BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 184 (Gatto)                                              
          As Amended May 24, 2012
          Hearing date:  June 25, 2013
          Penal Code
          MK:mc

                                STATUTE OF LIMITATIONS  

                                       HISTORY

          Source:  Author

          Prior Legislation: SB 387 (La Malfa) - held in Sen. Public  
          Safety (ROCA) 
                       AB 2484 (Davis) - not heard in Sen. Public Safety  
          (ROCA) 

          Support: California District Attorneys Association; California  
          State Sheriffs' Association

          Opposition:American Civil Liberties Union

          Assembly Floor Vote:  Ayes 76 - Noes 0



                                         KEY ISSUE
           
          SHOULD THE STATUTE OF LIMITATIONS FOR FLEEING THE SCENE OF AN  
          ACCIDENT WHERE THERE WAS DEATH OR PERMANENT INJURY BE EITHER THE  
          EXISTING STATUTE OF LIMITATIONS OR ONE YEAR AFTER THE PERSON IS  
          INITIALLY IDENTIFIED BY LAW ENFORCEMENT AS A SUSPECT, WHICHEVER IS  
          LATER? 




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                                       PURPOSE

          The purpose of this bill is to allow for a longer statute of  
          limitations when a person flees the scene of an accident where  
          death or permanent injury has occurred.

           Existing law  provides that prosecution for an offense punishable  
          by death or life without the possibility of parole, or for  
          embezzling public money, may be commenced at any time.
          (Penal Code § 799.)

           Existing law  provides that prosecution for any offense for which  
          the person would be required to register as a sex offender shall  
          be commenced within 10 years after commission of the offense  
          (unless otherwise provided under law, as specified; see §§  
          801.1, 801.3).  (Penal Code § 801.5.)

           Existing law  provides that prosecution for an offense punishable  
          by eight years in prison shall be commenced within six years  
          after the commission of the offense.  (Penal Code § 800.)

           Existing law  provides that prosecution for an offense involving  
          elder or dependent adult abuse, except involving theft or  
          embezzlement, shall be prosecuted within five years after the  
          commission of the offense.  (Penal Code § 801.6.)

           Existing law  provides that prosecution for an offense involving  
          fraud, breach of fiduciary duty or official misconduct, as  
          specified, shall be prosecuted within four years after discovery  
          of the offense or completion of the offense, whichever is later.  
           (Penal Code § 801.5.)

           Existing law  provides that prosecution for an offense punishable  
          by imprisonment in the state prison, unless otherwise specified,  
          shall be commenced within three years of the commission of the  
          offense.  (Penal Code § 801.)

           Existing law  provides that prosecution for misdemeanors, except  




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                                                             AB 184 (Gatto)
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          as otherwise specified, shall commence within one year after  
          commission of the offense.  (Penal Code § 802.)

           This bill  provides that whenever a person flees an accident that  
          causes death or permanent, serious injury, a criminal complaint  
          may be filed within the applicable time period or one year after  
          the person is initially identified by law enforcement as a  
          suspect in the commission of the offense, whichever is later.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  




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          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.





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                                      COMMENTS

          1.    Need for This Bill  

          According to the author:


               Current law sets the statute of limitations for a  
               hit-and-run at three years after commission of the  
               offense.  This has provided a perverse incentive for  
               some to flee the scene of an accident rather than take  
               responsibility for their actions.  These culprits can  
               essentially run out the clock on the statute of  
               limitations by remaining unidentified after one of  
               these incidents. 

               Hit-and-run accidents have received little attention  
               over the years, but they have run rampant in cities  
               like Los Angeles.  A recent investigation by L.A.  
               Weekly found that nearly 20,000 hit-and-run crashes -  
               everything from fender benders to multiple fatalities -  
               are recorded annually by the Los Angeles Police  
               Department.  These incidents made up an astonishing 48  
               percent of all vehicle crashes in 2009, compared to an  
               average rate of just 11 percent nationwide.  Data  
               collected by the state shows 4,000 hit-and-run  
               incidents a year in Los Angeles city limits lead to  
               injury or death. 

               Unfortunately, many of these incidents are never  
               prosecuted, in part because of the statute of  
               limitations running out.

          2.  The Statute of Limitations Generally; Law Revision Commission  
          Report
           
          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  




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          superior court, or issuing an arrest or bench warrant.  (Penal  
          Code § 804.)  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 Legislature enacted the current statutory scheme regarding  
          statutes of limitations for crimes in 1984 in response to a  
          report of the California Law Revision Commission:

              The Commission identified various factors to be  
              considered in drafting a limitations statute.  These  
              factors include:  (a) The staleness factor.  A person  
              accused of crime should be protected from having to face  
              charges based on possibly unreliable evidence and from  
              losing access to the evidentiary means to defend.  (b)  
              The repose factor.  This reflects society's lack of a  
              desire to prosecute for crimes committed in the distant  
              past.  (c) The motivation factor.  This aspect of the  
              statute imposes a priority among crimes for  
              investigation and prosecution.  (d) The seriousness  
              factor.  The statute of limitations is a grant of  
              amnesty to a defendant; the more serious the crime, the  
              less willing society is to grant that amnesty.  (e) The  
              concealment factor.  Detection of certain concealed  
              crimes may be quite difficult and may require long  
              investigations to identify and prosecute the  
              perpetrators.

              The Commission concluded that a felony limitations  
              statute generally should be based on the seriousness of  
              the crime.  Seriousness is easily determined based on  
              classification of a crime as felony or misdemeanor and  
              the punishment specified, and a scheme based on  
              seriousness generally will accommodate the other factors  
              as well.  Also, the simplicity of a limitations period  
              based on seriousness provides predictability and  




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              promotes uniformity of treatment.<1>

          3.    Statute of Limitations for Fleeing an Accident Causing  
          Injury or Death  

          Existing law prohibits fleeing the scene of an accident.  If a  
          person flees an accident that caused death or permanent serious  
          injury, the person is guilty of a wobbler punished by two, three  
          or four years in state prison, or in county jail for 90 days to  
          one year.  (Vehicle Code § 20001 (b)(2).)  The statute of  
          limitations would be 3 years after the commission of the  
          offense, unless it was charged initially as a misdemeanor, in  
          which case it would be one year.  The existing 3-year  
          limitations period seems consistent with the sentencing  
          provisions applicable to this crime and with the recommendations  
          of the Law Revision Commission.  This bill provides that in  
          addition to the existing statute of limitations, when a person  
          flees the scene of an accident where there was death or  
          permanent injury, the statute of limitations is either the  
          existing statute of limitations or one year after the person is  
          initially identified by law enforcement as a suspect in the  
          commission of the offense, whichever is later.

          4.    Prison Impact Considerations

           The Assembly Appropriations Committee's analysis of this bill  
          included the following information concerning its potential to  
          impact the prison system:

               Unknown potential increase in state prison commitments  
               for fleeing the scene of an accident that causes death  
               or serious injury, to the extent this bill results in  
               additional convictions and commitments.  In 2011 and  
               2012, a total of 67 persons were committed to state  
               prison for this offense.  If this bill increases that  
               number by five percent, annual GF costs would increase  
               by about $200,000 in two years, assuming a midterm  
               sentence of two years. 

               -----------------------
          <1>  1 Witkin Cal. Crim. Law Defenses, Section 214 (3rd Ed.  
          2004), citing 17 Cal. Law Rev. Com. Reports, pp.308-314.



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          5.    Opposition  

          The ACLU opposes this bill stating:

               Criminal statutes of limitation are laws that limit the  
               time during which a prosecution may be commenced.   
               These statutes have been in operation for over three  
               hundred fifty years and are deeply rooted in our  
               American judicial system. Several public policy  
               arguments underlie the reasoning behind statutes of  
               limitation.  First, they ensure that prosecutions are  
               based upon reasonably fresh evidence - the idea being  
               that over time memories fade, witnesses die or leave  
               the area, and physical evidence becomes more difficult  
               to obtain, identify, or preserve.  In short, the  
               possibility of erroneous conviction is minimized when  
               prosecution is prompt.  Second, statutes of limitations  
               encourage law enforcement officials to investigate  
               suspected criminal activity in a timely fashion.  In  
               addition, it is thought that statutes of limitation may  
               reduce the possibility of blackmail based on threats to  
               disclose information to prosecutors or law enforcement  
               officials. 




















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               The United States Supreme Court also expressed concerns  
               for fairness in commencing stale prosecutions: 

                  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.  (Stogner v.     California (2003)  
                  539 U.S. 607, 615 [123 S.Ct. 2446].) 

               The Court held that a law reviving tolled statutes of  
               limitation deprives the defendant of the "fair warning"  
               that might have led him or her to preserve exculpatory  
               evidence, and warned that "a Constitution that permits  
               such an extension by allowing legislatures to pick and  
               choose when to act retroactively, risks both arbitrary  
               and potentially vindictive legislation." (Stogner v.  
               California (2003) 539 U.S., at 616; United States v.  
               Ewell (1966) 383 U.S. 116, 122 [86 S.Ct. 773]) (holding  
               that statutes of limitation are the primary guarantee  
               against bringing overly stale charges).)

               This bill specifies that any prosecution for leaving  
               the scene of an accident resulting in death or serious  
               injury may commence one year after the alleged suspect  
               is identified.  In practical terms, prosecutors could  
               allege a person left the scene of an accident ten years  
               prior, but where the charged person was only identified  
               six months before.  This makes it virtually impossible  
               for a person to mount a competent defense given that he  
               or she may not even remember the circumstances.  This  
               presents a fundamental unfairness to the defendant and  
               may result in erroneous convictions.  

               Moreover, statutory exceptions to the general three  
               year felony rule only exist where DNA evidence may  




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               reveal a suspect long after the crime is committed.   
               (Cal. Penal Code § 803(g).)  However, in the case of  
               leaving the scene of an accident, DNA is not likely to  
               play a significant factor in identifying a suspect.   
               These types of cases are usually solved by questioning  
               witnesses at the scene, reviewing any available traffic  
               cameras, and using accident reconstruction to  
               re-creating the event.  Hence, no exception seems  
               warranted in this case, particularly given the legal  
               precedent favoring short statutes of limitation.  


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