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Don't Celebrate Too Soon

Something happened...

You were investigated, maybe even arrested. Or, perhaps the District Attorney rejected the charges alleged against you before a hearing.

Then, nothing happened...

Are you scot free? Did you beat “the system”? Time to bust out those dance moves and par-tay?

In a legal sense, no. Just because prosecutors have not pursued formal charges against you today, does not mean that they may not come back tomorrow, the next month, the next year, or a few years later with their Complaint or Information, or Indictment against you – especially if you may face a felony sex crime.

Statute of Limitations as Legal Timekeeper on Prosecutions

A potential, future prosecution can linger over you like the sword of Damocles because of a legal timekeeper known as the Statute of Limitations (“SOL”). In California, the statute of limitations sets the clock on the statutory period for when prosecutors can bring a case; the clock begins when the offense is discovered or should have been discovered.[1] Before the court, prosecutors must prove by the preponderance of the evidence that the prosecution began during this valid period of time; otherwise, jurors must find the defendant not guilty of the charges alleged.[2]

Typically, felony offenses punishable by 8 or more years had a 6-year SOL; certain felony sex offenses had a 10-year SOL; and other offenses punishable by imprisonment had 3-year SOL.[3] However, a new law went into effect this year which essentially eliminated the statute of limitations for prosecuting certain felony sex offenses.

New Law Eliminates Statute of Limitations for Certain Felony Sex Offenses

Senate Bill 813, also known as the “Justice for Victims Act,” sailed through the state Legislature last year and was signed by Gov. Jerry Brown. The law, which became effective on January 1, 2017, eliminates the statute of limitations for felony prosecutions of the following crimes,[4] including but not limited to:

  • Penal Code § 261(a): Rape;
  • Penal Code § 262 (a): Spousal Rape;
  • Penal Code § 288(a): Lewd or lascivious acts with a minor involving substantial sexual conduct (as defined by 1203.066(b))[5];
  • Penal Code § 286: Forced Sodomy;
  • Penal Code § 289: Sexual Assault, Penetration;
  • Among other offenses.

The law applies to offenses committed on or after January 1, 2017, and to earlier crimes for which the statute of limitations had not expired as of January 1, 2017.[6]

The above felony sex crimes join the classification of offenses which do not have any statute of limitations. The other offenses are for crimes punishable by death or life imprisonment without the possibility of parole, or for the embezzlement of public money.[7]

Here is the statute of limitations for a snapshot of other crimes:

  • Misdemeanor DUI / 1 year SOL;
  • Felony DUI / 3 years SOL;
  • Misdemeanor burglary / 1 year SOL;
  • Felony burglary / 3 years SOL;
  • Misdemeanor theft / 1 year SOL;
  • Felony theft / 3 years SOL;
  • Shoplifting / 2 years SOL;
  • Shoplifting goods in excess of $1,000 / 5 years SOL;
  • Misdemeanor annoying or molesting a minor under 14 / 3 years SOL;
  • Misdemeanor sexual exploitation by a physician, surgeon, psychotherapist, or alcohol and drug counselor / 2 years;
  • Incest / 3 years SOL

The listed SOLs are typical limits; however, a number of other factors can affect the filing time for a prosecution.

You Have Rights While the Statute of Limitations is Pending

The U.S. Supreme Court in U.S. v. Lovasco, 431 U.S. 783 (1977) noted that a defendant’s rights are not clearly defined prior to the information or indictment; however, “the Due Process Clause has a limited role in protecting against oppressive delay.” [8] The Court wrote: “Statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide ‘the primary guarantee against bringing overly stale criminal charges.’”[9]

An unreasonable delay between when the alleged offense occurred and the filing of an information or indictment, or arrest, may form the basis of a challenge to protect the defendant’s constitutional right to due process.[10] California similarly recognizes that such an unreasonable delay may be violative of a defendant’s due process protections.[11]

To show a due process violation, the defendant must make a prima facie showing that: (1) there has been a delay, and (2) that the delay has caused actual prejudice. A showing of prejudice can include the actual loss of a material witness, the actual fading of a witness’ memory, or the actual loss of evidence over time.[12] “Prejudice,” here, means any harm, damage or deterioration of one’s rights, especially your ability to raise a defense to the charges. Prejudice is also shown if the prosecutorial delay was intentional in order to gain some tactical advantage or to harass the defendant.[13]

The burden will then shift to the prosecution to show that there was a legitimate justification for the delay in filing.[14] The Supreme Court has held that a delay for the purpose of investigation does not violate a defendant’s due process rights.[15]

In California, justifiable pre-prosecution delay has been upheld in the following instances:

  • The delay was for the purpose of determining whether a prosecution was warranted and to prepare the case for the grand jury;[16]
  • The defendant was awaiting trial on other, more serious charges and would have caused prejudicial pretrial publicity to the defendant in another case;[17]
  • The delay was the result of staffing shortages in the district attorney’s offices due to budget cuts and severe cuts in personnel to the relevant department;[18]
  • The delay was caused by the defendant’s absence from the state, and the prosecution was unable to apprehend the defendant.[19]

Before You Party . . .

Understand how the statute of limitations may affect you and how you can protect your rights during this process. Contact the expert attorneys at Coimbra Law Firm, APC. You can reach us at 1-800-290-5055, or locally at (626)340-2326.


[1] California Discovery Rule

[2] See Judicial Council of California Criminal Jury Instructions, CALCRIM, available at http://www.courts.ca.gov/partners/documents/calcrim_2017_edition.pdf

[3] FindLaw website

[4] See California Legislative Information, SB-813 Sex Offenses: statute of limitations, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB813

[5] Penal Code section 1203.066(b) provides: “Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”

[6] California Legislative Information, SB-813 Sex Offenses: statute of limitations, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB813

[7] Penal Code § 799 (a)

[8] U.S. v. Lovasco, 431 U.S. 783, 789 (1977)

[9] Id.

[10] U.S. v. Marion, 404 U.S. 307, 324-25 (1971); the Fifth Amendment of the U.S. Constitution provides due process rights. The amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”

[11] People v. Archerd, 477 P.2d 421 (Cal. 1970). In California, due process rights are guaranteed under Article 1, section 7(a) of the state constitution. The constitution provides: “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation.”

[12] People v. Catlin, 26 P.3d 357 (Cal. 2001)

[13] U.S. v. Marion at 325.

[14] Id.

[15] U.S. v. Lovasco at 790-91.

[16] People v. Archerd, 477 P.2d 421 (Cal. 1970)

[17] People v. Dontanville (1970) 10 Cal.App.3d 784,. 789

[18] People v. Dunn-Gonzalez, (1996) 47 Cal. App.4th 899

[19] People v. Bethea, (1971) 18 Cal.App.3d 930, 939