The opinion
RUBIN, J., Concurring.
I write this concurrence for two reasons: first, to explain why I join in the majority’s reversal of appellant’s convictions under counts 3 and 6 for attempted misdemeanor molestation of a minor under 14 years old; and second, to call to the Legislature’s attention what may have been an oversight when it modified the statute of limitations for certain crimes, an oversight the Legislature may wish to correct.
The usual statute of limitations for misdemeanors is one year. (Pen. Code, § 802, subd. (a).) 1 Appellant contends the trial court erred in letting the jury convict him of the attempted misdemeanor molestation of “Becky” (count 3) *1329 and “Jenny” (count 6) because the People did not file those charges against him within one year of his commission of the offenses. Appellant acknowledges section 802, subdivision (b) extends the statute of limitations for misdemeanor child molestation of a minor under 14 years old to three years. He contends, however, that the three-year extension does not apply to his attempt to commit those crimes. I reluctantly agree he is correct.
Several legal principles compel me to accept appellant’s contention. First, the attempt to commit a crime is a separate offense from successfully completing the same crime. (People v. Reed (2005) 129 Cal.App.4th 1281, 1283 [ 29 Cal.Rptr.3d 215 ] [sentencing statute mentioning commission of offense did not apply to attempted commission because an “attempt is an offense ‘separate’ and ‘distinct’ from the completed crime”]; People v. Le (1984) 154 Cal.App.3d 1, 10 [ 200 Cal.Rptr. 839 ] [“attempted crimes are considered to be separate and distinct. . .”].) In acknowledging the difference between an attempted crime and a completed one, the law allows the difference to have real consequences. For example, punishment for an attempted crime is ordinarily less severe than punishment for a completed crime. (§ 664.) As one court held, a sentencing statute (§ 667.6) that applied to the completed crime of sodomy in concert did not apply to attempted sodomy because the statute did not mention the attempt to commit the offense. (See People v. Reber (1986) 177 Cal.App.3d 523, 535 [ 223 Cal.Rptr. 139 ], disapproved on another point in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [ 65 Cal.Rptr.2d 1 , 938 P.2d 986 ]; see also People v. Thomas (1990) 218 Cal.App.3d 1477, 1490 [ 267 Cal.Rptr. 865 ].) The different treatment of attempted and completed crimes persists in at least one decision involving a statute of limitations. In that decision, the appellate court in People v. Abayhan (1984) 161 Cal.App.3d 324 [ 207 Cal.Rptr. 607 ], noted there is no statute of limitations for murder, but a three-year statute of limitations applies to attempted murder if the attempt was not willful, deliberate, and premeditated. (Id. at p. 329; see also §§ 799, 664, subd. (a), 189.)
Well-established rules of statutory construction require me to accept appellant’s interpretation of the silence in section 802, subdivision (b) concerning attempted misdemeanor child molestation. First, courts are loath to add language missing from a statute. (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097 [ 282 Cal.Rptr. 841 , 811 P.2d 1025 ]; People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030, 1034 [ 56 Cal.Rptr.2d 21 ].) The unwillingness of courts to add language is especially strong when statutory language was readily available to the Legislature if it had wished to express an intention different from the statute’s plain meaning. For example, penal statutes commonly use the phrase “commit or attempt to commit” (or similar words) if the statute covers both the attempted and completed crimes. (See, e.g., § 189 [“perpetration of, or attempt to perpetrate” predicate offenses]; *1330 § 12022 [firearm enhancement applies to “commission of a felony or attempted felony”].) Granted, authority supports adding language to a statute in the rare circumstance that its absence is clearly an accident and its inclusion is needed to give purpose to the statute. (See, e.g., People v. Buena Vista Mines, Inc., supra, at p. 1034 [language expressed legislative intent that offense be a felony even though statute did not state “felony” or “ ‘state prison’ ”].) Here, however, section 802, subdivision (b) makes sense within its four comers, and its legislative history does not mention attempted molestation being on legislators’ minds. Without legislative history revealing the Legislature intended a three-year statute of limitations for both attempted and completed molestation, I cannot say with certainty that the Legislature accidentally failed to include attempted molestation in section 802, subdivision (b)—and thus I may not interpret the statute to say it does.
Finally, the rule of lenity supports appellant’s interpretation. Under that rale, a court must generally interpret an ambiguous criminal statute in the defendant’s favor. 2 That rale has been applied to adopt a shorter statute of limitations favored by a criminal defendant instead of a longer one urged by the prosecution. (Gasaway v. Superior Court (1977) 70 Cal.App.3d 545, 550 [ 139 Cal.Rptr. 27 ].)
Although I believe we are compelled to apply a one-year statute of limitations to attempted misdemeanor child molestation, there are sound reasons for a statute of limitations that treats both attempted and completed misdemeanor molestation the same. The legislative history discusses two principal reasons for a three-year statute of limitations, First, children often delay reporting molestation to a responsible adult, such as a parent, teacher, or doctor. The delay frequently arises from shame, embarrassment, or other feelings that make children hide, rather than report, their victimization. To ensure the harmful emotions the molester spawns in a child do not work to the molester’s advantage, the Legislature chose to give children more time to report the crime by enacting a longer statute of limitations. The same reticence to report attempted child molestation is likely to exist—perhaps more so, because the conduct may appear less threatening to the child.
The second reason the legislative history discusses for a longer statute of limitations involves the connection between misdemeanor molestation and more serious sexual offenses. Under a phenomenon a proponent of a three-year statute of limitations described as “grooming,” child welfare authorities have observed that sexual conversation, photographs, and invitations of the sort appellant pursued here could accustom a child to sexual behavior. By *1331 sexualizing a child with sexual banter and other conduct short of touching, a molester can prepare the child to be receptive to more direct sexual contact down the road. A longer statute of limitations recognizes that the molester’s sexualization of the child could be a long journey warranting a longer time to allow criminal prosecution. Attempted child molestation is equally likely to be part of this grooming.
I believe the Legislature’s two reasons for enacting a three-year statute of limitations for misdemeanor child molestation apply with equal force to attempted molestation. However, unless and until the Legislature acts with clearer direction to the courts, I agree with the majority’s conclusion that we must reverse and dismiss appellant’s convictions under counts 3 and 6 for attempted molestation.
Appellant’s petition for review by the Supreme Court was denied April 1, 2009, S169774.
All future statutory references are to the Penal Code.
The rule of lenity applies when ambiguous statutory language permits two reasonable interpretations. Although arguably section 802, subdivision (b) is not ambiguous, to the extent the People argue that it is, then the rule of lenity applies.