Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the Jan. 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Orange County,No. M-8190, David O. Carter, Judge. [Copyrighted Material Omitted] COUNSEL
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Janet Gaard, Deputy Attorneys General, for Plaintiff and Appellant.
Jennifer L. Keller for Defendant and Respondent.
OPINION
SONENSHINE, J.
The prosecution appeals the trial court's order denying its motion to reinstate a felony complaint, contending the court erred by finding the charges were barred by the ex post facto clause of the federal Constitution. We affirm.
On June 20, 1997, Carl Robert Bucy was charged with three counts of lewd conduct with a child under Penal Code section 288. The last count allegedly occurred no later than August 30, 1977, almost 20 years before the complaint was filed. The complaint alleged the statute of limitations did not bar prosecution because the offenses had been revived under section 803, subdivision (g). Bucy demurred on the grounds retroactive application of subdivision (g) violates the ex post facto clause of the federal Constitution, and section 805.5 precludes application of subdivision (g). A magistrate sustained the demurrer on both grounds. The prosecution filed a motion to reinstate the complaint, and the superior court denied it.
All further statutory references are to the Penal Code unless otherwise noted.
For the balance of the opinion, we refer to this statute as "subdivision (g)."
I
The Attorney General contends the trial court erred because subdivision (g) does not violate the ex post facto clause. Not so.
Because we find subdivision (g) violates the ex post facto clause, we do not decide whether it violates substantive due process. (But see People v. Maloy (1999) 70 Cal.App.4th 570 [82 Cal.Rptr.2d 767] [finding no violation].)
Two recent cases held subdivision (g) violates the ex post facto clauses of the federal and state Constitutions when applied to crimes committed before its effective date: People v. Bunn (1997) 53 Cal.App.4th 227, 238[61 Cal.Rptr.2d 734] and Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 1227 [39 Cal.Rptr.2d 414]. These cases followed a long, unbroken line of California cases holding that a statute of limitations may be extended before the original limitation period expires but not after it expires. (People v. Lewis (1986) 180 Cal.App.3d 816, 820-823 [225 Cal.Rptr. 782]; People v. Masry (1986) 179 Cal.App.3d 1149, 1151-1152 [225 Cal.Rptr. 174]; People v. Gordon (1985) 165 Cal.App.3d 839, 849-852 [212 Cal.Rptr. 174], overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292 [79 Cal.Rptr.2d 195, 965 P.2d 713]; People v. Smith (1985) 171 Cal.App.3d 997, 1001 [217 Cal.Rptr. 634]; People v. Sample (1984) 161 Cal.App.3d 1053, 1057-1058 [208 Cal.Rptr. 318]; People v. Eitzen (1974) 43 Cal.App.3d 253, 265-267 [117 Cal.Rptr. 772]; Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 850 [106 Cal.Rptr. 516]; People v. Snipe (1972) 25 Cal.App.3d 742, 745-748 [102 Cal.Rptr. 6, 60 A.L.R.3d 1316]; see also People v. Sweet (1989) 207 Cal.App.3d 78, 82-85 [254 Cal.Rptr. 567]; People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 641-644 [228 Cal.Rptr. 357], overruled on other grounds in People v. Morris (1988) 46 Cal.3d 1, 18 [249 Cal.Rptr. 119, 756 P.2d 843]; People v. Swinney (1975) 46 Cal.App.3d 332, 340 [120 Cal.Rptr. 148], overruled on other grounds in People v. Zamora (1976) 18 Cal.3d 538, 565 [134 Cal.Rptr. 784, 557 P.2d 75].)
Cases from other jurisdictions are virtually all in accord. (United States v. Richardson (3d Cir. 1975) 512 F.2d 105; Clements v. United States (9th Cir. 1959) 266 F.2d 397; U.S. v. Taliaferro (10th Cir. 1992) 979 F.2d 1399; United States v. Kurzenknabe (D.N.J. 1955) 136 F.Supp. 17;The Stateof Alabama v. Whirley (Ala.Crim.App. 1987) 530 So.2d 861; State v. Creekpaum (Alaska 1988) 753 P.2d 1139; People v. Midgley (Colo. 1986) 714 P.2d 902; State v. O'Neill (1990) 118 Idaho 244 [796 P.2d 121]; State v. Nunn (1989) 244 Kan. 207 [768 P.2d 268]; People v. Russo (1992) 439 Mich. 584 [487 N.W.2d 698]; State v. Traczyk (Minn. 1988) 421 N.W.2d 299; Longhibler v. State (Mo. 1992) 832 S.W.2d 908; State v. Hirsch (1994) 245 Neb. 31 [511 N.W.2d 69]; State v. Nagle (1988) 226 N.J.Super. 513 [545 A.2d 182]; People v. Spearman (1985) 128 Misc.2d 112 [487 N.Y.S.2d 712]; State v. Thill (N.D. 1991) 468 N.W.2d 643; State v. Dufort (1992) 111 Ore.App. 515 [827 P.2d 192]; Com. v. Thek (1988) 376 Pa.Super. 390 [546 A.2d 83], overruled on other grounds in Com. v. Garcia (1991) 403 Pa.Super. 280 [588 A.2d 951, 955]; Rose v. State (Tex.App. 1986) 716 S.W.2d 162; but see U.S. v. Brechtel (5th Cir. 1993) 997 F.2d 1108 [contrary dictum]; U.S. v. Knipp (6th Cir. 1992) 963 F.2d 839 [same]; U.S. v. Bischel (9th Cir. 1995) 61 F.3d 1429 [same].) The commentators agree. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, section 372, p. 427; Black, Statutes of Limitation and the Ex Post Facto Clauses (1937) 26 Ky. L.J. 41-42; 21 Am.Jur.2d Criminal Law, section 224, pp. 288-289.)
Standing in stark defiance of this large, unbroken, and venerable body of California case law, as well as virtually all cases from foreign jurisdictions, is one case: People v. Maloy, supra, 70 Cal.App.4th 570. Maloy was recently decided by the Fifth District Court of Appeal after the briefing in this case was complete. The court concluded subdivision (g) did not violate ex post facto proscriptions. For reasons that follow, we respectfully disagree with the court's conclusion.
The Attorney General invited our attention to Maloy after briefing was completed. While this opinion was being prepared, the Sixth District issued People v. Tobias (1999) 71 Cal.App.4th 875 [83 Cal.Rptr.2d 359], which reached the same result. Because its analysis is similar to Maloy's, we do not discuss it, but we note it provides Maloy company.
To reach its result, the Maloy court relied on Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30], which the California Supreme Court had adopted in Tapia v. Superior Court (1991) 53 Cal.3d 282, 296 [279 Cal.Rptr. 592, 807 P.2d 434]. The Collins court embraced a traditional narrow reading of the ex post facto clause, limiting its scope to categories first set out in Calder v. Bull (1798) 3 U.S. 386 [1 L.Ed. 648]: " ' "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." [Citation.]' " (People v. Maloy, supra, 70 Cal.App.4th at pp. 577-578, italics omitted.) The Youngblood court expressly rejected a formulation that prohibited all retroactive laws that eliminated a "substantial protection" for the accused or altered the accused's situation to a disadvantage. (People v. Maloy, supra, 70 Cal.App.4th at pp. 578-579.)
The Maloy court noted the Youngblood court had used the following abbreviated version of the Calder definition which the Supreme Court had set out in Beazell v. Ohio (1925) 269 U.S. 167 [46 S.Ct. 68, 70 L.Ed. 216]: " ' "[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed ...." [Citation.]' " (People v. Maloy, supra, 70 Cal.App.4th at p. 578.)
The Maloy court concluded subdivision (g) does not fall into any of the Calder/Beazell categories. (People v. Maloy, supra, 70 Cal.App.4th at pp. 579-580, 588-589.) It obviously does not criminalize previously innocent conduct. Rejecting Maloy's argument that by reviving the offense subdivision (g) increased the punishment from zero to that specified by the applicable statute, the Maloy court also found the subdivision did not affect the punishment for the crime. (70 Cal.App.4th at p. 579.)
We agree with that assessment. The punishment for the crime stays consistent; only the ability to convict the defendant is altered. A contrary conclusion would allow this ex post facto exception to swallow the others.
In an extensive discussion, the Maloy court further concluded the statute of limitations does not constitute a "defense" as contemplated by the Calder/Beazell formulations of ex post facto prohibitions. (People v. Maloy, supra, 70 Cal.App.4th at pp. 580-589.) For reasons we shall explain, we disagree with that conclusion. But we are at odds with the Maloy result for a more fundamental reason.
In a one-sentence analysis, the Maloy court concluded the fourth Calder category was inapplicable: "[W]e see no basis to conclude the provision alters the rules of evidence in order to convict the offender on less or different evidence than the law required at the time of commission of the offense." (People v. Maloy, supra, 70 Cal.App.4th at pp. 579-580.) Contrary to Maloy, we do find such a basis.
The fourth Calder category prohibits "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." (Calder v. Bull, supra, 3 U.S. at p. 390 [1 L.Ed. at p. 650].) Perhaps the Maloy court focused on the term "rules of evidence" to conclude the fourth Calder category did not apply because the statute of limitations has nothing to do with procedural evidentiary rules. But as the Maloy court recognized, the United States Supreme Court has made clear the fourth Calder category does not apply to mere changes in the rules of evidence. (People v. Maloy, supra, 70 Cal.App.4th at p. 578, fn. 4.)
The Calder court must have had a more specific and substantive concept in mind when it used the term "rules of evidence." Such a concept is embodied in the Calder language in its fourth category referring to the amount or nature of the evidence necessary to convict. The crux of the category is that the ex post facto clause bars retroactive statutory changes that allow the prosecution to convict on less proof. Subdivision (g) does just that.
That language is: "and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." (Calder v. Bull, supra, 3 U.S. at p. 390 [1 L.Ed. at p. 650].)
In Cowan v. Superior Court (1996) 14 Cal.4th 367 [58 Cal.Rptr.2d 458, 926 P.2d 438], our Supreme Court expressly declined to abandon the well-established California rule requiring the prosecution to prove the statute of limitations has not run by a preponderance of evidence at trial if the defense puts the prosecution to its proof. (Id. at p. 374; see also People v. Zamora, supra, 18 Cal.3d at pp. 563-565; People v. Bunn, supra, 53 Cal.App.4th at p. 234 and cases cited [statute of limitations is a matter of defense if asserted at trial, which prosecution must prove by a preponderance of the evidence]; People v. Fine (1997) 52 Cal.App.4th 1258, 1267 [61 Cal.Rptr.2d 254] [if facts concerning due diligence regarding statute of limitations are disputed, it becomes an issue for the trier of fact]; People v. Lopez (1997) 52 Cal.App.4th 233, 250 [60 Cal.Rptr.2d 511].) By eliminating any need to prove the prosecution was brought within a particular time period, subdivision (g) allows less evidence to convict the defendant than was previously required. It violates the plain language of the fourth Calder category.
We have found no case suggesting the fourth Calder category does not apply to all laws altering what the prosecution must prove to convict. No fact situation in the cases we have seen supports a conclusion that the Legislature may retroactively dissect a portion of the proof that is a prerequisite for conviction. We also disagree with the Maloy court's conclusion subdivision (g) did not deprive the defendant of any defense available at the time of the crime. The court essentially gave two reasons for its conclusion. First, the Youngblood court had noted Beazell "linked the word 'defense' to a 'prohibition on alterations in "the legal definition of the offense" or "the nature or amount of the punishment imposed for its commission." ' [Citations.]" (People v. Maloy, supra, 70 Cal.App.4th at p. 580.) The Maloy court concluded the statute of limitations did not fall into either of these categories. It stated, "The statute of limitations is not akin to a defense, within the meaning of Youngblood, which makes the action noncriminal (such as a justification) or less culpable (such as an excuse)." (Id. at p. 587.)
From reviewing the Calder and Beazell categories, one can see the former does not include a specific reference to defenses but the latter does. That disparity can be reconciled by assuming a law that deprives the defendant of a defense falls into the Calder category prohibiting a change in the proof necessary to convict the defendant.
We disagree Youngblood or Beazell limited the concept of a defense as it relates to the ex post facto clause so as to exclude a statute of limitations from its reach. Neither case said so expressly or by implication. Youngblood found a statute allowing appellate courts to reform improper verdicts did not offend the ex post facto clause (Collins v. Youngblood, supra, 497 U.S. at p.52 [110 S.Ct. at p. 2724]), while Beazell reached the same conclusion regarding a right to separate trials for codefendant conspirators. (Beazell v. Ohio, supra, 269 U.S. at p. 171 [46 S.Ct. at p. 69].) The Youngblood court overruled Kring v. Missouri (1883) 107 U.S. 221 [2 S.Ct. 443, 27 L.Ed. 506], which denied retroactive application of the repeal of a law that made a plea to second degree murder an acquittal as to first degree murder. (Collins v. Youngblood, supra, 497 U.S. at p. 50 [110 S.Ct. at p. 2723].) It also overruled Thompson v. Utah (1898) 170 U.S. 343 [18 S.Ct. 620, 42 L.Ed. 1061], which denied retroactive application of a law reducing the number of jurors in criminal matters from 12 to 8. (Collins v. Youngblood, supra, 497 U.S. at pp. 51-52 [110 S.Ct. at pp. 2723-2724].)
All of these cases involved purely procedural statutes. None of them implicated any part of the prosecution's required proof at trial. Indeed, the Beazell court expressly acknowledged "there may be procedural changes which [violate the ex post facto clause by denying] ... the accused a defense available under the laws in force at the time of the commission of his [or her] offense ...." (Beazell v. Ohio, supra, 269 U.S. at p. 170 [46 S.Ct. at p. 69].) We assume this comment acknowledges the Calder prohibition against retroactivity of laws that alter the nature of the proof needed to convict. In other words, Calder prohibits changes that have procedural implications if they alter the proof needed at trial. Even if subdivision (g) is considered a procedural change, it is surely the type to which the court alluded in Beazell. Whether a California statute of limitations is viewed as more akin to an element or an affirmative defense, it is an integral matter of proof, inextricably intertwined with the offense itself.
A criminal case may be defended by attacking one or more aspects of the prosecution's proof and raising an affirmative defense, such as self-defense, which assumes the elements of a prima facie case but offers a justification or excuse or other grounds relating directly to the crime, such as entrapment. Nothing in Youngblood suggests it matters which type of defense is involved for ex post facto purposes.
California cases do not clarify what type of defense the statute of limitations encompasses. The Maloy court correctly noted the statute of limitations is not a part of the definition of the underlying crime itself. (People v. Maloy, supra, 70 Cal.App.4th at p. 588, citing People v. Crosby (1962) 58 Cal.2d 713, 723 [25 Cal.Rptr. 847, 375 P.2d 839]; see also People v. Morgan (1977) 75 Cal.App.3d 32, 40 [141 Cal.Rptr. 863].) But that does not mean the defendant cannot defend by raising the issue, or that the issue cannot be viewed as an affirmative defense even if it does not involve a direct attack on the elements of the offense.
Other affirmative defenses besides self-defense, noted above, do not involve directly attacking an element of the prosecution's case, e.g., duress and entrapment. Although it is not typically considered an affirmative defense, a defendant may defend on the issue of identity even though it is not a part of the definition of the charged crime. (See CALJIC Nos. 2.72 [identity is not an element of the crime] & 2.91 [prosecution must prove identity beyond a reasonable doubt] (6th ed. 1996 bound vol.).) Under the Maloy court's reading of Youngblood, none of these defenses would fall under the protection of the ex post facto clause because none is an element of the crime or a part of the punishment imposed.
As the court in People v. Bunn, supra, 53 Cal.App.4th at pages 233-234 noted, "After Cowan, it may be useful to think of a statute of limitations as conferring upon the criminal defendant a substantive statutory right [citation], which ripens into a type of 'immunity' upon expiration of the limitations period [citations], and which may be ... asserted as a 'legal bar to prosecution' by the defendant ... at trial as a 'matter of defense' (Ex Parte Blake (1909) 155 Cal. 586, 587 ...; People v. Zamora, supra, 18 Cal.3d at p. 564, fn. 25; see also People v. Miller [(1859)] 12 Cal. [291,] 294-295; Biddinger v. Commissioner of Police (1917) 245 U.S. 128, 135 ... ['The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases ....'].)" (See also People v. Chadd (1981) 28 Cal.3d 739, 757 [170 Cal.Rptr. 798, 621 P.2d 837] [" '[I]n California[,] the statute of limitations constitutes a substantive rather than procedural right ....' "]; cf. U.S. v. Knipp, supra, 963 F.2d. at p. 844 ["The defensive use of a statute of limitations is a procedural defense ...."].)
The Maloy court asserted if Maloy's interpretation of the ex post facto clause were accepted, it would invalidate statutes that extended a statute of limitations as well as those that revived them. (People v. Maloy, supra, 70 Cal.App.4th at pp. 587-588.) We might avoid addressing that point because we deal with the latter type of statute, but it deserves a response. If the statute of limitations is viewed as a defense, the extension of a statute of limitations does not deprive the defendant of it because the defendant was never in a position to assert it—the limitations period never expired. (See People v. Bunn, supra, 53 Cal.App.4th at p. 237; see also Lynch v. Superior Court, supra, 33 Cal.App.4th at p. 1228 ["[T]he People's argument inappropriately confuses the existence of a legal defense at the time of the alleged offense (the critical consideration for ex post facto purposes) with the later assertion of such defense at an appropriate time in the criminal proceedings. Necessarily, a statute of limitations defense may be asserted only after certain delay in commencing prosecution."].)
On the other hand, if the statute of limitations is viewed as part of the prosecution's affirmative proof under the fourth Calder category, the prosecution's proof is not materially changed by an extension of the limitations period. The prosecution must still prove the action was timely commenced. That the period is longer does not reduce the proof or make it significantly different.
In sum, we believe the Maloy court engaged in an unduly narrow construction of the term "defense" for ex post facto purposes. We read "defense" in Youngblood to encompass both types of defending. As long as California law recognizes a limitations defense as a substantive matter of the prosecution's proof and the defendant may raise the issue at trial as a defense, the extension of an expired limitations period will run afoul of the ex post facto clauses of the federal Constitution. II
.) Nonetheless, we must honor constitutional proscriptions even when the results displease us. In the case of the ex post facto clause, if we were to measure its application by the repugnance of the defendant's acts, we would gut its important purpose to disallow laws passed in reaction to completed acts that otherwise could not be punished. It gives us no great pleasure to reach this result. We are mindful of the Maloy court's observations about the purpose of subdivision (g), to allow punishment of those who sexually prey on the young and use a child's reticence to inform on an elder to escape punishment. (People v. Maloy, supra, 70 Cal.App.4th at p. 575
The trial court's ruling can also be sustained on Bucy's alternate ground that the Legislature did not intend subdivision (g) to apply to crimes committed before January 1, 1985. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980[35 Cal.Rptr.2d 669, 884 P.2d 126] [ruling will be sustained if it is correct on any ground].) Section 805.5, subdivision (c) provides in relevant part: "This chapter does not apply, and the law applicable before the operative date does apply, to an offense that was committed before [January 1, 1985], if: [¶] (1) Prosecution for the offense would be barred on [that date] by the limitation of time applicable before [that date]...." The Attorney General does not dispute prosecution was barred by the applicable limitation period well before January 1, 1985. He argues instead subdivision (g) supersedes section 805.5 and revives the offenses, citing the general statutory construction rule "that where the same subject matter is covered by inconsistent provisions, one of which is special and the other general, the special one, whether or not enacted first, is an exception to the general statute and controls unless an intent to the contrary clearly appears. [Citations.]" (Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446 [147 Cal.Rptr. 265]; see also People v. Narron (1987) 192 Cal.App.3d 724, 739 [237 Cal.Rptr. 693]; Code Civ. Proc., section 1859.)
In Lynch v. Superior Court, supra, 33 Cal.App.4th 1223, the court found section 805.5 barred application of subdivision (g). (33 Cal.App.4th at p. 1228.) The discussion was cursory, however, and did not purport to resolve the precise claim the Attorney General raises.
"However, the rule that a special statute constitutes an exception to the general rule applies only when the two statutes are inconsistent with each other. [Citation.] ... [S]tatutes should be construed in harmony with other statutes on the same general subject. [Citations.]" (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 476 [255 Cal.Rptr. 46]; see also Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 84 [60 Cal.Rptr.2d 402] ["the principle of paramount importance is that of harmonious construction"].)
We must determine whether subdivision (g) and section 805.5 can be harmonized.
Chapter 2 of title 3of part 2 of the Penal Code deals with limitations on the time for commencing criminal actions. (50 West's Ann. Pen. Code (1985 ed.) sections 799-802, pp. 190-201.) Sections 799 through 802 set various periods depending on the crime committed. (Ibid.) Section 803 deals generally with tolling and extensions, and subdivision (g) sets forth an extension of the limitation for certain sex crimes when specified conditions are met.
Section 805.5 was originally enacted as section 806 in 1984, but was amended and renumbered in 1986. (Stats. 1984, ch. 1270, section 1, pp. 4335-4336; Stats. 1986, ch. 248, section 161, p. 1264.) It addresses the operative date and applicability of the chapter. (section 805.5.) It provides, in essence, the chapter applies neither to crimes on which the limitation period expired before January 1, 1985, nor to prosecutions which had commenced before that date. In such cases, the former law on limitations applies. (Ibid.)
The Legislature apparently realized that number was already in use.
Subdivision (g) and section 805.5 are distinct. The former provides a limitation extension for certain cases while the latter governs when the chapter as a whole applies. They are easily harmonized. And, contrary to the Attorney General's arguments, neither the statutes themselves nor their legislative histories indicate a contrary legislative intent.
Subdivision (g) contains only two phrases of note. It begins, "Notwithstanding any other limitation of time ...." This language plainly refers to "limitation" periods and not a provision like section 805.5 defining the application of the chapter. If the Legislature had intended subdivision (g) to override section 805.5, it could have said something such as, "Notwithstanding any other provision of law ...." (See People v. Superior Court (Hubbard) (1991) 230 Cal.App.3d 287, 296[281 Cal.Rptr. 309] [use of phrase evidenced intent the statute should prevail over others]; People v. Hesslink (1985) 167 Cal.App.3d 781, 793 [213 Cal.Rptr. 465] [phrase is manifestly broader and more inclusive than other language]; Wolfe v. Board of Medical Quality Assurance (1981) 124 Cal.App.3d 703, 709 [177 Cal.Rptr. 538] [phrase controls over other, inconsistent provisions].)
Subdivision (g) also states, in part, "This subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 [crimes with sixand three-year limitations, respectively] if any of the following occurred or occurs[] ...." (subd. (g) (3) (A), italics added.) This language might be construed as evidencing an intent to apply the subdivision to crimes on which the statute of limitations had run before January 1, 1985. Such a construction would cause problems, however. It would fly in the face of section 805.5, which says the chapter does not apply to crimes that were barred as of January 1, 1985. It would create the inconsistency we must avoid.
Moreover, it would result in an ambiguity in subdivision (g)'s words "shall revive any cause of action barred by Section 800 or 801." To which version of these sections does subdivision (g) refer, the version in effect when subdivision (g) was enacted or the version in effect when the crime in question was committed? It could hardly be the former, because that version was not effective as to crimes committed before January 1, 1985. (section 805.5.) Sections 800 and 801 were certainly not in effect when the last of Bucy's alleged crimes was barred in 1980.
There is also a problem construing the language as referring to the version of sections 800 and 801 in effect before 1985. The pre-1985 version of section 801 dealt with the limitation period for misdemeanors. (Former section 801, enacted 1872, amended by Code Amends. 1880 (Pen. Code) ch. 47, section 9, p. 12; Stats. 1933, ch. 648, section 1, p. 1678; Stats. 1980, ch. 1093, section 1, pp. 3506-3507; repealed by Stats. 1984, ch. 1270, section 1, pp. 4335-4336; see also Cal. Law Revision Com. com., 50 West's Ann. Pen. Code (1985 ed.) section 802, p. 199.) But all subdivision (g) violations are felonies. Former section 801 would have nothing to do with them. Construing the language this way creates a conundrum.
Apart from the language of subdivision (g), the Attorney General asserts a legislative intent that section 805.5 should not override subdivision (g). He notes the California Law Revision Commission, which was charged with recommending changes in the limitation statutes (Stats. 1981, ch. 909, section 3, p. 3443), urged retroactive application of any changes. (Recommendation Relating to Statutes of Limitation for Felonies (Jan. 1984) 17 Cal. Law Revision Com. Rep. (1984) pp. 310, 317.) He claims this specific reference to the proposed changes evidences an intent that section 805.5 apply only to the changes enacted contemporaneously with it, and nothing shows it was intended to apply to later enacted legislation.
Not surprisingly, the Attorney General cites no authority for this proposition. If he were correct, every legislative enactment would require a statement the Legislature did or did not intend each statute in the legislative scheme to apply to later enacted or amended statutes. Such a requirement would wreak havoc in the Legislature and the courts. By their nature, documents relating to a particular legislative enactment from which legislative intent can be discerned refer only to that enactment and not to later legislation. They say nothing about whether general provisions of the original legislative scheme apply to the later legislation.
We assume statutes, particularly those that expressly apply to a certain chapter, as section 805.5 does, are intended to apply to later enactments or amendments in the same scheme unless the Legislature expressly says otherwise in the later legislation. This assumption comports with common sense. One would reasonably assume amendments to existing legislative schemes were not intended to alter fundamental provisions of the scheme unless some express indication to the contrary existed. And, this approach is consonant with our obligation to harmonize statutes.
The Attorney General makes the same argument regarding other expressions of legislative intent concerning the 1984 revamping of the limitation statutes. (See, e.g., Sen. Republican Caucus Rep. on Assem. Bill No. 2764 (1983-1984 Reg. Sess.) as amended Aug. 15, 1984 [the bill "(m)akes these provisions applicable to offenses committed ...." (italics added)]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2764 (1983-1984 Reg. Sess.) as amended May 16, 1984 [referring to "the bill" and "the new statute of limitation"].) The same analysis applies.
The Attorney General contends reading section 805.5 to limit subdivision (g) would run afoul of our mandate to avoid statutory construction that would lead to absurd results. (See People v. Broussard (1993) 5 Cal.4th 1067, 1072 [22 Cal.Rptr.2d 278, 856 P.2d 1134].) He reasons section 805.5 read in conjunction with subdivision (g) allows only the revival of the specified sex crimes occurring between 1982 and 1988.
By 1985, when section 805.5's predecessor was enacted, the former three-year statute would have run on all applicable sex crimes committed before 1982. In 1994 when subdivision (g) was enacted, the present six-year statute would not have run on such crimes committed after 1987, and subdivision (g) would not be necessary to revive them.
We find nothing inherently absurd about this proposition. Section 805.5 sets a de facto 12-year limit on cases that can be revived under subdivision (g). The legislative history the Attorney General provides shows the Legislature intended to revive cases, but nothing suggests it intended to revive cases older than 12 years. Indeed, the Law Revision Commission Comment 1984 Addition to former section 806, now section 805.5, reveals an intent to apply the new limitations periods retroactively only to the extent they are "practical." (50 West's Ann. Pen. Code (1985 ed.) section 806, p. 216.) The Legislature could reasonably conclude it would be impractical to prosecute cases over 12 years old.
The judgment is affirmed.
Crosby, J., concurred.
CONCURRING:
SILLS, P. J.,
Concurring.— While I acknowledge the new approach found in People v. Maloy (1999) 70 Cal.App.4th 570 [82 Cal.Rptr.2d 767], relying as it does on Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30], reaches a contrary result, I am compelled to follow a long line of California precedent. (See People v. Bunn (1997) 53 Cal.App.4th 227 [61 Cal.Rptr.2d 734]; Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 1227 [39 Cal.Rptr.2d 414].) Our two sister divisions of this district have voiced their agreement with the traditional rationale (People v. Lewis (1986) 180 Cal.App.3d 816 [225 Cal.Rptr. 782]; People v. Masry (1986) 179 Cal.App.3d 1149 [225 Cal.Rptr. 174]), and Witkin and Epstein opine that "[i]f an applicable statute of limitations has run before the adoption of an amendment which extends the time, the increased limitation [should] not be applied to allow prosecution of the offense. [Citation.]" (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) section 372, pp. 427-428.)
Admittedly, Maloy and Collins have commenced a dialogue on this issue which can only be resolved by a higher authority. However, unless and until such time as our California Supreme Court holds otherwise, I will follow the traditional view.
Subdivision (g) provides in pertinent part, "(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. [
] (2) This subdivision applies only if both of the following occur: [] (A) The limitation period specified in Section 800 or 801 has expired. [
] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim's allegation. No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals. [
] (3) (A) This subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if any of the following occurred or occurs: [
] (i) The complaint or indictment was filed on or before January 1, 1997, and it was filed within the time period specified in this subdivision. [
] (ii) The complaint or indictment is or was filed subsequent to January 1, 1997, and it is or was filed within the time period specified within this subdivision. [
] (iii) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was not filed within the time period specified in this subdivision, but a complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first. [
] (iv) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, but a new complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first. [
] (B) (i) If the victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, a new complaint or indictment may be filed notwithstanding any other provision of law, including, but not limited to, subdivision (c) of Section 871.5 and subdivision (b) of Section 1238. [
] (ii) An order dismissing an action filed under this subdivision, which is entered or becomes effective at any time prior to 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first, shall not be considered an order terminating an action within the meaning of Section 1387. [
] (iii) Any ruling regarding the retroactivity of this subdivision or its constitutionality made in the course of the previous proceeding, by any trial court or any intermediate appellate court, shall not be binding upon refiling."