People v. Padfield

• Decision Date: 30 September 1982
• Docket Number: Cr. 11643
• Citation: 185 Cal.Rptr. 903,136 Cal.App.3d 218
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert J. PADFIELD, Defendant and Appellant.

Page 903

185 Cal.Rptr. 903

136 Cal.App.3d 218

The PEOPLE, Plaintiff and Respondent, v. Robert J. PADFIELD, Defendant and Appellant.

Cr. 11643.

Court of Appeal, Third District, California.

Sept. 30, 1982.

Beede & Beede, Rodney J. Beede, Davis, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher, Deputy Atty. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In this case we consider whether the statute of limitations is waived by a plea of nolo contendere. We are also called upon to decide whether the denial of pretrial diversion is reviewable on appeal after such a plea. We hold that the statute of limitations is waived by that plea when, as here, the accusatory pleading properly alleges that the statute has been tolled. We further conclude that the diversion issue is cognizable on appeal after a plea of nolo contendere. ¹

Defendant Robert J. Padfield appeals from a judgment (order of probation) entered after he entered a plea of nolo contendere to one count of grand theft. (Pen.Code, § 487, subd. 1.) Defendant contends that he should have been granted diversion under Penal Code section 1001, and that prosecution was barred by the statute of limitations. He misreads the diversion statutes and waived the statute of limitations issue. We shall therefore affirm his conviction.

FACTS

An amended complaint, filed in the municipal court in April 1980, alleged that defendant took money and property, specifically 11 rifles and shotguns, of a value in excess of $200 from K-Mart stores. The items were alleged to have been stolen between October 10, 1973, and October 9, 1974. ² The complaint further alleged that the theft was discovered in January 1978.

Witnesses testified at the preliminary examination that defendant resigned his position as Sacramento district manager for K-Mart Enterprises in May 1976 and that he moved from Sacramento to Reno, Nevada, in March 1977. At the conclusion of the testimony, defense counsel argued that the prosecution had failed to meet its evidentiary burden under People v. Zamora (1976) 18 Cal.3d 538, 557 P.2d 75, 134 Cal.Rptr. 784, ³ of establishing that the corporate victim could not, in the exercise of reasonable diligence, have discovered the thefts at an earlier time. The magistrate rejected this statute of limitations contention and held defendant to answer in the superior court.

An information was then filed in the superior court in May 1980. Its allegations were identical to those contained in the amended complaint. Defendant moved to dismiss the information under Penal Code section 995 on the grounds that there was no probable cause to hold him to answer and because "the case should have been dismissed in the Municipal Court because of a violation of the statute of limitations (P.C. § 800)."

Penal Code section 800 imposes a three-year statute of limitations for grand theft. Unlike most felonies, however, that period runs from legal discovery rather than from commission of the crime. (Pen.Code, § 800, subd. (c).) The information here, as we have noted, alleged that although defendant's crime occurred between October 1973 and October 1974, a period of more than three years before its filing in May 1980, the discovery of his thefts was not made until January 1978. The trial court denied the motion to dismiss. Defendant did not seek appellate writ review of that denial under Penal Code section 999a; nor did he seek a pretrial evidentiary hearing in the superior court on the statute of limitations issue.

Defendant also moved for diversion under Penal Code section 1001. He asserted that Penal Code section 1001 et seq. created a right to adult diversion. The People took the position that section 1001 did not create a diversion program for the type of offense with which defendant was charged. The court, agreeing that this section did not establish a diversion program and was merely procedural in scope, denied the motion.

The matter went to a jury trial. Near the end of the trial counsel belatedly discovered that defendant's residence outside of this state tolled the running of the statute of limitations. ⁴ As a result of this discovery, defendant entered into a plea bargain. Defendant agreed to plead nolo contendere to one count of grand theft in return for dismissal of another count with which he was charged and a guarantee that he would not be sentenced to state prison. Defendant also indicated that he reserved his right to appeal on the statute of limitations and diversion issues.

The trial court explained that although it would not hinder defendant's attempt to seek appellate review, it did not believe that defendant could raise the issues of the statute of limitations and the right to diversion on appeal after entering a plea of nolo contendere. Defense counsel responded: "I think I've got a right to go upstairs, I could be wrong. If the Court feels otherwise about it, that's been made very clear. I've told [defendant] we'll look into the possibility of appealing the case. [p] That has absolutely nothing to do with the entering of a no contest plea to Count One in regard to this thing, and what we buy for that it is one simple thing. This nice discussion on the record and, in fact, that issue, [defendant] will not be sent to state penitentiary and that's it."

Defendant accepted probation and now seeks appellate review of the diversion and statute of limitations issues.

I

Penal Code section 1237.5 provides: "No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where: [p] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and [p] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk." A judgment entered on a plea of guilty or nolo contendere is therefore not reviewable on the merits. (People v. Meals (1975) 49 Cal.App.3d 702, 706, 122 Cal.Rptr. 585.) After such a plea the only issues which may be considered on appeal are those based upon constitutional jurisdictional, or other grounds going to the legality of the proceedings and those only when the statutory requisites of Penal Code section 1237.5 are fulfilled. (Ibid. See also People v. DeVaughn (1977) 18 Cal.3d 889, 896, 558 P.2d 872, 135 Cal.Rptr. 786.) ⁵

Arguing that the statute of limitations is jurisdictional, defendant asserts that he did not waive that issue by his plea of nolo contendere. Defendant paints with too broad a brush.

It is true that the statute of limitations in a criminal action, unlike that in civil suits, is a substantive, and not a procedural, right. (People v. Zamora, supra, 18 Cal.3d at p. 547, 557 P.2d 75, 134 Cal.Rptr. 784; People v. Morgan (1977) 75 Cal.App.3d 32, 36, 141 Cal.Rptr. 863.) An accusatory pleading which shows on its face that the statute has run and which does not allege facts to toll the period fails to state a public offense. (People v. McGee (1934) 1 Cal.2d 611, 613, 36 P.2d 378.) Such a defect is not waived by the failure to raise it at the pleading stage; instead it may be raised at any time, before or after judgment either directly or collaterally. (People v. Chadd (1981) 28 Cal.3d 739, 756-757, 621 P.2d 837, 170 Cal.Rptr. 798.)

Even when the accusatory pleading is sufficient on its face, ⁶ the trial court may nevertheless elect, in its discretion, to conduct a pretrial hearing in order to determine whether as a matter of law the statute of limitations bars the action. (People v. Zamora, supra, 18 Cal.3d at pp. 563-564 fn. 25, 557 P.2d 75, 134 Cal.Rptr. 784.) The Zamora court explained that "If it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earliest possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed. Moreover, the determination of the trial court after such a hearing will be similar to that on a motion for a directed verdict (§§ 1118, 1118.1) without the necessity of first litigating the merits of the case. We conclude therefore that a trial court has within its discretion the power to hold an evidentiary hearing for purposes of determining whether as a matter of law the statute of limitations bars the prosecution. At such a hearing, it may properly be considered whether the reasonable diligence requirement of section 800 has been complied with." (Id., at p. 564, fn. 25, 557 P.2d 75, 134 Cal.Rptr. 784.)

Where it cannot be said that as a matter of law the statutory period has run, the issue is a question of fact for the trier of fact. The People bear the burden of proof on the statute of limitations issue and that burden is one of preponderance of the evidence. (Id., at pp. 564-565, 557 P.2d 75, 134 Cal.Rptr. 784.) On appeal the issue is tested by the substantial evidence standard. (Id., at p. 565, 557 P.2d 75, 134 Cal.Rptr. 784.)

These authorities show that the statute of limitations in a criminal action is not subject to a single characterization. It is jurisdictional in the fundamental sense when the accusatory pleading shows on its face that statutory period has passed. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942.) "It follows," the Supreme Court concluded in People v. McGee, supra, 1 Cal.2d at pages 613-614, 36 P.2d 378, "that where the pleading of the...