People v. Williams

Page 412

87 Cal.Rptr.2d 412

21 Cal.4th 335, 981 P.2d 42, 99 Cal. Daily Op. Serv. 6491,

1999 Daily Journal D.A.R. 8299

The PEOPLE, Plaintiff and Respondent, v. James Thomas WILLIAMS, Defendant and Appellant.

No. S069793.

Supreme Court of California

Aug. 12, 1999.

Edward H. Schulman, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Steven D. Matthews, Anh T. Nguyen, John R. Gorey, Kyle S. Brodie and Christina Russotto, Deputy Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Denise A. Yates for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.

CHIN, J.

For over 60 years, this court described the statute of limitations as limiting the court's subject matter jurisdiction and said that trial courts could not proceed in a time-barred case. (E.g., People v. McGee (1934) 1 Cal.2d 611, 36 P.2d 378 (McGee ); People v. Chadd (1981) 28 Cal.3d 739, 756-757, 170 Cal.Rptr. 798, 621 P.2d 837 (Chadd ).) Accordingly, "this court and the Courts of Appeal have repeatedly held that a defendant may assert the statute of limitations at any time." (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, 58 Cal.Rptr.2d 458, 926 P.2d 438 (Cowan ).) In Cowan, we adjusted the rationale of these cases, although not their holdings, to accommodate a situation they did not anticipate. We held that the defendant "may expressly waive the statute of limitations when ... the waiver is for his benefit" (id. at p. 370, 58 Cal.Rptr.2d 458, 926 P.2d 438) and overruled language in prior cases "to the extent it suggests a court lacks fundamental subject matter jurisdiction over a time-barred criminal action." (Id. at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438.) We expressly did not decide an issue not presented in that case--"whether we should overrule these cases entirely and hold that the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial." (Ibid.)

This case does present the question whether we should overrule entirely the previous line of cases. We decline to do so. Although we properly modified some of the broad language in earlier cases to allow a defendant expressly to waive the statute of limitations, we find no strong reason to go to the opposite extreme. We conclude that a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. We leave to future appellate courts to decide other questions not involved here, such as the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time barred.

I. PROCEDURAL HISTORY

An information filed April 7, 1995, charged defendant with committing perjury (Pen.Code, § 118) "[o]n or about February 10, 1992." The information contained no additional allegations relevant to whether the statute of limitations barred the action. Defendant pleaded not guilty and later waived a jury trial. After a court trial, the court found defendant guilty as charged and sentenced him to three years in state prison.

On appeal, defendant argued for the first time that the prosecution was time barred because the information alleged that he committed the offense more than three years before it was filed, and it contained no other facts or tolling allegations that would make the prosecution timely. The Attorney General argued that defendant was too late in asserting the statute of limitations. In addition, citing information outside the appellate record he claimed that the prosecution was timely because an arrest warrant had issued on January 31, 1995, within the statutory time limit, and delayed discovery tolled the statute of limitations. Citing Chadd, supra, 28 Cal.3d at page 758, 170 Cal.Rptr. 798, 621 P.2d 837, he urged that at least the prosecution should be allowed to amend the information on remand. The Court of Appeal remanded the matter for a hearing on whether the action was timely. Apparently because defendant had waived a jury trial, it ordered the court to make the determination. It concluded, "If the trial court finds the statute of limitations had run, the court is instructed to vacate the judgment. If the trial court finds the statute of limitations had not yet run, the judgment of conviction shall stand."

We granted the Attorney General's petition to review whether "the statute of limitations in a criminal case is an affirmative defense which is forfeited if not raised before or during trial."

II. DISCUSSION

A prosecution for perjury must be "commenced" within three years after its discovery. (Pen.Code, §§ 126, 801, 803, subd. (c).) The information here was filed more than three years after the date it alleged defendant committed the crime. So far as the information shows, the prosecution was too late. Apparently, no one noticed this problem until the case was on appeal. The prosecutor did not allege facts in the information to avoid the bar, and defendant did not assert the statute of limitations in the trial court. When defendant raised the issue for the first time on appeal, the Attorney General asserted two facts not alleged in the information that, if true, would make the action timely: (1) an arrest warrant, which "commenced" the prosecution (Pen.Code, § 804), issued before the three years expired; and (2) the prosecution commenced within three years after the crime was first discovered.

The Court of Appeal was unable to determine from the appellate record whether the action was, in fact, time barred, and it remanded for the trial court to make that determination. The Attorney General contends that because defendant did not assert the statute of limitations at trial, he has forfeited his right ever to do so, and that he must remain convicted of a felony and serve a prison sentence even if the prosecution is untimely and should have been dismissed. The Attorney General asks us to overrule a long line of authority holding that a defendant may assert the statute of limitations at any time.

"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 ...: '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 [ ¹] 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].)" (Cowan, supra, 14 Cal.4th at pp. 371-372, 58 Cal.Rptr.2d 458, 926 P.2d 438.)

In Cowan, the defendant, facing capital charges, sought to plead guilty to a time-barred lesser offense under a plea bargain. He was willing to waive, i.e., intentionally relinquish, the statute of limitations to avoid the capital charge. We allowed him to do so. Because our previous cases involved questions of forfeiture, not knowing waiver, we did not overrule any of their holdings. But we did adjust their rationale "to the extent it suggests a court lacks fundamental subject matter jurisdiction over a time-barred criminal action." (Cowan, supra, 14 Cal.4th at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438.) We explained that "none of our cases involved a lesser offense to a charged offense such as murder that was not time-barred and over which the court unquestionably did have jurisdiction, i.e., the power to proceed. We did not confront facts in which it might be to a defendant's advantage to waive the statute of limitations. We had no reason to anticipate a case like this where a rule stated for the defendant's benefit might actually harm the defendant. Our analysis requires a slight adjustment to accommodate the very different factual situation presented here. In this case, because the court had the power to proceed over the murder charge, it should also have the power to proceed over a lesser included ... offense." (Id. at p. 373, 58 Cal.Rptr.2d 458, 926 P.2d 438, original italics.)

Because the defendant in Cowan wanted to waive the statute of limitations expressly, we did not decide whether to overrule the prior cases' holdings and "hold that the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial."...