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Wallace v. Municipal Court for Chico Judicial District of Butte County2/22/1983
e release, to "deliver one copy of the notice to the arrested person, . . ." Penal Code section 853.9, subdivision (a), further provides that when such a "written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to the provisions of Section 853.6 of this code, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead 'guilty' or 'nolo contendere.'" (Italics added.) Consequently, it is only the offense charged in the original notice that is subject to the 25-day requirement. Offenses subsequently charged by the prosecutor are subject only to the general one-year statute of limitations (Pen. Code, § 801, subd. (a)).
Our conclusion is buttressed by the legislative history of the section. In 1980 the Legislature amended Penal Code section 853.6 to provide for the first time that the duplicate notice be filed with the prosecutor rather than the court. (Stats. 1980, ch. 1094, § 2, pp. 3507-3508.) We agree with the Attorney General that the purpose of that amendment is to permit a professional evaluation by the prosecutor of the charges levied by the releasing officer before they are filed in court. That purpose would not be advanced by a construction which would impose a 25-day statute of limitations for offenses initiated by the prosecutor by amendment to a citation while leaving charges initiated by complaint to be controlled by the general 1-year statute of limitations. It is inconceivable that the Legislature intended such enormously different time limitations would be contingent upon the charging document the prosecutor arbitrarily selected.
We necessarily also reject defendant's last argument that Penal Code section 853.6 establishes a 25-day statute of limitations for all misdemeanors. If petitioner's construction were adopted, the prosecutor would be barred from filing a complaint for any misdemeanor offense unless that accusatory pleading was filed within 25 days from the arrest. The proscription of Penal Code section 853.6, subdivision (e)(3), however, only bars "prosecution of the misdemeanor charged in the notice to appear." The statute of limitations period for filing complaints for a noncited misdemeanor offense is prescribed in Penal Code section 801, subdivision (a), namely "within one year after its commission."
The remaining issue presented in this writ proceeding does not merit publication under California Rules of Court, rule 976. Accordingly, it is discussed in an unpublished opinion. (Cal. Rules of Court, rule 976.1.)
The petition for writ of prohibition is denied and the alternative writ discharged.
Disposition
The petition for writ of prohibition is denied and the alternative writ discharged.
Judges Footnotes
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