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SUMMARY OF FACTS AND CASE

On January 31, 1995, the prosecution filed a felony complaint with arrest warrant. (Id. at p. 5.) Defendant first appeared in court on the day he was arrested, March 9, 1995. (Respondent's Brief at p. 2.) Defendant's preliminary hearing was held on March 23, 1995, at which time he did not raise any affirmative defense, but he did move to dismiss the case for insufficient evidence. (Typed opn. at p. 1.) Rather than grant defendant's motion, "the court amended the complaint to conform to proof and ordered that defendant be held to answer." (Ibid.)

The information was filed in superior court on April 7, 1995, and charged defendant with one count of perjury in violation of Penal Code section 118. (Id. at p. 2.) Having waived a jury trial, defendant was thereafter convicted by the court and was sentenced to three years in prison with an additional $3000 restitution fine. (Id. at pp. 2-4.)

For the first time on appeal, defendant alleged that the trial court was without jurisdiction to convict defendant of perjury "[b]ecause the perjury allegation was, on its face, time barred" and because the information did not allege any facts tolling the statute of limitations. (Id. at p. 4.) Consequently, defendant argued that the court of appeal must vacate the judgment. (Ibid.) The People responded that the complaint with the arrest warrant met the deadline or, in the alternative, that upon remand the prosecution should be allowed "to amend the pleadings to add an allegation tolling the statute of limitations." (Id. at p. 5.) Under Penal Code section 803(c), the time does not begin running until discovery of the offense, (Id. at p. 4, fn. 4), and the People contend the offense was not discovered until April 2, 1994, barely one year before the information was filed. (See id. at p. 5.)

The Court of Appeal recognized that the undecided issue in Cowan v. Superior Court (1996) 14 Cal.4th 367, i.e., whether the statute of limitations should be declared an affirmative defense which is forfeited if not raised before or at trial, was important to deciding the issue before it. (Typed opn. at p. 6.) Either the issue was forfeited or the case needed to be remanded to the trial court, depending on whether the Court of Appeal applied Justice Brown's approach in Cowan or whether "a defendant can raise a statute of limitations defense for the first time on appeal . . . ." (Ibid.)

Acknowledging that Cowan decided "that a trial court does not lack fundamental subject matter jurisdiction over a time-barred criminal action" but that "it is unclear whether the defense of statute of limitations was waived," the court remanded the case to the trial court. (Ibid.) On remand, a hearing was to be held

"to determin[e] the validity of the prosecution's claim that the statute did not bar the prosecution. If the statute had not yet run, the judgment of conviction will stand. If the trial court finds the statute had run, the court is instructed to vacate the judgment." (Ibid.)

Thereafter, this Court granted Respondent's Petition for Review.

SUMMARY OF ARGUMENT

The forfeiture rule is not contrary to the purpose of a statute of limitations because the State has a legitimate interest in not allowing criminals to avoid prosecution due to a technicality or gamesmanship on the part of the defendant. The State also has a strong interest in protecting the integrity of its procedures by requiring issues to be raised in the trial court. The right to effective assistance of counsel will provide relief in cases where there was no strategic reason for waiving the statute.

Requiring an express waiver of the statute of limitations would provide more protection than is afforded most constitutional rights. Further, requiring a defendant to raise the statute of limitations as an affirmative defense does not violate any constitutional right, including the right to due process. Moreover, the Legislature has rejected any requirement of the prosecution to include evidence of the timeliness of the charged offense in the accusatory pleading.

Finally, the majority of the state's highest courts and all of the Federal Circuit Courts of Appeals which have addressed this issue have found that the statute of limitations is an affirmative defense.

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