People v. Stanfill

Opinion

Charged with one felony count of embezzlement by a public officer (Pen. Code, § 504; all undesignated references are to that code), Jimmy Wayne Stanfill was tried by a jury that acquitted him of that crime but found him guilty of the misdemeanor equivalent (§§ 504, 514), as a lesser offense. Granted three years’ probation conditioned on jail time and his payment of $9,339.05 in restitution, Stanfill appeals claiming misinstruction on the statute of limitations and improper restitution. We will reverse for instructional error.

Background

The trial ran three weeks, involved three dozen witnesses and produced a reporter’s transcript topping two thousand two hundred pages. While the parties summarize the testimony in detail, we find the issues adequately framed by a broader overview.

The People showed irregularities in Stanfill’s handling of cash and property during his tenure as airport manager for Gnoss Field, Marin County Airport. He had held the job since 1984 and was an employee of the county department of public works (DPW). The prosecution theory was that he began embezzling—keeping cash and obtaining autobody repair tools for his own use—sometime after a wage assignment for child support started in late 1993, reducing his net biweekly salary from $1,144 to between $617 and $944.

Stanfill accepted, insisted on or pressured cash payments from some tenants for hangar rentals, deposits and the like, and he kept cash (up to $1,000) in an envelope in his desk. Cash-paying tenants included Dave Nichols (a good friend of Stanfill’s), aircraft mechanic David Upchurch, and Rick Palumbo.

Stanfill also kept airport tools and equipment in places like his home garage and Dave Nichols’s hangar. Most of this property was well suited to his personal hobby of autobody repair, and some of it had little or no use in the operation of the airport. Stanfill had general authority to make purchases under $1,000 without prior approval from his supervisor, and such orders

Ludlow owned a computer and graphic design business, and at Stanfill’s request, he submitted a bid in September 1995 for a new computer system for the airport. The bid exceeded $5,000, and after it was approved, Ludlow installed and set it up and provided training for it. Stanfill then asked Ludlow to buy a joystick and to provide a bill for manuals instead, since he was going to submit the receipt to the county. Ludlow had reservations about this but did as asked after seeking advice from others. Stanfill used the joystick for games on the computer.

Mike Lockwood was hired by Stanfill as his assistant manager and began work in February 1995. He worked on the tetrahedron project, among other things; noted the lack of tools; saw the cash Stanfill kept on hand ($1,100 in $20 bills); and ultimately, during a vacation Stanfill took to a Wisconsin air show in late July and early August 1996, voiced his suspicions of embezzlement to Stanfill’s supervisors at DPW.

Several things sparked those suspicions. Lockwood had known of the cash in the desk, had seen Stanfill use some to pay for pizza, found about $200 missing just before the vacation and then found it entirely gone after Stanfill left. Stanfill had also left him instructions to open an expected shipment of runway lights but not to open boxes from other vendors. Lockwood opened certain deliveries from UPS and saw a chain hoist, a bead roller kit, some hydraulic equipment and small hand tools. He knew Stanfill did auto work and kept automotive parts in a tractor shed and a space between two hangars. He had access to the computer but lost it when the new one was installed because Stanfill kept it locked. Ludlow had also come to Lockwood for advice when Stanfill asked him to falsify the joystick receipt. During the vacation, Lockwood spoke with DPW accountant David Uribe and mentioned the lack of tools; Uribe listed various tools that should have been at the airport (but were not). When a tenant came in during the vacation to generate from the computer a list of other airport tenants for an open house, it turned out that Dave Nichols and Rick Palumbo (two cash payers) were not on the list.

There followed further investigation and two more interviews of Stanfill by DPW before he was fired, on September 12th. During the interviews, Stanfill gave varying and sometimes inconsistent accounts. In the second interview, for example, he said $450 in cash had been stolen from his desk in a May 1995 “robbery” (never reported) and that he replaced it with his own funds. He also said he kept Nichols’s cash separate in case he needed to track it for the FBI investigation.

The DPW investigation continued with inventories, auditing and invoice examinations. Some recently ordered property was returned for refunds. An investigation by the county sheriff produced further interviews with Stanfill and, ultimately, this prosecution.

At trial, the defense painted Lockwood as a drug user who could not treat tools properly, who experienced friction with Stanfill, and who reported him as a defensive move to save his own job. Stanfill testified. He denied all wrongdoing, pointed to lack of regulations for handling county property, and presented character witnesses.

The jury acquitted on the felony charge and returned a verdict of guilty for the misdemeanor lesser offense of embezzling property of a value not exceeding $400. This connoted at least reasonable doubt by all jurors that Stanfill misappropriated any public funds (pt. I, post).

In the face of a presentence report recommending restitution exceeding $400, the parties proceeded to a contested restitution hearing. The People presented evidence that an outside audit of the airport records cost the

In a single complex instruction, the jury was instructed on the words of section 504, its elements, the distinction between “public funds” and other property, the need for the amount of temporary use to exceed $400 in the latter case, and the need to find “petty theft” if reasonable doubt arose about the value exceeding $400. Twice the instruction alluded to a three-year time limitation. First: “. . . Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts between the dates of August 6, 1993 and August 5, 1996. You may not find the defendant guilty based on any conduct that occurred before August 6, 1993. However, in order to return a verdict of guilty, all jurors must agree that he committed the same act or acts. . . .” Second: where a temporary use of property “aggregates in excess of $400 in any period of twelve consecutive months between August 6, 1993 and August 5, 1996, the crime is . . .in violation of Penal Code section 504.”

The jury’s verdict declared Stanfill not guilty of “Section 504”—meaning a felony—“but guilty of a lesser of embezzlement of public property by a county employee with a value of $400 or less, a violation of California Penal Code Section 504.” This constituted a verdict for a misdemeanor.

A felony is a crime made “punishable with death or by imprisonment in the state prison,” and every other crime or public offense, unless classified as an infraction, “is a misdemeanor . . . .” (§ 17, subd. (a).) Embezzlement is a form of “theft” (§ 490a) and, with exceptions not pertinent here, is made punishable with state prison time only if the use value of the subject property exceeds $400 (§ 487, subd. (a); see also § 514), in which case it is grand theft punishable with state prison time (§ 489, subd. (b)) for a range of„ sixteen months or two or three years (§ 18). If not a felony (or mere infraction), embezzlement or theft is petty theft (§§ 488, 514), a misdemeanor punishable by up to six months in county jail and a fine of $1,000 (§§ 490, 514).

The statute of limitations for a felony theft offense is generally three years plus any tolling (§§ 801, 803, subd. (c)); the statute of limitations for a misdemeanor, except for offenses not at issue here, is one year (§ 802) and apparently without provision for tolling (§ 803, subd. (c)). The parties

B. Wobbler Status

The People dispute that the offense was in fact a misdemeanor for this purpose. They acknowledge the general rule that “[t]he limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense” (§ 805, subd. (b)), but they contend that embezzlement as defined in sections 504 and 514 is “in effect a wobbler”—or “an alternative felony/misdemeanor”— thus preserving a felony character for limitations purposes.

We disagree. The answer lies in case authority construing section 17, subdivision (b), which provides in part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [U (1) After a judgment imposing a punishment other than imprisonment in the state prison. [U • • • By attention to the phrases “misdemeanor for all purposes” and “[ajfter a judgment imposing a [nonprison] punishment,” our courts have long reasoned that a “wobbler,” an offense that confers discretion as to felony or misdemeanor punishment, becomes a misdemeanor only after the judgment and hence retains its felony character for purposes of the limitations period. This was first announced for the offense of grand theft (Doble v. Superior Court (1925) 197 Cal. 556 , 576-577 [ 241 P. 852 ]), which was and remains today punishable, in the discretion of the court, with jail/fine or prison time (§ 489, subd. (b)). (Accord, People v. Mitchell (1930) 109 Cal.App. 116 , 117-118 [receiving stolen property]; People v. Thompson (1931) 114 Cal.App. 258 [ 299 P. 821 ] [uttering check with fraudulent intent]; People v. Weaver (1943) 56 Cal.App.2d 732 , 737-738 [ 133 P.2d 818 ] [fraudulent insurance claims]; see also Davis v. Superior Court (1959) 175 Cal.App.2d 8 , 20-22 [ 345 P.2d 513 ] [felony conspiracy to commit offense itself a misdemeanor].)

The People’s argument would have merit had Stanfill been found guilty of embezzling property exceeding $400 in value and received a misdemeanor sentence, for the offense would in that case, as with grand theft (§ 489, subd. (b) [“imprisonment in a county jail not exceeding one year or in the state prison”]), be a true wobbler for which the court had discretion to choose

C. Forfeiture

Before turning to prejudice, we confront recent case law developments. The parties note the Supreme Court decision in Cowan v. Superior Court (1996) 14 Cal.4th 367 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (Cowan). Cowan abrogated long-settled precedent emanating from People v. McGee (1934) 1 Cal.2d 611 [ 36 P.2d 378 ] (McGee) that had viewed the statute of limitations as part of fundamental subject matter jurisdiction. In a limited retreat, Cowan decided that a defendant may, as part of a negotiated disposition, plead guilty to a time-barred lesser offense, provided he does so for his benefit and with an express informed waiver of the right to assert the statute. (Cowan, supra, at p. 374.) Distinguishing between an express waiver and “ ‘waiver’ in the sense of forfeiture” by a mere failure to assert the right (id. at p. 372), Cowan left for another day whether to overrule precedent further “and hold that the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial” (id. at p. 374).

In People v. Williams (1999) 21 Cal.4th 335 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ] (Williams), decided last August, a fivB-member majority of the Supreme Court declined to erode precedent further, at least where a defendant is convicted as charged with a time-barred offense and then objects for the first time on appeal. “We conclude that a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time.” (Id. at p. 338.) The majority held the creation of a forfeiture rule “bad policy,” citing the risk that a defendant might “accidentally” lose the right if, for example, he pled guilty having waived his right to counsel. (Id. at p. 341.) Noting, too, that the majority of other jurisdictions, while rejecting California’s preCowan view of the limitations issue, lacked a uniform approach to forfeiture

However, the Williams majority confined its holding to the situation before it, saying, “We leave to future appellate courts to decide other questions not involved here, such as the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time-barred.” (Williams, supra, 21 Cal.4th at p. 338.) Of special interest to us, it considered an argument “that a forfeiture rule would avoid ‘gamesmanship,’ and that without such a rule defense counsel might ‘sandbag’ the trial court.” (Id. at p. 346.) This was rejected: “The ‘gamesmanship’ argument is generally made in the context of convictions of time-barred lesser offenses when the charged offense is timely. [Citations.] Although McGee itself applied only ‘where the pleading of the state shows that the period of the statute of limitations has run’ [citation], some intermediate appellate court decisions have extended its rule to convictions of lesser offenses. [Citation.] Conviction, by plea or otherwise, of a lesser offense than the one charged involves separate concerns and problems not present here. Issues regarding lesser offenses may arise in a variety of factual contexts. We express no opinion on the proper resolution of any such questions but leave them for future appellate courts to decide in cases that actually present them. Today’s decision involves only a conviction of a charged offense that, so far as the face of the charging document shows, is untimely.” (Ibid., fh. omitted.)

The parties agree there was no express waiver here. Our case does, however, pose a model example of conviction of a time-barred lesser offense “when the charged offense is not time-barred” (Williams, supra, 21 Cal.4th at p. 338), and so we take up the Williams majority’s invitation to decide whether a forfeiture should result in this situation. Justices Kennard and Brown, who dissented in Williams and favored viewing the statute as a defense, obviously would endorse forfeiture in this situation. Justice Brown specifically chided the majority for encouraging “ ‘gamesmanship and sandbagging’ ” in precisely our situation. (Id. at p. 350 (dis. opn. of Brown, J.).)

“Even more anomalous is People v. Brice (1988) 206 Cal.App.3d 111 . . . , a case in which the defendants themselves requested the lesser offense instruction at issue. In Brice, the defendants were charged with murder and conspiracy to commit murder. (Id. at p. 114.) The trial court acceded to their request for a lesser offense instruction on the crime of being accessories to murder. (Ibid.) Following its deliberations, the jury acquitted the defendants of murder and conspiracy but convicted them of being accessories to murder. (Ibid.) On appeal, the defendants argued that then-convictions must be reversed because ‘although they requested instruction on the lesser related offense, they did not waive the statute of limitations which bar[red] their conviction for that offense.’ (Id. at p. 115.) Relying on McGee, supra, 1 Cal.2d 611 , the Court of Appeal agreed. (People v. Brice, supra, at pp. 114-116 .) In his concurring opinion, Justice Brauer pointed out the absurdity of this result: ‘At trial, the defendants demanded accessory-after-the-fact instructions .... When the jury convicted them of that offense, they garnered an unexpected windfall: they escaped scot-free on that charge because the statute of limitations had run.’ (Id. at pp. 116-117 (cone. opn. of Brauer, J.).)” (Cowan, supra, 14 Cal.4th at pp. 385-386 (cone. & dis. opn. of Brown, J.).)

That summary exposes the potential for gamesmanship and sandbagging by the defense. Settled California law holds that, “. . . even absent a

Until Cowan’s holding that a defendant may knowingly waive the statute of limitations, it was assumed that a defendant had no right to receive jury instruction on a time-barred lesser offense (Cowan, supra, 14 Cal.4th at p. 386 (cone. & dis. opn. of Brown, J., discussing People v. Ognibene (1993) 12 Cal.App.4th 1286 [ 16 Cal.Rptr.2d 96 ]), and while Cowan has since urged all trial courts and prosecutors to beware of limitations problems and to secure an informed waiver as a condition of instruction whenever doubt arises (Cowan, supra, at pp. 376-377), the case before us shows that this advice is missing its audience. Stanfill was tried almost a year after Cowan was decided, yet the record shows no inquiry into the limitations problem and no waiver.

Thus the prospect of gamesmanship or sandbagging persists. Just as a defendant before Cowan was tempted to remain quiet about an expired statute of limitations in order, to secure the advantage of lesser offense instruction yet have any conviction reversed on appeal, so a defendant after Cowan has an incentive to do basically the same thing. Without a rule that acquiescence or failure to object acts as a forfeiture, the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived. This is an unconscionable result that calls for a forfeiture rule. Beyond removing the incentive for gamesmanship, “requiring a defendant to raise a statute of limitations issue in the trial court ... would

On the other hand, a forfeiture rule could trap an unwary defendant who (1) did not know of the limitations bar, (2) was not apprised of it by trial counsel and (3) would not have wanted the lesser offense instruction had he known. Since such factual matters are seldom answered on the appeal record, the likely mode of redress would be a petition for habeas corpus raising a claim of ineffective assistance of counsel, a prospect stressed heavily in Williams as a reason for not declaring a forfeiture rule in the context where a charging document indicates on its face that an offense is time-barred. (Williams, supra, 21 Cal.4th at pp. 342-343.) We are not convinced, however, that this concern is as great in the context of lesser included offenses. It is uncharacteristic of our Supreme Court to be deterred by the prospect of ineffective assistance claims. The court has condemned the practice of reaching barred issues on appeal in the “ ‘interest of judicial economy’ ” just to stem a flow of habeas corpus petitions. (People v. Panizzon (1996) 13 Cal.4th 68 , 89, fn. 15 [ 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ] [claims statutorily barred by failure to obtain certificate of probable cause].) What struck the Williams majority was that most ineffective assistance claims would have merit where the offense had appeared time-barred on the face of the accusatory pleading. One could tactically justify a defendant pleading guilty to a facially time-barred charge if it was part of a plea bargain where all other charges were more serious and dismissed, but ordinarily there would be “no possible tactical reason for defendant not to seek to have the charge dismissed.” (Williams, supra, 21 Cal.4th at p. 342; see, e.g., U.S. v. Hansel (2d Cir. 1995) 70 F.3d 6 , 8.) The same is not true in our context, where the time-barred offense is lesser included within a

On balance, we hold that a defendant forfeits the right to complain on appeal of conviction of 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. In other words, a defendant must raise the issue in the trial court in order to preserve it for appeal. We depart from prior Court of Appeal opinions to the contrary, for they predate Cowan and Williams, operate under the now-abrogated rule that the statute of limitations is jurisdictional in the fundamental sense, and accordingly did not weigh the policy factors we have articulated. This rule of forfeiture does not detract from the advice of the Supreme Court in Cowan and Williams that trial courts and prosecutors should, whenever instructions on lesser included offenses are considered, determine whether there may be a problem with the statute of limitations and, if so, elicit a waiver of the statute as a condition of giving the instruction. (Cowan, supra, 14 Cal.4th at pp. 376-377; Williams, supra, 21 Cal.4th at p. 346, fn. 5.) That remains the better course, for it removes all ambiguity.

Having adopted a rale of forfeiture, the question remains whether we may properly apply that rale in this case. We are constrained by precedent to say we cannot and that the rale we adopt therefore only applies to cases tried after this opinion becomes final.

The Supreme Court in Cowan had no occasion to consider whether its abrogation of the strict jurisdictional rale of McGee could apply to cases already tried; the case arose on a writ petition by the defendant to allow waiver of the statute of limitations on a lesser included offense as part of a plea bargain that avoided trial on capital charges. (Cowan, supra, 14 Cal.4th at pp. 370, 377.) One Court of Appeal decision, however, has declined to give Cowan retroactive operation, reasoning: “Because Cowan announced a change in the long-standing rale of criminal procedure relating to trial court jurisdiction over time-barred lesser offenses, we conclude that the fair administration of justice requires that the rale announced in Cowan be given prospective application only, i.e., to cases tried after the date it was decided. Prospective application would conform with past decisions of the Supreme Court. [Citations.]” (People v. Greenberger (1997) 58 Cal.App.4th 298 , 371-372 [ 68 Cal.Rptr.2d 61 ].) The opinion cites for that proposition authority dealing not with waiver, but with decisions announcing for the first time rights for the defendants to have instructions on lesser related offenses (People v. Geiger, supra, 35 Cal.3d at p. 532, fn. 13) and imperfect self-defense (People v. Murtishaw (1989) 48 Cal.3d 1001 , 1012-1014 [ 258 Cal.Rptr. 821 , 773 P.2d 172 ]).

Authority closer to our case nevertheless dictates the same result, at least as to our adoption of a rale of forfeiture. In People v. Welch (1993) 5 Cal.4th 228 [ 19 Cal.Rptr.2d 520 , 851 P.2d 802 ], the Supreme Court announced that a defendant who fails to object at the time of sentencing to a probation condition forfeits the right to challenge on appeal the reasonableness of that condition. (Id. at pp. 234-237.) But the holding was not given effect in that case, the court explaining: “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.] By the same token, defendant should not be penalized for failing to object where existing law overwhelmingly said no such objection was required. [Fn. omitted.] It would be unfair to effectively bar any review of defendant’s claims where the rale requiring their preservation in the trial court was adopted in the context of her own appeal. Therefore, the objection and waiver rale announced herein shall not apply to defendant or any other litigant whose probation conditions were considered at a sentencing hearing

An unsavory result of prospective-only application here is that it could reward any gamesmanship in this case. We cannot tell from the record whether the lack of objection was strategic sandbagging or just oversight, but the Supreme Court has denied retroactive effect to forfeiture rules despite the prospect of sandbagging. In People v. Collins (1986) 42 Cal.3d 378 [ 228 Cal.Rptr. 899 , 722 P.2d 173 ] (Collins), the court adopted the federal Luce rule (Luce v. United States (1984) 469 U.S. 38 [ 105 S.Ct. 460 , 83 L.Ed.2d 443 ]) that a defendant must testify in order to preserve for appellate review a claim of abuse of discretion in the trial court’s ruling to allow his impeachment with a prior conviction. Lack of a forfeiture rule, it was noted, encouraged the defendants to seek an impeachment ruling simply to plant reversible error in the event of conviction. (42 Cal.3d at pp. 384-385.) Nevertheless, the rule was not applied in that case: “Under our prior decisions on this question a defendant was not required to testify in order to preserve for appeal a claim of improper impeachment by prior conviction; indeed, he was not even asked to make an offer of proof. [Citation.] . . . Thus our decision to adopt the Luce requirement establishes a new rule of law when there was a previous rule in this state to the contrary; in such circumstances we have the option of giving it prospective effect on policy grounds. [Citation.] [^D Considerations of fundamental fairness compel us to exercise that option. To deny defendants their right to appeal on this issue because they failed to testify—after we repeatedly told them they need not do so—would be to change the rules after the contest was over. When the contest is as serious as a criminal prosecution, such unfairness would be intolerable. For this reason the Luce rule will apply only prospectively to trials beginning after this decision is final. [Citation.]” (Collins, supra, 42 Cal.3d at p. 388, citing People v. Chi Ko Wong (1976) 18 Cal.3d 698 , 712-716 [ 135 Cal.Rptr. 392 , 557 P.2d 976 ] [new rule that review of orders certifying juveniles for prosecution as adults will be deemed waived unless defendant files a timely petition for extraordinary writ, held prospective only].)

We might distinguish our case as lacking Supreme Court as opposed to Court of Appeal precedent on the preexisting rule; Williams noted that the Supreme Court itself had never extended McGee to convictions of lesser uncharged offenses (Williams, supra, 21 Cal.4th at p. 346). But this difference has not moved the Supreme Court to alter the outcome where, as here, Court of Appeal precedent is long settled. In People v. Scott (1994) 9 Cal.4th 331 [ 36 Cal.Rptr.2d 627 , 885 P.2d 1040 ] (Scott), the court held that a defendant who fails to challenge at sentencing the trial court’s reasons for

Here, while the Supreme Court has not spoken, our decision contradicts a 27-year history of other Court of Appeal decisions—some, incidentally, authored by justices who would later sit on the Supreme Court (People v. Rose, supra, 28 Cal.App.3d 415 (Kaus, P. J.); People v. Morgan, supra, 75 Cal.App.3d at pp. 35-37 (Reynoso, J.)). There have been no minority decisions to the contrary and, of course, no treatises or other practice guides to warn the bench and bar of a forfeiture rule. Under these circumstances, we must give our holding prospective-only effect. (Contrast People v. Frazer (1999) 21 Cal.4th 737 [ 88 Cal.Rptr.2d 312 , 982 P.2d 180 ] [no constitutional infirmity in Legislature’s statutory resurrection of time-barred sex offenses].)

E. Prejudice From the Instructional Error

The parties disagree on the standard of prejudice for assessing the statute of limitations error. Stanfill urges per se reversal, claiming that failure to instruct on the proper one-year limitation period was tantamount to error omitting an element of the offense and a structural defect not susceptible of harmless error review. The People urge that we should apply the Chapman standard of harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18 , 36 [ 87 S.Ct. 824 , 833-834, 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]).

The People are correct. As they note, there is case law suggesting that such error may be structural and require per se reversal (People v. Bell

Neder articulates the Chapman test most basically as, “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” (Neder, supra, 527 U.S. at pp. 18-19 [119 S.Ct. at p. 1838] .) More closely taylored to the problem here, error is harmless “where an omitted element is supported by uncontroverted evidence,” as “where a defendant did not, and apparently could not, bring forth facts contesting the omitted element . . . .” (Ibid.) Stated differently: “[A] court . . . asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ [Citation.]” (Id. at p. 19 [119 S.Ct. at p. 1839] .)

Thus the question here is: Does the record contain evidence that could rationally lead to a finding that Stanfill was guilty of the offense based on conduct occurring before April 23, 1996, the cutoff date for a misdemeanor conviction? Our task is informed by the verdict. By acquitting Stanfill of the felony, which might have been based on any embezzlement of public funds, not just public funds exceeding $400, jurors implicitly found no embezzlement of any of the cash, only embezzlement of other property such as the tools and equipment. Also, by finding an aggregate use value less than $400 under a unanimity instruction that told them only one act was required, we can see that any single embezzlement occurring before the cutoff date—even a brief one—supports prejudice, i.e., a finding contrary to the omitted time limitation.

We conclude that there was evidence to support a rational finding of the offense before the limitations cutoff. The joystick seems the most obvious

Stuart Ludlow said he bid and ordered the new computer system for Stanfill in September 1995 and that he later made the purchase of the joystick for Stanfill, creating a phony invoice for manuals. While Ludlow did not specify the date of the joystick order or his observation of Stanfill using it to play games, he did testify that he worked under Stanfill’s supervision on Fridays from the summer of 1995 through January 1996, all of which was before the cutoff date of April 23, 1996. The order (People’s exhibit No. 11) bears the date December 29, 1995. This makes it unnecessary to consider, in addition, evidence of other property Stanfill placed in his garage or Nichols’s hangar before the cutoff date.

In conclusion, and treating the still-jurisdictional limitations period as analogous to an element of the crime in California (Williams, supra, 21 Cal.4th at pp. 337-338), the record does contain “evidence that could rationally lead to a contrary finding with respect to the omitted element” (Neder, supra, 527 U.S. at p. 19 [119 S.Ct. at p. 1839]), and we cannot say it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Id. at p. 18 [119 S.Ct. at p. 1838].)

Needless to say, given the supremacy of the federal Constitution and high court precedent in this context, we are confident that the error is also prejudicial under the federal and state tests as articulated in Flood, supra, 18 Cal.4th at pages 490-503.

Given our need to reverse for the statute of limitations instructional error, and the uncertainty whether Stanfill will be retried on the misdemeanor offense, there is no compelling reason to reach the restitution issues.

The judgment is reversed.

Kline, P. J., and Ruvolo, J., concurred.