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When is a Criminal Statute of Limitations Tolled?
Tolling of a statute of limitations is a common issue in embezzlement cases, as the victim may not discover the theft for a while after it takes place because the suspect was trusted and took steps to prevent discovery of the crime. After all, one does not have a duty to expect another person is committing crimes or a crime.
Brief Synopsis: Tolling a statute of limitations is allowed in certain crimes, such as embezzlement, identity theft, forgery and grand theft, as the following summary exemplifies.
California law recognizes this situation in many crimes by not only making the statute of limitations longer, i.e., four years for certain crimes.
Under the discovery rule, the prosecution can overcome the statute of limitations by pleading and proving each off the following: (1) when and how the facts concerning the fraud became known to the [victim]; (2) lack of knowledge prior to that time; (3) that he had no means of knowledge or notice which followed by inquiry would have shown at an earlier date the circumstances upon which the cause of action is founded. People v. Zamora (1976) 18 Cal.3d 538, 562.
How this is applied is exemplified in a recent Second Appellate Court ruling in People v. Wilfredo Rodriguez, et al., involving forgery, identity theft and grand theft issued on November 18, 2021. The facts are important to understand.
Defendants Wilfredo Rodriguez and Ruben Gutierrez worked together at Palos Verdes Engineering (PVE), which provides engineering services for residential and commercial building projects. Rodriguez worked for PVE from 1995 to 2014. Gutierrez worked there from 2000 to 2008.
In 2015, Ricky Morales was the sole owner of PVE. Morales is a licensed civil engineer. Licensed engineers who have passed the professional engineering tests receive an engineering seal which they use to stamp building plans or other documents requiring an engineer’s services. The seal identifies the engineer by name and license number and specifies the type of engineer he or she is. Stamped plans are then submitted to a city for approval. The stamp indicates that the engineer reviewed the plans and that they meet code requirements.
Court of Appeal Second Appellate District Los AngelesIn 2007, Morales found a folder on Gutierrez’s desk containing approximately ten invoices for Gutierrez’s own company, R.G. Designs. The documents contained a set of structural calculations on PVE letterhead with Morales’ seal and signature forged.
Morales confronted Gutierrez about the documents and Gutierrez admitted to moonlighting for his own company and to using PVE’s company logo and name on the structural calculations. Gutierrez told Morales that he was working alone and Morales believed him. Gutierrez was terminated about a month later.
In 2014, Morales received a phone call from a prospective PVE client who reported Rodriguez offered him a discount if he paid in cash. Morales then audited Rodriguez’s computer and discovered engineering documents for five projects with Morales’ seal and signature that did not relate to known PVE projects. When confronted, Rodriguez apologized and admitted he worked on ten non-PVE projects using PVE’s logo, stationary, and Morales’ seal. Rodriguez was then terminated.
Morales notified the police about the fraud approximately one month later when they discovered approximately ten more non-PVE projects which they believed were worked on by Rodriguez and Gutierrez.
A criminal complaint was then brought against Rodriguez and Gutierrez in the downtown Los Angeles Clara Shortridge Foltz building. Defendants were charged with 392 counts of forgery in violation of Penal Code § 470(b), identity theft in violation of Penal Code § 530.5(a) and grand theft in violation of Penal Code § 487(a) for conduct taking place between 2009 and 2014.
Defendants waived a trial by a jury. Rodriguez was convicted of 238 counts of forgery and identity theft, eight counts of grand theft and six misdemeanor counts of petty theft. The judge sentenced him to five years of formal probation, requiring him to serve 365 days in county jail and complete 150 days of community labor.
Gutierrez was convicted of 193 counts of forgery and identify theft, six counts of grand theft and six counts of misdemeanor petty theft. He was also sentenced to five years of formal probation with 365 days in county jail and one hundred days of community labor.
Both defendants appealed their convictions, arguing that the complaints were not timely filed.
The Second Appellate District court took a dim view of this appeal because Gutierrez and Rodriguez were trusted employees. Rodriguez had worked at PVE for 19 years, concealing his fraudulent conduct. Moreover, when confronted by Morales, they each lied about the depth and scope of their moonlighting and use of Morales’ stamp.
The appellate court denied the appeal, finding Morales acted promptly upon finding out about the fraud in 2014 when he notified the police and the investigation began.
We bring this summary to the reader’s attention because tolling is an issue that many victims simply do not know about or misunderstand. This summary exemplifies how crimes taking place almost a decade earlier can still be prosecuted when defendants conceal their crimes, often taking advantage of a position of trust.
The citation for the Second Appellate District Court ruling discussed above is People v. Wilfredo Rodriguez, et al. (2d App. Dist., 2021) 71 Cal. App. 5th 921, 286 Cal. Rptr. 3d 679.
For more information about delays in filing and tolling, please click on the following articles:
