California Criminal Jury Instructions (CALCRIM) (2017)

3410. Statute of Limitations

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3410.Statute of Limitations
A defendant may not be convicted of <insert crime[s]>
unless the prosecution began within years of the date the
crime[s] ((was/were) committed/(was/were) discovered/should have been
discovered). The present prosecution began on <insert
date>.
[A crime should have been discovered when the (victim/law enforcement
officer) was aware of facts that would have alerted a reasonably diligent
(person/law enforcement officer) in the same circumstances to the fact
that a crime may have been committed.]
The People have the burden of proving by a preponderance of the
evidence that prosecution of this case began within the required time.
This is a different standard of proof than proof beyond a reasonable
doubt. To meet the burden of proof by a preponderance of the evidence,
the People must prove that it is more likely than not that prosecution of
this case began within the required time. If the People have not met this
burden, you must find the defendant not guilty of <insert
crime[s]>.
[If the People have proved that it is more likely than not that the
defendant was outside of California for some period of time, you must
not include that period [up to three years] in determining whether the
prosecution began on time.]
New January 2006; Revised April 2008, August 2009
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the statute of limitations if the
defendant is relying on such a defense and there is substantial evidence supporting
it. (See generally People v. Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117,
544 P.2d 1317] [discussing duty to instruct on defenses].)
Do not give this instruction in cases in which the statute of limitations had already
expired under the pre-2009 version of Penal Code section 804(c).
The state has the burden of proving by a preponderance of the evidence that the
prosecution is not barred by the statute of limitations. (People v. Crosby (1962) 58
Cal.2d 713, 725 [25 Cal.Rptr. 847, 375 P.2d 839]; see CACI 200, Obligation to
Prove—More Likely True Than Not True.)
For most crimes, the statute begins to run when the offense is committed. If the
crime is a fraud-related offense and included in Penal Code section 803, the statute
begins to run after the completion of or discovery of the offense, whichever is later.
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(Pen. Code, §§ 801.5, 803.) Courts interpreting the date of discovery provision have
imposed a due diligence requirement on investigative efforts. (People v. Zamora
(1976) 18 Cal.3d 538, 561 [134 Cal.Rptr. 784, 557 P.2d 75]; People v. Lopez
(1997) 52 Cal.App.4th 233, 246 [60 Cal.Rptr.2d 511].) If one of the crimes listed
in Section 803 is at issue, the court should instruct using the “discovery” language.
If there is a factual issue about when the prosecution started, the court should
instruct that the prosecution begins when (1) an information or indictment is filed,
(2) a complaint is filed charging a misdemeanor or infraction, (3) the defendant is
arraigned on a complaint that charges the defendant with a felony, or (4) an arrest
warrant or bench warrant is issued describing the defendant with the same degree
of particularity required for an indictment, information, or complaint. (Pen. Code,
§ 804.)
Limitation Periods
No limitations period (Pen. Code, § 799):
Embezzlement of public funds and crimes punishable by death or by
life imprisonment.
Six-year period (Pen. Code, § 800):
Felonies punishable for eight years or more, unless otherwise specified
by statute.
Five-year period (Pen. Code, § 801.6):
All other crimes against elders and dependent adults.
Four-year period (Pen. Code, §§ 801.5, 803(c)):
Fraud, breach of fiduciary obligation, theft, or embezzlement on an
elder or dependent adult, and misconduct in office.
Three-year period (Pen. Code, §§ 801, 802(b)):
All other felonies, unless otherwise specified by statute, and
misdemeanors committed upon a minor under the age of 14. Note: “If
the offense is an alternative felony/misdemeanor ‘wobbler’ initially
charged as a felony, the three-year statute of limitations applies, without
regard to the ultimate reduction to a misdemeanor after the filing of the
complaint [citation].” (People v. Mincey (1992) 2 Cal.4th 408, 453 [6
Cal.Rptr.2d 822, 827 P.2d 388].)
Two-year period (Pen. Code, § 802(c)):
Misdemeanors under Business and Professions Code section 729.
One-year period (Pen. Code, § 802(a)):
Misdemeanors. Note: “If the initial charge is a felony but the defendant
is convicted of a necessarily included misdemeanor, the one-year period
for misdemeanors applies.” (People v. Mincey (1992) 2 Cal.4th 408,
453 [6 Cal.Rptr.2d 822, 827 P.2d 388]; Pen. Code, § 805(b); see also 1
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Witkin & Epstein, California. Criminal Law (3d ed. 2000) Defenses,
§ 220.)
AUTHORITY
• Instructional Requirements. Pen. Code, § 799 et seq.; People v. Stewart (1976)
16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].
• Tolling the Statute. Pen. Code, § 803.
• Burden of Proof. People v. Lopez (1997) 52 Cal.App.4th 233, 250 [60
Cal.Rptr.2d 511]; People v. Zamora (1976) 18 Cal.3d 538, 565 [134 Cal.Rptr.
784, 557 P.2d 75]; People v. Crosby (1962) 58 Cal.2d 713, 725 [25 Cal.Rptr.
847, 375 P.2d 839].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 214–228.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,
Accusatory Pleadings, § 40.09 (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.09 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
RELATED ISSUES
Burden of Proof
At trial, the prosecutor bears the burden of proving by a preponderance of the
evidence that the prosecution began within the required time. However, at a pretrial
motion to dismiss, the defendant has the burden of proving that the statute of
limitations has run as a matter of law. (People v. Lopez (1997) 52 Cal.App.4th 233,
249–251 [60 Cal.Rptr.2d 511].) The defendant is entitled to prevail on the motion
only if there is no triable issue of fact. (Id. at p. 249.)
Computation of Time
To determine the exact date the statute began to run, exclude the day the crime was
completed. (People v. Zamora (1976) 18 Cal.3d 538, 560 [134 Cal.Rptr. 784, 557
P.2d 75].)
Felony Murder
Felony-murder charges and felony-murder special circumstances allegations may be
filed even though the statute of limitations has run on the underlying felony.
(People v. Morris (1988) 46 Cal.3d 1, 14–18 [249 Cal.Rptr. 119, 756 P.2d 843],
disapproved of on other grounds in In re Sassounian (1995) 9 Cal.4th 535 [37
Cal.Rptr.2d 446, 887 P.2d 527].)
Offense Completed
When an offense continues over a period of time, the statutory period usually does
not begin until after the last overt act or omission occurs. (People v. Zamora (1976)
18 Cal.3d 538, 548 [134 Cal.Rptr. 784, 557 P.2d 75] [last act of conspiracy to burn
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insured’s property was when fire was ignited and crime was completed; last act of
grand theft was last insurance payment].)
Waiving the Statute of Limitations
A defendant may affirmatively, but not inadvertently, waive the statute of
limitations. (People v. Williams (1999) 21 Cal.4th 335, 338, 340–342 [87
Cal.Rptr.2d 412, 981 P.2d 42]; People v. Beasley (2003) 105 Cal.App.4th 1078,
1089–1090 [130 Cal.Rptr.2d 717] [defendant did not request or acquiesce to
instruction on time-barred lesser included offense].)
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