People v. Sample

Opinion

RACANELLI, P. J. —The question to be decided is whether the tolling provisions of section 802.5 of the Penal Code1 apply to certain felonies committed prior to the 1981 enactment. For the reasons we explain, we conclude that the three-year statute of limitations was effectively tolled under the provisions of the 1981 statutory enactment.2 Accordingly, the judgment entered on demurrer is reversed.

Procedural Background

The procedural posture and relevant factual background are uncontro-verted:

On April 2, 1980, a warrant for defendant’s arrest was issued on a complaint charging two counts of violation of section 211 (robbery) and two counts of violation of section 12021 (felon in possession of a concealable firearm) alleged to have been committed in March 1980. Defendant remained at large until apprehended some time in early 1983.

On June 29, 1983, an information was filed;3 following arraignment, defendant demurred on the ground that the criminal action was time-barred under the provisions of former section 800 which required, as relevant, that [1056]the information be filed “within three years” of commission of the felony.4 The People have appealed from a judgment for the defendant on the demurrer.

I

The People renew their argument that the tolling provisions of section 802.5 validly apply when, as here, the statute was enacted before the expiration of the applicable three-year statute of limitations. We agree.

Before the 1981 amendment to section 800, the limitations period ran until either (1) an indictment was returned or (2) an information was filed or (3) the matter was certified to the superior court. (Fn. 4, ante.) Thus, pursuant to the statutory scheme, in a felony prosecution initiated by complaint, the limitations period continued to run until a preliminary hearing was instituted and the defendant held to answer. In its benchmark decision in Hawkins v. Superior Court (1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916], the Supreme Court established under an equal protection analysis the right of a defendant to demand a postindictment preliminary hearing before entry of plea. (At pp. 593-594.) Thus, in the wake of Hawkins, cases initiated by indictment resulted in the tolling of the limitations period upon the finding of the indictment, although a preliminary hearing might subsequently ensue.