BILL ANALYSIS Ó SB 813 Page 1 Date of Hearing: June 21, 2016 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 813 (Leyva) - As Amended March 31, 2016 SUMMARY: Eliminates any statute of limitation for specified sex offenses. Specifically, this bill: 1)Provides that prosecution for the following offenses may commence at any time: a) Rape, as specified; b) Spousal rape, as specified; SB 813 Page 2 c) Rape in concert, as specified; d) Sodomy, as specified; e) Lewd acts upon a child involving "substantial sexual conduct," as specified; f) Continuous sexual abuse of a child; g) Oral copulation, as specified; and, h) Sexual penetration, as specified. 2)Specifies that the elimination of the statute of limitations shall only apply to crimes that were committed on or after January 1, 2017, or for which the statute of limitations that was in effect before January 1, 2017 has not run as of that date. 3)Makes technical conforming changes to related statutes. EXISTING LAW: SB 813 Page 3 1)Provides that there is no statute of limitations for crimes punishable by death, or by imprisonment in the state prison for life, or by life without the possibility of parole. (Pen. Code, § 799.) 2)Provides that prosecution for crimes punishable by imprisonment for eight years or more and not otherwise covered must be commenced within six years after commission of the offense. (Pen. Code, § 800.) 3)Provides that prosecution for other felonies punishable by less than eight years must be commenced within three years after commission of the offense. (Pen. Code, § 801.) 4)Provides that, notwithstanding any other time limitations, for specified sex crimes that are alleged to have been committed when the victim was under the age of 18, prosecution may be commenced any time prior to the victim's 40th birthday. (Pen. Code, § 801.1, subd. (a).) 5)Provides that prosecution for a felony offense requiring sex offender registration shall be commenced within 10 years after commission of the offense. (Pen. Code, § 801.1, subd. (b).) 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. (Pen. Code, § 803, subd. (f).) 7)Provides that, notwithstanding any other limitation of time, 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 specified conditions SB 813 Page 4 are met. (Pen. Code, § 803, subd. (g)(1).) 8)Provides that if more than one time period described in the statute of limitations scheme applies, the time for commencing an action is governed by that period that expires the latest in time. (Pen. Code, § 803.6, subd. (a).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "The purpose of the 'Justice for Victims Act' is simple: To prevent rapists and sexual predators from evading legal consequences in California simply because the statute of limitations has run its course. Regardless of when a rape or sexual assault is discovered or reported, survivors of sexual offenses must have an opportunity to seek justice in a court of law. SB 813 does not change the burden of proof and victims will still have to prove their allegations in court. All this bill does is extend the opportunity for victims to have their day in court since there should never be an expiration date on justice." 2)Statute of Limitations Generally: 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. (Pen. Code, § 804.) The statute of limitations serves several important purposes SB 813 Page 5 in a criminal prosecution, including staleness, prompt investigation, and repose. The statute of limitations protects persons 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. The statute of limitations also imposes a priority among crimes for investigation and prosecution. The deadline serves to motivate the police and to ensure against bureaucratic delays in investigating crimes. Additionally, the statute of limitations reflects society's lack of desire to prosecute for crimes committed in the distant past. The interest in repose represents a societal evaluation of the time after which it is neither profitable nor desirable to commence a prosecution. These principals are reflected in court decisions. 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.) 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. More recently, in Stogner v. California (2003) 539 U.S. 607, the Court underscored the basis for statutes of limitations: "Significantly, 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." SB 813 Page 6 (Id. at p. 615.) The amount of time a prosecuting agency may charge an alleged defendant varies based on the crime. In general, the limitations period is related to the seriousness of the offense as reflected in the length of punishment established by the Legislature. (People v. Turner (2005) 134 Cal.App.4th 1591, 1594-1595; see, e.g., Pen. Code, §§ 799-805.) After a comprehensive review of criminal statutes of limitation in 1984, the Law Revision Commission recommended that the length of a "limitations statute should generally be based on the seriousness of the crime." (17 Cal. Law Revision Com. Rep. (1984) p. 313.) The Legislature overhauled the entire statutory scheme with this recommendation in mind. In People v. Turner, supra, 134 Cal.App.4th 1591, the court summarized the recommendations of the Law Revision Commission: The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. It also served the procedural need to provid[e] predictability and promote uniformity of treatment for perpetrators and victims of all serious crimes. The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life in prison is a determination that society views the crime as the most serious. (People v. Turner, supra, 134 Cal.App.4th at pp. 1594-1595, citations omitted.) The failure of a prosecution to be commenced within the applicable period of limitation is a complete defense to the SB 813 Page 7 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 court is required to construe application of the statute of limitations strictly in favor of the defendants. (People v. Zamora (1976) 18 Cal.3d 538, 574; People v. Lee (2000) 82 Cal.App.4th 1352, 1357-1358.) 3)Statute of Limitations for Sex Crimes: The prosecution for a felony sex offense subject to mandatory sex offender registration must be commenced within 10 years after the commission of the offense. (Pen. Code, § 801.1, subd. (b).) Additionally, the statute of limitations for the sex offenses implicated in this bill (rape, sodomy, lewd and lascivious acts, continuous sexual abuse of a child, oral copulation, or forcible sexual penetration) is until the victim's 28th birthday, if the crime was committed when the victim was under 18. (Pen. Code, § 801.1, subd. (a).) In addition to these two statutes of limitations, there are two tolling provisions for prosecution of specified sex offenses. (See Pen. Code, § 803.) First, a prosecution can be commenced within one year of the date a person of any age reports to California law enforcement that he or she, while under the age of 18 years, was a victim of a sex crime, as specified, if all of the following occur: (1) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired; (2) The crime involved substantial sexual conduct, as specified, excluding masturbation that is not mutual; and, SB 813 Page 8 (3) There is independent evidence that corroborates the victim's allegation. (Pen. Code, § 803, subd. (f).) Alternatively, a prosecution can be commenced within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met: (1) The crime is one that is subject to mandatory sex offender registration; and, (2) 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. (Pen. Code, § 803, subd. (g).) Finally, the statute of limitations can be extended indefinitely if the sex crime is charged under an alternate sentencing scheme or penalty provision. So, if a sex crime is prosecuted under the One Strike Law, it is not subject to a statute of limitations but can be commenced at any time. (See People v. Hale (2012) 204 Cal.App.4th 961 [for a sex crime punishable by life there is no limitation].) 4)Practical Considerations: 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. Witnesses move or die. 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 SB 813 Page 9 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 eliminate the statute of limitations altogether in these cases when several other exceptions already exist to ensure prosecution. Moreover, elimination of the statute of limitations will not necessarily get victims the justice they deserve. In cases where there is no DNA, prosecutors may have to tell a victim that even though the case is not time barred, there is not enough evidence to bring the case to trial. 5)Ex Post Facto: In Stogner v. United States, supra, 539 U.S. 607 the Supreme Court ruled that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. (Id. at pp. 610-611, 616.) However, extension of an existing statute of limitations is not ex post facto as long as the prior limitations period has not expired. (Id. at pp. 618-619.) This bill states that it the provisions eliminating the statute of limitations for the specified crimes will apply either only to crimes committed after its effective date, or to crimes for which a statute of limitations that was in effect before its effective date has not run as of that date. In other words, the bill extends current limitations periods, but does not try to revive time-barred cases. Therefore, there do not appear to be any ex post facto concerns raised by this bill. 6)Argument in Support: According to the California Women's Law Center, a sponsor of this bill, "Currently, the statute of limitations for the prosecution of a felony sex offense is just 10 years, while the prosecution of sexual offenses against a minor must be commenced prior to the victim's 40th birthday. These statute of limitations, which allow perpetrators to escape justice because of the passage of an arbitrary measure of time, are grossly unfair to survivors of SB 813 Page 10 sexual offenses. Our laws should protect the rights of victims who have the courage to come forward whenever they feel safe doing so. Instead, the current laws silence victims and protect their assailants?. "SB 813 will send the message to victims of sexual violence that California takes these heinous crimes seriously and that the law is on their side. It will empower victims as they make the important decision to report the crimes committed against them. And SB 813 will diminish one of sexual predator's most powerful weapons: the silence of men and women who survive their attacks." 7)Argument in Opposition: According to the Sonoma County Public Defender's Office, "There are a number of scenarios which demonstrate the difficulties with eliminating the statute of limitations for rape. "The average person called upon to defend themselves against allegations of a sexual assault that happened 15, 20, or 30 years ago would be hard pressed to remember where they were and who they were with. If the defendant were innocent, it would be even more difficult because they might not even know their accuser. "The dangers of false accusations are not limited to imaginary situations. In the last 10 years, there have been high profile accusations that turned out to be false; i.e., in 2006, the accusations of rape against 3 members of the Duke University lacrosse team and in November 2014, the horrific rape allegations against 7 members of a fraternity at the University of Virginia detailed in the now discredited Rolling Stone article. "There are numerous stories of people imprisoned for rape convictions after being falsely accused who were later exonerated by DNA, the victim recanting, the discovery of false confessions or other evidence. We have included a few of these tragic stories- both from California and around the SB 813 Page 11 country. "After spending 16 years in prison, Luis Varga who had been sentenced to 55 years in prison was finally exonerated by DNA. "Larry Davis, 57, and Alan Northop, 49, were false convicted of raping a housekeeper in 1993 and spent 17 years in prison before being exonerated by DNA. "Brian Keith Banks, a former American football linebacker who spent more than five years in prison after being falsely accused of rape by a classmate. His conviction overturned in 2012 after his accuser was secretly recorded admitting she had fabricated the story. "After 28 years, Clarence Moses-El, who had been sentenced to 48 years in prison after a neighbor said she dreamed he was the man who raped her and beat her in the dark. He was released after the court vacated his conviction and the DA finally turned over a confession that he had received two years earlier from another inmate. "In 2013, Stanley Wrice, who had been sentenced to 100 years for rape, was freed from prison after serving 30 years. The judge threw out Wrice's confession and conviction finding that he had falsely confessed after being beaten in the face and groin by Chicago police. "Being falsely charged with sexual assault is also traumatic. People lose their jobs, schooling, and reputation in the community. It is expensive to defend against false rape allegations. Even when the charges are dismissed, the accusations live on the Internet haunting the individual forever." 8)Prior Legislation: a) SB 46 (Alquist), of the 2009-10 Legislative Session, would have eliminated the statute of limitations for SB 813 Page 12 specified sex crimes when the alleged victim was under the age of 14 at the time of the offense. SB 46 failed passage in the Senate Public Safety Committee. b) SB 256 (Alquist) of the 2007-2008 Legislative Session, would have eliminated the statute of limitations for specified sex crimes. SB 256 failed passage in the Senate Public Safety Committee. c) SB 261 (Speier) of the 2005-2006 Legislative Session, would have eliminated the statute of limitations for specified sex crimes. SB 261 was held in the Senate Appropriations Committee. REGISTERED SUPPORT / OPPOSITION: Support California Women's Law Center (Sponsor) AFSCME Local 685 Alameda County District Attorney's Office Association for Los Angeles Deputy Sheriffs Association of Deputy District Attorneys California Association of Marriage and Family Therapists California District Attorneys Association California Police Chiefs Association California Protective Parents Association SB 813 Page 13 City of West Hollywood Crime Victims United of California End Rape Statute of Limitations Campaign Los Angeles County District Attorney's Office Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Los Angeles Probation Officers Union National Association of Social Workers- California Chapter National Council of Jewish Women/Los Angeles National Organization for Women, Hollywood Chapter Orange County Sheriff's Department Peace Officers Research Association of California Riverside Sheriffs Association San Bernardino County District Attorney's Office San Diego County District Attorney's Office Santa Clara District Attorney's Office Two Private Individuals Opposition American Civil Liberties Union of California California Attorneys for Criminal Justice California Public Defenders Association Legal Services for Prisoners with Children Sonoma County Public Defender's Office SB 813 Page 14 Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744