Amended in Assembly August 11, 2016

Amended in Senate March 31, 2016

Senate BillNo. 813


Introduced by Senator Leyva

(Principal coauthor: Senator Pavley)

(Principal coauthors: Assembly Members Burke, Gipson, and Williams)

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(Coauthors: Senators Anderson, Beall, Berryhill, Block, Cannella, Fuller, Mitchell, Moorlach, Nielsen, and Roth)

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(Coauthors: Assembly Members Chávez and Lackey)

January 4, 2016


An act to amend Sections 799, 801.1, and 803 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 813, as amended, Leyva. Sex offenses: statute of limitations.

Existing law generally requires that the prosecution of a felony sex offense be commenced within 10 years after the commission of the offense. Under existing law, prosecution for the crimes of rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child, oral copulation, and sexual penetration, if committed against a victim who was under 18 years of age, may be commenced at any time prior to the victim’s 40th birthday. Existing law allows prosecution of an offense punishable by death or by imprisonment for life or for life without the possibility of parole, or for the embezzlement of public money, to be commenced at any time.

This bill would allow the prosecution of rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child, oral copulation, and sexual penetration, that are committed under certain circumstances, as specified, to be commenced at any time. The bill would apply to these crimes committed after January 1, 2017, and to crimes for which the statute of limitations that was in effect prior to January 1, 2017, has not run as of January 1, 2017.

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This bill would incorporate changes to Section 803 of the Penal Code proposed by both this bill and SB 1088, which would become operative only if both bills are enacted and become effective on or before January 1, 2017, and this bill is chaptered last.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 799 of the Penal Code is amended to
2read:

3

799.  

(a) Prosecution for an offense punishable by death or by
4imprisonment in the state prison for life or for life without the
5possibility of parole, or for the embezzlement of public money,
6may be commenced at any time.

7(b) (1) Prosecution for a felony offense described in paragraph
8(1), (2), (3), (4), (6) or (7) of subdivision (a) of Section 261,
9paragraph (1), (2), (3), (4), or (5) of subdivision (a) of Section 262,
10Section 264.1, paragraph (2) or (3) of subdivision (c) of, or
11subdivision (d), (f), (g), (i), or (k) of, Section 286, subdivision (a)
12of Section 288 involving substantial sexual conduct as defined by
13in subdivision (b) of Section 1203.066, subdivision (b) of Section
14288, Section 288.5, paragraph (2) or (3) of subdivision (c) of, or
15subdivision (d), (f), (g), (i), or (k) of, Section 288a, or subdivision
16(a), (b), (d), (e), or (g) of Section 289 may be commenced at any
17time.

18(2) This subdivision applies to crimes that were committed on
19or after January 1, 2017, and to crimes for which the statute of
20limitations that was in effect prior to January 1, 2017, has not run
21as of January 1, 2017.

22(c) This section shall apply in any case in which the defendant
23was a minor at the time of the commission of the offense and the
24prosecuting attorney could have petitioned the court for a fitness
25hearing pursuant to Section 707 of the Welfare and Institutions
26Code.

27

SEC. 2.  

Section 801.1 of the Penal Code is amended to read:

P3    1

801.1.  

(a) (1) Notwithstanding any other limitation of time
2described in this chapter, prosecution for a felony offense described
3in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5,
4as enacted by Chapter 293 of the Statutes of 1991 relating to
5penetration by an unknown object, that is alleged to have been
6committed when the victim was under 18 years of age, may be
7commenced any time prior to the victim’s 40th birthday.

8(2) Paragraph (1) shall only apply to crimes that were committed
9on or after January 1, 2015, or for which the statute of limitations
10that was in effect prior to January 1, 2015, has not run as of January
111, 2015.

12(b) Notwithstanding any other limitation of time described in
13this chapter, if either subdivision (a) of this section or subdivision
14(b) of Section 799 does not apply, prosecution for a felony offense
15described in subdivision (c) of Section 290 shall be commenced
16within 10 years after commission of the offense.

17

SEC. 3.  

Section 803 of the Penal Code is amended to read:

18

803.  

(a) Except as provided in this section, a limitation of time
19prescribed in this chapter is not tolled or extended for any reason.

20(b) No time during which prosecution of the same person for
21the same conduct is pending in a court of this state is a part of a
22limitation of time prescribed in this chapter.

23(c) A limitation of time prescribed in this chapter does not
24commence to run until the discovery of an offense described in
25this subdivision. This subdivision applies to an offense punishable
26by imprisonment in the state prison or imprisonment pursuant to
27subdivision (h) of Section 1170, a material element of which is
28fraud or breach of a fiduciary obligation, the commission of the
29crimes of theft or embezzlement upon an elder or dependent adult,
30or the basis of which is misconduct in office by a public officer,
31employee, or appointee, including, but not limited to, the following
32offenses:

33(1) Grand theft of any type, forgery, falsification of public
34records, or acceptance of, or asking, receiving, or agreeing to
35receive, a bribe, by a public official or a public employee,
36including, but not limited to, a violation of Section 68, 86, or 93.

37(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.

38(3) A violation of Section 25540, of any type, or Section 25541
39of the Corporations Code.

P4    1(4) A violation of Section 1090 or 27443 of the Government
2Code.

3(5) Felony welfare fraud or Medi-Cal fraud in violation of
4Section 11483 or 14107 of the Welfare and Institutions Code.

5(6) Felony insurance fraud in violation of Section 548 or 550
6of this code or former Section 1871.1, or Section 1871.4, of the
7Insurance Code.

8(7) A violation of Section 580, 581, 582, 583, or 584 of the
9Business and Professions Code.

10(8) A violation of Section 22430 of the Business and Professions
11Code.

12(9) A violation of Section 103800 of the Health and Safety
13Code.

14(10) A violation of Section 529a.

15(11) A violation of subdivision (d) or (e) of Section 368.

16(d) If the defendant is out of the state when or after the offense
17is committed, the prosecution may be commenced as provided in
18Section 804 within the limitations of time prescribed by this
19chapter, and no time up to a maximum of three years during which
20the defendant is not within the state shall be a part of those
21limitations.

22(e) A limitation of time prescribed in this chapter does not
23commence to run until the offense has been discovered, or could
24have reasonably been discovered, with regard to offenses under
25Division 7 (commencing with Section 13000) of the Water Code,
26under Chapter 6.5 (commencing with Section 25100) of, Chapter
276.7 (commencing with Section 25280) of, or Chapter 6.8
28(commencing with Section 25300) of, Division 20 of, or Part 4
29(commencing with Section 41500) of Division 26 of, the Health
30and Safety Code, or under Section 386, or offenses under Chapter
315 (commencing with Section 2000) of Division 2 of, Chapter 9
32(commencing with Section 4000) of Division 2 of, Section 6126
33of, Chapter 10 (commencing with Section 7301) of Division 3 of,
34or Chapter 19.5 (commencing with Section 22440) of Division 8
35of, the Business and Professions Code.

36(f) (1) Notwithstanding any other limitation of time described
37in this chapter, if subdivision (b) of Section 799 does not apply, a
38criminal complaint may be filed within one year of the date of a
39report to a California law enforcement agency by a person of any
40age alleging that he or she, while under 18 years of age, was the
P5    1victim of a crime described in Section 261, 286, 288, 288a, 288.5,
2or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes
3of 1991 relating to penetration by an unknown object.

4(2) This subdivision applies only if all of the following occur:

5(A) The limitation period specified in Section 800, 801, or 801.1,
6whichever is later, has expired.

7(B) The crime involved substantial sexual conduct, as described
8in subdivision (b) of Section 1203.066, excluding masturbation
9that is not mutual.

10(C) There is independent evidence that corroborates the victim’s
11allegation. If the victim was 21 years of age or older at the time
12of the report, the independent evidence shall clearly and
13convincingly corroborate the victim’s allegation.

14(3) No evidence may be used to corroborate the victim’s
15allegation that otherwise would be inadmissible during trial.
16Independent evidence does not include the opinions of mental
17health professionals.

18(4) (A) In a criminal investigation involving any of the crimes
19listed in paragraph (1) committed against a child, when the
20applicable limitations period has not expired, that period shall be
21tolled from the time a party initiates litigation challenging a grand
22jury subpoena until the end of the litigation, including any
23associated writ or appellate proceeding, or until the final disclosure
24of evidence to the investigating or prosecuting agency, if that
25disclosure is ordered pursuant to the subpoena after the litigation.

26(B) Nothing in this subdivision affects the definition or
27applicability of any evidentiary privilege.

28(C) This subdivision shall not apply if a court finds that the
29grand jury subpoena was issued or caused to be issued in bad faith.

30(g) (1) Notwithstanding any other limitation of time described
31in this chapter, a criminal complaint may be filed within one year
32of the date on which the identity of the suspect is conclusively
33established by DNA testing, if both of the following conditions
34are met:

35(A) The crime is one that is described in subdivision (c) of
36Section 290.

37(B) The offense was committed prior to January 1, 2001, and
38biological evidence collected in connection with the offense is
39analyzed for DNA type no later than January 1, 2004, or the offense
40was committed on or after January 1, 2001, and biological evidence
P6    1collected in connection with the offense is analyzed for DNA type
2no later than two years from the date of the offense.

3(2) For purposes of this section, “DNA” means deoxyribonucleic
4acid.

5(h) For any crime, the proof of which depends substantially
6upon evidence that was seized under a warrant, but which is
7unavailable to the prosecuting authority under the procedures
8described in People v. Superior Court (Laff) (2001) 25 Cal.4th
9703, People v. Superior Court (Bauman & Rose) (1995) 37
10Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
11claims of evidentiary privilege or attorney work product, the
12limitation of time prescribed in this chapter shall be tolled from
13the time of the seizure until final disclosure of the evidence to the
14prosecuting authority. Nothing in this section otherwise affects
15the definition or applicability of any evidentiary privilege or
16attorney work product.

17(i) Notwithstanding any other limitation of time described in
18this chapter, a criminal complaint may be filed within one year of
19the date on which a hidden recording is discovered related to a
20violation of paragraph (2) or (3) of subdivision (j) of Section 647.

21(j) Notwithstanding any other limitation of time described in
22this chapter, if a person flees the scene of an accident that caused
23death or permanent, serious injury, as defined in subdivision (d)
24of Section 20001 of the Vehicle Code, a criminal complaint brought
25pursuant to paragraph (2) of subdivision (b) of Section 20001 of
26the Vehicle Code may be filed within the applicable time period
27 described in Section 801 or 802 or one year after the person is
28initially identified by law enforcement as a suspect in the
29commission of the offense, whichever is later, but in no case later
30than six years after the commission of the offense.

31(k) Notwithstanding any other limitation of time described in
32this chapter, if a person flees the scene of an accident, a criminal
33complaint brought pursuant to paragraph (1) or (2) of subdivision
34(c) of Section 192 may be filed within the applicable time period
35described in Section 801 or 802, or one year after the person is
36initially identified by law enforcement as a suspect in the
37commission of that offense, whichever is later, but in no case later
38than six years after the commission of the offense.

39(l) A limitation of time prescribed in this chapter does not
40commence to run until the discovery of an offense involving the
P7    1offering or giving of a bribe to a public official or public employee,
2including, but not limited to, a violation of Section 67, 67.5, 85,
392, or 165, or Section 35230 or 72530 of the Education Code.

4begin insert

begin insertSEC. 3.5.end insert  

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begin insertSection 803 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

5

803.  

(a) Except as provided in this section, a limitation of time
6prescribed in this chapter is not tolled or extended for any reason.

7(b) No time during which prosecution of the same person for
8the same conduct is pending in a court of this state is a part of a
9limitation of time prescribed in this chapter.

10(c) A limitation of time prescribed in this chapter does not
11commence to run until the discovery of an offense described in
12this subdivision. This subdivision applies to an offense punishable
13by imprisonment in the state prison or imprisonment pursuant to
14subdivision (h) of Section 1170, a material element of which is
15fraud or breach of a fiduciary obligation, the commission of the
16crimes of theft or embezzlement upon an elder or dependent adult,
17or the basis of which is misconduct in office by a public officer,
18employee, or appointee, including, but not limited to, the following
19offenses:

20(1) Grand theft of any type, forgery, falsification of public
21records, or acceptance of, or asking, receiving, or agreeing to
22receive, a bribe, by a public official or a public employee,
23including, but not limited to, a violation of Section 68, 86, or 93.

24(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.

25(3) A violation of Section 25540, of any type, or Section 25541
26of the Corporations Code.

27(4) A violation of Section 1090 or 27443 of the Government
28Code.

29(5) Felony welfare fraud or Medi-Cal fraud in violation of
30Section 11483 or 14107 of the Welfare and Institutions Code.

31(6) Felony insurance fraud in violation of Section 548 or 550
32of this code or former Section 1871.1, or Section 1871.4, of the
33Insurance Code.

34(7) A violation of Section 580, 581, 582, 583, or 584 of the
35Business and Professions Code.

36(8) A violation of Section 22430 of the Business and Professions
37Code.

38(9) A violation of Section 103800 of the Health and Safety
39Code.

40(10) A violation of Section 529a.

P8    1(11) A violation of subdivision (d) or (e) of Section 368.

2(d) If the defendant is out of the state when or after the offense
3is committed, the prosecution may be commenced as provided in
4Section 804 within the limitations of time prescribed by this
5chapter, and no time up to a maximum of three years during which
6the defendant is not within the state shall be a part of those
7limitations.

8(e) A limitation of time prescribed in this chapter does not
9commence to run until the offense has been discovered, or could
10have reasonably been discovered, with regard to offenses under
11Division 7 (commencing with Section 13000) of the Water Code,
12under Chapter 6.5 (commencing with Section 25100) of, Chapter
136.7 (commencing with Section 25280) of, or Chapter 6.8
14(commencing with Section 25300) of, Division 20 of, or Part 4
15(commencing with Section 41500) of Division 26 of, the Health
16and Safety Code, or under Section 386, or offenses under Chapter
175 (commencing with Section 2000) of Division 2 of, Chapter 9
18(commencing with Section 4000) of Division 2 of, Section 6126
19of, Chapter 10 (commencing with Section 7301) of Division 3 of,
20or Chapter 19.5 (commencing with Section 22440) of Division 8
21of, the Business and Professions Code.

22(f) (1) Notwithstanding any other limitation of time described
23in this chapter,begin insert if subdivision (b) of Section 799 does not apply,end insert a
24criminal complaint may be filed within one year of the date of a
25report to a California law enforcement agency by a person of any
26age alleging that he or she, while under 18 years of age, was the
27victim of a crime described in Section 261, 286, 288, 288a, 288.5,
28or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes
29of 1991 relating to penetration by an unknown object.

30(2) This subdivision applies only if all of the following occur:

31(A) The limitation period specified in Section 800, 801, or 801.1,
32whichever is later, has expired.

33(B) The crime involved substantial sexual conduct, as described
34in subdivision (b) of Section 1203.066, excluding masturbation
35that is not mutual.

36(C) There is independent evidence that corroborates the victim’s
37allegation. If the victim was 21 years of age or older at the time
38of the report, the independent evidence shall clearly and
39convincingly corroborate the victim’s allegation.

P9    1(3) No evidence may be used to corroborate the victim’s
2allegation that otherwise would be inadmissible during trial.
3Independent evidence does not include the opinions of mental
4health professionals.

5(4) (A) In a criminal investigation involving any of the crimes
6listed in paragraph (1) committed against a child, when the
7applicable limitations period has not expired, that period shall be
8tolled from the time a party initiates litigation challenging a grand
9jury subpoena until the end of the litigation, including any
10associated writ or appellate proceeding, or until the final disclosure
11of evidence to the investigating or prosecuting agency, if that
12disclosure is ordered pursuant to the subpoena after the litigation.

13(B) Nothing in this subdivision affects the definition or
14applicability of any evidentiary privilege.

15(C) This subdivision shall not apply if a court finds that the
16grand jury subpoena was issued or caused to be issued in bad faith.

17(g) (1) Notwithstanding any other limitation of time described
18in this chapter, a criminal complaint may be filed within one year
19of the date on which the identity of the suspect is conclusively
20established by DNA testing, if both of the following conditions
21are met:

22(A) The crime is one that is described in subdivision (c) of
23Section 290.

24(B) The offense was committed prior to January 1, 2001, and
25biological evidence collected in connection with the offense is
26analyzed for DNA type no later than January 1, 2004, or the offense
27was committed on or after January 1, 2001, and biological evidence
28collected in connection with the offense is analyzed for DNA type
29no later than two years from the date of the offense.

30(2) For purposes of this section, “DNA” means deoxyribonucleic
31acid.

32(h) For any crime, the proof of which depends substantially
33upon evidence that was seized under a warrant, but which is
34unavailable to the prosecuting authority under the procedures
35described in People v. Superior Court (Laff) (2001) 25 Cal.4th
36703, People v. Superior Court (Bauman & Rose) (1995) 37
37Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
38claims of evidentiary privilege or attorney work product, the
39limitation of time prescribed in this chapter shall be tolled from
40the time of the seizure until final disclosure of the evidence to the
P10   1prosecuting authority. Nothing in this section otherwise affects
2the definition or applicability of any evidentiary privilege or
3attorney work product.

4(i) Notwithstanding any other limitation of time described in
5this chapter, a criminal complaint may be filed within one year of
6the date on which a hidden recording is discovered related to a
7violation of paragraph (2) or (3) of subdivision (j) of Section 647.

8(j) Notwithstanding any other limitation of time described in
9this chapter, if a person flees the scene of an accident that caused
10death or permanent, serious injury, as defined in subdivision (d)
11of Section 20001 of the Vehicle Code, a criminal complaint brought
12pursuant to paragraph (2) of subdivision (b) of Section 20001 of
13the Vehicle Code may be filed within the applicable time period
14described in Section 801 or 802 or one year after the person is
15initially identified by law enforcement as a suspect in the
16commission of the offense, whichever is later, but in no case later
17than six years after the commission of the offense.

18(k) Notwithstanding any other limitation of time described in
19this chapter, if a person flees the scene of an accident, a criminal
20complaint brought pursuant to paragraph (1) or (2) of subdivision
21(c) of Section 192 may be filed within the applicable time period
22described in Section 801 or 802, or one year after the person is
23initially identified by law enforcement as a suspect in the
24commission of that offense, whichever is later, but in no case later
25than six years after the commission of the offense.

26(l) A limitation of time prescribed in this chapter does not
27commence to run until the discovery of an offense involving the
28offering or giving of a bribe to a public official or public employee,
29including, but not limited to, a violation of Section 67, 67.5, 85,
3092, or 165, or Section 35230 or 72530 of the Education Code.

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31
(m) Notwithstanding any other limitation of time prescribed in
32this chapter, if a person actively conceals or attempts to conceal
33an accidental death in violation of Section 152, a criminal
34complaint may be filed within one year after the person is initially
35identified by law enforcement as a suspect in the commission of
36that offense.

end insert
37begin insert

begin insertSEC. 4.end insert  

end insert
begin insert

Section 3.5 of this bill incorporates amendments to
38Section 803 of the Penal Code proposed by both this bill and Senate
39Bill 1088. It shall only become operative if (1) both bills are
40enacted and become effective on or before January 1, 2017, (2)
P11   1each bill amends Section 803 of the Penal Code, and (3) this bill
2is enacted after Senate Bill 1088, in which case Section 3 of this
3bill shall not become operative.

end insert


O

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