Filed 1/24/17

                              CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                     DIVISION TWO

SANDRA HUDSON,

        Petitioner,                                   E065645

v.                                                    (Super.Ct.No. RIF1502841)

THE SUPERIOR COURT OF                                 OPINION
RIVERSIDE COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDING; petition for writ of mandate. Irma Poole Asberry,

Judge. Petition granted in part; denied in part.

        Frank T. Vecchione and Paul Grech, Jr., for Petitioner.

        No appearance for Respondent.

        Michael A. Hestrin, District Attorney, Emily R. Hanks, Deputy District Attorney,

for Real Party in Interest.



                                             1
       In this matter we reviewed the petition, determined it may have merit, stayed the

action in the trial court, and requested an informal response. Having considered the

informal response and a reply, we determined that petitioner Sandra Hudson may have

established a right to relief and set an order to show cause on two of the three issues

petitioner raises1. We subsequently reviewed the return and traverse. For the reasons we

set forth post, we conclude the petition succeeds as to issues concerning the rule set forth

in In re Williamson (1954) 43 Cal.2d 651 (Williamson), but it fails with respect to

petitioner‟s complaints about the People‟s allegations regarding tolling of the statute of

limitations. We therefore grant relief only in part.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On December 16, 2009, petitioner, acting as secretary of the board of directors for

the Palo Verde Healthcare District (PVHD), voted to approve two contracts between

PVHD and one Hussain Sahlolbei, M.D. One pertained to “Surgical Services

Directorship with Dr. Sahlolbei,” and the other was called the “Surgery On-Call

Agreement with Dr. Salolbei.” The parties agree that, at the time of petitioner‟s vote on

the contracts, Dr. Sahlolbei was renting a residence on First Street in Blythe, California,

that was owned at least in part by petitioner‟s husband. The parties further agree that

       1  The petition raises the following issues: (A) whether petitioner had a prohibited
financial interest (Gov. Code, § 1090, subd. (a)) in certain contracts she voted to approve
as a board member of a healthcare district; (B) whether the Williamson rule bars the
People from prosecuting petitioner for a felony under Penal Code section 115; and
(C) whether certain counts alleged against petitioner are timely. We issued an order to
show cause on issues B and C, only. The petition is summarily denied as to issue A.

                                              2
petitioner received Dr. Sahlolbei‟s rent checks at times, and that at least some of those

checks were deposited into an account petitioner and her husband shared.

       As one of PVHD‟s board members, petitioner was required to file, each year, a

statement of economic interest form 700 (Form 700) “disclosing h[er] investments, h[er]

interests in real property and h[er] income during the period since the previous

statement.” (Gov. Code, §§ 87203, 87200.) In 2008, petitioner disclosed the First Street

property on her Form 700 and explained that it was her husband‟s separate property.

However, her Form 700 filings in 2009 through 2013 failed to disclose any interest in the

First Street property.

       On January 13, 2014, real party in interest, the People, filed a complaint charging

petitioner with a single count of violating of Government Code section 1090, which

prohibits “[m]embers of the Legislature, state, county, district, judicial district, and city

officers or employees” from entering into contracts, in an official capacity, in which they

are “financially interested.” (Gov. Code, § 1090, subd. (a).) The complaint alleged

petitioner had “willfully and unlawfully ma[d]e a contract in her official capacity in

which she had a financial interest,” and then specified that the contracts were “surgical

services co-directorship and surgical services on call agreements” with Dr. Sahlolbei.

The complaint also made the following allegation regarding the statute of limitations:

“The crime charged in Count 1 was not discovered nor could it have reasonable [sic]

been discovered until October 19, 2010, when the Riverside County District Attorney‟s



                                               3
Office received a letter from Marty Bachman which alleged potential violations of

California conflict of interest laws committed by” petitioner.

       Petitioner was arraigned on the single-count complaint on February 24, 2014. On

June 25, 2015, the Grand Jury of the County of Riverside returned an indictment against

petitioner. Arraignment on the indictment occurred on July 9, 2015.

       The indictment contained the original count for violation of Government Code

section 1090 and added a second count under the same statute. The first alleged

petitioner committed a felony by voting on PVHD‟s surgical services on-call agreement

with Dr. Sahlolbei, and the second makes the same allegation with respect to petitioner‟s

voting in favor of the surgical services co-directorship. In addition, the indictment

charged petitioner with five counts (numbered 3 through 7) of offering a false instrument

(Pen. Code, § 115) because she failed to list the First Street property on the Form 700‟s

she filed in 2009 through 2013. Each of the counts for offering a false instrument was

charged as a felony.

       On September 8, 2015, petitioner filed a motion to set aside the indictment under

Penal Code section 995. As she does in this proceeding, petitioner argued she was not

“financially interested in” (Gov. Code, § 1090, subd. (a)) PVHD‟s contracts with Dr.

Sahlolbei, invoked the Williamson rule, and attacked the timeliness of all but the last two

Penal Code section 115 counts. The trial court solicited supplemental briefing on the

statute of limitations issue and made its final ruling on March 11, 2016. Although the

trial court dismissed one of the Penal Code section 115 counts (count three) as time-

                                             4
barred, it otherwise denied petitioner‟s motion under Penal Code section 995. The trial

court agreed with petitioner that the tolling allegations in the complaint and the

indictment were deficient but allowed the People leave to amend so they could add more

detail to their tolling allegations. This petition followed.

                                       DISCUSSION

       A writ of prohibition is an appropriate way of challenging the validity of an

indictment after the denial of a motion to set aside the information. (Pen. Code, § 999a;

Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393.) On writ review, we ordinarily

ignore the superior court‟s ruling on the Penal Code section 995 motion and defer to the

magistrate‟s findings of fact as long as they are supported by substantial evidence.

(People v. Slaughter (1984) 35 Cal.3d 629, 638.) However, review is independent if the

magistrate made no factual findings because the reviewing court is essentially deciding

whether the magistrate properly interpreted the law. (Ibid.)

       All a magistrate needs to find to hold a defendant to answer is probable cause, or

“ „such a state of facts as would lead a man of ordinary caution or prudence to believe

and conscientiously entertain a strong suspicion of the guilt of the accused.‟ ” (People v.

Slaughter, supra, 35 Cal.3d at p. 636.) Moreover, “ „Evidence that will justify a

prosecution need not be sufficient to support a conviction . . . . An information will not

be set aside or a prosecution thereon prohibited if there is some rational ground for

assuming the possibility that an offense has been committed and the accused is guilty of



                                               5
it. [Citations.]‟ ” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582, overruled on other

grounds by People v. Antick (1975) 15 Cal.3d 79, italics added.)

       1.     The Williamson rule bars the People from prosecuting petitioner for a

       felony violation of Penal Code section 115

       In support of her Williamson rule argument, petitioner argues the People cannot

prosecute her for a felony under a general statute (Pen. Code, § 115) because a special

statute (Gov. Code, § 87203) makes it only a misdemeanor to fail to file a Form 700 (see

Gov. Code, § 91000 [making it a misdemeanor to “knowingly or willfully” violate

statutes, including Gov. Code, § 87203]). The People respond that petitioner may not

invoke the Williamson rule because Government Code section 91014 expresses a

contrary intent, and they contend any such claim fails on the merits because the elements

of filing a false document (Pen. Code, § 115) are different from the elements of a

violation of the statute requiring public employees to file a Form 700. Petitioner‟s

contentions regarding this apparent question of first impression are more persuasive.

       “Under the Williamson rule, if a general statute includes the same conduct as a

special statute, the court infers that the Legislature intended that conduct to be prosecuted

exclusively under the special statute. In effect, the special statute is interpreted as

creating an exception to the general statute for conduct that otherwise could be

prosecuted under either statute. [Citation.] . . . „Indeed, in most instances, an overlap of

provisions is determinative of the issue of legislative intent and “requires us to give effect

to the special provision alone in the face of the dual applicability of the general provision

                                               6
. . . and the special provision . . . .” ‟ ” (People v. Murphy (2011) 52 Cal.4th 81, 86

(Murphy).)

       The Williamson rule applies either when the general statute and the specific statute

share the same elements, or “when „it appears from the statutory context that a violation

of the special statute will necessarily or commonly result in a violation of the general

statute.‟ ” (Murphy, supra, 52 Cal.4th at p. 86.) “In its clearest application, the rule is

triggered when a violation of a provision of the special statute would inevitably constitute

a violation of the general statute.” (Ibid.) When the general statute includes an element

not present in and imposes a punishment harsher than the special statute, “it is reasonable

to infer that the Legislature intended to punish such conduct more severely.” (Id. at

p. 87.) As a result, the Williamson rule will not apply when, for example, a felony statute

requires a more culpable mental state than a misdemeanor statute proscribing the same

behavior. (See, e.g., People v. Watson (1981) 30 Cal.3d 290, 295-297.)

       The Williamson rule was “designed to ascertain and carry out legislative intent.”

(People v. Jenkins (1980) 28 Cal.3d 494, 505 (Jenkins).) Consequently, a defendant may

not rely on Williamson if there is sufficient evidence the Legislature intended to authorize

prosecution under both the special and the general statute. (Id. at pp. 505-506; see People

v. Butler (1996) 43 Cal.App.4th 1224 (Butler).)

       In Jenkins, the court held the People could prosecute a defendant for both perjury

(Pen. Code, § 118) and fraudulently obtaining aid for dependent children and families

(Welf. & Inst. Code, § 11483) because provisions of the Welfare and Institutions Code,

                                              7
when interpreted in light of their legislative history, explicitly authorized prosecution

under either statute. (Jenkins, supra, 28 Cal.3d at p. 506 [noting, among other things, that

“[t]he third sentence of [Welfare and Institutions Code] section 11054 contains the

statement that „[any] person signing a statement [that is declared under penalty of

perjury]. . . is subject to the penalty prescribed for perjury in the Penal Code‟ if he or she

willfully and knowingly and with intent to deceive makes a false statement.”].)

Similarly, the Butler court, asked to decide whether the Williamson rule barred

prosecution for both obtaining telephone services by fraud (Pen. Code, § 502.7,

subd. (b)(1)) and theft of access cards (Pen. Code, § 484e, subd. (c)), found “exactly the

type of „contrary legislative intent‟ ” as was present in Jenkins because an uncodified

section of the act that created Penal Code section 484e stated: “ „This act shall not be

construed to preclude the applicability of any other provision of the criminal law of this

state which presently applies or may in the future apply to any transaction which violates

this act.‟ ” (Butler, supra, 43 Cal.App.4th at p. 1244.)

       In this case, the People have charged petitioner with a felony, offering a false

document, under Penal Code section 115, subdivision (a), which reads: “Every person

who knowingly procures or offers any false or forged instrument to be filed, registered, or

recorded in any public office within this state, which instrument, if genuine, might be

filed, registered, or recorded under any law of this state or of the United States, is guilty

of a felony.” Petitioner argues Government Code section 87203 describes her alleged

failure to disclose all of her assets and investments in her Form 700 with better

                                               8
particularity. That statute states: “Every person who holds an office specified in Section

87200 shall, each year at a time specified by commission regulations, file a statement

disclosing his investments, his interests in real property and his income during the period

since the previous statement filed under this section or Section 87202. The statement

shall include any investments and interest in real property held at any time during the

period covered by the statement, whether or not they are still held at the time of filing.”

Government Code section 87203 is part of the Political Reform Act, and Government

Code section 91000 states any person who “knowingly or willfully violates any provision

of [the Political Reform Act] is guilty of a misdemeanor.”

       Citing the exception to the Williamson rule on which Jenkins and Butler rely, the

People cite Government Code section 91014 as proof that the Legislature intended to

allow prosecution of the acts petitioner allegedly committed as either a misdemeanor

violation of the Political Reform Act (Gov. Code, § 91000, subd. (a)) or a felony

violation of the rule against offering a false document (Pen. Code, § 115). Government

Code section 91014: “Nothing in this chapter shall exempt any person from applicable

provisions of any other laws of this state.” This rather indefinite language is a far cry

from the “overwhelming indications of a contrary legislative intent” that were present in

Jenkins and Butler. (Jenkins, supra, 28 Cal.3d at p. 506; see Butler, supra, 43

Cal.App.4th at p. 1244.) The special statutory scheme in Jenkins explicitly referenced

the general statute (Jenkins, supra, 28 Cal.3d at p. 506); in contrast, Government Code

section 91014 does not mention Penal Code section 115, specifically. The statutory

                                              9
scheme at issue in Butler at least stated that prosecution was possible under “any other

provision of the criminal law of this state which presently applies or may in the future

apply” (Butler, supra, 43 Cal.App.4th at p. 1243), but Government Code section 91014

fails to provide any specifics at all about the “other laws of this state” that might also

apply. We cannot find that a statute providing so little guidance as to its meaning is an

expression of legislative intent to prevent application of the Williamson rule, especially

when Jenkins and Butler show how careful the Legislature can be when it desires such a

result.

          If Government Code section 91014 does not prevent petitioner from invoking

Williamson, the People argue her invocation fails because Penal Code section 115 and

Government Code section 91000 require different elements. More specifically, they

contend Penal Code section 115 requires actual falsification of an instrument, while

Government Code section 87203 only allows prosecution if a defendant fails to file a

Form 700. We disagree with the People‟s base assumption for the reasons set forth post.

          It is true that Government Code section 87203 affirmatively requires the filing of a

form 700, such that the failure to file such a form at all would violate the statute.

However, this is not all the statute requires. Government Code section 87203 also

demands that the Form 700 “disclos[e] his investments, his interests in real property and

his income during the period since the previous statement,” and that it “include any

investments and interest in real property held at any time during the period covered by

the statement, whether or not they are still held at the time of filing.” Consequently, a

                                               10
person may violate Government Code section 87203 not only by failing to file a Form

700, but also by filing a Form 700 that fails to make the necessary disclosures.

       We find the Williamson rule prevents the People from prosecuting petitioner for a

felony under Penal Code section 115 because a violation of the special statute “ „will

necessarily or commonly result in a violation of the general statute.‟ ” (Murphy, supra,

52 Cal.4th at p. 86.) Penal Code section 115 applies to any “person who knowingly

procures or offers any false or forged instrument to be filed, registered, or recorded in any

public office within this state, which instrument, if genuine, might be filed, registered, or

recorded under any law of this state or of the United States.” (Pen. Code, § 115,

subd. (a).) As indicated above, Government Code section 87203 requires a Form 700 to

make certain disclosures regarding the filer‟s assets and investments. The People present,

and we see no reason why, the filing of a Form 700 that purported to disclose all of the

filing party‟s assets and investments but did not actually do so because of omissions is

not equivalent to the offering of a “false or forged instrument.” After all, “ „ “The core

purpose of . . . section 115 is to protect the integrity and reliability of public records.”

[Citations.] This purpose is served by an interpretation that prohibits any knowing

falsification of public records.‟ ” (People v. Denman (2013) 218 Cal.App.4th 800, 808.)

A Form 700 is an “instrument” that not only may, but must, “be filed, registered, or

recorded under any law of this state or of the United States” (Pen. Code, § 115, subd. (a)),

and we agree with the traverse that a Form 700 is “filed . . . in any public office” (ibid.)

because such documents must be both “filed” (Gov. Code, § 87203) and kept “open for

                                               11
public inspection and reproduction during regular business hours” (Gov. Code, § 81008).

Finally, a misdemeanor prosecution for violation of Government Code section 87203 and

a felony prosecution for violation of Penal Code section 115 both require the same basic

mental state, namely, that the defendant “knowingly” committed the crime charged.

(Pen. Code, § 115, subd. (a) [“knowingly”]; Gov. Code, § 91000, subd. (a) [“knowingly

or willingly”].)

       For these reasons, the People may not prosecute petitioner under Penal Code

section 115 when the basis of their allegation is that petitioner failed to list all assets and

investments on several Form 700‟s. On remand, the trial court is to dismiss the

remaining counts under Penal Code section 115.

       2.     The statute of limitations did not require dismissal of any of the counts

       against petitioner

       Petitioner asks us to dismiss the first five counts against her because the complaint

and the indictment both inadequately alleged tolling of the statute of limitations. The

People respond that “the statute of limitations is not jurisdictional,” at least not in the way

petitioner suggests. While we agree with petitioner that the statute of limitations is

“jurisdictional” in some senses (see, e.g., People v. Williams (1999) 21 Cal.4th 335, 341),

we disagree with her implicit assumption that she was entitled to dismissal under Penal

Code section 995 simply because the trial court agreed that the People failed to properly

allege tolling of the limitations period.



                                               12
       “ „The purpose of a motion to set aside the accusatory pleading under Penal Code

section 995 is to review the sufficiency of the indictment or information on the basis of

the record made before the grand jury in the one case or the magistrate at the preliminary

hearing in the other.‟ ” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269

(Stanton).) By statute, Penal Code section 995 allows an attack on an indictment only,

“Where it is not found, endorsed, and presented as prescribed in th[e Penal C]ode,” or on

the theory, “[t]hat the defendant has been indicted without reasonable or probable cause.”

(Pen. Code, § 995, subd. (a)(1)(A), (B).) Therefore, “A motion under Penal Code section

995 cannot resolve problems not apparent from the transcript of the preliminary hearing”

or grand jury proceeding. (Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1596.)

       “In order to attack the pleading itself . . . the demurrer is the appropriate vehicle.”

(People v. Brooks (1985) 166 Cal.App.3d 24, 29, fn. 3, disapproved of on other grounds

by People v. Whitmer (2014) 59 Cal.4th 733.) In fact, a demurrer is only authorized if

the defect about which the demurring party complains “appears upon the face” of the

pleading. (Pen. Code, § 1004.) Moreover, if a court sustains a demurrer to a criminal

pleading, “the court must, if the defect can be remedied, permit the filing of an amended

complaint.” (Pen. Code, § 1007.)

       “The law respects form less than substance.” (Civ. Code, § 3528.) Consequently,

a trial court may disregard the caption of a motion and instead treat it in accordance with

the relief it requests. (See, e.g., Barrows v. American Motors Corp. (1983) 144

Cal.App.3d 1, 9 [treating demurrer like motion for summary judgment due to nature of

                                              13
relief requested]; A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064,

[“The substance of the „motion to quash‟ is what mattered, not its label.”].)

       In this case, petitioner made her arguments regarding the statute of limitations in a

document captioned, “notice of motion and motion to dismiss indictment pursuant to

Penal Code section 995.” The portion of the motion at issue in this section of the petition

made no contentions about the state of the evidence vis-à-vis the limitations period and

instead argued, as petitioner does here, that multiple counts in the indictment were, as a

matter of law, “outside the statute of limitations” because the People had failed to plead

tolling of the limitations period in accordance with People v. Zamora (1976) 18 Cal.3d

538, 564-565, fn. 26 (Zamora), which we discuss in more detail post. In other words,

petitioner called the trial court‟s attention to a defect that allegedly “appear[ed] upon the

face” of the indictment (Pen. Code, § 1004), but not one that asked the trial court “ „to

review the sufficiency of the indictment or information on the basis of the record made

before the grand jury.‟ ” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269

(Stanton) (italics added).) For the reasons we have just stated, such an argument is much

more like a demurrer than a motion under Penal Code section 995.

       For its part, the trial court essentially treated petitioner‟s contentions regarding the

limitations period much like they had come in the form of a demurrer. After finding the

indictment‟s tolling allegations were insufficient because the People failed to explain

why the alleged crimes could not have been discovered sooner, the trial court

immediately stated, “I am going to permit the People to amend the indictment to add as

                                              14
part of the Zamora allegation the reason why the offense was not discovered earlier. The

People have already pointed out—and I agree with them—that amending an indictment

by merely adding or extending allegations tolling the statute of limitations does not

change the offense charged, and such amendment is clearly allowable under Penal Code

section 1009.”

       We find no error in this approach. Again, petitioner‟s request for relief with

respect to the statute of limitations sounded more in the nature of a demurrer than a

motion to dismiss under Penal Code section 995. Had petitioner expressly presented the

trial court with a demurrer on statute of limitations grounds, and had the trial court

sustained said demurrer after agreeing with petitioner about the adequacy of the

indictment‟s Zamora allegations, the trial court would have been obligated to allow

amendment unless it found that the defect could not “be remedied.” (Pen. Code, § 1007.)

Here, the trial court found the indictment‟s tolling allegations lacked sufficient detail,

explicitly stated that amendment could cure the defect, and allowed amendment. In other

words, it treated petitioner‟s argument regarding the statute of limitations like what it

was—i.e. a demurrer—and sought to give petitioner all she was entitled to expect—i.e.

better tolling allegations. The trial court‟s impulse to look to amendment as a cure for the

pleading issues petitioner brought to the court‟s attention was appropriate given the

gravamen of petitioner‟s request for relief.

       Nor do we find fault with the way in which the trial court actually allowed

amendment. The statute of limitations for the two counts under Government Code

                                               15
section 1090 is four years. (Pen. Code, §§ 801.5, 803, subd. (c)(4).) However, this

period runs from discovery, not commission, of the allege crime. (Pen. Code, §§ 801.5,

803, subd. (c)(4).) The complaint and the indictment both allege discovery occurred on

October 16, 2010. To be timely, the indictment needed to have been filed by October 16,

2014, unless some other tolling rule applies.

       We agree with the People that Penal Code section 803, subdivision (b), provides

exactly such a rule when it states: “No time during which prosecution of the same person

for the same conduct is pending in a court of this state is a part of a limitation of time

prescribed in this chapter.” Here, the People filed the complaint against petitioner on

January 13, 2014. That complaint charged petitioner with one count of violating

Government Code section 1090 by voting on two contracts in a single day, and the

indictment alleges each of those same votes as a separate count. Therefore, the

indictment alleges “the same conduct” as the complaint, and the 528 days the complaint

had been pending when the indictment was filed must be subtracted from the 1,713 days

between the October 16, 2010 date of discovery and the June 25, 2015 filing of the

indictment. Subtracting the time in which the complaint was pending, the indictment was

filed 1185 days, or just over 3.24 years, after the date of discovery and was therefore

timely.

       In addition, we are aware that, if an amendment changes a defect in the way in

which the original complaint was alleged but does not charge an offense not attempted to

be charged by the original complaint, “it relates back to the date of the original filing of

                                              16
the information and has the effect of tolling the running of the statute of limitations from

the date of the filing of the original information.” (Patterson v. Municipal Court (1971)

17 Cal.App.3d 84, 88.) Here, the complaint alleged petitioner violated Government Code

section 1090 by voting on two contracts in which she had a prohibited financial interest.

The indictment alleges each of those votes as a separate count under the same statute.

Petitioner does not and, we think, cannot argue that the indictment added any charge that

was not alleged in the original complaint.

       Instead, petitioner asserts that amendment was a legal impossibility because the

allegedly defective tolling allegations in the complaint and the indictment mean that

“[t]he Superior Court never obtained jurisdiction.” As petitioner sees it, the amended

indictment cannot be timely by relation back to the original indictment, because the

original indictment was filed more than four years after the alleged date of discovery of

petitioner‟s committing the Government Code section 1090 counts, and it cannot be

timely by relation back to the original complaint, which was filed within four years of

discovery but cannot confer jurisdiction because it fails to properly allege tolling of the

limitations period. This argument exalts form over function and rests on a

misunderstanding of the jurisdictional nature of the statute of limitations and pleading

compliance therewith.

       We agree with petitioner that the statute of limitations in criminal cases is

“jurisdictional” in some respects. (See, e.g., People v. McGee (1934) 1 Cal.2d 611

(McGee), overruled on other grounds by Cowan v. Superior Court (1996) 14 Cal.4th 367

                                             17
(Cowan).) For example, in a criminal case the statute of limitations may be raised as an

affirmative defense “at any time.” (Cowan, at p 384; see McGee, at p. 613.) In addition,

“a conviction, even if based on a plea of guilty, is subject to collateral attack if the charge

was originally barred by the applicable limitation period.” (Zamora, supra, 18 Cal.3d at

p. 547.)

       Special rules have developed regarding the interaction of the rules of criminal

pleading and the above-discussed rules regarding the statute of limitations. For example,

“An accusatory pleading must allege facts showing that the prosecution is not” time-

barred. (People v. Crosby (1962) 58 Cal.2d 713, 724 (Crosby); see Zamora, supra, 18

Cal.3d at p. 564, fn. 26.) In addition, “if a period of time in excess of that permitted by

the statute has elapsed since the commission of the offense, further facts must be alleged

to show” the People‟s entitlement to rely on the tolling doctrine. (Crosby, at pp. 724-

725.) Finally, and most apposite to this case, an accusatory pleading that relies on the

delayed discovery rule to evade the statute of limitations should plead: “(1) the date on

which the offense was „discovered‟; (2) how and by whom the offense was „discovered‟;

(3) lack of knowledge, both actual or constructive, prior to the date of „discovery‟; (4) the

reason why the offense was not „discovered‟ earlier.” (Zamora, supra, 18 Cal.3d. at

p. 564, fn. 26.)

       Petitioner reasons that, because the statute of limitations is jurisdictional, any

failure to properly plead compliance with the statute of limitations is also of immediate

jurisdictional import such that dismissal is required. No authority supports the idea that a

                                              18
failure to properly allege tolling of the limitations period amounts to such a profound

defect that the trial court loses its power to hear a case. In fact, in Cowan, the California

Supreme Court negated one of the linchpins of petitioner‟s argument by holding that the

statute of limitations, while jurisdictional in some senses, cannot deprive the trial court of

“fundamental subject matter jurisdiction over a time-barred criminal action.” (Cowan,

supra, 14 Cal.4th at p. 374.)

       Crosby, a pre-Cowan California Supreme Court opinion, provides the rest of the

answer to the questions petitioner raises about the propriety of allowing the People to

amend the indictment: “An indictment which when filed shows on its face that it is

barred by the statute of limitations „fails to state a public offense‟ only in the sense that, if

not amended, it will be subject to being set aside on motion pursuant to Penal Code

section 995 [citation], and a conviction based thereon will be subject to attack, either

directly [citation] or collaterally [citation]. But in enacting Penal Code section 1009 the

Legislature has manifested its clear intent that the remedy of amendment be available to

save an indictment from „any defect or insufficiency,‟ provided that the offense which the

grand jury sought to charge is itself not changed. Since 1927 it has been enough if the

indictment is cast „in any words sufficient to give the accused notice of the offense of

which he is accused‟ (Pen. Code, § 952); the particular details of the offense will be

furnished to him by the transcript of the testimony on which the indictment is founded

[citation]. If the required notice is given, the omission of an allegation charging a



                                               19
technical „essential‟ element of the offense may, pursuant to section 1009, be corrected

by timely amendment.” (Crosby, supra, 58 Cal.2d at pp. 722-723.)

       Amendment, then, is a tool trial courts may use to allow correction of pleading

defects when the amendment does not change the nature of “the offense which the grand

jury sought to charge.” (Crosby, supra, 58 Cal.2d at p. 722.) Petitioner does not

contend, nor can she, that it would change the nature of the offense to allow the People to

add more facts regarding why the alleged violations of Government Code section 1090

could not have been discovered before October 16, 2010. Since her attack on the trial

court‟s fundamental jurisdiction fails for the reasons we have now explained, petitioner

has given us no reason to find that the trial court erred when it allowed the People to

amend the complaint.

       The foregoing analysis highlights why the real issue in this case is not whether the

trial court erred in denying petitioner‟s motion under Penal Code section 995, but

whether it erred in allowing the People to amend their tolling allegations. We have now

resolved that issue by concluding that what petitioner filed, at least with respect to the

issue presented in this section of the opinion, was properly treated like a demurrer. At

oral argument in this court, petitioner‟s counsel disputed our assertion that the motion

petitioner filed sounded more in the nature of a demurrer than a Penal Code section 995

motion. We have reviewed the portions of the record to which he directed our attention;

while we find copious reference to the words used in the complaint and the indictment,



                                             20
we find no more than passing references to the actual evidence presented to the grand

jury.

        It is true, as counsel noted, that the motion in the trial court and the reply filed in

this court both complain that the grand jury was not correctly instructed with respect to

the definition of the victim of the Government Code section 1090 counts and therefore

received insufficient evidence regarding the timeliness of those counts. With respect to

the argument as presented here, we remind petitioner that “ „points raised for the first

time in a reply brief will not be considered unless good reason is shown for failure to

present them earlier.‟ ” (People v. Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3.)

        Even were we to consider the adequacy of the evidence in light of the way in

which the grand jury was instructed, we would reach the same conclusion we already

reached: the point petitioner raises was better put before the trial court by way of

demurrer. In a nutshell, her argument is that the People failed to properly allege

entitlement to invoke the delayed discovery doctrine because, under People v. Lopez

(1997) 52 Cal.App.4th 233, 245-248 (Lopez), the People must prove lack of knowledge

by government employees occupying certain types of positions, and they failed to allege

or to prove that these types of employees were unaware of petitioner‟s voting on the

Sahlolbei contracts before the district attorney‟s office received the Bachman letter. Had

petitioner advanced this argument via demurrer, she would have both complied with

Penal Code section 1003 and allowed the People to tailor their presentation of evidence to

the grand jury in keeping with the court‟s previous ruling regarding the applicable

                                               21
definition of “victim.” (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [due to

record that was inadequate because the illegality of the search was never litigated in the

trial court, the California Supreme Court reversed an intermediate appellate finding that

defense counsel was inadequate for failing to file a suppression motion.].)

       Again, we do not purport to hold that petitioner was obligated to demur on statute

of limitations grounds; as discussed ante, any such conclusion would conflict with the

jurisdictional nature of the defense. What we do hold, and what petitioner‟s stray

references to the evidence and instructions before the grand jury do not prevent us from

holding, is that the trial court in this case had discretion to treat the particular motion

petitioner filed as it would treat a demurrer and allow amendment if it found pleading

defects. Because this is the sum total of our holding, we need not and do not opine about

whether the complaint and the indictment satisfied Zamora or whether Lopez defines who

the victim or victims of the alleged Government Code section 1090 offenses is or are.

       We now pause briefly to emphasize that we do not mean to imply that a trial court

receiving a motion under Penal Code section 995 that attacks the words in the charging

documents rather than the evidence at the preliminary hearing must or even should treat

that motion as a demurrer and consider the possibility of amendment. Rather, we are

aware that ordinarily a demurrer is to be made at the time of arraignment (Pen. Code,

§ 1003), and that the failure to demur before entering a plea may be deemed a waiver of

objection to the pleadings under at least some circumstances (see, e.g., People v. Holt

(1997) 15 Cal.4th 619, 672 [“The well-established rule is that failure to demur on the

                                               22
ground that a charging allegation is not sufficiently definite waives any objection to the

sufficiency of the information.”]).

       Still, we are also aware that a demurrer may be heard not only at arraignment, but

also “at such other time as may be allowed to the defendant for that purpose.” (Pen.

Code, § 1003.) In this case, it appears the trial court chose, implicitly if not explicitly, to

allow petitioner to demur to the pleadings even though she had already been arraigned.

The parties have given us no persuasive reason to find error with this approach. More

important, it seems to us that deciding when and whether to allow a challenge to the

phrasing of the pleadings after arraignment has occurred is a task best entrusted to the

discretion of the trial court, which has an intimate knowledge of the case and any unique

issues or irregularities that may have arisen or are likely to arise if amendment is allowed

or disallowed. Today, we hold only that the decision of this trial court to entertain a

challenge to the phrasing of the pleadings after arraignment had taken place, to agree

with petitioner that the pleadings were wanting in certain specifics, and to allow the

People to amend the indictment to cure the defect did not amount to an error of law.

                                        DISPOSITION

       The petition is summarily denied as to issue A, in which petitioner contends she

did not have a prohibited financial interest in PVHD‟s contracts with Dr. Sahlolbei and as

to which we did not issue an order to show cause. As for issue C, in which petitioner

argues the first five counts against her were time-barred, we deny that portion of the

petition for the reasons stated ante.

                                              23
       With respect to issue B, in which petitioner relies on the Williamson rule as a bar

to felony prosecution under Penal Code section 115: Let a peremptory writ of mandate

issue, directing the Superior Court of Riverside County to dismiss counts 4 through 7 of

the indictment. The temporary stay we issued will dissolve upon dismissal of the

remaining counts under Penal Code section 115. Petitioner is directed to prepare and

have the peremptory writ of mandate issued, copies served, and the original filed with the

clerk of this court, together with proof of service on all parties.

       CERTIFIED FOR PUBLICATION


                                                                  MILLER
                                                                                             J.


We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                           J.




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