At trial, the defendants demanded accessory-after-the-fact instructions, as was their right under [People v.] Geiger *117[(1984) 35 Cal.3d 510 (199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R. 4th 1055)]. 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.
Following People v. Diedrich (1982) 31 Cal.3d 263 [152 Cal.Rptr. 354, 643 P.2d 971], we hold that other defendants will not benefit from that windfall because a trial court need and should not instruct on a lesser included or lesser related offense which is time-barred.
While I am of course bound by Diedrich and therefore signed the majority opinion, I find myself in the anomalous position of disagreeing with a holding of the Bird-era Supreme Court which favored the prosecution. The fact is that Diedrich discriminates, and I submit invidiously, 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.
Several remedies suggest themselves which would on one hand close the loophole through which these defendants traipsed and on the other avoid the discriminatory result of Diedrich.
The high court could reexamine the admittedly long-standing doctrine that the statute of limitations is jurisdictional and cannot be waived. An exception should at least be made for a defendant who affirmatively, intentionally and for valid strategic reasons demands that the jury be instructed on a lesser related but time-barred crime. The California doctrine is by no means universally accepted. (See People v. Zamora (1976) 18 Cal.3d 538, 546, fn. 6 [134 Cal.Rptr. 784, 557 P.2d 75].) Even jeopardy, a concept more hallowed in provenance than the statute of limitations, is waived by a defendant who requests a new trial or appellate reversal of his conviction. (Forman v. United States (1960) 361 U.S. 416, 425 [4 L.Ed.2d 412, 419, 80 S.Ct. 481]; People v. Tong (1909) 155 Cal. 579, 583-585 [102 P. 263]; People v. Henderson (1963) 60 Cal.2d 482, 495 [35 Cal.Rptr. 77, 386 P.2d 677].)
The Legislature could enact a statute that a defendant, by moving to submit a lesser related crime to a jury, adopts for that trial the limitation period applicable to the pending greater charge to which his proposal relates. Such a law would accomplish a broader waiver than that specified in Penal Code section 805, subdivision (b) for lesser included offenses. ([People v. Brooks (1942) 50 Cal.App.2d 610 [123 P.2d 556].) I consider the distinction appropriate because a defendant need not move a muscle in order to secure instructions on lesser included offenses whereas a Geiger motion entails an affirmative step, analogous to a motion for new trial or an appeal, *118which as a matter of common sense connotes a waiver of the statute of limitations.
If the Legislature does not wish to go that far, it could simply amend section 805, subdivision (b) to include lesser related offenses within its ambit.
The petitions for a rehearing were denied December 13, 1988, and appellant Shamburger’s petition for review by the Supreme Court was denied March 1, 1989.