BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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;








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             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:  








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          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  








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            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  








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            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."   








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            (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  








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            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,









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            (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  








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            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  








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            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  








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            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  








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               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








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          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













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          Analysis Prepared by:Sandy Uribe / PUB. S. / (916)  
          319-3744