Date of Hearing: April 9, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1029

Author:(Eduardo Garcia) – As Amended Ver:April 11, 2019

SUMMARY:

Extends the statute of limitation for the crime of domestic violence for 20 years when one or more specified conditions apply. Specifically, this bill:

1. States that, notwithstanding any other law, a prosecution for a crime involving domestic violence, as specified, may be commenced within 20 years of the crime if one of the following criteria applies:
   
   1. The state becomes aware of an audio or video recording, photographs, or written or electronic communication that provides sufficient evidence to charge the perpetrator;
      
   2. The perpetrator provides a confession; or,
      
   3. Three or more victims present evidence of domestic violence committed by the same perpetrator in separate events, the last of which occurred after the statute of limitations had lapsed.
      
2. States that this new statute of limitations shall only apply to crimes that were committed on or after January 1, 2020, or to crimes for which the statute of limitations that was in effect before January 1, 2020 has not expired as of that date.
   
3. Delineates additional training requirements for peace officers with respect to domestic violence crimes, including:
   
   1. Requiring that police training on techniques for handling domestic violence incidents include:
      
      1. Methods for ensuring victim interviews occur in a venue separate from the alleged perpetrator and with appropriate sound barriers to prevent the conversation from being overheard; and
         
      2. Asking the victim whether he or she would like a follow-up visit to provide needed support or resources, information on obtaining a protective order or a gun violence restraining order, and/or a verbal review of specified resources available for victims.
   2. Requiring that when officers learn about the signs of domestic violence, the training also includes an assessment of “coercive control.” Coercive control means that the victim has also been subjected to any of the following criminal conduct: coercion for purposes of committing or impeding the investigation or prosecution of domestic violence; as specified; false imprisonment; extortion and the use of fear; identity theft; impersonation through an internet website or by other electronic means; false personation; mail theft; stalking; and revenge pornography.
      
4. Adds a criminal-justice-reform advocate and a racial-justice advocate to the individuals which should be consulted when developing standards and guidelines for domestic violence training.

EXISTING LAW:

1. Provides that a person who willfully inflicts corporal injury resulting in a traumatic condition upon a spouse, former spouse, cohabitant, former cohabitant, fiancé or fiancée, someone with whom the person has, or previously had, an engagement or dating relationship, or the mother or father of the offender’s child, is guilty of domestic violence. (Pen. Code, § 273.5.)
   
2. Punishes domestic violence by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to $ 6,000 or by both that fine and imprisonment. (Pen. Code, § 273.5, subd. (a).)
   
3. Provides that there is no statute of limitations for crimes punishable by death, or by imprisonment in the state prison for life, or by life without the possibility of parole. (Pen. Code, § 799, subd. (a).)
   
4. Provides that there is no statute of limitations for specified sex crimes if the crime was committed on or after January 1, 2017, or if the crime was committed before that date but the statute of limitations had not expired on January 1, 2017. (Pen. Code, § 799, subd. (b)(1).)
   
5. Provides that prosecution for crimes punishable by imprisonment for eight years or more must be commenced within six years after commission of the offense. (Pen. Code, § 800.)
   
6. Provides that prosecution for other felonies punishable by less than eight years must be commenced within three years after commission of the offense. (Pen. Code, § 801.)
   
7. Provides, generally, that the statute of limitations for most misdemeanors is one year. (Pen. Code, § 802, subd. (a).)
   
8. Provides that, notwithstanding any other time limitations, for specified sex crimes that are alleged to have been committed when the victim was under the age of 18, prosecution may be commenced any time prior to the victim's 40th birthday. (Pen. Code, § 801.1, subd. (a).)
   
9. Provides that notwithstanding any other time limitations, prosecution for a felony offense requiring sex offender registration shall be commenced within 10 years after commission of the offense. (Pen. Code, § 801.1, subd. (b).)
   
10. Provides that, notwithstanding any other limitation of time, a criminal complaint for specified sex crimes may be filed within one year of the date on which the identity of the suspect is conclusively established by deoxyribonucleic acid (DNA) testing if specified conditions are met. (Pen. Code, § 803, subd. (g)(1).)
    
11. Provides that if more than one time period described in the statute of limitations scheme applies, the time for commencing an action is governed by that period that expires the latest in time. (Pen. Code, § 803.6, subd. (a).)
    
12. Requires peace officers to take a course of training in the handling of domestic violence complaints, as specified. (Pen. Code, § 13519.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “California has the opportunity to significantly strengthen the law regarding domestic violence. The steps taken in AB 1029 will give victims the ability to pursue charges when they statute of limitations has passed when very specific criteria are met and give law enforcement the tools needed to identify and act appropriately to prevent further harm to a potential victim.”
   
2. Statute of Limitations Generally: The statute of limitations requires commencement of a prosecution within a certain period of time after the commission of a crime. A prosecution is

initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant. (Pen. Code, § 804.)

The statute of limitations serves several important purposes in a criminal prosecution, including staleness, prompt investigation, and repose. The statute of limitations protects persons accused of crime from having to face charges based on evidence that may be unreliable, and from losing access to the evidentiary means to defend against the accusation. With the passage of time, memory fades, witnesses die or otherwise become unavailable, and physical evidence becomes unobtainable or contaminated.

The statute of limitations also imposes a priority among crimes for investigation and prosecution. The deadline serves to motivate the police and to ensure against bureaucratic delays in investigating crimes.

Additionally, the statute of limitations reflects society's lack of desire to prosecute for crimes committed in the distant past. The interest in repose represents a societal evaluation of the time after which it is neither profitable nor desirable to commence a prosecution.

These principals are reflected in court decisions. The United States Supreme Court has stated that statutes of limitations are the primary guarantee against bringing overly stale criminal charges. (United States v. Ewell (1966) 383 U.S. 116, 122.) There is a measure of predictability provided by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced. Such laws reflect legislative assessments of relative interests of the state and the defendant in administering and receiving justice.

More recently, in Stogner v. California (2003) 539 U.S. 607, the Court underscored the basis for statutes of limitations: "Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. And that judgment typically rests, in large part, upon evidentiary concerns – for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable." (Id. at p. 615.)

The amount of time a prosecuting agency may charge an alleged defendant varies based on the crime. In general, the limitations period is related to the seriousness of the offense as reflected in the length of punishment established by the Legislature. (People v. Turner (2005) 134 Cal.App.4th 1591, 1594-1595; see, e.g., Pen. Code, §§ 799-805.) After a comprehensive review of criminal statutes of limitation in 1984, the Law Revision Commission recommended that the length of a “limitations statute should generally be based on the seriousness of the crime.” (17 Cal. Law Revision Com. Rep. (1984) p. 313.) The Legislature overhauled the entire statutory scheme with this recommendation in mind. In People v. Turner, supra, 134 Cal.App.4th 1591, the court summarized the recommendations of the Law Revision Commission:

The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. It also served the procedural need to provid[e] predictability and promote uniformity of treatment for perpetrators and victims of all serious crimes. The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life in prison is a determination that society views the crime as the most serious. (People v. Turner, supra, 134 Cal.App.4th at pp. 1594-1595, citations omitted.)

The failure of a prosecution to be commenced within the applicable period of limitation is a complete defense to the charge. The statute of limitations is jurisdictional and may be raised as a defense at any time, before or after judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The defense may only be waived under limited circumstances. (See Cowan v. Superior Court (1996) 14 Cal.4th 367.)

The 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.) The court is required to construe application of the statute of limitations strictly in favor of the defendants. (People v. Zamora (1976) 18 Cal.3d 538, 574; People v. Lee (2000) 82 Cal.App.4th 1352, 1357-1358.)

For most types of offenses, the statute of limitations begins to run on the day that the offense was actually committed. However, the statute of limitations period does not commence as to continuing offenses until the entire course of conduct is complete. (People v. Zamora, supra, 18 Cal.3d 538.) And in cases involving crimes such as fraud or embezzlement the statute of limitations may begin to run at the point that the offense is discovered. (See e.g. Pen. Code, § 803, subd. (c).)

In California, the statute of limitations to prosecute a criminal case of domestic violence is three years. (People v. Sillas (2002) 100 Cal.App.4th Supp. 1, 5.)

This bill would extend the statute of limitations in domestic violence cases to 20 years in cases where the perpetrator confesses, where there is photographic, audio or video recorded evidence, or written or electronic communication that provides sufficient evidence to charge the perpetrator. This bill would also extend the statute of limitations to 20 years in cases where three or more victims present evidence of abuse committed by the same perpetrator in separate events, the last of which occurred after the statute of limitations had lapsed.

However, despite its traumatic nature, domestic abuse does not fall within the type of crimes that would normally warrant extension. The domestic abuse statute, Penal Code section 273.5, prohibits the willful infliction of corporal injury resulting in a traumatic condition upon a victim with which the offender has a specified domestic relationship. As a general matter, most people know that a battery is criminal conduct. So, domestic abuse is not the type of crime where the person does not discover until a later date that the crime has occurred. And arguably, if a victim of abuse is taking photographs of sustained injuries, the victim recognizes that criminal conduct has in fact occurred.

The other two factors proposed by this bill to warrant extension of the statute of limitation – a confession by the perpetrator or allegations of abuse by multiple victims against the same perpetrator –are not the type of factors considered for extending a statute of limitations. Rather, this type of corroborating evidence affects the strength of the case or weight of the evidence. So for example, they might be factors a prosecutor would consider when deciding whether to file charges even when the statute of limitations has not expired.

Extension of the statute of limitations based on these factors will not necessarily get victims the justice they deserve. Even in cases where a proposed factor is present, a prosecutor may have to tell a victim that even though the case is not time barred, there is not enough evidence to bring the case to trial.

Most importantly however, as noted above, there is a strong public policy against extending the statute of limitations. Memories fade as time passes. Evidence that might have been gathered by the police is lost. Witnesses move or die. Fairness and due process demand prosecution be commenced in a reasonable time so the accused may be able to gather evidence to prove his or her innocence. It seems a rejection of firmly rooted public policy to significantly extend the statute of limitations in this type of case.

1. Ex Post Facto: In Stogner v. California, supra, 539 U.S. 607 the Supreme Court ruled that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. (Id. at pp. 610-611, 616.) However, extension of an existing statute of limitations is not ex post facto as long as the prior limitations period has not expired. (Id. at pp. 618-619.)
   
   This bill states that it the provisions eliminating the statute of limitations for the specified crimes will apply either only to crimes committed after its effective date, or to crimes for which a statute of limitations that was in effect before its effective date has not run as of that date. In other words, the bill extends current limitations periods, but does not try to revive time-barred cases. Therefore, there do not appear to be any ex post facto concerns raised by this bill.
   
2. Law Enforcement Training on Domestic Violence: Penal Code section 13519 requires peace officers to receive training on the handling of domestic violence complaints as part of basic training. Additionally, law enforcement officers below supervisory rank assigned to patrol are required to take refresher training every two years. (Pen. Code, § 13519, subd. (g).)
   
   The course of training covers the following procedures and techniques:
   

• The provisions set forth in Title 5 (commencing with Section 13700) relating to response, enforcement of court orders, and data collection.
• The legal duties imposed on peace officers to make arrests and offer protection and assistance including guidelines for making felony and misdemeanor arrests.
• Techniques for handling incidents of domestic violence that minimize the likelihood of injury to the officer and that promote the safety of the victim.
• The nature and extent of domestic violence.
• The signs of domestic violence.
• The assessment of lethality or signs of lethal violence in domestic violence situations.
• The legal rights of, and remedies available to, victims of domestic violence.
  The use of an arrest by a private person in a domestic violence situation.
• Documentation, report writing, and evidence collection.
• Domestic violence diversion
• Tenancy issues and domestic violence.
• The impact on children of law enforcement intervention in domestic violence.
• The services and facilities available to victims and batterers.
• The use and applications of the Penal Code in domestic violence situations.
• Verification and enforcement of temporary restraining orders when the suspect is present and when the suspect has fled.
• Verification and enforcement of stay-away orders.
• Cite and release policies.
• Emergency assistance to victims and how to assist victims in pursuing criminal justice options. (Pen. Code, § 13519, subd. (c).)
  

This bill would require that the training on the signs of domestic violence include an assessment of “coercive control” by the defendant. For purposes of domestic violence training “coercive control” would be defined as the victimization based on other types of criminal conduct, such as: false imprisonment, extortion, identity theft, impersonation through an internet website or by other electronic means, false personation, mail theft, stalking, and revenge pornography.

The Department of Justice and the Commission on Peace Officer Standards and Training have developed a domestic violence lethality risk assessment for first responders. (https://post.ca.gov/Portals/0/post_docs/resources/DV_Lethality_Risk_Assessment.pdf ) It is a questionnaire that should be administered to all victims of domestic violence to assess the level of danger and/or the severity of the situation. Should the proposed factors regarding coercive control be included in the lethality risk assessment questionnaire?

1. Argument in Support: According to artist, advocate, and survivor Evan Rachel Wood, the sponsor of this bill, “I am a survivor of Domestic Violence. I was so traumatized and afraid of retaliation from my abuser it took me many years and a lot of therapy to reach the point of being able to come forward, only to be told by an attorney that despite my long list of video, audio and photographic evidence, nothing could be done.
   
   “I felt that I was one of many victims who fall through the cracks if they were not able to recover from or identify their abuse in time. This moved me to assemble a team that could create a cushion for survivors of domestic violence to come back from their trauma, with certain exceptions to the statute of limitation.
   
   “According to the American Psychological Association, more than one in three women and more than one in four men in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime. Women with disabilities have a 40% greater risk of intimate partner violence. One in five female high school students reports being physically and/or sexually assaulted by a dating partner.
   
   “California has the opportunity to significantly strengthen the law regarding domestic violence in three areas: student education, criminal prosecution, and law enforcement training. These steps will help prevent domestic violence from occurring, grant victims the ability to pursue charges when the statute of limitations has passed, given the very specific criteria are met, and present law enforcement the tools needed to identify and act appropriately to prevent further harm to a potential victim.”
   
2. Arguments in Opposition:
   
   1. According to the California Public Defenders Association, “While we applaud the efforts to address the harms of domestic violence and the increase in training for law enforcement, we strongly oppose AB 1029’s extension of the statute of limitations for domestic violence prosecutions. The extension of the statute of limitations will result in the conviction of innocent people, is bad public policy and wastes scarce resources that could be better spent on evidence based and effective strategies to end domestic violence.
      
      “Criminal statutes of limitations in the United States date back to colonial times, with the first such statute appearing as early as 1652. The statutes’ fundamental purpose is to protect people accused of crimes from having to face charges based on evidence that may be unreliable, and from losing access to the means to defend themselves. The United States Supreme Court has stated that statutes of limitations are considered ‘the primary guarantee against bringing overly stale criminal charges’ and that they ‘protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time…’ Likewise, the California Supreme Court has noted that statutes of limitations ‘encourage the swift and effective enforcement of the law, hopefully producing a stronger deterrent effect.’
      
      “With the passage of time, memories fade, witnesses die, records and biological evidence are lost or destroyed. All of this makes it more likely that an innocent person will be wrongly convicted.
      
      “Statutes of limitations also serve the purpose of encouraging swift investigations and prosecutions. Given the incidence of domestic violence in the United States and California, proponents of AB 1029 rightly complain that relatively few domestic violence cases are actually investigated and prosecuted in California. The primary reason for this is not because of statutes of limitations. Rather, the failure to investigate and prosecute domestic violence results from choices made about allocation of resources and priorities and lingering ignorance about the generational harms of domestic violence. Extending the statute of limitations will do nothing to address those obstacles.
      
      “Unfortunately, the extension of statute of limitations … will likely promote false accusations when spouses or dating partners separate or divorce and child custody and/or money are at issue. The provision that the discovery of ‘an audio or video recording, photographs, or written or electronic communication that provides evidence sufficient to charge the perpetrator’ intended to provide corroboration to test the reliability of the accusation provides scant protection in an era in which the average person can photo shop or alter recordings, photographs, or electronic communications without any particular training or skills. The instructions on how to do so are readily available on the internet.”
      
   2. According to the American Civil Liberties Union of California, “In recent years, psychologists and other researchers who study human memory have raised concerns about the elimination or extension of statutes of limitations. In a 2016 piece in the Daily Journal, psychology Professor Elizabeth Loftus illustrated the ways in which criminal statutes of limitations protect against deficits in witness’ memories. As Professor Loftus explained,
      
      ‘Over the years, a growing body of research, including [her] own, has found that, contrary to what some may think, the human memory is not like a recording device. You can’t perfectly preserve events, to be played or rewound and replayed at will. Instead, our memories are more like a Wikipedia page: they can be edited by us and other people, and more so with each year that goes by…Scientists have long known about the ‘forgetting curve,’ which revealed that, as time passes, people are unable to retrieve information that they would have earlier be[en] able to remember accurately. The loss of memory can be quite significant, especially after many years go by.^[1]’
      
      “The memory issues raised by Professor Loftus apply equally to all parties involved in a criminal prosecution: defendants, detectives, witnesses, and victims alike. As such, both defendant and victim may suffer the consequences of these deficits, often leading to unjust outcomes.”
      
3. Related Legislation: SB 273 (S. Rubio) is identical to this bill. SB 273 will be heard in the Senate Public Safety Committee today.
   
4. Prior Legislation:
   
   1. SB 610 (Nguyen), Chapter 74, Statutes of 2017, extends the statute of limitations for the crime of concealing an accidental death to no more than four years after the concealment.
      
   2. SB 813 (Leyva), Chapter 777, Statutes of 2016, eliminated the statute of limitations for specified sex crimes.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Evan Rachel Wood (Sponsor)

Crime Victims United of California

Opposition

American Civil Liberties Union of California
California Public Defenders Association

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

1. Elizabeth Loftus, Focus on Detecting Sex Crimes Today, Daily Journal (March 10, 2016). ↑