In Smith v. United States (2013) U.S. 133, the defendant was convicted of conspiracy to distribute narcotics. (Id. at p. 133 S.Ct. at p. 717.) The conspiracy purportedly lasted "for about a decade." (Ibid.) The court described the issue on appeal as follows: "Upon joining a criminal conspiracy, a defendant's membership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defendant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period." (Ibid.) The issue in Smith is analogous to the issue raised in the present appeal. In Smith, the question was whether the prosecution had to prove beyond a reasonable doubt the defendant did not withdraw from the conspiracy outside the statute of limitation once there was some evidence of withdrawal outside the applicable statute of limitation. In the present case, there is evidence the presumptive statute of limitation expired ( 800) and, therefore the question is the extent of the prosecution's burden of proving the statute extending the time period in which prosecution could be initiated. ( 803, subd. (f)(1).) The defendant in Smith sought to dismiss the conspiracy count based on the "applicable 5-year statute of limitations." (Smith v. United States, supra, U.S. at p. 133 S.Ct. at p. 718.) In other words, the defendant contended he withdrew from the conspiracy more than five years earlier and therefore was no longer subject to prosecution for conspiracy. The Supreme Court described the Smith defendant's claim as laying "at the intersection of a withdrawal defense and a statute-of-limitations defense." (Ibid.) He contended that once he introduced some evidence he withdrew from the conspiracy more than five years prior, it became the prosecution's burden to prove beyond a reasonable doubt he participated in the conspiracy within the five years preceding the initiation of the prosecution. (Id. at pp. 133 S.Ct. at pp. 718-719.) In rejecting the defendant's position, the court noted that where a special defense like the expiration of the applicable statute of limitation "'excuses conduct that would otherwise be punishable,' but 'does not controvert any of the elements of the offense itself,' the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. . (Id. at p. 133 S.Ct. at p. 719.) Just as withdrawal and the passage of time does not negate an element of the crime of conspiracy (ibid.), the passage of time does not negate an element of the crime of committing a lewd act on the body of a child under 14 years of age. In both instances, the passage of time merely excuses the conduct that occurred prior to the running of the applicable statute of limitation--i.e., the statute of limitation merely precludes conviction despite the evidence of each of the elements of the crime. Because the application of a particular statute of limitation does not increase the maximum possible punishment, Apprendi does not require it be proven beyond a reasonable doubt. Moreover, because "commission of the crime within the statute-of-limitations period is not an element of a charged offense" (Smith v. United States, supra, U.S. at p. 133 S.Ct. at p. 720.)