THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS WILLIAMS, Defendant and Appellant, 21 Cal. 4th 335

Opinion 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 Ms benefit” (id. at p. 370) 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.) 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 tiie 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, 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; 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.) 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[] 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.)” (Cowan, supra, 14 Cal.4th at pp. 371-372.) 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.) 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, 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.” (Cowan, supra, 14 Cal.4th at p. 374.) Two separate opinions did discuss the question. (Id. at pp. 378-383 (conc. opn. of Chin, J.) [arguing against a forfeiture rule], and pp. 383-393 (conc. & dis. opn. of Brown, J.) [arguing for a forfeiture rule].) The question is presented here, 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.

If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing. Principles of stare decisis alone caution against swinging from one extreme to another. In Cowan, we modified the rationale of our prior cases to adapt it to an unanticipated circumstance, but here the Attorney General asks us to overrule these cases entirely.

It has been “ ‘well settled’ ” for over 60 years that the statute of limitations cannot be forfeited by the mere failure to assert it. (Chadd, supra, 28 Cal.3d at p. 757.) The issue here is not whether we should adopt that rule, but whether we should overrule it. (See People v. Latimer (1993) 5 Cal.4th 1203, 1212 [23 Cal.Rptr.2d 144, 858 P.2d 611].) No good reason appears to do so. Creating a new forfeiture rule 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. For example, suppose a person was charged with a burglary that had occurred 20 years earlier. The information, on its face, makes clear the prosecution is time-barred. The defendant had lived a law-abiding life in the interim. At arraignment, he forthrightly admits his guilt, waives his right to an attorney, and pleads guilty. The next day, he learns of the statute of limitations.

We do not believe he should be bound forever. That is what we have repeatedly said for 60 years. The Attorney General presents a number of arguments why we should adopt a forfeiture rule, none persuasive. In part, the Attorney General “adopts” the reasoning in Justice Brown’s concurring and dissenting opinion in Cowan, supra, 14 Cal.4th at pages 383-393. As noted in that opinion, most jurisdictions have rejected California’s former approach. (Id. at p. 389.) We have long recognized that the California rule was different from that of other jurisdictions. (People v.

Zamora (1976) 18 Cal.3d 538, 547, fn. 6 [134 Cal.Rptr. 784, 557 P.2d 75].) But even these jurisdictions do not take a uniform approach. Some have adopted the forfeiture rule the Attorney General urges here. Others require an express waiver, as defendant urges. (See Cowan, supra, 14 Cal.4th at p. 389 (conc. & dis. opn. of Brown, J.).) We believe our long-standing nonforfeiture rule is preferable when the defendant is convicted of the charged offense and the charging document indicates the action is time-barred.

When defendants are represented by counsel, as most are, a forfeiture rule in this situation would be an exercise in futility. Were we to adopt that rule here, for example, this defendant undoubtedly would simply claim counsel was ineffective for not raising the statute of limitations at trial. (See People v. Pope (1979) 23 Cal.3d 412, 424-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) The Attorney General suggests no possible tactical reason for defendant not to seek to have the charge dismissed.

Defendants would usually gain indirectly by claiming ineffective assistance of counsel what a forfeiture rule would prevent them from gaining directly. A forfeiture rule would merely add a step to the litigation. Only those who admitted their guilt right away and did not request an attorney could never gain relief. Given a forfeiture rule, those persons could neither assert the statute of limitations nor claim ineffective assistance of counsel because they had no counsel.

They would forever have a criminal conviction and might serve a prison sentence in an action that would have been dismissed had they only asked. A rule that achieves these results has little to commend it. Our concern about ineffective assistance of counsel claims is not merely theoretical. Although there are no examples of such claims in California, where there is no forfeiture rule, they are abundant in other jurisdictions which have a forfeiture rule in theory but not in practice. In U.S. v. Hansel (2d Cir. 1995) 70 F.3d 6, the defendant pleaded guilty to a time-barred offense.

The court held that because, in that jurisdiction, the statute of limitations was an affirmative defense, the defendant could not raise it directly. However, the court allowed the defendant to raise it indirectly: “Hansel’s counsel’s failure to object to the time-barred counts is unaccountable in the circumstances, and cannot ‘be considered sound trial strategy.’ . . . Hansel’s prejudice is that he pled guilty to two time-barred counts that would have been dismissed, if his attorney had acted competently. Hansel’s counsel was therefore ineffective under Strickland [v.

Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]], and Hansel’s Sixth Amendment right to counsel was thereby impaired. Hansel’s waiver of the time-bar defense cannot be deemed knowing and intelligent: we may assume that he would not have pled guilty to counts that he knew to be time-barred.” (U.S. v. Hansel, supra, 70 F.3d at p. 8.) In People v. Brocksmith (1992) 237 Ill.App.3d 818 [178 Ill.Dec. 536, 604 N.E.2d 1059], the defendant requested, and the court gave, instructions on a time-barred lesser included offense. The jury convicted the defendant of the lesser offense.

On appeal, the defendant argued the offense was time-barred. The court rejected the argument, finding the defendant had waived, i.e., forfeited, the claim. It therefore affirmed the conviction on direct appeal. (Id. at pp. 1064-1065.) However, the court went on to grant postconviction relief because of ineffective assistance of counsel.

The defendant alleged that defense counsel “had submitted the instruction on the issue without defendant’s informed consent,” and “[t]he trial court found that defense counsel had not discussed the statute of limitations with Brocksmith.” (Id. at p. 1065.) Relying on “the attorney’s failure to adequately present facts to the defendant to allow defendant to make an informed decision,” the appellate court found that “the decision to submit the lesser offense instruction and thus to waive the statute of limitations was not the product of informed consent.” (Id. at pp. 1065-1066.) The court found that when a decision to request jury instructions “includes a decision whether to waive a statute of limitation, the defendant must be consulted.

The right to waive the statute belongs to the defendant and should not be assumed from the action of counsel in this situation.” (Id. at p. 1066.) It concluded that “defendant was denied his constitutional right to effective assistance of counsel” and set aside the conviction. (Ibid.) We need not discuss the facts of similar cases. The following cases grant relief on ineffective assistance of counsel grounds even though the defendant had supposedly forfeited the statute of limitations. (Com. v. Barrett (1994) 14 Mass. 788 [641 N.E.2d 1302, 1306 ]; People v.

Gwinn (1994) 255 Ill.App.3d 628 [194 Ill.Dec. 362, 627 N.E.2d 699]; State v. Wiemer (1995) 3 Neb.App. 821 [533 N.W.2d 122, 132-134] [ordering an evidentiary hearing]; Com. v. Groff (1988) 378 Pa.Super. 353 [548 A.2d 1237, 1244-1248].) In U.S. v. Oliva (3d Cir. 1995) 46 F.3d 320, 325, the court found the statute of limitations claim had been waived and left the claim of ineffective assistance for a collateral proceeding. We see no good reason to invite the development of a similar jurisprudence in California.

The Attorney General analogizes the statute of limitations to the rule against double jeopardy, and quotes an early case that was cited in McGee, supra, 1 Cal.2d at page 613: “The statement of former acquittal is no different in law than a statement that the statute of limitations had run on the crime, the result of both being that defendant could not thereafter be prosecuted for the offense whether originally guilty or not.” (People v.

Hoffman (1933) 132 Cal.App. 60, 62-63 [22 P.2d 229].) “But,” the Attorney General notes, “double jeopardy has long been a defense which can be forfeited by failing to assert it at trial. (See People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354].)” It is true that if the defendant does not assert a double jeopardy claim at trial, it “is ‘technically’ not cognizable on appeal.” (People v.

Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354].) In Scott and other cases, we considered the double jeopardy claim on the merits indirectly through a claim of ineffective assistance of counsel. (Ibid., and cases cited.) A significant difference exists, however, between double jeopardy and statutes of limitations, which compels the forfeiture rule for the former but not the latter. Penal Code sections 1016 and 1017 require the defendant to plead double jeopardy as an affirmative defense.

These statutes form the basis of the double jeopardy forfeiture rule. (In re Harron (1923) 191 Cal. 457, 467 [217 P. 728]; In re Lozoya (1956) 146 Cal.App.2d 702, 703-704 [304 P.2d 156].) No similar statutory provision exists for statute of limitations claims; the Legislature has not enacted one in the sixty years since we decided McGee, supra, 1 Cal.2d 611. We decline to do what the Legislature has not done in all that time. If the Legislature wants to adopt a forfeiture rule, it can do so at any time.

Justice Brown’s opinion in Cowan argued that “Since McGee was decided, the determination of whether the statute of limitations applies in a given case has become an extraordinarily complex and time-consuming task, often requiring both factual development and the resolution of difficult legal issues,” and “[g]iven the complexities of our modem criminal statutes of limitations, without an adequate record, the trial court cannot properly assess issues arising under the statutes, and meaningful appellate review is virtually impossible.” (Cowan, supra, 14 Cal.4th at pp. 387, 388 (conc. & dis. opn. of Brown, J.).) We agree on the need for an adequate record.

The record here is utterly inadequate. No reviewing court can meaningfully assess whether the statute of limitations had expired or whether counsel was ineffective for not raising the issue. Either an express waiver of the statute of limitations or a charging document that contains allegations making the action timely would aid the reviewing court’s task immensely.

Moreover, the problem here is limited to those cases in which the prosecution files a charging document that, on its face, indicates the offense is time-barred. “[W]here the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, for example, that the defendant has been absent from the state, the power to proceed in the case is gone.” (McGee, supra, 1 Cal.2d at pp. 613-614, italics added.) McGee does not apply to an information that, as it should, either shows that the offense was committed within the time period or contains tolling allegations.

Although, under our cases, defendants may not forfeit the statute of limitations if it has expired as a matter of law, they may certainly lose the ability to litigate factual issues such as questions of tolling. This point was explained in People v. Padfield (1982) 136 Cal.App.3d 218 [185 Cal.Rptr. 903]. There the information alleged discovery of the crime within the limitations period, an allegation that, if true, would make the prosecution timely. The defendant pleaded nolo contendere, then sought to assert the statute of limitations on appeal.

While recognizing the McGee line of cases, the appellate court held the defendant had waived his right to litigate the factual question whether the offense was time-barred. “[W]hen the pleading is facially sufficient, the issue of the statute of limitations is solely an evidentiary one. The sufficiency of the evidence introduced on this issue does not raise a question of jurisdiction in the fundamental sense.” (People v. Padfield, supra, 136 Cal.App.3d at p. 226.) “By pleading nolo contendere, defendant admitted the sufficiency of the evidence establishing that the statute of limitations was tolled ....

Having admitted the sufficiency of that evidence by his plea, he cannot now challenge it with a forked tongue on appeal.” (Id. at p. 227; see also People v. Lewis (1986) 180 Cal.App.3d 816, 821 [225 Cal.Rptr. 782] [“ ‘Nothing in the case law requires reversal or retrial for jurisdictional defects when those defects are as a matter of law cured on the undisputed record. ... To decide otherwise in this case would be to require further proceedings at the trial level which could be of no legal benefit to the appellant but which would most certainly waste his time and the taxpayers’ money.’ ” (Quoting People v.

Posten (1980) 108 Cal.App.3d 633, 648-649 [166 Cal.Rptr. 661].)].) The Attorney General argues that “[Requiring a defendant to raise the limitations defense in the trial court will encourage the parties to focus on the issue at that level, where an adequate record can be developed.” But our long-standing rule requiring the prosecution to file a charging document that is not, on its face, time-barred also encourages the parties to focus on the issue at that level.

In a similar vein, the Attorney General complains that “principles of due process are violated when a conviction is vacated based on a ground to which the People have no opportunity to respond.” However, the prosecutor has full control over the charging document. Here, the district attorney could easily have alleged in the information either that an arrest warrant issued before the time period had expired, or that the- action was filed timely after discovery of the crime, or both (assuming either allegation is factually supported).

The silent record is partly the defendant’s fault for not raising the issue at trial. It was, however, the prosecution’s fault in the first instance for filing an information that, on its face, was untimely. In that situation, the fairest solution is to remand the matter to determine whether the action is, in fact, timely. The Attorney General and supporting amicus curiae Criminal Justice Legal Foundation argue that a forfeiture rule would avoid “gamesmanship,” and that without such a rule defense counsel might “sandbag” the trial court.

We see no significant potential for gamesmanship or sandbagging when the defendant is convicted of a charged offense that the charging document indicates is untimely. If the instant action is, in fact, time-barred and should have been dismissed long ago, defendant has not gained by his delay in asserting the claim. Similarly, if on remand, the trial court determines the action is not time-barred, the conviction will stand despite the prosecution’s error in filing an information that appeared time-barred—again, resulting in no benefit to defendant.

The “gamesmanship” argument is generally made in the context of convictions of time-barred lesser offenses when the charged offense is timely. (See Cowan, supra, 14 Cal.4th at p. 392 (conc. & dis. opn. of Brown, J.); dis. opn. of Brown, J., post, at p. 350.) Although McGee itself applied only “where the pleading of the state shows that the period of the statute of limitations has run” (McGee, supra, 1 Cal.2d at p. 613), some intermediate appellate court decisions have extended its rule to convictions of lesser offenses. (See Cowan, supra, 14 Cal.4th at pp. 385-387 (conc. & dis. opn. of Brown, J.).) 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. III. Conclusion We affirm the judgment of the Court of Appeal. George, C. J., Mosk, J., Baxter, J., and Werdegar, J., concurred.

We explained in Cowan that courts have used the word “waiver” loosely to describe either of two distinct concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. (Cowan, supra, 14 Cal.4th at p. 371.) In context, the word “waived” quoted here in the text clearly means forfeited. In this opinion, when we mean losing a right by failing to assert it, we will use the term “forfeiture.” We will use the term “waiver" only in the sense of intentionally relinquishing a known right.

Some of the following discussion is adapted from Justice Chin’s concurring opinion in Cowan, supra, 14 Cal.4th at pages 378-383. This case presents no issue regarding the rules to apply when the defendant does assert the statute of limitations at trial. A variety of issues may arise in many different factual contexts. We leave these questions to future courts.

In the middle of a paragraph discussing conviction of time-barred lesser offenses, Justice Brown describes this statement as “myopic.” (Dis. opn. of Brown, J., post, at p. 350.) But she does not suggest how there could be sandbagging or gamesmanship when the defendant is convicted of a charged offense, which is all this case involves. As noted in the next paragraph of the text, conviction of lesser offenses presents different questions, on which we express no opinion.

In Cowan, we advised “trial courts and prosecutors that whenever a defendant seeks to plead guilty to, or a court considers whether to instruct the jury on, a lesser offense, they should determine whether there may be a problem with the statute of limitations regarding that offense. If so, the court should elicit a waiver of the statute as a condition of the guilty plea or giving the. instruction.” (Cowan, supra, 14 Cal.4th at pp. 376-377.) This advice remains good. At the least, an express waiver would forestall some claims of ineffective assistance of counsel and help courts assess any claims actually made.

We leave to future courts, however, to decide the legal significance of the absence of an express waiver following conviction of a time-barred lesser offense.