Petitioners Brief — Stogner v. California
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| Siereme Court, US
FILED |
YAN 16 os |
In The Supreme Court of the Anited States
MARION REYNOLDS STOGNER, Petitioner
vs.
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF CALIFORNIA
BRIEF FOR PETITIONER
aS SS ESSE
Alternate Defender Office
Contra Costa County
William W. Veale
Chief Assistant Defender
Rcberto Najera, (Counsel of Record)
Deputy Alternate Defender
Elisa Stewart
610 Court Street
Martinez, CA 94553
Telephone: (925) 646-1740
Attorneys for the Petitioner
i
QUESTIONS PRESENTED (Rule 14.1 (a))
a Did the California Legislature’s abolition of
the Statute of Limitations requirement, which
historically comprised an element of the crimes charged,
so as to charge Petitioner retroactively, violate the Ex
Post Facto Clause?
2. Did the California Legislature’s abolition of
the Statute of Limitations arbitrarily retract a liberty
interest the state had conferred on Petitioner?
iii
TABLE OF CONTENTS
TE 1
JURISDICTIONAL STATEMENT.................cccceeeeeeeeeeees l
CONSTITUTIONAL PROVISIONS AND CALIFORNIA
PENAL CODE STATUTES INVOLVED. .....................064: l
STATEMENT OF THE CASE .............ccccccccssssccssececeeeees 2
SUMMARY OF THE ARGUMENT ....................ccc0eceeeees a
A. ST oa rn enenenccemcennctnntmnanensennd 6
B ee 6
EEE EET OE 7
A. a 7
EE 9
Statute of Limitations as an Operation of Law.....10
En ae 20
ee 25
TT Te nrccnrtsisceennncntcnnedpenecenenesscenconsscsees 29
a 30
B. EE 31
Fundamental Right of Liberty....... pesnaitioudincsinasesenese 33
ST cecctcnieenecesnsssunenseseccesonee sitdinentniinenmnnte 35
TT 37
The Substantive Nature of the Right.................. 40
TABLE OF AUTHORITIES
Cases
Adams v. Woods, 6 U.S. 336 (1805).............. 38, 46, 49
Atlantic Coast Line R.R. Co. v. City of Goldsboro, 232
Set WUE crrcccnrprecinemibcmenenseubesmnintensrenianisermmeuaigueee 36
Barker v. Municipal Court, 64 Cal.2d 806 (1966)....... 46
Blackburn v. Superior Court, 21 Cal.App.4th 414
I ateciiintaipepiednguhtpoatianeinennneimannianineaenseneees 39, 49
Board of Pardons v. Allen, 482 U.S. 369 ...............06. 33
Board of Regents v. Roth, 408 U.S. 564 .................6. 33
Bradley v. School Bd. of Richmond, 416 U.S. 696, 711
IEA cngninagsincnipcnsntanimecnennvetintenmiailadtensbessibantuees 45
Brown v. Walker, 161 U.S. 591, 597 (1896)........ 35, 49
Calder v. Bull, 3 U.S. 386 (1798) ................ 8, 9, 25, 32
Campbell v. Holt, 115 U.S. 620 (1885....................64. 48
Carlo v. City of Chino, 105 F.3d 493 ............ccccceccceees 34
Carmell v. Texas, 529 U.S. 513 (2000).....3, 31, 40, 42,
43
Chambers v. Gallagher, 177 Cal. 704 (1918)....... 16, 27
Chase Secs. Corp v. Donaldson, 325 U.S. 304 (1945)48
Collins v. Youngblood, 497 U.S. 37 (1990) ......... passim
Cummings v. Missouri, 71 U.S. 277 ............0++ 7, 13, 27
Daniels v. Williams, 474 U.S. 327, 331 (1986) .......... 50
Dash v. Van Kleeck, 7 Johns. 477 (1811).................. 40
Ex Parte Garland, 1 U.S. 333 (1866).....................000 13
Ex Parte Louis Cohen, 104 Cal. 524 (1894) ......... 38, 49
Ex Parte Vice, 5 Cal.App. 153 (1907) ...............cceseeee 41
Falter v. United States, 23 F.2d 420 (1928)............... 49
Fletcher v. Peck, 10 U.S. 87 ...........cccssccsecseeees 7, 32, 36
Foucha v. Louisiana, 504 U.S. 71 (1992)....... 32, 33, 50
Griswold v. Connecticut, 381 U.S. 479 .........c.cccceeeeees 36
Guaranty Trust Co. of New York v. York, 326 U.S. 99
ee 48
Hale v. Henkel, 201 U.S. 43 (1906)...................+. 38, 49
Hart Moore v. State, 43 N.J.L. 203 (1881)........... 39, 42
Hicks v. Oklahoma, 447 U.S. 343 (1980). ................. 48
TT EN 48
vi
In re Gustavo M., 214 Cal.App.3d 1485 (1989).......... 44
In re Medly, 134 U.S. 160...........cccccceccsceeeeeeeeeeeeeeeeees 26
In re Melvin J., 81 Cal.App.4 742 (2000)................. 31
In re Winsheip, 997 U.S. SSG.............cccccccsresccessccsscesees 19
Ingraham v. Wright, 430 U.S. 651 (1977)............ 32, 33
Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) ....43
James v. United States, 366 U.S. 213 (1961)............ 22
Kring v. Missouri, 107 U.S. 221 (1883)....16, 17, 18, 19
Landgraf v. USI Film Prods., 511 U.S. 244 .........0200++ 46
Lynce v. Mathis, 519 U.S. 433 ..........ccccccseeeseeeeees 12, 29
Lynch v. Superior Court, 33 Cal.App.4" 1223 (1985) .45
Malloy v. South Carolina, 237 U.S. 180...........:cccceeeeees 7
Mapp v. Ohio, 367 U.S. 643 ........::ccccceeesseeseeeeseeeeeeeees 46
Marks v. United States, 430 U.S. 188 (1997)............. 46
McComb v. Superior Court, 68 Cal.App.3d 89............ 14
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ...<...... 43
Means v. Cheyenne Tribal Court, 154 F.3d 941...14, 29
Medina v. California, 505 U.S. 437 (1992) ................ 44
Miller v. Florida, 482 U.S. 423 ............c.ccceeeeee 7,12,15
Montana v. Egelhoff, 518 U.S. 37 (1956)....... 42, 43, 44
Moore v. State, 43 N.J.L. 203 (1881) .............cccccceeeees 36
Olmstead v. United States, 277 U.S. 438 (1928)........ 47
Pendergast v. United States, 317 U.S. 412 (1942) ....38,
49
People v. Asavis, 27 Cal.App.2d 685 (1948).............. 41
People v. Ayhens, 85 Cal. 86 (1890)...............cscceeeeees 41
People v. Chadd 28 Cal.3d 739 (1981)............ 4, 14, 37
People v. Crosby, 58 Cal.2d 713 (1962)............... 14, 40
People v. Crutcher, 262 Cal.App.2d 750.............0000+ 14
People v. Cunningham, 99 Cal.App.2d 296 (1950).....41
People v. Doctor, 257 Cal.App.2d 105 (1967).25, 27, 41
People v. Eitzen, 43 Cel.App.3d 253 (1974)............... 45
People v. Frazer, 21 Cal.4 737 (1999) .............. passim
People v. Haskins 177 Cal.App.2d 84, 87 (1960)....... 45
Peopie v. Hoffman, 132 Cal.App. 60 (1933)....5, 41, 42,
de
People v. James 85 Cal. 86 (1890) ............cccccseeeeeeeees 41
People v. Le, 82 Cal.App.4® 1352 (2000) ...... 20, 24, 44
People v. McGee, 1 Cal.2d 611 (1934)................ passim
vii
People v. McNulty, 93 Cal. 427 (1892.............cccccseeees 14
People v. Miller, 12 Cal. 291 (1859)......... 20, 29, 37, 41
People v. Mower, 28 Cal.4% 4570000000... cccccccececeeeeceeee 24
People v. Quartermain, 16 Cal.4% 600, (1997)........... 46
People v. Rehman, 62 Cal.2d 135 ..............ccccceee. 11,15
People v. Snipe, 25 Cal.App.3d 742 (1972)................ 44
People v. Stogner, A084772 (Cal.App. October 14,
Ea ccdnseacedgndcereenccntbidnnsaneentecbessenssendicteccenenseoes 2,22
People v. Williams, 21 Cal.4% 335 (1999)........... passim
People v. Zamora, 18 Cal. 3d 538, 547 (1976)....passim
EB gE ee 34
Pointer v. Texas, 380 U.S. 400..........cccccceccsccssseccsevese 36
Rabe v. Washington, 405 U.S. 313 (1972)................. 46
Raley v. Ohio (1959) 360 U.S. 423 ..............ccccceeeeeeees 47
Reno v. Flores, 507 U.S. 292 (1993)................006 32, 33
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1974)
puadabscnddupentemessatnapesentaiconaesegsocnsensstansscesuneensesnenceseaes 45
Rochin v. California, 342 U.S. 165, 172 (1952).......... 49
Sandin v. Connor, 515 U.S. 472.........ccccccccceeeceseeceeees 33
Serna v. Superior Court, 40 Cal.3d 239 (1985).......... 41
Sobiek v Superior Court, 28 Cal.App.3d 846 (1972) ..45
State v. Cookman, 127 Or.App. 283 (1994)......... 42, 47
State v. Dufort, 111 Or.App. 515 (1992).................... 47
State v. Hodgson, 108 Wash.2d 662 (1987) .............. 47
State v. Keith, 63 N.C. 140 (1869).................ccccceceeees 13
State v. Sneed, 25 Tex.Supp. 66 (1860).............. 19, 42
Stogner v. California, No. 99-8895 (October 2, 2000) ..2
Stogner v. Superior Court, 93 Cal.App.4* 1229 (2001) ..
3, 26
Teague v. Lane 489 U.S. 288 (1989) ................ccccc0ee 45
Texaco Inc. v. Short, 454 U.S. 516 ........ccccccccccceceeeeees 32
United States v. Enas,.255 F.3d 662 (9% Cir. 2001) ..29
United States v. Hall, 26 F.Cas. 84 .........ccccccccccceeeeees 20
United States v. Lanier, 520 U.S. 259 (1997) ............ 47
United States v. Salerno, 481 U.S. 739 (1987)....32, 33,
50
United States v. Schooner Peggy, 5 U.S. 103............. 18
United States v. Irvine, 98 U.S. 450 (1878)................ 46
Vitek v. Jones, 445 U.S. 480.0000... ..cccccccccceccececeeececeees 34
viii
Washington v. Glucksberg, 521 U.S. 702 ...............005 32
Washington v. Texas, 388 U.S. 14, 25 (1967) ........... 43
Weaver v. Graham, 450 U.S. 24 .........c.ccccceeeee 7, 12,40
William Danzer & Co. v. Gulf & S.LR., Co., 268 U.S.
FUP CS IIEEEED vocrcccccccnncnepannssetapessaevecnecnecntdccsincsecceseiedi 48
Wolff v. McDonnell, 418 U.S. 539 ...........ccccceseeeeeeeeeeee 34
People v. Zamora, 18 Cal.3d ...............00.06 4, 20, 41, 42
Zinermon v. Burch, 494 U.S. 113 (1990) ................... 50
Statutes
Cal. Penal Code section 803(g) (West 1985 & Supp.
SIE covesenccnopeecspespsccconesoaneninoseosepcsonncconsctboosenl passim
Cal. Penal Code section 805.5.................... 3, 5, 40, 45
Cal. Pen. Code section 1000 (West 1985 & Supp. 2002
Cal. Pen. Code section 800 (West 1985 & Supp. 2002) ~
POE AEP SE RNS OT Sat AREF EWEN Ss: EDT UMEe SON NUS NEON Ee Mem 1,4
Cal. Penal Code section 15 (West 1999).................... 14
Cal. Penal Code section 955 ..........ccccccccccccccccccsescscees 24
Cal. Penal Code section 288(a) (West 1999)...... 1, 2, 48
Other Authorities
CALJIC No. 2.72 (6% ed. 1996) ..............ccceeceeeeeeeeeeees 23
CALJIC No. 2.91 (6% ed. 1996.) 00.0.0... eeeeeeeeseeeeees 23
1 William Blackstone, Commentaries. .......................+ i)
3 Commentaries on the Constitution of the United
ED cccsundseiccsencctictanitabiiinbihabtiachecatsindssaicccndiiiassdedl 26
Black’s Law Dictionary (7th ed. 1999)................ 21, 26
Chamberlain, The Doctrine of Stare Decisis: Its
Reasons and Its Extent (1885)...............c..ceeseeeeeeees 45
Webster’s New Collegiate Dictionary (7th 1974)........ 26
Constitutional Provisions
Sieh Gene, AUIS JETEID is ccinninanisailicentansscanddnsaiameuuaienia 1
See GEE GS Bias TE ccciccsceiietiesieatasaccennssoctnisednenindain 7
oF t- 88 RO OF OR Re nae sae |
Ses Ges A ts Ut Wo ePrccnccidedebctbeddtenebnncensdocisenadansunntie 7
—
1
OPINION BELOW (Rule 14.1(d))
The opinion of the California Court of Appeal,
First Appellate District, which is the subject of this
petition, was reported at 93 Cal.App.4th 1229 (2001). It
appears in Appendix G. The California Supreme Court’s
order of February 27, 2002, denying discretionary review
is attached as Appendix I. There is no written decision
of the respondent Superior Court.
JURISDICTIONAL STATEMENT
The judgment of the California Court of Appeal to
be reviewed was filed on November 21, 2001. (App. G,
19.) The California Supreme Court denied discretionary
review on February 27, 2002. (App. I, 37.) The petition
was filed pursuant to Rule 13.1 within 90 days of that
date and was subsequently granted on December 2,
2002. Petitioner invokes this Court’s jurisdiction under
28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS AND CALIFORNIA
PENAL CODE STATUTES INVOLVED
The United States Constitution, Article I, section
10, clause 1, provides: “No State shall ... pass any ... Ex
Post Facto Law...” (U.S. CONST. Art. I, § 10, cl. 1).
The United States Constitution, Amendment XIV,
states: “No State shall ... deprive any person of life,
liberty, or property, with out due process of law...” (U.S.
Const. Amend. XIV).
Penal Code Section 288(a). (CAL. PEN. CODE §
288(a) (West 1999) (App. J, 38).
Penal Code Section 800. (CAL. PEN. CODE § 800
(West 1985 & Supp. 2002) (App. K, 39).
Penal Code Section 803(g). (CAL. PEN. CODE §
803(g) (West 1985 & Supp. 2002) (App. L, 40). -
STATEMENT OF THE CASE
In April 1998, a complaint was filed charging
Petitioner with two counts of a lewd act upon a child
under California Penal Code section 288(a), (App. J, 38),
alleged to have been committed 25 to 43 years earlier.
(App. A, 1.) The complaint acknowledged on its face that
the limitations period for the offenses had expired, but
alleged that the charges could be prosecuted pursuant
to Penal Code section 803(g) (App. L, 40.)!
Petitioner successfully demurred to the complaint
on the ground, inte alia, that section 803(g) constituted
an ex post facto law. The district attorney moved,
unsuccessfully, in superior court to reinstate the
complaint. On the State’s appeal?, the California
Appeals Court reversed pursuant to the California
Supreme Court's holding in People v. Frazer, 21 Cal.4th
737 (1999), that Penal Code section 803(g) was not
unconstitutional. People v. Stogner, No. A084772
(Cal.App. Oct. 4, 1999). (App. B, 5.)
This Court denied discretionary review. Stogner
v. California, No. 99-8895 (Oct. 2, 2000) (App. C, 9.)
However, at the time of the denial, no California court
had adjudicated Petitioner’s 805.5% claim, nor had they
! Effective January 1, 1994, section 803(g) created a new one year
limitations period for certain sex offenses, following a report to a
law enforcement agency by a person of any age that he or she has
been the victim of sexual misconduct while under the age of 18. It
applies only to such causes of action already barred by Limitation.
2 The original demurrer raised the Statutory bar under Penal Code
805.5, but it was not litigated under the State’s Appeal.
3 Penal Code Section 805.5 provides:
(a) As used in “his section, “operative date” means January 1,
1985.
(b) Except as provided in subdivision (c}, this chapter applies to
an offense that was committed before, on, or after the
operative date.
eatin aad
3
evaluated his Constitutional claims in light of Carmell v.
Texas, 529 U.S. 513 (2000).
The complaint was reinstated in superior court
but subsequently dismissed when the prosecutor filed
an indictment. (App. B, 5.) That indictment, filed
March 14, 2001, again charges Petitioner with two
counts of molestation as against Jane Doe I and Jane
Doe II, alleging conduct between 1955 and 1964 and
between 1964 and 1973, respectively. (App. D, 10.)
Again the indictment alleged that the charges could be
prosecuted under section 803(g).
Petitioner demurred, asserting that no cause of
action was stated, and the court lacked jurisdiction.
The demurrer raised ex post facto and due process
violations, and alleged that section 805.5 barred
application of section 803(g). (App. E, 14.) Upon denial
of the demurrer, Petitioner filed a writ of prohibition.
The Court of Appeals granted an Alternate Writ on the
grounds that Petitioner had no other adequate remedy
at law, but in it’s published opinion ultimately riled
against hir.. (App. F, 15); see also Stogner v. Superior
Court, 93 Cal.App.4th 1229 (2001) (App. A, 1.) Arequest
for rehearing was denied. (App. H, 36.) The California
Supreme Court denied discretionary review. (App. I, 37.)
(c) This chapter does not apply, and the law applicable before the.
operative date does apply, to an offense that was committed
before the operative date, if:
(1) Prosecution for the offense would be barred on the
operative date by the limitation of time applicable before
the operative date.
(2) Prosecution for the offense was commenced before the
operative date.
(CaL. Pen. Cope § 805.5) (West 1985 & Supp. 2002)
4
SUMMARY OF THE ARGUMENT
(Rules 10, 14.1 (h))
The State’s retroactive actions violate the Ex Post
Facto and Due Process Clauses and all sense of fairness
and finality contained therein. The State’s claim of
power to legislate retroactively is against the nature of
criminal Statutes of Limitations. In California the
Statute is a basic and required element and ingredient of
the prosecution’s case. The State circumvents its
inability to overcome the law by altering it after the fact.
The California courts, through their decisions in Frazer
and Stogner have upheld these laws in a manner which
retroactively vests jurisdiction, cedes power to the State
to Prosecute, forfeits Petitioner’s rights and creates a
new cause of action to punish Petitioner.
California has created, through its enactment of
Statutes of Limitation, a tripartite right of absolute
finality in Petitioner’s favor. Where applicable‘ this rule
confers a substantive nght upon the people. See People
v. Williams, 21 Cal.4th 335, 339 (1999); People v. Chadd,
28 Cal.3d 739, 758 (1981); People v. Zamora, 18 Cal.3d
538, 547 (1976). It places an absolute limit on the
State’s ability to prosecute by terminating liability and
denies punishment. Zamora, 18 Cal.3d at 547. It bars
California’s courts from exercising fundamental
jurisdiction over the subject and the subject matter. See
People v. Williams, 21 Cal.4th 335, 340, 347 (1999);
People v. McGee, 1 Cal.2d 611, 613 {1934).
Although California created this rule, it now seeks
to destroy it. California seeks to retroactively strip
Petitioner of this right and inject new elements into an
* People v. Frazer, 21 Cal.4th 737, 777 (1999) (Kennard, J.
dissenting).
5 California has created Limitations Statutes for most, but not all
crimes, at all times relevant herein the limitations period was
three years; see also CaL. Pen. Cope § 800. (App. K, 39.)
expired cause of action in order to prosecute Petitioner,
by Indictment for conduct barred by the Statute of
Limitations jor over twenty-five years.
Based on California Penal Code § 803(g), the
State claims that the scourge of child molestation
legislatively compels and constitutionally permits the
retroactive forfeiture of Petitioner’s right consistently
ruled not subject to forfeiture. See People v. Williams,
21 Cal.4th 335 (1999); People v. McGee, 1 Cal.2d 611
(1934); People v. Hoffman, 132 Cal.App. 60 (1933); but
see People v. Frazer, 21 Cal.4th 737 (1999). It claims
the power to destroy a rule of law effectively in place
since the State’s foundation. See Frazer at 743. It has
rewritten its own rules® to retroactively cast out
Petitioner from legislation designed through Penal Code
section 805.5 to specifically reaffirm his particular right.
This Writ requests this Court to determine
whether rights, so ingrained in American jurisprudence
as to be deemed irrevocable, can be retroactively revoked
without violating the dictates of the United States
Constitution. For if California is successful in depriving
Petitioner of this right in this situation, then such right
has effectively been destroyed for all persons the States
may choose to prosecute, no matter how distant in time
and memory the conduct may be. No matter how long
the State has promised otherwise. No matter how final
the rule has been expressed to be.
It is therefore respectfully requested that the
matter be fully and fairly adjudicated under established
6 In 1985 the California Legislature overhauled the entire Statute
of Limitations scheme. For crimes barred by the limitations in
effect prior te the enactment date of this legislation, the prior
Statutes of Limitation were preserved and specifically exempted
from the new legislation. The First District Court of Appeal ruled
that this exemption was excepted by passage of Penal Code
§803(g). (App. G, 19.)
6
principles of due process, ex post facto, fairness and
finality that have guided all citizens, the states, and the
courts under the United States Constitution.
A. Issue One: Ex Post Facto
The State has retroactively redefined the material
ingredients of the offense, altered the rules of evidence,
disregarded the significance of ultimate facts and
enlarged the crimes thereunder, seeking punishment
where none could be had. Petitioner asserts that he is
entitled to rely on the Statute of Limitations, complete
since 1976, that California is attempting to revoke
retroactively. Petitioner asserts these actions violate
each of the Calder categories under the Ex Post Facto
Clause.
B. Issue Two: Due Process
The State attempts to revoke a right, which the
State’s Highest Court continues to assert is substantive,
belongs to Petitioner, and cannot be forfeited. Petitioner
requests that this Court find the State does so in
violation of the Due Process Clause. The Fifth and
Fourteenth Amendments of the United States
Constitution guarantee the principle that no person will
be deprived of life, liberty or property without due
process of law. Stripping the completed defense of the
Statute of Limitations from Petitioner deprives him of a
State guaranteed ability to regain his freedom. Having
deprived him of the mechanism that compelled the
any further, he must still face a trial that California and
this Court have agreed ie conclusively and
presumptively unfair. See United States v. Marion, 404
U.S. 307, 322 (1971); People v. Zamora, 18 Cal.3d 538
(1976).
ae
7 -
ARGUMENT
A. Ex Post Facto
As a necessary defense against the government,
the Framers twice placed the Ex Post Facto Clause in the
United States Constitution. So important were its terms
that it was necessary to include it as a prohibition not
only against the federal government (U.S. CONST. Art. 1,
§ 9) but the individual states as well (U.S. CONST. Art.1,
§ 10).7 It is an express restraint upon the power of the
state and federal legislatures that prohibits arbitrary or
vindictive retroactive legislation. See Malloy v. South
Carolina, 237 U.S. 180, 183 (1915). It also serves to
prevent the lack of fairness and notice inherent in
retroactive punitive measures. See Weaver v. Graham,
450 U.S. 24, 28-9 (1981)8; Carmell v. Texas, 529 U.S.
513, 532-33 (2000); Miller v. Florida, 482 U.S. 423, 429-
30 (1987).
7 Chief Justice Marshall traced the restriction upon legislative
power to various provisions of the United States Constitution,
“Whatever respect might have been felt for the State sovereignties,
it is not to be disguised that the framers of the Constitution viewed
with some apprehension the violent acts which might grow out of
the feelings of the moment; and that the people of the United
States, in adopting that instrument, have manifested a
determination to shield themselves and their property from the
effects of those sudden and strong passions to which men are
exposed. The restrictions on the legislative power of the States are
obviously founded in this sentiment; and the Constitution of the
United States contains what may be deemed a bill of rights for the
people of each State.” Cummings v. Missouri, 71 U.S. 277, 322
(1866) quoting Fletcher v. Peck, 10 U.S. 87, 138 (1810).
8 “Critical to relief under the Ex Post Facto Clause is not an
individual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was
consummated. Thus, even if a statute merely alters penal
provisions accorded by the grace of the legislature it violates the
Clause if it is both retrospective and more onerous...” Weaver,
450 U.S. at 30-31.
The seminal case defining the Ex Post Facto
Clause, articulated the history and purpose of that term.
See Calder v. Bull, 3 U.S. 386 (1798). As Justice Chase
stated, “I cannot subscribe to the omnipotence of a State
Legislature, or that it is absolute and without control....”
Id. at 387-88. Thus the substantial protections of the Ex
Post Facto Clause were designed exclusively as
“additional bulwark{s] in favour of the personal security
of the subject, to protect his person from punishment by
legislative acts, having a retrospective operation.” Id. at
390.
In reaching its decision, the Calder Court
illuminated the types? of retrospective legislative action
that would violate the proscription. Id. at 390. Justice
Chase in particular articulated four categories that
today control determinations of whether retrospective
penal legislation is constitutional or not.!° See Carmell,
529 U.S. at 522-6.
9 These categories were conceived from experience with the
legislative despotism exercised by England, which the Framers
sought to negate with the ex post facto restraint on legislative
power. See Calder, 3 U.S at 389.
10 The categories are:
lst Every law that makes an action, done before
the passing of the law, and which was innocent
when done, criminal; and punishes such action.
2nd Every law that aggravates a crime, or makes
it greater than it was, when committed. 3rd. Every
law that changes the punishment, and inflicts a
greater pu:iishment, 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 offence, in order to
convict the offender.
Calder, 3 U.S. at 390.
In defining the Ex Post Facto Clause, the Calder
Court understood that not every retroactive law was
impermissible. Id. at 391. Thus the Court approved of
subsequent laws that might pardon an offender, or
otherwise forgive him. Id. These laws were retrospective
and penal, but not impermissible because they
ameliorated the consequences for the particular
offender. Id. As Justice Chase noted: “There is a great
and apparent difference between making an UNLAWFUL
act LAWFUL; and making an innocent action criminal
and punishing it as a CRIME.” Id.
Rather, “the restriction not to pass any ex post
facto law, was to secure the person of the subject from
inquiry, or punishment, in consequence of such law.”
Calder v. Bull, 3 U.S. 386, 390 (1798). Because 803(g)
operates after the fact on events predating it, it is
retrospective. Because it seeks only to ensnare and
punish those persons who would otherwise be beyond
prosecution, it is penal and cannot be seen as
ameliorative. It is an ex post facto law, which within the
Calder definitions violates the Constitution of the United
States.
Calder Category One
The classic understanding of Calder one occurs
“when after an action, indifferent in itself, is committed,
the legislator, then, for the first time declares it to have
been a crime,.and inflicts a punishment upon the
person who has committed it.” Calder, 3 U.S. at 396
(Paterson, J., citing 1 William Blackstone, Commentaries
*46.) However this is not the only scenario by which an
ex post facto law might operate against prior conduct
completed before the passage of such laws. The Statute
of Limitations’ role analyzed through category one has
two separate and distinct functions. First, by the
passage of the requisite time, the Statute of Limitations
acts as an operation of law to change the legal
consequences of certain acts committed beforehand.
10
Such a change in consequences was fixed in law and
time prior to the passage of 803(g) and discharged
cnminal lability and punishment for the allegations at
issue.
Second, once time runs, the Statute of
Limitations retains all of its characteristics as a defense
to the criminal charges and when asserted defeats the
State’s prosecution. If 803(g) retroactively acts upon
either of these qualities of the completed bar to the
Petitioner’s detriment, it violates ex post facto.
Statute of Limitations as an Operation of Law
An act, whether wrongful or not, may not acquire
all or even certain legal significance until another act
occurs. For clarity’s sake, the initial act will be deemed
the primary act and the event following, the secondary
act.
Existing law may operate upon a secondary act
so as to cause it to change the legal consequences of
the primary acts antecedent to it. Thus a secondary
act may pardon, grant amnesty, or otherwise divest or
lessen the criminality or punishment, which might
have attached to the first act alone, if not for the
passage of the secondary act. Similarly, the reverse
may be true: a secondary act may enlarge the
significance of the first, or now cause it to be
criminal.'! If the laws controlling both events exist by
‘| The crime of conspiracy is the classic example; requiring not
only the primary act (the agreement), but a secondary or “overt
act” to make the conduct criminal. “No agreement amounts to a
conspiracy unless an overt act be done to effect the object thereof,
and the pleading and proof of such an act is necessary to
constitute the offense. The overt act marks the commission of the
crime and fastens criminal liability upon the conspirators, the
period of limitations must be deemed to begin running at that
time; and where, as here, the conspiracy as charged is a
continuing one, the period begins to run with the commission of
11
the time both acts are completed, then no ex post facto
violations occur. It is only where subsequent to the
completed acts, a law is passed which seeks to alter
their legal significance, that the retrospective
legislation, if detrimental to the individual, is ex post
facto. }?
The legal significance of 803(g) is that it
retroactively operattes after a secondary act that was in
place prior to 803/g), and which had, by operation of law
already affected tthe primary acts preceding it. In this
case, Petitioner's continued presence in California
through Septemiber 1976 was the secondary act which
the last overt act alleged. See People v. Crosby, 58 Cal.2d 713,
728 (1962). Similarly, Zamora which traced the history of both the
California and federal rule noting that it was neither the completed
object that made the conspiracy (e.g., the related substantive
offense), nor the agreement itself, finding that the requirement of
an overt act to provide a “locus penitentiae - an opportunity to
reconsider, terminate the agreement, and thereby avoid
punishment for the conspiracy.” People v. Zamora, 18 Cal.3d 538,
549 n. 8 (1977) (citations omitted.)
Consider also, manslaughter: “In this state, the law
makes the crime of manslaughter a composite one. The striking of
the victim does not alone make the crime, nor does the death of
the victim without a striking (or some other conduct or force) make
the crime; it is a combination of the two.” People v. Rehman, 62
Cal.2d 135, 139 (1964).
12 There exists, as Justice Chase explained in Calder.
a manifest distinction between the case where
one fact relates to, and affects, another fact,
as where an after fact, by operation of law,
makes a former fact, either lawful or unlawful;
and the case where a law made after a fact
done, is to operate on, and to affect, such fact.
In the first case both the acts are done by
private persons. In the second case the first
act is done by a private person, and the
second act is done by the legislature to affect
the first act.
Calder v. Bull, 3 U.S. 386, 390, 393 (1798).
12
discharged the legal and criminal significance of his
actions that predated September 1973.'3 An ex post
facto analysis under Calder category one then cannot
occur without also understanding the legal significance
of the passage of the date September 1976. As this
Court explained, the critical inquiry is “whether the law
changes the legal consequences of acts completed before
its effective date.”'* Weaver v. Graham, 450 U.S. 24, 31
(1981) (finding that even if a statute merely alters penal
provisions accorded by the grace of the legislature, it
violates ex post facto if, as here, it retroactively reduces
the amount of good time which could be earned by
prisoners) (cited with approval in Miller v. Florida, 482
U.S. 423, 430 (1987).)
Thus in Lynce v. Mathis, 519 U.S. 433, 435
(1997), a prisoner, convicted in 1986, received good time
credits awarded solely to relieve overcrowding under a
1983 statute and was released in 1992. A new statute,
given effect retroactively, reduced said credits and
resulted in the prisoner’s reincarceration. Jd. at 436.
Arguing against the ex post facto claim, the State
asserted it could have relieved overcrowding by other
means and thus at most had created only a speculation
or hope that the prisoner would receive such credits.
Lynce, 519 U.S. at 437. This Court found the argument
canceled. It held that “[t}he 1992 statute has
unquestionably disadvantaged petitioner because it
13 The September 1976 date reflects the date of expiration of the
last applicable limitations period in this case.
1¢ There is a distinct difference between an act which, by operation
of law may vest an accused with a right, and a law which seeks to
undo what has already been accomplished by operation of law.
See Weaver, 430 U.S. at 30-1. It is not necessary under ex post
facto analysis for any right to be vested for a violation to occur. id.
_ Petitioner’s argument is strengthened, however because a nght
has also vested.
13
resulted in his rearrest and prolonged imprisonment.”
Id. at 446-47. It was the fulfilling of the conditional
secondary act, the actual granting of the credits, which
had ameli the punishment under the primary act
that, when taken action, violated ex post facto.
In State v. Keith, 63 N.C. 140 (1869), 1869 W.L.
1378 (N.C.), the Supreme Court of North Carolina was
confronted with this issue in the context of a legislative
grant of “unequivocal pardon” to Civil War soldiers for
all homicides and felonies done in discharge of their
duties. Id. at *2. This Act was subsequently repealed
and a former soldier prosecuted. Id. Finding the effect
of the pardon under state law to entirely destroy the
offense, as if never committed, the court held the repeal
_ ex post facto as making criminal what before the repeal
was not. Id. at *3-4. While never squarely addressing
this issue, this Court has agreed in dictum in Cummings
v. Missouri, 71 U.S. 277, 329 (1869).15
A Statute of Limitations, particularly in California
functions in the exact same way. In this regard it legally
divests the State of a cause of action in its entirety,
removes the punishment that might have been annexed,
and bars a legal conviction. In Petitioner’s case, the two
relevant acts had already occurred, the alleged primary
act has passed, but so too has the secondary act which
has altered any legal significance the primary act may
have had as a criminal or criminally punishable matter.
1S Nor was the Court’s discussion purely theoretical. In Ex Parte
Garland, 1 U.S. 333 (1866), the companion case to Cummings, the
Court was again faced with loyalty oaths in the context of a former
Confederate and lawyer, who had received an executive pardon,
and wished to return to practice before the Supreme Court, but for
such “loyalty oaths.” The ex post facto issue was raised in this
context but was not reached since the Court granted Garland relief
on the basis of separation of powers in light of executive clemency.
14
In this regard it is important to recall that any
allegations of wrongfulness are not evaluated as torts or
moral wrongs, but whether or not a crime has been
committed. A crime is solely an offense against a
sovereign. See Means v. Cheyenne Tribal Court, 154 F.3d
941, 948 (1998). It is by definition sanctioned and
enforced by the particular sovereign offended, which
seeks retribution and promotes deterrence through its
solely defines the crime.
In California, the Statute of Limitations has
ene Se Se Oe ee
offense. See People v. Crosby, 58 Cal.2d 713 (1962).
The California Supreme Court has repeatedly recognized
that prosecutions failing to establish this ingredient do
not state a public offense’® and are thus barred. In
People v. Chadd, 28 Cal. 3d 739, 756 (1981), it was
‘6 Through Penal Code Section 15, California equates the terms
crime and public offense and defines them as requiring both
commission of the prescribed acts and punishment upon legal
conviction. Both are necessary prongs to make a public offense.
“The section is in the conjunctive; both of the conditions must be
satisfied before the act will constitute a crime.” McComb v.
Superior Court, 68 Cal.App.3d 89, 96-7 (1977) citing People v.
Crutcher, 262 Cal.App.2d 750, 754 (1968). See also People v.
McNulty, 93 Cal. 427 (1892).
Penal Code section 15 provides:
A crime or public offense is an act committed or
omitted in violation of a law forbidding or
1
Disqualification to hold and enjoy any office of
honor, trust, or profit in this State.
(CAL. Pen. Cope §15 (West 1999).
15
recognized that “the courts have described as ‘ailing to
state a public offense’ an accusatory pleading that
shows on its face a violation of section 800.” People v.
McGee, 1 Cal.2d 611, 613 (1934) similarly held that an
action barred by limitation fails to state a public offense.
See also People v. Rehman, 62 Cal.2d 135, 139 (1964).
In Miller v. Florida, 482 U.S. 423, 433 (1987), the Court
noted that the proscribed violation occurs if the law
“changes the ingredients of the offemse or the ultimate
facts” needed to establish guilt.
Thus in California a crime dioes not occur within
the legal definition if barred by the Statute of
Limitations. Whether this result is because the
criminality of the act is removed, the punishment
abolished, or because a legal conviction is barred, makes
little difference since all are required to state a public
offense against California.
Examining these terms of art within the Calder
definitions, category one is violated by a law which seeks
to create a public offense through 803(g) retroactively,
when Petitioner has not committed a public offense. To
then incorporate a new ingredient through 803(g) in
for it renders his lawfully acquired innocence into a
crime.
Expressed another way, the destruction of the
cause of action, by way of the Statute of Limitations
results from the passage of the statutorily enacted
period. The absence of a cause of action means not only
that the state is barred from prosecution but that the
court lacks fundamental subject matter jurisdiction as
well. Because Petitioner’s Statute of Limitations bar is
complete he cannot be prosecuted.!”
17 In California, a Statute of Limitations in a criminal case creates
a substantive right, which renders a court wholly without
16
The Court’s overruling of Kring v. Missouri, 107
U.S. 221 (1883) supports this analysis. See Collins v.
Youngblood, 497 U.S. 37, 51 (1990).'8 Collins explained
that Kring rested on expansive dicta, which was broader
than the scope intended by the four categories in
question. 19 This Court stated: “The references in
jurisdiction once that right has ripened. The result of such
ripening is that it destroys not only the remedy that might have
been available if timely presented, but the underlying right or
cause of action as well. See People v. McGee, 1 Cal.2d 611, 613
(1934) (“In criminal cases, the state, through its legislature, has
declared that it will not prosecute crimes after the period has run,
and hence has limited the power of the courts to proceed in the
matter (citation omitted)); see also Chambers v. Gallagher, 177 Cal.
704, 708 (1918). “[Wjhen the statute of limitation has run, the
power to proceed in the case is gone.” McGee, 1 Cal.2d at 614.
The state has been divested of the right of action. See also People
v. Chadd, 28 Cal.3d 739, 756 (1981) (a violation of the statute of
limitations described as “failing to state a public offense.” Thus
the underlying cause of action was destroyed with the running of
the statute. Section 803(g) therefore creates a new cause of action
in violation of Calder categery one.
18 The Collins Court noted that the Kring decision was supported
by only five members of the court, with four members voicing a
strong dissent. See Collins, 497 U.S. at 48-50.
19 This was essentially the same position taken by the Kring
dissenters. Kring did not rest so much on whether or not his
claimed defense was merely procedural or substantive, a line that
has continually caused much consternation (See Collins, 497 U.S.
37, 44-5), but whether certain contingencies were required before
their significance could be set up as a defense. In Kring, the
primary act, the killing, had occurred before the change of law, but
the significance of the secondary act—the resulting acquittal of
first degree murder upon a plea to a second degree murder—had
previously been altered by legislative act before Kring pled. At the
time, the majority viewed the matter in a broad way as “alter{ing]
the situation of a party to his disadvantage,” a phrase often
repeated but which Collins noted did not fully comport with the
original Calder understanding. Id. at 235; Collins, 497 U.S. at 49.
On the other hand, the strong Kring dissent, joined in by
the Chief Justice, and perhaps forecasting the views of the Collins
majority, would have instead held that because the contingencies
17
Duncan and Malloy to “substantial protections” and
personal rights” should not be read to adopt without
explanation an undefined enlargement of the Ex Post
Facto Clause.” Collins, 497 U.S. at 46. As such, a
contingent possibility, such as relied upon by Kring,
which is dependant not just on the future acts of the
accused, but of the prosecution as well, and to which
nothing had yet attached, was an over inclusive
definition of a defense based solely (at that point) on the
law regulating the effect of guilty pleas which had
already changed. Id. at 50.20
themselves had not been fulfilled by the defendant prior to their
change, the defendant had no basis upon which he could now
claim to rely upon them. Kring, 107 U.S. at 240. As future
contingencies, they were seen as no more than mere modes of
procedure, which until acted upon, could be altered by the
legislature. Id. at 241. As an unfulfilled secondary act, its
repealed contingencies were of no legal effect or significance for
Kring. The dissent would have found an ex post facto violation
only if the contingencies had been fulfilled prior to the change in
law. Id at 239-40.
20 “It is the essential characteristic of an ex post facto law that it
should operate retrospectively, so as to change the law in respect
to an actor or transaction already complete and past. Such is no.:
the effect of the rule of the constitution of Missouri now in
question.” Kring v. Missouri, 107 U.S. 221, 240 (1883) (Matthews
J., dissenting; emphasis added). As the dissent in Kring pointed
out, at best such a claim might fit within Calder category four but
even then, it did not meet its requirements: while that rule (that a
second degree murder plea obviated any charge of first degree
murder) was in force the prisoner had no such evidence of which
he could avail himself. How then, has he been deprived of any
benefit from it? The evidence, of which it is said the prisoner has
been deprived, came into being after the law had been changed. It
was evidence created by the law itself, for it consists simply in a
technical inference; and the law in force when it was created
necessarily determines its quality and effect. It operated upon a
transaction between the prisoner and the prosecution, which
might or might not have taken place; and when it did take place
that consent must be supposed to have been given by both with
reference to the law as it then existed, and not with reference to a
law which had then been repealed. /d. at 239-40.
18
Indeed in Collins, the defendant was convicted
under a Texas law that allowed the State to sentence
him to life imprisonment, but to which was added an
unlawful $10,000 fine. Collins, 497 U.S. at 39. The
new law, passed at a time when Youngblood’s writ was
pending, but which had not yet been decided by the
appellate court, in fact acted to ameliorate the
punishments in Youngblood’s case by removing the
fine altogether. Id. Youngblood’s claim to be entitled
to a new trial under the Ex Post Facto Clause while his
appeal was pending had not yet attached, nor could
he claim to hare been harmed by a reduction in the
punishment.?! Youngblood conceded that his claim
did not fall within the requisite ex post facto
categories, but only within a broader view of the
Clause, to wit that any alteration that deprived him of
any potential benefit was taken ex post facto. Id. at
44. The Collins Court denied his request and in
overruling Kring, limited the Clause to its proper
foundation. 22
2! It is a long held “controlling rule” that if “subsequent to
judgment, and before the decision of the appellate court, a law
intervenes and positively changes the rule which governs, the law
must be obeyed...” United States v. Schooner Peggy, 5 U.S. 103,
110 (1801). Of course the Collins concurrence recognized that if
the reformatory law had acted to impose the improper fine, that
would have violated the Ex Post Facto Clause because it would
have increased punishment. Collins, 497 U.S. at 54 (Stevens, J.
concurring.)
22 Significantly, while the Kring court was divided 5-4, they were
not so divided if both the primary and secondary acts had passed
before any change in the law. Had such occurred all nine
members of the court would have held for Kring. Even more
significantly, both the majority and the minority expressed a
similar view as held by Petitioner in regards to a Statute of
Limitations where the time had actually passed. Both would have
ruled it an ex post facto violation to allow 803(g) to act upon it.
See Kring, 107 U.S. at 451 citing State v. Sneed, 25 Tex.Supp. 66
(1860) with approval and with the following language from <u:
dissent:
19
Under Calder category one, the Statute of
Limitations issue in the case before the Court must be
viewed in light of these precedents. Here two acts are in
question, the primary act being the alleged wrongdoing,
and the secondary act by operation of existing law,
divested the first act of certain legal significance. The
secondary act was the passage of the three-year
anniversary of the first act, occurring in Petitioner’s case
no later than September 1976. At that point, all
criminality that might have attached in California was
abolished.
Thus if the Statute of Limitations acts as a legal
bar to prosecution, as it does in California, to allow
either criminalization or punishment retroactively
violates Calder category one.
Moreover, once the Statute of Limitations
expired, the rebuttable presumption of innocence is
transformed to a mandatory conclusive presumption of
innocence. See Carmell, 529 U.S. at 532-33. The
“presumption of innocence” is “bedrock, axiomatic and
elementary — the foundation of our criminal law.” In re
Winship, 397 U.S. 358, 363 (1970). However, once the
statute of limitations expires, the presumption of
innocence becomes a mandatory’ conclusive
presumption because the state can no longer meet the
threshold requirement to rebutting the presumption of
innocence, thereby rendering any conviction after the
statutory period void. See People v. Zamora, 18 Cal.3d
it would be a violation of the constitutional maxim
which forbids retrospective legislation inconsistent
with vested rights, to deprive, by a repeal of
statutes of limitation, a defendant of a defense
which had become perfect while they were in
force.
Kring, 107 U.S. at 231 (Matthewson, J., dissenting.)
20
538, 564-65 (1976); People v. Le, 82 Cal.App.4% 1352
(2000); People v. Williams, 21 Cal.4 335 (1999); Cf.
United States v. Marion, 404 U.S. 307, 322 (1971)
(“These statutes [of limitation] provide predictability by
specifying a limit beyond which there is an irrebuttable
presumption that a defendant’s right to a fair trial would
be prejudiced.”)
As A Defense
While the Calder categories do not explicitly
mention the word “defense,” they fall under the
categories such that that they may not be removed
retroactively. See United States v. Hall, 26 F.Cas. 84,
(1809). The reason is clear: if the asserted defense
defeats the prosecution, the person is acquitted.
The first time California’s highest court
considered ti.e matter, they called the Statute of
Limitations a good defense to defeat the prosecution.
See People v. Miller, 12 Cal. 291 (1859). Since then no
California Supreme Court has held otherwise. Rather
than overrule this longheld fundamental defense, People
v. Frazer, 21 Cal.4% 737 (1999) attempts to truncate the
meaning of the relevant terms in order to hold it outside
Collins v. Youngblood, 497 U.S. 37 (1990) and therefore
not ex post facto. For each of the following reasons, they
are wrong.
California Penal Code section 803(g) deprives
petitioner of a complete defense that arose under the
Statute of Limitations in existence at the time of his
alleged offenses and which vested prior to any change in
the law. By law then, Petitioner’s defense would result
in an acquittal. See generally People v. Zamora, 18
Cal.3d 538 (1976). The deprivation contravenes the
prohibition against ex post facto legislation because it
eliminates a defense that negates an ingredient the
prosecution must prove to sustain a conviction. The
defense also operates as a form of legislatively enacted
_eettessrilllas st
21
pardon, amnesty, or excuse. 23 The abolishment of the
Statute of Limitations therefore violates the first Calder
category.
Although Collins v. Youngblood, 497 U.S. 37
(1990) is cited by Frazer for the proposition that only
certain defenses, those negating an element of the
proscribed conduct or operating as an excuse or
justification for the crime charged, are encompassed
within the first and second Calder categories, in fact, the
Court did not elaborate what defenses were included in
those labels and which ones were excluded. Frazer, 21
Cal.4th at 757. It is important to note that Collins was
not a case about defenses, pretrial, trial or otherwise.
Collins ruled that a statute allowing appeals courts to
reform and ameliorate improper sentences did not offend
the Ex Post Facto Clause. Collins, 497 U.S. at 52.24
Thus while the Collins Court was not specific, one can
23 Black’s Law Dictionary defines excuse as follows:
excuse. ...2. Criminal Law. A defense that
arises because the defendant is not blameworthy
for having acted in a way that would otherwise be
criminal. e The following defenses are the
traditional excuses: duress, entrapment, infancy,
insanity and involuntary intoxication.
BLACK’s Law DICTIONARY 430 (7th ed. 1999.) Although the statute of
limitations is not listed as a “traditional” excuse, it falls within the
definition since a defendant is no longer statutorily blameworthy,
that is he can no longer be prosecuted or punished, even when his
conduct would otherwise be “criminal.”
24 The Collins Court framed the result in the language of Beazell v.
Ohio: “The Texas statute allowing reformation of improper verdicts
does not punish as a crime an act previously committed, which
was innocent when done; nor make more burdensome the
punishment for a crime, after its commission; nor deprive one
charged with a crime of any defense available according to law at
the time when the act was committed.” Collins, 497 U.S. at 169-
70.
assume that a defense that negates a material ingredient
of the crime charged or justifies or excuses conduct
implicates the first Calder category. See Collins, 497
U.S. at 49-50. In the first instance, eliminating a
material ingredient or ultimate fact that the prosecution
must prove to sustain a conviction effectively makes
evidence that would result in acquittal now supportive of
a conviction.
The Frazer court waters down the Collins analysis
such that the oniy defenses protected by the ban on ex
post facto legislation are those that address the
“criminal quality of the act’ as evidenced ‘either by the
legal definition of the offense or by the nature or amount
of the punishment’ at the time it occurs.” 21 Cal.4th at
760. - The court reasoned that its conclusion was
warranted by reliance, which it viewed as the sole aim of
the Ex Post Facto Clause.?5 Frazer, 21 Cal.4th at 757. It
referred to Collins for reinforcement: “For this reason,
Collins made clear that ex post facto protection extends
only to ‘defense[s]’ bearing on the ‘definition’ and
25 Justices Harlan warned against citing notice and reliance as the
single goal of the Ex Post Facto Clause: “Aside from problems of
warning and specific intent, the policy of the prohibition against ex
post facto legislation would seem to rest on the apprehension that
the legislature, in imposing penalties on past conduct, even
though the conduct could properly have been made criminal and
even though the defendant who engaged in that conduct in the
past believed he was doing wrong (as for instance when the
penalty is increased retroactively on an existing crime), may be
acting with a purpose not to prevent dangerous conduct generally
but to impose by legislation a penalty against specific persons or
classes of persons.” James v. United States, 366 U.S. 213, 247 n.3
(1961). In declining to abandon the fourth Calder category, this
Court echoed Justice Harlan: “... the absence of a reliance
interest is not an argument in favor of abandoning the category
itself. If it were, the same conclusion would follow for Calder's
third category (increases in punishment), as there are few, if any,
reliance interests in planning future criminal activities based on
the expectation of less severe repercussions.” Carmell v. Texas,
529 U.S. 513, 531 n.21 (2000).
~
wee OE
23
‘elements’ of proscribed conduct, or involving ‘excuse or
justification’ for its commission. Jd. at 760 (emphasis
omitted).
Although Collins made reference to defenses that
are linked with the legal definition of the offense the
decision in no way concludes that the government can
abolish a defense that negates an element of the crime
the prosecution must prove. Collins, 497 U.S. at 50.
The Frazer definition of defenses truncates its proper
examination by failing to account for the legislative and
judicial definitions of a crime.” Rather, they limit their
analysis solely to the elements of the proscribed conduct
rather then the offense. Moreover, the Frazer definition
of defense simply cannot apply with precision to all the
defenses inherent in a defendant’s absolute right to
mount a defense. The court’s decision also brings to
light an interesting anomaly in the law. That is, the
distinction between proscribed conduct and the
elements of an offense the prosecution must prove at
trial to sustain a conviction.
For instance, in California identity is not part of
the definition of the proscribed conduct of a crime
(CALJIC No. 2.72 ) (6th ed. 1996) and yet it is a required
element that the prosecution must prove. (CALJIC No.
2.91) (6th ed. 1996.) Likewise, Statutes of Limitations in
California are not part of the definition of proscribed
26 Examining only the definition of penal code section 288 they do
not find the limitations defense within its terms. The reason for
this error is their failure to examine the ingredients that comprise
this public offense in California. ne say apenas oeal
judicial in ion the scope of this defense is that it
7 aa
prove this ingredient is fatal to a criminal cause of action
maintained by the state. The state fails to comprehend that where
no public offense lies, no crime has been committed.
24
conduct but are an element of a relevant offense?’ in
which the prosecution bears the burden of proof. See
People v. Le, 82 Cal.App.4th 1352, 1360 (2000).
It would be unthinkable for the legislation to
retroactively abolish the defense of mistaken
identification, and yet that is the necessary conclusion
after applying the Frazer interpretation of Collins.
While California has made the molestation of
children a crime, it has also made prosecution subject to
limitations. When time runs, the accused holds a
complete defense. This defense negates an element of
the crimes charged, proof of which is borne by the
prosecution. This defense also operates as an excuse.
Defenses of excuse do not operate in the same
manner as defenses that negate an element. Consider
the excuse of immunity. Asserting immunity from
prosecution does not void an element of the “crime.”
Indeed the assertion is collateral to the proscribed
conduct. The same could be said for such defenses as
entrapment, necessity or the momentary handling of a
controlled ee for the purpose of disposal. See
People v. Mower, 28 Cal.4 457, 480 (2002). These
defenses essentially admit all of the elements of the
relevant crimes as defined by Frazer. Id. at 480-81. To
draw a distinction amongst defenses available to the
defendant and provide lesser protection for certain
substantive defenses is simply arbitrary. The same
standards subsumed in the concept of fundamental
fairness apply to all such defenses including excuse.
Retroactive removal then is precisely the type of concern
which the Ex Post Facto Clause was designed to prevent.
There is no merit to an argument that purports to
27 The term relevant refers to those offenses where time is a
material ingredient in the sense that they are accompanied by a
Statute of Limitations. See CaL. Pen. Cope § 955 (West 1985).
~
a =
oe ieee ee
remove an absolute defense from a distinct group of
defendants because of the status of the crime with
which they are charged. Although the State of California
is entitled to abolish the statute of limitations
prospectively, it cannot do so retroactively.
The State attempts to overcome the problem
inherent herein by holding that all they need do is
effectively remove this ingredient and a public offense is
then stated. Even were that true it is qualitatively a
different offense and by all accounts, a new offense. It
also destroys this “good defense”, turning what was a
substantive right belonging to the people and redefining
it as a remedial process belonging to the state. See also
People v. Doctor, 257 Cal.App.2d 105, 110 (1967) (“We
remind ourselves that the bar of the statute of
limitations in a criminal matter is going to jurisdiction
rather than merely a remedy.”)
Calder Category Two
Under the Ex Post Facto Clause, the punishment
aspect of retrospective legislation falls under both Calder
one and three. The second category then refers to both
the aggravation and enlargement of crime beyond the
creation of new punishment or increases to existing
punishment. It must therefore be viewed as a distinct
category. While proscribed conduct can fall under more
than one Calder category, Calder two certainly is not
merely duplicative of the others. As Justice Paterson
stated in Calder, “The enhancement of a crime, or
penalty, seems to come within the same mischief as the
creation of a crime or penalty.” Calder, 3 U.S. at 397.
Similarly, while the State attempted to confine the
Calder categories down to two, this Court has made
clear that nothing in Collins or any other decision was
meant in anyway to overrule Calder’s original four
Supreme Court opinions. See Carmell, 529 U.S. at 525.
A law that aggravates or makes greater without
simply falling into categories one or three encompasses a
situation where the scope of the crime is made either
larger or is now “more serious.””® It is self-evident that a
crime for which the state declares it is no longer seeking
to try to convict or to incarcerate is less serious than one
for which the state declares it will forever seek
prosecution.?? Secondly, the crime is enlarged because
it now includes others within its grasp who previously
were not, which is clearly the legislature’s intent under
803(g). See Stogner v. Superior Court, 93 Cal.App.4th
1229 (2001); People v. Frazer, 21 Cal.4th 737 (1999).
That such an enlargement is proscribed has been clear,
see Cummings v. Missouri which found that a loyalty
oath was exacted not to determine fitness for callings
“but because it was thought that the several acts
deserved punishment, and that for many of them there
was no way to inflict punishment except by depriving
the parties, who had committed them, of some of the
rights and privileges of the citizen.” Cummings v.
Missouri, 71 U.S. 277, 320 (1866).
28 Justice Story, writing on the Ex Post Facto Clause noted that
included “the act, if a crime, is aggravated in enormity, or
punishment...” 3 Commentaries on the Constitution of the United
States § 1339: 212.
Black’s definition of “aggravate” as, “made worse or more
serious,” (Black’s Law Dictionary 65 (7th ed. 1999)) is not unlike
the concept understood in Webster’s, “a: to make heavy: BURDEN
b: INCREASE, 2: To make worse, more serious, more severe;
intensify unpleasantly.” WEBSTER’s NEw COLLEGIATE DICTIONARY 23
(7th 1974).”
29 The Legislative purpose behind the Statute of Limitations
supports the notion, recognizing the “fear that never-ending threat
of prosecution will be more detrimental than beneficial to society.”
Cowan v. Superior Court, 14 Cal.4th 367, 375 (1996); see also In re
Medly, 134 U.S. 160, 172 (1890) (recognizing that increases in
mental anguish to prisoner which flowed from his inability to
ascertain when the State might choose to execute its punishment
enlarged punishment and was ex post facto.
tte
27
The State further enlarges the crime by creating
retroactive jurisdiction in the criminal courts of
California. A proposition California courts had
historically specifically held contrary to the meaning of
their limitations period.°° The Legislature, certainly in
3° The seminal case defining the statute of limitations as also
jurisdictional! in a criminal context is People v. McGee, 1 Cal.2d
611 (1934). In the first instance, they drew a distinction, “based
on the different character in the proceedings” between criminal
and civil statute of limitations. “In civil actions the statute is a
privilege which may be waived by the party. In criminal cases, the
state, through its legislature, has declared that it will not
prosecute crimes after the period has run, and hence has limited
the power of the courts to proceed in the matter. . .[Wjhen the
statute of limitation has run, the power to proceed in the case is
gone.” Id. at 613-14 (citation omitted.)
Thus, once the statute has ripened, a court is without
subject matter jurisdiction to proceed regardless of whether the
parties desire to waive or forfeit that right. See also Chambers v.
Gallagher, 177 Cal. 704, 708 (1918) (“There can be no question
that ...by passage of the statute of limitations [the legislature]
intended a permanent divestment of a right of action in all matters
to which the statute relates.”) In California therefore, the courts
have recognized not only the destruction of the remedy for a right,
but that the right itself is destroyed. The State has been divested
of the right of action. “In this connection, we remind ourselves that
the bar of the statute of limitations in a criminal action is a matter
going to jurisdiction rather than merely to remedy.” People v.
Doctor, 257 Cal.App.2d 105, 110 (1967) citing People v. McGee, 1
Cal.2d at 613; see also People v. Chadd 28 Cal.3d 739, 756 (a
violation of the statute of limitations described as “failing to state a
public offense.”)
Thus in Cowan v. Superior Court, 14 Cal.4th 367, 371-72
(1996), the California Supreme Court grappled with this
jurisdictional issue in a case where a defendant wanted to waive
the right. If the statute was jurisdictional as McGee stated, then
even the defendant lacked the ability to waive it. If it were “merely
a substantive defense” he could waive it. Jd. The issue in Cowan
arose because the defendant, charged with murder, a cause of
action for which no statute of limitations exists, wished to enter a
plea to the lesser included offense of manslaughter, which was
then viewed as potentially time barred. Id.at370. ~
Rather than overrule well-established precedent, including
position to define it prospectively, instead made no such
substantive change in their overhaul of the present
statutory scheme effective since 1985. It is only now
McGee, the Cowan court held that the lower court had retained
jurisdiction over the murder charge actually before it, and, since
no limitation applied to that cause of action, subject matter
jurisdiction had not been lost. Jd. at 374. The question became
one of “excess of jurisdiction” as to the proposed plea bargain
instead of a lack of subject matter jurisdiction. Cowan, 14 Cal.4th
at 374. In that particular context, and not having lost the power
to proceed, the defendant could choose, if he desired, to waive the
Statute as to the manslaughter charge. /d. In effect the Cowan
court held that because the underlying right had not been
destroyed, the question became solely one of approving an
-ameliorating remedy desired by the defendant who could therefore
waive his substantive right to the lesser charge. “In this case,
because the court had the power to proceed over the murder
charge, it should also have the power to proceed over a lesser
included ...offense.” Id. at 373.
In People v. Williams, 21 Cal.4th 335 (1999), the court was
again urged to reject the jurisdictional approach. The issue first
having arisen on appeal, the State argued that Cowan had
essentially done away with jurisdiction, such that if a defendant
fails to timely raise the statute of limitations issue, then the
defendant could unknowingly forfeit it. People v. Williams, 21
Cal.4th 335, 340 (1999). Rejecting this claim, the court upheld
the McGee principle, stating “as has long been the rule of
California, a person can raise the Statute of Limitations at any
time in a time barred action.” Id., at 345.
Important in this analysis is an understanding that
Cowan’s did not overrule the jurisdictional approach per se, but
only made a “slight adjustment’ to its analysis to accommodate
the desired plea to the lesser. Jd. at 340. Williams makes ciear
that any broader interpretation of Cowan was not intended, nor
necessary for its decision. id. at 340-41. Rather, Cowan, held
that to the extent McGee could be interpreted as barring pleas to
“time barred lessers” it was overruled. Cowan, 14 Cal.4th at 372-
374. This distinction is important in that it makes fundamental
sense with the California view of Statute of Limitations. If the
underlying cause of action is destroyed, then nothing can be done
to resurrect it. However, where the underlying cause of action is
not destroyed, then the court has power to provide a lesser “the
remedy”, and no sound policy reason exists for disallowing such a
knowing waiver to a lesser if it is to the benefit of the accused.
that they attempt to create a different rule, only
retroactively.
In Means v. Cheyenne Tribal Court, 154 F.3d 941,
942 (9% Cir. 1998) (overruled on other grounds in United
States v. Enas, 255 F.3d 662 (9 Cir. 2001), the Ninth
Circuit was confronted with the question of whether a
court, not having jurisdiction over a subject could
nevertheless prosecute him for crimes committed within
their jurisdiction. Lacking power over the subject, the
sovereign lacked the ability to define his conduct as
criminal. “Imposing jurisdiction retroactively therefore
makes it a crime as to Means after the fact-exactly what
is forbidden by the Ex Post Facto Clause.” Means, 154
F.3d at 948.
Whether viewed as eliminating an element or
defense, or creating jurisdiction retroactively, 803(g)
essentially enlarges or aggravates the crime by
encompassing others, like Petitioner, who, prior to
803(g) had not been within its reach.
Calder Category Three
California has long held that once the Statute of
Limitations has run, the person cannot be punished.
See People v. Miller, 12 Cal. 291, 294 (1859). In this way
it is not unlike a limited pardon, which relieves the
person of the punishment that may be imposed for a
crime, but does not necessarily absolve him of the
criminality itself. For even if the argument could be
sustained that the term crime has a broader significance
than given in California, or that punishment became
fixed on the date of the primary act, nevertheless it is
undisputed that on the second date the punishment for
that “crime” was removed. Id.; see also Lynce v. Mathis,
519 U.S. 433, 449 (1997) (where the punishment once
reduced could not be increased retroactively). The
removal of punishment means that any new punishment
for that same “crime” exceeds that which attached
30
previously, in violation of Calder Category three. But
for Penal Code section 803(g), the state cannot inflict
any manner or form of punishment upon defendants for
whom the Statute of Limitations expired prior to
enactment of the revival statute. Moreover, the State of
California cannot do indirectly what it cannot do
directly.
Calder Category Four
The new law that permits prosecution of
Petitioner’s time barred case effectively eliminates a
material ingredient of the crime that the prosecution
must prove in order to convict. Under Penal Code
803(g), the district attorney no longer needs to prove
that the offenses occurred within the time period
necessary to overcome the Statute of Limitations.
Moreover the preexisting rules created an irrebuttable
presumption that resulted in a dismissal. That same
presumption is now withdrawn. However viewed, it is
clear that this law “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.” See Calder v. Bull, 3 U.S.
386, 390 (1798); see also Carmell v. Texas, 529 U.S.
513, 539 (2000). It violates Calder’s fourth category.
The California Supreme Court’s decision in People
v. Frazer, 21 Cal.4th 737 (1999), decided before Carmeil,
misconstrued Collins to narrow the original four Calder
categories to two: “Collins made clear that the two
categories of impermissible retroactive legislation-
redefining criminal conduct and increasing punishment
~are exclusive.” Frazer, 21 Cal.4th at 756.
The Frazer Court may not have anticipated this
Court’s reaffirmation of the fourth Calder category in
31
Carmell.3!1 However, when Petitioner appealed a denial
of his demurrer to the indictment and raised Carmell as
an applicable authority, the appellate court once again
indicated it was bound by Frazer and chose not to take
up the issue. Likewise, the California Supreme Court
declined to apply Carmell.
Penal Code section 803(g) retroactively eliminate i
an element the prosecution had to prove. Such a change
is precisely the type deemed fundamentally unfair in
Carmell: “A law reducing the quantum of evidence
required to convict an offender is as grossly unfair as,
say, retrospectively eliminating an element of the
offense, increasing the punishment for an existing
offense, or lowering the burden of proof.” Carmell, 529
U.S. at 532.
Carmell makes clear that the fourth Calder
category remains an important restraint on the
government’s actions. Because an elimination of the
statute of limitations through retroactive application of
section 803(g) fundamentally alters the prosecution’s
burden necessary to convict, section 803(g) violates the
Ex Post Facto Clause.
B. Due Process
The state cannot under the auspices of police
power retroactively rescind a statute, which rendered
the state powerless to prosecute, divested the court of
jurisdiction and provided Petitioner with a complete
31 Since Carmell was decided, the Court of Appeals for the Second
District has recognized that Frazer may have indeed misread the
\Jnited States Supreme Court’s intent, noting that many appellate
courts, including in California, and citing Frazer specifically,
mistakenly believed that ex post facto “did not prohibit the
application of new evidentiary rules...” Mm re Melvin J., 81
Cal.App.4 742, 758 n. 7 (2000.)
32
defense in the event of trial. To do so violates
Petitioner’s fundamental right to liberty.
Among individual rights, liberty is ranked as
fundamental. Liberty’s meaning is expansive and
encompasses issues such as the right to refuse medical
treatment, contraception and family life. See
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
However, freedom from physical restraint is at the core
of our understanding of liberty. No other right can be
deemed more fundamental. See e.g., Reno v. Flores, 507
U.S. 292 (1993); Foucha v. Louisiana, 504 U.S. 71
(1992); United States v. Salerno, 481 U.S. 739 (1987);
Ingraham v. Wright, 430 U.S. 651 (1977).
Nonetheless, as with all rights, liberty is not
absolute. It must be harmonized with other rights and
powers stemming from the United States Constitution or
some other independent source. See Texaco Inc., v.
Short, 454 U.S. 516, 525-26 (1982). The police power is
one that finds its source independent of the United
States Constitution. It is based in the state’s sovereign
nature and its duty to protect the health, safety and
welfare of its citizens. However this power has never
been viewed as omnipotent. As with individual liberty,
the State’s police power is also not absolute. See Calder
v. Bull, 3 U.S. 386, 387-88 (1798); Fletcher v. Peck, 10
U.S. 87, 135 (1810).
Penal Code section 803(g) amplifies the conflict
inherent in Petitioner’s fundamental right to liberty and
the state’s sovereign police power. However the conflict
created by the enactment of 803(g) violates due process
where California legislatures, since the state’s inception,
have always utilized criminai Statutes of Limitation and
California courts have always interpreted these statutes
to confer a substantive and irrevocable right.
33
The passing of time, now complete under the
terms set by the State itself, divests from the State the
power to prosecute and restores Petitioner’s liberty. It is
no longer subject to state intrusion. This exhaustion of
power and restoration of liberty is irrevocable; the
presumption of innocence previously afforded to the
Petitioner is now irrebuttable.
Fundamental Right of Liberty
“In a Constitution for a free people, there can be
no doubt that the meaning of ‘liberty’ must be broad
indeed.” Board of Regents v. Roth, 408 U.S. 564, 572
(1972). The due process clause of the Fifth Amendment
applicable to the states through the Fourteenth, was
intended to secure for individuals, inter alia, the “right to
be free from and to obtain judicial relief, fo. unjustified
intrusions on personal security.” Ingraham v. Wright,
430 U.S. 651, 673 (1977). The guarantees afforded
“always have been thought to encompass freedom from
bodily restraint and punishment.” Id. at 673-74 (finding
that freedom from corporal punishment implicates a
liberty interest); see also Reno v. Flores, 507 U.S. 292
(1993); Foucha v. Louisiana, 504 U.S. 71, 80 (1992)
(commitment to a mental health facility implicates a
liberty interest); United States v. Salerno, 481 U.S. 739,
755 (1987) (right to liberty implicated by pretrial
detention).
A liberty interest can also be created by state
statute. Coupled with its creation is the expectation
that it will not be taken arbitrarily. Due process is the
stronghold for such vital interests and this Court has
time and again affirmed that a State cannot statutorily
confer a liberty interest and arbitrarily withhold or
destroy it. See e.g., Sandin v. Connor, 515 U.S. 472,
483-84 (1995) (recognizing “that states may ... create
liberty interest which are protected by the Due Process
Clause”); Board of Pardons v. Allen, 482 U.S. 369, 377-
78 (1987) (parole statute mandating release once
34
designated findings were made created liberty interest);
Vitek v. Jones, 445 U.S. 480, 488-89 (1980) (statute
permitting transfer of prisoner to mental health facility
upon finding of mental illness created a liberty interest);
Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (state
created right to good time credits that could be taken
only for serious misbehavior created a liberty interest);
Carlo v. City of Chino, 105 F.3d 493, 497 (9% Cir. 1997)
(statute requiring arrestees be given phone calls that
could be denied only in event of physical impossibility
conferred a liberty interest.)
Underscoring this point, the Wolff Court stated,
“We think a person’s liberty is equally protected, even- ~
when the liberty itself is a statutory creation of the state.
The touchstone of due process is protection of the
individual against arbitrary action of the government.”
Wolff, 418 U.S. at 558.
Although these cases also refer to the process
required as a preventative measure against arbitrary
action, Petitioner maintains that no amount of process
will suffice. Here the harm is ongoing, for the
prosecution that California had no power to bring is
occurring, the forum for which no jurisdiction existed
has ruled against Petitioner and the absolute defense to
this unlawful action has been destroyed. This situation
was contemplated by Justice Harlan when he wrote,
“Were due process merely a procedural safeguard it
would fail to reach those situations where the
deprivation of life, liberty or property was accomplished
by legislation which by operating in the future could,
given even the fairest possible procedure in application
to individuals, nevertheless destroy the enjoyment of all
three.” Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan
J., dissenting).
35
State Power
It is unquestionable that the State possesses the
power to define criminal conduct and prohibit said
conduct through legislation; that it can prosecute where
probable cause exists to believe a crime was committed;
and that it can punish where it has proven to a jury or
the court as fact finder that the crime was committed.
It is also a maxim that the State possesses the
power to destroy such crimes, as well as their effects. It
can repeal criminal statutes, thereby erasing the
criminality attached to such conduct; it can decline to
prosecute by granting immunity or by enacting
legislation that provides for pretrial diversion?; and it
can ultimately pardon conduct either prior to or after a
guilty finding by jury or court; thereby erasing
punishment or criminality or both.
However, the State can assert no basis for a
claimed “retention” of an expired power to prosecute.
Indeed, such a proposition is contrary to all accepted
views of constitutional government. For if the
inalienable rights of life and liberty are vested in the
people, and if in limited circumstances the State is
permitted to curtail that liberty, when that permission
ends, even if by nothing more than an act of legislation,
then the State is without the power to act.
32 Thus under Pena! Code Section 1000 et seq., even after a plea of
guilty to certain possessory type drug charges, a person is
absolved of all criminality for all respects, including permitting a
successful divertee to state upon all job applications, save those
related to law enforcement, that he/she has never been arrested,
prosecuted, or convicted for said diverted crimes. (CAL. PEN. CODE
§ 1000 et. seq. (West 1985 & Supp. 2002.)
33 “(The statute of limitation’s] terms not only strike down the right
of action which the state had acquired by the offence, but also
remove the flaw which the crime had created in the offender’s title
to liberty. In this respect, its language goes deeper than statutes
barring civil remedies usually do. They expressly take away the
36
Thus it cannot proceed to prosecute those who
have successfully completed pretrial diversion. It cannot
fail to follow through with its obligations pursuant to a
plea negotiation. It cannot repeal a grant of immunity
from prosecution. It cannot repeal a pardon. In short,
the state cannot undo; so as to divest a substantive
right accrued to the individual, that which was done
through a lawful exercise of its police power.
State action that is tantamount to a wanton or
arbitrary interference with private rights is not a
permissible exercise of a state’s police power. See
Atlantic Coast Line R.R. Co., v. City of Goldsboro, 232
U.S. 548, 559 (1914). California claims the power to
repeal a Statute of Limitations that has with due course
of time, granted the Petitioner a substantive right to be
free from prosecution, beyond the reach of jurisdiction
and the ability to utilize this absolute defense to secure
the right granted. This it cannot do.
This was the understanding of Chief Justice
Marshall in Fletcher v. Peck, 10 U.S. 87, 135 (1810),
when he stated, “But if an act be done under a law, a
succeeding legislature cannot undo it. The past cannot
be recalled by an absolute power.”
remedy only by suit, and that inferentially is held to abate the
right which such remedy would enforce, and perfect the title which
such remedy would invade; but this statute is aimed directly at
the very right which the state has against the offender, the right to
punish, at the only liability which the offender has incurred, and
declares that this right and this liability are at an end.” Moore v.
State, 43 N.J.L. 203 (1881); see also Griswold v. Connecticut, 381
U.S. 479, 496 (1965) (Goldberg J., concurring) (although “... a ...
State may ... serve as a laboratory; and try novel social and
economic experiments, I do not believe that this includes the
power to experiment with the fundamental liberties of citizens ...”)
quoting Pointer v. Texas, 380 U.S. 400, 413 (1965).
37
California cannot do to Petitioner’s vested liberty
what Georgia could not do to Fletcher’s vested title to
property.
Historical Practice
In 1976, California exhausted its power to
proceed against Petitioner. It terminated with the
running of the Statute of Limitations duly enacted. The
decisional law in place since this State’s first inquiry
into the meaning of the Statute of Limitations in the
criminal system in 1859 permits no other alternative.
Indeed, all of California jurisprudence mandates that the
passing of time has irrevocable consequences. But see
People v. Frazer, 21 Cal.4th 737 (1999).
California’s Statute of Limitations was first
enacted in 1850; the same year California became a
state. It was later codified by the California legislature in
1872. See People v. Frazer, 21 Cal.4" 737, 743 (1999).
Since its introduction, the availability of the statute as a
complete defense has been made abundantly clear. See
People v. Miller, 12 Cal. 291, 295 (1859) (finding that
time was material to any offense subject to limitation,
and thus, “Prima facie, the lapse of time is a good
defense...”).
Over the centuries, the California Supreme Court
has repeatedly endorsed this view of the statute
declaring it to be a substantive right. See People v.
Zamora, 18 Cal. 3d 538, 547 (1976); People v. Chadd 28
Cal.3d 739, 757 (1981). Even People v. Frazer, 21
Cal.4% 737, (1999), agreed that Statutes of Limitation
exist for the defendant's benefit, such statutes “seek to
protect both the judicial system’ and the defendant
3 Statutes of Limitations aid in reducing the costs inherent in
congestion of the courts where the presentation of these claims
run on the criminal offense. See Blackburn v. Superior
Court, 21 Cal.App.4th 414, 428 (1993).
Thus the Statute of Limitations must be viewed in
this context. It expresses a rule of such finaiity that we
have been assured that when the bar is in place we may
not only speak freely, but may even be compelled to
speak. It is this understanding, so deeply rooted in our
traditions and consciousness as to trigger the
relinquishment of other rights routinely afforded to
criminal defendants, that 803(g) seeks to wrench from
its historical and constitutional context.
So clear has this rule been that throughout the
country’s history it has been disputed only rarely. Until
Frazer each such attempt was rejected. See People v.
Frazer, 21 Cal.4* 737 (1999). A challenge was proffered
in 1860 in Texas, and rejected. See State v. Sneed, 25
Tex.Supp. 66 (1860) (“The state having neglected to
prosecute within the time prescribed for its own action,
lost the right to prosecute the suit.”) There were similar
challenges with similar results in New Jersey in 1881
and in Oregon in 1994. See Hart Moore v. State, 43
N.J.L. 203, 1881 WL 8329 at *6 (1881) (“Until the fixed
period has arrived, the statute is a mere regulation of
the remedy, and, like other such regulations, subject to
legislative control; but afterwards, it is a defence, not of
grace, but of right; not contingent, but absolute and
vested; and, like other such defences, not to be taken
away by legislative enactment.”);35 State v. Cookman,
35 See Hart Moore v. State, 43 N.J.L. 203 (1881) (“[Ijt would be a
strained and unnatural interpretation of our act to say that it
not relate to the courts, but to the person accused. The answer
which, under it, the defendant must make to an accusation before
the tribunal which once had the right to punish him, is, not that
the court has no jurisdiction to inquire into his guilt or innocence
and pass judgment, but that, after inquiry, the court must
pronounce judgment of acquittal. And probably no one would
40
127 Or.App. 283 (1994) (“In short, we cannot accept the
proposition that the state has the supernatural power to
exhume and revitalize a prosecution that is dead and
buried.”) 3
The Substantive Nature of the Right
While Frazer denied a substantive due process
claim, it failed to apply or explore the nature of this
right.27 A review of California case law shows the
various stages at which this substantive right can be
asserted. Its use as a multifaceted defense speaks to its
inherent power.
In California, the Statute of Limitations defeats
the power to prosecute in the first instance and serves
as a defense to attack the charging document such as by
way of demurrer. See People v. Ayhens, 85 Cal. 86
(1890) (approving such action under Penal Code Section
contend that after such judgment, any change in the law could
legally subject the defendant to a second prosecution.”) California
courts are in accord, but of course also deny jurisdiction.
36 The historical practice even at common law in England shows a
general repugnance towards retrospective legislation in general.
See Dash v. Van Kleeck, 7 Johns. 477 (1811) (Kent, Ch., J.)
(“There has not been, perhaps a distinguished jurist or elementary
notice of retrospective laws, either civil or criminal, but has
mentioned them with caution, distrust or disapprobation.”)
37 Frazer, instead called Statutes of Limitation “acts of legislative
grace,” without further explanation and ignoring Supreme Court
precedent that altering penal statutes, even those “accorded by the
grace of the legislature” are not insulated from constitutional
scrutiny. Weaver v. Graham, 450 U.S. 24, 30-1 (1981). Moreover
while Frazer ruled on the meaning of section 803(g) in relationship
to the new limitations period set up in the 1985 legislation, it did
not rule on claims based on the preexisting statutory rules upon
which Petitioner also relies under Perial Code Section 805.5.
While the lower court ruled the new statutes applicable, it relied
solely on Frazer to deny the Constitutional rights even though
Frazer never examined those rights in light of Carmell v. Texas,
529 U.S. 513 (2000).
41
1004 because it is a legal bar to prosecution). Thus a
cause of action shown to be outside the statutory period
fails to “state a public offense and the defendant could
not be prosecuted thereunder and no judgment of
conviction could be based upon it.” People v. Hoffman,
132 Cal.App. 60, 62 (1933) (noting that this was the
state of the law since People v. Miller 12 Cal. 291 (1859));
People v. McGee, 1 Cal.2d 611 (1934). Even where no
demurrer is lodged, the prosecution can be defeated by
special pretrial motion. People v. Zamora, 18 Cal.3d 538
(1976). At trial the matter is put at issue by a plea of
not guilty and the State must bear the burden of proving
that the Statute has not run in its case in chief. See
People v. Cunningham, 99 Cal.App.2d 296, 299 (1950).
This right then is more than “simply”
jurisdictional and is greater than an affirmative defense.
The failure by the State to prove th... element can result
in a directed verdict (see People v. Zamora, 18 Cal.3d
538 (1976), or if submitted to the jury, to an acquittal.
See People v. Doctor, 257 Cal.App.2d 105 (1967). As the
California Supreme Court recognized in People v.
Zamora, 18 Cal.3d 538, 565 n. 25 (1985), its bar is also
Was 6 Se 6 Se oe | ae
prosecutions as it is at the prevention untimely
convictions.” (emphasis added). Thus California has
long recognized that the running of the Limitations
period is a legal bar to prosecution. See People v.
Asavis, 27 Cal.App.2d 685, 687 (1938).
Moreover it renders void a judgment, even based
on a voluntary plea of guilty, if found in violation of its
proscription. See People v. Hoffman, 132 Cal.App. 60,
62-3 (1933). It is a basic attack on the court’s ability to
in the first instance. See People v. McGee, 1
Cal.2d 611, 613 (1934). No court has ever maintained
that California can exercise original jurisdiction in
violation of the McGee rule. See People v. Williams, 21
42
Cal.4% 335 (1999); cf. People v. Frazer, 21 Cal.4% 737
(1999).
The State of California can no longer control this
powerful right, which it chose to grant. It may not divest
Petitioner of his liberty in defiance of the law it created,
interpreted, employed, and repeatedly endorsed.
Petitioner Marion Stogner has the fundamental right to
be free from prosecution, twenty-two years after the
Statute of Limitations has run. State v. Sneed, 25
Tex.Supp. 66 (1860); Hart Moore v. State, 43 N.J.L. 203
(1881); State v. Cookman, 127 Or.App. 283 (1994); State
v. Martin, 138 N.H. 508 (1994.)
Although none of the evidence has changed,
803(g) alters the applicable rules so that they no longer
obligate the State to concede that Petitioner must
prevail. These facts no longer require a court to dismiss
the matter or prevent it from passing further judgment
or sentence on him. See People v. McGee, 1 Cal.2d 611
(1934); People v. Hoffman, 132 Cal.App. 60 (1934). In
the same way he can no longer resist the powers of the
prosecution on these facts. Penal Code Section 803(g)
therefore removes from the defendant’s arsenal the most
complete and effective defense he can assert here. See
Carmell v. Texas, 529 U.S. 513 (2000); see also Montana
v. Egelhoff, 518 U.S. 37 (1956). Instead he is forced to
face trial conclusively considered by the State and
federal courts to be unfair. See United States v. Marion,
404 U.S. 307 (1971); People v. Zamora, 18 Cal.3d 538
(1976).
803(g) subtly, but effectively renders Petitioner's
ability to marshal these facts (even though not part of
his burden), ineffective to gain an acquittal. It alters the
rules after the fact for the sole purpose of improving the
prosecution’s chance of conviction. Carmell v. Texas,
43
529 U.S. 513 (2000).38 803(g) does not in any way afford
greater protection to Petitioner, rather, it increases his
burden. Prior to 803(g) the conclusive presumption
could not be dispelled even by demonstrating a lack of
prejudice to the defendant. People v. Zamora, 18 Cal.3d
538, 547 (1976). After section 803(g), Petitioner bears
the burden of convincing the court that the passage of
time has resulted in loss or impairment of evidence.
While it has long been recognized that there is an
increasing difficulty faced by a criminal defendant in
obtaining reliable evidence, or any evidence at all, as
time passes, Zamora, at 546, it bears noting that the
passage of time also impairs his ability to show the
significance and reliability of such destroyed evidence.
Section 803(g) then represents the worst type of burden
shifting.*® By rendering proof that these facts exist
insufficient to bar prosecution, 803(g) makes a mockery
of the right to present evidence on an issue firmly rooted
in American jurisprudence.*°
38 In Carmel v. Texas, the High Court commented, “the
government refuses, after the fact, to play by its own rules,
altering them in a way that is advantageous only to the State, to
facilitate an easier conviction. There is plainly a fundamental
fairness interest in having the government abide by the rules of
law it establishes to govern the circumstances under which it can
deprive a person of his or her liberty or life.” Carmell at 532. The
notions of justice and fair play have long been associated with the
due process clause. See Int’l Shoe Co. v. Washington, 326 U.S.
310, 316. (1945).
39 “While due process does not ‘bajr] States from making changes ...
that have the effect of making it easier for the prosecution to obtain
convictions,’ McMillan v. Pennsylvania, 477 U.S. 79, 89, n.5 (1986)
(emphasis added), an evidentiary rule whose sole purpose is to boost
the State’s likelihood of conviction distorts the adversary process. Cy.
Washington v. Texas, 388 U.S. 14, 25 (1967) (Harlan, J., concurring
in result; emphasis added); Montana v. Egelhoff, 518 U.S. 37, 68
(1996); (O’Connor, J., dissenting.)
40 The Clause does place limits upon restriction of the right to
introduce evidence, but only where the restriction offends some
principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental. “Our primary guide in
44
803(g) has already and will continue to deprive
Petitioner of Liberty and the substantive and procedural
rights necessary to ensure that Liberty. It permits
California to destroy a _ state-ensured binding
guarantee*! which has been in place since the State’s
foundation and which was well understood to have this
meaning of finality under American criminal
jurisprudence.
Despite these well-recognized principles, the
courts of California ignore them and all concerns for
finality and plain meaning. On the one hand stating the
right cannot be forfeited, the courts-permit the state to
forfeit it for Petitioner. See People v. Williams, 21
Cal.4th 335 (1999); People v. Le 82 Cal.App.4th 1352,
1360 (2000); People v. Frazer, 21 Cal.4th 737 (1999).
Calling it a substantive right, they refuse to give it
substance. See. People v. Zamora, 18 Cal.3d 538 (1976);
People v. Frazer, 21 Cal.4th 737 (1999). They insist on a
lack of jurisdiction yet claim 803(g) creates jurisdiction
retroactively. Accord People v. McGee, 1 Cal.2d 611
(1934); Cowan v. Superior Court, 14 Cal.4% 227 (1996);
People v. Williams, 21 Cal.4% 335 (1999); People v.
' Frazer, 21 Cal.4% 737 (1999).
determining whether the principle in questions is fundamental is, of
course historical practice.” Montana v. Egelhoff, 518 U.S. 37, 68
(1996); see also Medina v. California, 505 U.S. 437, 446 (1992).
*! In California cases, the passage of the statutory time has also
been deemed akin to an immunity, (see People v. Snipe, 25
Cal.App.3d 742, 747 (1972); see also People v. Hoffman, 132
Cal.App. 60, 63 (1933)), or an “amnesty.” See In re Gustavo M. 214
Cal.App.3d 1485, 1494 (1989). See also In Re Bray, 97 Cal.App.3d
506, 513 (1979) citing State v. Keith (1869) 63 N.C. 140 (‘the
ordinance was declared invalid because it deprived the prisoner of an
immunity to which he had become entitled by statute. The amnesty
act placed Civil War soldiers in the position as if the acts they
committed were not criminal. The soldiers could not constitutionally
be deprived of that benefit.”)
45
Although the legislature had enacted special
legislation through Penal Code section 805.5 preserving
Petitioner’s rights under prior law, the courts have
ignored principles of finality expressed in doctrines such
as stare decisis*? and statutory interpretation. “A
judicial construction of a statute is an authoritative
statement of what the statute meant before as well as
after the decision of the case giving rise to that
construction.” Rivers v. Roadway Express, Inc., 511
U.S. 298, 312-313 (1974); Bradley v. School Bd. of
Richmond, 416 U.S. 696, 711 (1974) (“[A] court is to
apply the law in effect at the time it renders its
decision”). People v. Haskins 177 Cal.App.2d 84, 87-8
(1960) (Amendments may be construed as legislative
reaffirmances of existing law).**
The legislature and the courts have ignored well
established precedent that has expressed concern,
42 “[Ljaw, to be obeyed, must be known; to be known, it must be
fixed; to be fixed, what is decided to-day must be followed to-morrow;
and stare decisis et non quieta movere is simply a sententious
expression of these truths.” 26 CHAMBERLAIN, THE DOCTRINE OF STARE
Decisis: ITs REASONS AND ITs EXTENT (1885).
43 Prior to Stogner, a long line of legal tradition had analyzed the old
Statute of Limitations upon which Petitioner relies, finding that the
ex post facto clauses barred the statutory extension of a Statute of
Limitations once the original term had expired. See Lynch v. Superior
Court, 33 Cal.App.4 1223, 1227-28 (1995); People v. Eitzen, 43
Cal.App.3d 253, 265-67(1974); Sobiek v. Superior Court, 28
Cal.App.3d 846, 849-50 (1972). Stogner has interpreted this Statute
contrary to its long history and Petitioner’s position that prior judicial
determination should prevail is but a reflection of the type of finality
expressed in the Teague v. Lane 489 U.S. 288(1989) rule. The point
being that whether or not it violates the Ex Post Facto Clause as it is
understood today, the meaning of that Clause as it was understood
in 1985 has been incorporated into the Statute of Limitations by the
Legislature’s passage of 805.5. Even if not violative of ex post facto,
taking this substantial right as it was d<fined in 1985 violates due
process.
46
dismay and even shock at prosecutions after prolonged
delay.**
Thus by allowing 803(g) to operate retroactively,
the Legislature and the courts break the solemn
compact between government and citizen and destroy
the dignity inherent therein.*5 By enacting 803(g) the
State has reneged on its agreement to its citizens and
deprived Petitioner of a substantive right he has held for
over twenty years. Cf. People v. Quartermain, 16 Cal.4%
600, 618-620 (1997) (breach of a promise not to use
defendant’s statement to impeach was fundamentally
unfair and denied him due process of law). Instead,
803(g) allows the State to actively mislead with notice
that is unfair.“6 California has advised all citizens that
44 United States v. Irvine, 98 U.S. 450 (1878) stated ‘It is
unreasonable to hold that twenty years after this he can be indicted
for wrongfully withholding the money, and be put to prove his
innocence after his receipt is lost, and when perhaps the pensioner is
dead; but the fact of his receipt of the money is matter of record in
the pension office.” Barker v. Municipal Court, 64 Cal.2d 806
(1966).“The thought of ordering [defendant] to trial on this charge
after a lapse of twenty years shocks the imagination and conscience.”
Id. In Adams v. Wood, 6 U.S. 336, 342 (1805), Chief Justice
Marshall expressed the same concerns, stating it would be “utterly
repugnant te the genius of our laws to allow such an action to lie at
any distance of time.” (internal quotations omitted.)
45 In the context of unlawful searches this Court has acknowledged:
“The criminal goes free, if he must, but it is the law that sets him
free. Nothing can destroy a government more quickly than its failure
to observe its own laws, or worse, its disregard of the charter of its
own existence....” Mapp v. Ohio, 367 U.S. 643, 659 (1961).
** The Due Process Clause also protects the interest in fair notice
and repose that may be compromised by retroactive legislation; “a
justification sufficient to validate a statute’s prospective application
vader the Clause ‘may not suffice’ to warrant its retroactive
application” (Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994)),
“due process bars courts from applying a novel construction of a
criminal statute to conduct that neither the statute nor any prior
judicial decision has fairly disclosed to be within its scope.” See
Marks v. United States, 430 U.S. 188, 191-192 (1997); Rabe v.
Washington, 405 U.S. 313 (1972) (per curiam), Bouie v. City of
47
they need not keep up their guard, nor need prepare or
preserve defenses. The citizenry has been informed that
finally, there is nc need to fear an attack on our
fundamental rights from our government, righteous or
not.
“Our Government is the potent, the omnipresent,
teacher. For good or for ill, it teaches the whole people
by its example.” Olmstead v. United States, 277 U.S.
438, 455 (1928) (Brandeis, J., dissenting) (overruled on
other grounds). “Decency, security, and liberty alike
demand that government officials shall be subjected to
the same rules of conduct that are commands to the
citizen. Having surrendered its right to prosecute by
way of a statute of limitation, (State v. Cookman, 127
Or.App. 283 (1994) ; 873 P.2d 335; State v. Dufort (1992)
111 Or.App. 515, 519; 827 P.2d 192; State v. Hodgson,
108 Wash.2d 662, 667 (1987); 740 P.2d 848), the state
may not renege on that promise years afterwards, when
memories may have faded and evidence may have been
destroyed.” Frazer, supra, 21 Cal.4th at 780 (Kennard
J., dissenting).
There are due. process limits on arbitrary
governmental behavior in revoking its promises of
protection such as when the government confers a
substantive right and then arbitrarily revokes it. See
Raley v. Ohio, 360 U.S. 423, 425-26 (1959) (when
defendants were assured of the right to remain silent by
a legislative committee and then held in contempt for
asserting it, this was "an indefensible sort of entrapment
by the State.") While the Constitution does not
guarantee defendants that they will be free from the
prosecution after a fixed period of time, California, has
conferred this very right via statute. See Hicks v.
- Columbia, 378 U.S. 347, 353-54 (1964); United States v. Lanier, 520
U.S. 259 (1997).
48
Oklahoma, 447 U.S. 343, 346 (1980). “[T]he failure of
the state to abide by its own statutory commands may
implicate a liberty interest protected by the Fourteenth
Amendment preserves against arbitrary deprivation by a
state.” Id.
If 803(g) is allowed to stand it will eliminate an
important substantive right that destroys the cause of
action according to both California and United States
Supreme Court precedents. 47 It has destroyed a matter
of substance rather than of form. See Guaranty Trust
Co. of New York v. York, 326 U.S. 99 (1945). Therefore,
forcing Petitioner to forfeit the substantive right to raise
this bar is in and of itself a violation of due process.
47 Chase Secs. Corp v. Donaldson, 325 U.S. 304 (1945), construed
the critical inquiry for due process analysis to be to determine how
“the state court...construed the relationship between its limitation
acts and the state law creating the asserted liability.” Chase, 325
U.S. at 312, n 8. Indeed in only a limited line of civil cases has the
statute of limitations been deemed subject to retroactivity, and
only where the underlying right was conclusively shown not to
have been destroyed. See Campbell v. Holt, 115 U.S. 620 (1885).
But where the right is statutorily created and is given a fixed
period of time in which the remedy must be pursued, the United
States Supreme Court has agreed the right itself is destroyed when
the limitations period expires, and depriving an accused of this
limitations defense by way of retroactive legislation does violate the
due process clause. See William Danzer & Co. v. Gulf & S.I.R., Co.,
268 U.S. 633 (1925). Chase itself recognized this important
distinction, noting Danzer and Davis stand for the proposition that
retroactive legislation will result in a due process violation “where a
statute in creating a liability also puts a period after its expiration....”
Chase, 325 U.S.at 312 n. 8.
There are no common law crimes in California; all crimes are
created by way of statute. Cal. Pen. Code, § 6; see also In re Brown,
9 Cal.3d 612, 624 (1973). California has similarly created a
limitations period on certain classes of crimes, including Penal Code
§ 288. Thus depriving Petitioner of his limitations defense violates
due process.
49
At no point in our history has the opposite rule
been shown to exist. See People v. Frazer, 21 Cal.4%
- 737, 777 (1999) (Kennard, J., dissenting).** The societal
benefits of the Statute of Limitations also underscore a
more basic societal sense of fair play and decency
(Rochin v. California, 342 U.S. 165, 172 (1952)) in not
making promises only to break them retroactively years
later.
California has stated in no uncertain terms that
their power to prosecute has ended. Simultaneously,
they have decided that Petitioner has been conferred
thereby a substantial right. His liberty interest is then
inviolate.4? The State has retained no power upon which
48 “Today, California becomes the only jurisdiction, state or federal,
to permit ‘revival’ prosecutions under an extended statute of
limitations enacted after the expiration of the original statute of
limitations. All other jurisdictions that have addressed the issue
have concluded or assumed that these prosecutions violate article I,
section 10, clause 1 of the federal Constitution, which provides that
‘(njo state shall pass any ... ex post facto law ...’.” Frazer, 21 Cal.4%
at 777 (Kennard J., dissenting) (citations omitted).
49 The State would have this Court ignore the history of both
California and the United States in this regard. Rather they would
equate the Petitioner’s clearly defined substantive rights and liberty
interest with nothing more than vague economic interest type cases.
However, even if the court were to engage in a balancing test,
the result should still favor Petitioner. Frazer proffered the following
justification for the legislation: the difficulty by alleged victims in
remembering the wrongs themselves, and/or the “emotional
vulnerability at the hands of the perpetrators.” People v. Frazer, 21
Cal.4th 737, 773 (1999). Such justifications may well sustain an
increase in the limitations period in prospective cases, however this
justification ignores that society by its use of Statutes of Limitations
has already taken into account that the passage of time will
naturally void even sympathetic claims. Indeed, to the extent that
some perpetrators of crimes will escape punishment holds true for all
crimes subject to a Statute of Limitations and has always been a
cost society has been willing to incur in exchange for the benefits of
repose. Moreover, because Penal Code section 803(g) is not limited
in any fashion to victims who have repressed the wrongs done them,
and might therefore claim recent discovery of the harm, or who might
it can infringe Petitioner’s liberty interest. “In our
society liberty is the norm.” United States v. Salerno,
481 U.S. 739, 755 (1987).
“The Due Process Clause contains a substantive
component that bars certain arbitrary, wrongful
government actions regardless of the fairness of the
procedures used to implement them.” Zinermon v.
Burch, 494 U.S. 113, 125 (1990) quoting Daniels v.
Williams, 474 U.S. 327, 331 (1986). This Court has
“always been careful not to ‘minimize the importance
and fundamental nature’ of the individual’s right to
liberty.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992);
quoting U.S. v. Salerno, 481 U.S. 739, 750 (1987).
CONCLUSION
For all the foregoing reasons, relief should be
granted and the prosecution dismissed.
Dated this 16% day of January, 2003
Respectfully submitted,
Roberto Najera (Counsel of Record
Elisa Stewart
Office of the Alternate Defender
610 Court Street
Martinez, California 94553
(925) 646-1740
Cound for Petitioner
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