BILL ANALYSIS
AB 261
Page 1
Date of Hearing: March 27, 2007
Counsel Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 261 (Lieber) - As Introduced: February 5, 2007
SUMMARY : Eliminates the statute of limitations for various
sex offenses including rape, sodomy, lewd and lascivious acts
with a child under the age of 14, forcible oral copulation,
continuous sexual abuse of a child, sexual penetration and
fleeing the state with the intent to avoid prosecution for sex
offense, as specified.
EXISTING LAW :
1)Provides that 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 Section 800.)
2)Provides that prosecution for crimes punishable by
imprisonment in the state prison must be commenced within
three years after commission of the offense. (Penal Code
Section 801.)
3)States notwithstanding any other limitation of time prescribed
in this chapter, prosecution for a violation of production of
child pornography shall commence within 10 years of the date
of production of the pornographic material. (Penal Code
Section 801.2)
4)Provides that prosecution for specified offenses punishable by
imprisonment in state prison relating to fraud, breach of
fiduciary duty, theft or embezzlement upon an elder or
dependent adult, or official misconduct must be commenced
within four years after discovery of the commission of the
offense or within four years after the completion of the
offense, whichever is later. [Penal Code Sections 801.5 and
803(c).]
5)Provides that prosecution for specified crimes against elder
AB 261
Page 2
or dependent adults, except in theft or embezzlement cases,
may be filed at any time within five years from the date of
occurrence of such offense. (Penal Code Section 801.6.)
6)Provides that a criminal complaint may 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 applicable limitation
period must have expired and the alleged crime must have
involved substantial sexual conduct corroborated by evidence,
as specified. [Penal Code Section 803 (f)(1) and (h)(1).]
7)Provides notwithstanding any other limitation of time
described in this chapter, a criminal complaint may be filed
within one year of the date on which the identity of the
suspect is conclusively established by deoxyribonucleic acid
(DNA) testing if both of the following conditions are met:
a) The crime is one that is described in the sex offense
registration statute; and,
b) The offense was committed prior to January 1, 2001 and
biological evidence collected in connection with the
offense is analyzed for DNA type no later than January 1,
2004 or the offense was committed on or after January 1,
2001 and biological evidence collected in connection with
the offense is analyzed for DNA type no later than two
years from the date of the offense. [Penal Code Section
803(g)(1)(A)(B).]
8)Provides that notwithstanding any other limitation of time
described in this chapter, prosecution for a specified felony
sex offense that is alleged to have been committed when the
victim was under the age of 18 years may be commenced any time
prior to the victim's 28th birthday. [Pena Code Section
801.1(a).]
9)Provides that notwithstanding any other limitation of time
described in this chapter, if existing law does not apply,
prosecution for a felony registerable sex offense shall be
commenced within 10 years after commission of the offense.
[Penal Code Section 801.1(b).]
FISCAL EFFECT : Unknown
AB 261
Page 3
COMMENTS :
1)Author's Statement : According to the author, "This bill would
eliminate the statute of limitations for serious sexual
assault offenses, including rape, child molestation,
continuous sexual abuse of a child, and fleeing California
with the intent to avoid prosecution for a sex offense.
Several states have already eliminated the statute of
limitations for the crime of rape and the most serious forms
of sexual assault. California, however, maintains a variety
of statute of limitations for sex crimes depending on the
offense. For crimes punishable by life imprisonment or death,
prosecution may commence at any time. For felony sex offenses
requiring sex offender registration, prosecution may commence
within 10 years.
"California law also allows for an exception to the statute of
limitations if DNA evidence is conclusively established AND if
the DNA is analyzed no later than two years from the date of
the offense.
"Perpetrators should not be able to benefit from a time limit,
and victims should not be penalized for a reporting delay
rooted in the trauma of the crime itself. Additionally, the
many exceptions and different limitations on each sex crime
create the potential for confusion or inconsistent application
of the law - to the detriment of the victims.
"Eliminating the statute of limitations on rape would not likely
create a significant increase in charges pressed since the
district attorney would need very compelling evidence for a
case filed many years after the crime in order to prove guilt.
"The seriousness of these crimes dictates that the 10-year
statute of limitations on rape and other sexual offenses be
removed. The emotional suffering of victims and the danger to
society posed by these criminals does not end when the current
statute of limitations expires. This bill seeks to protect and
vindicate those victims who do not or cannot come forward
within the currently allotted time limit.
2)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
AB 261
Page 4
information, filing a complaint, certifying a case to superior
court, or issuing an arrest or bench warrant. (Penal Code
Section 804.) If prosecution is not commenced within the
applicable period of limitation, it 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.]
3)Public Policy Reasoning Behind Statutes of Limitation :
Criminal statutes of limitations are laws that limit the time
during which a prosecution can be commenced. These statutes
have been in operation for over 350 years and are deeply
rooted in the American legal system. There are several
rationales underlying statutes of limitations. First, they
ensure that prosecutions are based upon reasonably fresh
evidence - the idea being that over time memories fade,
witnesses die or leave the area, and physical evidence becomes
more difficult to obtain, identify or preserve. In short, the
possibility of erroneous conviction is minimized when
prosecution is prompt. Second, statutes of limitations
encourage law enforcement officials to investigate suspected
criminal activity in a timely fashion. In addition, it is
thought that the statute of limitations may reduce the
possibility of blackmail based on threats to disclose
information to prosecutors or law enforcement officials.
Another rationale is that as time goes by, the likelihood
increases that an offender has reformed, making punishment
less necessary. In addition, society's retributive impulse
may lessen over time, making punishment less desirable.
Finally, there is the thought that statutes of limitations
provide an overall sense of security and stability to human
affairs. [Lauren Kerns, "Incorporating Tolling Provisions
into Sex Crimes Statute of Limitations", 13 Temple Policy and
Civil Rights Law Review, 325, 327; internal citation omitted.]
In 1984, the California Law Revision Commission published a
series of recommendations to revise the statute of
limitations. The impetus for reform derived from numerous
changes made to the statute by the Legislature. There were 11
legislative enactments amending the felony statute of
limitations in 14 years. The Commission commented, "This
simple scheme has been made complex by numerous modifications
. . . the result of this development is that the California
AB 261
Page 5
law is complex and filled with inconsistencies."
4)Case Law on the Statute of Limitations : Similar assessments
of the purpose of statute of limitations appear in case law.
The United States Supreme Court has stated that statutes of
limitations are the primary guarantee against bringing overly
stale criminal charges. [ United States v. Ewell (1966) 383
U.S. 116, 122, 15 L.Ed. 2d 627, 86 S.Ct. 773.] There is a
measure of predictability provided by specifying a limit
beyond which there is an irrebuttable presumption that a
defendant's right to a fair trial would be prejudiced. Such
laws reflect legislative assessments of relative interests of
the State and the defendant in administering and receiving
justice. The California Supreme Court in People v. Zamora
(1976) 18 Cal. 3d 538, 547 commented that adopting a period of
limitations represents a legislative recognition that for all;
but for the most serious of offenses (such as murder and
aggravated forms of kidnapping), a never-ending threat of
prosecution is more detrimental to the functioning of a
civilized society than it is beneficial.
In Stogner v. California (2003) 539 U.S. 607, the court ruled
that application of a new state law permitting resurrection of
otherwise time-barred criminal prosecutions violated the ex
post facto clause of the United States Constitution. The
court stated an otherwise lapsed statute of limitation may not
be revived for offenses that may have been committed years
before. The State may not retrospectively prosecute cases
where the statute of limitations has expired. The State may
only apply new rules related to tolling statutes of
limitations to conduct committed after the law is passed. In
Stogner , the court reiterated its prior statements regarding
the underlying purpose of the statute of limitation: "A
statute of limitations reflects a legislative judgment that,
after a certain time, no quantum of evidence is sufficient to
convict. And that judgment typically rests, in large part,
upon evidentiary concerns - for example, concern that the
passage of time has eroded memories or made witnesses or other
evidence unavailable." The court stated that the law reviving
tolled statutes of limitation deprives the defendant of the
"fair warning" that might have led him or her to preserve
exculpatory evidence, and warned that "a Constitution that
permits such an extension by allowing legislatures to pick and
choose when to act retroactively, risks both arbitrary and
potentially vindictive legislation."
AB 261
Page 6
The Stogner Court also noted that policy judgments on statutes
of limitations typically rest upon evidentiary concerns; for
example, concern that the passage of time has eroded memories
or made witnesses or other evidence unavailable. As the court
pointed out, without knowing of the possibility that he or she
may be prosecuted, a potential defendant may discard
exculpatory evidence which he or she certainly would have
maintained had he or she known a criminal prosecution was
looming in the distant future. Further, witnesses may be
unavailable or may be deceased by the time of the prosecution.
5)Statutes of Limitations under Current Law : The amount of time
a prosecuting agency may charge an alleged defendant varies
based on the crime. A misdemeanor offense must be charged
within one year of the crime. Felonies generally require
prosecution within three years, although there are exceptions.
(Penal Code Section 801.) Offenses that may be sentenced to
more than eight years in prison must be charged within six
years. (Penal Code Section 800.) Offenses punishable by
death or life imprisonment and embezzlement of public money
may be prosecuted at any time. There is no statute of
limitations for those offenses. (Penal Code Section 799). The
most common example is murder.
6)Statute of Limitations under Current Law for Sex Offenses :
Sex offenses have various statutes of limitations depending on
the specific facts and certain offenses. A criminal complaint
may be filed within one year of the date of a report to law
enforcement by any person who, while under the age of 18, was
the victim of rape, sodomy, child molestation, forcible oral
copulation, continuous sexual abuse of a child, sexual
penetration and fleeing the state with the intent to avoid
prosecution for a specified sex offense. However, the
existing statute of limitations must have expired, the crime
must have involved substantial sexual conduct and there must
be independent evidence to corroborate the victim's
allegations. If the victim is 21 years of age or older at the
time of the report, the independent evidence shall clearly and
convincingly corroborate the victim's allegations. [Penal
Code Section 803(f)(1) to (3).]
A criminal complaint may also be filed for the above-mentioned
sex offenses any time before the victim's 28th birthday when
the offense is alleged to have occurred when the victim was
AB 261
Page 7
under the age of 18. Also, if that time period has elapsed,
any prosecution for a felony registerable sex offense may
commence 10 years after the date of commission. [Penal Code
Section 801.1(a) to (b).]
DNA evidence in specified sex offense cases may also toll the
statute of limitations. A criminal complaint may be filed
within one year of the time in which a suspect is conclusively
identified by DNA. [Penal Code Section 803(g)(1).]
7)Is Current Law Sufficient to Allow for Prosecutions in Sex
Offense Cases Given the Value of Statute of Limitations ? As
noted above, there are several exceptions to the statute of
limitations for the sex offenses specified in this bill. Most
sex offenses are punishable by a maximum term of eight years;
hence, the first opportunity the State has to file a complaint
for a sex offense is six years from the date of the offense.
If that period passes, prosecution for any felony sex offense
may commence 10 years from when the crime is committed. If
that period passes, a criminal complaint for the crimes listed
in this bill may be filed within one year of the date a person
reports the crime to the police if the offense allegedly
occurred before the victim turned 18. If that period lapses,
a criminal complaint may also be filed for the above mentioned
sex offenses any time before the victim's 28th birthday if the
alleged offense occurred before the age of 18. If that period
passes, a criminal complaint for any felony sex offense may be
commenced one year after a suspect has been conclusively
identified by DNA regardless of when the offense originally
occurred. There are several opportunities to commence
prosecution for sex crimes. Moreover, there is a strong
public policy against eliminating the statute of limitations.
Memories fade as time passes. Evidence that might have been
gathered by the police is lost. Sex crimes are often based on
witness and/or victim testimony and such testimony is most
reliable soon after the crime is committed. In passing these
exceptions, the Legislature has sought to balance the victim's
rights with the rights of the accused. Fairness and due
process demand prosecution be commenced in a reasonable time
so the accused may be able to gather evidence to prove his or
her innocence. It seems a rejection of firmly rooted public
policy to abandon the statute of limitations all together in
these cases when several exceptions exist to ensure
prosecution.
AB 261
Page 8
8)Arguments in Support : According to Crime Victims United ,
"Often times, a victim is unable to come forward until the
time in which he or she no longer lives under the offender's
roof or control, he or she has started living independently,
or until he or she has the psychological strength to confront
their abuser. Without a fair opportunity and time frame to
prosecute, crimes go unpunished, and perpetrators remain free
to continue to victimize. Far too many adults and children
continue to live in fear of past abuses, many times from those
that should have loved and protect them. We share the same
goal as the Assembly member of eradicating the ability for sex
offenders to victimize additional individuals, cause terror in
California communities and homes, and get away without
prosecution due to the inadequate time frames in which to do
so."
9)Arguments in Opposition :
a) California Attorneys for Criminal Justice , ""The statute
of limitations allowing delayed prosecution of sex offenses
is already extremely permissive in California. People can
come in decades after conduct they allege has occurred and
have someone prosecuted based on, now much discredited,
claims of repressed memory. There are also provisions for
prosecution based on recently discovered DNA evidence
which, at least, has some prospect of corroboration or
reliability. There is no need to enact this bill, which
would simply remove any limitation and allow people,
whatever their agenda, to come in and accuse an individual
20, 30, 40, 50 or more years later.
"The obvious reason for statutes of limitations is to
preserve the rights of people not to have to live with the
concern that they may have to defend against allegations to
which time has made defense impossible. This bill does not
require any excuse for late reporting or excuse for late
prosecution. It just makes people, particularly those in
the pubic eye or those who are particularly susceptible to
unfounded claims, vulnerable to anyone with any agenda -
and it makes them vulnerable as long as they live. Since
there is no requirement of corroboration, it makes them
vulnerable to anyone they have ever known (and even those
they have never known) who might have a rational or
irrational reason to claim that a sex offense occurred.
AB 261
Page 9
"By amending Penal Code Section 799, this bill makes the
concurrent repeal of Penal Code Section 803(f) necessary.
Penal Code Section 803(f) provided minimal, but still
important, safeguards that, under this bill, would be wiped
out. There would be no need to show the excusable
circumstances of a late report or a requirement of
substantial sexual conduct or admissible corroborating
evidence. These minimal protections are presently required
and were included in the legislation expanding the statue
of limitations under 803(f) [at the time 803(g)] to try to
ensure some protection against fabricated charges or, at
least, to give the accused some chance to defend against
false charges.
"These cases are not like murder cases, which generally
include some physical evidence, e.g., a body, means of
death, a crime scene investigation, witnesses who were
interviewed at the time and, generally, some corroboration.
Certainly the lapse of time can make defense of such a
murder charge difficult but, at least, the events were
generally investigated and documented at the time. Sex
cases can simply involve a new allegation that something
happened decades ago that was never reported, there was no
crime scene investigation, no witnesses interviewed and no
corroboration. It is now a complaining witness saying
something happened in private. It would be almost
impossible to prove a negative under these circumstances
and, to the extent the accused might not have even been in
the location of the alleged offense, it would be almost
impossible to prove he or she was elsewhere.
"It is always tempting to strip away protections with the
sincere desire to make it easier to catch the guilty. The
problem is that when our collective rights are taken away
in the name of prosecuting the guilty, it is eventually the
innocent who pay the price. The stories of the wrongly
convicted have recently been heard because DNA testing and
groups like the School of Journalism at Northwestern
University and the Innocence Project. They have made these
stories possible by demonstrating the actual innocence of
hundreds of men and women who would otherwise have remained
in prison. But these stories should cause us to strengthen
our basic procedural protections, like the statute of
limitations, not weaken them or remove them entirely as
this bill would.
AB 261
Page 10
"Finally, we would also note that the California prison
system is currently in a crisis mode regarding
overcrowding. Prison population is more than double our
prison capacity. This proposed legislation will increase
the prison population. Worse than simply exacerbating the
already overcrowded prison institutions, it will populate
them with innocent people who are convicted only because
the passage of time has made their defense impossible.
b) California Public Defenders Association states, "This
bill would cut any safeguards currently provided in section
803 in terms of corroboration or charges being filed within
one year of a complaint to law enforcement. CPDA opposes
eliminating the statute of limitations primarily because it
would in certain circumstances dramatically and negatively
impact a defendant's ability to get a fair trial. The
statute of limitations protects person accused of crime
from having to face charges based on evidence that may be
unreliable and from losing access to the evidentiary means
to defend against the accusation. With the passage of
time, memory fades, witnesses die or otherwise become
unavailable, and physical evidence becomes unobtainable or
contaminated. Given these difficulties that occur because
of the passage of time, how can we ensure that trials for
these offenses are conducted fairly? In our view, the
limitations laws serve that purpose by encouraging the
government to prosecute cases in a timely manner and,
therefore, should not be eliminated."
10)Related Legislation :
a) AB 718 (Fuller) deletes the timeframe in which DNA
evidence must be tested after it is collected in order to
preserve the statute of limitations in sex offense cases,
as specified. AB 718 is scheduled to be heard by this
Committee on Public Safety today.
b) AB 235 (Tran) amends the statute of limitations for
production of child pornography, as specified, to 10 years
after the date the production was discovered or reasonably
could have been discovered and tolls the statute of
limitations on the crime of surreptitiously taping of
another, as specified, to one year after the date the
material is discovered or reasonable could have been
AB 261
Page 11
discovered. AB 235 is scheduled to be heard by this
Committee today.
c) SB 256 (Alquist) proposes the same language as this
bill. SB 256 is set for hearing in the Senate Committee on
Public Safety on the same day this bill will be heard by
this Committee.
11)Prior Legislation :
a) SB 261 (Speier), of the 2005-06 Legislative Session,
would have eliminated the statute of limitations for
specified sex offenses in a manner similar to this bill.
SB 261 failed passage in the Senate Committee on Public
Safety.
b) AB 2534 (Horton), of the 2005-06 Legislative Session,
would have added to the list of offenses which extend the
statute of limitations by allowing the filing of a criminal
complaint within one year of the identification of a
suspect conclusively established as a result of DNA
testing. The added offenses would have included arson,
robbery or bank robbery, kidnapping, attempted murder, any
felony in which the defendant inflicts great bodily injury
on any person other than an accomplice, and any felony in
which the defendant personally uses a firearm. AB 2534
failed passage in this Committee.
c) AB 2709 (Tran), of the 2005-06 Legislative Session,
would have added production of child pornography and
surreptitiously taping a person for the purposes of sexual
gratification to the list of offenses in which the statute
of limitations may be tolled until the discovery of the
crime. AB 2702 was never heard by the Senate
Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
California Peace Officers' Association
California Police Chiefs Association
California Protective Parents Association
AB 261
Page 12
Crime Victims United
Peace Officers Research Association of California
Prevent Child Abuse California
Two private citizens
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744