BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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SB 933 (Dunn)
As Introduced February 21, 2003
Hearing date: March 25, 2003
Penal Code (URGENCY)
AA:mc
STATUTE OF LIMITATIONS :
CHILD ABUSE OR NEGLECT
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: AB 2055 (Robert Pacheco) - Ch. 1059, Stats.
2002
AB 78 (Alquist) - Ch. 235, Stats. 2001
AB 1742 (Correa) - Ch. 235, Stats. 2000
AB 2014 (Boland) - Ch. 130, Stats. 1997
AB 700 (Alby) - Ch. 29, Stats. 1997
AB 290 (Boland) - Ch. 390, Stats. 1993
AB 638 (Boland) - 1992, vetoed
AB 782 (N. Waters) - Ch. 1312, Stats. 1989
Support: Office of the Attorney General; Office of the City
Attorney for the City and County of San Francisco; Los
Angeles Deputy Sheriffs, Inc.; California District
Attorneys Association
Opposition:California Public Defenders Association
KEY ISSUES
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SHOULD THE STATUTE OF LIMITATIONS BE TOLLED IN SPECIFIED CHILD
ABUSE CASES WHILE LITIGATION INVOLVING GRAND JURY SUBPOENAS OR
SEARCH WARRANTS ISSUED WITH RESPECT TO THE ALLEGATIONS IS
PENDING, AS SPECIFIED?
(CONTINUED)
SHOULD SPECIFIED LANGUAGE BE ADDED TO THE STATUTES OF LIMITATIONS
CONCERNING PAST CHILD ABUSE CASES AS STATEMENTS "OF EXISTING LAW . .
. ENACTED FOR THE PURPOSE OF CLARIFICATION"?
PURPOSE
The purpose of this bill is to toll the statute of limitations
in specified child abuse cases while litigation involving grand
jury subpoenas or search warrants issued with respect to the
allegations is pending, as specified, and to add language to
existing limitations periods concerning past child abuse or
neglect cases as statements of existing law for the purpose of
clarification, as specified.
Limitations of Actions Generally
Under current law , statutes of limitations for the commencement
of criminal actions generally are based on the term of the
sentence, the type of offense, or the nature of the victim, as
specified below.
Prosecution for a crime punishable by death, life
imprisonment, life imprisonment without the possibility of
parole, or the embezzlement of public funds may be commenced
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at any time.<1> (Penal Code 799.)
Prosecution for crimes punishable by imprisonment in the state
prison for eight years or more must be commenced within six
years after commission of the offense. (Penal Code 800.)
Prosecution for crimes punishable by imprisonment in the state
prison must be commenced within three years after commission
of the offense. (Penal Code 801.)
Prosecution for crimes involving fraud, breach of a fiduciary
duty, embezzlement of funds from an elder or dependent adult,
or misconduct by a public official must be commenced within
four years after discovery of the crime or within four years
after completion, whichever is later. (Penal Code 801.5.)
Prosecution for crimes involving elder or dependent abuse must
be commenced within five years after commission of the
offense. (Penal Code 801.6.)
Prosecution for misdemeanor crimes involving molesting a child
under the age of 14 years or sexual misconduct with a patient
must be commenced within two years after commission of the
offense. For all other misdemeanors, prosecution must be
commenced within one year after commission of the offense.
(Penal Code 802.)
Prosecution for specified felony sex offenses must be
commenced within 10 years of the commission of the offense, or
one year from the date on which the identify of the suspect is
conclusively established by DNA testing, whichever is later,
as specified. (Penal Code
803(h).)
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<1> Punishment for murder, attempted premeditated and
deliberate murder, kidnapping for purposes of robbery,
extortion, or certain sex offenses are punishable by life in
prison. (Penal Code 190 and 209.)
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Limitations of Actions: Otherwise Expired Child Sexual Assault
Cases
Current law authorizes a criminal complaint to be filed within
one year after a report to a responsible adult or agency by a
child under the age of 18 if that child is a victim of specified
sexual offenses. To file such a complaint, the following must
occur:
The limitation period specified in Section 800 or 801 has
expired.
The defendant has committed at least one violation of a
specified sexual offense against the same victim within the
limitation period specified for that crime in either Section
800 or 801. (Penal Code 803(f).)
Current law provides that this subdivision applies to a cause of
action arising before, on, or after January 1, 1990, the
effective date of this subdivision, and it revives any cause of
action otherwise previously time-barred, as specified. (Penal
Code 803(f)(3).)
Current law authorizes a criminal complaint to be filed within
one year after a report to a law enforcement agency that a
person was the victim of a sexual offense while under the age of
18 years. To file such a complaint, the following must occur:
"The limitation period specified in Section 800 or 801 has
expired .
The crime involved substantial sexual conduct , as described in
subdivision (b) of Section 1203.066,<2> excluding masturbation
that 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
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<2> Under Penal Code section 1203.066(b), "'[s]ubstantial
sexual conduct' means penetration of the vagina or
rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation
of either the victim or the offender."
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allegation that otherwise would be inadmissible during trial.
Independent evidence does not include the opinions of mental
health professionals." (Penal Code 803 (g)(2).) (emphasis
added)
Current law also provides for the retroactive application of
this extended limitations period to causes of action arising
before, on, or after January 1, 1994 (its original enactment
date), and for the revival of otherwise time-barred cases in any
of the following circumstances:
Filing occurred on or before January 1, 1997, and within the
time period specified above;
Filing occurred subsequent to January 1, 1997, and within the
time period specified above;
Where the victim made the required report to law enforcement
after January 1, 1994, and a complaint or indictment was not
filed within the time period specified above, but is filed no
later than 180 days after a judicial determination regarding
the constitutionality of this section, as specified; and
The victim made the report to law enforcement after January 1,
1994, filing occurred within the time period specified above
but was subsequently dismissed by the court, and a new
complaint is filed no later than 180 days after a judicial
determination regarding the constitutionality of this section,
as specified.
This bill would add the following language to this subdivision:
The complaint or indictment is filed within the
time period specified in this subdivision, and the
victim made the report required by this
subdivision to a law enforcement agency after
previously having reported the same crime to a law
enforcement agency before January 1, 1994, at a
time when Section 800 or 801 barred the cause of
action. This clause is intended as a statement of
existing law, and is enacted for the purpose of
clarification. (emphasis added.)
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Current law further authorizes the filing of a criminal
complaint within one year after a report to a law enforcement
agency by a person under 21 years of age alleging that he or
she, while under 18 years of age, was the victim of a specified
sexual offense. To file such a complaint, the following must
occur:
"The limitation period specified in Section 800 or 801 has
expired .
The crime involved substantial sexual conduct , as described in
subdivision (b) of Section 1203.066,<3> excluding masturbation
that is not mutual, and there is independent evidence that
corroborates the victim's allegation .<4> No evidence may be
used to corroborate the victim's allegation that otherwise
would be inadmissible during trial. Independent evidence does
not include the opinions of mental health professionals."
(Penal Code 803 (h)(2).)
Current law provides that this subdivision "applies to a cause
of action arising before, on, or after January 1, 2002, the
effective date of this subdivision, and it shall revive any
cause of action barred by Section 800 or 801 if the complaint or
indictment was filed within the time period specified by this
subdivision. "
This bill would add the following language to this subdivision:
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<3> Under Penal Code section 1203.066(b), "'[s]ubstantial
sexual conduct' means penetration of the vagina or
rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation
of either the victim or the offender."
<4> The distinction between these types of cases filed by
persons under 21 years of age (Penal Code 803(h)) and persons
21 years of age or older (Penal Code 803(g)) is the absence of
the "clearly and convincingly" corroboration of the victim's
allegation is not required for the cases filed by persons under
the age of 21.
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This subdivision applies where the complaint or
indictment is filed within the time period
specified by this subdivision and the victim made
the report required by this subdivision to a law
enforcement agency after previously having
reported the same crime to a law enforcement
agency before January 1, 2002, at a time when
Section 800 or 801 barred the cause of action.
This paragraph is intended as a statement of
existing law and is enacted for the purpose of
clarification. (emphasis added)
Tolling Due to Evidentiary Privilege or Attorney Work Product
Unavailability
Current law generally tolls the statute of limitation for any
crime where its proof depends substantially upon evidence that
was seized under a warrant, but which is unavailable to the
prosecuting authority because the evidence is being litigated in
the courts. (Penal Code
803(j).)<5>
This bill would toll the statute of limitation where the
limitation period has not expired "in any investigation
involving child abuse or neglect, . . . while litigation
involving grand jury subpoenas or search warrants issued with
respect to the allegations of child abuse or neglect is
pending." (See Comment 1 for proposed author's amendments
redrafting this provision.)
COMMENTS
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<5> Penal Code section 1524(c) generally prohibits the
issuance of a search warrant for documentary evidence in the
possession of a lawyer, psychotherapist or "clergyman" who is
not reasonably suspected of criminal conduct unless specified
procedures involving a special master and the opportunity for a
court hearing are employed.
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1. Author's Amendments
The author intends to offer an amendment in Committee to delete
the language in the proposed new subdivision 803(k) and replace
it with the following language:
In a criminal investigation involving child sexual
abuse as described in subdivision (g) or (h),
where the limitations period set forth therein has
not expired, the limitations period prescribed
therein shall be tolled from the time a party
initiates litigation challenging a grand jury
subpoena or a search warrant until final
disclosure of the evidence to the investigating or
prosecuting agency or until the final conclusion
of the litigation, including any associated writ
or appellate proceeding.
Comment 5, infra, discusses the effect of this amendment.
2. Stated Need for This Bill
The author states:
Under current law, forcible sex crimes are
generally covered by six year statute of
limitations. However, where the victim was a
minor at the time the crime occurred, and it is
more than six years from the date of the crime, a
criminal prosecution may be filed within one year
from the date the victim, regardless of his or her
age, reports the crime to a California law
enforcement agency. In order for this special
statute of limitations to apply there must be
"independent evidence that clearly and
convincingly corroborates the victim's
allegation."
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In order to determine if there is clear and
convincing evidence of corroboration it is
sometimes necessary to utilize a grand jury
subpoena or a search warrant to examine documents
and obtain other evidence. Unfortunately, if the
suspect exercises his or her right to initiate
litigation to oppose a subpoena or search warrant,
the one year statute of limitation can easily
expire before the courts are able to resolve the
legal issues involved. This, in effect, negates
the benefit of the special statute of limitations.
SB 933 would toll (freeze) the statute of
limitations during the time the court is deciding
whether or not a grand jury subpoena or a search
warrant must be complied with.
SB 933 would enable the courts to protect the
rights of the accused while assuring that the
statute of limitations does not expire while the
superior court and appellate courts resolve the
legal issues raised by the suspect.
URGENT PROBLEM IN LOS ANGELES COUNTY
In almost every case involving child sexual
allegations against priests and employees of the
Archdiocese of Los Angeles, the general statute of
limitations has expired. Thus, development of
independent corroboration is required in order to
file a criminal case pursuant to PC 803(g).
Documents kept by the Archdiocese may, and in
certain cases will, lead to evidence or
independent corroboration.
During June and July 2002, grand jury subpoenas
were issued ordering that the Archdiocese produce
documents involving 17 priests and employees. An
attorney representing several of the target
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priests (petitioners) made a motion to quash the
grand jury subpoenas based on procedural
objections. Presiding Judge Dan Oki denied their
motion to quash. However, the petitioners
appealed Judge Oki's decision. The appellate
court heard oral arguments on November 12, 2002.
A decision will be rendered some time in the
future. If the ruling is in our favor, the
petitioners may then appeal the issue to the
California Supreme Court.
Once the procedural questions are settled, the
petitioners may then object to the production of
documents based on privacy and privilege grounds.
Again, any decision made by Judge Oki will be
subject to appellate review.
We do not object to the right of petitioners to
litigate the issues related to grand jury
subpoenas. However, it is important that the
statute of limitations be tolled during the time
the courts determine whether or not the subpoenas
must be complied with. (Emphasis in original.)
3. Background: Operation of the Statute of Limitations
The statute of limitations requires commencement of a
prosecution within a certain period of time after the commission
of a crime. A prosecution is initiated by filing an indictment
or information, filing a complaint, certifying a case to
superior court, or issuing an arrest or bench warrant. (Penal
Code 804.) The failure of a prosecution to be commenced
within the applicable period of limitation is a complete defense
to the charge. The statute of limitations is jurisdictional and
may be raised as a defense at any time, before or after
judgment. People v. Morris (1988) 46 Cal.3d 1, 13. The
defense may only be waived under limited circumstances. (See
Cowan v. Superior Court (1996) 14 Cal.4th 367.)
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4. Background: Tolling the Statute of Limitations in Criminal
Cases
For the statute of limitations, time is computed in accordance
with the general rule of the Code of Civil Procedure section 12,
by excluding the first day (when the crime was committed) and
including the last day (when the prosecution was commenced). As
noted above, for purposes of the statute of limitations "a
prosecution is commenced when any of the following occurs: (a)
an indictment or information is filed; (b) a complaint is filed
charging a misdemeanor or infraction; (c) a case is certified to
the superior court; or (d) an arrest warrant or bench warrant is
issued, naming or describing the defendant with the same degree
of particularity required for an indictment, information, or
complaint. (P.C. 804.) " (1 Witkin & Epstein, Cal. Crim. Law
(3d ed. 2002) 221.)
As explained in detail above, current law also tolls the
limitations period for specified sex offenses committed against
minor victims for up to one year after the victim reports the
crime, as specified. (Penal Code 803, subds. (f), (g) and
(h).)
In addition, current law provides that the statute of
limitations in a criminal proceeding should be tolled for the
period of time that evidentiary attorney work product privilege
issues are litigated in the courts if the criminal
proceeding relies substantially on the evidence being litigated.
(Penal Code 803(j).)
5. What This Bill Would Do: Tolling the Statute of Limitations
As currently in print, this bill would provide the following:
Notwithstanding any other limitation of time
prescribed in this chapter, in any investigation
involving child abuse or neglect, as defined in
Article 2.5 (commencing with Section 11164) of
Chapter 2 of Title 1 of Part 4, where the
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limitation period set forth in this chapter has
not expired, the limitations of time prescribed in
this chapter shall be tolled while litigation
involving grand jury subpoenas or search warrants
issued with respect to the allegations of child
abuse or neglect is pending.
As set forth in Comment 1, however, the author intends to amend
this language. The revisions proposed by the author would
narrow the application of this provision to the sexual offenses
against children set forth in subdivisions (g) and (h), and more
specifically define the period of the tolling.
Last year, the Committee approved the addition of subdivision
(j) of Penal Code section 803, which tolls the statute of
limitations in a criminal proceeding for the period of time that
evidentiary and attorney work product privilege issues are
litigated in the courts if the criminal proceeding relies
substantially on the evidence being litigated. (Penal Code
803(j).) This bill would enact a similar provision for
otherwise time-barred child abuse cases, and would include
within its scope both search warrants and grand jury subpoenas.
SHOULD THE STATUTE OF LIMITATIONS IN SPECIFIED SEXUAL OFFENSE
CASES AGAINST CHILDREN BE TOLLED DURING A PENDING CHALLENGE TO A
GRAND JURY SUBPOENA OR A SEARCH WARRANT, AS SPECIFIED?
6. What This Bill Would Do: Intended Restatements of Current Law
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In addition to the tolling provision explained above, this bill
would insert language "intended as a statement of existing law,
and . . . enacted for the purpose of clarification." This
language asserts the retroactive effect of the statutes of
limitation set forth in paragraphs (g) and (h) of Penal Code
section 803 for child abuse cases where a victim made the
required report to a law enforcement agency after previously
having reported the same crime to a law enforcement agency
before the extended periods authorized by these subdivisions
were enacted in 1994.
Committee counsel is unaware of any published appellate decision
barring a cause of action for the circumstances described in
this language - that is, where a victim made the required report
to
law enforcement a second time after having reported the same
crime previously, before the extended limitations period was
enacted. The sponsor submits, however, that this argument has
been asserted, albeit without success, at the trial level.
The constitutionality of the retroactive application of these
extended limitations periods is now before the United States
Supreme Court on a writ of certiorari. ( Stogner v. California
(Dec. 2, 2002) 154 L. Ed. 2d 514. At issue is whether these
statutes, which retroactively change the statute of limitations
so as to revive a previously-expired cause of action in a
criminal case, violate the Ex Post Facto and Due Process
clauses. The California Supreme Court has held that the
retroactive application of the statute was not barred as a
matter of either federal or state constitutional law. ( People
v. Frazer (1999) 21 Cal.4th 737.)
SHOULD THE LANGUAGE PROPOSED BY THIS BILL BE AMENDED INTO
EXISTING LAW?
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