Patterson v. Municipal Court

• Decision Date: 23 April 1971
• Citation: 94 Cal.Rptr. 449,17 Cal.App.3d 84
• Court: California Court of Appeals Court of Appeals
• Parties: Vertis PATTERSON, Petitioner and Appellant, v. MUNICIPAL COURT, FRESNO JUDICIAL DISTRICT, COUNTY OF FRESNO, State of California, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 1411.

Page 449

94 Cal.Rptr. 449

17 Cal.App.3d 84

Vertis PATTERSON, Petitioner and Appellant, v. MUNICIPAL COURT, FRESNO JUDICIAL DISTRICT, COUNTY OF FRESNO, State of California, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 1411.

Court of Appeal, Fifth District, California.

April 23, 1971.

Melvin W. Nitz, Public Defender, Keith M. Raymond, Deputy Public Defender, Fresno, for petitioner and appellant.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Edsel W. Haws and Gary Allon Larson, Deputy Attys. Gen., for real party in interest.

GEO. A. BROWN, Associate Justice.

Vertis Patterson appeals from an order of the Superior Court of Fresno County denying her petition for a writ of prohibition wherein she seeks to stop the Municipal Court of Fresno Judicial District from proceeding in a criminal action pending against her in that court for alleged violations of Welfare and Institutions Code section 11482.

In July 1968, a complaint was filed in the Municipal Court against appellant alleging violations of Penal Code section 488, ¹ in three counts--the violations having taken place on January 15, April 15, and May 15, 1968. Each count is identical except for the date and, with that exception, each alleges:

'Personally appeared before me, this _ _ day of July 1968 REED K. CLEGG, DIRECTOR of FRESNO COUNTY WELFARE DEPT. in the County of Fresno, who first being duly sworn, complains and accuses VERTIS PATTERSON of the crime of a misdemeanor, to wit: VIOLATION OF SECTION 488 OF THE PENAL CODE, PETTY THEFT

'The said defendant, on or about the 15th day of January 1968 at and in the said County of Fresno, State of California, wilfully and unlawfully took the property of the COUNTY OF FRESNO, consisting of money in the amount of less than $200.00, lawful money of the United States.'

On February 16, 1970, an amended complaint was filed charging appellant with the same three counts in violation of Welfare and Institutions Code section 11482. ² Each of the counts, except for the date, reads:

'Personally appeared before me, this 16th day of February 1970 LEONARD DEAL of DISTRICT ATTORNEY'S OFFICE in the County of Fresno, who first being duly sworn, complains and accuses VERTIS PATTERSON of the crime of a misdemeanor, to wit: VIOLATION OF SECTION 11482 OF THE WELFARE AND INSTITUTIONS CODE

'The said defendant, on or about the 15th day of January 1968 at and in the said County of Fresno, State of California, wilfully and knowingly, with intent to deceive, made false representation to Fresno County to obtain aid to which she was not entitled.'

Appellant contends that:

(1) The filing of the amendment is equivalent to the filing of new charges and each count is, therefore, barred by the one-year statute of limitations (Pen.Code § 801), and the court must dismiss the complaint, and (2) the lower court, by permitting the amendment and the trial to proceed, is violating appellant's constitutional right to a speedy trial.

Since 1927, an accusatory pleading has been sufficient if it is cast 'in any words sufficient to give the accused notice of the offense of which he is accused' (Pen.Code § 952); the particular details of the charged offense will be furnished at the preliminary hearing in the case of an information, and by way of a transcript of the testimony in the case of an indictment. (People v. Crosby, 58 Cal.2d 713, 722--723, 25 Cal.Rptr. 847, 375 P.2d 839.)

Penal Code section 1009 governing amendments to criminal pleadings provides in pertinent part as follows:

'* * * The court in which an action is pending may order or permit * * * the filing of an amended complaint for any defect or insufficiency, at any stage of the proceedings, * * *. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, * * *.'

Under the case law interpreting section 1009, the test applied is whether or not the amendment changes the offense charged to one not shown by the evidence taken at the preliminary examination (People v. Valles, 197 Cal.App.2d 362, 371, 17 Cal.Rptr. 204; People v. Crosby, Supra, 58 Cal.2d 713, 723, 25 Cal.Rptr. 847, 375 P.2d 839). The critical inquiry therefore is: was the amendment in the case at bench to correct the defect or insufficiency in the original complaint or was it an amendment to charge an offense not attempted to be charged by the original complaint?

If the amendment falls in the former category, it relates back to the date of the original filing of the information and has the effect of tolling the running of the statute of limitations from the date of the filing of the original information (In re Davis, 13 Cal.App.2d 109, 113, 56 P.2d 302). If the amendment falls in the latter category, the one-year statute of limitations on the charges has run, the charges would be barred and the writ should issue.

An amendment to designate the proper code section is permissible and non-prejudicial if the accused is plainly informed of the nature of her offenses and the acts constituting the offenses. (People v. Janssen (1965) 237 Cal.App.2d 363, 46 Cal.Rptr. 866; People v. Siegel (1961) 198 Cal.App.2d 676, 683, 18 Cal.Rptr. 268; People v. Jackson (1961) 191 Cal.App.2d 296, 302--303, 12 Cal.Rptr. 748; People v. Rivers (1961) 188 Cal.App.2d 189, 195, 10 Cal.Rptr. 309.) And the courts have permitted amendments to add omitted allegations of a substantive element of the offense sought to be charged without changing the offense. (People v. Crosby, Supra, (1962) 58 Cal.2d 713, 723, 25 Cal.Rptr. 847, 375 P.2d 839.) In People v. Potter (1966) 240 Cal.App.2d 621, 49 Cal.Rptr. 892, the court permitted an amendment to add that the act charged was done 'wilfully, unlawfully, feloniously and fraudulently' holding that the defendant was aware of the general nature of the charge and the amendment did not change it.

While the rule in civil actions may usually not be determinative in a criminal proceeding, the underlying philosophy as expressed in civil cases in permitting amendments after the statute of limitations has run appears to be substantially identical to that expressed in Penal Code section 1009 and the above cited criminal cases interpreting that section. In civil matters the rule appears to be now well settled that an amendment to a complaint will be permitted after the running of the statute of limitations if recovery is sought in both pleadings on the same general set of facts, even though the amendment may be cast in the form of an additional cause of action or count. (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583, 86 Cal.Rptr. 465, 468 P.2d 825; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600--601, 15 Cal.Rptr. 817, 364 P.2d 681.)

In People v. Gilbert (1969) 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580, the court held that Welfare and Institutions Code section 11482 is a special statute which includes the same subject matter as the general Penal Code theft sections and that since it is a special statute any conduct which violates section 11482, which would also constitute a violation of the theft provisions of the Penal Code, must be prosecuted under section 11482. At page 479, 82 Cal.Rptr. at page 727, 462 P.2d at page 583 of that opinion, the court states:

'As we stated in In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593,...