No. 01-1757	
In The Supreme Court of The United States

OCTOBER TERM, 2002	
			
MARION R. STOGNER, Petitioner,

v.

STATE OF CALIFORNIA, Respondent.	
			
On Petition For Writ Of Certiorari To The
California Supreme Court	
			
Brief In Opposition To Petition
For Writ Of Certiorari	

	BILL LOCKYER
Attorney General of the State of California
ROBERT R. ANDERSON
Chief Assistant Attorney General
JO GRAVES
Senior Assistant Attorney General
KELLY E. LEBEL
Deputy Attorney General
JANET GAARD
Special Assistant Attorney General
Counsel of Record
   1300 I Street
   P.O. Box 944255
   Sacramento, CA 94244-2550
   Telephone: (916) 324-5477
   Fax: (916) 322-2630
Counsel for Respondent

Questions Presented

		1.	Did the California Supreme Court properly find that the California Legislature's revival of a time-barred criminal case, by a retroactive law enacted after the expiration of the previously-applicable statute of limitations, does not violate the Ex Post Facto Clause?
		2.	Did the California Supreme Court properly find that the California Legislature's revival of a time-barred criminal case, by a retroactive law enacted after the expiration of the statute of limitations, did not violate the Due Process Clause?

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2002	
No. 01-1757	
			
MARION R. STOGNER, Petitioner,

v.

STATE OF CALIFORNIA, Respondent.	

		

OPINION BELOW

		The opinion of the California Court of Appeal was filed on November 21, 2001.  The appellate court rejected petitioner’s ex post facto and due process arguments in the unpublished portion of the opinion, all of which is attached to the petition as Appendix A.  The California Supreme Court’s order denying review was filed on February 27, 2002.  It is attached to the petition as Appendix B.

JURISDICTION

		The decision of the California Supreme Court as to which petitioner seeks review was filed on February 27, 2002.  The petition for writ of certiorari appears to have been timely filed on May 28, 2002, within 90 days of that decision.  (Sup. Ct. Rule 13.3.)
		This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTION AND STATUTES

		United States Constitution, Article I, Section 10, Clause 1:
"No state shall . . . pass any . . . ex post facto Law . . . ."

United States Constitution, Amendment XIV, Section 1:
". . . No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . ."

California Penal Code section 803(g).

STATEMENT OF THE CASE

		In April 1998, petitioner was charged with two counts of committing lewd or lascivious conduct with a child under the age of 14 years in violation of California Penal Code section 288(a).  Count One alleged lewd conduct against Jane Doe I between January 1, 1955 and September 30, 1964.  Count two alleged lewd conduct against Jane Doe II between  January 1, 1967 and September 27, 1973.  Because the normally applicable statute of limitations had expired, the prosecution was commenced pursuant to Penal Code section 803(g), which provides that a complaint alleging the commission of a specified sex offense against a child may be filed within one year of the time the victim reports the crime to a law enforcement agency, provided the act involved substantial sexual conduct and there is independent evidence that clearly and convincingly corroborates the victim’s allegation.  (Pet. App. C.)
		Petitioner demurred on the ground the statute of limitations had expired and Penal Code section 803(g) violated the ex post facto provisions of the state and federal constitutions. The Superior Court granted the demurrer. The prosecution appealed and on October 14, 1999, the appellate court reversed the lower court’s order denying the motion to reinstate the complaint.  The Court held that it was bound by the California Supreme Court’s decision in People v. Frazer, 21 Cal.4th 737, 763 (1999) which held that section 803(g) does not violate ex post facto.  (Pet. App. D.)
		Petitioner filed a petition for writ of certiorari in this Court, alleging that Frazer was wrongly decided.  This Court denied that petition on October 2, 2000. (Pet. App. E.)
		The complaint was reinstated but subsequently dismissed on motion of the prosecutor when he filed an indictment on March 14, 2001.  The indictment charged petitioner with the same crimes as before and commenced the prosecution pursuant to Penal Code section 803(g).  (Pet. App. A at 35; Pet. App. F.)
		Petitioner demurred to the indictment.  The trial court overruled the demurrer, and petitioner sought review in the state court of appeal.  Citing People v. Stogner, 21 Cal.4th 737.  That court held, in an unpublished portion of its opinion, that retroactive application of Penal Code section 803(g) does not violate ex post facto principles or deny a defendant due process of law.  (Resp. App. A.)  The California Supreme Court denied review.  (Pet. App. B.)

REASONS FOR DENYING THE WRIT
		ARGUMENT

I.	THE CALIFORNIA SUPREME COURT PROPERLY INTERPRETED COLLINS V. YOUNGBLOOD, 497 U.S. 37 (1990) TO FIND PETITIONER'S PROSECUTION DID NOT VIOLATE EX POST FACTO PRINCIPLES 

		Petitioner argued below that retroactive application of an extended statute of limitations, so as to revive an expired cause of action in a criminal case, violates the federal Ex Post Facto Clause.  In People v. Frazer, 21 Cal. 4th 737 (1999), the California Supreme Court held otherwise, finding the claim meritless under the formula prescribed in Collins v. Youngblood, 497 U.S. 37 (1990) for determining when penal legislation triggers ex post facto protection.   Frazer, 21 Cal.4th at 754-65.   The court of appeal in the instant case relied upon Frazer to reject petitioner’s claim; the California Supreme Court summarily denied review.  (Pet. App. A & B.)
		Petitioner asserts that section 803(g) violates the federal proscription against ex post facto laws articulated in Calder v. Bull, 3 U.S. 386 (1798).  (Pet. at 13-22.)  Respondent respectfully disagrees.
		The ex post facto clause prohibits four categories of laws, first articulated by Justice Chase in 1798: (1) a law that makes criminal and punishes an action done before the passing of the law that was innocent when done; (2) a law that aggravates a crime or makes it greater than it was when it was committed; (3) a law that changes the punishment for a crime and inflicts greater punishment than provided at the time of commission, and (4) a law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of commission of the offense in order to convict the offender.  Calder v. Bull, 3 U.S. at 390.  A review of each of these categories shows that petitioner’s ex post facto challenge is unfounded.

A.	Calder Category One  

		Petitioner seems to argue that California Penal Code section 803(g)’s retroactive revival of the statute of limitations  violates the ex post facto clause because it eliminates a defense--the opportunity to plead the previously expired  limitations period as a bar to his prosecution.  (Pet. at 13.) Pleading an expired limitations period is a defense in the general sense it is a defensive measure.  However, as a bar to prosecution, it is distinguishable from a pure defense which defeats one or more of the elements of the crime. Only statutes withdrawing defenses related to the elements of the definition of the crime, or to matters which a defendant might plead as justification or excuse are prohibited by the ex post facto clause. Collins v. Youngblood, 497 U.S. 37, 50 (1990).

		In Youngblood, this Court addressed a sex offender's claim that a new statute permitting an appellate court to reform an otherwise improper verdict, rather than requiring a new trial, could not be applied retroactively.  The Court of Appeals had held he was entitled to relief, relying on Thompson v. Utah, 170 U.S. 343 (1898) in which this Court had held that procedural statutes cannot be retroactively applied unless they "‘leave untouched all the substantial protections with which existing law surrounds the person accused of crime.’"  Id. at 352, quoted in Youngblood, 497 U.S. at 40.
		In reversing the Court of Appeals, this Court  endorsed its earlier formulation of the law in Calder v. Bull, 3 U.S. 386, and Beazell v. Ohio, 269 U.S. 167 (1925), as "faithful to our best knowledge of the original understanding" of the Ex Post Facto Clause.  Youngblood, 497 U.S. at 43. 
		In Youngblood, this Court overruled two prior decisions that misconstrued the scope of the ex post facto clause.  In Kring v. Missouri, 107 U.S. 221 (1883), the Court had stated that the Calder list was non-exclusive, and it defined an ex post facto law to include, also, one that "in relation to the offence or its consequences, alters the situation of a party to his disadvantage."  In Thompson v. Utah, 170 U.S. 343, the Court had stated that a law was ex post facto if, after commission of the crime, it deprived a defendant of a "substantial right involved in his liberty."
		In Kring, the defendant had pleaded guilty to second-degree murder, pursuant to a plea agreement.  After reversal of his conviction, because of an unlawful sentence, the state tried and convicted him of first-degree murder.  At the time the crime was committed, Missouri law had provided that a plea of guilty to second-degree murder constituted an acquittal of first degree murder.  This Court held the state's abrogation of the implied-acquittal rule after the crime was committed, but before Kring entered his plea, violated the Ex Post Facto Clause, because, in denying Kring the benefit of an implied acquittal to which he would previously have been entitled, the change in the law "altered the situation to his disadvantage."  107 U.S. at 235; see Youngblood, 497 U.S. at 47-49.
		In Youngblood, the Court stated it could reconcile Kring with the definition of an ex post fact law it adopted if it were to say the change in state law had deprived Kring of a "defense" to which he previously had been entitled.  497 U.S. at 50.  The Court explained, however, that by "defense" it means something linked to the "legal definition of the offense."  Id.  Thus, for example, "[a] law that abolishes an affirmative defense of justification or excuse contravenes Art. I, § 10, because it expands the scope of a criminal prohibition after the act is done."  Id. at 49.  The Court continued,

The "defense" available to Kring under earlier Missouri law was not one related to the definition of the crime, but was based on the law regulating the effect of guilty pleas.  Missouri had not changed any of the elements of the crime of murder, or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge. . . .  The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories, but any change which "alters the situation of a party of his disadvantage."  We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution.

Id. at 50.  Accordingly, the Court expressly overruled Kring.  Id.
		In Thompson v. Utah, 170 U.S. 343, the defendant was initially convicted by a 12-person jury.  A new trial was granted, but, in the meantime, Utah's law had changed, and Thompson was tried by an eight-person jury.  The Court had reversed the conviction because retrial by a smaller panel had "materially alter[ed] the situation to Thompson's disadvantage."  Id. at 352-53.  The Court in Youngblood expressly overruled Thompson as well, stating that, while the right to a jury trial "is obviously a `substantial' one, . . .  it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause."  Youngblood, 497 U.S. at 50-52.
		As an example of a case in which a defense could not be denied without violating ex post facto principles, the Court in Youngblood cited United States v. Hall, 26 F.Cas. 84 (D. Pa. 1809).  There, a vessel owner was sued by the United States for forfeiture of an embargo bond obliging him to deliver certain cargo.  As a legal excuse, the defendant argued a severe storm had disabled his vessel and forced him to land in Puerto Rico, where he was forced by the Puerto Rican government to sell the cargo.  Youngblood, 497 U.S. at 49.  The Court explained,

[A]ccording to the law in effect at the time Hall forfeited the cargo, an "unavoidable accident" was an affirmative defense to a charge of failing to deliver cargo. . . . [A] subsequent law imposing an additional requirement for the affirmative defense——that the vessel or cargo actually be lost at sea as a result of the unavoidable accident——would deprive Hall of a defense of his actions available at the time he sold the cargo and thus be an invalid ex post facto law.
	This analysis is consistent with the Beazell framework.  A law that abolishes an affirmative defense of justification or excuse contravenes Art. I, § 10, because it expands the scope of a criminal prohibition after the act is done. . . .

Id., original emphasis.
		Applying Youngblood to this case, revival of the  limitations period neither withdraws a defense related to the definition of the crime nor abolishes an affirmative defense of justification or excuse.  Plainly, revival of the limitations period does not withdraw a defense related to the crime of committing lewd or lascivious acts with a child under 14.  However, petitioner alleges that the statute of limitations operates as a form of legislatively enacted excuse.  (Pet. at 13.)  Unlike justification or excuse, the statute of limitations does not put into issue the existence of any of the essential elements constituting the defendant’s guilt of the charged offense.  Rather, by pleading the statute of limitations, a defendant “simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely a statute of repose or limitation, he is not now subject to punishment for the crime which he admits having committed.” Osborn v. State, 194 P.2d 176, 182 (Okla. 1948).  
		Thus, the California Supreme Court properly interpreted Youngblood to find petitioner’s prosecution does not violate ex post facto principles.

B.	Calder Category Three 

		Petitioner further asserts that the revival of the limitations period  increases the punishment for a criminal act after the act was committed because the state may now punish him, whereas previously he could not be punished.  (Pet. at  20.)  Rather than looking at the Ex Post Facto Clause prohibitions as discreet considerations, petitioner appears to  graft the “defense” prong onto the “punishment” prong. The defense prong, however, has no place in an analysis of the punishment prong.  As to the latter, the proper question is simply whether the punishment upon conviction of the charged crimes is greater than that proscribed for those crimes at the time they were committed.  
		One of the primary purposes of the Ex Post Facto Clause is to prevent unforeseeable punishment.  At the time the charged acts were alleged to have taken place, the punishment for the crime with which petitioner was charged was a term of one year to life (Stats. 1937, ch. 545, § 1).  Hence, if petitioner is convicted, his punishment may not be greater or more burdensome than that which he reasonably should have foreseen at the time he committed the acts.  Thus, if petitioner’s punishment is not greater than a term of one year to life for each conviction, there will be no ex post facto violation.  At this time, however, petitioner’s claim is premature.

C.	Calder Category Four 

		Shortly after the state Supreme Court decided Frazer, this Court issued a decision in Carmell v. Texas, 529  U.S. 513 (2000), clarifying the scope of the Ex Post Facto Clause.  This Court reiterated that, in addition to the three categories of laws principally discussed in Youngblood, the ex post facto clause also prohibits retroactive laws that alter the legal rules of evidence, and receive less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.  In Carmell this Court explained, Youngblood had not “cast out th[is] fourth category,” which had been articulated by Justice Chase in Calder.  Carmell, supra, 529 U.S. at 537.  Rather, Youngblood “eliminated a doctrinal hitch that had developed in [the] cases, which purported to define the scope of the Clause along an axis distinguishing between laws involving ‘substantial protections’ and those that are merely ‘procedural,’” and it “held that it was a mistake to stray beyond Calder’s four categories, not that the fourth category was itself mistaken.”  Carmell, supra, 529 U.S. at 539, original emphasis.
		Significantly, while Carmell reinforced the continued viability of the fourth prong of the ex post facto clause, it did nothing to undermine the integrity of the discussion in Youngblood as it related to the other three prongs — and principally the “defense” prong — of the ex post facto clause.  Youngblood remains a clear and unambiguous statement of the law as to the scope of the “defense” prong of the ex post facto clause, and the California Supreme Court properly articulated and applied that law in Frazer. 
		Petitioner argues that revival of the statute of limitations  violates the fourth prong of the Ex Post Facto Clause.  (Pet. at 20-22.)  However, revival of the statute of limitations in petitioner’s case did not alter the amount or kind of evidence necessary to establish his guilt.  
		In Carmell, this Court examined a Texas statute that was amended to authorize conviction of certain sexual offenses based on a victim’s testimony alone, whereas previously the law required both the victim’s testimony and corroborating evidence.  The amended statute was relied upon to convict the defendant of some sexual offenses on the victim’s testimony alone, even though the offenses had been committed before the amendment’s effective date.  Id. at  530-31. The Texas statute fell squarely within the fourth Calder category because it “changed the quantum of evidence necessary to sustain a conviction.”  Id. at  530.
		In contrast, Penal Code section 803(g) merely addresses when the state may prosecute certain criminal charges.  It does not alter the elements of these offenses, or their punishment, or the amount or type of evidence required in order to convict the offender.  See Calder, 3 U.S. (3 Dall.) at 390 (opn. of Chase, J.)  Indeed, unlike an ex post facto law, in which “the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction” (Carmell, 529 U. S. at 533), Penal Code section 803(g) actually increases the procedural burdens on the government.  Before a prosecution brought under section 803(g) can proceed, the government must show the offenses involved “substantial sexual conduct” and must produce “independent evidence that clearly and convincingly corroborates the victim’s allegation.”  Cal. Pen. Code § 803(g)(2)(B).
		In sum, petitioner’s prosecution under section 803(g) does not violate the ex post facto clause and petitioner’s claim (Pet. at 21) that this Court’s analysis in Carmell undermines the legitimacy of Frazer is unavailing.
I.	
ITHE CALIFORNIA SUPREME COURT PROPERLY APPLIED DECISIONS OF THIS COURT TO FIND PETITIONER'S PROSECUTION DID NOT VIOLATE DUE PROCESS PRINCIPLES 

		Petitioner argued below that retroactive application of California Penal Code section 803(g), so as to revive an expired cause of action, is prohibited by the federal Due Process Clause.   In People v. Frazer, 21 Cal. 4th 737, the California Supreme Court rejected an identical substantive due process challenge, and it found the defendant’s  procedural due process claim not ripe for adjudication.   Frazer, 21 Cal.4th at 765-75.  
		Petitioner argues legislative revival of a time-barred criminal action is fundamentally unfair.  (Pet. at 22-30.) Respondent disagrees.  Moreover, the California Supreme Court’s decision in Frazer does not conflict with decisions of this Court and requires no resolution by this Court.
  		The Due Process Clause is the source of three different kinds of constitutional protection.  First, "it incorporates specific protections defined in the Bill of Rights . . . .  Second, it contains a substantive component, sometimes referred to as `substantive due process,' which bars certain arbitrary government actions regardless of the procedures used to implement them.  Third, it is a guarantee of fair procedure, sometimes referred to as `procedural due process,' which applies whenever the state seeks to deprive a person of life, liberty, or property."  Daniels v. Williams, 474 U.S. 327, 337 (1986).
		This Court has "always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended."  Collins v. Harker Heights, 503 U.S. 115 (1992); Albright v. Oliver, 510 U.S. 266, 272 (1994).  When a particular constitutional amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims."  Albright v. Oliver, 510 U.S. at 813, quoting Graham v. Connor, 490 U.S. 386, 395 (1989).
		This principle is applicable in the instant case.  The Framers of the Constitution considered the matter of retroactive changes in the law, and they drafted the Ex Post Facto Clause of Article I, section 10, of the United States Constitution, to address it.  That clause, which declares that "[n]o bill of attainder or ex post facto law shall be passed," provides an "explicit textual source of constitutional protection" against retroactive legislative changes in criminal law, and it is not to be supplemented through the device of "substantive due process."  See People v. Frazer, 21 Cal. 4th at 772 n.31.
		Moreover, this Court consistently has exhibited a reluctance to use the Due Process Clause to interfere with a state's ability to control its criminal procedure.  See Medina v. California, 505 U.S. 437, 445-46 (1992); Spencer v. Texas, 385 U.S. 554 (1967); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).  In Dowling v. United States, 493 U.S. 342 (1990), the Court declared that "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation."  Id. at 352.  Accordingly, the Court explained, it had defined very narrowly the category of infractions that violate the "fundamental fairness" component of the Due Process Clause.  Id.  Quoting United States v. Lovasco, 431 U.S. at 790, the Court stated that an action will be considered fundamentally unfair if it "violates those `fundamental conceptions of justice which lie at the base of our civil and political institutions,' and which define `the community sense of fair play and decency.'"  Dowling v. United States, 493 U.S. at 353, citations omitted.
		In Medina v. California, 505 U.S. 437, the Court articulated the proper analytical framework for determining the validity of a state criminal procedure under the Due Process Clause.  First, a court looks to "historical practice," which is "probative of whether a procedural rule can be characterized as fundamental."  Id. at 446, citing Patterson v. New York, 432 U.S. 197, 202 (1977).  In Medina, the Court's historical analysis demonstrated reliance on the common law and on caselaw through the turn of this century.  Id.; see also Herrera v. Collins, 506 U.S. 390 (1993).  Contemporary practice, the Court noted, is "of limited relevance to the due process inquiry."  Medina v. California, 505 U.S. at 447.
		At common law, there was no limitation of time for prosecuting a crime.  21 Am.Jur.2d, Criminal Law, § 223, at 408.  Then, as now, in the absence of a statutory limitation, a prosecution could be brought at any time following the commission of an offense.  See 1 Wharton's Criminal Law, § 92, at 628 (15th ed. 1993); Black, Statutes of Limitation and the Ex Post Facto Clause, 26 Kentucky L.J. 41 (1937).  By Blackstone's time, however, statutes of limitations were common in criminal actions and could be pleaded in bar to a prosecution brought outside the period provided.  See The American Students' Blackstone at 1007 (Chase's Blackstone 1884).
		Sometime prior to 1881, "Mr. Bishop in his treatise on Statutory Crimes, section 266" suggested that "a criminal statute of limitations simply withholds from the courts jurisdiction over the offence after the specified period, and it is competent for the legislature to revive the old jurisdiction or create a new one, when the prosecution may proceed."  Moore v. State, 43 N.J.L. 203, 213 (E & A 1881).  To respondent's knowledge, it was not until 1860 that a court in this country first held a statute of limitations could not operate to revive offenses that were barred at the time of its enactment.  State v. Sneed, 25 Tex. Supp. at 67; see 21 Am.Jur.2d, Criminal Law, § 224, at 411 and n.48, citing Moore v. State, 43 N.J.L. 203; People v. Buckner, 281 Ill. 340, 117 N.E. 1023 (1917), and People ex rel. Reibman v. Warden of County Jail, 242 App. Div. 282, 275 N.Y.S. 59 (1934).  
		Since that case in 1860, however, few cases have actually held that the revival of a prosecution after the expiration of a statute of limitations is prohibited by the constitution.  Rather, by far the majority of cases have involved the extension of a statute of limitations, and any discussion about the revival of a prosecution was merely dicta.  Thus, it has only been relatively recently that courts have held a state may not revive a right of prosecution after the expiration of a statute of limitations, and those courts have been few in number.  See People v. Frazer, 21 Cal. 4th at 763-64 and n.5.
		Moreover, the courts that have held the revival of a prosecution was unconstitutional did so by finding a violation of the Ex Post Facto Clause, not the Due Process Clause.  Likewise, those cases that gratuitously remarked upon the constitutionality of the revival of a right of prosecution after the expiration of a limitations period based their comments upon the Ex Post Facto Clause.  See People v. Frazer, 21 Cal. 4th at 763-64 and n.5.
		There is, thus, no settled, long-standing tradition with respect to the revival of a right of prosecution after the expiration of a statute of limitations.  Hence, "historical practice" does not provide a basis for finding that the shelter provided by a statute of limitations is a fundamental right, so that a legislature is prohibited, as a matter of due process of law, from amending it to restore a state's right to prosecute a criminal defendant.
		If, however, there is no historical basis for concluding the state procedure violates due process, Medina v. California, 505 U.S. 437, requires a court to make a second inquiry.  Here, the court inquires "whether the rule transgresses any recognized principle of fundamental fairness in operation."  Id. at 448, citing Dowling v. United States, 493 U.S. at 352.
		The most well-known expression of the statement that reviving an expired cause of action is fundamentally unfair is Judge Learned Hand's statement in Falter v. United States, 23 F.2d 420 (2d Cir. 1928).  It is important, however, to read that statement carefully.
		In Falter, the defendants argued the extension of a statute of limitations, prior to the expiration of the statute, constituted an ex post facto law.  23 F.2d at 425.  Judge Hand rejected their claim, explaining,

	Perhaps they would be right, if the earlier statute had once run in their favor.  But the period had not run, and the argument is, and must be, that any change after the commission of the crime, and while the time is running, is within the constitutional prohibition. . . .
	In Mallett v. North Carolina, 181 U.S. 589 [] (1901), it was held that the allowance of an appeal to the prosecution was constitutional, and Beazell v. Ohio, 269 U.S. 167 [], laid it down generally that the question was one of degree and depended upon whether the result was "harsh and oppressive."  Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life.  The question turns upon how much violence is done to our instinctive feelings of justice and fair play.  For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest.  But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the sta[t]e forgives it.

Falter v. United States, 23 F.2d at 425-26.
		First, it is important to recognize the victims in Falter were not sexually abused children who, by their very nature, differ from the victims of other crimes. Moreover, it is significant that Judge Hand's comment was made in the context of an ex post facto analysis.  It was the Ex Post Facto Clause, and not the Due Process Clause, that was alleged by the Falter defendants to have been violated by the amendment to the statute of limitations, 23 F.2d at 425, and it was to that allegation that Judge Hand responded.  Indeed, both cases he cited, Mallett and Beazell, involved claims based on the Ex Post Facto Clause; neither made mention of the Due Process Clause.  Additionally, the phrase "harsh and oppressive," which Judge Hand quoted from Beazell, did not support his subsequent statement that reviving a prosecution was "unfair and dishonest."  In Beazell, the Supreme Court had stated that "laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive . . . ."  269 U.S. at 170.  It is for that reason that laws in violation of the Ex Post Facto Clause are proscribed by the Constitution.  As discussed previously, however, a law reviving an expired prosecution does not fall within that category.
		Judge Hand's statement about the unfairness of reviving a prosecution has been accepted by subsequent courts with little or no analysis or question.  But it is not a sufficient basis upon which to find the application of Penal Code section 803(g), to revive a prosecution "transgresses any recognized principle of fundamental fairness in operation."  Medina v. California, 505 U.S. at 448.
		Fairness, as guaranteed by due process, "is a relative, not an absolute concept.  It is fairness with reference to particular conditions or particular results."  Snyder v. Massachusetts, 291 U.S. at 116.  Given the unique nature of child molestation cases, retroactive application of California Penal Code section 803(g) does not, as a matter of law, violate fundamental fairness.  As the state court recognized, in a particular case, retroactive application of the statute may offend due process if the defendant is able to make a factual showing sufficient to prove retroactive application affects the accuracy or fairness of a determination of his guilt or that it obviates or avoids procedures that are necessary for preventing miscarriages of justice.  People v. Frazer, 21 Cal. 4th at 773-75, discussing United States v. Lovasco, 431 U.S. at 796.  That question, however, is not presented in this case.  See People v. Frazer, 21 Cal. 4th at 775.People v. Frazer, 21 Cal. 4th at 773.  Thus, retroactive application of Penal Code section 803(g) does not violate due process.

CONCLUSION

		For the foregoing reasons, respondent respectfully urges this Court to deny the petition for writ of certiorari 

Dated:  March 10, 2003

   Respectfully submitted,

   BILL LOCKYER
   Attorney General of the State of California
   ROBERT R. ANDERSON
   Chief Assistant Attorney General
   JO GRAVES
   Senior Assistant Attorney General
   KELLY E. LEBEL
   Deputy Attorney General   

   JANET GAARD
   Special Assistant Attorney General
   Counsel of Record
   Counsel for Respondent	
KEL:JG: adr
SF2001MW0034

TABLE OF CONTENTS

Page

OPINION BELOW	1

JURISDICTION	1

CONSTITUTION AND STATUTES	2

STATEMENT OF THE CASE	2

REASONS FOR DENYING THE WRIT	4

ARGUMENT	4

	I.	THE CALIFORNIA SUPREME COURT PROPERLY INTERPRETED COLLINS V. YOUNGBLOOD, 497 U.S. 37 (1990) TO FIND PETITIONER'S PROSECUTION DID NOT VIOLATE EX POST FACTO PRINCIPLES	4

A.	Calder Category One 	5

B.	Calder Category Three	9

C.	Calder Category Four	9

	II.	THE CALIFORNIA SUPREME COURT PROPERLY APPLIED DECISIONS OF THIS COURT TO FIND PETITIONER'S PROSECUTION DID NOT VIOLATE DUE PROCESS PRINCIPLES	12

CONCLUSION	22

TABLE OF AUTHORITIES

Page

Cases

Calder v. Bull, 
3 U.S. 386 (1798)	4, 5, 10

Carmell v. Texas, 
529  U.S. 513 (2000)	9‑11

Chase Securities Corp. v. Donaldson, 
325 U.S. 304 (1945)	20

Christmas v. State, 
700 So.2d 262, 267-68 (Miss. 1997)	11

Collins v. Youngblood, 
497 U.S. 37 (1990)	4, passim

Osborn v. State, 
194 P.2d 176, 182 (Okla. 1948)	8

People v. District Court, 
834 P.2d 181, 200 (1992)	11

People v. Frazer, 
21 Cal.4th 737, 763 (1999)	3, passim

State v. Cookman, 
324 Ore. 19, 920 P.2d 1086 (1996)	11

State v. Crawley, 
96 Ohio App.3d 149, 155 (1994)	11

United States v. Brechtel, 
997 F.2d 1108, 1113 & n. 13 (5th Cir. 1993)	11

United States v. Knipp, 
963 F.2d 839, 843-44 (6th Cir. 1992)	11

United States v. Morgan, 
845 F.Supp. 934, 943 (D. Conn.1994)	11

William Danzer & Co. v. Gulf & S.I.R.., Co., 
268 U.S. 633 (1925)	19

Constitutional Provisions

United States Constitution
   Amendment XIV, Section 1	2
   Article I, Section 10, Clause 1	2

Statutes

28 U.S.C. § 1257(a)	2

California Penal Code
   § 288(a)	2
   § 803(g)	2, passim
   § 803(g)(2)(B)	11

Other Authorities