Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB058982. Arthur Harrison, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Sharon Rhodes, Bradley A. Weinreb, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Monty Lyle Gill, defendant, was placed on formal probation following a conviction for vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), 10 years after a motor vehicle collision which left the victim in a persistent vegetative state. The accident, arising from a high-speed race between defendant and a third party, occurred in 1996.
Defendant claims the prosecution and conviction were barred because a 1997 amendment to Penal Code section 194, which went into effect after the collision but before the victim died, changed an element (causation) of the crime of homicide for which prosecution was barred. We disagree and affirm.
BACKGROUND
Defendant and a second driver engaged in an illegal street race or speed contest on April 16, 1996. During the race, defendant lost control of his car and crossed into the oncoming lane of traffic, where he collided with the victim’s car. The victim sustained serious injuries which left her in a persistent vegetative state until she died in 2007. The cause of death was complications from blunt force head injuries sustained during the collision.
Defendant was charged with vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).) He waived jury trial, submitted on the preliminary hearing transcript—a “slow plea” (see People v. Sanchez (1995) 12 Cal.4th 1, 27-28, discussing Bunnell v. Superior Court (1975) 13 Cal.3d 592)—and was found guilty on July 27, 2007. On September 14, 2007, defendant was placed on probation. He appeals.
DISCUSSION
Effective January 1, 1997, Penal Code section 194 provided, “To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.” Prior to January 1, 1997, section 194 provided that “[t]o make the killing either murder or manslaughter, it is requisite that the party die within three years and a day after the stroke received or the cause of death administered.” The incident which caused the injuries which eventually caused the victim’s death occurred in April 1996, before the effective date of the amendment. But the death occurred in 2007, after the effective date of the amendment to Penal Code section 194.
Defendant argues the prosecution should have been dismissed because the “stroke received or cause of death” occurred before the effective date of the 1997 amendment. Defendant interprets the provisions of section 194 as changing the element of causation respecting the crime of manslaughter, and argues he is entitled to application of the terms of section 194 as they existed in 1996, at which time the statute created a nonrebuttable presumption that a death occurring more than three years and a day after the cause of death was administered was not a homicide. Defendant thus contends that application of the 1997 amendment to him violates ex post facto principles under both the state and federal Constitutions. We disagree.
There are four categories of laws that implicate ex post facto principles: (1) laws that make an action done before the passing of the law, and which was innocent when done, criminal; (2) laws that aggravate a crime, or make it greater than it was when committed; (3) laws that change the punishment, inflicting greater punishment than the law annexed to the crime, when it was committed; and (4) laws that alter the legal rules of evidence, receiving less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. (Calder v. Bull (1798) 3 U.S. (Dall.) 386, 390 (Calder).) The second category has been interpreted to apply to punishments inflicted, “where the party was not, by law, liable to any punishment.” (Id. at p. 389.)
Defendant likens the evidentiary aspect of the statutory amendment to that in Carmell v. Texas (2000) 529 U.S. 513. There, the United States Supreme Court held that an amendment eliminating a corroboration requirement to prove a sexual offense, altered the legal rules of evidence, and made conviction possible on less evidence, in violation of ex post facto principles. (Id. at pp. 530-531.) However, the amendment here does not permit a conviction on less evidence. To the contrary, it creates a rebuttable presumption that a death occurring more than three years and a day “after the stroke received or cause of death administered” was not criminal (Pen. Code, § 194), requiring proof of causation by the prosecution.
Defendant also likens the amendment here to the amended statute of limitations analyzed in Stogner v. California (2003) 539 U.S. 607. Stogner involved an amendment extending the statute of limitations for sex-related child abuse, permitting resurrection of otherwise time-barred criminal prosecutions. The United States Supreme Court found the amendment fell within Calder’s second category, insofar as it permitted punishment of a person “not then subject to that punishment.” (Id. at pp. 613-615.)
Section 194 is not a statute of limitations. If it were, it could not begin to run until the death of the victim, since “killing” is an essential element of manslaughter. (Pen. Code, § 192.) It is true that the death of the victim in a homicide case relates back to the unlawful act which occasioned it (People v. Celis (2006) 141 Cal.App.4th 466, 472), and that ordinarily the law in effect at that time is controlling. (See People v. Gill (1856) 6 Cal. 637, 638.) In Gill, the crime of murder in the second degree did not exist under California law at the time the fatal blow was stricken. However, between the time of the blow and the time of the death of the victim, the California Legislature enacted a bill which defined the offense of murder in the second degree. The defendant was prosecuted and convicted of murder in the second degree. The California Supreme Court reversed the conviction because the crime of which the defendant was convicted did not exist when the conduct occurred. (Ibid.)
The 1997 amendment to Penal Code section 194 does not define a new crime, increase punishment, resurrect otherwise time-barred criminal prosecutions, or require less evidence making it easier to convict. In its original form, the statute codified the common law rule designed to circumvent the inherent difficulty of trying to prove the cause of death of a person who was injured by the act of another and who did not die immediately after he was injured. Modern medicine has largely eliminated “the inherent difficulty.” Thus, the amendment to the codified presumption did not create an element of the offense itself; it was “a rule of evidence merely.” (People v. Snipe (1972) 25 Cal.App.3d 742, 746.) As such, the amendment was a procedural change, modifying a rule of evidence, and did not relate to the crime itself. (Ibid.)
At oral argument, defendant asked us to find that Snipe has been overruled by the holdings of Carmell and Stogner. However, as we have pointed out, those cases are distinguishable. None of the federal precedents cited by defendant relate to a statutory amendment altering a presumption, that went into effect before the victim died. Just as the victim’s death is a sine qua non of murder (People v. Celis, supra, 141 Cal.App.4th at p. 471), the offense of manslaughter is not completed until the victim dies. (People v. Rehman (1964) 62 Cal.2d 135, 139.) Defendant’s position requires us to find that a homicide prosecution was time barred before the victim died; we decline the invitation. The crime was completed in 2007, well after the effective date of the amendment to section 194.
Defendant acknowledges Penal Code section 194 affects an evidentiary presumption used to prove causation. A change making a nonrebuttable presumption a rebuttable one does not change the element of causation where it requires the prosecution to prove it. Further, it did not define previously noncriminal conduct as a crime, increase punishment for the conduct, or eliminate a defense to a criminal charge based on such conduct. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.) The amended statute did not violate ex post facto principles.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Hollenhorst, J.