Statute of Limitations Defense and Time Periods

In criminal cases, a defendant may not be convicted of a crime unless the prosecution began within the period of time set by law. The time period set by law is the Statute of Limitations (“SOL”). The time period starts on the date the crime was committed (or was discovered or should have been discovered). A crime should have been discovered when the victim and/or law enforcement officer was aware of facts that would have alerted a reasonably diligent person or law enforcement officer in the same circumstances to the fact that a crime may have been committed.

In criminal cases, The Prosecution has the burden of proving by a preponderance of the evidence that prosecution of this case began within the required time. This is a completely different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, The Prosecution must prove that it is more likely than not that prosecution of this case began within the required time. If the Prosecution has NOT met this burden, the defendant must be found NOT GUILTY of the crime. Also note, that if the defendant was outside of California for some period of time, that time will not be included in the statutory time period. The Prosecution still has to prove that it is more likely than not that the defendant was outside of California for that period of time. The Prosecution has the burden of proving by a preponderance of the evidence that the prosecution is not barred by the statute of limitations, unless at a pretrial motion to dismiss, the defendant has the burden of proving that the statute of limitations has run as a matter of law.

For most crimes, the statute begins to run when the offense is committed. If the crime is a fraud-related offense and included in Penal Code section 803, the statute begins to run after the completion of or discovery of the offense, whichever is later. When the courts determine the date of discovery they determine if the investigative efforts were done with due diligence which is the care that a reasonable person or law enforcement officer exercises to avoid harm to themselves, other persons or their property.

A defendant may affirmatively, but not inadvertently, waive the statute of limitations. This happens in cases where defendants are charged with a felony which has a three-year statutory period but they later plea to a misdemeanor. They can affirmatively waive the Statute of Limitations defense to plea guilty to the lesser offense.

It is important to consult an experienced criminal attorney to help you determine if a Statute of Limitations defense is available.

Here are the Statute of Limitation Time Periods:

  • No limitations period (Pen. Code, § 799): Embezzlement of public funds and crimes punishable by death or by life imprisonment.
  • Six-year period (Pen. Code, § 800): Felonies punishable for eight years or more, unless otherwise specified by statute.
  • Five-year period (Pen. Code, § 801.6): All other crimes against elders and dependent adults.
  • Four-year period (Pen. Code, §§ 801.5, 803(c)): Fraud, breach of fiduciary obligation, theft, or embezzlement on an elder or dependent adult, and misconduct in office.
  • Three-year period (Pen. Code, §§ 801, 802(b)): All other felonies, unless otherwise specified by statute, and misdemeanors committed upon a minor under the age of 14. Note: “If the offense is an alternative felony/misdemeanor ‘wobbler’ initially charged as a felony, the three-year statute of limitations applies, without regard to the ultimate reduction to a misdemeanor after the filing of the complaint.”
  • Two-year period (Pen. Code, § 802(c)): Misdemeanors under Business and Professions Code section 729.
  • One-year period (Pen. Code, § 802(a)): Misdemeanors.

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