Filed 8/14/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                        DIVISION TWO



    THE PEOPLE,

            Plaintiff and Respondent,                  E070015

    v.                                                 (Super.Ct.No. INF1601449)

    JIMMY FLORES MEZA,                                 OPINION

            Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Arjuna (Vic) Saraydarian,

Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Reversed.

         Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Joseph C.

Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.




                                                1
       Jimmy Flores Meza appeals his conviction for misdemeanor child endangerment.

(Pen. Code, § 273a, subd. (b), unlabeled statutory citations refer to this code.)

       The Riverside County District Attorney charged Meza with felony child

endangerment about two years after he assaulted his 17-year-old daughter on the street.

(§ 273a, subd. (a).) At the People’s request and without objection from Meza, the trial

court directed the jury that it could find him guilty of felony child endangerment or the

lesser included offense of misdemeanor child endangerment. A jury found him not guilty

of the felony, but guilty of the misdemeanor.

       On appeal, Meza argues for reversal because the one-year statute of limitations

had run on the misdemeanor offense. The People argue he forfeited this ground for

attacking his conviction because his attorney generally assented to the People’s requested

jury instructions. We conclude general consent to a prosecutor’s packet of instructions

does not forfeit the statute of limitations objection. Because it is uncontested that Meza’s

misdemeanor conviction was time-barred, we reverse the judgment.1

                                              I

                                          FACTS

       On September 20, 2014, Meza and his 17-year-old daughter got into an argument

in their car. His daughter got out of the car and ran, but Meza chased and caught her. He

grabbed her by the hair, she fell to the ground, and Meza then hit her head on the

       1  Meza also argues the suspended sentence of 360 days in county jail exceeded
the statutory maximum for misdemeanor child endangerment, which the People concede.
Though we agree (§§ 19, 273a, subd. (b) [six month maximum sentence]; People v. Scott
(1994) 9 Cal.4th 331, 354), our reversal of the conviction moots the issue.

                                              2
sidewalk about three times and also kicked her. She ended up with a golf ball-sized lump

on the back of her head, a bruise above her eye, scratches on her neck, and abrasions on

her arms.

       Two years later, on September 28, 2016, the district attorney filed a felony

complaint charging Meza with felony child endangerment. (§ 273a, subd. (a).) On April

21, 2017, they filed an information with the same charge.

       On February 7, 2018, the prosecutor submitted a list of requested jury instructions.

The list included a request for an instruction on the lesser included misdemeanor offense.

However, the prosecutor did not request an instruction on the statute of limitations. The

only thing we know about Meza’s consideration of the instructions is the court asked both

sides, “Do you both accept the instructions to be given in this case?” Like the prosecutor,

Meza’s counsel responded, “Yes, your honor.” The trial court instructed the jury on the

lesser included misdemeanor offense, but gave no statute of limitations instruction.

When the court instructed the jury on the lesser included misdemeanor offense, Meza’s

counsel didn’t object.

       The next day, the jury found Meza not guilty of felony child endangerment, but

guilty of the lesser included misdemeanor offense. Meza filed a timely notice of appeal.




                                             3
                                              II

                                         ANALYSIS

       Meza argues his conviction cannot stand because the statute of limitations had run.

The People don’t contest that fact, but argue he forfeited that basis for appeal by agreeing

to the lesser included jury instruction. Meza responds he didn’t forfeit the position

because the People, not he, requested the instruction, and his attorney’s general

acceptance of the whole packet of instructions they requested doesn’t show his agreement

to the lesser included instruction.

       The statute of limitations for a felony offense is three years plus any tolling.

(§§ 801, 803, subd. (c).) The statute of limitations for a misdemeanor is generally one

year and tolling does not apply. (§§ 802, subd. (a), 803, subd. (c).) This shorter statute

of limitations applies even when the misdemeanor is a lesser included offense of an

offense that was charged as a felony. (§ 805, subd. (b) [“The limitation of time

applicable to an offense that is necessarily included within a greater offense is the

limitation of time applicable to the lesser included offense, regardless of the limitation of

time applicable to the greater offense”].) The statute of limitations completely bars

prosecution.

       Our Supreme Court has recognized—in a child endangerment case—that “the

statute of limitations . . . may be raised as a time bar at any time. [Citation.] If the

offense is an alternative felony/misdemeanor (a ‘wobbler’) initially charged as a felony,

the three-year statute of limitations for felonies (see § 801) applies, without regard to the


                                               4
ultimate reduction to a misdemeanor after the filing of the complaint. [Citation.] If,

however, the initial charge is a felony but the defendant is convicted of a necessarily

included misdemeanor, the one-year limitation period for misdemeanor applies.” (People

v. Mincey (1992) 2 Cal.4th 408, 453.) Under circumstances very like the facts in this

case, the Court held where “the reductions of [child endangerment] counts were based on

the offenses as necessarily included misdemeanors and not as the statutory alternatives

. . . the convictions . . . are barred by the one-year statute of limitations for

misdemeanors.” (Ibid.)

       However, it is possible to intentionally relinquish the protection of the statute of

limitations. In Cowan v. Superior Court (1996) 14 Cal.4th 367 (Cowan), the Supreme

Court abrogated long-settled precedent holding the statute of limitations implicated the

courts’ subject matter jurisdiction. Cowan decided defendants may plead guilty to time-

barred lesser offenses as part of negotiated dispositions, provided they do so for their own

benefit and with an express informed waiver of the right to assert the statute. (Id. at

p. 374.) Cowan distinguished between an express waiver and forfeiture by failure to

assert the right and declined to hold “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.”

(Id. at pp. 372, 374.)

       The Supreme Court took up the forfeiture question three years later in People v.

Williams (1999) 21 Cal.4th 335 (Williams). There, the prosecution had filed an

information on April 7, 1995 charging defendant with committing perjury on or about

February 10, 1992. (Id. at p. 338.) Since the applicable statute of limitations was three

                                                5
years, the prosecution was time-barred on the face of the charging document. (Ibid.)

Williams didn’t raise the objection until he appealed, after he had been convicted of

perjury and sentenced to three years in state prison. (Ibid.) The People argued he had

forfeited the objection, but the Court refused to find the issue forfeited.

       “We now conclude that when the charging document indicates on its face that the

action is time-barred, a person convicted of a charged offense may raise the statute of

limitations at any time.” (Williams, supra, 21 Cal.4th at p. 341.) The Court reached its

decision based on principles of stare decisis, but also emphasized allowing forfeiture

would be bad policy. “The statute of limitations, when applicable, completely bars the

prosecution. To allow defendants to lose the protection of the limitation accidentally

could mean that persons could languish in prison under convictions that could not have

occurred had they merely thought of the statute of limitations in time.” (Ibid.) The Court

again took an incremental approach, however, and expressly refused to address the

question of forfeiture as it related to convictions for uncharged lesser included offenses—

the issue we face here. (Id. at p. 338 [“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”].)

       It didn’t take long. Just a few months later, the Court of Appeal for the First

District, Division Two addressed one variation of the issue in People v. Stanfill (1999) 76

Cal.App.4th 1137, 1150 (Stanfill). In Stanfill, the defendant stood accused of felony

embezzlement of public funds under section 504 alleged to have happened over the

course of several years. The same statute provided the offense was a misdemeanor where

                                              6
the embezzled funds were not public or came to less than $400. (§ 504.) After trial,

Stanfill requested standard jury instructions on the lesser included misdemeanor offense

and general instructions on the statute of limitations. (Stanfill, at p. 1142, fn. 1.)

Ultimately, the court instructed the jury they could find Stanfill guilty of violating section

504 “if the proof shows beyond a reasonable doubt that he committed any one or more of

the acts between the dates of August 6, 1993 and August 5, 1996” and “where a

temporary use of property ‘aggregates in excess of $400 in any period of twelve

consecutive months between August 6, 1993 and August 5, 1996.’” (Id. at p. 1143.) The

court did not mention the one-year limitation period for the misdemeanor. The jury

acquitted Stanfill of the felony offense, but found him guilty of the misdemeanor offense.

(Ibid.) Stanfill then turned around and appealed the misdemeanor conviction on the

ground the trial court had misinstructed the jury by telling them they could convict him of

the lesser included misdemeanor without informing them of the one-year limitations

period applicable to that offense. (Id. at pp. 1142-1144.)

       In deciding whether Stanfill had forfeited the statute of limitations issue, the court

was concerned primarily with the potential for sandbagging and gamesmanship. The

court wrote, “Without a rule that acquiescence or failure to object acts as a forfeiture, the

defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver

and then, as an ace up his sleeve, secure reversal on the theory that he never expressly

waived. This is an unconscionable result that calls for a forfeiture rule.” (Stanfill, supra,

76 Cal.App.4th at p. 1148.) For that reason, the court held “a defendant forfeits the right

to complain on appeal of conviction of a time-barred lesser included offense where the

                                               7
charged offense was not time-barred and the defendant either requested or acquiesced in

the giving of instructions on the lesser offense.” (Id. at p. 1150, italics added.)

       We note the Stanfill court drew its conclusion despite apparently believing Stanfill

had not in fact engaged in such gamesmanship. The court noted that the problem with

giving the lesser included instruction without instructing on the applicable one-year

statute of limitations “was evidently overlooked below by both the parties and the court.”

(Stanfill, supra, 76 Cal.App.4th at p. 1142.) Thus, the court apparently meant its holding

to state a pure forfeiture rule, which would cover parties engaged in gamesmanship as

well as parties who were, in fact, relinquishing the issue inadvertently. We doubt, for this

reason, that Stanfill is consistent with principles the Supreme Court articulated in

Williams that counsel against allowing inadvertent forfeiture of the right to challenge a

time-barred conviction. (Williams, supra, 21 Cal.4th at p. 341.)

       The People argue we should apply the Stanfill rule and hold Meza forfeited the

right to complain on appeal of a time-barred lesser included offense. Though the record

establishes Meza didn’t request the lesser included instruction, as Stanfill did, they say he

acquiesced in the instruction by responding, “Yes, your honor” to the trial court’s

question whether he agreed with the prosecution’s instructional packet in general. His

acquiescence, they say, was enough to forfeit the issue on appeal, whether he was

engaged in gamesmanship or not.

       We don’t agree. First, the holding in Stanfill does not apply to the facts of this

case. In Stanfill, the defendant affirmatively requested the instruction on the lesser

included offense. He didn’t acquiesce in the prosecution’s request for the instruction.

                                              8
“‘The holding of a decision is limited by the facts of the case being decided,

notwithstanding the use of overly broad language by the court in stating the issue before

it or its holding or in its reasoning.’” (People v. Jennings (2010) 50 Cal.4th 616, 684.)

An opinion is authority only on the point decided, and language that sweeps more

broadly is dictum, with no binding force. (People v. Vang (2011) 52 Cal.4th 1038, 1047,

fn. 3.) We therefore read as dicta the Stanfill court’s comment that a defendant may

forfeit the right to challenge a lesser included conviction as time-barred by acquiescing to

the prosecution’s request for the lesser included instruction. The true holding of

Stanfill—that a defendant forfeits the right to challenge a lesser included as time-barred

by requesting the lesser included instruction—has no application to this case. Thus,

Stanfill does not answer the question whether Meza forfeited the right to appeal by failing

to object to the prosecutor’s proposed lesser included instruction.

       Our case is much closer to People v. Beasley (2003) 105 Cal.App.4th 1078, where

the defendant was charged with multiple counts of assault with a deadly weapon, but the

jury convicted him of the lesser included offense of misdemeanor assault. On appeal, the

defendant argued the one-year statute of limitations for misdemeanors barred the

convictions. The People argued he had forfeited the issue under the rule in Stanfill.

(Beasley, at pp. 1088-1089.) The Beasley court accepted the Stanfill rule as stated, but

found it inapplicable and reversed the misdemeanor convictions because nothing in the

record indicated the defendant either requested or acquiesced in the instruction on assault

as a lesser included offense of assault with a deadly weapon. (Beasley, at pp. 1089-

1090.) Our case is slightly different. It is uncontested Meza did not request the

                                             9
instruction, but there is some evidence of his acquiescence in his attorney’s general assent

to the prosecutor’s instructional packet. Thus, unlike the courts in Stanfill and Beasley,

we must answer the question whether his general assent to the lesser included instruction

proposed by the prosecutor justifies holding he forfeited the statute of limitations issue on

appeal.

       We conclude that, taken alone, general assent to a packet of jury instructions

submitted by the prosecution does not show a defendant understood the instructions

would allow him to be convicted of a time-barred offense. To hold Meza forfeited his

statute of limitations defense on such slim grounds would violate the long-standing

general principle that a defendant may not inadvertently forfeit a right to challenge a

conviction as barred by the statute of limitations.2 (Williams, supra, 21 Cal.4th 335.)

Stanfill found a defendant’s affirmative request to include an instruction for a time-barred

lesser included offense justified departing from that general non-forfeiture rule. (Stanfill,

supra, 76 Cal.App.4th at p. 1142, fn. 1.) As we noted above, it appears the court meant

that rule to entail forfeiture even where a defendant requested the instruction without

realizing the lesser included conviction was time-barred. Regardless whether we agree

       2  My dissenting colleague is so caught up in the rubric of ineffective assistance of
counsel claims—irrelevant here—he completely misses this Supreme Court directive. He
writes, “Whether requesting [the instruction] or simply acquiescing or accepting that it be
given, the result is the same—consent to the instruction has been given. Counsel agreed
that it be given, and there were obvious sound tactical reasons for doing so.” (Dis. opn.
at p. 8; see also pp. 9-10.) Respectfully, that is not the issue. We know there was some
degree of consent, but we don’t know whether it was tactical or inadvertent. The dissent
would hold any acquiescing defendant to have forfeited the statute of limitations issue,
regardless of the facts of the case, simply because it’s possible some defendants may
attempt to game this system. That’s both unfair and inconsistent with Williams.

                                              10
with Stanfill, we decline to extend its holding to allow forfeiture where the prosecution

requested the instruction and there is no evidence the defendant made an informed

decision to relinquish his right to challenge a conviction for the time-barred lesser

included offense on appeal.

       The Stanfill court thought its broader request-or-acquiescence rule necessary to

avoid situations where “the defendant may remain quiet about a limitations problem,

avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the

theory that he never expressly waived.” (Stanfill, supra, 76 Cal.App.4th at p. 1148.)

Obviously, a defendant who is aware of the statute of limitations issue may attempt to

game the system in this way, even if it is the prosecutor who suggests a time-barred lesser

instruction. But prosecutors can game the system too. Holding that defendants can

forfeit by general acquiescence would allow prosecutors to offer instructions on time-

barred lesser included offenses whenever they’re not confident of conviction on the

greater. If a defendant, like Meza, doesn’t notice the limitations issue and consents to the

prosecutor’s instructions in general, the prosecutor may obtain an improper conviction

and use forfeiture to protect it on appeal.

       We think maintaining the non-forfeiture rule where the prosecution requests the

lesser included instruction establishes the better baseline. It will force prosecutors to be

aware of the issue and to obtain an express waiver from defendant before the court

presents the lesser included instruction to the jury. In that case, the defendant will have

to make a perhaps difficult choice. If they accept the instruction and waive the objection,

their conviction may stand despite the limitations problem. If they refuse the instruction,

                                              11
they will take their chances with the jury making an all-or-nothing decision of guilt on

the greater offense. (See generally People v. Breverman (1998) 19 Cal.4th 142, 158.)

       Even the Stanfill court recognized obtaining an express wavier is the better

approach. “[T]rial courts and prosecutors should, whenever instructions on lesser

included offenses are considered, determine whether there may be a problem with the

statute of limitations and, if so, elicit a waiver of the statute as a condition of giving the

instruction.” (Stanfill, supra, 76 Cal.App.4th at p. 1150.) We conclude refusing to

extend the holding in Stanfill to the facts presented here will encourage that approach and

make it less likely defendants will forfeit meritorious statute of limitations defenses

inadvertently.

       We therefore hold Meza did not forfeit the right to complain of the time-barred

lesser included offense. Since it is uncontested the misdemeanor conviction was in fact

time-barred, we reverse the judgment of conviction.

                                              III

                                       DISPOSITION

       We reverse the judgment.

       CERTIFIED FOR PUBLICATION

                                                                   SLOUGH
                                                                                                 J.
I concur:



MENETREZ
                            J.

                                               12
[People v. Meza, E070015]

       McKINSTER, J.

       I respectfully dissent and would affirm the conviction.1

       Defendant did not object to the trial court instructing the jury with the time-barred

lesser included misdemeanor offense. Nor did he ask for an instruction on the statute of

limitations. Instead, when asked by the court if he accepted the jury instructions, defense

counsel expressly stated that he did. Without the lesser included offense instruction,

defendant would have faced an all-or-nothing choice of conviction of a felony or an

acquittal. I would apply the rule of forfeiture to prevent trifling with the court. Having

expressly consented to the instruction on the misdemeanor, and having been convicted of

that offense, on appeal defendant should not be gifted with the acquittal that he may not

have received at trial.

                                          FACTS

       Defendant’s then 17-year-old daughter finished her shift at McDonald’s. When

defendant’s girlfriend arrived in her car to pick the daughter up, defendant was passed out

in the front passenger seat.

       The daughter had suspected that defendant had begun using drugs again, and she

became angry because she felt let down. She rode in the backseat behind him. A

profanity laced argument ensued between them. The daughter struck defendant’s face

       1If we were to reach defendant’s second issue, I would accept the People’s
concession and find that the sentence imposed exceeded the statutory maximum of six
months.

                                             1
from behind with a bag of fast food, and then she scratched his face. The girlfriend

stopped the car, and the daughter jumped out. Defendant got out, chased after her, and

assaulted her.

       A Good Samaritan, who did not know defendant or his daughter, testified that he

and his family were driving home when he observed a man beating a girl he estimated to

weigh about 80 pounds. He saw defendant grab the girl by the hair and throw her across

the street like she was a rag doll. He pulled over to intervene.

       The girl was screaming and crying. The witness got between them and, at one

point, defendant threatened to kill him. The witness had the girl get into his car, and his

wife drove a short distance to their home where a 911 call was made. A deputy sheriff

responded.

       At trial, defendant hugged his daughter in court right before she took the witness

stand. She testified she loved her father. She admitted that she told the responding

deputy sheriff that her father slammed her head into the cement three times, hit her in the

face, and kicked her. However, her testimony was different from what she told the

deputy sheriff.

       She testified that she had been drinking alcohol during her shift at McDonald’s.

She claimed that she is a clumsy girl, and the bump on the back of her head probably

occurred when she and her father fell to the ground and not from him slamming her head

into the pavement. She denied he slapped her or hit her in the face with a closed fist.

Rather, she presented herself as the instigator and aggressor during the street fight, but

she admitted she had not told anyone that before. The prosecutor impeached her with her

                                              2
preliminary hearing testimony.

       During direct examination the daughter was shown pictures of her injuries. With

each one she was asked if she received the injury depicted in the photograph during her

beating by defendant. She answered that she did not remember and could not remember

if the injuries were there before the beating.

       The deputy sheriff who responded to the 911 call testified she was dispatched

following several 911 calls concerning the beating. She described the injuries she

observed on the daughter as including a golf ball size lump on the back of her head,

bruising above the right eye, and scratches and abrasions. The deputy impeached the

daughter’s testimony with statements she had made to the deputy after the incident. The

daughter told the deputy that her father slammed her head into the pavement about three

times and began kicking her until someone stopped him.

       Defendant’s girlfriend of five years testified that after the daughter hit and

scratched defendant, she stopped the car, and the daughter got out. Defendant then got

out and was walking slowly. He acted disoriented and could barely stand. The daughter

ran toward him and attacked him again, punching him like a punching bag as a man

would do. Defendant tried to pull away, but his daughter kept cursing and attacking until

they both fell down, and she hit her head.

       Defendant did not testify.




                                                 3
                             PROCEDURAL BACKGROUND

       The prosecutor included the misdemeanor lesser included offense in her request

for instructions. Defense counsel submitted no instructions.

       The court released the jury for an early lunch, advising them that he needed “to go

over with the attorneys the instructions [and] the law that applies to this case that I’m

going to read for you. [¶] Before I read it to you, I have to make sure that all parties

agree to it. And this will give us a half hour to do that.” The jury instruction discussion

was not reported.

       After the lunch recess and before the jury was brought into court, the trial court

referenced “[t]he instructions, counsel and court reviewed. [¶] Do you both accept the

instructions to be given in this case?” Both responded in turn, “Yes, your Honor.”

                                        DISCUSSION

       According to the majority, defendant’s general assent to the packet of jury

instructions—which included an instruction on the lesser included offense—is

insufficient to constitute a forfeiture of the statute of limitations issue. (People v.

Williams (1999) 21 Cal.4th 335, 341 (Williams).) I respectfully disagree.

       In Williams, supra, 21 Cal.4th at pages 337-338, our Supreme Court declined to

apply forfeiture where a defendant was convicted of a crime charged in the information

that, on its face, occurred outside the statute of limitations period because the trial court

lacked subject matter jurisdiction. The Supreme Court stated the statute of limitations

could be raised at any time. The issue was not raised by defendant until he appealed. He

did not demur to the information. (Pen. Code, §§ 1002-1004, 1012.) Nor did he

                                               4
otherwise raise the running of the statute at his bench trial.

       It is readily apparent that counsel in Williams rendered ineffective assistance by

not objecting in some manner since there could be no tactical reason to allow a time-

barred charged offense to be prosecuted to the detriment of the defendant. There could

be no possible benefit to a defendant in doing so.2 The Williams court concluded the

defendant could not “inadvertently” be convicted of the time-barred charged offense

without an express waiver of the statute of limitations. (Williams, supra, 21 Cal.4th at

p. 338.)3

       The Williams court expressly limited its holding to crimes actually pleaded in the

charging document itself. “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

        2 A claim of ineffectiveness of counsel requires a two-pronged showing of
deficient performance and prejudice to a defendant. (People v. Hernandez (2012)
53 Cal.4th 1095, 1105, citing Strickland v. Washington (1984) 466 U.S. 668, 687.)
        3 Before Williams, our Supreme Court in Cowan v. Superior Court (1996)
14 Cal.4th 367, 371 (Cowan), created an exception to the general rule that the statute of
limitations may be raised at any time. Cowan held that a defendant may enter a plea of
guilty to a time-barred lesser included offense if the defendant expressly waives the
statute of limitations when the waiver is for his or her benefit. (Id. at p. 370.)
        In Cowan, the defendant in a capital prosecution was charged in 1994 with
committing three murder offenses in 1984. The defendant was allowed to plead to one
count of voluntary manslaughter as a lesser included offense in exchange for a dismissal
of the remaining charges. The statute of limitations on that lesser included offense had
already expired at the time the charging document was filed. Nonetheless, the Supreme
Court concluded that the statute of limitations could be waived by the defendant as it
existed for his benefit and that doing so did not violate public policy. (Cowan, supra,
14 Cal.4th at p. 374.) The Cowan court concluded that because the trial court had
jurisdiction over the charged murder counts, it retained jurisdiction over the lesser
included offense. When a court accepts a plea to a time-barred lesser included offense, it
acts in excess of jurisdiction, but it does not lack fundamental jurisdiction. (Id. at
pp. 373-374.)

                                               5
offenses when the charged offense is not time-barred.” (Williams, supra, 21 Cal.4th at

p. 338.) “Conviction, by plea or otherwise, of a lesser offense than the one charged

involves separate concerns and problems not present here. Issues regarding lesser

offenses may arise in a variety of factual contexts. We express no opinion on the proper

resolution of any such questions but leave them for future appellate courts to decide in

cases that actually present them. Today’s decision involves only a conviction of a

charged offense that, so far as the face of the charging document shows, is untimely.”

(Id. at p. 346, fn. omitted.)

       Shortly after the decision in Williams, the First District Court of Appeal decided

People v. Stanfill (1999) 76 Cal.App.4th 1137 (Stanfill). There, the defendant was

charged with felony embezzlement of public funds for which there was a three-year

statute of limitations. He requested a lesser included misdemeanor offense instruction,

which the trial court gave. The jury found the defendant guilty of the misdemeanor

offense. He appealed, correctly claiming the one-year statute of limitations had run on

the misdemeanor offense.

       After a thorough discussion of Cowan and Williams and the reasons for and

against the application of the forfeiture doctrine, the Stanfill court applied a forfeiture rule

where the requested time-barred offense is a lesser included offense of a charged offense

that itself was not time-barred. The court concluded that the Williams court’s concern

about applying forfeiture in the context of a time-barred charged crime was not as great

in the context of a lesser included offense. (Stanfill, supra, 76 Cal.App.4th at pp. 1148-

1150.) Applying forfeiture to time-barred lesser included offenses discourages a

                                               6
defendant from trifling with the court by preventing him or her from remaining silent

about an expired statute of limitations, avoiding the ritual of a formal waiver, and then

receiving a reversal of the conviction on appeal on the grounds he or she did not

expressly waive the statute. (Id. at p. 1148.)

       The Stanfill court held: “[A] defendant forfeits the right to complain on appeal of

conviction of a time-barred lesser included offense where the charged offense was not

time-barred and the defendant either requested or acquiesced in the giving of instructions

on the lesser offense. In other words, a defendant must raise the issue in the trial court in

order to preserve it for appeal.”4 (Stanfill, supra, 76 Cal.App.4th at p. 1150.)


       4  Although the Supreme Court has not yet had occasion to decide whether
forfeiture should apply in a case such as this, it adopted the reasoning of Stanfill in an
analogous situation. In People v. Simon (2001) 25 Cal.4th 1082, the defendant was tried
and convicted of two felony counts in the wrong venue, but he failed to raise the issue of
improper venue at his preliminary hearing before the former municipal court held him to
answer and the case was certified to the superior court for trial. The Supreme Court held,
“a defendant in a felony proceeding who fails timely to assert an objection to the venue in
which the proceeding has been brought and is to be tried should be found to have
forfeited any right to object to trial in that venue.” (Id. at p. 1103.) Relevant for my
purposes, the court noted, “because even when a criminal charge is filed in a county other
than a statutorily authorized venue, a defendant may not view the location in which the
charge has been filed as unduly burdensome or undesirable, but on the contrary may
prefer for strategic reasons to be tried in that venue rather than in a statutorily designated
locale, there is a compelling basis for not permitting a defendant who has remained silent
and has allowed the proceeding to go forward in the initial location, thereafter to raise a
claim of improper venue during trial or on appeal.” (Id. at p. 1104.)
        And in a footnote, the Simon court stated: “Because a defendant’s failure to raise
a timely objection to venue often will reflect a strategic decision on the part of the
defense, and because the commencement of a proceeding in an improper venue is a
defect that easily can be remedied if timely raised, the issue before us is readily
distinguishable from a defendant’s failure timely to raise a claim that the statute of
limitations on a charged criminal offense has run. Consequently, our decision in People
v. Williams, supra, 21 Cal.4th 335, reaffirming the long-standing rule that a criminal

                                                 7
       The facts of our present case differ slightly from Stanfill. Here, defendant did not

request an instruction on the time-barred lesser included offense, but he affirmatively

accepted the instructions which included one. That puts the facts of the present case

squarely within the “or acquiesced” rubric of Stanfill.

       In my view, accepting the instructions constituted consent to instructing on the

time-barred lesser offense and is tantamount to requesting it. It is essentially a distinction

without a difference. Whether requesting it or simply acquiescing or accepting that it be

given, the result is the same—consent to the instruction has been given. Counsel agreed

that it be given, and there were obvious sound tactical reasons for doing so. Defendant

was convicted of the misdemeanor and avoided the more serious consequences of a

felony conviction that may have occurred if the jury’s only other choice was a total

acquittal.

       Under these circumstances, agreeing to instruct the jury on the time-barred lesser

offense was beneficial to defendant and, in my view, defense counsel rendered effective

assistance in accepting the instruction whether he knew the lesser offense was time-

barred or not. It should not really matter to a defendant or his counsel whether the lesser



Footnote continued from previous page
defendant’s failure to raise a statute of limitations claim prior to or at trial does not
constitute a forfeiture of such a claim, is consistent with our determination in the present
case that the general forfeiture doctrine is applicable to a claim of improper venue.
(Cf. People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150 [holding that, because of the
substantial risk of gamesmanship, ‘a defendant forfeits the right to complain on appeal of
conviction of a time-barred lesser included offense where the charged offense was not
time-barred and the defendant either requested or acquiesced in the giving of instructions
on the lesser offense’].)” (Simon, supra, 25 Cal.4th at p. 1104, fn. 15.)

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offense was time-barred because a misdemeanor conviction is obviously always

preferable to a felony conviction if the jury is not otherwise disposed to acquit.

Forfeiture is appropriate on the facts of this case.

       In Williams, there could be no tactical reason for a defendant to fail to demur or

otherwise object to a charged crime that is time-barred on its face. Failure to object

constituted ineffective assistance of counsel as the court lacked jurisdiction. The

nonforfeiture rule of Williams makes perfect sense on its facts.

       In Cowan, there was a sound tactical reason for the defendant to plead to a time-

barred charge of manslaughter. By pleading to that charge, he received the benefit of

certainty regarding the consequences of a plea to the lesser charge rather than the

uncertainty of taking his chances at trial in a multiple count capital murder case.

       Likewise, in our case, there is a benefit to defendant, as discussed ante, because

there is an obvious sound tactical reason for defense counsel to consent to instructing the

jury on the time-barred misdemeanor even on this otherwise silent record.5

       Cowan, Williams, and Stanfill have suggested taking an express waiver from a

defendant and advised putting on the record any statute of limitations issues. (See

Cowan, supra, 14 Cal.4th 367; Williams, supra, 21 Cal.4th at pp. 344, 346, & fn. 5



       5  Defendant has not raised an ineffective assistance of counsel claim on direct
appeal. The record is inadequate to do so. However, defendant has not concomitantly
filed a petition for habeas corpus raising ineffective assistance of counsel with any
accompanying affidavits providing facts demonstrating ineffective assistance that fall
outside the record. He could have done so. (Stanfill, supra, 76 Cal.App.4th at pp. 1149-
1150, citing Williams, supra, 21 Cal.4th at pp. 342-343.)


                                               9
[offering advice to place the issue on the record to forestall ineffective assistance claims,

but leaving “to future courts, however, to decide the legal significance of the absence of

an express waiver following conviction of a time-barred lesser offense”]; Stanfill, supra,

76 Cal.App.4th at p. 1148].) It is good advice, but that advice has been largely ignored.

The majority opinion, in effect, announces a new mandatory express waiver rule for time-

barred lesser included offenses that our Supreme Court has heretofore not required.

Under the majority’s rule, without the express waiver, a conviction of a time-barred

lesser included offense will always result in a reversal on appeal. I would not create such

a new rule.

       While it is frustrating to have a silent record, a conviction of a time-barred lesser

included offense should not be overturned on appeal where there is an obvious benefit to

a defendant to request, or expressly acquiesce in giving, an instruction on the lesser

offense. I believe most defense counsel would agree that if they cannot get an acquittal

or hung jury at trial, a conviction of a misdemeanor is preferable to a conviction for a

felony. Whether that misdemeanor is time-barred or not would be irrelevant to a defense

counsel’s tactical decision to avoid the consequences of a felony conviction.6

       The reasoning of Stanfill is sound. A defendant who does not object to instructing

on a time-barred misdemeanor lesser included offense, where there is a possible benefit

to him or her, should not be allowed on appeal to complain he or she was convicted of


       6 If a defense counsel objected to instructing the jury on a time-barred lesser
misdemeanor offense, and a defendant was convicted of a felony, I would anticipate an
inevitable claim of ineffective assistance of counsel on appeal.

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that misdemeanor when, without it, he or she may have left the courtroom a convicted

felon.

         Defendant in the present case affirmatively allowed the jury to be instructed on the

time-barred lesser misdemeanor offense, and he was convicted of that offense. On

appeal, he has no cause for complaint, let alone receive a windfall acquittal. We should

not countenance a rule that allows a defendant to effectively say, “Heads I win, tails you

lose.”


                                                                 McKINSTER
                                                                                 Acting P. J.




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