Statute of Limitations (SOL)
General Rule
- The statute of limitations completely bars prosecution. (People v. Meza (2019) 38 Cal.App.5th 821, 825.)
- Felony Offense. The statute of limitations for a felony offense is three years plus any tolling. (PC 801; PC 803(c).)
- Wobbler Charged as Felony. “If the offense is a wobbler initially charged as a felony, the three-year statute of limitations for felonies applies, without regard to the ultimate reduction to a misdemeanor after the filing of the complaint.” (People v. Mincey (1992) 2 Cal.4th 408, 453.)
- Misdemeanor Offense. The statute of limitations for a misdemeanor offense is generally one year and tolling does not apply. (PC 802(a); PC 803(c).)
- Pending Prosecution. The time during which prosecution of the same person for the same conduct is pending in a court of this state is not a part of a limitation of time prescribed in this chapter. (PC 803(b).)
- Lesser-Included Misdemeanor Offense. If D is initially charged with a felony but D is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanor offenses applies. (People v. Mincey (1992) 2 Cal.4th 408, 453.)
- EXCEPTION: Forfeiture. “[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.” (People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150.)
- Acquiesced. General assent to a packet of jury instructions submitted by the prosecution does not show a defendant understood the instructions would allow him to be convicted of a time-barred offense; held, D did not acquiesce such that he forfeited the SOL issue. (People v. Meza (2019) 38 Cal.App.5th 821, 828.)
- EXCEPTION: Forfeiture. “[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.” (People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150.)
- Burden of Proof. Prosecution bears the burden of proving, by a preponderance of the evidence, that a charged offense was committed within the applicable period of limitations. (People v. Lopez (1997) 52 Cal.App.4th 233, 248.)
Exceptions (non-exhaustive list)
| PC 273.5 | 7-year SOL (PC 803.7(a).) |
| Crimes Punishable by LWOP | Anytime (No SOL). (PC 799(a).) |
| Crimes Punishable by 8 years or more in CDC | 6-year SOL (PC 800.) |
| Specified Sex Offenses Involving Minor Victims | Any time prior to victim’s 40th birthday. (PC 801.1(a)(1).) |
| Offenses requiring PC 290 Reg | 10-year SOL. (PC 801.1(b).) |
| Elder Abuse Not Involving Theft/Embezzlement | 5-year SOL. (PC 801.6.) |
PC 1387
- General Rule. PC 1387 limits the number of times the prosecution may dismiss and refile charges. (Jackson v. Superior Court (2017) 4 Cal.5th 96, 107.)
- Two-Dismissal Rule. PC 1387 “generally permits the prosecution to refile felony charges following dismissal only once.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 104.)
- “An order terminating an action pursuant to this chapter, or section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony … and the action has been previously terminated pursuant to this chapter, or section 859b, 861, 875, or 995…” (PC 1387(a).)
- This chapter -> encompasses dismissals under PC 1385. (Barron v. Superior Court (2023) 90 Cal.App.5th 628, 636.)
- Therefore, Two-Dismissal Rule also applies where earlier dismissal under PC 1385 (i.e. furtherance of justice)
- Domestic Violence Exception to Two-Dismissal Rule. If the previous termination was the result of the failure to appear by the complaining witness, who had been personally subpoenaed in a prosecution arising under PC 243(e), PC 273.5, PC 273.6, or PC 261 (where the complaining witness is the spouse of the D). (PC 1387(a)(3).)
- Applies only within six months of the original dismissal.
- Can only be invoked once in each action.
- Good Cause Exception to Two-Dismissal Rule. If the previous termination was pursuant to Section 859b, 861, 871, or 995, the subsequent order terminating an action is not a bar to prosecution if…Good cause is shown why the preliminary examination was not held within 60 days from the date of arraignment or plea. (PC 1387(c)(1).)
PC 1387.1
- Rule: Prosecutors permitted to file violent felony charges against a defendant for a third and final time if the charges had been dismissed “due solely to the excusable neglect” of “the court, prosecution, law enforcement agency, or witnesses.” (People v. Massey (2000) 79 Cal.App.4th 204, 211.)
- Excusable Neglect: neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. (People v. Massey (2000) 79 Cal.App.4th 204, 211.)
- Prosecutor failing to file a “technically correct affidavit” stating that a witness was unavailable. (Tapp v. Superior Court (1989) 216 Cal.App.3d 1030.)
- Prosecutors being unable to locate or produce a witness despite reasonable efforts. (People v. Mason (2006) 140 Cal.App.4th 1190, 1196.)
- Trial court’s failure to timely hold a preliminary hearing by section 859b’s 60-day deadline due to trial court trying to navigate the chaos during the early days of the COVID-19 pandemic. (People v. Turner (2023) 97 Cal.App.5th 568.)
Venue
- Venue refers to the place appropriate for D’s trial. (People v. Posey (2004) 32 Cal.4th 193, 215.)
- Burden of Proof: preponderance of the evidence. (People v. Posey (2004) 32 Cal.4th 193, 211.)
- In General: venue is proper where the crime was committed. (PC 777.)
- Misdemeanor: county within which charged offense committed. (PC 1462.2.)
- Specified Sex Offenses Exception. (PC 784.7(a).)
- Venue is proper for following offenses and any offenses properly joinable with those offenses in any jurisdiction where at least one of the offenses occurred:
- PC 220 (except assault with intent to commit mayhem), 261 [rape], 264.1 [rape or genital penetration in concert], 269 [aggravated sexual assault of a child], 286 [sodomy], 287, 288 [lewd or lascivious conduct with child under 14), 288.5 [continuous sexual abuse of child], 288.7 [sexual acts with a child 10 years or younger], or 289 [forcible sexual penetration] or former 262 [spousal rape] or 288a [oral copulation]
- PC 954 Hearing. Prosecution must present written evidence that all district attorneys in counties with jurisdiction over the offenses agree to the venue.
- Venue is proper for following offenses and any offenses properly joinable with those offenses in any jurisdiction where at least one of the offenses occurred:
- Domestic Violence Exception. (PC 784.7(b).)
- Venue is proper for following offenses and any offenses properly joinable with those offenses in any jurisdiction where at least one of the offenses occurred:
- (1) D is charged with
- (a) More than one violation of PC 243.4, 261.5, 273, 273.5 or 646.9; OR
- (b) D is charged with any DV crime as defined under PC 13700 that occurs in more than one jurisdictional territory; AND
- (2) D & V are the same for all offenses
- (1) D is charged with
- PC 954 Hearing. Prosecution must present written evidence that all district attorneys in counties with jurisdiction over the offenses agree to the venue.
- Venue is proper for following offenses and any offenses properly joinable with those offenses in any jurisdiction where at least one of the offenses occurred:
- Identity Theft Cases Exception. Venue is proper in “the county where the theft of the personal identifying information occurred” among other places. (PC 786(b)(1).)
- Stolen Property Exception. If stolen property from one jurisdiction is taken to another, venue is proper in “either jurisdictional territory.” (PC 786(a).)
- Multi-Jx Offense Exception. When the “acts or effects … requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.” (PC 781.)
- Venue proper in any county where preparatory acts or effects occurred, even if not an essential element of the crime. (People v. Watkins (2022) 78 Cal.App.5th 903, 912.)
- Boundary Exception: when offense is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof, the jurisdiction of such offense is in any competent court within either jurisdictional territory. (PC 782.)
- Motor Vehicle Exception. Offense committed in a motor vehicle, venue is proper anywhere through which the vehicle passed in the course of its trip, or where the trip terminates. (PC 783.)
- Forfeiture. Failure to raise timely objection to venue in felony proceeding forfeits right to object. (People v. Simon (2001) 25 Cal.4th 1082, 1104.)