Does Prosecution's Failure to Plead Prove That Statute of Limitations Had Not Run ?
In People v. Lewis (1986), 180 Cal. App. 3d 816, and similar cases, the defendant had either pleaded guilty or had been convicted of a lesser included offense at trial.
The defendant attacked, either in a pretrial motion or for the first time on appeal, the prosecution's failure to plead, and sometimes to prove as well, that the statute of limitations had not run.
The courts found pleading problems caused jurisdictional errors that were either cured on the record presented or that the prosecution was entitled to attempt to cure on remand.
People v. Chadd (1981) 28 Cal. 3d 739, 758 [170 Cal. Rptr. 798, 621 P.2d 837];
In re McCartney (1966) 64 Cal. 2d 830, 832 [51 Cal. Rptr. 894, 415 P.2d 782];
People v. Guiterrez, supra, 232 Cal. App. 3d at p. 1642;
People v. Posten, supra, 108 Cal. App. 3d at pp. 648-649;
People v. Lewis, supra, 180 Cal. App. 3d at pp. 821-822;
People v. Park (1978) 87 Cal. App. 3d 550, 571-572 [151 Cal. Rptr. 146];
People v. Morgan (1977) 75 Cal. App. 3d 32, 40-41 [141 Cal. Rptr. 863];
People v. Rose (1972) 28 Cal. App. 3d 415, 417-418 [104 Cal. Rptr. 702]
But see In re Demillo (1975) 14 Cal. 3d 598, 601-602 [121 Cal. Rptr. 725, 535 P.2d 1181] [judgment vacated and petitioner discharged on habeas corpus where prosecution failed to plead tolling];
And see People v. Padfield (1982) 136 Cal. App. 3d 218, 225-227 [185 Cal. Rptr. 903] [defendant's guilty plea admitted sufficiency of tolling allegations]; and see Cowan v. Superior Court, supra, 14 Cal. 4th at p. 373 [jurisdiction is not fundamental in this sense].)
That rule makes sense because in each case the prosecution never had an opportunity to prove the statute of limitations had not run.