PEOPLE v. KING

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Philip KING, Defendant and Respondent.

No. C021709.

Decided: August 20, 1996

Daniel E. Lungren, Attorney General, Sacramento, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe, Supervising Deputy Attorney General, Sacramento, and Janet G. Bangle, Deputy Attorney General, Davis, for Plaintiff and Appellant. Alys Briggs, under appointment by the Court of Appeal, Oakland, for Defendant and Respondent.

Penal Code section 803, subdivision (g), effective January 1, 1994, establishes an additional one year limitations period for the prosecution of specified sex crimes if they involved substantial sexual conduct and if the original period of limitations triggered by the commission of the crime as specified in Penal Code sections 800 or 801 has expired.   The additional period of limitations begins to run from the date a person of any age reports he or she was the victim of a specified sex crime while under the age of 18.   (Further statutory references to sections of an undesignated code are to the Penal Code.)

In this appeal we decide whether the Legislature intended section 803, subdivision (g), to apply retroactively to crimes as to which the original period of limitations had expired before the January 1, 1994, effective date of section 803, subdivision (g).   We shall conclude the Legislature did not so intend.

A felony complaint filed May 25, 1995, charged defendant with four counts of violation of section 288, subdivision (a), lewd and lascivious conduct with a child under the age of 14, a crime specified in section 803, subdivision (g).   The offenses were alleged to have occurred between September 1, 1971 and June 30, 1973.   At the time of the alleged offenses, the limitations period for a violation of section 288 was three years.  (Former § 800;  stats. 1970, ch. 704, § 2, p. 1333.)   Thus the period of limitations triggered by the commission of the offense last committed expired no later than June 30, 1976.   The complaint alleges the offenses were first reported by the victim in May 1994, within one year of the filing of the complaint.

The magistrate sustained defendant's demurrer and dismissed the complaint on the ground section 803, subdivision (g) did not apply because the periods of limitations applicable to the charged offenses had expired.   The People's motion to reinstate the complaint (§ 871.5) was denied by the superior court and the People appeal (§ 1238, subd. (a)(9)).

Section 803, subdivision (g) provides:  “[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, was a 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 ․ and there is independent evidence that clearly and convincingly corroborates the victim's allegation.” 1

Although we are guided by familiar legal principles in determining whether a statute applies retroactively, the analytical modality, as we shall see, is evolving.  (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206–1207, 246 Cal.Rptr. 629, 753 P.2d 585.)  “The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.  [Citations.]  This court has often pointed out:  ‘[T]he first rule of construction is that legislation must be considered as addressed to the future, not to the past․  The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights ․ unless such be “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” ’  [Citation.]”  (United States v. Security Industrial Bank (1982) 459 U.S. 70, 79–80, 103 S.Ct. 407, 413, 74 L.Ed.2d 235, 243–244.)

“California authorities have long embraced this general principle․  [¶][B]oth [the Supreme Court] and the Courts of Appeal have generally commenced analysis of the question of whether a statute applies retroactively with a restatement of the fundamental principle that ‘legislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention.’  [Citations.]”  (Evangelatos, supra, 44 Cal.3d at p. 1208, 246 Cal.Rptr. 629, 753 P.2d 585.)

This fundamental principle is codified in section 3:  “No part of [the Penal Code] is retroactive, unless expressly so declared.”   Section 3 “reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted ‘unless express language or clear and unavoidable implication negatives the presumption.’   [Citation.]”  (44 Cal.3d at p. 1208, 246 Cal.Rptr. 629, 753 P.2d 585.)

Section 3 establishes a bright line that is reasonable, properly deferential to the constitutional prerogatives of the legislative branch (see Cal. Const., art. III, § 3), and simple to apprehend and apply.   It obviates the need for the courts to “become mired in microscopic examination” (Pecsok v. Black (1992) 7 Cal.App.4th 456, 462, 9 Cal.Rptr.2d 12) of extrinsic materials in an effort to divine a frequently elusive legislative intent.

The decisions have not consistently applied section 3 according to its starkly plain language.   In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 the court considered whether a statute which mitigated the punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute.   The statute was silent on the issue of retroactivity.  (63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)

Holding defendant was entitled to the benefit of the mitigated punishment, the Estrada court blurred, if not abraded, the bright line established by section 3:  “[A]s to section 3 of the Penal Code ․ [t]hat section simply embodies the general rule of construction, coming to us from the common law, that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively.   That rule of construction, however, is not a straitjacket.   Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.   It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.”  (63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)

Judicial disdain for section 3 did not stop with Estrada.   In In re Marriage of Bouquet (1976) 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371, the court was concerned with whether certain amendments to the community property statutes should be applied retroactively.   The community property statutes were then codified in the Civil Code, section 3 of which, in language identical to that of its Penal Code counterpart, states:  “No part of [the Civil Code] is retroactive, unless expressly so declared.”   The statutory amendments did not address the issue of retroactivity.   The court acknowledged that Civil Code section 3 created a presumption against retroactive application (16 Cal.3d at p. 587, 128 Cal.Rptr. 427, 546 P.2d 1371) but cautioned that “the presumption should operate only when, looking at all the pertinent factors, we fail to detect the legislative intent.”  (Supra, 16 Cal.3d at p. 591, 128 Cal.Rptr. 427, 546 P.2d 1371.)   The court explained:  “We have explicitly subordinated the presumption against the retroactive application of statutes to the transcendent canon of statutory construction that the design of the Legislature be given effect.  ․”  (Supra, 16 Cal.3d at p. 587, 128 Cal.Rptr. 427, 546 P.2d 1371.)   The court then arrayed the pertinent factors to be considered in determining retroactivity:  “[C]onsistent with Estrada's mandate, we must address ‘all pertinent factors' when attempting to divine the legislative purpose.   A wide variety of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ”   (In re Marriage of Bouquet, supra, 16 Cal.3d at p. 587, 128 Cal.Rptr. 427, 546 P.2d 1371, fns. and citations omitted.)

Just as the statutory bright line was about to fade into obscurity, the Evangelatos court reillumined it.   Rejecting the argument of the dissent that the bright line of Civil Code section 3 applies in retroactivity determinations only as a “tie-breaking factor,” i.e., only when the consideration of “all pertinent factors” is inconclusive, the Evangelatos majority signaled a return to first principles:  “California continues to adhere to the time-honored principle, codified by the Legislature ․ that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.   The language in Estrada, Mannheim, and Marriage of Bouquet should not be interpreted as modifying this well-established, legislatively-mandated principle.”  (44 Cal.3d at pp. 1208–1209, 246 Cal.Rptr. 629, 753 P.2d 585.) 2

Although the Evangelatos court did not completely preclude the consideration of extrinsic materials to determine legislative intent (44 Cal.3d at p. 1209, 246 Cal.Rptr. 629, 753 P.2d 585), the decision emphasized that extrinsic materials will not trump the absence of an express legislative declaration of retroactivity unless from those materials the legislative intent to apply the statute retroactively is “very clear.”  (44 Cal.3d at p. 1209, 246 Cal.Rptr. 629, 753 P.2d 585.)

The People point out that section 803, subdivision (g) applies only if the original limitation period fixed by sections 800 or 801 has expired without distinction as to whether it expired before or after January 1, 1994, the effective date of section 803, subdivision (g).   The People argue the Legislature must therefore have intended section 803, subdivision (g) to apply indiscriminately to all specified sex crimes which are reported after prosecution is time barred under the original statute of limitations.

 We disagree with the People that the language of section 803, subdivision (g) impels this conclusion.   In enacting section 803, subdivision (g), the Legislature made no express declaration of intent that it apply retroactively.   Nor does the language of the statute by clear implication dispel the presumption that it is intended to operate prospectively only.   At best, the statutory language is simply noncommittal on that issue.

Applying the presumption of prospectivity, all that appears from the language of section 803, subdivision (g) is that it applies to specified sex crimes committed prior to January 1, 1994, only if the original statute of limitations had not expired by that date.  (See People v. Swinney (1975) 46 Cal.App.3d 332, 340, 120 Cal.Rptr. 148 [a statute of limitations may be extended before it has run], disapproved on other grounds in People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 26, 134 Cal.Rptr. 784, 557 P.2d 75;  Falter v. United States (2d Cir.1928) 23 F.2d 420, 425–426;  see also Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 1226, 39 Cal.Rptr.2d 414 and authorities cited therein.)   Accordingly, specified sex crimes as to which the six-year limitations period of section 800 applies (e.g., violations of §§ 261, 286, subd. (c), 288, 288.5, 288a, subd. (c), 289) which were committed after January 1, 1988, are subject to the additional limitations period of section 803, subdivision (g);  specified sex crimes to which the three-year limitations period of section 801 applies (e.g., violations of §§ 286, subds. (b)(1), (2), 288a, subds. (b)(1), (2), 289, subds. (h), (i)) which were committed after January 1, 1991, are also subject to the additional limitations period of section 803, subdivision (g).

The People attempt to establish retroactive intent from extrinsic materials, accepting Evangelatos' daunting challenge that such a showing must make it “very clear [ ] the Legislature ․ intended a retroactive application.”   (44 Cal.3d at p. 1209, 246 Cal.Rptr. 629, 753 P.2d 585.)   The People direct our attention to the legislative history of AB 290, the bill that added section 803, subdivision (g) to the Penal Code.   The history, taken primarily from Assembly and Senate committee reports, discloses the following:  child victims frequently do not timely report sexual assaults because they are afraid, intimidated or feel others may not believe them;  as a result, such crimes frequently come to the attention of law enforcement officials only when the victim, now an adult, reveals he or she had been sexually abused as a child;  due to the statute of limitations, a criminal charge of child sexual abuse cannot be pursued unless the crime was committed within six years of disclosure;  thus, sex crimes against children often go unprosecuted.   From this history the People conclude:  “It is evident that the Legislature's purpose in enacting section 803, subdivision (g), was to remedy what it saw as a serious problem arising in the prosecution of this crime, so as to provide protection to a class of victims not previously protected and to punish a class of defendants that had been effectively immunized from prosecution because of the vulnerability of their victims.”   The People continue:  “In the absence of any constitutional impediment, there would have been no reason to limit the remedial effect of the statute to crimes as to which the previously-existing statute of limitations had not run.   To the contrary, application of this section only to crimes as to which the statute of limitation had not expired prior to the effective date of the section would produce an absurd result by postponing its effect for six years.”

We disagree with the People that failure to apply the statute retroactively will yield the “absurd result” that section 803, subdivision (g) will have no effect until January 1, 2000, the earliest day that the six-year limitations period (§ 800;  see fn. 1, p. 3) for specified sex crimes committed after January 1, 1994, will expire.   To the contrary, failure to give section 803, subdivision (g) retroactive application will not delay its effectiveness for a single day, much more for six years until the year 2000.   As of its effective date, section 803, subdivision (g) operates immediately to add an additional one year limitations period to specified sex crimes (1) with an original six-year limitations period which were committed after January 1, 1988, and (2) with an original three-year limitations period which were committed after January 1, 1991.   This effect can hardly be characterized as an “absurd result.”

More importantly, nothing in the extrinsic materials offered by the People unequivocally establishes a legislative intent to apply section 803, subdivision (g) to crimes committed prior to January 1, 1988.   The extrinsic materials are equally susceptible to the interpretation the Legislature intended merely to keep open the possibility of prosecution beyond the expiry of limitations periods which had not yet lapsed.

The fact the Legislature has put into place a more “open ended” limitations period does not mean it intended that it apply to all specified sex crimes irrespective of when committed.   Having found the three-year and six-year limitations periods inadequate to the needs of justice, the Legislature put into place a new system which is clearly remedial with reference to the preexisting situation.

 “[A] remedial purpose does not necessarily indicate an intent to apply the statute retroactively.”  (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1213, 246 Cal.Rptr. 629, 753 P.2d 585.)   Almost all statutory changes are intended to improve a preexisting situation and thus to bring about a better state of affairs.  (Ibid.) “[I]f such an objective were itself sufficient to demonstrate a clear legislative intent to apply a statute retroactively, almost all statutory provisions ․ would apply retroactively rather than prospectively.”  (44 Cal.3d at p. 1213, 246 Cal.Rptr. 629, 753 P.2d 585;  see also Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 395, 182 P.2d 159 [“It seems clear ․ the legislative intent in favor of the retrospective operation of a statute cannot be implied from the mere fact that the statute is remedial and subject to the rule of liberal construction.”].)

With the enactment of section 803, subdivision (g), sexual predators may no longer find repose in the expiry of the original limitations period in effect when they committed their crimes.   The Legislature obviously believes the section will bring about “a fairer state of affairs” (Evangelatos, supra, 44 Cal.3d at p. 1213, 246 Cal.Rptr. 629, 753 P.2d 585) by bringing to justice those who might otherwise escape the consequences of their acts by passage of time.

We disagree with the People's claim that “[i]n the absence of any constitutional impediment, there would have been no reason [for the Legislature] to limit the remedial effect of the statute to crimes as to which the previously-existing statute of limitation had not run.”   In point of fact, there is a serious constitutional question whether the Legislature may revive a prosecution for crime barred by an expired period of limitations (see e.g., Lynch v. Superior Court, supra, 33 Cal.App.4th at pp. 1226–1228, 39 Cal.Rptr.2d 414 and authorities cited therein;  cf. Lent v. Doe (1995) 40 Cal.App.4th 1177, 1183–1184, 47 Cal.Rptr.2d 389 [time barred civil cause of action for child sexual abuse revived] ), a question so serious the People devote 17 pages of their brief on appeal to this issue alone.

We take note of the fact that section 803, subdivision (g) was enacted in 1993 in a time of heightened public awareness of and concern with the incidence of sex crimes, particularly against children.   If ever there was a time when the question of retroactivity obtruded, this was it, yet the statute does not address the issue.   The significance of this cannot be underestimated since the Legislature knows how expressly to declare a statute retroactive if that is its intention.  (Aetna Cas. & Surety Co., supra, 30 Cal.2d at p. 396, 182 P.2d 159 [“[I]t must be assumed that the Legislature was acquainted with the settled rules of statutory interpretation, and that it would have expressly provided for retrospective operation of the amendment if it had so intended.”].)   For example, when in 1994 the Legislature intended to revive time-barred civil claims in cases involving child sexual abuse, it demonstrated it knew how to do so by using express language.  (Code Civ.Proc., § 340.1, subd. (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.”];   stats. 1994, ch. 288, § 1;  see Lent v. Doe, supra.)

The People make the remarkable claim that application of section 803, subdivision (g) to crimes committed, as here, in the 1970's, is not truly a retroactive application because section 803, subdivision (g), is simply a rule of procedure applicable to the conduct of trials commenced after its effective date, January 1, 1994.

 “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;  see also People v. Gordon (1985) 165 Cal.App.3d 839, 849–852, 212 Cal.Rptr. 174.)   Although the statute of limitations is not an element of the crime in the sense that it implicates conduct or mental state characterizing the crime, in every charge of crime subject to a statute of limitations, the People must plead and prove that the prosecution has been commenced within the statutorily prescribed time period.  (See § 1004, subds. 1, 4, 5;  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;  People v. Ayhens (1890) 85 Cal. 86, 89, 24 P. 635;  Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 849, 106 Cal.Rptr. 516.)

Attaching a “procedural” label to section 803, subdivision (g) misses the point.  “[I]t is the law's effect, not its form or label, which is important.”  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 289, 279 Cal.Rptr. 592, 807 P.2d 434;  (italics added).)  Application of section 803, subdivision (g) to defendant would clearly be retroactive because it changes “ ‘the legal effects of past events' ” (id., at p. 288, 279 Cal.Rptr. 592, 807 P.2d 434), “changes the legal consequences of [defendant's] past conduct” (id., at p. 289, 279 Cal.Rptr. 592, 807 P.2d 434), and “ ‘substantially affects existing rights and obligations.’ ”  (Id., at p. 290, 279 Cal.Rptr. 592, 807 P.2d 434;  see People v. Chadd (1981) 28 Cal.3d 739, 757, 170 Cal.Rptr. 798, 621 P.2d 837 [criminal statutory limitations period is substantive rather than procedural].) 3

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

FOOTNOTES

1.   Section 800 provides:  “[P]rosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense.”Section 801 provides:  “[P]rosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”Punishment for a violation of section 288, subdivision (a) is imprisonment in the state prison for three, six, or eight years.  (Stats.1981, ch. 1064, § 1, p. 4093.)

2.   In Mannheim v. Superior Court (1970) 3 Cal.3d 678, 91 Cal.Rptr. 585, 478 P.2d 17, the Supreme Court gave retroactive application to an amendment to the Probate Code which resulted in distribution of community property to the heirs of the decedent's predeceased spouse rather than escheat to the state.

3.   In light of our holding, we do not address defendant's additional contention retroactive application of section 803, subdivision (g), is barred by section 805.5.

PUGLIA, Associate Justice.

SCOTLAND and MORRISON, JJ., concur.

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