Heldt v. Municipal Court

• Citation: 163 Cal.App.3d 532,209 Cal.Rptr. 579
• Court: California Court of Appeals
• Decision Date: 11 January 1985
• Parties: Craig Alan HELDT, Plaintiff and Appellant, v. PLACER COUNTY MUNICIPAL COURT, Defendant and Respondent, The PEOPLE, Real Party in Interest and Respondent. Civ. 23597.

Page 579

209 Cal.Rptr. 579

163 Cal.App.3d 532

Craig Alan HELDT, Plaintiff and Appellant, v. PLACER COUNTY MUNICIPAL COURT, Defendant and Respondent The PEOPLE, Real Party in Interest and Respondent.

Civ. 23597.

Court of Appeal, Third District, California.

Jan. 11, 1985.

Jerome S. Stanley and Michael Borkowski, Sacramento, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Nancy Sweet and David Rhodes, Deputy Attys. Gen., for defendant, respondents and real party in interest.

CARR, Associate Justice.

Plaintiff Craig Alan Heldt (hereafter petitioner) purports to appeal from a judgment denying his petition for writ of mandate directing Placer County Municipal Court to dismiss a misdemeanor action for failure to file a formal complaint within one year after commission of the offense (Pen.Code, § 801, subd. (a)). Petitioner contends a notice to appear, prepared on a form approved by the Judicial Council and filed with the court in accordance with Penal Code section 853.6, cannot serve in lieu of a formal complaint for purposes of tolling the statute of limitations and conferring jurisdiction on the court to proceed to trial. We disagree and shall affirm. ¹

FACTS

On March 7, 1982, petitioner was arrested for speeding (Veh.Code § 22350) and driving while intoxicated (Veh.Code § 23152). The arresting officer issued a verified notice to appear on a form approved by the Judicial Council, directing petitioner to appear in the municipal court on March 22, 1982. ²

The record does not contain a complete account of the events of the succeeding several months. However, the People concur in the rendition of facts contained in the petition for writ of mandate, wherein petitioner asserts that on March 19, 1982, he appeared and pled not guilty to the charge of driving while intoxicated. On or about August 20, 1982, he withdrew this plea and pled guilty. On or about December 27, 1982, petitioner was allowed to withdraw his guilty plea and he reentered a plea of not guilty, and the matter was set for pre-trial conference.

At this point, the record resumes. On July 11, 1983, the People moved the municipal court for leave to file an amended complaint (Pen.Code, § 1009), ³ declaring the original (filed with the municipal court on March 17, 1982) was filed by citation only and did not designate the specific sections charged. The proposed amended misdemeanor complaint charged petitioner with one count each of violating subdivisions (a) and (b) of Vehicle Code section 23152, as well as a prior conviction for violating former Vehicle Code section 23101 (now § 23153, injuring another while driving under the influence of alcohol or drug). Petitioner opposed the motion, contending the court lacked jurisdiction because the People did not file a written and verified complaint within one year after the alleged offense On November 21, 1983, petitioner filed the petition at issue in the present action, praying the superior court to issue a writ of mandate directing the municipal court to dismiss the criminal action for lack of jurisdiction. The court denied the petition.

                as required by sections 740 and 801, subdivision (a), but filed only a "Notice to Appear". 4  The municipal court granted the motion to amend
                

DISCUSSION

Petitioner's sole contention is that a misdemeanor notice to appear filed with the municipal court in accordance with section 853.6 may not serve in lieu of a formal complaint under section 740 for purposes of proceeding to trial and tolling the limitation period of section 801, subdivision (a).

Section 853.6 governs the filing of misdemeanor complaints and notices to appear (citations) where the arrestee is immediately released. Section 853.6, subdivision (a), provides that whenever a person is arrested for a misdemeanor and does not demand to be taken before a magistrate, the person may be immediately released upon issuance by the arresting officer of "a written notice to appear in court, containing the name and address of the person, the offense charged, and the time and place where and when the person shall appear in court." The officer must deliver one copy of the notice to the arrested person, and before being released the arrested person must give his or her written promise to appear in court by signing a duplicate notice retained by the officer. ( § 853.6, subd. (d).) Except in the case of an infraction, or where the prosecutor directs the officer to file the duplicate notice with the magistrate, the officer must file the duplicate notice with the prosecutor. ( § 853.6, subd. (e)(3).)

After the notice is so filed, "the prosecuting attorney, ... within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified therein within 25 days from the time of arrest." ( § 853.6, subd. (e)(3); italics added.) Failure to file the notice or formal complaint within 25 days after the arrest "shall bar further prosecution of the misdemeanor charged in the offense." ( § 853.6, subd. (e)(3).) ⁵

Section 853.9 provides for the use of the notice to appear in lieu of a formal complaint under specified circumstances. Subdivision (a) states: "Whenever written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to the provisions of Section 853.6 of this code, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead 'guilty' or 'nolo contendere.' " However, if defendant "pleads other than 'guilty' or 'nolo contendere' to the offense charged, a complaint shall be filed which shall conform to the provisions of this code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, ... waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear." ( § 853.9, subd. (a).)

Subdivision (b) provides: "Notwithstanding the provisions of subdivision (a) of this section, whenever the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed." (Italics added.)

At issue is the meaning of section 853.9. Petitioner contends a written notice to appear on an approved form, when filed in lieu of a formal complaint, may not serve as a complaint "for all purposes" as to confer jurisdiction on the court to proceed to trial and toll the statute of limitations, but may be used only for the limited purpose of taking a plea and issuing a warrant thereon. Petitioner further asserts that in all cases where the accused pleads not guilty the prosecutor must file a formal verified complaint before proceeding further. We disagree.

Initially we observe that the applicable statute of limitation is not the one year of section 801, subdivision (a), but the 25-day limitation of section 853.6, subdivision (e). Failure to file a complaint or notice to appear within 25 days after arrest is a bar to further prosecution of the offense originally cited in the notice. The one-year limitation applies only to misdemeanor offenses not originally cited in the notice. (Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, 109-110.) ⁶

Petitioner's interpretation of section 853.9 can be accepted only by ignoring the plain language of the section and by isolating it from sections 740 and 853.6. Section 740 is not ironclad; it requires public offenses in inferior courts to be prosecuted by formal written complaints "[e]xcept as otherwise provided by law." (Italics added.) Sections 853.6 and 853.9 constitute such exception. Section 853.6, subdivision (e)(3), permits the prosecuting attorney to "initiate prosecution by filing the notice or a formal complaint...." (Italics added.) Section 853.9 defines those circumstances under which a notice to appear may be used in lieu of a formal complaint in prosecuting an action.

Petitioner's contention that subdivision (b) of section 853.9 simply provides for a notice to which an accused may enter any plea, including not guilty, is incorrect. Nothing in subdivision (a) precludes an accused from entering a plea of not guilty to a notice on a nonapproved form. It simply provides that if the accused does plead not guilty to such a form, the prosecutor must file a formal complaint before proceeding further, unless a complaint is waived. Subdivision (b) is an exception; it applies "[n]otwithstanding the provisions of subdivision (a)...." It allows the prosecutor to use a notice to appear on an approved form in lieu of a formal complaint even when the accused pleads not guilty. Petitioner's interpretation of section 853.9 would render subdivision (b) a nullity, for if the prosecutor must file a formal complaint even when an accused pleads not guilty to a notice on an approved form, subdivision (b) adds nothing to subdivision (a).

Petitioner's interpretation also would render the last sentence of subdivision (b) meaningless. It provides: "If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed." If, as petitioner contends, the prosecutor must file a formal verified complaint whenever an accused pleads not guilty, there is no need to provide the accused an opportunity to request such a complaint. ⁷ The last sentence of subdivision (b) only reinforces our conclusion that it is an exception to subdivision (a). Under subdivision (a) the prosecutor is relieved...