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How to change Penal Code 851.8 - the statue of time limitations?

Sacramento, CA |

Is there anything I can do to get the government to change the law on Penal Code 851.8? I would like to see that this statue does not have any statutory time limitations.

How do I get the government involved in this? Where do I start?

Attorney Answers 6

Posted

The STATUTE of limitations is an important part of any civil and criminal prosecution. It help both plaintiffs and defendants requiring actions be brought within a certain amount of time, or risk losing the ability to do so. Time limits are not applicable to some case, and when they are, they are still important.

In order to even start this discussion, you would have to have "standing" to bring any kind of action to declare it unconstitutional. It's not something that will change simply because you don't agree with it.

Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.

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5 comments

Ellery Stuart Sorkin

Ellery Stuart Sorkin

Posted

I agree with Matthew, but - even further - the Statute prevents us from having to remember incidents for more than (generally) 1-3 years, and having to locate witnesses whose recollections have also grown dim. I don't want any statutes of limitation extended; they're too long as it is.

Asker

Posted

You make a good point; however, I will contact the states representatives to start a state petition to extend the statue of limitations for this specific case. The reason being is because I got accused for sexual battery inside of a library in 2007. This lady alleged that I pinched her ass. One this for sure, I did not do it. In addition, this lady was twice my age; she was old.I don't mean to offend any of you here, but I don't think someone in his earlier twenties try something like that to some women which appears twice as old. Two, I didn't even see the lady that made the alleged comment to the librarian. Even though I stated to the poice that I did not commit the crime, I was still taken to jail. My petition under 851.8 was denied for an unknown reason. The judge never told me why though. I'm confused as today, the DA indicated himself that they denied prosecuting based on insufficient evidence.

Matthew Murillo

Matthew Murillo

Posted

I'm confused now. Why would you want to extend the statute of limitations? If the DA rejected the case, and you are outside the window of when a charge is allowed to be brought, you've won. Nothing can be brought against you anymore. Why would you want to allow the "victim" more time to do something? Maybe your misunderstanding the statute. Maybe the judge did you a favor by denying your motion. Feel free to give me a call if you want to discuss this further.

Deirdre Lynn O'Connor

Deirdre Lynn O'Connor

Posted

Mr Murillo--I think you have misunderstood the question. The asker wants to extend the SOL for P.C. 851.8 because he was denied his Petition for Factual Innocence as untimely. He is NOT asking to extend the SOL for the prosecutor to file charges AGAINST him.

Matthew Murillo

Matthew Murillo

Posted

Ms. O'Connor: I think you're right. It all makes sense under your interpretation. Thanks for clearing that up.

Posted

I agree with Mr. Murillo.

Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.

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John M. Kaman

John M. Kaman

Posted

Great comment! Bet you worked hard on that.

Asker

Posted

Dear Ellery Sorkin: You state that the statutory of time limitations is longer that it is. You are entitled to your opinion, but I don't share that thought. I believe if the statute of limitations behind PC 851.8 gets extended, that'll be a good thing. It'll help point out frivolous and vexatious people who cause false arrest. There is another bigger picture that I need to explain, but that'll take to long to put here.

Deirdre Lynn O'Connor

Deirdre Lynn O'Connor

Posted

Mr. Murillo & Mr. Sorkin may be thinking of the value of SOL as it relates to the filing of criminal charges and other causes of actions. In that regard, I don't disagree. BUT, the asker is trying to avoid an unfair SOL that is preventing him from having his actual innocence heard! Seems to me that most defense lawyers--if not all--would welcome any change in procedure that protects the factually innocent. Indeed, not sure why anyone would oppose this extension of time.

Posted

You can write letters/emails/phone calls to your state representative and senator. You can write to the governor. You can start an organization, stand on the corner with a sign, or put an initiative on the ballot, or any number of other strategies. Good luck to you.

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Posted

To change a statute, requires legislation. Thus, you would need to contact your legislators.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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Posted

I'm interested in speaking to you about this. Please contact me at deirdre(at)innocencematters(dot)us.

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Posted

Just so that everybody knows what we are discussing here, Penal Code section 851.8 deals with sealing an arrest or detention record.

You may petition to have your arrest or detention records sealed if you were arrested or detained, but were not convicted of a crime, and can prove that you are factually innocent of the crime for which you were held. The crime must have been a misdemeanor or felony, not an infraction. (See Cal. Penal Code § 851.8.)

You need to bring the petition within two years of the date you were arrested, or the date the charges were filed against you, whichever is later. However, this time requirement may be waived if you can show the court you had “good cause” for not filing the petition earlier. (See Cal. Penal Code § 851.8(l).

Frankly, I think you have a point about the two-year limitation period. I have not read the legislative committee notes on the original legislation, but there does not seem to be any good reason for having a two year limit.

Under California law, any individual or organization can write a petition to alter state laws. Write the proposed change to the law in the form of a petition so that you can circulate the proposal and get signatures.Specifically state in the petition which law you want to change, and what the specific modifications that you want to make are. You submit the petition to the Attorney General for the State of California and pay a $200 fee. There are procedures to follow, but once on this path it should become self-evident what you have to do. As mentioned above, you need citizen signatures on your petition, and I believe that changing a statute requires signatures from 5 percent of the votes cast in the last gubernatorial election. In the last gubernatorial election 10,094,839 votes were cast, which means you need 504,742 signatures on your petition. If I am correct, this is a real roadblock. Another path to take would be to have your state representative sponsor a change in the statute.

Good luck.

Drew Allan Cicconi
Attorney at Law
310-925-8337

Disclaimer: This is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. This is not intended to be legal advice in your specific case. It's impossible to give detailed, accurate advice based on a few sentences on a website. You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information in your case.

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