Legal Question in Criminal Law in California

I was arrested just over one year ago for alleged California Penal Code 273.5 and 243(a). I was jailed and posted bail. A two-week Emergency Restraining Order was filed and granted, then a Temporary Restraining Order was filed and dismissed. As for the alleged PC Violations, the DA NEVER FILED CHARGES. As mentioned before, it has been over a year without a single word from the DA and without further incident with the petitioner. I have a very strong defense and a binder-full of evidence to help prove that the allegations were false and done in a fit of insane jealousy.

Since the DA has not filed charges, and I have not been arraigned, what is the statute of limitations on the time they have to file charges? It appears that there is a lot of information on what happens after charges are filed, but no information on how long the DA can hold this over my head. Help!

I have an arrest on my record that I'd like to have removed but I don't want to wake the proverbial sleeping dog.

I was told from the petitioner, that the reason the DA gave for not filing charges was, "insufficient evidence to prosecute". How long do I have to walk on egg shells with the petitioner and the DA before I can breathe a sigh of relief and get on with my life?


Asked on 6/14/10, 1:27 pm

2 Answers from Attorneys
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

I would have your attorney file a petition for a declaration of factual innocence. 273.5 arrests without convictions can be used against you in a number of ways and many people don't see any distinction between a 273.5 arrest and a 273.5 conviction.

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Answered on 6/14/10, 4:39 pm
Anthony Roach Law Office of Anthony A. Roach

A violation of Penal Code section 243 subd. (a) is a misdemeanor. Misdemeanors are not punished by imprisonment in state prison, so they are subject to the one year limitations period of Penal Code section 802 subdivision (a). "Except as provided in subdivision (b), [which does not apply to you] prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense." (Pen. Code, sect. 802 subd. (a).)

The problem, however, is that a violation of Penal code section 273.5 is not a strict misdemeanor, but is rather a "wobbler". A "wobbler" is an offense that by its terms can be punished by less than a year in jail or for a term in state prison. That means it is governed by Penal Code section 805. The statute of limitations applied to a "wobbler" is the statute of limitations that would apply if it was charged as a felony, regardless of whether it is actually charged as a felony or not. (People v. Ognibene (1993) 12 Cal.App.4th 1286, 1290, fn. 1.)

Thus the general statute of limitations for a felony - the three year statute of limitations of Penal Code section 801 - applies to spousal battery. "Except as provided in Sections 799 and 800, prosectuion for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense."

The problem, is that if you do move to seal and have the arrest records destroyed pursuant to Penal Code section 851.8 subd. (a), you will wake the sleeping dog.

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Answered on 6/14/10, 6:05 pm


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