Return to CALJIC Part 3-4 – Contents
F 4.74 n1 Statute of Limitations Preponderance Standard: Limiting Instruction.
People v. Zamora (76) 18 C3d 538 [134 CR 784] held that the standard of proof as to the statute of limitations is a preponderance of the evidence rather than proof beyond a reasonable doubt. However, any instruction on the statute of limitations must make clear that the preponderance standard applies only to the statute of limitations and not to any of the other elements of the charge. (Zamora, 18 C3d at 565, fn 27.)
F 4.74 n2 Statute of Limitations Preponderance Standard: Constitutional Challenge.
People v. McGill (35) 10 CA2d 155 [51 P2d 433] held that the statute of limitations is not an element of the corpus delicti and therefore the lesser standard of preponderance of the evidence may apply to that element. (See also People v. Bell (96) 45 CA4th 1030, 1065.)
However, satisfaction of the applicable statute of limitations is an essential element of the charge. (See Stogner v. California (2003) 539 US 607 [156 LEd2d 544; 123 SCt 2446]; see also People v. Witt (75) 53 CA3d 154, 162 [125 CR 653] ["In the field of criminal law a statute of limitations is jurisdictional in nature. It is an essential element of the offense, to be proved by the prosecution …."].) Hence, under the constitutional principles set forth in Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], the proof beyond a reasonable doubt standard should apply. (See also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
F 4.74 n3 Statute Of Limitations: Constitutionality Of Amendment To PC 803.
ALERT: On June 25, 2001, the U.S. District Court for the Northern District of California issued an Order to Show Cause in the federal habeas corpus case of Frazer v. Superior Court (N.D. Cal. No. 01-1994 (WHA).)
The court’s one and a half page order briefly lays out the petitioner’s prima facie case in support of the petition, both on the issue of the federal court’s jurisdiction, and on the merits under Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620]. Under the terms of the OSC, the respondent has 60 days to file an answer and lodge the record, and the petitioner then has 30 days to file a traverse and reply. the matter will be considered submitted on the papers at that time.
The federal habeas petition was filed on May 22 on behalf of Raymond Frazer, who was the defendant in People v. Frazer (99) 21 C4th 737 [88 CR2d 312]. Mr. Frazer’s criminal case is still in pretrial, with the next conference scheduled for late July; no trial date has been set at this time. The federal habeas case was assigned to Judge Alsup, who issued the OSC, and has not referred the case to a Magistrate Judge.
People v. Frazer (99) 21 C4th 737 [88 CR2d 312] held that PC 803 which extends the statute of limitations on a child molestation crime is not unconstitutional per se.
However, Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620] effectively overruled Frazer. (See also Stogner v. California (2003) 539 US 607 [156 LEd2d 544; 123 SCt 2446].) PC 803(g) alters the legal rules of evidence, and requires less, or different testimony than the law required at the time of the commission of the offense–and also, at the time the statute of limitations expired. Hence, the retroactive application of PC 803(g) violates ex post facto as defined by Carmell. (But see People v. Renderos (2003) 114 CA4th 961 [distinguishing Stogner and holding that PC 803(g) does not violate ex post facto principles when used to extend unexpired time in which criminal charges may be brought].)
"Although the United States Supreme Court in Stogner v. California (2003) 539 US 607 [156 LEd2d 544; 123 SCt 2446] disapproved of the California Supreme Court’s holding in Frazer on the question of the applicability of ex post facto principles to an already expired statute of limitations, Stogner does nothing to questions answered in the Frazer opinion that do not have constitutional underpinnings." (People v. Robertson (2003) 113 CA4th 389, 393-94 [because the statute of limitations had not expired when PC 803(g) went into effect in 1994, the defendant was properly prosecuted under the new statute which extended the statute of limitations]; see also People v. Vasquez (2004) 118 CA4th 501 [same].)
F 4.74 n4 Statute of Limitations: Prosecution Must Prove If Challenged By Defense.
If the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. (People v. Williams (99) 21 C4th 335 [87 CR2d 412].)
F 4.74 n5 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 4.74 n6 Incorrect Instruction On Statute Of Limitations For Lesser Included Offense Violates Defendant’s Right To Due Process And Fair Trial.
See People v. Stanfill (99) 76 CA4th 1137, 1153-54 [90 CR2d 885].
F 4.74 n7 Statute Of Limitations: Failure To Instruct.
(See U.S. v. Fuchs (9th Cir. 2000) 218 F3d 957, 961 [failure to instruct on statute of limitations where defendant’s acts supporting finding of conspiracy fell outside limitations period was plain error].)
F 4.74 n8 Statute Of Limitations: Disposition Of Cases Dismissed Prior To People v. Frazer (99) 21 C4th 737 [88 CR2d 312] (PC 803(g)).
In Frazer, the California Supreme Court ruled that PC 803(g) was constitutional, even though it resurrected cases where the statute of limitations had already expired. Assuming Frazer is good law (but see FORECITE F 4.74 n3) there is an issue regarding cases which were dismissed prior to issuance of the Frazer opinion. In People v. Bunn (2002) 27 C4th 1 [115 CR2d 192], the Supreme Court held that if the Legislature amends the statute of limitations before the dismissal becomes final, the case can be refiled. But if the dismissal is final (as in People v. King (2002) 27 C4th 29 [115 CR2d 214]) before the statutory amendment, separation of powers bars refiling.
NOTE: Potential Federal Constitutional Challenges To Bunn. Even though Bunn was decided on state separation of powers grounds, several federal constitutional provisions may be available to challenge Bunn. These include: the Double Jeopardy Clause/14th Amendment, as incorporating the tradition doctrine of res judicata that would be applicable here (see Ashe v. Swenson (70) 397 US 436, 443-44 [25 LEd2d 469; 90 SCt 1189] and U.S. v. Oppenheimer (1916) 242 US 85, 87 [61 LEd2d 161; 37 SCt 68]); the Bill of Attainder Clause, because Bunn involves the Legislature reopening a final judicial judgment; and the 14th Amendment, insofar as it incorporates a requirement that criminal punishment can only be imposed via a real judicial proceeding (see U.S. v. Lanier (97) 520 US 259, 266 [137 LEd2d 432; 117 SCt 1219]), and a judicial proceeding which reaches a result that is retroactively subjected to improper legislative amendment doesn’t qualify.
F 4.74 n9 Statute Of Limitations: Sufficient Corroboration Under PC 803(g).
PC 803(g) permits the filing of a section 288 charge after the expiration of the six year statute of limitations if: 1) the filing occurs within one year of the victim’s report of the crime; 2) the crime involves "substantial sexual conduct" and; 3) there is independent evidence that clearly and convincingly corroborates the victim’s allegation. Evidence of sexual misconduct against an uncharged victim, standing alone, may constitute sufficient corroboration. (People v. Mabini (2001) 92 CA4th 654, 657 [112 CR2d 159].)
F 4.74 n10 Statute Of Limitations: Defining “Clear And Convincing” Proof.
In order to extend the statute of limitations in sex offense cases under PC 803(g) there must be a recent report of previous misconduct and independent evidence which clearly and convincingly corroborates the victim’s allegation. People v. Mabini (2001) 92 CA4th 654, 657 [112 CR2d 159] held that the court correctly defined clear and convincing proof using BAJI 2.62.
F 4.74 n11 Statute Of Limitations: Burden Of Proof.
Assembly Bill 78 amended PC 803, effective January 1, 2002, permitting a criminal complaint to be filed within one year of the date of a report to a law enforcement agency by a person under 21 years of age, alleging that he or she, while under 18 years of age, was a victim of any specified crimes involving substantial sexual contact, if there is independent evidence that clearly and convincingly corroborates the victim’s allegation. (Stats. 2001, Ch. 235.)
F 4.74 n12 Statute Of Limitations: Whether Tolling Provision That Allows Child Molestation Charges To Be Brought Within One Year Of Victim’s Report Is Constitutional (PC 803(g)).
People v. Zandrino (2002) 100 CA4th 74 [121 CR2d 879] held that PC 803(g) is constitutional. (See also People v. Terry (2005) 127 CA4th 750.) However, constitutional challenges to PC 803(g) are continuing in the federal courts, and the constitutionality of PC 8039(g) should be raised in every prosecution in which the issue is implicated.
F 4.74 n13 Statute Of Limitations: Need For "Unified Finding."
See People v. Ruiloba (2005) 131 CA4th 674, 692 [jury should make a "unified finding" on each count: a jury should be told to decide the substantive elements of the charged crime under the proof beyond a reasonable doubt standard, and the elements needed to trigger the extension of the statute of limitations under the applicable standards (preponderance of the evidence for the first four facts; clear and convincing for the fifth)].
F 4.74a
Statute of Limitations: Tolling From Failure to Discover
*Modify CJ 4.74 paragraph 3 as follows:
However, the defendant may not be convicted of _________ (fraud, theft, etc.) __________ if you find that either the alleged victim or the criminal law enforcement authorities had actual notice of circumstances sufficient to make them suspicious of __________ [defendant] __________ and which through the exercise of reasonable diligence would have led them to make inquiries which might have revealed the _________ (fraud, theft, etc.) __________.
Points and Authorities
CJ 4.74 provides the option of including the alleged victim or the criminal law enforcement authorities as being on notice regarding discovery of the crime. However, there is no reason to not include both the victim and the law enforcement agencies whenever this issue is presented to the jury since the failure of the jury to consider whether the victim could have discovered the crime may be reversible error. (See People v. Bell (96) 45 CA4th 1030, 1066-67 [53 CR2d 156].)
Additionally, CJ 4.74 requires a showing that the crime “should have been discovered” through the exercise of reasonable diligence. The correct standard is whether the crime “might have” or “could have” been discovered. (People v. Zamora (76) 18 C3d 538, 565-66, 571-72 [134 CR 784].)
Zamora also concluded that under PC 800 the prosecution is required to plead and prove a tolling of the statute in the same manner as required by CCP 338. (Zamora, 18 C3d 564-65, fn 26.) CCP 338 requires — when any action is brought after the statute of limitations — that the plaintiff plead and prove: (1) when and how the facts concerning the fraud became known; (2) lack of knowledge prior to that time; (3) that he had no means of knowledge or notice which followed by inquiry would have shown at an earlier date the circumstances upon which the cause of action is founded. (Zamora, 18 C3d at 562.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
Note: it is not necessary for the reasonable diligence of the victim or the police to have discovered the defendant’s identity. Only discovery of the corpus delicti of the crime is necessary. See Zamora, 18 C3d at 573.