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Anthony v. Superior Court of Los Angeles County

September 20, 2010

JERRY DARNELL ANTHONY, PETITIONER,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT;
THE PEOPLE, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDINGS in mandate. Lance A. Ito, Judge. Petition denied. (Los Angeles County Super. Ct. No. BA315933).

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

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).*fn1 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, subd. (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, subd. (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.*fn2

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: [¶] (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.*fn3 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, disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 550, 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 ...


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