BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 950 (Torres)
As Amended March 20, 2014
Hearing date: April 1, 2014
Penal Code
MK:mc
BRIBERY: STATUTE OF LIMITATIONS: TOLLING
HISTORY
Source: Author
Prior Legislation: None
Support: California District Attorneys Association (CDAA)
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
SHOULD THE STATUTE OF LIMITATIONS FOR ASKING, RECEIVING, OR AGREEING
TO RECEIVE A BRIBE BY A PUBLIC OFFICIAL BE TOLLED UNTIL THE
DISCOVERY OF THE OFFENSE?
SHOULD THE STATUTE OF LIMITATIONS FOR OFFERING A BRIBE TO A PUBLIC
OFFICIAL BE TOLLED UNTIL THE DISCOVERY OF THE OFFENSE?
PURPOSE
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The purpose of this bill is to toll until the discovery of the
offense the statute of limitations for offering a bribe to a
public official or for asking, receiving, or agreeing to receive
a bribe by a public official.
Existing law provides that every person who gives or offers any
bribe to any executive officer in this state, with intent to
influence him in respect to any act, decision, vote, opinion, or
other proceeding as such officer, is punishable by imprisonment
in the state prison for two, three or four years, and is
disqualified from holding any office in this state. (Penal Code
§ 67.)
Existing law provides that every person who gives or offers as a
bribe to any ministerial officer, employee, or appointee of the
State of California, county or city therein, or political
subdivision thereof, any thing the theft of which would be petty
theft is guilty of a misdemeanor. If the theft of the thing
given or offered would be grand theft, the offense is a felony.
(Penal Code § 67.5.)
Existing law provides that every person who gives or offers to
give a bribe to any member of the Legislature, any member of the
legislative body of a city, county, city and county, school
district, or other special district, or to another person for
the member or attempts by menace, deceit, suppression of truth,
or any corrupt means, to influence a member in giving or
withholding his or her vote, or in not attending the house or
any committee of which he or she is a member is guilty of a
felony. (Penal Code § 85.)
Existing law provides that every person who gives or offers to
give a bribe to any judicial officer, juror, referee,
arbitrator, or umpire, or to any person who may be authorized by
law to hear or determine any question of controversy, with
intent to influence his vote, opinion, or decision upon any
matter or question which is or maybe brought before him for
decision, is a felony. (Penal Code § 92.)
Existing law provides that prosecution for an offense punishable
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by death or life without the possibility of parole, or for
embezzling public money, may be commenced at any time.
(Penal Code § 799.)
Existing law provides that offering of any valuable thing to any
member of the governing board of any school district, with the
intent to influence his action in regard to the granting of any
teacher's certificate, the appointment of any teacher,
superintendent, or other officer or employee, the adoption of
any textbook, or the making of any contract to which the board
of which he is a member is a party, or the acceptance by any
member of the governing board of any valuable thing, with
corrupt intent, is a misdemeanor. (Education Code § 35230.)
Existing law provides that the offering of any valuable thing to
any member of the governing board of any community college
district, with the intent to influence his or her action in
regard to the granting of any instructor's certificate, the
appointment of any instructor, superintendent, or other officer
or employee, the adoption of any textbook, or the making of any
contract to which the board of which he or she is a member is a
party, or the acceptance by any member of the governing board of
any valuable thing, with corrupt intent, is a misdemeanor.
(Education Code
§ 72530.)
Existing law provides that prosecution for an offense punishable
by eight years in prison shall be commenced within six years
after the commission of the offense. (Penal Code § 800.)
Existing law provides that prosecution for an offense punishable
by imprisonment in the state prison shall be commenced within
three years after the commission of the offense. (Penal Code §
801.)
Existing law provides that notwithstanding Penal Code section
801, prosecution for any offense described in Penal Code section
803(c) shall be commenced within four years or after the
discovery of the offense, or within four years after the
completion of the offense whichever is later. (Penal Code §
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801.5.)
Existing law provides that prosecution for an offense not
punishable by death or imprisonment in state prison, or a Penal
Code section 1170(h) felony shall be commenced within one year
after the commission of the offense. (Penal Code § 802.)
Existing law provides that for specified offenses the statute of
limitations does not commence to run until the discovery of the
offense. These offenses include: grand theft; forgery; perjury;
filing false reports; money laundering; conflict of interest;
fraud against an elder; insurance fraud; medical fraud; and
acceptance of a bribe by a public official or a public employee.
(Penal Code § 803.)
This bill would toll the limitation until discovery of an action
for a crime of asking, receiving, or agreeing to receive a bribe
by a public official or a public employee.
This bill would toll the statute of limitations until the
discovery of an offense of giving or offering a bribe to a
public official or a public employee.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
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felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
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The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
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reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Senate Bill 950 tolls the statute of limitations for
giving or offering a bribe to a public official or
public employee.
California's bribery laws are in need of updating. As
local governments struggle to stay out of the red
during challenging economic times and avoid bankruptcy,
California residents are entitled to equip prosecutors
with all necessary charging tools to prevent, pursue
and prosecute the theft of public funds or bribery of
public officials.
Current law establishes statute of limitations for
commencing criminal actions for certain crimes,
including the acceptance of a bribe by a public
official or public employee.
While the separate crimes of giving or offering bribes
and public officials accepting bribes, are both subject
to a three-year statute of limitations pursuant to
Penal Code section 801, the crime of public officials
accepting bribes does not begin to run until the crime
is discovered (Pen. Code § 801 (c) (1)). However,
Section 803(c) (1) does not toll the statute of
limitations for giving or offering a bribe. While both
the crimes of giving or offering bribes and public
officials accepting bribes are often concealed and
equally difficult to discover, only the crime of public
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officials accepting bribes is tolled upon discovery.
SB 950 will strengthen the laws governing bribery of
public officials and help bolster public trust in
government.
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2. The Statute of Limitations Generally; Law Revision Commission
Report
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.)
The Legislature enacted the current statutory scheme regarding
statutes of limitations for crimes in 1984 in response to a
report of the California Law Revision Commission:
The Commission identified various factors to be
considered in drafting a limitations statute. These
factors include: (a) The staleness factor. A person
accused of crime should be protected from having to face
charges based on possibly unreliable evidence and from
losing access to the evidentiary means to defend. (b)
The repose factor. This reflects society's lack of a
desire to prosecute for crimes committed in the distant
past. (c) The motivation factor. This aspect of the
statute imposes a priority among crimes for
investigation and prosecution. (d) The seriousness
factor. The statute of limitations is a grant of
amnesty to a defendant; the more serious the crime, the
less willing society is to grant that amnesty. (e) The
concealment factor. Detection of certain concealed
crimes may be quite difficult and may require long
investigations to identify and prosecute the
perpetrators.
The Commission concluded that a felony limitations
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statute generally should be based on the seriousness of
the crime. Seriousness is easily determined based on
classification of a crime as felony or misdemeanor and
the punishment specified, and a scheme based on
seriousness generally will accommodate the other factors
as well. Also, the simplicity of a limitations period
based on seriousness provides predictability and
promotes uniformity of treatment.<1>
3. Tolling the Statute of Limitations
Generally the statute of limitations starts to run when the
crime was committed. However, the law specifically allows for
the statute of limitations of specified crimes to be tolled
(suspended) until the crime is discovered. Thus, the clock
starts running when the crime was discovered.
Existing law tolls until discovery the statute of limitations
for the acceptance of a bribe by public official or public
employee. The law does not, however, specifically toll the
statute of limitations for asking, receiving, or agreeing to
receive a bribe by a public official or public employee, or for
offering or giving a bribe to a public official or public
employee. This bill provides that the statute of limitations
for asking, receiving, or agreeing to receive a bribe by a
public official or public employee, or offering or giving a
bribe to a public official or public employee is tolled until
the discovery of the offense.
In addition to tolling the statute of limitations, this bill
would extend the statute of limitations for asking, receiving,
or agreeing to a bribe from three years to four years under
Penal Code section 801.5 since these offenses are listed in
Penal Code section 803(c). The statute of limitations for
offering or giving of a bribe to a public official or public
employee would be unchanged and be either three years for the
felony offenses, or one year for the misdemeanor offenses. This
could result in the statute of limitations being different for
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<1> 1 Witkin Cal. Crim. Law Defenses, Section 214 (3rd Ed.
2004), citing 17 Cal. Law Rev. Com. Reports, pp.308-314.
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the giver and the receiver of the bribe.
SHOULD THE STATUTE OF LIMITATIONS BE TOLLED UNTIL DISCOVERY FOR
ASKING, RECEIVING, OR AGREEING TO RECEIVE A BRIBE, AND FOR
OFFERING OR GIVING A BRIBE TO A PUBLIC OFFICIAL OR PUBLIC
EMPLOYEE?
4. Impact of the Bill on Corrections
By expanding the statute of limitations in cases, this bill
could result in someone being prosecuted for a felony who could
not have been prosecuted for that felony without this bill.
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