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Name: People v. Milstein
Case #: B233589
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 12/12/2012

The three-year statute of limitations in Penal Code section 801 applies to conspiracy to defraud by false pretenses or false promises (Pen. Code, § 182, subd. (a)(4)). Appellant, a former attorney, was charged with a number of offenses, including a violation of section 182, subdivision (a)(4), in connection with an allegedly fraudulent legal service entitled “early release” that he offered to prison and jail inmates. The trial court denied appellant’s motion to dismiss the conspiracy count as time-barred under the statute of limitations. Appellant subsequently pleaded no contest to the this count. Reversed. On appeal, the parties agreed that appellant’s prosecution was commenced less than four years but more than three years after the last act in furtherance of the conspiracy occurred. Applying principles of statutory construction and based on the distinct nature of the crime of conspiracy, the Court of Appeal agreed with appellant that the statute of limitations on the conspiracy to defraud count was three years under section 801, not four years under Penal Code sections 801.5 and 803, subdivision (c). California courts have consistently held that conspiracy is a separate and distinct crime from the offense that is the object of the conspiracy and is governed by a separate and distinct statute of limitations. The three-year statute of limitations has long been applied to the offense of criminal conspiracy. The fact that section 801.5, in conjunction with section 803, subdivision (c), provides a four-year statute of limitations for an offense that has fraud or breach of a fiduciary duty as a material element does not alter this conclusion. Even if intent to defraud is a material element of, or the core purpose behind, a criminal conspiracy, the statute of limitations is still governed by section 801. Because the prosecution of the conspiracy count was commenced more than three years after the last overt act in furtherance of the conspiracy, it was barred.