People v. Williams--Argument, Part II D - Conclusion (File 4 of 4)


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D. Similarity of Statutes of Limitations to Affirmative Defenses.

The statute of limitations is not as important as the constitutional rights protected by an express waiver rule, but rather is more similar to an affirmative defense. When there has been no express waiver by the defendant and when the statute of limitations issue is raised for the first time on appeal, as in the instant case, the proposal that the judgment be vacated incorrectly affords greater protection to a procedural issue than is afforded many constitutional rights. As discussed earlier, only the right to counsel and the essential rights afforded a defendant at trial need be expressly waived. (See Gideon v. Wainwright (1963) 372 U.S. 335 339-340; Boykin v. Alabama (1969) 395 U.S. 238, 242.) Other rights are typically forfeited if not asserted. For example, the defendant has the right to a jury selected without racial discrimination. This right is protected by both the federal and state constitutions, and it is far more important to society than the somewhat arbitrary cut-off of the statute of limitations. Yet this right is forfeited if not asserted at trial. (Teague v. Lane (1989) 489 U.S. 288, 297; People v. Gallego (1990) 52 Cal.3d 115, 166.)

Unlike its uncomparability with constitutional rights, the effect of a statute of limitations and that of an affirmative defense is the same. An affirmative defense is defined as a "matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it." (Black's Law Dict. (6th ed. 1990) p. 60, col. 1.) In criminal law, examples of affirmative defenses include self-defense (see, e.g., People v. Welch (1982) 137 Cal.App.3d 834, 840, fn. 1), consent (see, e.g., People v. Simmons (1989) 213 Cal.App.3d 573, 579), entrapment (see, e.g., People v. Spry (1997) 58 Cal.App.4th 1345, 1370), insanity and duress (see, e.g., 1 Robinson, supra, § 3(a), pp. 12-13). The statute of limitations is similar to these defenses because it asserts that, even though all the elements of an offense may be present, the defendant still cannot be found guilty.

Thus, the statute of limitations should be classified as an affirmative defense and, like other affirmative defenses, it should be considered forfeited if not raised before or at trial. (See People v. McNabb (1991) 228 Cal.App.3d 462, 470-471 (guilty plea waives all affirmative defenses); People v. Barton (1995) 12 Cal.4th 186, 197 (duty to instruct sua sponte on defenses limited).) As noted in part III, post, the forfeiture approach is the most widely used by other states and the only approach used by the federal circuit courts when addressing the statute of limitations issue.

E. Constitutionality of the Statute of Limitations as an Affirmative Defense.

A rule that a statute of limitations is an affirmative defense would not violate any right of a defendant. The Legislature placed these statutes in Part II of the Penal Code, Criminal Procedure, not Part I, Crimes and Punishments. Their location indicates that the statutes of limitations are not an element of any offense, let alone the instant offense of perjury. (See Pen. Code, § 118.) Thus, it does not violate any right of a defendant, including the right to due process, to require him to affirmatively plead a statute of limitations violation. (See, e.g., Moss v. Superior Court (1998) 17 Cal.4th 396, 425 ("assigning the burden to prove an affirmative defense by a preponderance of the evidence to a defendant in a criminal proceeding . . . is constitutionally permissible"); Martin v. Ohio (1987) 480 U.S. 228, 233 (requiring the defendant to prove the affirmative defense of self-defense does not violate the Due Process Clause); Patterson v. New York (1977) 432 U.S. 197, 210 (requiring the defendant to prove the affirmative defense of extreme emotional disturbance does not violate the Due Process Clause).)

"However important the statute of limitations might be to a defendant in a given case, the statute can hardly be deemed 'fundamental to the proper functioning of our adjudicatory system.' Indeed, at common law there was no limitation as to the time within which offenses could be prosecuted." (Proctor v. State (Tex.Crim.App. 1998) 967 S.W.2d 840, 844.)

The states of South Carolina and Wyoming recognize the non-mandatory nature of statutes of limitations as they do not have a statute of limitations for any criminal offense. (2 Robinson, supra, § 202(a) at p. 463, fn. 1.) Likewise, Kentucky, Maryland, and North Carolina only have statutes of limitations for misdemeanor offenses. (Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial (1995), 37 Wm. & Mary L. Rev. 199, 250, fn. 223.) Such decisions reflect the arbitrariness with which the statutes of limitations are created--a concession defendant even makes. (See Appellant's Answer Brief at p. 19, fn. 15, quoting 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 363, p. 418.)

Finally, as this Court has

"permitted constitutional rights to be forfeited [citations], [i]t would make little sense to permit the forfeiture of important constitutional rights but not to permit the forfeiture of statutory rights enumerated in statutes of limitations." (Cowan, supra, 14 Cal.4th at p. 391 (conc. and dis. opn. of Brown, J.) (citations omitted).)

For these reasons, this Court should not be uncomfortable with establishing a forfeiture rule.

F. Evidence of Timeliness.

Throughout defendant's brief, he argues that it is the responsibility of the State to include, in the accusatory pleading, evidence that the statute of limitations has not run. If it has, defendant claims, the State must include evidence as to why the statute of limitations has been tolled. (See e.g., Appellant's Answer Brief at pp. 9, 15-16, 23-24, 32.) However, the rationale for requiring that the State provide evidence of the appropriateness of the prosecution is inherently linked to McGee's rationale for classifying the statute of limitations as a component of subject matter jurisdiction. For example, both times the Court in McGee refers to a pleading showing on its face that the statute of limitations has run is in a sentence also declaring the Court not to have subject matter jurisdiction.⁽⁴⁾

In addition, the commentary that the pleading on its face must evidence either that the statute of limitations had run or not run facilitated and thus buttressed the Court's decision to choose subject matter jurisdiction as the rule. Put another way, a pleading which was ambiguous as to whether the statute of limitations had run would not be a pleading which could be automatically dismissed by the Court, as the Court does when declaring lack of subject matter jurisdiction. In McGee, "[o]n the face of the information herein it clearly appears that it was not filed within the period of the statute of limitations, and no allegations setting forth an exception to the running of the statute are made." (Id. at p. 612.) Thus, it was very easy for the Court to decide that subject matter jurisdiction should be the rule. (See, e.g., Cowan, supra, 14 Cal.4th at p. 387 (conc. and dis. opn. of Brown, J.) ("The jurisdictional approach established in McGee, supra, 1 Cal.2d 611, presupposed that it would generally be possible to tell from the face of the indictment or information whether a particular cause of action was barred by the statute of limitations. While this may have been true at the time McGee was decided, it is certainly no longer the case").)

The requirement that the accusatory pleading contain evidence that the offense was timely before the court was inherently part of the Court's decision in McGee that the statute of limitations was a subject matter jurisdiction issue. As this Court in Cowan overruled that holding of McGee, the pleading requirement is no longer valid. The difficulty under current law of deciding whether the statute of limitations has run based on the face of the accusatory pleading suggests that it makes more sense to now declare the statute of limitations to be an affirmative defense.

As Justice Brown noted,

"Since McGee was decided, the determination of whether the statute of limitations applies in a given case has become an extraordinarily complex and time-consuming task, often requiring both factual development and the resolution of difficult legal issues. (See, e.g., Pen. Code, § 803, subd. (c) [enumerating offenses for which the statute does not commence to run until discovery of the offense]; id., subd. (d) [tolling provisions]; People v. Bell (1996) 45 Cal.App.4th 1030, 1061 [53 Cal.Rptr.2d 156] [addressing which parties qualify as 'discovery' and what constitutes 'discovery' for the purposes of Pen. Code, § 803, subd. (c)]; People v. Zamora, supra, 18 Cal.3d at pp. 548-549 & fn. 7 [noting that in conspiracy cases statute does not commence to run until the last overt act committed in furtherance of the conspiracy, but observing that 'adoption of a "last overt act" rule does not answer the questions of what constitutes an "overt act" and when an "overt act" must occur.'].)" (Cowan, supra, 14 Cal.4th at pp. 387-388 (conc. and dis. opn. of Brown, J.).)

The statutes governing the pleadings do not require that the timeliness of the charged offense be addressed. (See, e.g., Pen. Code, § 950 ("The accusatory pleading must contain . . . [t]he title of the action, . . . the names of the parties, [and a] statement of the public offense or offenses charged therein"); id., § 952 ("In charging an offense, each count shall contain . . . a statement that the accused has contained some public offense therein specified. Such statement may be made . . . without . . . any allegations of matter not essential to be proved").) In fact, section 955 specifically states that "[t]he precise time at which the offense was committed need not be stated in the accusatory pleading . . . ." (Id., § 955.)

Rather, all that need be alleged is that the offense "have been committed at any time before the finding or filing thereof, except where the time is a material ingredient of the offense." (Ibid.; see also § 959 ("The accusatory pleading is sufficient if it can be understood therefrom: [¶] 6. That the offense was committed at some time prior to the filing of the accusatory pleading"); § 966 (establishing the sufficient factors that need be set forth in an accusatory pleading for perjury, none of which regard the timeliness of the offense).) Any contention that the Legislature has required the accusatory pleading to show compliance within the statute of limitations, before defendant has raised the issue, is contrary to the plain wording of the statutes.

Therefore, the defendant has the burden of calling the court's attention to the fact that the offense charged may be time-barred. As an affirmative defense, the burden of raising the issue of the statute of limitations is appropriately distinguished as that of the defendant, whereas the burden of proving the issue once raised is that of the State. This distinction and requirement that the defendant raise the issue does not impair the policy of the statute of limitations espoused in Zamora. (See part II A, ante.)

G. Policies of Civil Statutes of Limitations.

California has long recognized that in civil proceedings, the plea of the statute of limitations is an affirmative defense (see San Diego Realty Co. v. Hill (1914) 168 Cal. 637, 639), and that it is considered waived if not pleaded (see Osment v. McElrath (1886) 68 Cal. 466, 473). Civil proceedings characterize the statute of limitations as a "personal privilege" (see Grattan v. Wiggins (1863) 23 Cal. 16, 25), rather than as a limitation on the power of the court.

Although civil and criminal proceedings involve different sets of rights,

"waivers of civil statute of limitations do not contravene the statute's purposes; because the policy reasons underlying both civil and criminal statutes are similar, a waiver of criminal statutes of limitations should not be presumed to circumvent their purpose." (Note, The Statute of Limitations in a Criminal Case: Can it be Waived? (1977) 18 Wm. & Mary L. Rev. 823, 839-840.)

III. Current jurisprudence favors treating the statute of limitations as an affirmative defense.

Other briefs before this Court have shown that a majority of the state's highest courts and all of the Federal Circuit Courts of Appeals addressing the instant issue have construed the statute of limitations as an affirmative defense. (See, e.g., Brief Amicus Curiae of Criminal Justice Legal Foundation in Cowan v. Superior Court, Cal. Crim. No. S052051 (1996) p. 9; Respondent's Brief at pp. 18-19.) Consequently, amicus will not currently reiterate the list.

CONCLUSION

The decision of the Court of Appeal should be reversed; defendant's statute of limitations claim should be rejected on appeal without prejudice to his raising it as the basis for a habeas corpus petition for ineffective assistance of counsel.

December 16, 1998

Respectfully submitted,

Denise A. Yates

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

Footnote 4. "In our view, the more desirable rule is that the statute is jurisdictional, and that an indictment or information which shows on its face that the prosecution is barred by limitations fails to state a public offense." (People v. McGee (1934) 1 Cal.2d 611, 613.)

"It follows that where the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, . . . the power to proceed in the case is gone." (Id. at pp. 613-614.)


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January 1999