Where prosecutor requested jury instruction on a time-barred lesser included offense, defendant did not forfeit his statute of limitations challenge despite failure to object in the trial court. In 2014, defendant assaulted his daughter on the street and was charged with felony child endangerment in 2016. At trial, the prosecutor submitted a list of requested jury instructions, including an instruction on the lesser included offense of misdemeanor child endangerment. When the court asked if both parties accepted the instructions, defense counsel said yes. The trial court instructed the jury on the lesser included offense, but did not give a statute of limitations instruction. Defendant was acquitted of felony child endangerment but found guilty of misdemeanor child endangerment. On appeal, he argued his conviction should be reversed because the statute of limitations had run on the misdemeanor offense. Held: Reversed. Under Penal Code section 805, subdivision (b), the one-year statute of limitations for misdemeanors applies even if the misdemeanor is a lesser included offense of an offense charged as a felony. In People v. Stanfill (1999) 76 Cal.App.4th 1137, the First District Court of Appeal concluded that a defendant forfeits a statute of limitations challenge to a time-barred lesser included offense “where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.” Here, the prosecutor requested the instruction. Although defendant did not object, his general assent to the packet of jury instructions submitted by the prosecutor did not show that he understood the instructions would allow him to be convicted of a time-barred offense. A defendant should not be allowed to accidentally or inadvertently forfeit a statute of limitations challenge. (People v. Williams (1999) 21 Cal.4th 335.) Because the issue was not forfeited and it was undisputed defendant’s misdemeanor conviction was time-barred, the court reversed the judgment. [Editor’s Notes: (1) In a footnote, the court agreed with defendant’s argument that his suspended sentence of 360 days in the county jail exceeded the statutory maximum for misdemeanor child endangerment, but concluded the issue was moot in light of the reversal. (2) The People filed a petition for review in this case, which was denied. Justices Chin and Corrigan were of the opinion the petition should have been granted.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E070015.PDF