Filed 6/30/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION ONE


In re ELIJAH C., a Person Coming Under           B266437
the Juvenile Court Law.                          (Los Angeles County
                                                 Super. Ct. No. VJ43366)


THE PEOPLE,

        Plaintiff and Respondent,

        v.

ELIJAH C.,

        Defendant and Appellant.




        APPEAL from an order of the Superior Court of Los Angeles County. Fumiko
Hachiya Wasserman, Judge. Reversed.
        Esther R. Sorkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
                    ____________________________________________
         In this case, we consider whether a minor’s purported waiver of the statute of
limitations for an offense is valid, when that waiver was made without consultation with
counsel and before a petition against the minor was filed. We conclude that the answer
is no.
         Appellant Elijah C. signed a document waiving the one-year statute of limitations
for petty theft as a condition of entering a diversion program for first-time offenders.
More than a year later, the district attorney’s office found that Elijah had not complied
with all the requirements of the program, terminated his involvement in it, and filed a
petition alleging he committed petty theft. The juvenile court overruled Elijah’s
demurrer, sustained the petition, and adjudged him a ward of the court. We reverse.
                          FACTS AND PROCEEDINGS BELOW
         On March 7, 2012, Elijah, who was then 14 years old, visited a friend’s house.
Valerie Hernandez, the friend’s mother, saw Elijah playing with Hernandez’s iPod
Touch. After Elijah left, Hernandez noticed that the iPod was missing. When police
officers confronted Elijah, he admitted that he had the iPod, and went into his house and
retrieved it.
         Authorities did not immediately file a petition against Elijah in the juvenile court.
Instead, the district attorney’s office offered him entry in its Juvenile Offender
Intervention Network (JOIN) program, a diversion program for first-time, nonviolent
juvenile offenders. Elijah and his parents signed a contract in which Elijah agreed to
participate in individual counseling, to complete 50 hours of community service, to attend
school on time, to write a letter of apology to Hernandez, and to obey all laws, and his
parents agreed to complete a parent education program.
         The last paragraph of the contract provided as follows: “I admit that my actions
were improper and I accept responsibility. I consent to participate in the agreement
above, and I understand that if I fail to maintain this agreement a petition may be filed in
the Juvenile Court for . . . Penal Code section 484(a) (petty theft). I further understand
that my case cannot legally be prosecuted after the passage of one year from the date of
the offense. However, in order to participate in the JOIN program I agree to waive and

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give up my right to object on this basis to any future prosecution. I further understand
that my case will be monitored by the District Attorney’s Office for one year from the
date of this contract and that upon satisfactory completion of all terms my case will be
closed.”
       Robert Barker, the district attorney’s office hearing officer in the case, testified
that before he allows a minor and his parents to enter into agreements like this one, he
explains the terms of the agreement in detail and requires the minor to read the last
paragraph of the contract aloud. Barker did not, however, inform Elijah or his parents
that they could consult with an attorney prior to signing, and no attorney advised Elijah or
his parents before or during the meeting with Barker. Elijah’s mother testified that she
was afraid during the meeting because Barker told her that Elijah could go to jail if he did
not participate in the JOIN program. The family agreed to sign the contract and take part
in the JOIN program in order to avoid that possibility.
       On March 29, 2013, the district attorney’s office terminated Elijah’s participation
in the JOIN program because he had failed to complete the program requirements. On
May 7, 2013, the district attorney’s office filed a petition in the juvenile court alleging
that Elijah comes within the provisions of Welfare and Institutions Code section 602 1
on the ground that he committed petty theft, in violation of Penal Code section 484,
subdivision (a).
       Elijah demurred and moved to dismiss the charges without leave to amend on
the ground that the juvenile court lacked jurisdiction because the petition had been filed
outside the one-year statute of limitations for petty theft. The parties stipulated that the
facts in the petition regarding petty theft were true. After a hearing, the juvenile court
found that Elijah had waived the statute of limitations, and accordingly, the court
overruled the demurrer and sustained the petition.




       1  Unless otherwise specified, subsequent statutory references are to the Welfare
and Institutions Code.

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                                      DISCUSSION
       Elijah contends that his waiver of the statute of limitations was invalid because he
was not represented by counsel at the time of the waiver. We agree and reverse the
judgment of the juvenile court.2
       In 1934, our Supreme Court established a rule that the statute of limitations in a
criminal case is jurisdictional, and accordingly, a defendant cannot waive its operation.
(People v. McGee (1934) 1 Cal.2d 611, 613-614.) “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.” (People v. Chadd (1981) 28 Cal.3d
739, 757.) This rule stood for over 60 years, until the Supreme Court altered it in Cowan
v. Superior Court (1996) 14 Cal.4th 367, 372-373 (Cowan), holding that defendants
may expressly waive the statute of limitations for their own benefit. In Cowan, the
prosecutor filed murder charges 10 years after the defendant allegedly killed three people.
(Id. at p. 370.) The defendant pled no contest to one count of voluntary manslaughter
in exchange for a dismissal of the remaining charges. (Ibid.) In order for this plea
agreement to take effect, the defendant needed to waive the six-year statute of limitations
for voluntary manslaughter. (Ibid.)
       The court in Cowan held that the defendant’s waiver was valid. It adopted the rule
established by the Alaska Supreme Court, which stated that “ ‘a statute of limitations can
be waived if the trial court determines that the following prerequisites have been met: [¶]
“(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




       2  Because we agree with Elijah’s argument regarding the invalidity of the waiver
in the absence of counsel, we need not address his argument that the waiver was invalid
because it was improperly induced by a promised benefit.

                                             4
enactment of the statutes.” ’ ”3 (Cowan, supra, 14 Cal.4th at p. 372, quoting Padie v.
State (Alaska 1979) 594 P.2d 50, 57.) In the 20 years since Cowan, all cases involving a
defendant’s waiver of the statute of limitations have had a context similar to that of
Cowan. That is to say, the cases have held that a defendant represented by counsel may
waive the statute of limitations as a tactical consideration, typically to allow a jury to
consider a lesser included offense that would otherwise be time barred. (See, e.g., People
v. Stanfill (1999) 76 Cal.App.4th 1137; People v. Williams (1999) 21 Cal.4th 335, 341
[reaffirming that a defendant does not forfeit the statute of limitations by failing to assert
it at trial].)4
        In arguing that Elijah’s purported waiver of the statute of limitations was valid in
spite of his lack of representation, the Attorney General urges us to move beyond this
existing case law and allow for waiver in an entirely different context. In Cowan, the
court stated, “We think that [the Alaska] rule is fair and a defendant should be able to
waive the statute of limitations at least when those prerequisites have been met.”
(Cowan, supra, 14 Cal.4th at p. 372, italics added.) The Attorney General contends


        3 Although the parties do not raise this issue in their briefs, we are not convinced
that Elijah’s purported waiver satisfied the third Cowan requirement, that the waiver
not contravene any public policy reason motivating the enactment of the statute of
limitations. One of the policies motivating statutes of limitations is to avoid clogging
dockets with stale cases, in which the parties’ memories may have faded. (See Stogner v.
California (2003) 539 U.S. 607, 615.) This policy was not implicated in Cowan, where
the defendant could have been tried for murder. His guilty plea for the lesser included
offense of voluntary manslaughter did not add any additional burden to the court beyond
what would have been required for a murder trial. Here, by contrast, the only offense
the People alleged in the petition was petty theft, for which the statute of limitations
had expired. Elijah’s purported waiver specified no duration, implying that the district
attorney’s office was free to file a petition against Elijah at any point in the future.
        4 The Cowan court allowed for the possibility that a self-represented defendant
might waive the statute of limitations and “obviously need not consult counsel.” (Cowan,
supra, 14 Cal.4th at p. 373.) That exception does not apply to this case, where Elijah was
not informed he could consult with counsel. And of course, even if Elijah had elected to
represent himself, there was no opportunity for a court to determine that Elijah had the
requisite mental and emotional maturity. (See In re Shawnn F. (1995) 34 Cal.App.4th
184, 195-196.)

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that the court’s use of the phrase “at least” leaves open the possibility that waivers are
valid in some situations even when not all of the criteria are met. According to the
Attorney General, the waiver is valid in Elijah’s case because he made it knowingly,
intelligently, and voluntarily. The lack of counsel should be excused because no petition
had yet been filed at the time of the waiver, and so Elijah did not have the right to counsel
under the Sixth Amendment. (See People v. Cunningham (2015) 61 Cal.4th 609, 648
[“ ‘[a] criminal defendant’s right to the assistance of counsel under the Sixth Amendment
does not exist until the state initiates adversary judicial criminal proceedings, such as by
formal charge or indictment’ ”].)
       We are not persuaded. Even if Cowan leaves open the possibility of broader
applicability of waivers of the statute of limitations, the facts of this case suggest that
we should be skeptical about accepting Elijah’s waiver. First, whereas the defendant in
Cowan was an adult, Elijah was 14 years old at the time of his meeting with Barker.
Because children are more vulnerable than adults, the law is less willing to allow them
to take actions affecting their legal rights without the presence and approval of their
attorneys. For example, before a juvenile may admit the allegations in a petition under
section 602, he must obtain the consent of counsel. (§ 657, subd. (b); Rules of Court,
rule 5.778(d).) No equivalent rule exists for guilty pleas by adult defendants except in
cases of crimes punishable by death or life imprisonment without the possibility of
parole. (See Pen. Code, § 1018.)
       Furthermore, the waiver of the statute of limitations in Cowan took place in court,
in the presence of a judge. In this case, no one was present for Elijah’s waiver apart from
Elijah himself, his parents, and Barker, the hearing officer. Barker was not a neutral
arbiter. He was an employee of the district attorney’s office and served a function closer
to that of a prosecutor than that of a judge. Elijah’s mother testified, “I just remember
[Barker] saying if you didn’t [agree to the contract], you could see the judge and you can
get the maximum this much and we didn’t want to take that route. We were scared
because [this was] his first offense and this is, like, not a normal thing for us.”
The Cowan court described a valid waiver of a statute of limitations as one that is

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“ ‘ “knowing, intelligent, and voluntary,” ’ ” and is “ ‘ “made for the defendant’s benefit
and after consultation with counsel.” ’ ” (Cowan, supra, 14 Cal.4th at p. 372, italics
added.) With no experienced party on Elijah’s side, Elijah and his family had no trusted
source to explain to them the likely consequences of juvenile court, and to help them
evaluate whether taking part in the JOIN program was in Elijah’s best interest. We
cannot be confident that the agreement to take part in the JOIN program and waive the
statute of limitations was free from coercion and for Elijah’s benefit.
       Nor are we persuaded by the Attorney General’s argument that the waiver of the
statute of limitations was valid because the right to counsel had not attached at the time
of the meeting with Barker. The Attorney General correctly points out that a criminal
defendant is not entitled to representation under the Sixth Amendment prior to the filing
of formal charges against him. (People v. Cunningham, supra, 61 Cal.4th at p. 648.)5
As the U.S. Supreme Court explained in Kirby v. Illinois (1972) 406 U.S. 682, 689-690,
a defendant is entitled to counsel when charges are filed because “[i]t is then that a
defendant finds himself faced with the prosecutorial forces of organized society, and
immersed in the intricacies of substantive and procedural criminal law.”
       After charges are filed, a defendant is entitled to representation at “ ‘ “critical
stage[s] of the prosecution” ’ ” (Kirby v. Illinois, supra, 406 U.S. at p. 690), those
holding “significant consequences for the accused” (Bell v. Cone (2002) 535 U.S.
685, 696), where “[a]vailable defenses may be as irretrievably lost, if not then and there
asserted.” (Hamilton v. Alabama (1961) 368 U.S. 52, 54.) If the district attorney had
already filed a section 602 petition, the meeting between Elijah and Barker would
unquestionably qualify as a critical stage: In exchange for agreeing to take part in the
JOIN program, Elijah surrendered his right to assert the statute of limitations as a
defense.
       It appears that the district attorney’s office had a laudable intent in establishing the
JOIN program—namely, to allow for the rehabilitation of nonviolent first-time juvenile

       5The right to counsel applies to minors in delinquency proceedings in the same
manner as to adult defendants in criminal cases. (In re Gault (1967) 387 U.S. 1, 36.)

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offenders without requiring the minors to appear in court.6 The effect of that program
in this case, however, was to short-circuit the constitutional protections to which
Elijah was entitled. Although Elijah did not yet have the right to counsel under the
Sixth Amendment because no petition had yet been filed, he faced what was in effect a
critical stage of the prosecution. We will not broaden the relatively narrow rule in Cowan
allowing for waivers of the statute of limitations in order to encompass Elijah’s situation.
       Accordingly, we reverse the trial court’s order overruling the demurrer.
                                      DISPOSITION
       The order of the juvenile court is reversed. The trial court is ordered to sustain the
demurrer to the petition without leave to amend and dismiss the petition with prejudice.
       CERTIFIED FOR PUBLICATION.




                                                                ROTHSCHILD, P.J.
We concur:




                     JOHNSON, J.




                     LUI, J.




       6  Nothing in this opinion prevents the district attorney’s office from meeting with
minors and encouraging them to take part in the JOIN program, so long as participation
in the program is not conditioned on a juvenile’s waiver of the statute of limitations
without consultation with counsel.

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