Scherling v. Superior Court

• Decision Date: 20 October 1978
• Docket Number: S.F. 23639
• Citation: 22 Cal.3d 493,585 P.2d 219,149 Cal.Rptr. 597
• Court: California Supreme Court
• Parties: , 585 P.2d 219 Henry G. SCHERLING, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Page 597

149 Cal.Rptr. 597

22 Cal.3d 493, 585 P.2d 219

Henry G. SCHERLING, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent The PEOPLE, Real Party in Interest.

S.F. 23639.

Supreme Court of California, In Bank.

Oct. 20, 1978.

Sheldon Portman, Public Defender, and C. Randall Schneider, Deputy Public Defender, for petitioner.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Dane R. Gillette, Deputy Attys. Gen., for real party in interest.

MOSK, Justice.

On March 9, 1976, the District Attorney of Santa Clara County filed an information charging defendant with four counts of burglary committed in 1966 and 1967. ¹ The information also alleged that defendant left California in July 1969 and remained away until February 1976. Defendant moved to dismiss the information on the ground that the court lacked jurisdiction because the three-year statute of limitations applicable to burglary had lapsed ² and that he had been denied his right to a speedy trial. The trial court, after holding an extensive evidentiary hearing, denied the motion. Defendant seeks a writ of prohibition to restrain the court from proceeding to trial on the information. He contends that section 802 of the Penal Code, which tolls the statute of limitations for the period a defendant is out of the state, is unconstitutional as applied to him, and that he was deprived of his right to a speedy trial.

Defendant was charged in the information with entering the San Jose Peace Center on November 26, 1966, the home of Grace McDonald on January 11, 1967, the residence of Frederick Hirsch in the spring of 1967, and the Palo Alto Peace Center on February 2, 1968, all located in Santa Clara County, with intent to commit a felony. (§ 459.) In each burglary, only files belonging to the victims were taken.

Although these crimes were reported to the Santa Clara police, defendant's involvement was not suspected for many years. However, another law enforcement official, Chief James Ailes of the police department in Delano, Kern County, was aware of some of defendant's illegal activities in Santa Clara because of defendant's participation in a burglary in Delano on May 30, 1967. On that date, defendant and Jerry Ducote unlawfully entered the Philippine Community Center in that community and removed records and files relating to Cesar Chavez and the United Farm Workers. The Delano police traced the car used in the burglary to defendant, who then lived in San Jose.

At the request of the Delano police, defendant was arrested, photographed and fingerprinted by the San Jose police. An officer of the Delano Police Department interviewed defendant at the San Jose Police Department; defendant's attorney was present, but no San Jose police attended. Defendant explained that on the date in question he had driven to Fresno for female companionship, and had picked up a hitchhiker. The Delano officer determined that there were discrepancies between defendant's statement and the police report of the burglary; he attempted unsuccessfully to contact the victims of the Delano burglary, and then turned the file over to Chief Ailes.

In early June 1967, Ducote and defendant's attorney met with Chief Ailes at the Bakersfield airport. Ducote testified that the purpose of the meeting was to deter the police from continuing the investigation of the Delano burglary. He showed Ailes various documents obtained in the Santa Clara burglaries charged in the first two counts of the information, related the manner in which the documents had been obtained, and implicated defendant in the crimes.

Ducote advised Chief Ailes that he had given the stolen material to an organization called Western Research, which allegedly had close connections with the F.B.I., and that some of the material had gone to the C.I.A. Ducote's purpose was to demonstrate that the burglary in Delano had been committed to obtain subversive material for the use of government agencies so that Ailes would discontinue the investigation. The Delano Police Department took no further action; Ailes testified that the case was dropped because the victims failed to cooperate in the investigation.

In July 1969, defendant lost his job in Santa Clara County and moved with his family to Idaho. He left a forwarding address with the post office, and his telephone number was listed in the directory in Coeur d'Alene. He used his true name at all times.

In 1973 Ducote embarked on a scheme of fraud and deceit in order to obtain money. He used the name of a prominent grower in the Salinas Valley area to obtain loans from private parties. ³ The grower complained to the district attorney, but refused to provide details to the authorities, and the case against Ducote was dropped. Defendant's name was never mentioned in connection with this investigation.

About this time, Ducote, using an alias, contacted the attorney for the United Farm Workers, and offered to sell him the documents stolen from that organization for $25,000. The attorney notified the F.B.I., and advised the agent assigned to the case that at a meeting with Ducote, he was told Ducote had committed 16 political burglaries and had taken documents from the victims. The agent contacted the Santa Clara District Attorney's office, which informed him that Ducote's file contained no information later than October 1969. The agent forwarded all the information in his possession to the United States Department of Justice, and was subsequently notified that there were no federal civil rights violations involved in Ducote's activities; the agent was directed to contact local authorities concerning the burglaries.

The trial court found that Santa Clara officials had no knowledge of the report of the burglaries until 1976, although there is some conflict in the evidence on that issue. In April 1974, one Jerry Boyes contacted the Santa Clara District Attorney's office and showed an investigator two newspaper articles discussing political burglaries. Boyes stated that Ducote and others were involved in the burglaries, and that he had been present when Ducote displayed the documents taken from the break-ins mentioned in the articles. Defendant's name was not mentioned. The investigator who spoke with Boyes believed he was not a credible witness and did not pursue the information provided. The trial court found that the failure of the county to investigate further was justified.

Boyes also contacted other government agencies, including the intelligence branch of the California Department of Justice, at which he spoke with agent Walter Kubas about Ducote's involvement in political burglaries. Kubas contacted Ducote on February 14, 1975, and Ducote confessed to the burglaries and told of defendant's involvement. He turned over several boxes of documents stolen in the break-ins, and Kubas gave them to the legal staff. But it was not until October 1975 that the legal staff referred the matter to the investigative branch of the department to conduct an investigation for the purpose of prosecution.

On November 4, 1975, an agent of the department contacted Santa Clara County officials about the burglaries. After a preliminary hearing regarding Ducote's involvement in the crimes, investigators from the county and the department flew to Idaho, where they met with defendant on January 4, 1976. On February 2, 1976, defendant came to San Jose from Idaho and was arrested by Santa Clara authorities that day.

Defendant admits that he unlawfully entered the premises described in the information, but claims that he did not intend to permanently deprive the burglary victims of their papers. He claims that Ducote had advised him that the stolen documents were for the use of intelligence agencies, and that he assumed they would be copied and returned to their owners.

I

As we have seen, section 800 provides a three-year statute of limitations for burglary. The offenses charged against defendant occurred in 1967 [22 Cal.3d 500] and 1968, and the information was not filed until February 1976. The statute of limitations would have lapsed, therefore, but for the command of section 802 that if a defendant is out of the state when or after an offense is committed, no time during which he is absent is to be computed as a part of the limitation period. Defendant left California in July 1969, approximately two years and eight months after committing the first offense charged in the information and 17 months after the last offense.

He asserts that section 802 should not be applied literally and that an exception to its application should be made where, as here, the accused was not in flight from prosecution at the time he left the state, no warrant for his arrest had been issued either before or after he departed, and state law enforcement officials knew, or in the exercise of reasonable diligence should have known, his whereabouts. In these circumstances, defendant claims, his absence did not prevent the People from bringing him to trial within the three-year limitation period. According to defendant, the purpose of section 802 is to assure state officials access to a person chargeable with crime before the statute of limitations has lapsed, and where, as here, they in fact have such access the tolling of the statute would violate a defendant's right to travel freely and to equal protection of the laws. (U.S.Const., art. IV, § 2, 14th Amend.; Cal.Const., art. I, § 7, subd. (a).)

At the outset, we question defendant's premise that the sole reason for the tolling provision of section 802 is to assure that an accused is available for prosecution at all times prior to the lapse of the statute of limitations. The Legislature could have rationally determined that the likelihood of detection of the crime and identification of the criminal is greater if the accused remains within...