BROWN, J., Concurring and Dissenting. I concur in the majority’s holding that petitioner Gerald Thomas Cowan (Cowan) should be permitted to enter a no contest plea to the lesser offense of voluntary manslaughter in exchange for dismissal of the greater charges. However, I respectfully dissent from the majority’s conclusion that Cowan must expressly waive the statute of limitations for voluntary manslaughter in order to do so.
I. Factual and Procedural Background
On September 23, 1994, Cowan was charged with three counts of murder with special circumstances and a number of related enhancements. On [384]January 29, 1996, pursuant to a negotiated disposition, Cowan entered a no contest plea to one count of voluntary manslaughter and to a knife use enhancement allegation. In exchange, Cowan was to receive a maximum prison sentence of four years, and the remaining charges were to be dismissed.
Prior to sentencing, the district attorney realized that the statute of limitations had run on the charge of voluntary manslaughter. Accordingly, the district attorney filed a motion to set aside Cowan’s plea “on the grounds that the plea is illegal .... The statute of limitations is jurisdictional and cannot be waived.” At the hearing on the motion, Cowan expressly stated that he was willing to waive the statute. Nonetheless, the superior court set aside his no contest plea, concluding that the bar of the statute “is a jurisdictional defect and the parties can never stipulate to jurisdiction.” The Court of Appeal summarily denied Cowan’s petition for a writ of mandate, citing our decision in People v. Chadd (1981) 28 Cal.3d 739 [170 Cal.Rptr. 798, 621 P.2d 837], in which we held that the statute of limitations in criminal cases goes to the subject matter jurisdiction of the court and, hence, cannot be waived. (Id. at p. 757.)
We granted Cowan’s petition for review and issued an alternative writ. In his return, the district attorney states that his “opposition to [Cowan’s] argument is based not upon any philosophical disagreement with [Cowan’s] position, but rather upon sixty years of this Court’s legal precedents.” For the reasons discussed below, I would overrule these prior decisions 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.
II. Discussion
This court first adopted a jurisdictional approach in People v. McGee (1934) 1 Cal.2d 611 [36 P.2d 378] (hereafter McGee). We began by noting that “[w]hether the statute of limitations in criminal cases is jurisdictional, or a matter of defense to be affirmatively pleaded by the defendant, is a question upon which there exists some diversity of opinion.” (Id. at p. 613.) After concluding that it was “necessary that this confusion be eliminated,” we summarily declared that “the more desirable rule is that the statute is jurisdictional, and that an indictment or information which shows on its face that the prosecution is barred by limitations fails to state a public offense. The point may therefore be raised at any time, before or after judgment.” (Ibid.) The extent of our analysis was as follows: “This is, of course, a rule essentially different from that governing civil actions, and it results from the different character of the statute in the two kinds of proceedings. In civil [385]actions the statute is a privilege which may be waived by the party. In criminal cases, the state, through its legislature, has declared that it will not prosecute crimes after the period has run, and hence has limited the power of the courts to proceed in the matter. (See People v. Hoffman [(1933) 132 Cal.App. 60 (22 P.2d 229)]; State v. Bilboa [(1923)] 38 Idaho, 92 [213 Pac. 1025, 222 Pac. 785].) It follows that where 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.)
Although we have reiterated McGee's jurisdictional approach on a number of different occasions, we have offered very little in the way of additional analysis. (See, e.g., People v. Chadd, supra, 28 Cal.3d at pp. 756-757; People v. Zamora (1976) 18 Cal.3d 538, 547 [134 CaLRptr. 784, 557 P.2d 75]; In re Demillo (1975) 14 Cal.3d 598, 601-603 [121 CaLRptr. 725, 535 P.2d 1181]; People v. Rehman (1964) 62 Cal.2d 135, 139 [41 CaLRptr. 457, 396 P.2d 913]; People v. Crosby (1962) 58 Cal.2d 713, 722, 725 [25 CaLRptr. 847, 375 P.2d 839].) In Chadd, we did confirm that the reference to “the power of the courts to proceed” in McGee, supra, 1 Cal.2d at page 613, was to subject matter jurisdiction. We emphasized 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]. . . .” (People v. Chadd, supra, at p. 757.)
As previously noted, when we decided McGee in 1934, we opted for a jurisdictional approach based on our contemporaneous assessment that it was “the more desirable rule.” (McGee, supra, 1 Cal.2d at p. 613.) With the subsequent proliferation of lesser related and lesser included offenses, however, the approach began to have some unexpected consequences. For example, in People v. Rose (1972) 28 Cal.App.3d 415 [104 Cal.Rptr. 702], the defendant was charged with murder. (Id. at p. 416.) The trial court instructed the jury on both murder and the lesser offense of voluntary manslaughter. (Ibid.) After the defendant was convicted of voluntary manslaughter, the Court of Appeal, on its own motion, reversed the conviction on statute of limitations grounds. (Id. at pp. 416-418.) The court acknowledged that “the state of the record may be the result of defense strategy pointed at preventing the jury from having to choose between murder and acquittal.” (Id. at p. 417.) Nonetheless, citing McGee, supra, 1 Cal.2d 611, the court concluded that “the conviction is jurisdictionally defective and must be reversed.” (People v. Rose, supra, at p. 417.) In People v. Morgan (1977) 75 Cal.App.3d 32, 35-37 [141 Cal.Rptr. 863], the Court of Appeal [386]reached a similar conclusion with respect to an involuntary manslaughter conviction.
Even more anomalous is People v. Brice (1988) 206 Cal.App.3d 111 [253 Cal.Rptr. 370], a case in which the defendants themselves requested the lesser offense instruction at issue. In Brice, the defendants were charged with murder and conspiracy to commit murder. {Id. at p. 114.) The trial court acceded to their request for a lesser offense instruction on the crime of being accessories to murder. (Ibid.) Following its deliberations, the jury acquitted the defendants of murder and conspiracy but convicted them of being accessories to murder. (Ibid.) On appeal, the defendants argued that their convictions must be reversed because “although they requested instruction on the lesser related offense, they did not waive the statute of limitations which barfred] their conviction for that offense.” (Id. at p. 115.) Relying on McGee, supra, 1 Cal.2d 611, the Court of Appeal agreed. (People v. Brice, supra, at pp. 114-116.) In his concurring opinion, Justice Brauer pointed out the absurdity of this result: “At trial, the defendants demanded accessory-after-the-fact instructions .... When the jury convicted them of that offense, they garnered an unexpected windfall: they escaped scot-free on that charge because the statute of limitations had run.” (Id. at pp. 116-117 (conc. opn. of Brauer, J.).)
The converse of Brice occurred in People v. Ognibene (1993) 12 Cal.App.4th 1286 [16 Cal.Rptr.2d 96]. In Ognibene, the defendant was charged with several counts of grand theft and requested that the jury be instructed on odometer tampering, a time-barred lesser offense. {Id. at pp. 1287-1288.) In connection with his request, the defendant offered to waive the statute of limitations for odometer tampering. (Id. at p. 1288.) Relying again on McGee, supra, 1 Cal.2d 611, the Court of Appeal upheld the trial court’s refusal to give the requested instruction, concluding that “stare decisis compels us to find that a California defendant cannot waive the statute of limitations for any purpose.” (People v. Ognibene, supra, at p. 1288.)
Today, we come face to face with yet another unfortunate consequence of the McGee line of cases. The parties desire that Cowan, who is facing capital murder charges, be allowed to enter a no contest plea to lesser charges. However, our prior decisions holding that the statute of limitations in criminal cases goes to the subject matter jurisdiction of the court prevent him from doing so. In light of the problems that a jurisdictional approach has [387]spawned, I would overrule the McGee line of cases1 and hold that the statute of limitations in criminal cases is an affirmative defense.
There are sound practical and public policy reasons to adopt an affirmative defense approach. First, one of the primary purposes of a statute of limitations is “to foreclose the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion in an unduly delayed trial.” (United States v. Levine (3d Cir. 1981) 658 F.2d 113, 127, italics omitted.) Much like the right to a speedy trial, “[t]his purpose is related to determining fairly the factual guilt of a defendant and not with the ability of the State to bring charges against the defendant.” (Conerly v. State (Miss. 1992) 607 So.2d 1153, 1157; People v. Allen (1992) 192 Mich.App. 592 [481 N.W.2d 800, 805]; State v. Lambrechts (R.I. 1991) 585 A.2d 645, 646.) Therefore, it is not unreasonable to expect a defendant who desires the benefit of the statute to bring the issue to the trial court’s attention.
Second, by requiring a defendant to raise a statute of limitations issue in the trial court, we would encourage the parties to focus on the issue at that level, where it can be fully explored and an adequate record developed. The importance of a well-developed record in this context cannot be overemphasized. The jurisdictional approach established in McGee, supra, 1 Cal.2d 611, presupposed that it would generally be possible to tell from the face of the indictment or information whether a particular cause of action was barred by the statute of limitations. While this may have been true at the time McGee was decided, it is certainly no longer the case. Rather, with the expansion of lesser related and lesser included offenses, many causes of action—and any corresponding discovery or tolling allegations—are not even set out in the accusatory pleading. (See, e.g., People v. Ognibene, supra, 12 Cal.App.4th at p. 1288; People v. Brice, supra, 206 Cal.App.3d at p. 114; People v. Morgan, supra, 75 Cal.App.3d at p. 35; People v. Rose, supra, 28 Cal.App.3d at pp. 416-417.)2 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. [388](See, e.g., Pen. Code, § 803, subd. (c) [enumerating offenses for which the statute does not commence to run until discovery of the offense]; id., subd. (d) [tolling provisions]; People v. Bell (1996) 45 Cal.App.4th 1030,1061 [53 Cal.Rptr.2d 156] [addressing which parties qualify as “discoverers” and what constitutes “discovery” for the purposes of Pen. Code, § 803, subd. (c)]; People v. Zamora, supra, 18 Cal.3d at pp. 548-549 & fn. 7 [noting that in conspiracy cases statute does not commence to run until the last overt act committed in furtherance of the conspiracy, but observing that “adoption of a ‘last overt act’ rule does not answer the questions of what constitutes an ‘overt act’ and when an ‘overt act’ must occur.”].) Given 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.
Finally, as I explain below (see post, pp. 391-392), employing an affirmative defense approach would avoid all of the pitfalls of a jurisdictional approach that I have previously outlined. (See ante, pp. 385-386.)
Nor are there any statutory or constitutional impediments to adopting an affirmative defense approach. To the contrary, our decision in McGee, supra, 1 Cal.2d 611, was based simply on what we then perceived to be “the more desirable rule.” (Id. at p. 613.) Nothing in the language of either our state Constitution or our criminal statutes of limitations requires us to continue to adhere to a jurisdictional approach now that it has become painfully obvious that it is not, in fact, “more desirable.” (Ibid.) Even amicus curiae California Attorneys for Criminal Justice, an organization of criminal defense attorneys, acknowledges that while McGee “is robust due to its having been followed in many cases, it is relatively fragile on its face. McGee was decided prior to major modem developments in criminal procedure. Viewed in context, the ruling has little clear relevance today.”
Insofar as the federal Constitution is concerned, the United States Supreme Court itself has recognized the viability of an affirmative defense approach. (See Biddinger v. Commissioner of Police (1917) 245 U.S. 128, 135 [62 L.Ed. 193,199, 38 S.Ct. 41] [“The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases, [citation]. . . .”].) Indeed, to the extent the federal Constitution informs our analysis at all, it suggests that a strict jurisdictional approach may not be appropriate, at least in certain circumstances. (See Spaziano v. Florida (1984) 468 U.S. 447, 454-457 [82 L.Ed.2d 340, 348-351, 104 S.Ct. 3154] [suggesting that a capital defendant has a due process right to have the jury instructed on time-barred lesser included offenses provided that he is willing to waive the statute of limitations].)
[389]The adoption of an affirmative defense approach would also bring California into line with other state and federal courts that have considered the issue. With near uniformity, these courts have held that the statute of limitations in criminal cases does not go to the jurisdiction of the court but rather is an affirmative defense. (See, e.g., State v. Littlejohn (1986) 199 Conn. 631 [508 A.2d 1376, 1379-1382, 78 A.L.R.4th 675]; People v. Williams (1979) 79 Ill.App.3d 806 [35 IU.Dec. 63, 398 N.E.2d 1013, 1014]; State v. Cole (Iowa Ct.App. 1989) 452 N.W.2d 620, 621-622; Lowe v. State (1989) 14 Kan.App.2d 119 [783 P.2d 1313, 1315-1316]; Brooks v. State (1991) 85 Md.App. 355 [584 A.2d 82, 87-88]; Com. v. Steinberg (1989) 404 Mass. 602 [536 N.E.2d 606, 609]; People v. Allen, supra, 481 N.W.2d at pp. 803-806; State v. Johnson (Minn.Ct.App. 1988) 422 N.W.2d 14, 16-17; Conerly v. State, supra, 607 So.2d at pp. 1156-1158; Longhibler v. State (Mo. 1992) 832 S.W.2d 908, 910-911; State v. Wiemer (1995) 3 Neb.App. 821 [533 N.W.2d 122,132-133]; Hubbard v. State (1994) 110 Nev. 671 [877 P.2d 519, 522-523]; People v. Dickson (1987) 133 A.D.2d 492 [519 N.Y.S.2d 419, 420-421]; State v. Brown (1988) 43 Ohio.App.3d 39 [539 N.E.2d 1159, 1161-1164]; Com. v. Darush (1983) 501 Pa. 15, fn. 4 [459 A.2d 727, 730]; State v. Lambrechts, supra, 585 A.2d at pp. 646-648; United States v. Wild (D.C. Cir. 1977) 551 F.2d 418, 421-425 [179 App.D.C. 232]; Acevedo-Ramos v. U. S. (1st Cir. 1992) 961 F.2d 305, 307; United States v. Walsh (2d Cir. 1983) 700 F.2d 846, 855-856; United States v. Karlin (3d Cir. 1986) 785 F.2d 90, 92-93; United States v. Williams (4th Cir. 1982) 684 F.2d 296, 299-300; U. S. v. Arky (5th Cir. 1991) 938 F.2d 579, 581-582; U.S. v. Del Percio (6th Cir. 1989) 870 F.2d 1090, 1093-1094; United States v. Meeker (7th Cir. 1983) 701 F.2d 685, 687-688; U.S. v. DeTar (9th Cir. 1987) 832 F.2d 1110, 1114 [102 A.L.R.Fed. 117]; United States v. Gallup (10th Cir. 1987) 812 F.2d 1271, 1280.)
While all of these jurisdictions have adopted an affirmative defense approach, they have been less consistent in their implementation of the approach. Some cases appear to emphasize the existence of an express waiver; others have employed a forfeiture rule. (See Acevedo-Ramos v. U.S., supra, 961 F.2d at pp. 307-309 [noting contrary authorities and rejecting an express waiver requirement].) In this context, it is important to understand the difference between “waiver” and “forfeiture.” As we explained in People v. Saunders (1993) 5 Cal.4th 580 [20 Cal.Rptr.2d 638, 853 P.2d 1093], “the terms ‘waiver’ and ‘forfeiture’ have long been used interchangeably. The United States Supreme Court recently observed, however: ‘Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right.” [Citations.]’ (United States v. Olano [(1993) 507 [390]U.S. 725, 733 (123 L.Ed.2d 508, 519, 113 S.Ct. 1770)].)” (People v. Saunders, supra, at p. 590, fn. 6.) In my view, a forfeiture rule is preferable.3
A forfeiture rule is consistent with California precedents holding that affirmative defenses are subject to forfeiture. (See, e.g., People v. McNabb (1991) 228 Cal.App.3d 462, 471 [279 Cal.Rptr. 11]; People v. Bonwit (1985) 173 Cal.App.3d 828, 832 [219 Cal.Rptr. 297]; see also U.S. v. Arky, supra, 938 F.2d at p. 582 [“if the limitations defense is not jurisdictional, . . . then it is difficult to conceive why it alone, of all the defendant’s affirmative defenses, should not be waived if not asserted at trial.”].) And, in the case of a guilty or no contest plea, it is consistent with California precedents holding that such a plea “admits all matters essential to the conviction.” (People v. DeVaughn (1977) 18 Cal.3d 889, 895 [135 Cal.Rptr. 786, 558 P.2d 872]; In re TroyZ. (1992) 3 Cal.4th 1170, 1179-1182 [13 Cal.Rptr.2d 724, 840 P.2d 266]; see also Acevedo-Ramos v. U.S., supra, 961 F.2d at p. 308 [“As the [United States] Supreme Court has noted, its ‘decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty. Waiver in that sense is not required.’ [Citation.]”].) In addition, a forfeiture rule avoids adding still another item to the extensive plea allocution already imposed on our trial courts; it also avoids requiring our trial courts to focus on the statute of limitations while undertaking the difficult task of determining which lesser offense instructions to give in a particular case.
Our recent decision in People v. Toro (1989) 47 Cal.3d 966 [254 Cal.Rptr. 811, 766 P.2d 577] strongly supports the use of a forfeiture rule. In Toro, we considered “whether the due process right of an accused to be notified of criminal charges renders invalid a conviction for a lesser related offense when no objection was raised at trial to the jury’s consideration of the offense.” (Id. at p. 969.) We began our analysis by reiterating the well-established rule that a defendant who requests lesser related offense instructions gives up his due process right to notice. (Id. at p. 973.) We then went [391]on to extend the rule to a defendant who fails to object to such instructions, holding that by failing to object the defendant should be deemed to have given his “implied consent” to the instructions. (Id. at pp. 973-978.) Because we did not require an actual awareness on the defendant’s part that he was forsaking his due process right to notice, the term “implied consent,” as used in Toro, encompasses both “implied waiver” (intentional relinquishment of a known right through conduct) and “forfeiture” (failure to make a timely assertion of a right). In other words, a defendant who, wholly unaware that he is giving up his constitutional right to notice, fails to object to lesser related offense instructions is nonetheless deemed to have forfeited that right.4
Similarly, in a variety of other contexts, we have permitted constitutional rights to be forfeited. (See, e.g., In re Horton (1991) 54 Cal.3d 82, 100 [284 Cal.Rptr. 305, 813 P.2d 1335] [trial by a court commissioner acting as a temporary judge]; People v. Saddler (1979) 24 Cal.3d 671, 679 [156 Cal.Rptr. 871, 597 P.2d 130] [Fifth Amendment privilege against self-incrimination]; People v. Belcher (1974) 11 Cal.3d 91, 96 [113 Cal.Rptr. 1, 520 P.2d 385] [double jeopardy defense].) It would make little sense to permit the forfeiture of important constitutional rights but not to permit the forfeiture of statutory rights enumerated in statutes of limitations. (See State v. Johnson, supra, 422 N.W.2d at p. 17.)
A forfeiture rule would solve all of the problems that have arisen under a jurisdictional approach. A forfeiture rule would solve the problem that arose in this case because a defendant who pleads guilty without raising a statute of limitations defense forfeits his right to rely on the defense. (See, e.g., State v. Cole, supra, 452 N.W.2d at pp. 621-622; Lowe v. State, supra, 783 P.2d at pp. 1315-1316; Longhibler v. State, supra, 832 S.W.2d at p. 911; Hubbard v. State, supra, 877 P.2d at pp. 522-523; People v. Dickson, supra, 519 N.Y.S.2d at p. 421; State v. Brown, supra, 539 N.E.2d at pp. 1163-1164; [392]Acevedo-Ramos v. U.S., supra, 961 F.2d at pp. 307-309.) A forfeiture rule would solve the problems that arose in People v. Brice, supra, 206 Cal.App.3d 111 and People v. Ognibene, supra, 12 Cal.App.4th 1286, because a defendant who requests lesser offense instructions on a time-barred offense forfeits his right to rely on a statute of limitations defense. (See, e.g., State v. Lambrechts, supra, 585 A.2d at pp. 647-648; United States v. Williams, supra, 684 F.2d at pp. 299-300; U. S. v. DeTar, supra, 832 F.2d at p. 1115.) A forfeiture rule would solve the problems that arose in People v. Morgan, supra, 75 Cal.App.3d 32 and People v. Rose, supra, 28 Cal.App.3d 415, because a defendant who fails to object to lesser offense instructions on a time-barred offense forfeits his right to rely on a statute of limitations defense. (See, e.g., People v. Lohnes (1973) 76 Misc.2d 507 [351 N.Y.S.2d 279, 281-284]; see also People v. Toro, supra, 47 Cal.3d at pp. 973-978.) And because, as here, defendants often have valid strategic reasons for not raising the statute of limitations, there is no reason to believe that ineffective assistance of counsel claims would be any more prevalent in the statute of limitations context than in any of the many other areas in which we routinely apply forfeiture rules.
By contrast, an express waiver rule would not solve the problems that arose in People v. Brice, supra, 206 Cal.App.3d 111, People v. Morgan, supra, 75 Cal.App.3d 32, and People v. Rose, supra, 28 Cal.App.3d 415. Moreover, as the People observe in their briefing, an express waiver rule would inevitably lead to collateral proceedings—specifically, proceedings over whether particular waivers were knowing and intelligent. An express waiver rule would also encourage gamesmanship. Under an express waiver rule, a defendant would often have every incentive not to bring a statute of limitations defense to the trial court’s attention. To offer just one example, consider a murder case in which the trial court proposed to instruct the jury on the lesser offense of manslaughter without realizing the offense was time-barred. A defendant desiring the benefit of the manslaughter instructions would be best served by remaining silent because, if convicted of manslaughter, he would then be able to challenge the conviction on statute of limitations grounds. (See, e.g., People v. Morgan, supra, 75 Cal.App.3d 32; People v. Rose, supra, 28 Cal.App.3d 415.) A rule that creates such a perverse set of incentives is untenable. As we have observed on many occasions, “ ‘[o]ur courts are not gambling halls but forums for the discovery of truth.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 204 [47 Cal.Rptr.2d 569, 906 P.2d 531].) An express waiver rule not only licenses the parlor but encourages defendants to roll the dice.
Existing California criminal procedure provides ample means for a defendant to raise a statute of limitations defense should he desire to do so. If the [393]defense is apparent on the face of the accusatory pleading, the defendant should demur to the pleading. (See Pen. Code, § 1004, subd. 5 [demurrer to pleading that “contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution”]; Pen. Code, § 1012 [failure to demur constitutes waiver]; People v. Ayhens (1890) 85 Cal. 86, 89 [24 P. 635] [the term “other legal bar to the prosecution” in Pen. Code, § 1004, subd. 5, includes the bar of statutes of limitations].) If the defense is not apparent on the face of the accusatory pleading, the defendant can raise the defense in a number of different ways. By way of illustration, the defendant can request a pretrial hearing on the defense (People v. Zamora, supra, 18 Cal.3d at pp. 563-564 & fii. 25), he can request jury instructions on the defense, or he can object when the trial court proposes to instruct on a time-barred lesser offense.
My proposed holding 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, represents a change in the prior rule that the statute can never be forfeited or waived. Therefore, I would not apply the holding to cases tried before our decision becomes final. (See People v. Scott (1994) 9 Cal.4th 331, 357-358 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) The holding would also call into question the appropriate allocation of the burden of proof. Since the burden of proof issue is not squarely presented in this case, I would allow the issue to develop in the lower courts. (See generally, People v. Medina (1990) 51 Cal.3d 870 [274 Cal.Rptr. 849, 799 P.2d 1282], affd. sub nom. Medina v. California (1992) 505 U.S. 437 [120 L.Ed.2d 353, 112 S.Ct. 2572].)
III. Conclusion
For the reasons discussed above, I would allow Cowan to enter a no contest plea to voluntary manslaughter, subject to the forfeiture rule described above. Therefore, I would reverse the order of the Court of Appeal denying Cowan’s petition for a writ of mandate and direct the Court of Appeal to issue a peremptory writ of mandate compelling the superior court to accept Cowan’s no contest plea should he still desire to enter it.
Kennard, J., concurred.
See, e.g., People v. Chadd, supra, 28 Cal.3d at pages 756-757; People v. Zamora, supra, 18 Cal.3d at page 547; In re Demillo, supra, 14 Cal.3d at pages 601-603; People v. Rehman, supra, 62 Cal.2d at page 139; People v. Crosby, supra, 58 Cal.2d at pages 722, 725; McGee, supra, 1 Cal.2d at pages 613-614.
These cases demonstrate that application of the McGee rule has not been “limited to a charging document that, on its face, indicates the offense is time-barred.” (See conc. opn. of Chin, J., ante, at p. 381.) The application of a jurisdictional approach to lesser offenses not alleged in an accusatory pleading is particularly problematic because there is no reason for the prosecution to include discovery or tolling allegations as to those offenses. (Cf. People v. Rose, supra, 28 Cal.App.3d at p. 418 [permitting prosecution to amend the accusatory pleading on remand]; People v. Morgan, supra, 75 Cal.App.3d at pp. 38-41 [same].)
I respectfully disagree with the majority’s conclusion that because Cowan “seeks expressly to waive the statute of limitations, [there is] no need to decide whether. . , 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.” (Maj. opn., ante, at p. 374.) In my view, this is a forfeiture case. As noted above, Cowan entered a no contest plea to voluntary manslaughter without raising the statute of limitations in any fashion. It was not until the post-plea proceedings, initiated by the district attorney, that express waiver even entered the picture. Nor is a forfeiture rule any less faithful to principles of stare decisis than an express waiver rule. (See conc. opn. of Chin, 1, ante, at p. 378.) Both rules require that McGee's core holding that the statute of limitations in criminal cases goes to the subject matter jurisdiction of the trial court be overruled. (Compare maj. opn., ante, at p. 374 with ante, p. 386.) It is simply not possible to “partially” overrule or “adjust” a subject matter jurisdiction rule. (See maj. opn., ante, at p. 374; conc, opn. of Chin, J., ante, at p. 383.) This court having decided to overrule McGee's core holding, it only makes sense to consider the full range of options as to what rule should be substituted in its place.
I do not share the view that Toro is distinguishable from cases involving instructions on time-barred lesser offenses on the grounds that “[i]t is quite plausible the defendant might not have requested the instruction had he known it was time-barred.” (Cone. opn. of Chin, J„ ante, at p. 383.) It is equally plausible that a defendant might not have requested or acquiesced in lesser related offense instructions had he known that by doing so he was giving up his constitutional right to notice.
Although In re Griffin (1967) 67 Cal.2d 343 [62 Cal.Rptr. 1, 431 P.2d 625], cited by the majority (see maj. opn., ante, at p. 374), is factually distinguishable from the instant case, it is at least consistent with my approach. In that case, we noted that “a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.]” (67 Cal.2d at p. 347, italics added.) Our holding in People v. Toro, supra, 47 Cal.3d 966, demonstrates that the term “consent” encompasses “forfeiture” and should not be limited to cases of “express waiver.”