People v. Zandrino

Opinion

On May 4, 2000, Peter Richard Zandrino, a former police officer, was charged with five counts of oral copulation and nine counts of lewd acts on a child under age 14. (Pen. Code, § 288, subds. (a) & (c)(1).)^[1] The charges concerned four separate victims and alleged lewd conduct from 1969 to 1971 and from 1977 to 1982. Zandrino demurred, claiming the prosecution was barred by applicable statutes of limitations. Specifically, he argued the limitations periods could not be extended or tolled by section 803, subdivision (g) (hereafter section 803(g))^[2] because, pursuant to another statute (§ 805.5), the tolling provision does not apply to any offense for which the statute of limitations expired before January 1, 1985. The trial court overruled Zandrino’s demurrer, and we summarily denied his subsequent writ petition. {Zandrino v. Superior Court (Sept. 12, 2000, A092302) [nonpub. opn.].) Thereafter, following the trial court’s denial of a motion to dismiss certain counts of the information for lack of corroboration (§ 995), Zandrino pleaded no contest to five counts of lewd conduct on a child under age 14. He obtained a certificate of probable cause and timely filed this appeal.

In response to these decisions (see Frazer, supra, 21 Cal.4th at p. 746 [“Judicial reluctance to apply section 803(g) in older child molestation cases did not go unnoticed by the Legislature.”]), “the Legislature amended section 803(g) to declare that ‘[t]his subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and if the complaint is filed within the time period specified in this subdivision, it shall revive any cause of action barred by Section 800 or 8011 (Stats. 1996, ch. 130, § 1 (the 1996 amendment) [Assem. Bill No. 2014, adding § 803(g)(3)(A)], italics added.)” (Stogner, supra, 93 Cal.App.4th at p. 1234, fn. omitted.)

Despite the clear language in section 803(g) authorizing the prosecution of old, though recently reported, child molestation cases, Zandrino relies on section 805.5 to argue the charges against him were barred because their statutes of limitations—three or six years (§§ 800, 801)—had expired by January 1, 1985.^[3] Clearly, with respect to certain offenses, sections 803(g) and 805.5 conflict. For child molestation crimes committed before 1982, the three-year statute of limitations expired before January 1, 1985, making prosecution for such crimes time-barred as of January 1, 1985. Under these circumstances, section 805.5 directs that the limitations law prior to January 1, 1985 applies; therefore the crimes remain time-barred. However, section 803(g) clearly states that a criminal complaint for child molestation may be prosecuted, even after the statute of limitations has expired, so long as certain requirements are met (i.e., the complaint is brought within one year after the victim’s report to law enforcement, the crime involved substantial sexual conduct, and there is sufficient independent corroborating evidence). Thus, in contrast to section 805.5, the plain language of section 803(g) permits the prosecution of molestation offenses that occurred before 1982 and would have been time-barred as of January 1, 1985.

Zandrino contends the general rule of section 805.5 controls and should be construed as an outside limit on the retroactive reach of section 803(g). In other words, according to Zandrino, the prosecution of a time-barred sex offense under section 803(g) is permissible only if the statute of limitations for the offense had not expired as of January 1, 1985.

Moreover, the precedence of section 803(g) over section 805.5 appears most consistent with legislative intent. “ ‘The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. [Citation.] . . . Ultimately, the court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and it must avoid an interpretation leading to absurd consequences. [Citation.]’ [Citation.]” (Stogner, supra, 93 Cal.App.4th at p. 1236.)

After describing the difficulties child molestation victims face in reporting these crimes, the court in Stogner observed: “The legislative purpose behind section 803(g) was to prevent sex offenders from reaping the benefits of their victim’s immaturity and psychological trauma, and the legislative history plainly indicates that section 803(g) was intended to create an exception to the statutes of limitations. (See, e.g., Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 290 (1993-1994 Reg. Sess.) Apr. 13, 1993, pp. 2-3; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 290 (1993-1994 Reg. Sess.) July 13, 1993, pp. 2-3.) ft[| Furthermore, the 1996

However, the United States Supreme Court recently revisited its ex post facto jurisprudence. Despite shorthand formulations in Collins and Beazell, the court held Colder’s fourth category remains viable and continues to describe a class of impermissible ex post facto laws. (Carmell, supra, 529 U.S. at pp. 534-539 [120 S.Ct. at pp. 1633-1636].) The court explained: “A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof [citation]. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end. [Fn. omitted.]” (Id. at pp. 532-533 [120 S.Ct. at pp. 1632-1633].)

The Texas statute at issue in Carmell fell squarely within the fourth Colder category because, as retroactively applied, an amendment to the statute allowed the petitioner to be convicted of sexual assault based on the victim’s testimony alone, whereas previously the law required both the victim’s testimony and corroborating evidence. (Carmell, supra, 529 U.S. at pp. 530-531 [120 S.Ct. at pp. 1631-1632].) The amended law clearly “changed the quantum of evidence necessary to sustain a conviction.” (Id. at p. 530 [120 S.Ct. at p. 1631].)

In contrast, section 803(g) merely addresses when the state may prosecute certain criminal charges. It does not alter the elements of these offenses, or their punishment, or the amount or type of evidence required “in order to convict the offender.” (Colder, supra, 3 U.S. (3 Dall.) at p. 390 [1 L.Ed. at p. 650], italics omitted (opn. of Chase, J.).)^[5] Indeed, unlike an ex post facto law, in which “the government refuses, after the fact, to play by its

In short, we do not believe the high court’s analysis in Carmell undermines the legitimacy of Frazer. Section 803(g) does not meet the definition of an ex post facto law.

B. Section 803(g) Is Not Impermissibly Vague

Zandrino also complains section 803(g) is “so vague, ambiguous and confusing that it violates the right to due process.”^[7] In Frazer, the Supreme Court rejected a challenge to section 803(g) under the due process clause, reasoning that criminal defendants do not have a fundamental “right to repose” under an expired statute of limitations. (Frazer, supra, 21 Cal.4th at pp. 765-766, 772.) However, the high court did not address Zandrino’s vagueness argument.

Zandrino attacks the statutory requirement for the state to produce “independent evidence that clearly and convincingly corroborates the victim’s allegation” before a revived prosecution can proceed. (§ 803(g)(2)(B).) Because the statute fails to identify the type of evidence required, Zandrino asserts prosecutors will improperly rely on “propensity evidence,” i.e., evidence of other similar crimes, indicating the defendant’s propensity to commit the alleged offense. He argues at length that evidence of other crimes, standing alone, should not suffice to show corroboration, but instead some corroborative evidence must be presented directly linking the defendant with the presently charged offense. From this, Zandrino concludes section 803(g) is constitutionally deficient because it does not circumscribe the use of propensity evidence as proof of corroboration.

Finally, Zandrino complains he was not sentenced in accordance with the plea agreement. Zandrino pleaded no contest to five counts of lewd conduct on a child under age 14, and in return the prosecution agreed to dismiss the remaining counts alleging lewd conduct and oral copulation. Although the prosecutor and defense counsel apparently believed the plea would result in determinate sentences totaling no more than seven years eight months, the