Reply Brief — Frazer v. California

Supreme Court, U.S.

ro FILED

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APR 10 2060

No. 99-1193

In the Supreme Caurt CLERK we!

OF THE

United States

RAYMOND FRAZER,

Petitioner,

VS.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

On Petition for Wnt of Certiorari to the

Supreme Court of the State of California

REPLY BRIEF

MICHAEL B. DASHIJIAN (Counsel of Record)

SYLVIA M. DASHIJIAN

Law Offices of Michael B. Dashjian

1110 California Blvd. Suite D

(Mailing Address:) P.O. Box 512

San Luis Obispo, CA 93406-0512

Telephone: (805) 460-0300

Facsimile: (805) 460-0349

Email: firm@dashlaw.com

Counsel for the Petitioner

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Sg Eee Eee ee rn eee Tete err ree l

I. ee ne er ee 2

Il. EMME FVOCOCECIMUEE 2.5. ks cies ES ha ae 8

A. eo he 8

B. Substantive Statutes Of Limitation ........ 10

TABLE OF AUTHORITIES

CASES

Bear v. Omio, 267 U5. G9 (19Z5) ow. wc ceeecee es 2-4,6

Calder v. Bull, 3 US. CPU SUL ETOEED Sve cree vaceawe 2

California Department of Corrections v. Morales,

ee Ek er ere 2, 6,9

Collins v. Youngblood, 497 U.S. 37 (1990) .............. 2-7

Cowan v. Superior Court, 14 Cal.4th 367,

58 Cal.Rptr.2d 458, 926 P.2d 438 (1997) ........ 4

Doyle v. Ohio, 426 U.S. 284 (1976) ................ Peer

Dugger v. Williams, 593 So.2d 180 (Fla. 1991) (per curiam) .. 4

Lr v. Ferme, BF US. GIO CIS) occ ccs ecbuvss 5

Ex Parte Scales, 853 S.W.2d 586

ge Bee FO 8 ene ore Tae 4

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ............ 9

Garner v. Jones, 2000 U.S. LEXIS 2346

(US. Mat: DR. Fe 68 cpa ee ee |

Helton v. Fauwver, 930 F.2d 1040 (3d Cir. 1991) 2.0... eee. 6

Hughes Aircraft Corp. v. United States

ex rel. Schumer, 520 U.S. 939 (1997) ............ 2-4 |

International Shoe Co. v. State of Washington, |

320 US. S10 (9D) 6 nin ee ee 10

Jacor \. State, 154 Neb. 416, 48 N.W.2d 390 (1951)... 7

Landgraf v. USI Film Products, 511 U.S. 244 (1994) ..... ia

Lindsey v. Washington, 301 U.S. 397 (1937) .............-. 6 |

Loper v. Beto, GB US. 495 CR Tas kee te sae 10 |

Lynce v. Mathis, S19 U.S. 433-(0G9T) ccc ces ce dansnes 3, 5-7

Means vy. Northern Cheyenne Tribal Court, |

154 F.3d S43 GOO Ce, TOU cs aes 5 }

Miller v. Florida, 482 U.S. 423 (1987) ................ 4,6

Miranda v. Arizona 384 U.S. 436 (1966) ................ 9

Ostrosky v. State, 704 P.2d 786 (Alas. Ct. App. 1985) ....... 3

People v. Frazer, 21 Cal.4th at 737 (1999) ............... 2

People v. Lovercamp, 43 Cal.App.3d 823,

L1G Cah aeee. LR CIR PG wena ec KA RAR EROS 3

Raley v. Ohio, 360 U.S. 423 (1959) ...... 2. 0.0000. Sage 9 |

Ross v. State, 411 So.2d 247 (Fla. 1982) .............. be 7

Schmuck vy. United States, 489 U.S. 705 (1989) ............ l

il

Pe ae ee

Sparf v. United States, 156 U.S. 51 (1895) ........-.--.-. l

State v. Losolla, 84 N.M. 151, 500 P.2d 436 (1972) ........ 7

State v. McLaughlin, 80 N.Y .2d 466, 606 N.E.2d 1357,

oo & ee) Fe |. rr rear 8

State v. Wagner, 596 N.W.2d 83 (lowa 1999) ............. 7

State v. Wardenburg, 261 Iowa 1395,

me oR we 87s, | er ee

United States v. Baker, 10 F.3d 1374 (9th Cir. 1993),

cert. denied, 513 U.S. 934 (1994) ................ 6

United States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987) .. 6

United States v. Lovasco, 431 U.S. 783 (1977) ...........- l

United States v. Marion, 404 U.S. 307 (1971) ............ - 4

United States v. Oregon Lumber Co., 260 U.S. 29 (1922) .... 7

United States v. Timmereck, 441 U.S. 780 (1979) .......... l

Wainwright v. Greenfield, 474 U.S. 284 (1986) .........--. 9

Waldrup v. Dugger, 562 So.2d 687 (Fla. 1990) .........--. 5

Weaver v. emia. PL aR Ge To. |S er aeer §

ill

STATUTES

[5 Ree SO SE ae oc ceo eek we eee ee ee 7

18 Pennsylvania Consolidated Statutes § 103 ............. 7

Se Wie TEN CA Ko eel eee a eee Eee 3

(apormen Femmes © our 6 206 Sc. oo ee ce news 6

California Penal Code § 803 ...-..............2006- 4,6,9

CONSTITUTIONS

United States Constitution, Amendment V ............... 8

OTHER AUTHORITIES

~ Black’s Law Dictionary (6th ed. 1991) .-................ 7

James Madison, The Federalist No. 37 ...............0.. 10

James Madison, The Federalist No. 44 ..............0.... l

pees Fees Ce SEAL occ che ick cow ccs netnsas 7

Rees ween 6 © LES occ a wo kenee uerwareenews 7

Paine, Thomas, “Dissertation on First Principles of

Government,” in Common Sense and Other

Political Writings 174 (Adkins, 1953) ............. l

1V

a nk ANE SARE a AE me aan hae,

Overview

Criminal statutes of limitation, in jurisdictions which have

them (nearly all), are intended to “provide predictable, legislatively

enacted limits on prosecutorial delay.”’ United States v. Lovasco, 431

U.S. 783, 789 (1977); see United States v. Marion, 404 U.S. 307,

322-23 (1971) [cited in Petn. at 26]. More generally, a high value is

placed on legal certainty, stability, and finality in our system of

justice. See, e.g., United States v. Timmereck, 441 U.S. 780, 784

(1979); Sparf v. United States, 156 U.S. 51, 83 (1895); Schmuck v.

United States, 489 U.S. 705, 721 (1989).

Here, the State invokes the U.S. Constitution to seek a result

that undoes order and stability in legal relations and destroys finality,

by allowing a government to fake out its citizens with a promise of

liberty on which the government can later renege at its pleasure,

years or decades after the promise becomes unconditional. Petitioner

disagrees that the Framers of our Constitution would have thought

this an acceptable model of legislative power. See also infra, p. 10.

The State has not disagreed with petitioner’s point that if a

government can retroactively breach an unconditional promise of

finality for people charged with sex offenses, it can do so for people

charged with any type of offense. See Petn. at 12. That ill serves the

key purpose of the prohibitions against retroactive legislation,

curbing legislative “tempt[ation] to use retroactive legislation as a

means of retribution against unpopular groups or individuals.”

Landgraf v. USI Film Products, 511 U.S. 244, 266-67 & n. 20

(1994) [quoting Madison, Federalist No. 44]; accord, e.g., Garner

v. Jones, 2000 U.S. LEXIS 2346, at 18 (U.S. Mar. 28, 2000). People

charged with sex offenses may be today’s unpopular group

subjected to retroactive abrogation of finality in one or more states.

Tomorrow’s may be people alleged to have overestimated profits of

a publicly traded corporation, underpaid taxes, negligently

commanded a wrecked vessel, protested too vigorously for a cause

of great importance to them, or the like. A constitutional protection

denied one is denied all. See, e.g., Thomas Paine, “Dissertation on

First Principles of Government,” in Common Sense and Other

Political Writings 174 (Adkins, 1953).

aT EET NEE

I. Ex Post Facto Clause

The State severely truncates petitioner’s authority for his

showing that this Court has utilized differing and possibly

conflicting formulations in describing the ex post facto prohibition.

See Petn. at 5-8, 17-18. The State claims petitioner’s authority was

no more than ‘a pre- Youngblood case, Calder v. Bull, 3 U.S. (3

Dall.) 386 (1798), which was examined in detail in [Collins v.

Youngblood, 497 U.S. 37 (1990)], and [a] one-line parenthetical

summary in another case, Hughes Aircraft Corp. v. United States ex |

rel. Schumer, 520 U.S. 939, 948 (1997)... .” Br. Opp. at 5.

Apparently, the State is trying to suggest that this Court has never :

used differing formulations of the ex post facto prohibition except in

Calder, and it took care of Calder in Youngblood.

The State's effort is patently in error. In the same para-

graph in which he cited Calder and Hughes Aircraft, petitioner also

cited two passages in Youngblood, and two passages in Beazell v.

Ohio, 267 U.S. 169 (1925), which supported his argument and

worked against the State’s narrow, technical view. Petn. at 6. Later,

petitioner twice quoted Justice Thomas’s opinion for this Court in

California Department of Corrections v. Morales, 514 U.S. 499

(1995), and again quoted Beazell, for more formulations supporting

his view that ex post facto analysis is not limited to immutable

categories, and against the State’s view that it 1s. Petn. at 7, 17-18.

Rattbene Pea Oe Dita Ste

Furthermore, while the State tries to dismiss Hughes Aircraft

by a throwaway reference to a “one-line parenthetical,” Br. Opp. at

5, the “one-line parenthetical” is this Court’s description of its own

Beazell and Youngblood opinions—after Youngblood. This Court in

Hughes Aircraft quoted Youngblood for the point that ***A law that

abolishes an affirmative defense’ violates the Ex Post Facto Clause,”

and quoted Beazell for its point that “‘any statute . .. which deprives

one charged with crime of any defense available according to law at

the time when the act was committed, is prohibited as ex post facto.”

520 U.S. at 948 [quoting Youngblood, 497 U.S. at 49, and Beazell,

269 U.S. at 169-70]. Especially given the purpose of those citations

in Hughes Aircraft, see infra p. 6, these are far more inclusive

formulations of an ex post facto law than the “rigid,” Br. Opp. at 6,

and “technical,”’ People v. Frazer, 21 Cal.4th at 763 n.24, theory of

the State and the California Supreme Court.

Widen

2

ee

The State tries to minimize the conflicts among

jurisdictions, see Petn. at 8-10, by asserting that most of the ex post

facto cases petitioner cited-in the statute of limitations area, and

related areas such as pardon and immunity—were decided before

Youngblood. Br. Opp. at 10-14. However, in Youngblood and after,

this Court has held that “‘{t]he Beazell formulation is faithful to our

best knowledge of the original understanding of the Ex Post Facto

Clause.” Youngblood, 497 U.S. at 43; accord Lynce v. Mathis, 519

U.S. 433, 440 (1997). Thus as the State acknowledges, Chief Justice

Rehnquist’s opinion in Youngblood reaffirmed Beazell. Br. Opp. at

6. The State therefore errs in claiming Youngblood so radically

changed ex post facto analysis that no case before Youngblood is

worthy of consideration. See Br. Opp. at 10-12.

Beazell described an ex post facto \aw as: “|A]ny statute

which punishes as a crime an act previously committed, which was

innocent when done; which makes more burdensome the

punishment for a crime, after its commission; or which deprives one

charged with crime of any defense available according to law at the

time when the act was committed.” 269 U.S. at 169. (Youngblood

had a similar formulation. 497 U.S. at 52.) A complete defense of

limitations, pardon, immunity, etc. is a “defense available according

to law” just like a defense such as entrapment, insanity, mistake of

law (Ostrosky v. State, 704 P.2d 786, 791-92 (Alas. Ct. App. 1985)),

or prison escape by necessity (People v. Lovercamp, 43 Cal.App.3d

823, 118 Cal.Rptr. 110 (1974)).

This Court has agreed, post- Youngblood. In Hughes Aircraft

Corp. v. Schumer, 520 U.S. 939 (cited in Br. Opp. at 5], Justice

Thomas’s opinion for the Court relied on both Youngblood and

Beazell, including the “any defense available according to law”

passage from Beazell quoted above, in applying the presumption

against civil statutory retroactivity to a defense that the allegedly

withheld information was in possession of the Government. 520

U.S. at 848. The presumption against civil statutory retroactivity 1s

utilized similarly to the ex post facto prohibition. See Landgraf v.

USI Film Products, 511 U.S. at 266-67 & n. 20.

In Hughes Aircraft, the issue of who had the information

was not within the State’s rigid, technical theory of “definition of the

{tort]’’(see 31 U.S.C. § 3729). Like the limitations defense here, the

3

ostensibly abrogated defense in Hughes Aircraft was jurisdictional,

affecting only the issue of standing to sue. Yet this Court cited

Youngblood and Beazell, including Beazell’s “any defense available

according to law” passage, to reject Schumer’s claims.

The limitations defense here is no less a “defense available

according to law,” than the defense of Government possession of

information was a “defense available according to law” in Hughes

Aircraft. Perhaps neither fits exactly into the State’s rigid, technical

paradigm. But that paradigm is not and should not be the law.

The State’s rigid, technical theory of an ex post facto law is

also contrary to this Court’s formulation in Miller v. Florida, 482

U.S. 423 (1987). There, Justice O’Connor’s opinion for the Court

stated that a retroactive amendment is not an ex post facto law if it

“does not increase the punishment nor change the ingredients of the

offense or the ultimate facts necessary to establish guilt.” 482 U.S.

at 432-33. California Penal Code § 803(g) clearly “changes the

ultimate facts necessary to establish guilt” by eliminating a require-

ment for a guilty verdict, proof of compliance with the statute of

limitations. As discussed infra, p. 6, it also increases the punishment

for the charged crime, even under the State’s narrow view.

The State also errs in claiming no post- Youngblood cases

have found a federal ex post facto violation for retroactive abolition

of acomplete defense of statute of limitations, pardon, immunity, or

the like. Br. Opp. at 12, 14.

First, the State misstates the holding of Ex Parte Scales, 853

S.W.2d 586 (Tex. Ct. Crim. App. 1993) [cited in Petn. at 10].

Scales, relying on Youngblood, found the abolition of the “carving

doctrine” to be a judicial equivalent of an ex post facto law, using ex

post facto standards, even though the Texas “carving doctrine”

didn’t fit within the technical “definition of the crime” paradigm the

State uses here. Scales, 853 S.W.2d at 587-88. The State thus errs in

claiming Scales found no ex post facto violation. Br. Opp. at 14.’

The State also misconstrues another case to which petitioner referred.

Contrary to the State’s claim, Br. Opp. at 14, Dugger v. Williams, 593 So.2d 180

(Fla. 1991) (per curiam) [cited in Petn. at 10] dealt with the federal as well as the

(continued...)

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Second, other post- Youngblood opinions have also held that

retroactive abolition of a complete defense violates the Ex Post

Face Clause, shousih their defenses nae jwinsditionaland thus. ny

within the State’s rigid, technical “definition of the crime”’ theory.

In Means v. Northern Cheyenne Tribal Court, 154 F.3d 941,

947-48 (9th Cir. 1998), Judge Reed's opinion for the Court-relying

on Collins v. Youngblood-held that the amendment which purported

to create jurisdiction in the Tribal Court (and which sought to

override Duro v. Reina, 495 U.S. 676 (1990)) would be ex post facto

if applied retroactively. Means so held for three reasons: (1) Tribal

Court jurisdiction would increase Means’ exposure to punishment

beyond that existing at the time of the charged offense; (2)

retroactive application of the amendment would punish something

which was not acrime at the time of the alleged offense, since “what

constitutes ‘a crime’ is essentially what the sovereign defines as ‘a

crime,’ [and] if the sovereign has no power over an individual then

it essentially lacks the ability to define any of the individual's

conduct as a crime”; and (3) retroactive application would deprive

Means of a “defense available at the time of the alleged crime”

(citing Youngblood, 497 U.S. at 52), namely, lack of jurisdiction.

Each of these three reasons in Means also applies to

petitioner here: (1) Petitioner's exposure to punishment was

increased beyond that existing at the time of the charged offense, for

the reasons stated infra, p. 6 [discussing Lynce v. Mathis and similar

cases]. (2) The sovereign (California) had no power of prosecution

over petitioner beginning in 1990, and thus lacked the ability to

define any of his conduct as a crime. (3) A fully ripe statute of

limitations defense was a complete defense at the time of petitioner’ s

alleged crime (1984). In fact, just as the issue in Means was a

jurisdictional defense, the issue here—a California criminal statute of

limitations-—is also jurisdictional. See Cowan v. Superior Court, 14

Cal.4th 367, 374, 58 Cal.Rptr.2d 458, 926 P.2d 438 (1997).

'(...continued)

state Constitution. as it relied on another case which expressly referred to the

federal Ex Post Facto Clause and opinions of this Court construing it. /d. at 181

(citing Waldrup v. Dugger, 562 So.2d 687, 691-92 (Fla. 1990)}.

5

Similarly in Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir.

1991), the Third Circuit held that retroactive application of a statute

permitting jurisdiction in Superior Court rather than juvenile court

met the Beazell/Youngblood ex post facto standard, as it increased

the punishment to which Helton was potentially subjected, and it

also deprived Helton of a complete defense that the Superior Court

lacked jurisdiction. (The dissent agreed with the majority on this

point. Helton, 930 F.2d at 1049 (Hutchinson, J., dissenting).)

The Fourth Circuit reached a similar conclusion in United

States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987). While

Juvenile Male relied on Beazell, it preceded Youngblood. However,

Judge Boochever’s opinion in United States v. Baker, 10 F.3d 1374,

1394-95 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994), citing

Youngblood and Beazell, reached the same conclusion based on the

Fourth Circuit's analysis in Juvenile Male.

As the State points out, other courts have construed

Youngblood differently, and have concluded that Youngblood

abrogated Beazell’s inclusion of “any defense available according

to law” in the ex post facto prohibition. Br. Opp. at 12-14; accord

Petn. at 9. That is all the more reason why certiorari is warranted.

In any event, this case is well within the State’s “rigid,”

“technical” paradigm, as shown by Justice Stevens’ opinion for this

_ Court in Lynce v. Mathis, 519 U.S. 433 (1997). California Penal

Code section 803(g) does “increase[] the penalty by which a crime

is punishable,” Lynce, 519 U.S. at 443 [quoting Morales, 514 US.

at 506 n.3]: It raises that penalty from zero, to 3-8 years. See Petn. at

24: Cal. Pen. Code § 288. It thus creates a “sufficient risk of increas-

ing the measure of punishment attached to the covered crimes,”

Morales, 514 U.S. at 509; if petitioner were convicted (the only

relevant scenario), the risk would be 100%. Just as cancellation of

gain time in Lynce made prisoners ineligible for early release when

they were previously eligible, so too even more here, cancellation of

a statute of limitations made persons ineligible for immunity from

punishment when they were previously immune. See Petn. at 24.

Such a retroactive law, increasing potential punishment, is ex post

facto. Lindsey v. Washington, 301 U.S. 397, 401-02 (1937); Miller

v. Florida, 482 U.S. at 432-33; see Morales, 514 US. at 506 n.3.

Lynce postdated Youngblood, and is wholly consistent with

it. Thus again, Youngblood cannot mean what the State, or the cases

on which it relies, would have it mean.”

Youngblood makes clear that a mere change in “procedure

by which a criminal case 1s adjudicated”—a change solely affecting

method of adjudication, see, e.g., Blacks Law Dictionary 1203-04

(6th ed. 1991)-is usually not ex post facto. Youngblood, 497 US. at

45. But an expired statute of limitations (or immunity, pardon, etc.)

is a full defense; and in California and other jurisdictions, the State

must prove compliance with the statute for a conviction. See ante, p.

5. That is far from a mere procedure (method) of adjudication,

especially in a state such as California, which considers a criminal

limitations period substantive rather than procedural. E. g., Cowan v.

Superior Court, 14 Cal.4th at 371-72; see Frazer, 21 Cal.4th at 783

(Brown, J., dissenting). Indeed, a judgment can be based solely on

a statute of limitations, and such a judgment is as binding as one

based on failure of proof of an element. United States v. Oregon

Lumber Co.,260 U.S. 290, 300-01 (1922). By contrast, no judgment

can be based solely on a mode of procedure.

In addition, the State’s technical theory assumes a statute of

limitations is not an element of acrime. See, e.g., Br. Opp. at 5, 10,

12-14 & n.5; People v. Frazer, 21 Cal.4th at 757, 760, 764. But in

some states, it is. See, e.g., 11 Del. Code § 232; Jacox v. State, 154

Neb. 416, 419, 48 N.W.2d 390 (1951); 18 Pa. Cons. Stat. § 103(4),

see also Mod. Pen. Code § 1.12(d). Similarly, many states consider

other matters outside the State’s “definition of crime” theory to be

elements of crimes. See, e.g., State v. Losolla, 84 N.M. 151, 152,

500 P.2d 436 (1972) [jurisdiction]; Ross v. State, 411 So.2d 247,

249 (Fla. 1982) [same]; State v. Wagner, 596 N.W.2d 83, 85 (lowa

1999) [territorial jurisdiction]; see also Mod. Pen. Code § 1.13. The

State’s theory would be hopelessly muddled in these states.

Beyond that, it does not seem logical to postulate that changes in

discretionary gain-time awards are within ex post facto analysis, see Lynce v.

Mathis, 519 U.S. at 448-49, as are some parole eligibility modifications, see id.

at 445, but abolition of a nondiscretionary, complete right to an acquittal is not.

Other jurisdictions might not necessarily use the formal term

“element” (often, perhaps, because they never thought about it), but

sull require proof of jurisdictional and similar matters beyond a

reasonable doubt as if they were elements. See, e.g., State v.

McLaughlin, 80 N.Y.2d 466, 472 & n.*, 606 N.E.2d 1357, 591

N.Y.S.2d 966 (1992); State v. Wardenbureg, 261 lowa 1395, 158

N.W.2d 147, 151 (1968). It is unclear how the State's technical

paradigm would apply in these jurisdictions, and why (if it all) it

would be different from jurisdictions which use an “elements” label.

However, if the State tried to defend its position in such a jurisdic-

tion based on the label “element” (perhaps the only principled

position the State could take), that effort would fail because “‘it is the

effect, not the form, of [a] law that determines whether it is ex post

facto.” Weaver v. Graham, 450 U.S. 24, 31 & n.15 (1981).

Finally, the State has not disputed petitioner's showing that

the Ex Post Facto Clause, the closely related Bill of Attainder

Clause, and the closely related presumption against statutory retroac-

tivity, are construed in this Court’s opinions based on function or

effect rather than rigid, technical forms. Petn. at 19-20. The State

also has not tried to defend the California Supreme Court's trunca-

tion of the purposes of the Ex Post Facto Clause; which further

shows the State's legal theory is not and should not be the law, since

the State’s theory cannot survive consideration of the purpose which

the California Supreme Court omitted. See Petn. at 20-22. In addi-

tion, the State has not addressed petitioner’s discussion of the major

changes or uncertainties which would result in Fifth Amendment

law, if an expired limitations period didn’t provide certain immunity

from prosecution. Petn. at 11. And the State doesn’t contest the

point that for purposes here, a complete limitations defense is akin

to defenses such as pardon or immunity. Petn. at 10 & n.3, 21.

Il. Due Process Clause

A. Fundamental Fairness

The State claims there is nothing fundamentally unfair about

a government promising a conditional immunity from prosecution

(here, the promise that all prosecutions shall be brought within 6

years after the alleged offense), then reneging on the promise

years—or decades—after the condition was perfected and the

——— lr tt—“—sSS

$|

immunity became unconditional. Three of the seven Justices of the

California Supreme Court thought otherwise, concluding that a

government reneging on such a (fully ripe) promise not to prosecute

was a violation of the California Constitution because it was so

fundamentally unfair. People v. Frazer, 21 Cal.4th at 780 (Kennard,

J., dissenting); id. at 782-84 (Brown, J., dissenting).

The United States Constitution, no less than the California

Constitution as construed by the three dissenting Justices, prohibits

as fundamentally unfair such a governmental breach of promise to

an individual, materially affecting the individual's liberty or

property. Petitioner already adverted to this in Petn. at 30. See also,

e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135-39 (1810).

In addition, this Court has so held for breaches of promises

by prosecuting authorities which materially disadvantage the

recipient of the promise with respect to criminal prosecution. For

example, when a government implicitly promises a suspect it won't

use silence against him by giving Miranda warnings, it is

fundamentally unfair and a denial of Due Process for the

government to breachthat promise, and the post-Miranda silence is

inadmissible for all purposes. Doyle v. Ohio, 426 U.S. 284, 290-95

(1976); Wainwright v. Greenfield, 474 U.S. 284, 290-95 (1986).

Similarly, if a government promises a person immunity for any

statements, it is fundamentally unfair and a denial of Due Process for

the State to breach that promise, and the statements cannot be used

in a later prosecution. Raley v. Ohio, 360 U.S. 423, 437-40 (1959).

Such cases further show that when government makes a

(material) promise which becomes unconditional and affects a

liberty or property interest, it may not later renege. So too here.

The State appears to claim, twice, that the California

Supreme Court’s holding is justified because California Penal Code

§ 803(g) involves charged victims of sex offenses. Br. Opp. at 23,

24. There is no support for a theory that the Due Process Clause bars

retroactive revocation of immunity for some prosecutions, but

permits it for others. What provision of the Constitution would

enable one to determine which prosecutions permit retroactive

revocation, and which not? Cf. Morales, 514 U.S. at 510 n.7.

The Due Process Clause is intended to serve the purpose of

“{insuring] the fair and orderly administration of the laws.”

International Shoe Co. v. State of Washington, 326 U.S. 310, 319

(1945): see also, e.g., Loper v. Beto, 405 U.S. 473, 494 (1972)

(Burger, C.J., dissenting) [referring to the “very notion{[] of ... order-

liness embodied in the Due Process Clause’’]. The State seeks, and

the California Supreme Court held, the opposite. See supra, p. 1.

Petitioner doubts the Framers of our Constitution had such

a disorderly view of the role of government. To the contrary:

“Stability in Government, 1s essential to national character, and to

the advantages annexed to it, as well as to that repose and

confidence in the minds of the people, which are among the chief

blessings of civil society.” James Madison, The Federalist No. 37.

B. Substantive Statutes Of Limitation

The State offers virtually nothing in response to the

argument in Part II(B) of the petition. However, the State doesn’t

dispute the existence of the “substantive right” line of cases, which

rely on federal and state Due Process guarantees to hold that

substantive statutes of limitation cannot be retroactively abolished

once they have expired. See Petn. at 16. As petitioner has shown,

Petr. at 16-17, there is a split of authority on this subject. The State

offers only a sentence of ipse dixit to the contrary. Br. Opp. at 27.

The distinction between procedural and substantive statutes

of limitation clearly is significant. The petition set forth a logical and

supported analysis of how that significance relates to the Due

Process Clause and the issue here, firmly rooted in traditional state

and federal jurisprudence. The State has made no effort to respond.

Dated this 10th day of April, 2000.

Respectfully submitted,

Michael B. Dashjian (Counsel of Record)

Sylvia M. Dashjian

P.O. Box 512

San Luis Obispo CA 93406-0512

(805) 460-0300

Counsel for the Petitioner

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