Filed 3/3/99

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE
Plaintiff and Appellant,

v.

LEROY JESSE MALOY,
Defendant and Respondent.

F031299
(Super. Ct. No. 40909)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Clayton S. Tanaka and Janet Gaard, Deputy Attorneys General, for Plaintiff and Appelant.

Gary L. Paden, for Defendant and Respondent.

-ooOoo-

BACKGROUND

On April 15, 1994, respondent was charged by complaint with 13 sexual offenses committed against 5 different children, all which took place between January 1967 and April 1979. All the statutes of limitations applicable to each charge had expired before January 1, 1994. On January 1, 1994, Penal Code Section 803, subdivision (g) became operative. This section extended the statute of limitations for certain sex offenses to one year after such crimes are reported to a law enforcement agency if the victim was under the age of 18 at the time of the offense. (Pen. Code, § 803, subd. (g)(1).) The complaint in the instant case was originally filed within that time period.

A motion to dismiss the complaint was filed in July of 1994, and granted by the Superior Court. A subsequent motion by the People to reinstate the complaint was denied. On appeal, this court held that Penal Code section 803, subdivision (g) did not violate the Ex Post Facto Clause by reviving the statute of limitations on respondent's crimes. The decision of this court was appealed to the Supreme Court which granted review and subsequently dismissed review and remanded the issue to this court in light of recent amendments to the Penal Code section.

This court issued a remittitur on May 8, 1997.

Respondent filed another motion to dismiss on August 15, 1997, which the superior court granted on September 30, 1997.

On March 20, 1998, the People refiled the complaint. The respondent moved to dismiss based on lack of jurisdiction on April 30, 1998, and the motion was granted.

The People then moved to reinstate the complaint which was denied by the superior court on June 26, 1998. Appellant, the People in this case, appeal this ruling pursuant to Penal Code sections 1238, subdivision (a)(9) and 871.5, subdivision (f) which authorize the People to appeal from a trial court's denial of a motion to reinstate the complaint.

I.

THE COMPLAINT WAS TIMELY FILED

Penal Code section 803, subdivision (g)(1) states that "a criminal complaint may be filed within one year of the date of a report of a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5." The section goes on to state in subdivision (g)(3)(A) that it

The statute further provides in subdivision (g)(3)(B)(i):

In the present case, a complaint was timely filed on April 15, 1994, which was within one year of the filing of a report with a law enforcement agency alleging a violation of one of the enumerated sections while the victim was a child under the age of 18. Under Penal Code section 803, subdivision (g)(B)(i) the People may refile a complaint although the previous complaint was dismissed. The complaint is timely filed if the initial, dismissed complaint, was filed within one year of a report made to a law enforcement agency alleging abuse of the victim while the victim was under the age of 18 years. The dismissed complaint must be refiled no later than 180 days after a published decision deciding the constitutionality of Penal Code section 803, subdivision (g) from the California or United States Supreme Courts becomes final. (Pen. Code, § 803, subd. (g)(3)(A)(iv).) To date, no California or United States Supreme Court cases have been decided on this issue. Under Penal Code section 803, subdivision (g) the complaint is timely filed. However, as noted, section 803, subdivision (g) became effective after the previous statute of limitations period had already run.

This legislation was clearly designed to bring to justice predators who have abused and taken advantage of innocent children, and then reaped the advantage of their victim's immaturity by the running of the statute of limitations. It is self-evident that many times children are victimized in their own homes by individuals occupying positions of trust or by family friends and, as such, are not in a position to recognize or effectively assert their victimization until they have reached young adulthood. Even more tragic is the simple fact that many people cannot psychologically face their victimization until after they have acquired the maturity of adults. As such, the statute of limitations for people who have wreaked such havoc on young lives may well not have the normal effect because the victim is less likely or perhaps unable to come forward until after the statute of limitations has expired. The Legislature recognized this as noted in a letter to the Honorable Bill Lockyer from the League of Women Prosecutors dated February 20, 1991, to the effect that child victims frequently do not report sexual assault crimes because they are afraid, intimidated or because they feel that others may not believe them. In our view, the purpose of this legislation is to give a voice to those whose silence came from immaturity. This legislation seeks to allow the victimized to step forward and reclaim their dignity from their abusers. We conclude this legislation does not violate the Ex Post Facto Clause and reverse the trial court.

II.

THE REVIVAL OF AN EXPIRED STATUTE OF
LIMITATIONS DOES NOT VIOLATE DUE PROCESS

Respondent claims that the revival of the statute of limitations would deprive him of due process of law as provided in the Fifth and Fourteenth Amendments to the United States Constitution 1 by depriving him of a fundamental liberty interest. We disagree.

The substantive portion of the Due Process Clause protects individuals from being deprived of certain "'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." (Reno v. Flores (1993) 507 U.S. 292, 302, italics original.) However, the "protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity. (Albright v. Oliver (1994) 510 U.S. 266, 271 (plurality decision).) The revival of a statute of limitations does not fall within any of these categories.

A statute of limitations has never been considered a fundamental right within the meaning of the Due Process Clause. (See Chase Securities Corp. v. Donaldson (1945) 325 U.S. 304, 314-316 [the revival of a claim barred by a civil statute of limitations does not violate the Due Process Clause as the statute of limitations is not a fundamental right].) It is necessarily a statutory right, one which the Legislature has provided for in some, but not all crimes. They were created to cope with the difficulty of obtaining reliable evidence after the passage of time. (People v. Zamora (1976) 18 Cal.3d 538, 546.) They "encourage the swift and effective enforcement of the law [,].… [and] limit the chance that the first offense will spawn blackmail of the offender .…" (Cowan v. Superior Court (1996) 14 Cal.4th 367, 375.) In addition, they recognize the possibility that the offender may have undergone some self reformation, and that over time, society's desire for retribution may have diminished. (Id. at pp. 374-375.) We find respondent's reliance on substantive due process in this case is misplaced. 2

III.

THE REVIVAL OF AN EXPIRED STATUTE OF LIMITATIONS
DOES NOT VIOLATE THE EX POST FACTO CLAUSE

Appellant contends that Penal Code section 803, subdivision (g) does not violate the Ex Post Facto Clause of the California or United States Constitutions. We agree, and will reverse the judgment below. 3

The United States Constitution and our own California Constitution contain identical language declaring that no "ex post facto law" shall be passed. (U.S. Const., art. I, § 10, ch. 1; Cal. Const., art. I, § 9.) Over the years, both clauses have been interpreted uniformly. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 296, stating, "[n]or does an independent meaning for the state ex post facto clause emerge from our own opinions. Although this court has often cited the state clause together with the federal, we have never given the state clause an independent interpretation or held, in any case, that the state clause required a different result than the federal clause.")

Early opinions by the United States Supreme Court "explained, 'ex post facto law' was a term of art with an established meaning at the time of the framing of the Constitution." (Collins v. Youngblood (1990) 497 U.S. 37, 41 [hereafter Youngblood].)

The United States Supreme Court greatly simplified ex post facto law in its Youngblood decision by adopting the definition of ex post facto as articulated in its early decisions of Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, and Beazell v. Ohio (1925) 269 U.S. 167.

Calder stated the core concerns of the ex post facto clause according to the original intent of the framers.

The Youngblood court noted that Beazell had stated the distilled understanding of the definition of an ex post facto law. "The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause.…" (497 U.S. at p. 43.)

In Youngblood, the Supreme Court also overruled its earlier decisions of Kring v. Missouri (1882) 107 U.S. 221, and Thompson v. Utah (1898) 170 U.S. 343, thereby rejecting "the proposition that a law violates the ex post facto clause simply because it eliminates a 'substantial protection' existing at the time an offense was committed." (Tapia v. Superior Court, supra, 53 Cal.3d at p. 294, quoting Youngblood, supra, 497 U.S. at p. 46.) The California Supreme Court's decision in Tapia provides an excellent summary of this aspect of Youngblood:

The California Supreme Court has expressly adhered to the Youngblood holding. (See Tapia v. Superior Court, supra, 53 Cal.3d 282.)

Thus, because the United States Supreme Court was quite specific in its definition of what constitutes an ex post facto law, the Ex Post Facto Clause, after Youngblood, must now be interpreted in a very precise manner. 5 As such, we agree with appellant that the correct analysis is to determine whether a change in the law falls into one of the prohibited categories; if it does not, it does not violate the constitutional provision.

It is clear that section 803, subdivision (g) does not punish as a crime an act previously committed which was innocent when done. It is also obvious that our statute does not make more burdensome the punishment for a crime after its commission.

The statue in no way affects the sentencing structure for the enumerated sexual offenses; it only extends the statute of limitations for those crimes. Respondent argues that increasing the statute of limitations for the offense increases the possible punishment from zero, because he can no longer be prosecuted once the original statute of limitations expires, to the original sentencing structure. We find this argument unpersuasive. The extension of the statute of limitations does not increase the length of incarceration that the accused was exposed to at the time he committed the offense, instead he is exposed to the same punishment as he was at the time he committed the offense. 6

Further, we see no basis to conclude the provision alters the rules of evidence in order to convict the offender on less or different evidence than the law required at the time of commission of the offense. Therefore, the issue needed to be decided by this court is whether the revival of an expired statute of limitations deprives defendant of any defense available according to law at the time when the act was committed.

As such, it is necessary to determine the meaning of the word "defense" as articulated in Youngblood. The Beazell court linked the word "defense" to a "prohibition on alterations in 'the legal definition of the offense' or 'the nature or amount of the punishment imposed for its commission.'" (Youngblood, supra, 497 U.S. at p. 50, quoting Beazell, supra, 269 U.S. at pp. 169-170.)

The statute of limitations has never been part of the definition of a crime. Indeed, statute of limitations for crimes were not codified in California until 1851. (Stats. 1851, ch. 29, §§ 96-100, p. 222.) Statutes of limitations were not a part of the English common law. (Adlestein, Conflict of the Criminal Statute of Limitations With Lesser Offenses At Trial (1995) 37 Wm. & Mary L.Rev. 199, 253-254.) A statute of limitation does not make an act criminal, rather it is a policy determination, by the Legislature, to deal with the practical difficulties of prosecuting stale crimes. (See United States v. Gouveia (1984) 467 U.S. 180, 192 ("statutes of limitations protect against the prosecution's bringing stale criminal charges against any defendant"); United States v. Marion (1971) 404 U.S. 307, 322-323 (statute of limitations is the primary protection against bringing stale criminal charges).) Once a statute of limitations has expired for a crime, the accused's acts do not become innocent, rather the state has given up its right to prosecute for that offense.

In Cowan v. Superior Court, the Supreme Court's most recent articulation regarding the statute of limitations, the Court addressed its jurisdictional aspects, and concluded that the courts may proceed despite the expiration of the statute of limitations upon a proper waiver by the defendant. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 374 [a "court may act in excess of jurisdiction in accepting a guilty plea to a time-barred lesser offense, but, contrary to our earlier broad statements, it does not lack fundamental subject matter jurisdiction."] italics original.) The Court overruled a long line of cases holding that the statute of limitations was jurisdictional in character, but only to the extent that they held that the court lacked fundamental subject matter jurisdiction. (Ibid.) The Court did not decide whether the statute of limitations is an affirmative defense. (Ibid.) Implicit in this reasoning is that the statute of limitations is not included within the legal definition of the crime. Rather it is simply an issue which must be proven in order for the court to proceed in making a determination relating to the crime before it. While we realize that the statute of limitations must be pled and proved by the prosecution (People v. Allen (1941) 47 Cal.App.2d 735, 748), we note that the statute of limitations "'constitutes no part of the crime itself.'" (People v. Crosby (1963) 58 Cal.2d 713, 723.) Therefore, we find that the statute of limitations does not fit the definition of a "defense" as described in Youngblood, and the a revival of the statute of limitations in this case does not violate the Ex Post Facto Clause.

Appellant relies heavily on U.S. v. Knipp (6th Cir. 1992) 963 F.2d 839 (hereafter Knipp). In Knipp, one of the issues faced by the federal court was whether an extension of a statute of limitations from five years to ten years violated the Ex Post Facto Clause of the United States Constitution in a case where the statute had not expired at the time of the extension. The court held that it did not.

In Knipp the defendants argued "that the extension of the limitations period to ten years deprived them of the opportunity to plead the previous five-year limitations period as a bar to their prosecutions." (Knipp, supra, 963 F.2d at p. 843.) The Knipp court, however, stated:

Later in the opinion, the Knipp court categorized the use of a statute of limitations as a procedural defense, and further attempted to clarify the meaning of "defense" in terms of ex post facto analysis.

Thus, Knipp creates a very limited definition as to what constitutes a "defense" under ex post facto law. Respondent distinguishes Knipp on the basis that it is a federal circuit court case and also because it involves a statute of limitations that had not yet expired when the new law was enacted.

As authority on the issue, respondents point to Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, decided by the Second District Court of Appeal. In Lynch the court was faced with the exact issue we are now asked to resolve: whether the extension of the statute of limitations provided in section 803, subdivision (g) could revive and extend the statutory limitations period which was in effect when the charged sex offenses were committed but expired prior to the effective date of section 803, subdivision (g). The court held that an ex post facto violation had occurred.

In Lynch the court stated:

It is well established in our case law that California regards statutory limitations periods as a substantive rather than a procedural right. (People v. Chadd (1981) 28 Cal.3d 739, 757.) However, as Youngblood and Tapia correctly point out, references in earlier cases to "substantial protections" and "personal rights" should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause. Thus, categorizing something as either substantive or procedural is not conclusive in determining whether a change in the law violates the Ex Post Facto Clause.

There is, however, as appellant points out, a long line of California authority that has held that compliance with the statute of limitations must be demonstrated by the prosecution. (In re Demillo (1975) 14 Cal.3d 598, 601; People v. McGee (1934) 1 Cal.2d 611, 613, overruled on other grounds by Cowen v. Superior Court 14 Cal.4th 367.)

Sobiek then cites to the analysis in People v. Snipe (1972) 25 Cal.App.3d 742 wherein the statute of limitations was extended prior to the expiration of the statute of limitations existent at the time of the crime. Citing Snipe, the court in Sobiek stated:

After a review of Beazell v. Ohio, supra, 269 U.S. 167, and Youngblood, supra, 497 U.S. 37, we conclude that the analysis in Sobiek v. Superior Court, supra, 28 Cal.App.3d 846, is incorrect. Specifically, Sobiek was decided in 1972 and did not have the benefit of the well defined criteria of Youngblood. Therefore, we determine the issue must be revisited in light of Youngblood. Likewise, because Lynch v. Superior Court, supra, 33 Cal.App.4th 1223, relies primarily upon Sobiek, we must respectfully disagree with the Lynch analysis.

Further, we note that our high court adopted the Youngblood analysis in Tapia v. Superior Court, supra, 53 Cal.3d 282. Therefore, it is that analysis which controls the issue of what constitutes a defense for purposes of ex post facto analysis. Further, it must be borne in mind that the word "defense" as it is used before us is a term of art and must be defined according to the context in which it is used. Thus, regardless of procedural or substantive distinctions as they may restrict, abate or bar prosecutions, the term "defense" as used in ex post facto analysis is not defined by its general consequence but rather by its specific application to the crime itself.

The foregoing conclusion is supported by Youngblood, supra, 497 U.S 37, in which the court reviewed Kring v. Missouri, supra, 107 U.S. 221 which had defined an ex post facto law "as one which, '"in relation to the offense or its consequences, alters the situation of a party to his disadvantage."'" (497 U.S. at p. 47.) The court in Youngblood rejected the analysis of Kring and reviewed its genesis in United States v. Hall, 26 F. Cas. 84 (No. 15,285) (D.Pa 1809) as well as its relationship to Calder v. Bull, supra, 3 U.S. (3 Dall.) 386, which was the initial analysis of ex post facto concepts.

The Court's analysis of Kring and its reliance on Hall is best put forth in the words of the Court.

The reasoning in Lynch was followed by the First Appellate District in People v. Bunn (1997) 53 Cal.App.4th 227. Bunn found that the revival of an expired statute of limitations would deprive the defendant of a defense as described in Youngblood. Neither do we find the reasoning in Bunn persuasive.

The court in Bunn evaluated the role of the statute of limitations in light of Cowan, supra, and found that the statute of limitations confers "upon the criminal defendant a substantive statutory right [citation] which ripens into a type of 'immunity' upon expiration of the limitations period [citations]." (at pp. 233-234.) As discussed above, Cowan found that the statute of limitations is indeed jurisdictional. Because the statute of limitations is in essence jurisdictional, it is not a defense which relates to the legal definition of the crime which Youngblood requires. Indeed, the Bunn case itself recognized that the statute of limitations is not "an 'element of the offense' in the sense that it defines the actus reus or mens rea which characterizes the crime  .…" (Bunn, supra, 53 Cal.App.4th at p. 234.)

Bunn stated further that there is a distinction between reviving an expired statute of limitations and merely extending a statute of limitations which has not yet expired. According to the First District, reviving a previously expired statute of limitations "recriminalizes conduct that, by lapse of time and operation law [sic], has been rendered exempt from prosecution — and punishment — for all time. When an amendment operates to extend an unexpired statute of limitations, the new law reminds offenders that they are subject to prosecution and punishment for relatively recent conduct, and places them on notice that they will remain so for a longer period of time than anticipated at the time of the offense." (Id. at p. 237.) We disagree.

The running of a statute of limitations does not make conduct noncriminal; the accused is just as culpable for the acts committed. The statute of limitations is not akin to a defense, within the meaning of Youngblood, which makes the action noncriminal (such as a justification) or less culpable (such as an excuse). The statute of limitations simply is a policy determination by the state that they no longer wish to prosecute for acts which happened in the past. It is this reasoning that causes us to find that the revival of an expired statute of limitations does not violate ex post facto principles.

The court in Youngblood goes to great lengths to emphasize that a defense is something which may be pled as a justification or excuse or relates to the elements of the crime. A defense in this sense only encompasses circumstances which exist at the time the crime is committed which exonerate or mitigate the accused's actions. A statute of limitation does not fit within this definition.

In addition, we emphasize that, according to Youngblood, an ex post facto violation exists when the accused is deprived "of any defense available according to law at the time when the act was committed." (Youngblood, supra, 497 U.S. at p.52, italics added.) Clearly the statute of limitations is not a defense available at the time the act is committed, nor can it ever be because it necessarily does not relate to the circumstances surrounding the crime, it only relates to the passage of time. Lynch and Bunn argue that although an accused may not assert the statute of limitations at the time of the offense, it nevertheless is an available defense at the time the crime was committed, which may not be asserted until later. (Lynch, supra, 33 Cal.App.4th at pp. 1227-1228; Bunn, supra, 53 Cal.App.4th at pp. 235-236.)

The flaw in this reasoning is apparent when one considers the case of an extended statute of limitations. The courts, including Lynch and Bunn, have uniformly held that an extension of an unexpired statute of limitations does not violate the ex post facto clause. (See fn. 6, supra.) Using that reasoning, however, renders the conclusion inconsistent with the premises of Lynch and Bunn. If a statute of limitations is a defense in existence at the time of the crime, then an extension of the statute of limitations would be just as much a violation of ex post facto as would the revival of the statute of limitations. This is exemplified in the following situation. At the time a crime is committed it carries a three year statute of limitations. Before the statute of limitations expires, the Legislature amends it to a six year statute of limitations. The accused is prosecuted after three years have passed but before six years have passed. Under the reasoning in Lynch and Bunn such a change would indeed violate the Ex Post Facto Clause. The accused held a defense at the time of the crime, the defense that the prosecution could only commence within three years of the time the crime was committed. According to this reasoning the state should not be able to proceed. However it is well settled that such an extension does not violate ex post facto principles.

In our view, the term "defense" as it is employed in Youngblood refers to a defense that bears upon criminal culpability for the act constituting the crime. In other words, the defense renders the act noncriminal, such as self-defense, or diminishes its culpability, such as heat of passion which reduces murder to manslaughter. Further, the defense exists at the time the act was committed. Thus, the defense must be integral to the nature of the act. Therefore, abrogating the defense or changing it by more stringent statutory implementation would render the act culpable or would increase culpability. In effect, an ex post facto law depriving one of a defense alters the nature of the act that constitutes the crime.

Respondent argues that the statute of limitations is an essential element of the crime. "The fact that the statute of limitations is jurisdictional necessarily determines that a prosecution within the period specified is an essential element of the offense." (People v. Allen (1941) 47 Cal.App.2d 735, 748.) Therefore, he maintains application of section 803, subdivision (g) would eliminate a defense because it would alter an element of the crime when committed. However, such arguments fail to acknowledge that what is a defense is defined by its use in ex post facto analysis - - not by its use generically or gratuitously. Further, we perceive that the analysis of "element of a crime" as it pertains to a defense refers to the conduct rendering the act criminal as opposed to that which must be proved in order to convict. In this regard, People v. Crosby (1962) 58 Cal.2d 713 is instructive. The issue in Crosby involved amending an indictment to allege facts sufficient to toll the statute of limitations. The defendants in Crosby argued "that the statute of limitations is jurisdictional, and that an indictment that shows on its face that the prosecution is barred by limitation 'fails to state a public offense.'" (Id. at p. 722.) The Supreme Court concluded "an amendment merely adding or extending allegations tolling the statute of limitations would not change the offense charged, for 'although the right to maintain the action is an essential element in the final power to pronounce judgment, that element constitutes no part of the crime itself.' [Citation.]" (Id. at p. 723.)

Further, acceptance of respondent's argument would create an inherent contradiction with current law. We have noted and respondent concedes that a statute of limitations may be extended during its term. If such statute of limitations was an element of the crime when committed, then clearly an extension of the statute of limitations would change an element of the crime - - this would be an ex post facto violation. However, that such is not an ex post facto violation is settled. The only reconciliation of such an inconsistency created by respondent's argument is that the statute of limitations is not an element of the crime for purposes of ex post facto analysis.

A statutory bar to prosecution, such as a statute of limitation, whether interpreted as procedural or substantive does not relate to the act itself. Rather, such statutory restrictions on prosecution inhibit the prosecution of a criminal act but they in no way affect the statutory definition of the act rendering the act committed more culpable in light of legislation subsequent to the act committed. Therefore, we conclude that for purposes of ex post facto analysis, a statute of limitations is not a "defense." Necessarily, we determine the trial court erred in finding the application of section 803, subdivision (g) a violation of the Ex Post Facto Clause of the United States Constitution and the Constitution of the State of California. A legislature may statutorily extend a statute of limitations to a crime after the prior statutory period has expired without specifically offending those provisions.

Finally, we point out that our decision is not inconsistent with the purpose of the Ex Post Facto Clause. The Supreme Court has stated that the Clause is based on "the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties .…" (Marks v. United States (1977) 430 U.S. 188, 191.) In Youngblood, the Court quoted Blackstone in stating "a law is ex post facto 'when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it.' [Citation]." (Youngblood, supra, 497 U.S. at p. 44.) Indeed, our own Supreme Court has recently stated that the basic purpose of the Ex Post Facto Clause "is to ensure fair warning of the consequences of violating penal statutes, and to reduce the potential for vindictive legislation." (Hubbart v. People (1999) ___ Cal.4th ___, ___ [S052136].) Reviving a statute of limitations does not violate these purposes.

IV.

DISPOSITION

For the reasons stated above, we find that the revival of the statute of limitations provided in Penal Code section 803, subdivision (g) does not violate the Ex Post Facto Clause. Therefore, the trial court erred in denying the People's motion to reinstate the complaint. The judgment of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Ardaiz, P. J.

WE CONCUR:

Vartabedian, J.

Harris, J.

FOOTNOTES

1 We note that the issue of due process was not briefed or argued at the hearing regarding the motion to reinstate the complaint and was only mentioned briefly in the motion to dismiss the complaint.

2 We note that the appeal in this case is taken from the trial court's denial of the people's motion to reinstate the complaint. Respondent did not rely on the Due Process Clause in opposing that motion, nor was the trial court's original ruling to dismiss the complaint based on due process grounds (although respondent did mention due process in his motion to dismiss the complaint). While it is likely that respondent waived the due process issue on appeal by failing to assert it in his opposition of the motion to reinstate the complaint, appellant does not assert waiver. We, therefore, have chosen to address the due process assertion by respondent.

Further, there is no claim in the present case that the prosecution is going forward with unreliable evidence, or that because of the passage of time respondent is unable to defend the claims against him. We conclude that respondent does not allege a procedural due process claim on the issue before us.

3 Appellant also filed a request that this court take judicial notice of several depublished cases relating to the issue on appeal. Because these cases have been ordered depublished by the California Supreme Court, and are no longer citeable authority, appellant's motion is denied. (Cal. Rules of Court, rule 977.)

4 "The Beazell definition omits the reference by Justice Chase in Calder v. Bull, 3 Dall. 386, 390 (1798), to alterations in the 'legal rules of evidence.' See also Hopt v. Utah, 110 U.S. 574, 590 (1884) (approving procedural changes 'leaving untouched the nature of the crime and amount or degree of proof essential to conviction'). As cases subsequent to Calder make clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes. (Thompson v. Missouri, 171 U.S. 380, 386-387 (1898) (rejecting ex post facto challenge to retroactive application of statute making admissible handwritten documents as handwriting exemplars); Hopt, supra, at 588-590 (upholding retroactive application of statute making felons competent to testify)." (Youngblood, supra, 497 U.S. at p. 43, fn. 3.)

We note further that the original articulation of the categories encompassing ex post facto laws did not contain a provision for "defenses available according to law at the time when the act was committed." (Beazell, supra, 269 U.S. at p. 169.) Instead, Calder recognized ex post facto laws as those which made innocent acts criminal, aggravated a crime, or imposed a greater punishment. (Calder, supra, 3 U.S. at p. 390.) Beazell interpreted these categories in stating the reach of ex post facto laws. This would suggest that when Beazell refers to "defenses" it relates to circumstances which either make the act noncriminal or increase the punishment for the action.

5 The United States Supreme Court's recent decision in California Department of Corrections v. Morales (1995) 514 U.S. 499 [115 S.Ct. 1597], reaffirms the test mandated by Youngblood.

6 If we were to accept respondent's argument, then an extension of the statute of limitations would also result in an increased punishment for the crime. (See pp. 18-19, infra.) However, the California courts have uniformly held that an extension of the statute of limitations does not violate ex post facto principles. (See, e.g., People v. Bunn (1997) 53 Cal.App.4th 227, 236-237; Lynch v. Superior Court (1995) 33 Cal.App.4th 1223, 1226; Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 849-851; People v. Masry (1986) 179 Cal.App.3d 1149, 1151-1152; People v. Smith (1985) 171 Cal.App.3d 997, 1001; People v. Sample (1984) 161 Cal.App.3d 1053, 1057.)