Opinion
MOORE, J. Peter Sabatino Ognibene appeals his conviction for nine counts of grand theft. He contends his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. We affirm.
[1288]Ognibene was charged with nine counts of grand theft for taking funds from nine automobile agencies. He bought cars from individuals, reduced the mileage shown on the odometers, and sold the cars to used car dealers. At the end of his defense, Ognibene requested a jury instruction on the lesser related offense of odometer tampering, a misdemeanor on which the statute of limitations had run. He offered to waive the statute of limitations. The trial court concluded it was precluded from giving the lesser related offense instruction because it was time-barred and the statute of limitations could not be waived. The jury returned verdicts of guilty on all nine felony counts.
We face two distinct issues in this case. The first is whether a criminal defendant has the right to waive the statute of limitations so he can be convicted of a lesser offense than that charged. The second is, assuming the statute of limitations cannot be waived, whether the defendant nonetheless has a right to have the jury instructed on the lesser related offense, even though conviction of the lesser offense would effectively result in an acquittal. We answer both queries in the negative.
I. Waiver of the Statute of Limitations
It has been well established that the statute of limitations is jurisdictional in criminal cases and the court’s jurisdiction “cannot be conferred by the mere act of a litigant, whether it amounts to consent, waiver, or estoppel . . . . [Citations.]” (People v. Chadd (1981) 28 Cal.3d 739, 757 [170 Cal.Rptr. 798, 621 P.2d 837]; see also People v. Morris (1988) 46 Cal.3d 1, 13, fn. 4 [249 Cal.Rptr. 119, 756 P.2d 843]; In re Demillo (1975) 14 Cal.3d 598, 601 [121 Cal.Rptr. 725, 535 P.2d 1181]; People v. McGee (1934) 1 Cal.2d 611, 613-614 [36 P.2d 378].) Although some jurisdictions allow a defendant to waive the statute of limitations (see People v. Zamora (1976) 18 Cal.3d 538, 547, fn. 6 [134 Cal.Rptr. 784, 557 P.2d 75] [citing examples from other jurisdictions]), stare decisis compels us to find that a California defendant cannot waive the statute of limitations for any purpose.
Defendant relies on Spaziano v. Florida (1984) 468 U.S. 447 [82 L.Ed.2d 340, 104 S.Ct. 3154], where the United States Supreme Court held that due process considerations demand in capital cases that a defendant be allowed to waive the statute of limitations on lesser included, noncapital offenses so that the jury may be instructed on those offenses. However, Spaziano specifically limits itself to capital cases (id. at p. 456 [82 L.Ed.2d at pp. 349-350]) and cannot be read to impose a similar requirement on noncapital cases.
Therefore, the trial court correctly ruled that Ognibene could not waive the statute of limitations on the misdemeanor of tampering with an odometer.
[1289]II. Right to Instruction on Time-barred Lesser Related Offense
In People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303], our Supreme Court held that a trial court must grant a defendant’s request for jury instructions on lesser related offenses in certain situations. The right to lesser related offense instructions exists “to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.” (Id. at p. 531.) The instruction must be given when: (1) There exists “some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged”; (2) the offense is “closely related to that charged and shown by the evidence”; and (3) the instruction is “justified by the defendant’s reliance on a theory of defense that would be consistent with a conviction for the related offense.” (Ibid.) We must consider whether a request for an instruction on a lesser related offense'is properly denied when the offense is time-barred.
In People v. Vallerga (1977) 67 Cal.App.3d 847 [136 Cal.Rptr. 429], the Court of Appeal ruled that the trial court did not violate its sua sponte duty to instruct on a lesser included offense which was barred by the statute of limitations because the defendant could not be convicted of the lesser offense. (Id. at pp. 878-883.) Subsequently, our Supreme Court held that even though a defendant is constitutionally entitled to instructions on lesser included offenses, a trial court is not required to give sua sponte instructions on a time-barred lesser included offense because the defendant cannot be convicted of such an offense. (People v. Diedrich (1982) 31 Cal.3d 263, 283 [182 Cal.Rptr. 354, 643 P.2d 971].)
Although instructive, Vallerga and Diedrich obviously differ from the case before us in that they address whether a sua sponte duty exists to instruct on a time-barred, lesser included offense. Here, the issue is whether a court that is requested to do so must instruct, pursuant to Geiger, on a lesser related offense which is time-barred.
People v. Brice (1988) 206 Cal.App.3d 111 [253 Cal.Rptr. 370] is the only case to deal with this precise issue. In Brice, the defendant was charged with murder and conspiracy to commit murder. Upon his. request the trial court instructed the jury on the lesser related offense of accessory. The defendant was acquitted on the murder and conspiracy charges but convicted of accessory. On appeal, he contended his accessory conviction should be reversed because it was time-barred. The court agreed, rejecting the People’s argument that defendant had waived the statute of limitations by requesting [1290]the instruction. Brice concluded that because the statute of limitations in criminal cases is jurisdictional, it cannot be waived. (Id. at p. 114.) It also rejected the contention that instructions on time-barred lesser related offenses are required by due process considerations. “Where the limitations period has expired as to a lesser crime the trial court properly declines to instruct the jury as to such offense.” (Id. at p. 115.)
While People v. Diedrich, supra, 31 Cal.3d at pages 283-284, held that a trial court need not give sua sponte instructions on time-barred offenses, its logic is no less compelling when such instructions are requested. “We see no reason for a contrary rule where the requested instruction relates to a lesser related offense within the meaning of Geiger rather than a necessarily included crime.” (People v. Brice, supra, 206 Cal.App.3d at p. 115.) “[The case law] does not require that the jury be tricked into believing that it has a choice of crimes for which to find the defendant guilty, if in reality there is no choice. Such a rule not only would undermine the public’s confidence in the criminal justice system, but it also would do a serious disservice to the goal of rationality on which [the case law] is based.” (Spaziano v. Florida, supra, 468 U.S. at p. 456 [82 L.Ed.2d at pp. 349-350].)
We acknowledge there is tension between Spaziano, which focuses on the deleterious effects of a rule requiring instructions on time-barred, lesser included offenses, and Geiger, which recognizes a defendant’s right to instructions on lesser related offenses in certain circumstances. Nevertheless, we find the logic of Spaziano compelling. Any other result would amount to a triumph of form over substance and would seriously undermine the credibility of our criminal justice system. Imagine the reaction of a citizen-juror who, after finding a defendant guilty of a lesser related misdemeanor, was informed that the jury’s guilty verdict was a nullity and effectively resulted in a complete acquittal. Such sleight of hand cannot be tolerated in a system which strives for openness and honesty.
Accordingly, while the concerns which Geiger sought to address remain valid, they must not be viewed in a vacuum. Geiger was promulgated in the context of viable lesser related offenses which could result in valid criminal convictions. But when those lesser offenses are time-barred, they are mere phantoms and ought not be imposed upon an unsuspecting jury.1
Sills, P. J., concurred.
By letter, defendant calls our attention to People v. Superior Court (Ongley) (1987) 195 Cal.App.3d 165 [240 Cal.Rptr. 487], which held that a “wobbler” (an alternate felony-misdemeanor) filed as a misdemeanor was not time-barred when filed more than a year after the commission of the offense because wobblers, no matter how filed, enjoy the three-year statute of limitations applicable to most felonies. (Id. at p. 169; see also Pen. Code, § 805, subd. (a).) But, here the proposed lesser related offense of odometer tampering was not a [1291]wobbler but a straight misdemeanor. (Veh. Code, § 28051.) As such, it was subject to the general one-year statute of limitations applicable to misdemeanors (Pen. Code, § 802, subd. (a)), and clearly would have been time-barred.