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Name: Anthony v. Superior Court
Case #: B223625
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 09/20/2010

The statute of limitations for attempted premeditated murder is governed by Penal Code section 799, allowing for commencement of prosecution at any time. By amended information filed May 19, 2008, petitioner was charged with attempted premeditated murder (Pen. Code, §§ 664, subd. (a)/187), alleged to have occurred on June 13, 1999, and other offenses. The trial court denied a motion to dismiss on statute of limitations grounds, and petitioner filed a petition for writ of mandate in the appellate court. Analyzing the interplay between Penal Code sections 664, subdivision (a), 799, 800, and 805, the appellate court denied the petition. Section 664, subdivision (a) provides for imprisonment in state prison for life if the attempted murder is alleged as premeditated; otherwise, the sentence is 5, 7, or 9 years. Sections 799, 800, and 805 concern the applicable statute of limitations. Section 800 provides for a 6-year period if the penalty is 8 years or more. Section 799 allows for prosecution at any time if the penalty is a life sentence. And section 805 holds that the determination of penalty is that prescribed by statue for the offense, regardless of that sought or imposed or that resulting from addition of enhancements. The court held that the term, “enhancement” in section 805 is defined as only a technical enhancement, i.e., a term added to the base term for the offense. Subdivision (a) of section 664 is an alternative penalty scheme that defines the length of imprisonment for the substantive offense, rather than an enhancement to be disregarded in determining the maximum punishment for limitations purposes. Therefore Penal Code section 799 allowing for an unlimited time frame for commencement of prosecution applies.