People v. Asavis

WHITE, J.

In an information filed by the district attorney of Los Angeles County, the defendant was accused of a violation of section 288 of the Penal Code, alleged to have been committed on or about the 9th day of February,

[687]

1937. After trial had before the court sitting without a jury, defendant was found guilty. Upon appeal the judgment was reversed, because of the improper admission of testimony concerning a similar offense allegedly committed three or four years previous, and the cause was remanded for a new trial.

(People

v.

Asavis,

22 Cal. App. (2d) 492 [71 Pac. (2d) 307].) Upon the going down of the

remittitur

and while the cause was awaiting retrial in the superior court, the district attorney filed an amended information on March 3, 1938, in count I of which the identical charge of violation of section 288 of the Penal Code as pleaded in the original information was again set forth, and a second and additional count was added alleging that on or about February 9, 1937, the defendant was guilty of the crime of contributing to the delinquency of a minor, a misdemeanor; to which last-named count the defendant originally entered a plea of guilty, which, however, later was withdrawn and a plea of not guilty interposed. On the date set for the retrial, upon motion of the district attorney, the court dismissed the misdemeanor charge contained in count II on the ground that the same did not state a public offense, for the reason that upon its face it sought to charge a misdemeanor that had been committed more than one year prior to the filing of the amended information. (Sec. 801, Pen. Code.) The cause proceeded to trial upon the issues presented by count I, resulting in a conviction of defendant of the offense of violation of section 288 of the Penal Code. From the judgment and the sentence pronounced thereon and from the order denying his motion for a new trial, the defendant prosecutes this appeal.

The first contention of appellant is that the court erred in granting the motion to dismiss count II of the amended information. This claim is without merit. It is now definitely established as the law of this state that an information which, like the one before us, in so far as count II is concerned, shows on its face that the prosecution is barred by limitation, fails to state a public offense; and the trial court was correct in ordering it dismissed.