In RE McSHERRY

Leonard James McSherry seeks writ review of his conviction of an attempt to annoy or molest a child under the age of 18 years with a prior conviction of lewd act. (Pen. Code, §§ 664, 647.6, subd. (c)(2).) McSherry claims he was not timely prosecuted. A violation of the statute of limitations deprives the court of jurisdiction and may be raised at any time. (People v. Williams (1999) 21 Cal.4th 335, 339-340 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ].) We therefore issued an order to show cause to address the merits of McSherry’s claim. Upon consideration of the issue presented, we conclude McSherry was timely prosecuted and deny the writ petition.

FACTS AND PROCEDURAL BACKGROUND

On March 10, 2003, an elementary schoolyard supervisor saw McSherry masturbating in an automobile parked near tetherball courts where numerous third graders were at play. The passenger’s side window, which was closest to the schoolyard, was down and McSherry was looking in the direction of the children. When the schoolyard supervisor yelled at McSherry, he turned, appeared surprised and drove away. Although the children could have seen McSherry from their location, none actually did.

After a jury…