreme Court concluded “an amendment merely adding or extending allegations tolling the statute of limitations would not change the offense charged, for ‘although the right to maintain the action is an essential element in the final power to pronounce judgment, that element constitutes no part of the crime itself.’   [Citation.]”  (Id. at p. 723.)

 Further, acceptance of respondent's argument would create an inherent contradiction with current law.   We have noted and respondent concedes that a statute of limitations may be extended during its term.   If such statute of limitations was an element of the crime when committed, then clearly an extension of the statute of limitations would change an element of the crime—this would be an ex post facto violation.   However, that such is not an ex post facto violation is settled.   The only reconciliation of such an inconsistency created by respondent's argument is that the statute of limitations is not an element of the crime for purposes of ex post facto analysis.

 A statutory bar to prosecution such as a statute of limitation whether interpreted as procedural or substantive does not relate to the act itself.   Rather, such statutory restrictions on prosecution inhibit the prosecution of a criminal act but they in no way affect the statutory definition of the act rendering the act committed more culpable in light of legislation subsequent to the act committed.   Therefore, we conclude that for purposes of ex post facto analysis, a statute of limitations is not a “defense.”   Necessarily, we determine the trial court erred in finding the application of section 803, subdivision (g) a violation of the ex post facto clause of the United States Constitution and the Constitution of the State of California.   A legislature may statutorily extend a statute of limitations to a crime after the prior statutory period has expired without specifically offending those provisions.

Is Application of Section 803, Subdivision (g) Barred by Statutory Interpretation?

Section 803, subdivision (g) was added to chapter 2 of title 3 of part 2 of the Penal Code in 1993.   The effective date of subdivision (g) was January 1, 1994.

By its express terms, the statute creates an exception to the general rule that the expiration of the period designated as a statute of limitations constitutes a bar to prosecution.   Specifically, in the enumerated sex offenses where the victim was under the age of 18 at the time of commission, if charges are not brought within the statutory period provided by sections 800 and 801, the now adult victim may file a report of the incident with a law enforcement agency.   The filing of the report triggers a one-year additional statutory period within which a charge alleging the offense may be filed even though the statutory limitations period has expired.   Thus, in the enumerated offenses meeting the terms of section 803, subdivision (g), an offender could theoretically be prosecuted years after the statute of limitations proscribed for that offense has expired.

Clearly, if the alleged sex offense were committed subsequent to January 1, 1994, the statute would permit a one-year revival of the expired statute of limitations for prosecution.

Likewise, if the crime were committed prior to the effective date of January 1, 1994, but the statute of limitations had not expired by the effective date, current case law would permit the extended statute of limitations to pertain to those pre-effective date crimes.

The issue before us is whether the statute permits the extended statute of limitations to apply to crimes where the provided statute of limitations had expired prior to the effective date of January 1, 1994.   We have already concluded that such application is not an ex post facto violation.   Respondent contends, however, that by statutory construction application of section 803, subdivision (g) is barred in the instant case as an improper retroactive construction.

As a practical matter regarding a retroactivity analysis, our first task is to determine whether the Legislature intended the statute to apply where the statute of limitations had expired prior to the effective date.   Section 3 provides “No part of [the Penal Code] is retroactive, unless expressly so declared.”   This provision is further supported by the general legal principle that, “ ‘[i]t is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.’ ”  (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585, citing Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159.)

We first look to the express terms of the statute.   What is evident is that by its express terms the statute literally applies in the instant case.   In this case, the limitation period has expired.   The statute makes no direct provision for when the statute must have expired, i.e., pre- or post-January 1, 1994.   Normally, by direct application a statute of limitations is applied by its termination date in relation to the offense.   Not so here.   The Legislature clearly intended a different consequence than the conventional statute of limitations.

 Further, if the statute does not apply to crimes where the limitation period expired prior to January 1, 1994, the consequence would be that the statute would not apply in actuality until January 2, 1994.   This is so because on January 1, 1994, by its terms the statute could only apply to a crime where the limitation period had expired on December 31, 1993, or earlier.   This is because, technically, a statute of limitations expires at the end of the last day of the statutory period.  (People v. Twedt (1934) 1 Cal.2d 392, 399, 35 P.2d 324.)   Time is calculated “by excluding the first day (when the crime was committed) and including the last day (when the prosecution is commenced).”  (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 372, p. 426.)

The Attorney General argues that the Legislature intended retroactive effect;  however, the argument maintains we need not be concerned with whether the Legislature intended retroactive application because:  1) retroactivity analysis is the same as ex post facto analysis and this is not an ex post facto application even where the statute expires prior to the effective date of the statute;  2) the statute is prospective only because application is to trials commencing after the effective date.

The Attorney General's argument is best expressed verbatim.

“․ what [do] the terms ‘prospective’ and ‘retrospective’ mean.   The California Supreme Court answered this question in Tapia v. Superior Court, supra, 53 Cal.3d at p. 288 [279 Cal.Rptr. 592, 807 P.2d 434], in which the defendant argued that ‘a law is being applied retrospectively if it is applied to the prosecution of a crime committed before the law's effective date.’   (Ibid.)

“The court acknowledged in Tapia that, for some types of laws, the test proposed by the defendant is appropriate.  (53 Cal.3d at p. 288, 279 Cal.Rptr. 592, 807 P.2d 434.)

“ ‘Certainly a law is retrospective if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct.   Such a law, as applied to a past crime, “change[s] the legal consequences of an act completed before [the law's] effective date,” namely the defendant's criminal behavior.  [Citations.]  Application of such a law to past crimes would also violate the constitutional rule against ex post facto legislation.  (U.S. Const., art I, § 10, cl. 1;  Cal. Const., art I, § 9.)’  (Ibid.)

“But the defendant's proposed test is not appropriate, the court held, ‘for laws which address the conduct of trials which have yet to take place, rather than criminal behavior which has already taken place.’  [Citation.]

“ ‘Such a statute “is not made retroactive merely because it draws upon facts existing prior to its enactment․  [Instead,] [t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.”  [Citations.]’  [Citation.]

“․

“It is evident that the definition of a retrospective law, as set forth in Tapia, is the same as the definition of an ex post fact law, as set forth in Collins v. Youngblood, supra, 497 U.S. 37 [110 S.Ct. 2715].  [ ] Although the language used is not identical, it clearly encompasses the same types of laws․  Moreover, examination of the authorities cited by the Tapia court demonstrates that it intended this parallel interpretation.”  (Fn. omitted.)

 We do not conclude that retroactivity and ex post facto issues involve identical analysis.  “Every ex post facto law must necessarily be retrospective;  but every retrospective law is not an ex post facto law․”  (Calder v. Bull, supra 3 U.S. (3 Dall.) 386, 391.)   The Attorney General cites no portion of Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, that directly supports the proposition that retroactivity analysis is equivalent to ex post facto analysis and we are reluctant to accept that as a general position.   Therefore, we proceed for the sake of analysis on the assumption that application of this statute is not ex post facto but may be retroactive depending on the definition of that term.

In support of the contention that application of section 803, subdivision (g) to the circumstances before us is prospective, the Attorney General cites Tapia as noted to the effect that since the law will only affect prosecutions commenced after its effective date it is prospective.   They cite the court's reliance on Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 388, 182 P.2d 159.  Tapia cited Aetna for its analysis of procedural versus substantive legislation and the general presumption that substantive legislation is not retroactive.   The court held,

“[I]t is evident that a law governing the conduct of trials is being applied ‘prospectively’ when it is applied to a trial occurring after the law's effective date, regardless of when the underlying crime was committed or the underlying cause of action arose.   Tapia challenges this conclusion, arguing that we previously rejected it in Aetna Casualty, supra, ․, in Evangelatos, supra, ․, and in People v. Hayes, supra [ (1989) 49 Cal.3d 1260, 265 Cal.Rptr. 132, 783 P.2d 719]․  Those opinions, however, do not support his argument.   In each opinion, we refused to apply a statute so as to change the legal consequences of the parties' past conduct.   In determining whether such statutes changed ‘the legal effects of past events' [citation] we sometimes used the terms ‘substantive’ and ‘procedural.’  [Citations.]  However, we also made it clear that it is the law's effect, not its form or label, which is important.  [Citations.]

“․

“Thus, contrary to Tapia's argument, it is clear that neither Aetna Casualty, supra, nor Evangelatos, supra, repudiated the general rule that statutes addressing the conduct of trials are prospective.   Instead, in each case we held the rule inapplicable to statutes which changed the legal consequences of past conduct by imposing new or different liabilities based upon such conduct.  [Citations.]”  (Tapia v. Superior Court, supra, 53 Cal.3d at pp. 289–291, 279 Cal.Rptr. 592, 807 P.2d 434.)

 We have concluded the issue of retroactive or prospective application is moot if we determine section 803, subdivision (g) by its terms was intended to apply to crimes whose statute of limitations had expired prior to the effective date.   In other words, regardless whether such interpretation is retroactive or prospective, the effect is the same and is the intended result.

First, we see no need to add a specific expression of retroactivity if that is inherent in the statute.   In other words, assuming application here is retroactive, the statute itself compels such application.   There is no reason to expressly restate what is integral to the direct application of the statute.

Further, that it applies where the statute has expired prior to January 1, 1994, is buttressed by recognizing that the statute would literally only be effective January 1, 1994, if it applied to crimes with a statute of limitations expiring on or prior to December 31, 1993.

We also conclude that contrary application would be inconsistent with the intent of the Legislature.   In this regard, the most compelling argument is that any application restricted to crimes with statutes expiring after January 1, 1994, would have minimal impact on the problem sought to be addressed.   The argument in support of Assembly Bill No. 290, the bill that added section 803, subdivision (g) to the Penal Code, states:

“[C]hild sexual abuse cases frequently come to the attention of law enforcement when the victim, now an adult, reveals that he or she had been sexually abused as a child.  ‘These cases involve specific detail and are often accompanied by an admission by the perpetrator.   However, due to the statute of limitations, a case of this sort cannot be pursued in criminal court unless the crime was committed within six years of the disclosure.’ ”  (Sen.Com. on Judiciary, Analysis of Assem. Bill No. 290 (1993–1994 Reg.Sess.))

 This legislation was clearly designed to bring to justice predators who have abused and taken advantage of innocent children, and then reaped the advantage of their victim's immaturity by the running of the statute of limitations.   It is self-evident that many times children are victimized in their own homes by individuals occupying positions of trust or by family friends and, as such, are not in a position to recognize or effectively assert their victimization until they have reached young adulthood.   Even more tragic is the simple fact that many people cannot psychologically face their victimization until after they have acquired the maturity of adults.   As such, the statute of limitations for people who have wreaked such havoc on young lives may well not have the normal effect because the victim is less likely or perhaps unable to come forward until after the statute of limitations has expired.   The Legislature recognized this as noted in a letter to the Honorable Bill Lockyer from the League of Women Prosecutors dated February 20, 1991, to the effect that child victims frequently do not report sexual assault crimes because they are afraid, intimidated or because they feel that others may not believe them.

Hence, it is reasonable to conclude the Legislature intended to maximize the impact of this legislation and not to minimize it.   Clearly, if the statute was not intended to apply to crimes with statutes of limitations expiring prior to January 1, 1994, then the access to justice of the victims of these sexual assaults would only be available in small increments.   In other words, the consequence would be that only victims of crimes where the statute expired on January 2, 1994, would have the benefit of the law and the group would grow only as each day passed.   In net effect, the law would not recognize its intended consequence until January 2, 2000.   As the court in People v. Sample (1984) 161 Cal.App.3d 1053, 1058, 208 Cal.Rptr. 318, noted, in addressing an extension of a statute of limitations, “Indeed, any other construction of the remedial changes would produce an absurd result:  if the amendments were construed to apply prospectively only to offenses committed after enactment, as suggested, the effect of the legislation would actually be postponed for an additional three years.”   Here, the effect would take six years.   While we recognize that Sample involved extension of an unexpired statute of limitations, we find the logic the same here.

Respondent also contends that section 805.5 bars application of section 803, subdivision (g) to the instant case.   We do not agree.   Section 805.5 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) Prosecution for the offense would be barred on the operative date by the limitation of time applicable before the operative date.

“(2) Prosecution for the offense was commenced before the operative date.”

In effect, respondent argues that section 805.5 passed in 1984 in conjunction with amendments to sections 800 and 801, bars prosecution here because the statute of limitations for the crimes alleged expired prior to 1985.   This interpretation assumes that the Legislature passed section 803, subdivision (g) subject to 805.5 rather than as an exception to 805.5, and that section 805.5 was intended to inhibit the application of section 803, subdivision (g).

The infirmity of this argument, as we see it, is that the operative date of section 805.5 is January 1, 1985.   Section 805.5, when enacted, applied to a chapter which did not include section 803, subdivision (g).   As a result, if we were to accept, for purposes of argument, respondent's view that section 805.5 supersedes the express wording and intent of section 803, subdivision (g), a number of consequences, inconsistent with the enactment of section 803, subdivision (g), would follow.

On its face, in order for section 805.5 to apply, two conditions must initially be met.   First, the crime would have to have been committed before January 1, 1985.   As such, prosecution under section 803, subdivision (g) of any crime committed thereafter would not be barred.   For example, a crime committed after 1985, would not be barred by section 805.5, even though the statutory period has run.   Additionally, section 805.5 would not bar prosecution of all crimes committed before January 1, 1985, only those crimes where the statute of limitations has expired prior to January 1, 1985.   Therefore, prosecution of a crime committed between 1982 and 1984 would not be barred, since the statute of limitations for that crime would not expire until sometime after 1985.4

In each of the examples above, section 803, subdivision (g), would allow prosecution of the crime since the expired statutes of limitations could be revived.   Applying section 805.5 literally would support respondent's view that section 803, subdivision (g), is not applicable if the limitation period has expired prior to January 1, 1985.   However, respondent's view is buttressed by several faulty arguments.   Respondent first assumes the Legislature intended section 803, subdivision (g), to be limited by section 805.5, with the consequence that only crimes committed after, for example, 1982, could fall within the ambit of section 803, subdivision (g).   We believe that a literal application of section 805.5 would seriously impede the clear intention of the Legislature in its enactment of section 803, subdivision (g).   On its face section 803, subdivision (g) would revive expired statutes of limitations only if the crime involved a child victim of substantial sexual conduct.   As already noted, we believe the Legislature intended to maximize the impact of this legislation and not to minimize it.   Accepting respondent's argument would minimize the impact of section 803, subdivision (g), and run contrary to the strong policy reasons argued in support of its passage.

Further, respondent's argument assumes the Legislature intended a cutoff date to crimes encompassed within section 803, subdivision (g) based not on the expiration of the statute of limitations, but on when the crime occurred.   In other words, the application of an implied statutory bar would not be linked to any discernible logical premise.   But, why apply section 803, subdivision (g), only to crimes occurring after 1982 or 1985?   While it might be argued that crimes occurring subsequent to 1982 might more easily be defended than crimes occurring prior to 1982, passage of time can be a detriment to any case whether it is a crime dating back to 1982 or 1980 or 1990.   Likewise, clearly prospective application from 1982 or 1985 into the future carries precisely the same infirmity that the Legislature would theoretically have been guarding against by intending section 803, subdivision (g) to be subject to section 805.5.   In other words, if memories would dim regarding a crime in 1980, the same consequence would occur if section 803, subdivision (g) were applied five years from now to a crime occurring in 1985.   However, section 803, subdivision (g) would clearly permit the latter prosecution by respondent's interpretation.

The Legislature expressly required a greater quantum of evidence in cases pursued under section 803, subdivision (g).   In our view, this was intended to be the bulwark against the vicissitude of time on memory and evidence.

 Therefore, given the specificity of section 805.5 regarding its operative date, it must be read as applying to the chapter as drafted in conjunction with section 805.5 and not to legislation subsequent to the passage of section 805.5.   Thus, we construe section 805.5 as not encompassing subsequent legislation that would be inconsistent with section 805.5 by the terms of the new legislation.

It is clear that section 803, subdivision (g) is more specific than sections 800 and 801, in that it expressly carves out an exception to the designated statutory period if the crime involves a child victim and substantial sexual conduct.   Equally clear is that section 803, subdivision (g) is subject to the general principle of interpretation that when “the same subject matter is covered by inconsistent provisions, one of which is special and the other general, the special one, whether or not enacted first, is an exception to the general statute and controls unless an intent to the contrary clearly appears.”  (Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446, 147 Cal.Rptr. 265, citing In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593.)   As such, we conclude that section 803, subdivision (g) is controlling in the instant case.

We are aware of the argument that the addition in section 803, subdivision (g) of the provision requiring the expiration of the limitation period in section 800 and section 801 was likely inserted to ensure that section 803, subdivision (g) was not construed as providing a shorter period of one year for the enumerated crimes.   However, such an interpretation is inconsistent with the stated purpose of section 803, subdivision (g) to provide for prosecution of crimes on children where the statute has otherwise expired and we reject it.

DISPOSITION

For the reasons stated the judgment is reversed.

FOOTNOTES

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

2.   “The Beazell definition omits the reference by Justice Chase in Calder v. Bull, 3 Dall. 386, 390 [1 L.Ed. 648] (1798), to alterations in the ‘legal rules of evidence.’   See also Hopt v. Utah, 110 U.S. 574, 590 [4 S.Ct. 202, 210, 28 L.Ed. 262] (1884) (approving procedural changes ‘leaving untouched the nature of the crime and the amount or degree of proof essential to conviction’).   As cases subsequent to Calder make clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes.   Thompson v. Missouri, 171 U.S. 380, 386–387 [18 S.Ct. 922, 924–925, 43 L.Ed. 204] (1898) (rejecting ex post facto challenge to retroactive application of statute making admissible handwritten documents as handwriting exemplars);  Hopt, supra, [110 U.S.] at 588–590 [4 S.Ct. at 209–210] (upholding retroactive application of statute making felons competent to testify).”  (Collins v. Youngblood, supra, 497 U.S. at p. 43, fn. 3, 110 S.Ct. at p. 2719, fn. 3.)

3.   The United States Supreme Court's recent decision in California Department of Corrections v. Morales (1995) 514 U.S. 499 [115 S.Ct. 1597], 131 L.Ed.2d 588, reaffirms the test mandated by Youngblood.

4.   Section 800 as presently set forth superseded and amended a three-year statute of limitations.

ARDAIZ, Presiding Justice.

DIBIASO and THAXTER, JJ., concur.