Anthony v. Superior Court (188 Cal. App. 4th 700, 2010)

Opinion

KLEIN, P. J.

Jerry Darnell Anthony has filed a petition for writ of mandate seeking an order directing the trial court to dismiss a pending charge of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187). He contends the charge is barred by the six-year statute of limitations period prescribed by section 800. We issued an order to show cause and now deny Anthony’s petition. For purposes of determining the applicable limitation of time under section 805, subdivision (a), the life term imposed by section 664, subdivision (a), for premeditated attempted murder constitutes an alternative penalty provision, not an enhancement, and therefore Anthony’s prosecution for that crime “may be commenced at any time” under section 799.

PROCEDURAL BACKGROUND

By an amended information filed on May 19, 2008, Anthony was charged with the following offenses: attempting to dissuade a witness, in violation of section 136.1, subdivision (a)(2) (count 1); felon in possession of a firearm, in violation of section 12022 (count 2); street terrorism, in violation of section 186.22, subdivision (a) (count 3); attempted willful, deliberate, and premeditated murder (hereafter, premeditated attempted murder), in violation of sections 664, subdivision (a), 187 (count 4); and aggravated mayhem, in violation of section 205 (count 7). Both the premeditated attempted murder and the aggravated mayhem were alleged to have been committed against the same victim on June 13, 1999. The other offenses were alleged to have been committed in 2006.

After the trial court denied Anthony’s motion to dismiss the premeditated attempted murder charge on statute of limitations grounds, the parties agreed to sever counts 1, 2 and 3, and proceed to trial on counts 4 and 7.

On August 1, 2008, the jury deadlocked and a mistrial was declared.

On October 2, 2009, the trial court again denied Anthony’s request to dismiss the premeditated attempted murder charge on statute of limitations grounds. This petition for writ of mandate followed. We issued an order to show cause and now deny Anthony’s requested writ relief.

CONTENTION

Anthony contends the premeditated attempted murder charge must be dismissed because it was filed after the six-year statute of limitations period set forth in section 800.

DISCUSSION

1. Statutory framework.

Resolution of this issue depends on the proper interplay of the following four statutes.

Section 664 provides, in pertinent part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [f] (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.” (Italics added.)

The statute of limitations provisions directly at issue in this case are set forth in sections 799, 800 and 805.

Section 800 provides: “Except as provided in Section 799, prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense.”

Section 799 provides, in pertinent part: “Prosecution for an offense punishable by . . . imprisonment in the state prison for life . . . may be commenced at any time.”

Section 805 provides, in pertinent part: “For the purpose of determining the applicable limitation of time pursuant to this chapter: ['[[] (a) An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.”

According to this statutory scheme, the statute of limitations for an attempted murder that is not premeditated would be the six-year period specified by section 800 because the maximum penalty for any murder, including second degree murder, is at least a life sentence. Anthony contends the trial court should have granted his motion to dismiss count 4 because the proper statute of limitations for premeditated attempted murder is the six-year period specified by section 800. However, as we will explain, because the applicable limitation of time for premeditated attempted murder is governed by section 799, a prosecution for this crime may be commenced at any time.

2. People v. Bright: the proper characterization of premeditated attempted murder.

The parties correctly acknowledge that in People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354], disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 550 [21 Cal.Rptr.3d 179, 100 P.3d 870], the Supreme Court concluded “the provision in section 664, subdivision (a), imposing a greater punishment for an attempt to commit a murder that is ‘willful, deliberate, and premeditated’ does not create a greater degree of attempted murder but, rather, constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder.” (People v. Bright, supra, at pp. 656-657.)

The issue in Bright was the double jeopardy effect of a jury convicting the defendant of attempted murder, but failing to reach a verdict on the premeditation allegation. As Bright explained: “Under these general [double jeopardy] principles, if the phrase ‘willful, deliberate, and premeditated murder’ in section 664, subdivision (a), establishes a greater degree of the offense of attempted murder, a. jury verdict convicting a defendant of the lesser degree of attempted murder would constitute an implied acquittal of the greater degree. The prohibition against double jeopardy therefore would bar retrial of the greater degree of attempted willful, deliberate, and premeditated murder. If, on the other hand, this provision constitutes a penalty provision related to the single offense of attempted murder, a conviction of attempted murder would not constitute an acquittal of (or otherwise bar retrial of) the penalty allegation that the attempted murder was willful, deliberate, and premeditated.” (People v. Bright, supra, 12 Cal.4th at p. 662.)

Recounting the legislative history of the attempt statute, Bright noted that before section 664 was amended in 1986, the statute “prescribed the identical punishment for attempted murder regardless whether the murder attempted was of the first or second degree.” (People v. Bright, supra, 12 Cal.4th at p. 663.) When section 664 was amended in 1978, that punishment was five, seven, or nine years. “Thus ... at the time of the 1986 amendment to section 664, it was recognized generally that the crime of attempted murder was not divided into degrees.” (People v. Bright, supra, at p. 665.) Then “[i]n 1986, the Legislature added to section 664, subdivision (a), the provision prescribing life imprisonment with the possibility of parole as the punishment where the ‘crime attempted is willful, deliberate, and premeditated murder, within the meaning of section 189 ....’” (Ibid., fn. omitted.)

The issue for Bright was “whether the 1986 amendment should be interpreted as changing existing law so as to divide the crime of attempted murder into separate degrees—an attempt to commit willful, deliberate, and premeditated murder (‘first degree attempted murder’) and all other attempts to commit murder (‘second degree attempted murder’)—or, instead, as establishing a penalty provision that increases the punishment if the trier of fact, after finding the defendant guilty of the crime of attempted murder, also finds that the murder attempted was willful, deliberate, and premeditated.” (People v. Bright, supra, 12 Cal.4th at pp. 665-666, fn. omitted.)

Bright reasoned that, “[although ... the language employed in the segment of section 664 at issue in this case corresponds to the language typically employed in ‘sentence enhancement’ provisions under the Determinate Sentencing Act of 1976, strictly speaking this portion of section 664 does not constitute an ‘enhancement’ within the meaning of rule 405(c) of the California Rules of Court, which defines ‘enhancement’ as ‘an additional term of imprisonment added to the base term,’ because this statutory provision establishes an increased base term for the crime of attempted murder upon a finding of specified circumstances.” (People v. Bright, supra, 12 Cal.4th at p. 656, fn. 2, italics added.) Thus, Bright found “no basis for defendant’s conclusion that, in amending the statute to prescribe a life sentence for attempted murder that is willful, deliberate, and premeditated, the Legislature sought to carve out a separate, higher degree of the crime of attempted murder.” (People v. Bright, supra, 12 Cal.4th at p. 668.)

Thus, it is clear premeditated attempted murder is not a separate offense from attempted murder. The crucial question, however, is what effect this conclusion has on determining the applicable statute of limitations for prosecuting this crime.

3. Analysis of the statute of limitations scheme.

a. People v. Turner.

Based on the decision in People v. Turner (2005) 134 Cal.App.4th 1591 [36 Cal.Rptr.3d 888], Anthony argues the applicable limitation period is necessarily the six-year limit in section 800. Turner faced the question whether a prosecution for robbery (§ 211) could be commenced “at any time,” under section 799, where the defendant also faced a life sentence under the “Three Strikes” law. Turner framed the issue this way: “The question whether an offense that normally is subject to the [three-year] limitation period of section 801[] instead may be prosecuted ‘at any time,’ pursuant to section 799, when allegations of a defendant’s recidivist status expose the defendant to an indeterminate life term under the Three Strikes law, is an issue of first impression. The issue is one of statutory interpretation, and turns on the meaning, in section 799, of ‘an offense punishable by . . . imprisonment in the state prison for life,’ and in section 805 of ‘the maximum punishment prescribed by statute for the offense.’ Specifically, the issue is whether the ‘offense’ referred to must itself be punishable by life imprisonment, or whether the Legislature intended to include any offense which may result in a life sentence based upon facts other than the commission of the offense itself. We shall conclude that the former interpretation is correct, and therefore shall reverse defendant’s conviction for robbery.” (People v. Turner, supra, 134 Cal.App.4th at p. 1596.)

Examining the legislative history of the “current scheme of criminal statutes of limitation [as] set forth in sections 799 through 805,” Turner observed: “In 1981, in recognition of the fact ‘that piecemeal amendment over the years had produced a scheme that was confusing, inconsistent, and lacking in cohesive rationale,’ the Legislature referred the matter to the Law Revision Commission for comprehensive review. [Citations.] In 1984, the Legislature overhauled the entire scheme. (Stats. 1984, ch. 1270, §§ 1-2, pp. 4335-4337.) The revised scheme reflected the primary recommendation of the Law Revision Commission that the length of a ‘limitations statute should generally be based on the seriousness of the crime.’ (17 Cal. L. Revision Com. Rep. (1984) p. 313.) The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. (Id., p. 314.) It also served the procedural need to ‘provid[e] predictability’ and promote ‘uniformity of treatment for perpetrators and victims of all serious crimes.’ (Ibid.) The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, ‘a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life .in prison is a determination that society views the crime as the most serious.’ ” (People v. Turner, supra, 134 Cal.App.4th at pp. 1594-1595, italics added.)

Turner then reasoned as follows:

“Both sections 799 and 805 refer only to prosecution for an ‘offense,’ and punishment prescribed by ‘statute for the offense,’ not to prosecution and punishment that applies to a particular offender, and which is based upon facts other than the commission of the offense for which he or she is being prosecuted. The Penal Code defines an ‘offense’ as ‘an act committed or omitted in violation of a law forbidding or commanding it.’ (§15, italics added.) In the context of selecting the applicable statute of limitations for a prosecution, the ‘act’ or ‘offense’ must refer to the current felony for which the defendant is to be, or is being, prosecuted, not the facts of prior convictions, because the prior convictions are based on records of prosecutions that have already been brought. The maximum punishment prescribed by ‘statute for the offense’ (§ 805, subd. (a), italics added) therefore logically refers to the maximum punishment for the current offense for which the defendant is being prosecuted, and to which he may assert the bar of the statute of limitations.

“The punishment of an indeterminate life term under the Three Strikes law, by contrast, is not a punishment specified by statute for an ‘offense,’ i.e., the current act for which the defendant is to be prosecuted. It is an alternative sentence imposed upon those who commit a current felony offense, and who are recidivist offenders. . . . The indeterminate life term to which the offender may be subject, under the Three Strikes law, is ... an alternative punishment that is imposed based upon the fact of the defendant’s recidivism, and it is imposed upon conviction of ‘a felony’ without regard to the seriousness of the current felony offense, if the defendant has two or more ‘serious’ or violent felony convictions. . . . For these reasons the indeterminate life term under the Three Strikes law is not, within the meaning of section 805, ‘the maximum punishment prescribed by statute for the offense [italics added].’ ” (People v. Turner, supra, 134 Cal.App.4th at pp. 1597-1598, citations omitted.)

In reaching this conclusion, Turner rejected the Attorney General’s reliance on “the last sentence of subdivision (a) of section 805, which states: ‘Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.’ The Attorney General reasons that since the punishment under the Three Strikes law is not an enhancement, a point that defendant readily concedes, then the life term that may be imposed pursuant to it must be deemed the ‘maximum punishment prescribed by statute for [the] offense.’ All the last sentence of subdivision (a) of section 805 establishes, however, is that enhancements are not to be included in the determination of the maximum punishment prescribed by statute for the offense. Since the life term imposed under the Three Strikes law is not an enhancement, the last sentence of subdivision (a) of section 805 does not answer, and indeed begs the question, whether the alternate life sentence imposed under the Three Strikes law is a punishment prescribed by ‘statute for the offense.’’ For the reasons we have stated, it is not. Instead, it is an alternate sentencing scheme that applies and imposes punishment based upon the fact of defendant’s recidivism. If anything, the direction in section 805 to disregard any enhancements in determining the maximum punishment prescribed for an offense clarifies that the Legislature intended the relevant penalty to be the punishment imposed for commission of the crime itself, not additional or alternative penalties imposed based upon other facts or circumstances such as recidivism. This approach ensures that the selection of the applicable statute of limitations corresponds to the seriousness of the current offense, and that section 799 applies only to the most serious offenses punishable by death or life in prison. (See also Cal. Law Revision Com. com., 50 West’s Ann. Pen. Code (1984 ed.) foll. § 799, pp. 191-192 [‘A crime punishable by death or life imprisonment ... is a crime for which the maximum penalty that may be imposed is death or life imprisonment (with or without parole), disregarding enhancement of the penalty in the case of an habitual offender’].) Regardless of whether the punishment imposed under the Three Strikes law is deemed an enhancement or an alternate sentencing scheme, for the purpose of selecting the applicable statute of limitations, the relevant penalty is that prescribed by statute for commission of the offense itself, not penalties that may be imposed based upon other facts such as the defendant’s recidivism.” (People v. Turner, supra, 134 Cal.App.4th at pp. 1599-1600, fn. omitted.)

In the case at bar, Anthony’s argument is that Turner stands for the broad proposition that, when section 805 says “Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense,” this excludes both true enhancements and such alternative penalty provisions as the premeditated attempted murder allegation in section 664, subdivision (a).

b. McSherry and Johnson.

Subsequent case law, however, has sidestepped Turner's broad language and tended to limit that decision to its facts. We ourselves did so in People v. McSherry (2006) 143 Cal.App.4th 598 [49 Cal.Rptr.3d 389], where the defendant had been convicted of attempted child molesting with a prior conviction for a lewd act on a child under the age of 14. As we explained, “The offense of annoying or molesting a child under the age of 18 years generally is a misdemeanor that is punishable by a maximum term of one year in the county jail. (§ 647.6, subd. (a).) Where, as here, the defendant has a prior conviction of a lewd act in violation of section 288, the offense is a felony punishable by two, four or six years in state prison. (§ 647.6, subd. (c)(2).)” (143 Cal.App.4th at pp. 601-602.)

Citing Turner, the defendant in McSherry argued the conduct underlying his conviction was a misdemeanor violation of section 647.6, subdivision (a), and therefore the applicable statute of limitations should be the one-year misdemeanor period governed by section 802. We disagreed, holding the proper limitation of time for attempted child molesting with a prior lewd act (§§ 664, 647.6, subd. (c)(2)) was the three-year period for felonies (§ 801) because the prior conviction allegation turned the offense from a misdemeanor into a felony.

We pointed out that, “[i]n a case involving a violation of former section 647a with a prior conviction of a lewd act, which is the precursor of 647.6, subdivision (c)(2), People v. San Nicolas (1986) 185 Cal.App.3d 403 [229 Cal.Rptr. 650], held the statute of limitations period . . . varied according to the criminal history of the offender. Because the defendant in San Nicolas had a prior conviction of a violation of section 288, he was subject to imprisonment in the state prison. [Citation.] Accordingly, the three-year statute of limitations applied. [Citation.]” (People v. McSherry, supra, 143 Cal.App.4th at p. 602, fn. omitted.) We found the reasoning of San Nicolas persuasive, concluding; “Because section 647.6, subdivision (c)(2) is an ‘offense punishable by imprisonment in the state prison,’ the three-year statute of limitations applies. (§ 801.)” (People v. McSherry, supra, at p. 602.)

We also concluded Turner was distinguishable: “Applying Turner here, McSherry asserts that because the conduct underlying his conviction, absent [his] recidivism, constituted a misdemeanor, the applicable statute of limitations is one year. However, Turner involved the Three Strikes law, which constitutes an alternate sentencing scheme. . . . [f] On the other hand, annoying or molesting a child with a prior conviction of a lewd act in violation of section 288 is a felony punishable by a term of two, four or six years in state prison. (§ 647.6, subd. (c)(2).) Because the maximum term prescribed by statute for a violation of section 647.6, subdivision (c)(2), is six years, the applicable statute of limitations is three years.” (People v. McSherry, supra, 143 Cal.App.4th at p. 603, citation omitted.)

In People v. Johnson (2006) 145 Cal.App.4th 895 [51 Cal.Rptr.3d 893], the defendant was convicted of indecent exposure under a statute (§ 314) which, like section 647.6, is either a misdemeanor or a felony depending on whether the defendant has a prior conviction. Johnson rejected the defendant’s reliance on Turner. “Turner did not address the question presented here, i.e., the limitations period applicable to ‘hybrid’ statutes providing for misdemeanor or felony treatment depending upon the presence or absence of aggravating factors. Turner dealt with the interpretation and application of sections 799 and 805, where the defendant was charged with an offense under the three strikes law . . . .” (People v. Johnson, supra, at pp. 902-903.) Responding to the defendant’s reliance on “a broader reading of Turner, suggesting that any statutory use of prior convictions to increase punishment necessarily relates not to the punishment prescribed by statute for the offense, but only to the circumstances of a particular offender,” Johnson reasoned that, because “Turner interpreted section 805 only in the context of the three strikes law and application of the limitations period provided under section 799,” it had “no direct application in this context before us.” (People v. Johnson, supra, at p. 904.)

Having distinguished Turner, the Court of Appeal in Johnson focused on key language in section 805: “The ultimate issue is whether the existence of a prior conviction for a violation of section 314, subdivision 1, which elevates the current violation to felony status is an ‘enhancement’ within the meaning of section 805 that must be disregarded in determining the ‘maximum punishment.’ We conclude that it is not. [