People v. Frazer

BROWN, J., Dissenting.

I fully concur in Justice Kennard’s well-reasoned analysis and conclusion that revival of a criminal statute of limitations *783 violates our state’s constitutional guaranty of due process. (Cal. Const., art. I, §§ 7, 15.) I further agree we should not consider ourselves joined at the hip with the United States Supreme Court in interpreting the California Constitution, whose independent vitality this court is charged with preserving. (Cf. Warden v. State Bar (1999) 21 Cal.4th 628, 660 [ 88 Cal.Rptr.2d 283 , 982 P.2d 154 ] (dis. opn. of Brown, J.) [state equal protection provisions should be interpreted independently of federal guaranty].) I write separately to emphasize an additional point on which the majority’s holding contravenes the government’s obligation to act with fundamental fairness.

Until Cowan v. Superior Court (1996) 14 Cal.4th 367, 374 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (Cowan), this court categorically had held that the statute of limitations invokes fundamental subject matter jurisdiction. (People v. McGee (1934) 1 Cal.2d 611, 613 [ 36 P.2d 378 ].) Although a number of other states concluded to the contrary, “in California the statute of limitations constitutes a substantive rather than a procedural right which is not waived by failure to assert it at the pleading stage. If reliability of evidence was the sole factor, certainly a conviction based on a guilty plea would be valid notwithstanding the running of a limitation period. Yet, it is now well settled that a conviction, even if based on a plea of guilty, is subject to collateral attack if the charge was originally barred by the applicable limitation period. [Citations.]” (People v. Zamora (1976) 18 Cal.3d 538, 547 [ 134 Cal.Rptr. 784 , 557 P.2d 75 ].) “The point may therefore be raised at any time, before or after judgment.” (People v. McGee, supra, 1 Cal.2d at p. 613 ; People v. Chadd (1981) 28 Cal.3d 739, 757 [ 170 Cal.Rptr. 798 , 621 P.2d 837 ].) Accordingly, the People had the burden to plead and prove that the prosecution was commenced within the prescribed period (see In re Demillo (1975) 14 Cal.3d 598, 602 [ 121 Cal.Rptr. 725 , 535 P.2d 1181 ]), and numerous Courts of Appeal have characterized it as an element of the offense. (See People v. Bunn (1997) 53 Cal.App.4th 227, 233 [ 61 Cal.Rptr.2d 734 ].) Although the rule is now modestly tempered (see People v. Williams (1999) 21 Cal.4th 335 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ]; Cowan, supra, 14 Cal.4th at pp. 374-375), for the most part application of the defense remains absolute.

I have elsewhere expressed my disagreement with this determination. (See Cowan, supra, 14 Cal.4th at pp. 383-393 (conc. and dis. opn. of Brown, J.).) Nevertheless, when the statutory period on the charged offense expired in 1990 and when the Legislature enacted Penal Code section 803, subdivision (g), in 1994, defendant could have asserted the limitations defense at any time and could have secured dismissal of the charges or reversal of his conviction.

Now, long after defendant achieved this jurisdictional repose, the majority deprives him of it without a qualm. The possibility defendant may have *784 committed the offense does not validate the majority’s due process transgression. Child molestation will always rank among the most heinous and odious of crimes. The victims suffer long after completion of the act. Nonetheless, the potential that a guilty person will avoid just punishment is inherent in all statutes of limitations. Society has assumed this loss in exchange for other considerations. (See People v. Zamora, supra, 18 Cal.3d at p. 547 ; cf. Wiley v. County of San Diego (1998) 19 Cal.4th 532, 541 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ]; Duckworth v. Egan (1989) 492 U.S. 195, 223-224 [ 109 S.Ct. 2875, 2890-2891 , 106 L.Ed.2d 166 ] (dis. opn. of Marshall, J.); Abney v. United States (1977) 431 U.S. 651, 661 [ 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 ] [double jeopardy]; In re Winship (1970) 397 U.S. 358, 372 [ 90 S.Ct. 1068, 1076-1077 , 25 L.Ed.2d 368 ] (conc. opn. of Harlan, J.) [burden of proof beyond a reasonable doubt]; Mapp v. Ohio (1961) 367 U.S. 643, 659 [ 81 S.Ct. 1684, 1693-1694 , 6 L.Ed.2d 1081 ] [exclusionary rule].) The Legislature has seen fit to change the rules defining the limitations period with respect to child molestation, as well it has authority to do. Applying that change to defendant in these circumstances is another matter, however, and one of constitutional dimension. Whether or not such application violates the ex post facto prohibition, in my view it most certainly does not comport with California’s guaranty of fundamental fairness.

Respondent’s petition for a rehearing was denied October 20, 1999, and the opinion was modified to read as printed above. Mosk, J., Kennard, J., and Brown, J., were of the opinion that the petition should be granted.