PEOPLE v. RICHARD

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. RICHARD G., Defendant and Respondent.

The PEOPLE, Plaintiff and Appellant, v. DARRELL J., Defendant and Respondent.

Nos. A066871, A067034.

Decided: June 13, 1995

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., W. Scott Thorpe, Supervising Deputy Atty. Gen., Janet G. Bangle, Deputy Atty. Gen., Sacramento, for appellant. Philip DeJong, Ukiah, for respondent Richard G. Peter Dodd, Hornbrook, for respondent Darrell J.

Today we are called upon to determine whether recently enacted legislation which extends the statute of limitations for specified sex crimes perpetrated against minors applies to crimes committed prior to its enactment and, if so, whether it violates the ex post facto clauses of the United States and/or California Constitutions.   We hold the legislation is not retroactive and, therefore, do not reach the constitutional issue.

Chapter 2 of title III of part 2 of the Penal Code 1 (§§ 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.” 2

In these consolidated cases, we must determine whether or not section 803, subdivision (g), may be applied retroactively.   Specifically, may an alleged offender be prosecuted for offenses which were committed prior to the effective date of subdivision (g) (Jan. 1, 1994) and as to which the statute of limitations in effect prior to January 1, 1994, has already run?   We conclude that the Legislature did not intend such a result and, thus, answer “no.” 3

I. FACTUAL BACKGROUND

On June 1, 1994, Richard G. was charged by information in Mendocino County with nine counts of sodomy with a person under the age of 14 years and more than 10 years younger than he.  (§ 286, subd. (c).) 4  The criminal acts were all alleged to have occurred between 1964 and 1966.   Richard G. demurred to the information on statute of limitations grounds;  the trial court sustained the demurrer;  and the information was dismissed.5

On June 6, 1994, a criminal complaint was filed in Humboldt County against Darrell J. in which he was charged with four counts of committing lewd and lascivious acts on a child under the age of 14 years (§ 288, subd. (a)).  The criminal acts were alleged to have taken place between 1978 and 1984.6  The trial court dismissed the complaint on statute of limitations grounds and denied a motion by the district attorney to reinstate it.

The People of the State of California (appellant) have appealed the dismissals entered by the two trial courts.   Appellant tacitly concedes that, if section 803, subdivision (g), does not have retroactive effect, the Richard G. information and the Darrell J. complaint were properly dismissed by application of section 800.

II. ANALYSIS

In determining whether or not the Legislature intended that subdivision (g) be applied retroactively, we are guided by familiar legal principles:  “ ‘[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.)

In addition, when analyzing whether or not a penal statute is intended to have retroactive effect, the Legislature has provided specific guidance:  “No part of [the Penal Code] is retroactive, unless expressly so declared.”  (§ 3, italics added.)

 We first note that the enactment of subdivision (g) was not accompanied by any express statement of legislative intent regarding retroactivity.   We have also examined the legislative history of subdivision (g) and find no evidence that the Legislature intended that it be applied retroactively.

Appellant suggests, however, that the language of the statute makes it clear that the Legislature intended that subdivision (g) serve “to revive an expired statute of limitations.”   In support of that proposition, appellant cites the fact that subdivision (g) only applies if the limitation period specified in section 800 or section 801 has expired.   We read the provision limiting the application of subdivision (g) to situations where the limitation period under section 800 or 801 has expired differently.

 In our view the addition of the limitation on the application of subdivision (g) was designed to avoid giving an alleged offender the benefit of a shorter limitations period than the one established in section 800, if a victim makes a report to a law enforcement agency less than five years after the offense occurs.   By adding the proviso limiting application of subdivision (g) to situations where the longer periods of section 800 or 801 have expired, the Legislature has simply avoided the problem of the inconsistent, special (potentially shorter) limitation period of subdivision (g) overriding the general limitations periods established in sections 800 and 801.  (Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446, 147 Cal.Rptr. 265.)

In sum, nothing on the face of subdivision (g) or in its legislative history supports the conclusion that the Legislature intended that it be applied retroactively.   The judgments of dismissal are affirmed.

FOOTNOTES

FN1. Unless otherwise noted, all further statutory references are to the Penal Code..  FN1. Unless otherwise noted, all further statutory references are to the Penal Code.

2.   Section 803, subdivision (g), specifically 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 allegations.   No evidence may by 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.”

3.   Because we find that the Legislature did not intend that subdivision (g) be applied retroactively, we do not address the question of whether or not the Legislature could enact a statute which extends the statute of limitations for an offense as to which an existing statute of limitations has already run—the principal issue addressed by the parties.   That question has recently been addressed by Division Four of the Second District in Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414.   We find it unnecessary here to examine that reasoning.

4.   A violation of section 286, subdivision (c), is punishable by imprisonment in state prison for a term of three, six or eight years.   Under section 805, subdivision (a), the limitations period is governed by the maximum punishment established for an offense.   Thus, the six-year limitations period of section 800 governs prosecution for violation of section 286, subdivision (c), unless the period is tolled.

5.   In making its ruling, the trial court “assumed” that the six-year period of section 800 applied “at some time” to the charges against Richard G., while noting that it “probably never applied.”   The court noted that section 286, subdivision (c), was not in existence in the 1964 through 1966 period.   The court further noted, “․ The statute in existence then was Penal Code § 286, which made it a felony to commit any sodomy and made such an act punishable by imprisonment in the state prison for not less than one nor more than ten years․  [¶] From before the period 1964–1966 and continuously until 1981, the statute of limitations for prosecution of a violation of § 286 was three years.   (Former Penal Code § 800 amended by Stats.1941, c. 1113, p. 2816, § 1.)   In 1975, § 286 was amended to add a subdivision (c) to read substantially the same as § 286(c) reads today.   The statute of limitations for prosecution of a violation of § 286(c) was not extended from three to six years until 1981.  (Former Penal Code § 800[b] amended by Stats.1981, c. 895, p. 3413, § 1.)”  (Emphasis in original.)

6.   In 1978, the statute of limitations for a violation of section 288, subdivision (a), was three years.   In 1980, the statute of limitations was extended to five years, and in 1984, it was extended to six years (effective Jan. 1, 1985).  (§ 800.)   Thus, absent the possible application of section 803, subdivision (g), the statute of limitations expired for the 1978 offenses in 1984 and for the 1984 offenses in 1990 at the latest.

ANDERSON, Presiding Justice.

PERLEY and REARDON, JJ., concur.