Ognibene

Peter Sabatino Ognibene appeals his conviction for nine counts of grand theft. He contends his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. We affirm.

*1288 Ognibene was charged with nine counts of grand theft for taking funds from nine automobile agencies. He bought cars from individuals, reduced the mileage shown on the odometers, and sold the cars to used car dealers. At the end of his defense, Ognibene requested a jury instruction on the lesser related offense of odometer tampering, a misdemeanor on which the statute of limitations had run. He offered to waive the statute of limitations. The trial court concluded it was precluded from giving the lesser related offense instruction because it was time-barred and the statute of limitations could not be waived. The jury returned verdicts of guilty on all nine felony counts.

We face two distinct issues in this case. The first is whether a criminal defendant has the right to waive the statute of limitations so he can be convicted of a lesser offense than that charged. The second is,…

Peter Sabatino Ognibene appeals his conviction for nine counts of grand theft. He contends his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. We affirm.

Ognibene was charged with nine counts of grand theft for taking funds from nine automobile agencies. He bought cars from individuals, reduced the mileage shown on the odometers, and sold the cars to used car dealers. At the end of his defense, Ognibene requested a jury instruction on the lesser related offense of odometer tampering, a misdemeanor on which the statute of limitations had run. He offered to waive the statute of limitations. The trial court concluded it was precluded from giving the lesser related offense instruction because it was time-barred and the statute of limitations could not be waived. The jury returned verdicts of guilty on all nine felony counts.

We face two distinct issues in this case. The first is whether a criminal defendant has the right to waive the statute of limitations so he can be convicted of a lesser offense than that charged. The second is,…

Reluctantly, I concur in the majority opinion. I agree with the majority’s conclusion that a criminal defendant cannot waive the statute of limitations on a criminal offense. (People v. Chadd (1981) 28 Cal.3d 739, 757 [ 170 Cal.Rptr. 798 , 621 P.2d 837 ].) Furthermore, California and United States Supreme Court authorities support the majority’s conclusion that a trial court need not instruct the jury on a lesser offense which is time-barred. (Spaziano v. Florida (1984) 468 U.S. 447, 456 [ 82 L.Ed.2d 340, 349-350 , 104 S.Ct. 3154 ]; People v. Diedrich (1982) 31 Cal.3d 263, 283 [ 182 Cal.Rptr. 354 , 643 P.2d 971 ].) Nonetheless, I write separately to express my dissatisfaction with this result.

As stated by Justice Brauer in his concurring opinion in People v. Brice (1988) 206 Cal.App.3d 111 [ 253 Cal.Rptr. 370 ], to the extent Diedrich prohibits instructions on time-barred offenses, it invidiously discriminates “against a defendant who is in an ‘all or nothing’ position because the lesser included or lesser related offenses, otherwise available to him, are time-barred.” (People v. Brice, supra, 206 Cal.App.3d at p. 117 .)

People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45…