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Name: People v. Smith
Case #: H020031
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/01/2002
Subsequent History: Pub. status to partially published 5/30/02. Rev. denied 8/14/02.

Appellant was charged with 18 violations of Penal Code section 288 for lewd acts with his son over a seven year period. The information was filed in 1998, and included 3 counts which were alleged to have occurred in 1989, 1990, and 1991, prior to the six year period covered by the statute of limitations. Appellant was convicted and sentenced to 68 years in state prison. On appeal he argued that the pre-1992 convictions should be reversed because they were barred by the statute of limitations. Further, the other convictions should be reversed because the prosecution did not prove that the other offenses occurred within the applicable statute of limitations. The appellate court here affirmed. Although the prosecution has the burden of proving that the acts occurred within the statute of limitations, it is not an element of the offense. The victim testified to hundreds of similar acts which occurred within the statute of limitations period, and appellant’s defense was the same for each act; that he committed the act but lacked the requisite sexual intent. There was overwhelming evidence that appellant committed all of the charged acts. The acts which occurred prior to 1992 were covered by the exception set forth in section 803 because there were other acts proved which were otherwise within the statute of limitations period. It was not error for the trial court to have failed to instruct that appellant had the right to discipline his son, because the defense of reasonable discipline is inapplicable to a charge of committing a lewd act on a minor.