People v. Ramirez

• Decision Date: 01 March 1984
• Docket Number: Cr. A
• Citation: 154 Cal.App.3d Supp. 1,201 Cal.Rptr. 303
• Court: California Superior Court
• Parties: 154 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Appellant, v. Deborah Sue RAMIREZ, Defendant and Respondent. * 20564. Appellate Department, Superior Court, Los Angeles County, California

Page 303

201 Cal.Rptr. 303

154 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Appellant, v. Deborah Sue RAMIREZ, Defendant and Respondent.

[And nine other cases.] ^*

Cr. A. 20564.

Appellate Department, Superior Court, Los Angeles County, California.

March 1, 1984.

Robert H. Philibosian, Dist. Atty., Donald J. Kaplan and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, John Hamilton Scott, Deputy Public Defenders, and Jose Angel Rodriguez, El Monte, for defendant and respondent.

FOSTER, Presiding Judge.

On the court's own motion the above-entitled matters are hereby consolidated for all further purposes.

When a person is arrested for a traffic offense under the circumstances listed in section 40302 of the Vehicle Code, ¹ instead of being released upon the customary traffic citation, he must be taken without unnecessary delay before a magistrate. If no magistrate is then available, he must be taken to the most accessible jail, where the officer in charge of the jail may release him on bail or "on his written promise to appear as provided in subdivisions (a) through (f) of Section 853.6 of the Penal Code." (Veh.Code, § 40307, subd. (b).) ² Section 853.6, since its enactment in 1959, has prescribed a procedure for releasing a person on his promise to appear which is similar to that provided for traffic arrests (Veh.Code, § 40500 et seq.). For a period commencing May 8, 1981, and ending January 1, 1983, subdivision (e) of section 853.6 of the Penal Code contained a provision that if a person arrested for a misdemeanor offense is released upon his promise to appear under that section, and the prosecutor fails to file a criminal complaint against him within 25 days from the date of arrest, such failure "shall bar further prosecution of the misdemeanor charged in the notice to appear."

We have consolidated appeals in ten cases, all of which involve the issue of whether it was the intention of the Legislature that such bar of further prosecution, applies to arrests for traffic offenses in which the person was released upon his promise to appear under that section because of the unavailability of a magistrate. ³ Although varying in detail, all of the appeals involve a common sequence of events. Defendant was arrested at night on a charge of violating Vehicle Code section 23152, subdivision (a) (driving while under the influence of alcohol or a drug), was taken to a jail facility, and because no magistrate was then available was subsequently released after signing a form ⁴ agreeing to appear in court at a specified place and time, the time ranging between 26 and 36 days from the arrest. A criminal complaint was subsequently filed before defendant's appearance in court but more than 25 days after the arrest. Each case was later dismissed on demurrer or motion and the People have appealed from the order of dismissal.

We conclude that it was not the intention of the Legislature to bar further prosecution in these circumstances for several reasons. First is the canon of legislative construction that when one statute incorporates by reference another, that incorporation is presumed to encompass the incorporated statute in its then form, not as later amended. Secondly, the Legislature has demonstrated its intention to treat citation procedures for traffic offenses, and in particular for violations listed in Vehicle Code section 40302, differently from other arrests and releases under Penal Code section 853.6. And lastly, a result by which further prosecution would be barred in drunk driving prosecutions is not within the evident purpose of the Legislature in amending subdivision (e) of Penal Code section 853.6.

California has long had procedures governing arrests of persons charged with traffic offenses which differ from those governing arrests for other crimes. These procedures reflect a recognition of the differences in severity between traffic and other offenses and among traffic offenses themselves. As explained by our Supreme Court in People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199-201, 101 Cal.Rptr. 837, 496 P.2d 1205:

"At the outset, a brief explanation of the statutory reference will be helpful. The exclusive procedure to be followed after a warrantless arrest for a Vehicle Code violation is that prescribed in division 17, chapter 2 (§§ 40300-40604) of the Vehicle Code. (People v. Wohlleben (1968) 261 Cal.App.2d 461, 463 .) If that violation is declared to be a felony, the arrestee is to be dealt with according to the general provisions of the Penal Code on felony arrests. (Veh.Code, § 40301.) For all other cases, however, the Legislature has created a special tripartite scheme which reflects the lesser degree of criminality attached to the act of transgressing against ordinary traffic rules and regulations.

"First, the scheme in effect presumes that in the vast majority of cases the violator will not be taken into custody: with the exception of the instances next discussed, the officer must prepare a written notice to appear (i.e., a citation or 'ticket'), and must release the violator 'forthwith' when the latter in turn gives his written promise that he will appear as directed (§§ 40500, 40504). Indeed, such a violator may entirely avoid the necessity for appearing in court: he may choose to deposit the prescribed bail by mail (§ 40510) and, by failing thereafter to appear forfeit that amount in lieu of fine (§ 40512).

"Second, in certain cases section 40303 gives the officer the option either to follow the foregoing procedure or to take the violator 'without unnecessary delay' before the 'nearest or most accessible' magistrate having jurisdiction over the offense. The section lists a number of more serious violations as grounds for invoking this option, such as reckless driving, failure to stop after an accident, participating in speed contests, driving with an invalid license, attempt to evade arrest, and refusal to submit to safety inspections.

"Third, section 40302 makes it mandatory for the officer to follow the latter branch of the section 40303 option--i.e., to take the violator before a magistrate without unnecessary delay--in four specific instances: i.e., when the violator (a) fails to present his driver's license or other satisfactory evidence of his identity, (b) refuses to give his written promise to appear, or (c) demands an immediate appearance before a magistrate, or (d) when the violator is charged with the very serious traffic offenses of misdemeanor drunk driving or driving under the influence of toxic glue or nonnarcotic drugs."

* * *

* * * "There is no doubt, of course, that a motorist who is actually taken into police custody for transportation before a magistrate pursuant to section 40302 (or 40303) is 'under arrest' in the traditional sense of the term. (Pen.Code, §§ 834, 835; People v. Hatcher (1969) 2 Cal.App.3d 71, 75 .) This explains why Officer Erickson and the trial judge in the case at bar both stated that defendant was arrested 'under 40302(a) of the Vehicle Code.' But such language is at best a kind of verbal shorthand. Upon analysis it will be seen that one cannot be arrested on the sole authority of section 40302: 'such section [§ 736, predecessor to § 40302] is not penal in nature and cannot form the basis for a lawful arrest.' (People v. Randolph (1957) 147 Cal.App.2d Supp. 836, 841 .) The section by its terms applies only when a person 'is arrested for any [nonfelony] violation of this code' and one of the four specified conditions is met. It thus assumes the violator has already been arrested under a substantive provision of the code, and simply declares the procedure which is then to be followed.

"Thus viewed, a principal purpose of the statute becomes apparent. The citation procedure of section 40500 (discussed ante ) is essentially an honor system, requiring the good faith and cooperation of the person cited. At the very least, he must be able to convince the officer--either by exhibiting his driver's license or by 'other satisfactory evidence'--that the name he is signing on the written promise to appear corresponds to his true identity (see also § 40504, subd. (b) [signing such a promise with a false name is a misdemeanor] ). When he cannot do so the officer has no assurance the promise will be honored, and under those circumstances subdivision (a) prohibits the use of the citation procedure. (People v. Mercurio (1970) 10 Cal.App.3d 426, 430 .)" ⁵

As Simon makes clear, Vehicle Code section 40302 is concerned with a narrow range of circumstances making a release upon a promise to appear unworkable or undesirable. Release of a person who cannot produce identification (subd. (a)), who refuses to sign a promise to appear (subd. (b)), or who insists upon being taken before a magistrate (subd. (c)) is impractical. And release of a person arrested for driving under the influence of alcohol or a drug is undesirable. (Subd. (d).) The fact that the person is in such condition and is operating an automobile makes him a continued danger to other users of the highways should he be released simply upon a Vehicle Code citation. In any event the arrested person must remain in custody for a sufficient period of time to accomplish the chemical test required by Vehicle Code section 13353.

The Legislature has been cognizant, however, that because of the hour or other circumstances of an arrest, although the arresting officer is required to take the arrested person before a magistrate, neither the magistrate nor a person authorized to act on his behalf may then be available. In 1951, it enacted section 737.2 of the Vehicle Code (Stats.1951, ch. 444, § 1, p. 1457) which provided that if no magistrate is available, the person arrested must be brought to the most accessible county or city jail or other place of detention. The officer in charge of such facility is empowered, in...