1

Filed 11/6/15 P. v. Biane CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

PAUL ANTOINE BIANE et al.,

Defendants and Respondents.

E061951

(Super.Ct.No. FSB1102102)

ORDER MODIFYING OPINION 

AND DENYING PETITION FOR 

REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT

The petition for rehearing filed on October 27, 2015, is denied. The opinion filed 

in this matter on October 14, 2015, is modified as follows:

On page 11, footnote 5 should be added after the last sentence on that page, which 

ends with “. . . described in section 803(c).” All subsequent footnotes should be 

renumbered accordingly. The last full sentence on page 11, including the new footnote 

should read as follows:
2

Given these facts, we are not persuaded that the Legislature intended to exclude 

conspiracies to commit target offenses that are based on misconduct in office but at the

same time to include conspiracies that are themselves based on misconduct in office, 

even though their target offenses are not crimes enumerated or described in section 

803(c).5

These modifications do not change the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.

 

5

 The Attorney General contends that the introductory phrase of section 801.5, 

“[n]otwithstanding Section 801 or any other provision of law,” resolves any latent

ambiguity in sections 801.5 and 803 with respect to the Legislature’s intentions regarding 

the applicability of section 801.5 to conspiracy. We would ordinarily give great weight 

to that language as reflecting the Legislature’s intent to override any existing provisions 

of law to the contrary. (See People v. Benson (1998) 18 Cal.4th 24, 31-32.) However, a 

latent ambiguity exists “where ‘“some extrinsic evidence creates a necessity for 

interpretation or a choice among two or more possible meanings.” [Citation.]’” (Coburn 

v. Sievert, supra, 133 Cal.App.4th at p. 1495, quoting Mosk v. Superior Court (1979) 25 

Cal.3d 474, 495, fn. 18.) Here, as we discuss, there is extrinsic evidence that despite that 

language, the Legislature did not intend to extend the statute of limitations for 

conspiracy.
1

Filed 10/14/15 P. v. Biane CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

PAUL ANTOINE BIANE et al.,

Defendants and Respondents.

E061951

(Super.Ct.No. FSB1102102)

OPINION

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, 

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Melissa Mandel, Deputy Attorney General; Michael A. Ramos, District Attorney, and 

Michael Abney, Deputy District Attorney, for Plaintiff and Appellant.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and 

Respondent Paul Antoine Biane.
2

Arent Fox, Stephen G. Larson, Mary Carter Andrues, Jonathan E. Phillips; Law 

Offices of Dennis A. Fischer and Dennis A. Fischer for Defendant and Respondent 

Jeffrey Scott Burum.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and 

Respondent Mark Allen Kirk.

Law Office of Rajan Maline and Rajan Maline for Defendant and Respondent 

James Howard Erwin.

INTRODUCTION

Defendants and respondents Paul Biane, Mark Kirk, James Erwin and Jeffrey 

Burum are defendants in a long-running political corruption prosecution, which has been 

the subject of several prior appeals. At issue in this appeal is the trial court’s order 

sustaining the defendants’ demurrers to count 1 of the indictment, without leave to 

amend, and the subsequent dismissal of that count, based on the trial court’s conclusion 

that the conspiracy alleged in count 1 was subject to a three-year statute of limitations

and that the prosecution was time-barred. The Attorney General contends that count 1, 

as an offense “the basis of which is misconduct in office,” (Pen. Code, § 803, subd. (c)) 

is governed instead by the four-year statute of limitations provided for in Penal Code 

section 801.5, and that the prosecution of count 1 is therefore not time-barred. We 

disagree, and we will affirm the judgment of dismissal as to count 1.
3

FACTUAL BACKGROUND

As stated in People v. Biane (2013) 58 Cal.4th 381 (Biane I), the factual 

background is as follows:

“On May 9, 2011, a grand jury issued a 29-count indictment against Paul Antoine 

Biane, a member of the San Bernardino County Board of Supervisors; Mark Kirk, chief 

of staff for a different member of the board of supervisors; defendant Jeffrey Burum, a 

general partner in Colonies Partners, L.P. (Colonies); and defendant James Erwin, who 

was an agent for Burum. The indictment alleged that these individuals conspired together 

with William Postmus, who was the chairman of the board of supervisors and who has 

already pleaded guilty and agreed to aid the prosecution, to settle a lawsuit brought by 

Colonies against San Bernardino County (County) on terms favorable to Colonies in 

exchange for a contribution of $100,000 each to political action committees controlled by 

Biane, Kirk, Erwin, and Postmus. Among other charges, the indictment accused Burum 

and Erwin of conspiracy to accept bribes to influence the vote of a public official (Pen. 

Code, §§ 86, 165), to misappropriate public funds (Pen. Code, § 424), to commit a 

criminal conflict of interest (Gov. Code, § 1090), and to improperly influence a 

legislative action (Gov. Code, § 9054) (count 1; Pen. Code, § 182, subd. (a)(1)), and of 

aiding and abetting the acceptance of bribes by Postmus and Biane (counts 4, 5, 7, and 8; 

Pen. Code, §§ 86, 165).

“According to the indictment, Colonies is the owner of a 434-acre parcel of land in 

Upland that was intended for residential and commercial development. The parcel 

includes a 67-acre flood control basin over which the County had asserted easement 
4

rights. Colonies spent $23.5 million on flood control improvements and requested that 

the County reimburse those costs. When the County declined, asserting that the 67-acre 

basin itself was sufficient for flood control without improvements, Colonies sued the 

County in March 2002, challenging the County’s easements and claiming that it had been 

deprived of its ability to develop the flood control basin. In July 2005, the Court of 

Appeal ruled in favor of the County as to 30 acres of the easement established in 1933 

but found issues of fact remained as to the applicability and extent of a 1939 easement.

“The indictment alleges that Burum, on behalf of Colonies, then concocted a 

scheme to obtain a settlement of this litigation ‘through corrupt means’: a combination of 

threats, extortion, bribery, and inducements to secure votes for a favorable termination of 

the litigation from the five-member board of supervisors. Burum’s agent, Erwin, 

conspired with Burum and conveyed threats and inducements from Burum to Postmus 

and Biane, who were members of the board of supervisors, and to Kirk, who was chief of 

staff to Gary Ovitt, a member of the board of supervisors. Erwin agreed to accept money 

from Burum in exchange for influencing the votes of Postmus and Biane. Kirk agreed to 

accept money in exchange for influencing Ovitt’s vote. Postmus and Biane joined the 

conspiracy by agreeing to accept the bribes.

“The indictment recites that Postmus, after being provided cash, meals, and 

entertainment of various kinds by Burum during a trade mission to China, announced to 

the County’s administrative officer on September 20, 2005, ‘We’ve got to settle this 

Colonies thing’; that Burum offered money to Erwin to assist in obtaining votes for the 

settlement; that Burum offered money to Kirk if he could deliver Ovitt’s vote for the 
5

settlement; that Burum offered money to Biane in exchange for a favorable settlement 

from the County; and that Burum campaigned against Measure P (a ballot measure to 

increase the salary of the members of the board of supervisors) as a means of exerting 

pressure on Biane. Erwin told Postmus’s staff that Burum had hired private investigators 

to sift through the board chair’s trash for incriminating information, and threatened to 

distribute mailers to voters claiming that Postmus was addicted to drugs, as a means of

pressuring him to secure Biane’s vote. As a means of pressuring Biane directly, Erwin 

created mailers related to the Measure P campaign asserting that Biane was in debt and 

unable to pay his bills.

“In October or November of 2006, Burum and Postmus discussed the prospect of a 

settlement at the Doubletree Hotel in Ontario, using Erwin as an intermediary. During 

one meeting, Burum had a courier deliver ‘hit piece’ mailers relating to Measure P in an 

effort to intimidate Postmus. Postmus and Biane eventually agreed to vote to approve a 

settlement favorable to Colonies in exchange for a bribe. Kirk agreed, in exchange for a 

bribe, to urge Ovitt to support the settlement.

“On November 28, 2006, over the objections of San Bernardino County Counsel 

as well as private attorneys retained by the County, Postmus, Biane, and Ovitt provided 

the necessary three votes on the five-member board of supervisors to approve a $102 

million settlement with Colonies. In the months following the County’s initial payment 

of $22 million to Colonies, Colonies made three separate payments of $100,000 each to 

political action committees controlled, secretly or otherwise, by Biane, Kirk, and Erwin, 

and two payments of $50,000 each to political action committees secretly controlled by 
6

Postmus. Each of these conspirators funneled money from the committees for his own 

personal benefit. Biane, Kirk, and Erwin failed to report these payments on their Fair 

Political Practices Commission statement of economic interest forms or on their income 

tax returns.” (Biane I, supra, 58 Cal.4th at pp. 385-387.)

PROCEDURAL HISTORY

Count 1 alleges that in violation of Penal Code section 182, subdivision (a)(1), 

defendants conspired to commit the crimes of supervisor accepting a bribe (Pen. Code, 

§ 165); asking for/receiving a bribe (Pen. Code, § 86); misappropriation of public funds 

(Pen. Code, § 424); obtaining a thing of value to improperly influence a legislative action 

(Gov. Code, § 9054); and conflict of interest (Gov. Code, § 1090). It further alleges that 

in violation of Penal Code section 182, subdivision (a)(4), defendants conspired to cheat 

and defraud any person of any property, by any means which are in themselves criminal, 

or to obtain money or property by false pretenses or by false promises with fraudulent 

intent not to perform those promises, and that in violation of Penal Code section 182, 

subdivision (a)(5), defendants conspired to commit any act injurious to the public health, 

the public morals, or to pervert or obstruct justice, or the due administration of justice.1 

The indictment further alleges that the object of the conspiracy was to illegally obtain 

$102 million from the County of San Bernardino for personal gain, and for certain public 

officials to profit from those gains.

 

1

 All further statutory citations refer to the Penal Code unless a different code is 

specified.
7

Burum demurred to count 1 or, in the alternative, moved to dismiss it as timebarred, arguing that the statute of limitations for conspiracy is three years, commencing 

from the commission of the last overt act alleged.2 The last overt act alleged took place 

on July 12, 2007. The indictment was filed more than three years later, on May 5, 2011. 

The prosecution argued, however, that count 1 was subject to the four-year statute of 

limitations, which commences upon discovery of the offense, as provided in section 

801.5 and section 803, subdivision (c) (hereafter section 803(c)).

The trial court held, based on the decision in People v. Milstein (2012) 211 

Cal.App.4th 1158 (hereafter Milstein), that all conspiracies, regardless of their target 

offenses, are subject to the three-year statute of limitations. It sustained the demurrer 

without leave to amend as to count 1 and dismissed count 1. The trial court sustained the 

demurrer with respect to other counts of the indictment but granted leave to amend as to 

those counts. The court stated that the prosecution could include count 1 in an amended 

indictment in order to preserve the issue for appeal or writ proceedings. The first 

amended indictment realleged count 1. Defendants again demurred. The court sustained 

the demurrer and stated that its ruling was retroactive to the date of its original ruling.

The prosecution filed a timely notice of appeal.

 

2

 Burum demurred to and/or sought to dismiss counts 1, 4, 5, 7, 8 and 13 of the 

indictment due to the expiration of the applicable statutes of limitations. The dismissal of 

count 1 is the sole issue on appeal.

Biane also filed a demurrer to count 1 and other counts. The other defendants 

joined in the demurrers as to count 1.
8

LEGAL ANALYSIS

CONSPIRACY TO COMMIT CRIMES BASED ON MISCONDUCT IN PUBLIC 

OFFICE IS NOT SUBJECT TO SECTIONS 801.5 AND 803(c) 

Standard of Review

This appeal involves both the sustaining of a demurrer and the interpretation of a 

statute. A demurrer to an accusatory pleading raises only issues of law (People v. Biane 

(2013) 58 Cal.4th 381, 388 (Biane I); § 1004), and we independently determine whether 

the charging document states a cause of action. (Zelig v. County of Los Angeles (2002) 

27 Cal.4th 1112, 1126.) We assume the truth of all material factual allegations and 

matters subject to judicial notice. (Honig v. San Francisco Planning Dept. (2005) 127 

Cal.App.4th 520, 524.) The interpretation of a statute also presents a question of law that 

is subject to de novo review. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488.) In 

construing a statute, our objective is to ascertain and give effect to the Legislature’s intent 

in enacting the statute. (People v. Skiles (2011) 51 Cal.4th 1178, 1185.)

Summary of the Issue

Section 801.5 provides that prosecution of any offense “described in subdivision 

(c) of Section 803 shall be commenced within four years after discovery of the 

commission of the offense, or within four years after the completion of the offense, 

whichever is later.” Section 803(c) provides, in pertinent part: “A limitation of time 

prescribed in this chapter does not commence to run until the discovery of an offense 

described in this subdivision. This subdivision applies to an offense punishable by 

imprisonment in the state prison or imprisonment pursuant to subdivision (h) of 
9

Section 1170, a material element of which is fraud or breach of a fiduciary 

obligation, . . . or the basis of which is misconduct in office by a public officer, 

employee, or appointee . . . .” Section 803(c) lists a number of specific offenses to which 

it applies, but the list is “neither exclusive nor exhaustive.”3 (Milstein, supra, 211 

Cal.App.4th at p. 1167.) Accordingly, a crime which is not enumerated in section 803(c) 

but meets one of the general descriptors in subdivision (c) is subject both to the four-year 

statute of limitations provided for in section 801.5 and the discovery provision provided 

for in section 803(c). 

The crime of conspiracy is normally subject to a three-year statute of limitations, 

which commences to run with the commission of the last overt act in furtherance of the 

conspiracy. (Milstein, supra, 211 Cal.App.4th at p. 1165; § 801.) This limitation applies 

regardless of the statute of limitations which applies to any target offense—for example, 

murder has no statute of limitations (§ 799), but conspiracy to commit murder is subject 

to the three-year statute of limitations. (Milstein, at pp. 1166-1167.) The Attorney 

General argues, however, that section 803(c) encompasses conspiracies “the basis of 

 

3

 The enumerated offenses are Penal Code sections 68, 86 and 93 (Pen. Code, 

§ 803(c)(1)); Penal Code sections 72, 118, 118a, 132, 134, and 186.10 (Pen. Code, 

§ 803(c)(2)); Corporations Code sections 25540, “of any type,” and 25541 (Pen. Code, 

§ 803(c)(3)); Government Code sections 1090 and 27443 (Pen. Code, 803(c)(4)); Welfare 

and Institutions Code sections 11483 and 14107 (Pen. Code, § 803(c)(5)); Insurance 

Code sections 548, 550, and 1871.4, and former section 1871.1 (Pen. Code, § 803(c)(6)); 

Business and Professions Code sections 580, 581, 582, 583, and 584 (Pen. Code, 

§ 803(c)(7)); Business and Professions Code section 22430 (Pen. Code, § 803(c)(8)); 

Health and Safety Code section 103800 (Pen. Code, § 803(c)(9)); Penal Code section 

529a (Pen. Code, § 803(c)(10)); and Penal Code section 368, subdivisions (d) and (e) 

(Pen. Code, § 803(c)(11)).
10

which is misconduct in office” and that such conspiracies are therefore subject to the 

four-year statute of limitations provided for in section 801.5. She contends that whether a 

conspiracy comes within section 803(c) does not depend on the objective or target 

offense of the conspiracy; rather, the critical fact is whether the conspiracy itself involves 

misconduct in office. She differentiates between a conspiracy engaged in by public 

officials such as the one alleged in this case, where the conspiracy allegedly involves the 

misuse of public office to attain the goal of the conspiracy, and one engaged in by a 

person who happens to be a public official or employee but which does not involve the 

misuse of that person’s official capacity.

4

 As long as there is a nexus between the 

person’s official capacity and the conspiracy, she contends, it falls within the plain 

meaning of section 803(c)’s misconduct in office provision. She notes that the California 

Supreme Court has held, albeit in a different context, that “[a] crime committed in a 

defendant’s official capacity necessarily suffices to establish ‘willful or corrupt 

misconduct in office’ under Government Code section 3060.” (Stark v. Superior Court 

(2011) 52 Cal.4th 368, 410.) Accordingly, she contends, the phrase “an offense, ‘the 

basis of which is misconduct in office’” includes a criminal conspiracy involving the 

misuse of a public office or position, even if the objective of the conspiracy is not itself a 

crime based on misconduct in office.

 

4

 A conspiracy by a public official with others who are not public officials to sell 

contraband not using public resources at any stage of the conspiracy is one possible 

example of a conspiracy not subject to section 803(c), as the Attorney General conceives 

it. In contrast, a conspiracy by a public official in which he or she uses public resources 

in furtherance of the objective of selling contraband would fall within the Attorney 

General’s conception of section 803(c).
11

On its face, the Attorney General’s argument is plausible. Certainly, a public 

employee or official can engage in a conspiracy to commit a crime purely in his or her 

private capacity, and the Legislature could choose to apply a shorter statute of limitations 

for such a private act than for one which does involve the misuse of public office. 

However, even if the plain meaning of the statute allows for the Attorney General’s 

interpretation, as we discuss below, the California Supreme Court’s repeated holding that 

the statute of limitations for conspiracy is three years creates at least a latent ambiguity as 

to the Legislature’s intent with regard to the inclusion or exclusion of conspiracy in the 

provisions of sections 803(c) and 801.5. Where there is a latent ambiguity in a statute, a 

court may resort to extrinsic sources to ascertain the intent of the Legislature. (Coburn v. 

Sievert (2005) 133 Cal.App.4th 1483, 1495-1496.) And, as we will explain, the 

Legislature has indicated that it does intend to maintain the three-year statute of 

limitations for conspiracies to commit crimes which are either enumerated in section 

803(c) or which fall within the general categories described in section 803(c). Given 

these facts, we are not persuaded that the Legislature intended to exclude conspiracies to 

commit target offenses that are based on misconduct in office but at the same time to 

include conspiracies that are themselves based on misconduct in office, even though their 

target offenses are not crimes enumerated or described in section 803(c).
12

Analysis

We begin with Milstein, supra, 211 Cal.App.4th 1158, on which both parties rely.

5

 

The defendants contend that Milstein is dispositive on this issue, asserting that the court 

in that case held that conspiracy can never be subject to sections 801.5 and 803(c). This 

is not entirely correct. In Milstein, the court addressed whether conspiracy to commit 

fraud falls within the “material element of which is fraud” clause of section 803(c). 

(Milstein, at pp. 1164-1169.) The court held that it does not. In reaching that conclusion, 

the court held that because California courts have consistently recognized that conspiracy

is a separate and distinct crime from the offense that is the object of the conspiracy, the 

elements of the target offense are not elements of conspiracy. Accordingly, the court 

held that fraud is not a material element of conspiracy to commit fraud, and such a 

conspiracy is not subject to section 801.5. (Milstein, at pp. 1166-1168.)

The Milstein court went on to discuss the legislative history of section 801.5. The 

court noted, “[I]t is a well-established principle of statutory construction that the 

‘Legislature . . . is deemed to be aware of statutes and judicial decisions already in 

existence, and to have enacted or amended a statute in light thereof.’ [Citation.] At the 

 

5

 The Attorney General asserts that Milstein established a three-part analysis for 

the purpose of determining whether a conspiracy is subject to section 803(c), and that the 

final prong of the analysis is whether the charged conspiracy contains a material element 

of fraud. She asserts that Milstein holds that if the conspiracy does not contain a material 

element of fraud, it may be subject to sections 801.5 and 803(c). She contends that the 

trial court skipped this “critical third step” in determining whether the conspiracy alleged 

in this case falls within section 803(c). Milstein did not, however, create any type of test 

for determining whether conspiracies in general come within section 803(c). (Milstein,

supra, 211 Cal.App.4th at pp. 1164-1169.)
13

time section 801.5 was amended by the Legislature in 1995 to apply a four-year-afterdiscovery statute of limitations to any offense described in section 803, subdivision (c) 

(Stats. 1995, ch. 704, § 1, p. 5313), it had long been decided by the California Supreme 

Court that a three-year statute of limitations applies to criminal conspiracies commencing 

with the last overt act in furtherance of the conspiracy ([People v. Zamora (1976) 18 

Cal.3d 538, 548-549, 560; People v. Crosby (1962) 58 Cal.2d 713, 727-729]). However, 

the Legislature made no attempt to include conspiracy to commit any crime among the 

offenses subject to a four-year limitations period, either in 1995 when it expanded section 

801.5’s application to any offense described in section 803, subdivision (c) (Stats. 1995, 

ch. 704, § 1, p. 5313), or in 1998 when it expanded section 803, subdivision (c)’s list of 

enumerated offenses (Stats. 1998, ch. 944, § 2, p. 6941). As this court observed in 

[People v. Prevost (1998) 60 Cal.App.4th 1382], ‘[l]egislative silence in view of the case 

law such as [Davis v. Superior Court (1959) 175 Cal.App.2d 8], Crosby and Zamora, is 

instructive. It informs us that there is no reason to depart from the legal precedent which 

provides that criminal conspiracy has a three-year statute of limitations, irrespective of 

the underlying offense.’ [Citation.]” (Milstein, 211 Cal.App.4th at p. 1168, fn. omitted.) 

Thus, the court did not hold, as defendants assert, that the statute of limitations for 

conspiracy can never be other than three years. Rather, the court found no reason to 

conclude that the Legislature intended to apply a four-year statute of limitations to 

conspiracy based upon the statute of limitations that applies to the conspiracy’s target 

offense.
14

Milstein’s discussion of the history underlying sections 803(c) and 801.5 is 

relevant, however, and the history of sections 801.5 and 803(c) subsequent to Milstein 

demonstrates that (1) the Legislature understood Milstein to reflect existing law, i.e., that 

the crime of conspiracy is not subject to the extended limitations period provided for in 

section 801.5, and (2) that for financial reasons, the Legislature did not want to extend the 

statute of limitations for conspiracy to commit any of the offenses enumerated or 

described in section 803(c). In the 2013-2014 legislative session, Senate Bill No. 951 

was introduced to add section 801.7 to the Penal Code, to provide that “Prosecution for 

conspiracy to commit a felony pursuant to Section 182 shall be commenced within the 

time required for the commencement of prosecution for the underlying crime.” (Sen. Bill 

No. 951 (2013-2014 Reg. Sess.) § 2 <http://www.leginfo.ca.gov/pub/13-14/bill/sen/ 

sb_0951-1000/sb_951_bill_20140328_amended_sen_v97.pdf˃ [as of Oct. 14, 2015].) 

The bill stated, “It is the intent of the Legislature in enacting this act to abrogate People v. 

Milstein (2012) 211 Cal.App.4th 1158 to the extent that it holds that prosecution for the 

crime of conspiracy to commit a felony must commence within three years. This 

measure is not intended to undermine the proposition that the period of limitation for 

conspiracy commences to run with the last overt act committed in furtherance of the 

conspiracy.” (Sen. Bill No. 951 (2013-2014 Reg. Sess.) § 1 ˂http://www.leginfo.ca.gov/ 

pub/13-14/bill/sen/sb_0951-1000/sb_951_bill_20140328_amended_sen_v97.pdf˃ [as of 

Oct. 14, 2015].)
15

In its analysis of the bill, the Senate Committee on Public Safety noted that 

“existing law” sets the statute of limitations for conspiracy at three years, and that the 

statute of limitations does not vary even if the underlying crime is “one of those [crimes] 

which has its statute of limitation tolled until discovery and extended to four years.” 

(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 951 (2013-2014 Reg. Sess.), as 

amended Mar. 28, 2014, at pp. 9-10 ˂http://www.leginfo.ca.gov/pub/13-14/bill/sen/ 

sb_0951-1000/sb_951_cfa_20140421_113259_sen_comm.html˃ [as of Oct. 14, 2015].) 

The committee noted that Milstein reflects existing law and that proposed bill would

“change the law on which that case was based.” (Sen. Com. on Public Safety, Analysis 

of Sen. Bill No. 951, at p. 10.)

Senate Bill No. 915 did not become law because the Senate Appropriations 

Committee was concerned about the costs, potentially in the millions of dollars, that 

might result from altering existing law to extend the statute of limitations for conspiracy. 

(Sen. Appropriations Com., Fiscal Analysis of Sen. Bill No. 951 (2013-2014 Reg. Sess.), 

as amended Mar. 28, 2014, p. 1 ˂http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0951-

1000/sb_951_cfa_20140505_120825_sen_comm.html˃ [as of Oct. 14, 2015].) The 

committee noted, “By extending the statute of limitations for the crime of conspiracy 

from three years after the commission of the offense to match that of the underlying 

crime, this bill could result in substantial increases in the number of prosecutions, and 

consequently, convictions and commitments to state prison and county jail, for 

conspiracy to commit a felony offense that otherwise would have been time-barred by the 

three-year limit under existing law. In addition to the extension of time for those cases in 
16

which the existing three-year period for prosecution of conspiracy had not run, the 

provisions of this bill could potentially revive those cases in which the statute of 

limitations has already expired, potentially resulting in a substantial number of new 

prosecutions and subsequent convictions. As an example, prosecutions for conspiracy to 

commit murder, for which the three-year window may have passed years ago, could now 

be reopened for prosecution, as there is no statute of limitations for crimes punishable by 

death or life without the possibility of parole.” (Id. at p. 2.) The committee chair 

recommended referring the bill to the suspense file (id. at p. 1), and the committee 

ultimately voted to do so. (˂http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0951-

1000/sb_951_vote_20140505_000001_sen_comm.html˃ [as of Oct. 14, 2015].) No 

further action was taken on the bill.

A court may take judicial notice of the legislative history of a failed bill. (See 

Martin v. Szeto (2004) 32 Cal.4th 445, 451-452 & fn. 9.)6 Although the legislative 

history of a failed bill normally offers only limited guidance, if any, concerning the 

 

6

 Defendant Burum filed a motion asking us to take judicial notice of three 

documents: The Attorney General’s petition for review in Milstein, supra, 211

Cal.App.4th 1158; the Senate Appropriations Committee Fiscal Summary on Senate Bill 

No. 951; and a one-page document headed “California Legislative Information” showing 

the final status of Senate Bill No. 951. The Attorney General’s petition for review in

Milstein is not relevant to our resolution of the issue raised in this appeal, and we deny 

the motion as to it. We also deny the motion as to the latter two documents, in that the 

copies of the documents Burum provided do not show their source. 

On our own motion, we take judicial notice of the legislative history documents 

cited herein. (Evid. Code, § 452, subd. (c); see, generally, Kaufman & Broad 

Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29-39 

[discussing what portions of the legislative history file are proper subjects for judicial 

notice].)
17

Legislature’s original intent in enacting a related statute (id. at p. 451), in this case, the 

bill analysis concerning the proposed enactment of section 801.7 makes it very clear that 

in enacting section 801.5, the Legislature did not intend that a conspiracy to commit one 

or more of the offenses described in section 803(c) would be subject to the extended 

statute of limitations.

Among the offenses enumerated in section 803(c) are several which are clearly 

based upon misconduct in public office.7 As the legislative history discussed above 

reveals, the Legislature did not intend to apply the extended statute of limitation to 

conspiracy to commit those offenses or other offenses based on misconduct in office. 

 

7 These include Penal Code section 68 (executive or ministerial officer, employee, 

or appointee of the State of California, a county or city therein, or a political subdivision 

thereof, asking for, receiving, or agreeing to receive, any bribe, upon any agreement or 

understanding that his or her vote, opinion, or action upon any matter then pending, or 

that may be brought before him or her in his or her official capacity, shall be influenced 

thereby); Penal Code section 86 (public official asking for, receiving or agreeing to 

receive a bribe upon any understanding that his or her official vote, opinion, judgment, or 

action shall be influenced thereby); Penal Code section 93 (judicial officer, juror, referee, 

arbitrator, or umpire, and every person authorized by law to hear or determine any 

question or controversy asking for, receiving or agreeing to receive any bribe, upon any 

agreement or understanding that his or her vote, opinion, or decision upon any matters or 

question which is or may be brought before him or her for decision, shall be influenced 

thereby) (Pen. Code, § 803(c)(1)); Government Code section 1090 (public officers and 

employees barred from financial interest in any contract made by them in their official 

capacity); and Government Code section 27443 (conflicts of interest by public 

administrator, public guardian, or public conservator) (Pen. Code, § 803(c)(4)).

Nonenumerated offenses, “the basis of which is misconduct in office,” include 

several of those alleged as the target offenses in count 1: Penal Code section 165 (giving 

bribe to public official with intent to corruptly influence action by the official); Penal 

Code section 424 (embezzlement and falsification of accounts or misappropriation of 

public moneys by public officer); and arguably Government Code section 9054 (person 

obtaining or seeking to obtain thing of value based upon representation that he or she can 

or will influence a member of a legislative body in regard to any legislative matter).
18

We think it is unlikely that the Legislature did intend to apply the extended statute of

limitations to conspiracies to commit offenses which are not enumerated or described in 

section 803(c), even if those conspiracies could be characterized as having their basis in 

misconduct in office. In any event, we are not persuaded by the Attorney General’s 

arguments that the Legislature did so intend. Moreover, a statute of limitations must be 

strictly construed in favor of the accused. (People v. Zamora, supra, 18 Cal.3d at p. 574.) 

Accordingly, we conclude that sections 801.5 and 803(c) do not apply to conspiracy, 

regardless of the nature or objective of the conspiracy, and that prosecution of count 1 is 

time-barred.

DISPOSITION

The judgment of dismissal as to count 1 of the indictment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.