People v. Bucy

• Decision Date: 20 April 1999
• Docket Number: No. G022487,G022487
• Citation: 83 Cal.Rptr.2d 885,71 Cal.App.4th 589
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 71 Cal.App.4th 589 71 Cal.App.4th 589, 99 Cal. Daily Op. Serv. 2882, 1999 Daily Journal D.A.R. 3714 The PEOPLE, Plaintiff and Appellant, v. Carl Robert BUCY, Defendant and Respondent.

Page 885

83 Cal.Rptr.2d 885

Previously published at 71 Cal.App.4th 589

71 Cal.App.4th 589, 99 Cal. Daily Op. Serv. 2882,

1999 Daily Journal D.A.R. 3714

The PEOPLE, Plaintiff and Appellant, v. Carl Robert BUCY, Defendant and Respondent.

No. G022487.

Court of Appeal, Fourth District, Division 3, California.

April 20, 1999.

Review Granted July 21, 1999.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe and Janet Gaard, Deputy Attorneys General, for Plaintiff and Appellant.

Jennifer L. Keller, Irvine, for Defendant and Respondent.

O P I N I O N

SONENSHINE, J. ^*

The prosecution appeals the trial court's order denying its motion to reinstate a felony complaint, contending the court erred by finding the charges were barred by the ex post facto clause of the federal Constitution. We affirm.

On June 20, 1997, Carl Robert Bucy was charged with three counts of lewd conduct with a child under Penal Code section 288. ¹ The last count allegedly occurred no later than August 30, 1977, almost 20 years before the complaint was filed. The complaint alleged the statute of limitations did not bar prosecution because the offenses had been revived under section 803, subdivision (g). ² Bucy demurred on the grounds retroactive application of subdivision (g) violates the ex post facto clause of the federal Constitution, and section 805.5 precludes application of subdivision (g). A magistrate sustained the demurrer on both grounds. The prosecution filed a motion to reinstate the complaint, and the superior court denied it.

I

The Attorney General contends the trial court erred because subdivision (g) does not violate the ex post facto clause. Not so. ³

Two recent cases held subdivision (g) violates the ex post facto clauses of the federal and state Constitutions when applied to crimes committed before its effective date: People v. Bunn (1997) 53 Cal.App.4th 227, 238, 61 Cal.Rptr.2d 734 and Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 1227, 39 Cal.Rptr.2d 414. These cases followed a long, unbroken line of California cases holding that a statute of limitations may be extended before the original limitation period expires but not after it expires. (People v. Lewis (1986) 180 Cal.App.3d 816, 820-823, 225 Cal.Rptr. 782; People v. Masry (1986) 179 Cal.App.3d 1149, 1151-1152, 225 Cal.Rptr. 174; People v. Gordon (1985) 165 Cal.App.3d 839, 849-852, 212 Cal.Rptr. 174, overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292, 79 Cal.Rptr.2d 195, 965 P.2d 713; People v. Smith (1985) 171 Cal.App.3d 997, 1001, 217 Cal.Rptr. 634; People v. Sample (1984) 161 Cal.App.3d 1053, 1057-1058, 208 Cal.Rptr. 318; People v. Eitzen (1974) 43 Cal.App.3d 253, 265-267, 117 Cal.Rptr. 772; Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 850, 106 Cal.Rptr. 516; People v. Snipe (1972) 25 Cal.App.3d 742, 745-748, 102 Cal.Rptr. 6; see also People v. Sweet (1989) 207 Cal.App.3d 78, 82-85, 254 Cal.Rptr. 567; People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 641-644, 228 Cal.Rptr. 357, overruled on other grounds in People v. Morris (1988) 46 Cal.3d 1, 18, 249 Cal.Rptr. 119, 756 P.2d 843; People v. Swinney (1975) 46 Cal.App.3d 332, 340, 120 Cal.Rptr. 148, overruled on other grounds in People v. Zamora (1976) 18 Cal.3d 538, 565, 134 Cal.Rptr. 784, 557 P.2d 75.)

Cases from other jurisdictions are virtually all in accord. (United States v. Richardson (3d Cir.1975) 512 F.2d 105; Clements v. United States (9th Cir.1959) 266 F.2d 397; United States v. Taliaferro (10th Cir.1992) 979 F.2d 1399; United States v. Kurzenknabe (D.N.J.1955) 136 F.Supp. 17; State v. Whirley (Ala.Crim.App.1987) 530 So.2d 861; State v. Creekpaum (Alaska 1988) 753 P.2d 1139; People v. Midgley (Colo.1986) 714 P.2d 902; State v. O'Neill (1990) 118 Idaho 244, 796 P.2d 121; State v. Nunn (1989) 244 Kan. 207, 768 P.2d 268; People v. Russo (1992) 439 Mich. 584, 487 N.W.2d 698; State v. Traczyk (Minn.1988) 421 N.W.2d 299; Longhibler v. State (Mo.1992) 832 S.W.2d 908; State v. Hirsch (1994) 245 Neb. 31, 511 N.W.2d 69; State v. Nagle (A.D.1988) 226 N.J.Super. 513, 545 A.2d 182; People v. Spearman (N.Y.1985) 128 Misc.2d 112, 487 N.Y.S.2d 712; State v. Thill (N.D.1991) 468 N.W.2d 643; State v. Dufort (Or.App.1992) 111 Or.App. 515, 827 P.2d 192; Commonwealth v. Thek (1988) 376 Pa.Super. 390, 546 A.2d 83, overruled on other grounds in People v. Garcia (1991) 403 Pa.Super. 280, 588 A.2d 951, 955; Rose v. State (Tex.App.1986) 716 S.W.2d 162; but see United States v. Brechtel (5th Cir.1993) 997 F.2d 1108 [contrary dictum]; United States v. Knipp (6th Cir.1992) 963 F.2d 839 [same]; United States v. Bischel (9th Cir.1995) 61 F.3d 1429 [same].) The commentators agree. (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Defenses, § 372, p. 427; Black, Statutes of Limitation and the Ex Post Facto Clauses (1937) 26 Kentucky L.J. 41-42; 21 Am.Jur.2d Criminal Law, § 224.)

Standing in stark defiance of this large, unbroken, and venerable body of California case law, as well as virtually all cases from foreign jurisdictions, is one case: People v. Maloy, supra, 70 Cal.App.4th 570, 82 Cal.Rptr.2d 767. ⁴ Maloy was recently decided by the Fifth District Court of Appeal after the briefing in this case was complete. The court concluded subdivision (g) did not violate ex post facto proscriptions. For reasons that follow, we respectfully disagree with the court's conclusion.

To reach its result, the Maloy court relied on Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, which the California Supreme Court had adopted in Tapia v. Superior Court (1991) 53 Cal.3d 282, 296, 279 Cal.Rptr. 592, 807 P.2d 434. The Collins court embraced a traditional narrow reading of the ex post facto clause, limiting its scope to categories first set out in Calder v. Bull (1798) 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648: " '1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, 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 offense, in order to convict the offender.' [Citation.]" (People v. Maloy, supra, 70 Cal.App.4th at pp. 577-578, 82 Cal.Rptr.2d 767, original quotation marks and italics omitted.) The Youngblood court expressly rejected a formulation that prohibited all retroactive laws that eliminated a "substantial protection" for the accused or altered the accused's situation to a disadvantage. (People v. Maloy, supra, 70 Cal.App.4th at pp. 578-579, 82 Cal.Rptr.2d 767.)

The Maloy court noted the Youngblood court had used the following abbreviated version of the Calder definition which the Supreme Court had set out in Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216: " ' "[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 a crime of any defense available according to law at the time when the act was committed...." [Citation.]' " (People v. Maloy, supra, 70 Cal.App.4th at p. 578, 82 Cal.Rptr.2d 767.)

The Maloy court concluded subdivision (g) does not fall into any of the Calder /Beazell categories. (People v. Maloy, supra, 70 Cal.App.4th at pp. 579-580, 588-589, 82 Cal.Rptr.2d 767.) It obviously does not criminalize previously innocent conduct. Rejecting Maloy's argument that by reviving the offense subdivision (g) increased the punishment from zero to that specified by the applicable statute, the Maloy court also found the subdivision did not affect the punishment for the crime. (Id. at p. 579, 82 Cal.Rptr.2d 767.) ⁵

In an extensive discussion, the Maloy court further concluded the statute of limitations does not constitute a "defense" as contemplated by the Calder /Beazell formulations of ex post facto prohibitions. (People v. Maloy, supra, 70 Cal.App.4th at pp. 580-589, 82 Cal.Rptr.2d 767.) For reasons we shall explain, we disagree with that conclusion. But we are at odds with the Maloy result for a more fundamental reason.

In a one-sentence analysis, the Maloy court concluded the fourth Calder category was inapplicable: "[W]e see no basis to conclude the provision alters the rules of evidence in order to convict the offender on less or different evidence than the law required at the time of commission of the offense." (People v. Maloy, supra, 70 Cal.App.4th at pp. 579-580, 82 Cal.Rptr.2d 767.) Contrary to Maloy, we do find such a basis.

The fourth Calder category prohibits "[e]very 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 offense, in order to convict the offender." (Calder v. Bull, supra, 3 U.S. at p. 390.) Perhaps the Maloy court focused on the term "rules of evidence" to conclude the fourth Calder category did not apply because the statute of limitations has nothing to do with procedural evidentiary rules. But as the Maloy court recognized, the United States Supreme Court has made clear the fourth Calder category does not apply to mere changes in the rules of evidence. (People v. Maloy, supra, 70 Cal.App.4th at p. 578, fn. 4, 82 Cal.Rptr.2d 767.)

The Calder court must have had a more specific and substantive concept in mind when it used the term "rules of evidence." Such a concept is embodied in the Calder language in its fourth category referring to the amount or nature of the evidence necessary to convict. ⁶ The crux of the category is that the ex post facto...