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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Jesus Valenzuela REGULES, Defendant and Respondent.

No. H013532.

Decided: August 15, 1995

Daniel E. Lungren, Atty. Gen., Janet G. Bangle, Deputy Atty. Gen., for plaintiff and appellant. Fred Herro, Office of the Public Defender, Monterey, for defendant and respondent.

Penal Code section 803, subdivision (g), enacted in 1993 and effective January 1, 1994, extended the statute of limitations for filing a criminal complaint against an individual charged with committing a sex crime against a minor.1  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 18.

Under this new statute of limitations, defendant was charged with various sex acts against minors dating back to 1952.2  He demurred to 24 of 26 counts,3 contending that prosecution of those counts violated the ex post facto clauses of the United States and California Constitutions.   The municipal court sustained his demurrer.

The People unsuccessfully moved to reinstate the complaint in the superior court and now appeal from that denial.   We shall affirm.


Since this appeal was filed, two Court of Appeal decisions have been published discussing subdivision (g).   The first, Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, held that a criminal statute of limitations may be extended before, but not after, it has run as to a particular offense.   The second, People v. Richard G. (1995) 35 Cal.App.4th 1099, 42 Cal.Rptr.2d 667, held that subdivision (g) could not be applied retroactively to revive an expired statute of limitations.

In People v. Richard G., supra, 35 Cal.App.4th 1099, 42 Cal.Rptr.2d 667, the court discussed the new legislation in the context of the general criminal statutes of limitation, as follows:  “Chapter 2 of title III of part 2 of the Penal Code (§§ 799–805.5) establishes the time periods within which criminal actions must be commenced.   Prosecution for a crime punishable by death or life imprisonment (with or without the possibility of parole) or for embezzlement of public money may be commenced at any time (§ 799).   In most instances, prosecution for an offense punishable by imprisonment in state prison for eight years or more must be commenced within six years of its commission (§ 800), and prosecution for an offense (other than those described in §§ 799 and 800) punishable by imprisonment in state prison must be commenced within three years of its commission (§ 801).  [¶]  Section 803 involves tolling or extensions of the time periods set forth in chapter 2.   In 1993 subdivision (g) was added to section 803.   Under subdivision (g) the statute of limitations for filing a criminal complaint against an individual alleged to have committed at least one of a number of sexual offenses upon a person under the age of 18 years was extended to a date one year after the victim files a report of the offense with a law enforcement agency.   Subdivision (g) applies if the limitation period in section 800 or 801 has expired and the crime involved ‘substantial sexual conduct.’ ”   (People v. Richard G., supra, 35 Cal.App.4th at pp. 1100–1101, 42 Cal.Rptr.2d 667, fns. omitted.)

In this appeal, the People acknowledge that every federal court and every state court decision discussing the extension of a statute of limitations to a crime after the prior statutory period had expired has ruled that such extension is a violation of the federal ex post facto provision.   The People in fact cite over 50 opinions supporting this proposition, including the most famous one of all, Falter v. United States (2d Cir.1928) 23 F.2d 420.   In holding in Falter that a statute of limitations could be extended if the original period of limitation had not yet expired, Judge Learned Hand explained:  “ ‘Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life.   The question turns upon how much violence is done to our instinctive feelings of justice and fair play.   For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest.   But while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the sta[t]e forgives it.’ ”  (Id., at pp. 425–426.)

Numerous California cases have cited and followed the rule enunciated by Judge Hand in Falter v. United States, supra, including most recently Lynch v. Superior Court, supra, 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414, discussing this very statute.  (See e.g., Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 849, 106 Cal.Rptr. 516;  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.)

Despite the unanimous weight of authority against them, the People argue that under a five-year-old opinion of the United States Supreme Court, Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, the expansive reading of the ex post facto clause that was responsible for those decisions is no longer appropriate.

In Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, the court was not dealing with a statute of limitations issue but rather with the question of a criminal sentence void at its inception.   While the defendant's challenge to the 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. 2715, 111 L.Ed.2d 30) that could not be taken away from a defendant after the fact.

The Supreme Court reversed the opinion of the Fifth Circuit, and in so doing adopted the formulations of ex post facto laws set forth in 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 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[Youngblood];  see also Tapia v. Superior Court (1991) 53 Cal.3d 282, 293–294, 279 Cal.Rptr. 592, 807 P.2d 434.)   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.)

The People contend that of the three enumerated 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.   However, they argue that even the third category does not apply, based on statements in two federal appeals court cases that defendants are not deprived of a “defense” within the meaning of Youngblood based on the running of the statute of limitations.

The cases upon which the People rely, however, are clearly distinguishable.   Both U.S. v. Knipp (6th Cir.1992) 963 F.2d 839 (Knipp) and U.S. v. Brechtel (5th Cir.1993) 997 F.2d 1108 (Brechtel) involved 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 fact, both cited with approval the language of Judge Learned Hand in Falter v. United States, supra, 23 F.2d 420.

However, in the context of its holding, the Knipp court stated the following, upon which the People rely:  “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 [ (1882) 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, supra, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216] 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 997 F.2d at p. 1113.)

Notwithstanding this language, it is clear as the Brechtel court specifically observed, “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.)   That is because, as Judge Learned Hand so eloquently explained, “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.”  (Falter v. United States, supra, 23 F.2d at p. 426.)   Further, whether the statute of limitations technically is an element of the crime 4 or not,5 the fact that the prosecution was commenced within the statutory period is clearly an essential matter that the People must prove.

We see no reason to depart from the well settled rule that when the criminal limitations period originally applicable to an offense has run, ex post facto protections bar a subsequent statutory amendment from reviving or extending the period.


The order denying the People's motion to reinstate the complaint is affirmed.


1.   All further statutory references are to Penal Code section 803 unless otherwise specified.   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 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.”

2.   The four victims apparently reported the incidents for the first time in 1994.

3.   Upon the prosecutor's motion, two additional counts were dismissed in the interests of justice.

4.   Cases stating that it is include People v. Gordon, supra, 165 Cal.App.3d at page 852, 212 Cal.Rptr. 174 and People v. Allen (1941) 47 Cal.App.2d 735, 748, 118 P.2d 927.

5.   Cases stating that it is not include People v. Morgan (1977) 75 Cal.App.3d 32, 40, 141 Cal.Rptr. 863 and Justice Broussard's dissent in People v. Medina (1990) 51 Cal.3d 870, 919, 274 Cal.Rptr. 849, 799 P.2d 1282.

COTTLE, Presiding Justice.

PREMO and ELIA, JJ., concur.

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