People v. Domagalski, D008641

• Citation: 214 Cal.App.3d 1380,263 Cal.Rptr. 249
• Decision Date: 19 October 1989
• Docket Number: No. D008641,D008641
• Court: California 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.

[214 Cal.App.3d 1382]

Page 250

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 [214 Cal.App.3d 1383] 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."

Page 251

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;

[214 Cal.App.3d 1384] 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

Page 252

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

"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 [214 Cal.App.3d 1385] 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.

"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...