People v. Superior Court (Ongley)

The People petition for a writ of mandate to compel respondent superior court to set aside its writ of prohibition restraining the municipal court from further prosecuting real party Ongley for unauthorized practice of medicine. (Bus. & Prof. Code, § 2053.) The charged offense, an alternative felony/misdemeanor (in trade jargon, a “wobbler”), was first charged as a felony then reduced to a misdemeanor. (Pen. Code, § 17, subd. (b)(5).) The superior court issued its writ on the theory that the prosecution was time-barred under the one-year misdemeanor statute of limitations. (Pen. Code, § 802, subd. (a).)

Petitioner argues the Legislature intended that the three-year limitations period for felonies (Pen. Code, § 801) should control all “wobbler” prosecutions, regardless of whether the offense is in fact reduced to a misdemeanor. We agree with petitioner and issue the writ of mandate.

Petitioner charged the instant offense in a felony complaint filed more than one but less than three years after the alleged violation of the statute. Prior to the preliminary hearing, the People moved to reduce the felony to a misdemeanor under Penal Code section 17, subdivision (b)(5),…