People v. Domagalski

• Decision Date: 19 October 1989
• Docket Number: No. D008641,D008641
• Citation: 214 Cal.App.3d 1380,263 Cal.Rptr. 249
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Robert Gerard DOMAGALSKI, Defendant and Respondent.

Page 249

263 Cal.Rptr. 249

214 Cal.App.3d 1380

The PEOPLE, Plaintiff and Appellant, v. Robert Gerard DOMAGALSKI, Defendant and Respondent.

No. D008641.

Court of Appeal, Fourth District, Division 1, California.

Oct. 19, 1989.

Review Denied Feb. 1, 1990.

John W. Witt, City Atty., Stuart H. Swett, Sr. Chief Deputy City Atty., Loraine L. Etherington, Deputy City Atty., for plaintiff and appellant

Brian McCarthy, for defendant and respondent.

FROEHLICH, Associate Justice.

This appeal is from an order of the municipal court barring action on a misdemeanor complaint against Domagalski for violation of Vehicle Code sections 23152, subdivisions (a) and (b), and 23225 (driving under the influence of alcohol and possession in a vehicle of an open container of alcoholic beverages). When an accused misdemeanant is released from arrest, he is given a "notice to appear" in court at a specific time. Under Penal Code section 853.6, subdivision (e)(3) a criminal complaint must be filed within 25 days after issuance of the "notice to appear." At issue in this case was the effect of failure to file the criminal complaint within the prescribed time. The trial court concluded that such failure deprived the court of jurisdiction, preventing the People from proceeding on the basis of a late-filed complaint, absent the issuance of a new citation (notice to appear). We conclude the court was in error. The appeal is entertained in accordance with Penal Code section 1466, subdivision (a)(2), which makes appealable "an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy."

I FACTUAL AND PROCEDURAL BACKGROUND

On September 25, 1986, Robert G. Domagalski was arrested for violating Vehicle Code section 23152, subdivision (a) (driving while under the influence of alcohol or a drug). He was taken to the San Diego county jail where he was released on his promise to appear for arraignment on October 27, 1986. The release was pursuant to Penal Code section 853.6.

On October 27, 1986, defendant appeared for arraignment through his counsel pursuant to Penal Code section 977. At that time a complaint had not been filed. On February 27, 1987, a complaint was subsequently filed charging defendant with violations of Vehicle Code sections 23152, subdivisions (a) and (b), and 23225. An arrest warrant was issued on March 9, 1987.

On April 3, 1987, defendant's counsel appeared in arraignment court and calendared a demurrer. Defendant contended that the complaint was barred by the provisions of Penal Code section 853.6, subdivision (e), which requires that a new and separate citation or arrest warrant be issued in cases where a complaint is not filed within 25 days of the date of arrest. The People argued that the provisions of Penal Code section 853.6, subdivision (e) did not apply to Vehicle Code section 23152 cases pursuant to People v. Ramirez (1984) 154 Cal.App.3d Supp. 1, 201 Cal.Rptr. 303.

On April 29, 1987, the trial court recalled the arrest warrant, overruled the demurrer ¹ and barred further prosecution on the complaint. This appeal by the People ensued.

The contentions asserted by the People on appeal are as follows:

1. In accordance with Ramirez, the limitation imposed by Penal Code section 853.6, subdivision (e) does not apply to Vehicle Code violations;

2. Alternatively, the limitation imposed by Penal Code section 853.6, subdivision (e) does not apply to the book and release procedure provided for by Penal Code section 853.6, subdivision (a) and utilized in this case;

3. Even if the limitation did apply, the People complied by obtaining a warrant;

4. Issuance of the warrant was not in violation of Penal Code section 853.6, subdivision (f) (as later contended by defendant); and

5. Even if the warrant had been issued improperly, termination of the action was not the appropriate remedy.

II

DISCUSSION

This case comes to us by certification from the appellate department of the superior court, in accordance with California Rules of Court, rule 62(a). We conclude that the opinion of Judge Richard D. Huffman (then of the superior court) for the appellate department panel constitutes an accurate and complete disposition of the issues of the case. We therefore adopt the central portion of his opinion as our own, as follows: ² " People v. Ramirez is Controlling

"In 1970 California Vehicle Code section 40302 provided that persons arrested for a violation of Vehicle Code section 23102 (now 23152) should be taken before a magistrate within the county in which the offense charged was alleged to have been committed. That same year Vehicle Code section 40307 was amended to provide that if a magistrate was not available, the arresting officer should take the person arrested either to the clerk of the magistrate or the officer in charge of the local detention facility who could admit the defendant to bail or 'release the person on his written promise to appear as provided in subdivisions "In 1981 Penal Code section 853.6, subdivision (e) was amended to provide that in cases where a complaint was not filed within 25 days of a defendant's arrest, further prosecution on the misdemeanor charged in the citation was barred. In 1982 Penal Code section 853.6, subdivision (e) was again amended, deleting the barring provisions, but providing that upon the failure of the prosecution to file a complaint within 25 days of the time of arrest, further prosecution should be preceded by a new and separate citation or an arrest warrant. It was the 1982 version of Penal Code section 853.6, subdivision (e) which was in effect at the time of respondent's arrest and was the basis for the trial court's bar to further proceeding on the complaint.

(a) through (f) of section 853.6 of the Penal Code.' ³

"However, in People v. Ramirez, supra, the court followed Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 195 P.2d 1, which held that where a statute adopts by specific reference the provisions of another statute, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified, absent a clearly expressed intention to the contrary. Finding that Vehicle Code section 40307 adopted subdivisions (a) through (f) of Penal Code section 853.6 in the form in which it existed at the time of the incorporation, rather than as later amended, the Ramirez court held that the barring provisions of Penal Code section 853.6, subdivision (e) did not apply to Vehicle Code section 23152 violations. ⁴

"Palermo also noted that there is a cognate rule to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time. (Palermo v. Stockton Theatres, Inc., supra, at p. 59, 195 P.2d 1.)

"A review of each of the cases which have followed Palermo is instructive on this issue. Without exception, in each case where a statute, or some portion of it, was incorporated by reference to its section designation, the court found the reference to be specific and the effect was the same as if the adopted statute had been set out verbatim in the adopting statute, so that repeal or subsequent modification of the statute referred to did not affect the adopting statute. ⁵ Only in those cases where an entire body of law relating to a particular subject was adopted by reference did the court find the reference to be general so that subsequent amendments to the incorporated statute affected the adopting statute. ⁶

"The fact that Vehicle Code section 40307 incorporated only subdivisions (a) through (f) of Penal Code section 853.6 when at the time of the incorporation Penal Code section 853.6 consisted of subdivisions (a) through (i) is compelling evidence that the reference was specific and that Ramirez was correct in so holding. A close reading of Palermo and the cases cited "When Vehicle Code section 40307 was amended in 1970, the stated purpose of the law, according to [Assembly Committee Report on Criminal Procedure, New Statutes Affecting the Criminal Law (1970), page 28], was as follows:

therein also makes it clear that in cases where it is questionable whether only the original language of a statute is to be incorporated or whether the statutory scheme, along with subsequent modifications, is to be incorporated, the determining factor will be the legislative intent behind the incorporating statute. Legislative intent in this case is evident.

'While both the Penal Code and the Vehicle Code provide for the citation release of arrested misdemeanants, the Penal Code is more generous in its provisions than the Vehicle Code. The Penal Code provides for the release of all misdemeanants either at the time of arrest or later after booking. The Vehicle Code, however, provides only for a field release, and then only for certain offenses. This bill conforms the two Codes by providing that a Vehicle Code misdemeanor violator can be released after he has been booked when an officer either chooses not to issue him a filed citation or is prohibited from doing so.' (Emphasis added.)

"It is clear that in adopting the release provisions of Penal Code section 853.6, the Legislature simply intended to derive the benefit of the 'more generous' release provision of the Penal Code. It does not necessarily follow that the subsequent restrictions imposed on the prosecution by Penal Code section 853.6, subdivision (e) were intended to be applicable to Vehicle Code violations under the purview of Vehicle Code section 40307.

"Furthermore, as pointed out by Ramirez, an examination of the legislative history of Penal Code section 853.6 indicates a clear legislative intent not to include Vehicle Code release procedures within the provisions of the...