Sometimes. Misdemeanor petty theft generally must be charged within one year of the act, and most felony-level offenses within three years of the act. But for offenses covered by California’s discovery rule, which include fraud-based felonies and grand theft, prosecutors have four years from when the crime was discovered or should have been discovered, or four years from when it was completed if that is later, so charges can come years after the conduct.

Start with the maximum punishment the law allows

An offense punishable by state prison or by a felony term under Penal Code section 1170(h) generally must be prosecuted within three years after it is committed (Penal Code section 801). An offense that cannot be punished that way generally must be prosecuted within one year (Penal Code section 802(a)). Theft of property worth $950 or less is petty theft and, for most people, a misdemeanor (Penal Code section 490.2(a)), so it usually falls under the one-year rule.

For this purpose, an offense is treated as carrying the maximum punishment its statute prescribes, whatever punishment is actually sought or imposed, and enhancements are not counted (Penal Code section 805(a)). Most grand theft can be punished by county jail or by a felony term under section 1170(h) (Penal Code section 489(c)(1)), so it is a felony-level offense for deadline purposes even if the prosecutor files it as a misdemeanor.

Prior theft convictions can complicate this. Under Penal Code section 666.1, added by Proposition 36, petty theft or shoplifting by someone with two or more listed prior convictions can be punished under section 1170(h), and section 490.2(a) has its own exception for certain serious prior convictions. If either could apply to you, have a lawyer check which deadline governs.

Why grand theft and fraud are different: the discovery rule

For a felony-level offense, meaning one that can be punished in state prison or with a section 1170(h) term, that has fraud or breach of a fiduciary obligation as a material element, that is theft or embezzlement upon an elder or dependent adult, or that is based on misconduct in office by a public officer, employee, or appointee, the limitations period does not start until the offense is discovered (Penal Code section 803(c)). The statute’s list of covered offenses includes “grand theft of any type,” forgery, felony insurance fraud, and felony welfare or Medi-Cal fraud (section 803(c)(1), (5), (6)).

For those offenses, prosecution must begin within four years after discovery of the offense or within four years after its completion, whichever is later (Penal Code section 801.5). When an offense continues over a period of time, such as a series of payments, the period usually does not begin until the last act (CALCRIM No. 3410, Related Issues).

What counts as discovery

Discovery does not wait until every detail is known. Under CALCRIM No. 3410, a crime should have been discovered when the victim or a law enforcement officer was aware of facts that would have alerted a reasonably diligent person, or officer, in the same circumstances that a crime may have been committed. The instruction’s bench notes add that courts have imposed a due diligence requirement on investigative efforts.

Who has to prove the timing

At trial, if the defense relies on the statute of limitations and substantial evidence supports it, the court must instruct the jury with CALCRIM No. 3410. Under that instruction, the prosecution must show by a preponderance of the evidence (more likely than not) that the case was started within the required time; if the prosecution does not meet that burden, the jury must find the defendant not guilty of that charge. Before trial the burden is different: on a motion to dismiss, the defendant must show that the time limit has run as a matter of law, and the motion succeeds only if there is no triable issue of fact (CALCRIM No. 3410, Related Issues).

Other rules that change the deadline

  • When prosecution starts. Prosecution counts as commenced when any of these happens: an indictment or information is filed, a complaint charging a misdemeanor or infraction is filed, the accused is arraigned on a felony complaint, or an arrest or bench warrant issues that identifies the accused as specifically as a charging document must (Penal Code section 804).
  • Time out of California. Time spent outside California can be excluded from the count, up to a maximum of three years, if the accused was out of the state when or after the offense occurred (Penal Code section 803(d)).
  • An earlier case. If you were already prosecuted in a California court for the same conduct, the time that case was pending is excluded (Penal Code section 803(b)).
  • A lesser offense keeps its own deadline. An offense necessarily included in a greater charge, such as petty theft within grand theft, keeps its own time limit (Penal Code section 805(b)). The CALCRIM No. 3410 bench notes say that when a felony charge ends in a conviction for a necessarily included misdemeanor, the one-year period applies.

What to check in your situation

  • Identify the offense the conduct fits and its maximum punishment: misdemeanor petty theft generally follows the one-year rule, while grand theft, including grand theft by embezzlement, or a felony fraud offense can follow the four-year discovery rule.
  • Pin down when the loss was discovered, or should have been discovered by a reasonably diligent person, and when the conduct ended, not just when it began.
  • Find out when prosecution was actually commenced, and compare that date with the discovery and completion dates.
  • Note any time spent outside California and any earlier case over the same conduct.
  • Do not assume a single number (“it’s been three years, so I’m safe”) without knowing which of these rules applies to the specific charge.

Next steps

Whether a theft or fraud case is still within the time prosecutors have to file often turns on details: how the offense is classified, when the loss was discovered, and what the court file shows. Attorneys at the Law Offices of David S. Chesley can walk through those specifics with you and lay out your exposure. Call (800) 755-5174 to discuss your case.