Statute of Limitations
Category > Statute of Limitations
The attempted murder convictions were time-barred once the jury rejected the premeditation allegations. Defendant’s attempted murder convictions were time-barred because the complaint filed in 2010 charged premeditated attempted murder, an offense carrying no statute of limitations under Penal Code section 799, but once the jury found the premeditation allegations untrue, the six year statute of limitations applicable to offenses punishable by eight or more years barred continued prosecution for those counts. id: 24040
The conspiracy to defraud count was governed by the three-year limitations period generally applicable to criminal conspiracies.Defendant was convicted of conspiracy to defraud by false pretenses in violation of Penal Code section 182, subd.(a)(4). The prosecution was not commenced within three years of the last overt act. The prosecution argued there was a four year statute of limitations because the governing statute was not the one that applies to conspiracy but rather the one applicable to the underlying offense. However, the conspiracy to defraud count was governed by the three year statute generally applicable to criminal conspiracies, and the prosecution was time-barred.id: 22995
Use of a new limitations period to charge murder where the assault victim died 29 years after the attack violated ex post facto principles.Defendants were convicted of attempted murder and assault offenses committed against a sheriff’s deputy in 1980. At the time, the offense could only become murder or manslaughter if the victim died within three years and one day of the attack. The victim here died 29 years after the attack. Defendants were charged with murder since the Legislature eliminated the three years and a day limitations period in 1997. However, prosecuting defendants for murder in 2010 under the newer law violated the state and federal ex post facto prohibitions.id: 22370
The three year statute of limitations period applied to the robbery prosecution even though defendant was exposed to an indeterminate life term under the three strikes law.An offense which is normally subject to the limitations period of Penal Code section 801, may not be prosecuted "at any time" under section 799, when allegations of a defendant's recidivist status expose the defendant to an indeterminate life term under the three strikes law.id: 18865
Because the conduct underlying the conviction (absent the prior conviction) was a misdemeanor, the applicable statute of limitations was one year.Defendant was convicted of attempting to molest or annoy a child under Penal Code sections 664 and 647.6, subd.(a). Based on a prior conviction of lewd act under section 288, the court sentenced defendant as a felon. However, because the conduct constitutes a misdemeanor absent the prior lewd act conviction, and the prosecution was not commenced within one year as required by section 802, subd.(a), the judgment was reversed.id: 19075
The exception to the one year statute of limitations for misdemeanor child molest did not apply to an attempt to commit the offense.Defendant was charged with three counts of misdemeanor child molest. He argued the subsequent convictions had to be reversed because the alleged crimes were not prosecuted within the one year statute of limitations applicable to minors. There is an exception to the one year statute for misdemeanor violation of Penal Code section 647.6 – the three year statute applies in that case. However, in the present case the prosecution charged the “attempted violation” of section 647.6 which did not invoke the exception.id: 20736
The issue of when a prosecution commences (filing of the information) for purposes of statute of limitations is a legal one for the trial court to decide.te of limitations is a legal one for the trial court to decide. (596) Defendant argued there was not substantial evidence to support the finding that the prosecution was commenced before the statute of limitations expired. However, the issue of the statute of limitations is a legal one to be decided by the judge and the court erred by instructing the jury to make the finding. Moreover, the filing of the felony complaint does not commence a criminal action and does not toll running of the SOL. The persecution commences when the indictment or information is filed and the appellate court could consider the information even though it was not in evidence before the jury. id: 20685
The misdemeanor assault convictions which were lesser included offenses of the charged aggravated assaults, were time barred by the statute of limitations.Defendant was charged with five counts of assault with a deadly weapon, but on those counts the jury convicted him of the lesser included offense of misdemeanor assault. However, because the conduct forming the basis of those counts occurred more than one year before the Information was filed, the one year statute of limitations for misdemeanors barred the convictions. Moreover, defendant did not forfeit the statute of limitations defense by failing to raise the issue in the trial court and by acquiescing in the lesser included offense instruction that permitted a conviction of the time-barred misdemeanors.id: 17187
Section 739 which allows the prosecutor to amend the information after a preliminary hearing may not be used to extend the one year window period under section 803, subd.(f).The prosecution argued that prosecution of child molest counts that were otherwise time barred was proper under Penal Code section 803, subd.(f) which allows a complaint to be filed within one year of a report to a responsible adult or agency by a person under 18. Defendant argued prosecution is untimely under section 803, subd.(f) because the offenses were first charged more than one year after the initial report and the record did not show at least one touching took place after October 21, 1996. Contrary to the prosecutor's claim, section 739 does not extend the supplemental one year window period for filing a complaint regarding any offense encompassed by the victim's April 12, 2002 report that she was the victim of a crime. Even if new testimonial revelations at the preliminary hearing could be viewed as a new report, section 803, subd.(f) would not apply since the victim was older than 18 when she testified at the preliminary hearing.id: 18439
Provision providing extension of limitations period for specified sex crimes is not retroactive.Penal Code section 803, subdivision (g), effective January 1, 1994, establishes an additional one year limitations period for the prosecution of specified sex crimes if they involved substantial sexual conduct and if the original limitations period triggered by the commission of the crime as specified in sections 800 or 801 has expired. The additional period of limitations begins to run from the date a person of any age reports he or she was the victim of a specified sex crime while under the age of 18. The Legislature did not intend section 803, subdivision (g) to apply retroactively to crimes as to which the original period of limitations had expired before the January 1, 1994 effective date of section 803, subdivision (g).id: 9986
Court erred in failing to instruct the jury that if the victim of forgery and false filing could have reasonably discovered the crimes more than three years before the action, it could not convict the defendant of that offense.Defendant's forgery and false filings were aspects of his rent skimming scheme. Therefore both offenses arose from the same conduct and the running of the statute of limitations was tolled by the arrest warrant for the rent skimming offenses. The trial court instructed that defendant could not be convicted of forgery and false filing if the jury found law enforcement officers were reasonably diligent in discovering the crimes more than three years before the commencement of the action. However, the court erred in failing to inform the jury that if it found the victim could have reasonably discovered the crimes more than three years before the commencement of the action, it could not convict defendant of that offense. The error was prejudicial as the false filings played an important part in the rent skimming scheme.id: 10384
One year statute of limitations barred conviction on two misdemeanor child endangerment counts where the acts occurred two years before the murder.Defendant was convicted in a capital case of the murder of his girlfriend's five year old son. He was also convicted of misdemeanor child endangerment based on acts that occurred more than two years before the boy's death. However, the one year statute of limitations applicable to misdemeanors barred conviction on these counts, notwithstanding that they were originally charged as felonies. The reductions of these counts were based on the offenses as necessarily included misdemeanors and not as statutory alternatives, or wobblers.id: 12064
The statute of limitations in a criminal case is not an affirmative defense which is forfeited if not raised before or during trial.A defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. 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 statue of limitations at any time.id: 15841
Defendant's guilty plea did not waive the statute of limitations.Defendant argued the trial court had no jurisdiction over two of the three counts of conviction because the statute of limitations had expired on those two offenses. The prosecution argued that he waived the statute of limitations by pleading guilty. However, there was no express waiver, and the case fell within the general rule that the statute of limitations may be raised at any time.id: 15839
Prosecution failed to show the statute of limitations had not run for the case which started by indictment even though arrest warrants had been issued within three years on the case which was originally to begin by a preliminary hearing.Defendants appealed their grand theft and insurance fraud convictions arguing the prosecution did not adequately plead and prove the statute of limitations had not run. The parties agreed the charges were subject to a three year statue of limitations and that the indictment was not issued within three years of any of the alleged acts. The dispute arouse over whether the arrest warrants issued within three years adequately proved the statute had not run. While the warrants may have commenced a municipal court prosecution intended to result in a preliminary hearing, this prosecution began with a grand jury indictment. The prosecution showed the prior prosecution commenced before the statute had run. However, it presented no evidence to show how long the statute was tolled by that prosecution. The prosecution had its chance but failed to show the statute had not run by the time the indictment issued.id: 15840
A defendant may expressly waive the statute of limitations where the waiver is for his benefit.Defendant, facing capital murder charges, agreed to plead guilty to the lesser offense of voluntary manslaughter. Prosecution of that offense was time-barred. He sought to waive the statute of limitations for voluntary manslaughter to avoid prosecution on the greater charges. A defendant may expressly waive the statute of limitations where, as here, the waiver is for his benefit.id: 11467
Rent skimming convictions based on acts committed more than three years after the acquisition of the last parcel of property were barred by the statute of limitations.Defendant and his wife were convicted of multiple counts of rent skimming - failure to apply rental payments from the property to the mortgages. Civil Code section 892 provides the statute of limitations for the offense and requires a prosecution must be within three years after the date of the acquisition of the last parcel of property that was subject to skimming by the defendants. Because several of the charged acts occurred more than three years before the commencement of the prosecution the convictions as to those acts were reversed.id: 10851
Offenses charged under Corporations Code sections 25110 and 25540 regarding the offer or sale of unqualified securities come within the statute of limitations tolling provision set forth in Penal Code section 803, subdivision (c).Penal Code section 803, subdivision (c) provides for a discovery rule which tolls the otherwise applicable statute of limitations with respect to those offenses, a material element of which is fraud or breach of a fiduciary obligation, and which specifically includes a violation of section 25540, of any type, or section 25541 of the Corporations Code. The trial court erred in refusing to apply this statutory tolling rule to 17 counts of a criminal information charging violations of Corporations Code section 25110 - proscribing the offer or sale of unqualified securities.id: 10850
Extended limitations period for a sex offense on a minor is not implicated where the offense is reported by someone other than the victim.Penal Code section 803, subdivision (g) enlarges the period of limitations for prosecution of specified sex offenses to allow a criminal complaint to be filed within one year of the date of a report to a 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 specified sex offense. Section 803, subdivision (f) is not implicated where, as here, the report of those offenses to a law enforcement agency is made not by the victim, who is unaware she was so victimized, but by a person other than the victim.id: 9958
Updated 3/7/2024Defense counsel’s general consent to the prosecution’s packet of instructions did not forfeit the statute of limitations violation.Defendant was convicted of misdemeanor child endangerment. He argued reversal was required because the one-year statute of limitations had run on the offense. The prosecutor argued that defendant forfeited the issue because defense counsel generally assented to its requested jury instructions. However, general consent to the prosecutor’s packet of instructions doesn’t forfeit the statute of limitations issue.id: 26359
A report of sexual abuse made to police by a person other than a victim does not constitute a report by a victim under former section 803, subd.(g). Defendant was convicted of committing lewd acts upon a child prior to 1994, but defendant was not charged until 2013. The statute of limitations was extended by Penal Code section 803, which allows a complaint to be filed within one year of a report to a law enforcement agency by a person alleging he or she was a victim. A report of sexual abuse made to police by a person other than the victim does not constitute a report by the victim under section 803, subd. (g), even if that report was based on the victim’s allegation of abuse. However, because Jane Doe had personally reported the incident to the sheriff’s office in late 2012, the complaint filed in 2013 was timely.id: 25661
The trial court did not err by failing to instruct on the statute of limitations for conspiracy where the statute of limitations had not been placed in issue by the defense.Defendant argued the trial court did not properly instruct the jury about the statute of limitations requirement for conspiracy. However, such an instruction is only required if there is some question regarding the statute of limitations.id: 25201
The prosecution could amend the indictment to cure the defect regarding the inadequately alleged statute of limitations.Defendant moved to dismiss five counts because the complaint and indictment inadequately alleged tolling of the statute of limitations. However, amending an indictment by adding or extending allegations tolling the statute of limitations does not change the offense charged, and such amendment was allowable under Penal Code section 1009.id: 25082
The statute of limitations did not expire where it allowed charges for events happening in 1995 and the victim testified that she was molested weekly from 1993 through 1995.The victim testified that defendant molested her weekly from 1992 through 1995. The applicable six year statute of limitations period (which was extended to 10 years before it expired) would have allowed the prosecution for offenses committed in 1995, but not before. This evidence showed defendant molested the victim at least six times in 1995, and the statute of limitations did not preclude the prosecution. id: 23307
There was no statute of limitations violation where the insurance fraud victim notified reporting irregularities before 2005, but did not actually learn of the fraud until later. Defendant was convicted of 33 counts of worker’s comp fraud in violation of Insurance Code section 11880. Counts 2-20 involved acts committed before September 2005, and defendant argued these acts were outside of the relevant four year statute of limitations. The statute begins to run when the insurance company actually learns of the fraud. The evidence supported a finding that while the insurance company noticed some red flags suggesting irregular reporting in the earlier years, it did not actually learn of the fraud until 2006. Moreover, the trial court properly denied defendant’s request to review some of the company’s emails in this regard, since they were covered by the attorney-client and work product privileges.id: 23293
Convictions for aggravated sexual assault of a child were not barred by a statute of limitations.Defendant argued a 10 year statute of limitations applies to a violation of Penal Code section 269 for aggravated sexual assault upon a child. However, a violation of that provision is punishable by a 15 years-to-life prison term, and under section 799, can be prosecuted at any time. id: 22655
The statute of limitations is satisfied by the filing of a John Doe arrest warrant that identifies the suspect by only a DNA profile, and the improper collection of defendant’s DNA did not trigger the exclusionary rule. For purposes of the statute of limitations, a prosecution for an offense commences when an arrest warrant is issued but the warrant must particularly describe the defendant. In cases where the warrant identifies the perpetrator by his or her unique DNA profile only, the statute of limitations is satisfied if the prosecution is commenced by the filing of the “John Doe” arrest warrant within the limitations period. An unknown suspect’s unique DNA profile satisfies the “particularity” requirement for an arrest warrant. Although the defendant’s blood was mistakenly collected under the DNA act of 1998, the law enforcement personnel error did not trigger the exclusionary rule.id: 21364
The prosecutor could argue for the first time on appeal that the case was governed by new 10 year statute of limitations which extended the previous statute before it expired. Defendant argued the statute of limitations for the sex offenses lapsed before the present claim was initiated with the filing of the indictment. He claimed the 6 year statute was not tolled by the discovery of DNA evidence and expired before the proceedings began. The AG responded on appeal for the first time that the case was governed by the 10 year statute of limitations specified in Penal Code section 801.1, subd.(b). Contrary to defendant’s claim, the AG is not prevented from relying on the new statute on appeal because the statute of limitations
may be raised at any stage of the proceedings. Moreover, there was no ex post factor violation in
applying the new 10 year statute which did not revive an expired statute, but rather extended one
before it expired.id: 21329
The statute of limitations for the embezzlement offenses began to run when the defendant’s supervisors learned of his conduct.Defendant argued the embezzlement counts were time-barred because he was indicted more than four years after the offenses should have been discovered. However, the statute of limitations period did not begin to run until defendant’s supervisors learned of his conduct. The fact that his subordinates knew what he was doing was not significant.id: 21706
Defendant’s prosecution for premeditated attempted murder did not violate the statute of limitations because it could be brought at any time under section 799. Defendant argued his premeditated attempted murder charge had to be dismissed because it was filed after the six year statute of limitations period set forth in Penal Code section 800. However, for purposes of determining the applicable limitation of time under section 805, subd.(a), the life term imposed by section 664, subd.(a), for premeditated attempted murder constitutes an alternative penalty provision, not an enhancement, and therefore defendant’s prosecution for that crime may be commenced at any time under section 799.id: 21803
Where the statute of limitations issue was first raised after trial, the matter was remanded to allow the trial court to determine whether the statute was tolled.Defendant argued that several convictions were barred by the statute of limitations because the information was not filed within three years of the commission of the offenses. The issue was raised first after trial by way of an unnoticed oral motion. The prosecution argued the statute may have been tolled because defendant was out of the state for part of the time or because an arrest warrant was issued within the limitations period. The matter was remanded for a hearing where the trial court would decide the issue. id: 21474
The six year statute of limitations did not apply to the section 288, subd.(b) charges because the one strike law providing a life term was also alleged.Defendant argued the Penal Code section 288, subd.(b) charges based on conduct that occurred in 1995 and 1996 were barred by the statute of limitations because the maximum punishment for the offense is eight years which makes it subject to the six year limitations period described in section 800. However, the one strike law described in section 667.61 is an alternate penalty scheme which provides for a life term. Therefore section 799 which states that prosecution may be commenced at any time applies to the current charges.id: 21442
The statute of limitations on the grand theft charge began to run when the government agency learned of the theft, not when a contractor who paid the funds learned of the violation.Defendants where charged with grand theft and perjury based upon false representations that they were child care providers entitled to funds from the Department of Public Social Services. They actually received the funds from Crystal Starrs, a nonprofit agency used by DPSS to distribute the funds. Defendants argued the prosecution was barred by the statute of limitations - four years under Penal Code section 801.5 from the time the victim became aware of the violation. However, the period had not run from the time DPSS learned of the incident. Contrary to defendant’s claim, Crystal Starrs was not a victim for the present purposes and the statute of limitations had not run.id: 21190
The appropriate statute of limitations for child annoyance or molest as a recidivist is three years.Defendant was convicted of annoying or molesting a child in violation of Penal Code section 647.6, subd.(c)(2), which became a felony because of a prior section 288, subd.(a) conviction. Contrary to defendant’s claim, when a person is charged with felony child annoyance or molestation as a recidivist, the appropriate statute of limitations is the three year statute.id: 21189
Misdemeanor child abuse charges were not barred by the one year statute of limitations where they were based on the same conduct as the charges in the superseded information. Defendant was convicted of child abuse on a theory of direct abuse based on the things he told the children that caused them mental suffering. The child abuse charges in the indictment were nevertheless based on the “same conduct” as the child abuse charges in the superceded information, which the prosecutor said were based on indirect abuse the defendant inflicted on the children by physically abusing their mother in their presence. Because the child abuse charges in both cases were based on the same conduct, the prosecution of the 2004 case tolled the statute of limitations on the misdemeanor child abuse charges of which defendant was convicted. Therefore, those charges were not barred by the one year statute of limitations.id: 20797
Trial counsel was not ineffective for failing to raise the statute of limitations issue where the statute had been extended from six to 10 years before it expired.On December 21, 2005, defendant was charged with committing multiple sex offenses on Jan. 4, 1996. Following his conviction of the charged offenses, he argued trial counsel was ineffective in failing to raise the statute of limitations for the time-barred offenses. However, the 10-year statute of limitations applicable to defendant’s crimes was continuously in effect since January 1, 2001. The six year statute in Penal Code section 800 did not expire until Jan. 4, 2002. The extension of the statute of limitations was constitutionally permissible and defendant’s prosecution was never time-barred.id: 20538
The burglary prosecution was timely where the arrest warrant was issued well within the limitations period.Defendant argued the burglary prosecution was time barred under the three year limitations period of Penal Code section 801. Whether burglary is subject to the three year or the four year period (section 803, subd.(c)) it was timely in the case since the arrest warrant was issued well within either period.id: 19879
Child annoyance with a prior is a felony offense for purposes of the statute of limitations.Child annoyance under Penal Code section 647.6, subd.(a)(1) is a misdemeanor. The offense is a felony under subdivision (c)(2) where the defendant has a prior conviction. Defendant argued that the one year statute of limitations applied to his section 647.6, subd.(c)(2) charge which he referred to as a "felony enhancement" provision. However, section 647.6, subd.(c)(2) defines a felony offense and the one year statute of limitations did not apply to defendant's attempt to violate that provision.id: 19975
The DNA profile of the perpetrator of a sex offense incorporated in an arrest warrant provides the particularity of identification of an offender required by Penal Code section 804. The statute of limitations for a sex offense is satisfied when the prosecution is commenced within the period of limitations by the filing of an arrest warrant predicated upon the identification of the perpetrator by a DNA profile.id: 19920
Grand theft and forgery are subject to the four year limitations period set forth in section 803, subd.(c).Penal Code section 803, subd.(c)'s legislative history confirms that grand theft and forgery are subject to the four year, rather than the three year statute of limitations period.id: 19878
The trial court had no duty to submit the limitations extension issue of section 803, subd. (g) to the jury under Apprendi.Defendant argued the trial court erred in failing to instruct sua sponte on the statutory provision extending the limitations period for three counts of forcible sodomy. However, the court had no duty under Apprendi v. New Jersey (2000) 530 U. S. 466, to instruct the jury to decide the applicability of Penal Code section 803, subd.(g).id: 19420
The statute of limitations period applicable to a violation of indecent exposure under section 314, subd. 1 is the three year period described in section 802.Defendant was convicted of indecent exposure and the offense was a felony because he had suffered prior convictions for the same offense. (Penal Code section 314, subd. 1.) He argued the statute of limitations for the charged offense had lapsed prior to the initiation of proceedings. However, the statute of limitations applicable to a felony violation of section 314, subd. 1 is the three year period not the shorter misdemeanor term under section 802.id: 19368
Defendant charged with child molest that was otherwise a misdemeanor but was a felony due to a prior conviction was properly prosecuted within the three year statute of
limitations period. Annoying or molesting a child under the age of 18 is a misdemeanor under Penal Code section 647.6, subd.(a), which is subject to a one year statute of limitations period. However, where as here, the defendant has a prior child molest conviction, the offense is a felony. Defendant argued that because the conduct underlying his conviction was a
misdemeanor under section 647.6, the applicable statute of limitations was one year. However, the offense charged was a felony and prosecution was timely where it commenced within three
years of the charged offense.id: 19299
Section 803, subd.(c), which extends the limitations period for certain offenses until after the discovery of the offense applied to a violation of section 115.Defendant was convicted of two counts of recording false documents under Penal Code section 115, subd.(a). She argued the limitations period had expired and that the increased term under section 801.5 did not apply because section 115 was not an offense listed under section 803, subd.(c). However, the list of offenses under section 803, subd.(c) is not exhaustive, and a provision similar to section 115 is listed. The terms of section 803.5, subd.(c) which mandates the running of the limitations period "after discovery of the offense" applied to a violation of section 115.id: 18867
The felony complaint satisfied section 803, subd.(g) as to any transactionally related count that was added to the information based on preliminary hearing testimony that qualifies as a new report to law enforcement.Under Penal Code section 803, subd.(g) otherwise time-barred molest offenses may be charged within one year of the date of a report to law enforcement. The felony complaint filed in this case is deemed to satisfy the filing requirement in section 803, subd.(g) as to any transactionally related count that was added to the information based on preliminary hearing testimony that qualifies as a new report to law enforcement. The matter was remanded to determine whether the conduct alleged in counts four through nine was previously unreported.id: 18441
It is the filing of the information, not the criminal complaint, which commences the prosecution of a felony for statute of limitations purposes.The six year statute of limitations period of Penal Code section 800 had run as to several counts since they were alleged in the amended information, filed in 2003, to have been committed as late as December 31, 1995. However, as to the last count, continuous sexual abuse of a child, the prosecution argued the statute had not run because the complaint was filed on October 21, 2002, and the evidence showed one example of sex abuse took place after October 21, 1996, but before November 6, 1996, a period covered by the six year limitations period. However, the amended information alleged the offense occurred at the latest on November 6, 1996. No information was filed until more than six years later in 2003. The filing of a criminal complaint does not commence the prosecution of a felony for statute of limitations purposes.id: 18438
Rubbing the victim's vagina over her clothes constitutes substantial sexual conduct for purposes of section 803, subd.(g). The prosecution argued that otherwise time barred molest counts could be charged pursuant to Penal Code section 803, subd.(g) if the complaint is filed within one year of the report to a law enforcement agency. That provision applies if the crime involves substantial sexual conduct excluding masturbation that is not mutual. Defendant argued that rubbing the victim's vagina over her clothes did not constitute substantial sexual conduct because there was no skin to skin contact and not every indirect touching of a child's genital area constitutes masturbation. However, an interpretation of the term "masturbation" more restrictive than the touching of genitals in section 288, subd.(a) would be contrary to the legislative purpose of section 803, subd.(g).id: 18440
The statute of limitations for filing a false nomination paper under section 18203 is four years after discovery.The statute of limitations for an offense of filing a false nomination paper under Election Code section 18203 is four years after discovery.
id: 18021
While a charge of receiving stolen property under section 496(a) was time barred, the offense of concealing stolen property under the same provision is a continuing offense and evidence supported the conviction under that theory.Defendant was convicted of receiving and concealing stolen property under 496, subd.(a). The offense of receiving stolen property was time-barred because there was no evidence he received the computer equipment within three years of the date he was charged with receiving it. However, the offense of concealing stolen property, under the same provision, is a continuing offense. The evidence supported the crime of concealing stolen property where he lied about purchasing the property in 1995 and knew it was stolen.id: 17634
BAJI No 2.62 defining "clear and convincing" burden of proof was sufficient for purposes of section 803, subd.(g).To extend to the statute of limitations in sex offense cases under Penal Code section 803, subd.(g), there must be a recent report of previous improper conduct and independent evidence which clearly and convincingly corroborates the victim's allegation. The trial court correctly provided the BAJI instruction (No. 2.62) defining clear and convincing proof. The court did not err in failing to further instruct using dicta from another opinion.id: 16488
A defendant forfeits the right to complain on appeal of a time-barred lesser included offense where the charged offense was not time-barred and the defendant requested or acquiesced in the instructions on the lesser offense.Defendant was acquitted of felony embezzlement but the jury found him guilty of the misdemeanor equivalent. (Penal Code sections 504, 514.) However, the court erred in failing to instruct the jury that the statute of limitations for a misdemeanor was only one year whereas the provision for the felony was three years. The instruction given allowed jurors to convict defendant of the misdemeanor based on acts committed two years and eight months before the complaint was filed. The court further held that a defendant must raise the issue regarding the statute of limitations in the trial court in order to preserve it for appeal. However, this new rule is to be applied prospectively only.id: 15838
The three year statute of limitations for criminal conspiracy governed the action for conspiracy to manufacture and/or distribute unauthorized cable TV descramblers.Defendants were convicted of conspiracy to manufacture or distribute cable television decoder boxes without authorization from the license television systems in violation of Penal Code section 593d, subdivision (b). The three-year statute of limitations for criminal conspiracy governs and, therefore, the charges against defendants were timely because the information was filed in less than three years after the last overt-act in the conspiracy.id: 15842
Child molest charges were timely under section 803, subdivision (g) where the complaint was filed within a year of the time the conduct was reported.Penal Code section 803, subdivision (g) allows an otherwise time-barred action for sexual abuse to proceed if the prosecution files a criminal complaint within one year of the victim's allegation to the police. The case was certified to the superior court more than one year after the conduct was reported. However, because the complaint was filed less than one year after the victim reported defendant to the police, the action was timely under the express terms of section 803, subdivision (g). Moreover, contrary to appellant's claim, section 803, subdivision (g) does not only apply in cases where a defendant admits his guilt, even though some corroboration is required.id: 15361
Date of first e-mail transmission which began a five month period of contact demonstrated the charged offenses occurred within the limitations period.Defendant was charged with attempting to seduce minors through Internet communications. He argued the victim (the adult pretending to be the two young victims) did not identify the date of each Internet conversation and therefore there is no evidence of the time each offense occurred. However, the victim testified defendant's first e-mail contact was on September 6, 1997. This contact began a five-month period of e-mail contact and demonstrated the charged offenses occurred within the limitations period.id: 15364
Spousal rape victim's allegation was corroborated by defendant's violation of a domestic violence TRO, for purposes of provision extending the statute of limitations.Penal Code section 262, subd.(b) provides the six year statute of limitation of section 800 applies to the charge of spousal rape. The requirement that the rape be reported does not apply if the charge is corroborated by admissible independent evidence. Defendant argued the court erred in denying his motion to dismiss due to the lack of corroborating evidence. However, defendant's violation of a domestic violence restraining order was relevant to the charge of spousal rape and thus could be used under section 262, subd.(b) to corroborate his wife's allegations for purposes of proceeding with prosecution. Moreover, defendant's statement to the police also corroborated the allegation. He first denied the claim, but then admitted it claiming the act to be consensual. He therefore admitted the act of intercourse occurred and described the same location as his wife (a field). Moreover, the court did not err in failing to instruct the jury that it had to find the victim's testimony was corroborated since this was a legal question to be resolved by the trial court before trial.id: 14848
A request for an instruction on a lesser related offense is properly denied when the offense is time-barred.Defendant argued his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. However, the trial court properly ruled that defendant could not waive the statute-of-limitations on the misdemeanor offense. Moreover, a request for an instruction on a lesser related offense is properly denied when the offense is time-barred.id: 12061
Appellant failed to establish good cause for waiving the time limitation period applicable to his petition for determination of his factual innocence.Appellant petitioned the court for a declaration of innocence pursuant to Penal Code section 851.8, subdivision (c) more than 16 years after the dismissal of the rape charge. Section 851, subdivision (1) provides that such petitions must be filed within two years of the date of the arrest or accusatory pleading. However, the only showing of good cause as to why the time limit should have been waived was appellant's assertion that he had been trying to resolve his difficulty informally, apparently with the local district attorney's office. Even granted the leniency to which pro se litigants are entitled, appellant did not make a sufficient showing of good cause to waive the time limit.id: 12062
Defendant has the burden of proving the statute of limitations has run on the crimes of misappropriating public funds and perjury for certifying false official invoices.For offenses involving misconduct in office by a public employee the three-year statute of limitations does not begin to run until discovery of such an offense. It starts to run when the offense is discovered by the victim or the responsible law enforcement authorities. When the crimes involve misappropriation of public funds and perjury for certifying false official payment invoices, the victim is a public employee occupying a supervisorial position who has the responsibility to reverse the fiscal affairs of the entity and thus the legal duty to report a suspected offense to law enforcement agencies. At the pretrial hearing on the motion to dismiss the indictment on the ground the statute of limitations has run, the defendant has the burden to prove the statute has run as a matter of law.id: 12063
Statute of limitations does not bar a trial court when imposing sentence or setting conditions of probation.Defendant argued the amount of his restitution fine went beyond the scope of his <i>Harvey</i> waiver because it took into account criminal acts, the prosecution of which was barred by the statute of limitations. However, the statute of limitations does not bar a trial court from considering previous criminal acts when imposing sentence or setting conditions of probation.id: 12065
The facts known by the conservator of the estate were not sufficient to impart to him constructive knowledge of the commission of a crime thereby triggering commencement of the limitations period.Conservator of decedent's estate knew (1) the amount of time defendant spent in decedent's home, (2) that defendant removed some packages, (3) the absence of a camera when defendant said he was taking pictures and (4) that decedent's metal detector had been removed from its usual place. This information was not sufficient to have placed the conservator on constructive notice that the gold coins were missing from the estate due to criminal conduct, thereby triggering commencement of the limitations period.id: 12066
The filing of an information tolls the period of limitations as to lesser related offenses which are based on the "same conduct."Defendant argued the trial court erred in granting the prosecution's motion to amend count III which originally charged a violation of Penal Code section 12303 (possession of fixed ammunition of a caliber greater than .60) to a violation of Health and Safety Code section 12305 (possession of an explosive) because the amendment occurred more than three years after the offense and was barred by the statute of limitations. However, the filing of an information tolls the period of limitations as to lesser related offenses which are based on the same conduct.id: 12067
The running of the statute of limitations for filing false or forged documents is tolled until the discovery of the crime.Defendant was charged with filing false or forged documents under Penal Code section 115, subdivision (a). He argued the statute of limitations period for that offense is three years. However, the purpose of section 115 is to protect the integrity and reliability of public records. Given that purpose and the scope of section 803, the running of the statute of limitations as to section 115 is tolled until the discovery of the crime.id: 12068
Three year limitations period applied to offenses notwithstanding that appellant was declared a ward of the court.Appellant was declared to be a ward of the court after a finding that he had committed an assault with intent to commit rape and sexual battery. He argued that since imprisonment is not available as a penalty for a minor adjudicated a ward of the court because of a criminal offense, the one-year statute of limitations enunciated under Penal Code section 802 (rather than the three-year period under section 801) should be applied. However, since the offenses committed are punishable by imprisonment in the state prison, the applicable statute of limitations is three years.id: 12069
Exception to statute of limitations for sex offense against a child does not require a preexisting conviction within the limitations period.Penal Code section 288 offenses ordinarily must be commenced within six years of the offense. Section 803 provides an exception and allows the complaint to be filed within one year of a report of an enumerated offense by a child where one offense is outside the normal limitations period and one offense is within the normal period. Defendant argued the two charged counts allegedly committed in 1985 were barred by the statute of limitations because section 803 requires that the alleged crime committed within the limitations period (section 803, subdivision (f)(2)), means defendant was convicted of at least one crime within that period. However, the statute is clear and the word committed does not require a preexisting conviction.id: 9956
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245