Attorney Matthew G. Kaestner

Long Beach's Criminal Law Specialist

The phrase statute of limitations refers in law to the period time the government has to start a prosecution after a crime is committed, or in some cases, discovered. In California most time limits to commence prosecutions are contained in Penal Code sections 799 to 805. What follows is a brief overview of most of the rules regarding the criminal statute of limitations in California by Long Beach criminal law specialist, attorney Matthew Kaestner.

The time to commence prosecution for most crimes can be easily determined. Determining the time, the government has to commence the prosecution of sex crimes, fraud crimes and crimes involving public sector bribery or corruption is more complicated.

Some offenses have no limitations period and can be filed at any time after their commission. No limitations period applies to murder, any offense carrying a life sentence, embezzlement of public money and most serious sex crimes committed after 2014 or prior limited statute of limitations hadn't expired prior to January 1, 2015. [Penal Code section 799.]

Serious felony charges except murder and sex offenses with no limitations period, and that carry a sentence of eight or more years in prison, without consideration of priors or enhancements, must be commenced within six (6) years of their commission. [Penal Code section 800.]

Prosecutions for most other felony offenses that are punishable by less than 8 years must be commenced within three (3) years of their commission. [Penal Code section 801.]

There are numerous charges that fall outside the general rules above, but generally those offenses are sex crimes or involve fraud. Special rules apply to these offenses. Also, while the time to commence a prosecution usually begins on the date the crime was committed, some crimes can be commenced with in a period of time after they are discovered or based upon the age of the victim.

For example, under newer Penal Code section 801.1 (a), a litany of sex crimes committed against a person when the person was under the age of 18 can be commenced at any time prior to the victim's fortieth (40th) birthday. This section applies only to crimes committed after 2014 or to those crimes where the old statute hadn't expired prior to January 1, 2015.

Under Penal Code section 801.1(b) and 801.2, the government has ten (10) years to commence prosecutions for employing minors for pornography and a group of lesser sex crimes.

Prosecutions involving fraud and embezzlement or misconduct by a public officer or theft from a dependent adult can be commenced within four (4) years of the discovery of the crimes. Because the commission of these crimes involve an element of deception designed to prevent the discovery of the crimes, prosecutions can lawfully be commenced decades after their commission as long as they are commenced within four (4) years of the discovery of the crimes.

The statute of limitations is tolled and does not run against a person for a charge while a prosecution for that charge is pending in a trial court against that person. The filing of a complaint alone may not be sufficient to toll the running of the statute. [Penal Code section 803(b).]

If a person is out of state during or after the commission of an offense, up to three years during which the person was out of the state doesn't count towards the time to commence a prosecution.

Most misdemeanor offenses must be commenced within one (1) year of the commission of the offense. [Penal code section 802(a).] Misdemeanor annoying or molesting a child and over a dozen Business and Professions Code violations have longer statutes of limitations from two years to four years or within 3 years of discovery, depending on the charge. [Penal Code section 802 (b)-(e).]

So called wobbler offenses, crimes that can be prosecuted as either a felony or a misdemeanor (i.e. domestic violence, grand theft, joyriding, commercial burglary), carry the longer felony statute of limitations even if filed as a misdemeanor. [Penal Code section 805.]

As to who must prove a crime was commenced within the statute of limitations, there are two rules. Before trial the defendant must prove, as a matter of law, that the prosecution is barred by the expiration of the statute of limitations. This means the defense must prove to the judge hearing the matter that there is no triable issue regarding the matter and that no legal possibility exists that the matter was prosecuted within the statute of limitations. At trial, if the defense raises the issue, the prosecution must prove by a preponderance of the evidence, not beyond a reasonable doubt, that the prosecution was commenced within the statute of limitations.

The above is by no means an exhaustive list of all the rules in California regarding the statute of limitations for criminal charges. For some crimes unique rules apply and can create very long or unlimited periods to commence a prosecution. If you or a loved one are charged with a crime, expert advice is critically important. Long Beach criminal attorney Matthew Kaestner brings over 35 years of experience to his practice of criminal defense. He has been certified by the California State Bar Board of Legal Specialization as a specialist in criminal law since 1999. Please call Mr. Kaestner directly at 562-437-0200 for a free, no pressure consultation.