Cowan v. Superior Court

Page 458

58 Cal.Rptr.2d 458

14 Cal.4th 367, 926 P.2d 438, 96 Cal. Daily Op. Serv. 8849,

96 Daily Journal D.A.R. 14,675

Gerald Thomas COWAN, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent The PEOPLE, Real Party in Interest.

No. S052051.

Supreme Court of California.

Dec. 9, 1996.

[14 Cal.4th 369] [926 P.2d 439] David A. Torres, Bakersfield, for Petitioner.

John T. Philipsborn, San Francisco, as amicus curiae on behalf of Petitioner.

No appearance for Respondent

Edward R. Jagels, District Attorney, Stephen M. Tauzer, Assistant District Attorney, Thomas D. Sparks, Chief Deputy District Attorney, James F. Sweeney and Stephen J. Greene, Jr., Deputy District Attorneys, for Real Party in Interest.

Kent S. Scheidegger, Sacramento, and Traci L. Huahn as amici curiae on behalf of Real Party in Interest.

CHIN, Justice.

Petitioner, facing capital murder charges, agreed to plead guilty to the lesser offense of voluntary manslaughter. Prosecution of that offense, however, is time-barred. Petitioner wants to waive the statute of limitations for voluntary manslaughter to avoid prosecution on the greater charges. We must decide whether he may effectively do so. We conclude that he may expressly waive the statute of limitations when, as here, the waiver is for his benefit.

FACTS

A complaint filed in 1994 charged petitioner with committing three murders in 1984 under special circumstances. After the preliminary hearing, petitioner and the district attorney engaged in plea negotiations. They agreed that petitioner would plead no contest to one count of voluntary manslaughter with a knife use enhancement and receive a maximum prison sentence of four years. In return, the remaining charges would be dismissed. Petitioner pleaded no contest as agreed. Before sentencing, however, the district attorney moved to set aside the plea "on the grounds that the plea is illegal because the statute of limitations has run on voluntary manslaughter. The statute of limitations is jurisdictional and cannot be waived."

It appears that neither the court nor the parties realized until after petitioner had pleaded no contest that the statute of limitations for voluntary manslaughter had expired. The district attorney was obviously concerned that petitioner might be able to challenge the no contest plea after the other charges had been dismissed. At the hearing on the motion to set aside the plea, petitioner personally stated he was willing to waive the statute of limitations. Nevertheless, the court, finding that "it is a jurisdictional defect and the parties can never stipulate to jurisdiction," granted the motion to set aside the plea and "reinstate[d] the original charges."

Petitioner filed a petition for writ of mandate asking the Court of Appeal to compel the superior court to accept the guilty plea on condition that he waive the statute of limitations. The Court of Appeal denied the petition, citing People v. Chadd (1981) 28 Cal.3d 739, 756-757, 170 Cal.Rptr. 798, 621 P.2d 837. We granted review and issued an alternative writ of mandate.

DISCUSSION

The complaint in this case was filed 10 years after petitioner allegedly committed the crimes. There is no time limit for prosecuting murder (Pen.Code, § 799), but prosecution of voluntary manslaughter must commence within six years after the commission of the offense (Pen.Code, § 800; see also § 805, subd. (b) [the time limits apply to lesser included offenses] ). The six-year period had long expired by the time the complaint was filed. We must decide whether petitioner can waive the statute of limitations and plead guilty to voluntary manslaughter to avoid prosecution for the more serious murder charges.

Ordinarily, criminal defendants may waive rights that exist for their own benefit. "Permitting waiver ... is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights." (People v. Robertson (1989) 48 Cal.3d 18, 61, 255 Cal.Rptr. 631, 767 P.2d 1109 [listing some basic rights that may be waived].) "An accused may waive any rights in which the public does not have an interest and if waiver of the right is not against public policy." (People v. Trejo (1990) 217 Cal.App.3d 1026, 1032, 266 Cal.Rptr 266.) Petitioner argues he should also be allowed to waive the statute of limitations.

Before directly confronting the question, we must carefully consider what we mean by the word "waiver." Over the years, cases have used the word loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. "[T]he terms 'waiver' and 'forfeiture' have long been used interchangeably. The United States Supreme Court recently observed, however: 'Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' (United States v. Olano [ (1993) 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508].)" (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)

Commencing in 1934, this court and the Courts of Appeal have repeatedly held that a defendant may assert the statute of limitations at any time. (E.g., People v. McGee (1934) 1 Cal.2d 611, 613, 36 P.2d 378; In re Demillo (1975) 14 Cal.3d 598, 601, 121 Cal.Rptr. 725, 535 P.2d 1181; People v. Chadd, supra, 28 Cal.3d at p. 757, 170 Cal.Rptr. 798, 621 P.2d 837; People v. Rose (1972) 28 Cal.App.3d 415, 417, 104 Cal.Rptr. 702.) In McGee, we described the issue as "[w]hether the statute of limitations in criminal cases is jurisdictional, or a matter of defense to be affirmatively pleaded by the defendant," and concluded it is jurisdictional. (People v. McGee, supra, 1 Cal.2d at p. 613, 36 P.2d 378.) A typical discussion is found in Chadd, the decision the Court of Appeal cited in denying relief in this case: "In a recent discussion of the matter we reiterated that in criminal cases 'in California the statute of limitations constitutes a substantive rather than a procedural right which is not waived by failure to assert it at the pleading stage.... [I]t is now well settled that a conviction, even if based on a plea of guilty, is subject to collateral [or direct] attack if the charge was originally barred by the applicable limitation period,' citing Demillo and McGee. (People v. Zamora (1976) 18 Cal.3d 538, 547, 134 Cal.Rptr. 784, 557 P.2d 75.) The rule is a reflection of the fundamental principle of our law that 'the power of the courts to proceed'--i.e., their jurisdiction over the subject matter--cannot be conferred by the mere act of a litigant, whether it amount to consent, waiver, or estoppel [citations], and hence that the lack of such jurisdiction may be raised for the first time on appeal." (People v. Chadd, supra, 28 Cal.3d at p. 757, 170 Cal.Rptr. 798, 621 P.2d 837.)

The cases have generally involved "waiver" in the sense of forfeiture, not the intentional relinquishment of a known right, and have not considered whether defendants could expressly waive the statute of limitations for their own benefit. Statutes of limitation do not inherently prohibit express waiver. Indeed, we recognized in Zamora that in some states the statute of limitations can be "waived" (i.e., forfeited) if not timely asserted. (People v. Zamora (1976) 18 Cal.3d 538, 547, fn. 6, 134 Cal.Rptr. 784, 557 P.2d 75.) In a case arising out of a state that allows waiver, the United States Supreme Court has held that a defendant in a capital case may be required to waive the statute of limitations as a condition to having the trial court instruct the jury on a lesser included offense. (Spaziano v. Florida (1984) 468 U.S. 447, 454-457, 104 S.Ct. 3154, 3158-3161, 82 L.Ed.2d 340.) The language of the limitations statutes does not compel the conclusion that the time limits may not be waived. (Pen.Code, § 800 et seq.)

The issue presented here also arose in Padie v. State (Alaska 1979) 594 P.2d 50. There, the defendant, charged with first degree murder, pleaded nolo contendere pursuant to a plea agreement to manslaughter, an offense that was time-barred. He expressly waived the statute of limitations. On appeal, he argued the trial court had no jurisdiction to accept his plea. The Alaska Supreme Court disagreed and adopted the rule that "a statute of limitations can be waived if the trial court determines that the following prerequisites have been met: [p] '(1) the waiver is knowing, intelligent, and voluntary; (2) it is made for the defendant's benefit and after consultation with counsel; and (3) the defendant's waiver does not handicap his defense or contravene any other public policy reasons motivating the enactment of the statutes.' " (Id. at p. 57, fn. omitted [adopting the test suggested in Note, The Statute of Limitations in a Criminal Case: Can It Be Waived? (1977) 18 Wm. & Mary L.Rev. 823, 840].)

We think that this rule is fair and a defendant should be able to waive the statute of limitations at least when those prerequisites have been met. Just as a defendant may "waive the most crucial of rights" (People v. Robertson, supra, 48 Cal.3d at p. 61, 255 Cal.Rptr. 631, 767 P.2d 1109), so too should a defendant be allowed to waive the statute of limitations. The requirements for a valid waiver stated in Padie should cause no difficulty. (Padie v. State, supra, 594 P.2d at p. 57.) The court need merely inform the defendant in some fashion that the charge is, or may be, time-barred, and elicit a simple waiver of the bar. Absent a contrary indication, the trial court and, on appeal, the reviewing court may presume that a represented defendant has consulted with counsel. A defendant who has waived counsel and elected self-representation obviously need not consult counsel. Moreover, a defendant's waiver of the...