
    Appellate Department, Superior Court, San Bernardino
    [Crim. A. No. 1061.
    Apr. 26, 1983.]
    THE PEOPLE, Plaintiff and Appellant, v. CARL VINCENT LAROCCA, Defendant and Respondent.
    
      Counsel
    Dennis Kottmeier, District Attorney, and Matthew J. Kerrigan, for Plaintiff and Appellant.
    Riley B. Thompson for Defendant and Respondent.
   Opinion

THE COURT.

Penal Code section 853.6- provides a procedure whereby a person arrested for a misdemeanor may be released on a written notice to appear. In pertinent part section 853.6, subdivision (e)(3) provides that the duplicate notice to appear can be filed by the police officer with the prosecuting attorney who must file a complaint within 25 days after the arrest. Failure to comply with this 25-day rule bars further prosecution of the charges contained in the notice to appear.

We must decide in this appeal whether the procedure outlined in section 853.6, specifically the 25-day-limitation period, is applicable to this case. We have concluded that it is not.

Facts

The facts are not in dispute. Mr. Larocca, the defendant, was arrested on December 4, 1981, for driving under the influence of alcohol in violation of Vehicle Code section 23102, subdivision (a); hit and run (Veh. Code, § 20002, subd. (a)); and driving while license was suspended (Veh. Code, § 14601, subd. (a)). Defendant at the time of his arrest was not cite/released. Defendant did not sign a notice to appear; rather, he was booked into the county jail where he spent four to five hours. After which time he secured his release by posting bail.

The arresting officer filed “a complaint which had been okayed by the District Attorney’s office on” January 18, 1982; a period of 45 days after the arrest.

Defendant made a motion to dismiss which the lower court granted. The lower court reasoned that defendant was given a notice to appear, that said notice came within the provisions of section 853.6, and that the 25-day rule was not met. The People have appealed from the lower court’s order which dismissed this action.

Discussion

The People contend that section 853.6 envisions a procedure wherein the arrested person is required to sign the notice to appear and is then released from custody. The People are quick to point out that defendant was not allowed to sign the notice to appear: rather, defendant was booked into jail, and he later secured his release by posting bail.

We believe that two subdivisions of section 853.6 indicate that the notice to appear promulgations of that section do not apply to cases such as this where the arrestee is released on bail and not by notice to appear. Those subdivisions are (h) and (j). Subdivision (h) states: “A peace officer may use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.” Nothing in that subdivision requires that the notice to appear provisions be followed where a person is charged with drunk driving. Moreover, a close review of subdivision (j) of section 853.6, by referring to Vehicle Code section 40302, indicates that a “notice to appear pursuant to this chapter” is not required where the arresting officer states that the person arrested was not released because the latter was arrested for driving while intoxicated. These sections support the proposition that the procedure set forth in Section 853.6 is not mandatory or exclusive.

We hold that in this case a notice to appear was not required pursuant to section 853.6. Specifically, defendant did not sign the promise to appear portion of the notice. In short, section 853.6 did not require a notice to appear in this case, and a full and complete notice to appear pursuant to section 853.6 was not given.

This being the case, the lower court improperly granted defendant’s motion to dismiss and we therefore reverse the lower court’s order of dismissal.

This case is remanded to the lower court with directions that the order of dismissal be vacated and complaint be reinstated.

Appendix

Section 853.6:

“(a) In any case in which a person is arrested for an offense declared to be a misdemeanor and does not demand to be taken before a magistrate, such person may, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the arresting officer or his or her superior determines that the person should be released, such officer or superior shall prepare in duplicate a written notice to appear in court, containing the name and address of such person, the offense charged, and the time and place where and when such person shall appear in court. If the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, such officer or superior shall prepare such written notice to appear in a court.
“(b) Unless waived by the person, the time specified in the notice to appear must be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate, and at least 30 days after arrest if the duplicate notice is to be filed by the officer with the prosecuting attorney.
“(c) The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied' with, or shall be an officer authorized by such court to receive a deposit of bail.
“(d) The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, must give his or her written promise so to appear in court by signing the duplicate notice which shall be retained by the officer. Thereupon the arresting officer shall forthwith release the person arrested from custody.
“(e) The officer shall, as soon as practicable, file the duplicate notice, as follows:
“(1) It shall be filed with the magistrate if the offense charged is an infraction.
“(2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
“(3) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
“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 therein within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of arrest shall bar further prosecution of the misdemeanor charged in the notice to appear.
“Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail which in his or her judgment, in accordance with the provisions of Section 1275 of the Penal Code, will be reasonable and sufficient for the appearance of the defendant and shall indorse upon the notice a statement signed by him or her in the form set forth in Section 815a of this code. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail thus set. Thereafter, at the time when the case is called for arraignment before the magistrate, if the defendant shall not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may in his or her discretion order that no further proceedings shall be had in such case, unless the defendant has been charged with violation of Section 374b or 374e of this code or of Section 11357,11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of such section or punishable under such section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings shall be had in such case.
“Upon the making of such order that no further proceedings shall be had, all sums deposited as bail shall forthwith be paid into the county treasury for distribution pursuant to Section 1463 of this code.
“(f) No warrant shall issue on such charge for the arrest of a person who has given such written promise to appear in court, unless and until he or she has violated such promise or has failed to deposit bail, to appear for arraignment, trial or judgment, or to comply with the terms and provisions of the judgment, as required by law.
“(g) The officer shall indicate on the notice to appear whether he or she desires the arrested person to be booked as defined in subdivision 21 of Section 7. In such event, the magistrate shall, before the proceedings are finally concluded, order the defendant to be booked by the arresting agency.
“(h) A peace officer may use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.
“(i) If the arrested person is not released pursuant to the provisions of this chapter prior to being booked by the arresting agency, then at the time of booking the arresting officer, the officer in charge of such booking or his or her superior officer, or any other person designated by a city or county for this purpose shall make an immediate investigation into the background of the person to determine whether he or she should be released pursuant to the provisions of this chapter. Such investigation shall include, but need not be limited to, the person’s name, address, length of residence at that address, length of residence within this state, marital and family status, employment, length of that employment, prior arrest record, and such other facts relating to the person’s arrest which would bear on the question of his or her release pursuant to the provisions of this chapter.
“(j) Whenever any person is arrested by a peace officer for a misdemeanor, other than an offense described in subdivision (b) of Section 11357 or subdivision (c) of Section 11360 of the Health and Safety Code, and is not released with a written notice to appear in court pursuant to this chapter, the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for such nonrelease:
“(1) The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.
“(2) The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.
“(3) The person was arrested for one or more of the offenses listed in Section 40302 of the Vehicle Code.
“(4) There were one or more outstanding arrest warrants for the person.
“(5) The person could not provide satisfactory evidence of personal identification.
“(6) The prosecution of the offense or offenses for which the person was arrested or the prosecution of any other offense or offenses would be jeopardized by immediate release of the person arrested.
“(7) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
“(8) The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
“(9) Any other reason, which shall be specifically stated on the form by the arresting officer.
“Such form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release him or her for custody before trial.” 
      
      Before Ziebarth, P. J., Turner, J., and Rouse, J.
     
      
      Unless otherwise indicated all statutory references are to the Penal Code.
     
      
      Because of its length and importance to this case we set forth section 853.6 in an appendix. (See post, pp. 25-27.)
     
      
      See the appendix, post, page Supp. 25.
     
      
      Vehicle Code section 40302 provides: “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: (a) When the person arrested fails to present his driver’s license or other satisfactory evidence of his identity for examination, (b) When the person arrested refuses to give his written promise to appear in court, (c) When the person arrested demands an immediate appearance before a magistrate, (d) When the person arrested is charged with violating Section 23102 or 23105.”
     