JUDGMENT ON APPEAL from the SUPERIOR COURT of ORANGE COUNTY HON. THOMAS REES COMMISSIONER
The opinion of the court was delivered by: Gregory H. LEWIS,Presiding Judge
CERTIFIED FOR PARTIAL PUBLICATION*fn1
HON. FRANCES MUNOZ HON. KAREN L. ROBINSON JUDGES
On January 14, 2009, appellant was arrested for driving under the influence of alcohol (DUI) and driving with a blood alcohol content of 0.08 percent or greater, in violation of subdivisions (a) and (b) of Vehicle Code section 23152. The notice to appear indicates that after being arrested, appellant was cited and released pursuant to Penal Code section 853.6, subdivision (a)(1), due to the unavailability of a magistrate. The notice to appear, wherein appellant promised to appear on March 10, 2009, was not filed with the court. Instead, on May 26, 2009, the People filed a criminal complaint, which realleged the charges as two misdemeanor counts, as well as a "Notice of Complaint Filed" purportedly notifying appellant of the charges and of his obligation to appear at a specified court on June 23, 2009. On that date, appellant appeared for arraignment through retained counsel and made an oral motion to dismiss the charges pursuant to Penal Code section 853.6, subdivision (e), on the ground that the complaint had not been filed within 25 days of the issuance of the notice to appear and had not been preceded by issuance of a new citation or an arrest warrant. The motion was denied by the trial court, whereupon appellant pleaded not guilty on both counts. Prior to trial, appellant filed a written motion to dismiss pursuant to Penal Code section 853.6, subdivision (e), which was again denied, and the case proceeded to trial, at which time the motion was again renewed and denied.
On the third day of trial, appellant filed a motion for mistrial or discovery sanctions based upon the People's failure to disclose documents relating to the blood alcohol test results and the calibration of the equipment used to measure appellant's blood alcohol level. The trial court granted the motion in part by redacting information in the documents as a discovery sanction,*fn2 and the jury subsequently found appellant guilty on both counts. Notice of appeal was timely filed, and after an initial hearing the Appellate Division ordered the record on appeal augmented to include the "Notice of Complaint Filed" and ordered supplemental briefing to address the issue of compliance with the requirement of Penal Code section 853.6, subdivision (e)(3), for "a new and separate citation or an arrest warrant" prior to further prosecution.
Citing Penal Code section 1054.5 and People v. Hitch (1974) 12 Cal.3d 641, 653, appellant contends the trial court erred prejudicially in failing to declare a mistrial or impose a more severe discovery sanction when the People failed to turn over documents relating to the Alco-Sensor IV and the test results it yielded. Contrary to appellant's assertion, the trial court did not merely instruct the jury pursuant to CALCRIM No. 306 that the People had failed to provide timely disclosure of the accuracy check log for the breath testing machine used upon appellant, and that the effect of the late disclosure could be considered "[i]n evaluating the weight and significance of that evidence." The record indicates that the trial court also prohibited the People from informing the jury of the third digit of the belatedly disclosed test results, thereby presenting both results as 0.08 percent rather than the actual results of 0.087 percent and 0.081 percent. (Docket rep. of Nov. 5, 2009, entry No. 12; see trial exhibit No. 3.) As the People point out, this latter aspect of the discovery sanction removed any potential prejudice to appellant from the belated disclosure of the test results, inasmuch as appellant's opening argument had been premised upon a 0.08 percent test result. The record does not indicate that the discovery violation was intentional, nor has appellant demonstrated a reasonable probability that the outcome would have been more favorable to him if the calibration and test logs for the Alco-Sensor IV (trial exhibits Nos. 4 & 5) had been disclosed in timely fashion prior to trial. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.)
Noting that the complaint was filed more than 25 days (132 days, in fact) after he was cited and released, appellant contends the trial court lacked jurisdiction to proceed in the absence of a new citation or an arrest warrant. In pertinent part, subdivision (e)(3) of Penal Code section 853.6 provides for initiation of prosecution via a notice to appear where no magistrate is immediately available for arraignment:
"If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. . . . The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant."
"In general, the cite-and-release procedure set forth in section 853.6 is mandatory; the statute declares that, subject to specified exceptions, misdemeanor arrestees 'shall' be released under that procedure." (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 760.) Under the statute, a notice to appear loses its efficacy as an accusatory pleading if neither the citation nor a criminal complaint is filed within the allotted ...