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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Scott FREEBURG, Defendant and Appellant.


Decided: January 11, 1984

Geoffrey Rotwein, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., State of California, Martin S. Kaye, Aileen Bunney, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Freeburg's appeal is from a judgment under which he was found guilty of escape from a county jail (Pen.Code, § 4532), and was sentenced to two years in prison.

Our conclusion, for the reasons we now state, is that the appeal has merit, and that the judgment must be reversed.

We relate the relevant factual-procedural history of the case.

Defendant Freeburg, while detained as a convicted federal prisoner, escaped from the San Francisco county jail, April 27, 1980, after which he was indicted for that offense.   Thereafter, June 12, 1980, that indictment was set aside and the action dismissed by the superior court, on Freeburg's Penal Code section 995 motion.

The district attorney soon commenced another such prosecution by an information filed in the superior court.   On Freeburg's application to this court for a mandated dismissal of the second prosecution we found that his right as a federal prisoner, to a trial on the escape charge within 90 days of his demand under Penal Code section 1381.5, had been violated.   We accordingly mandated dismissal of the then pending action.   And the action was thereupon dismissed by the superior court.

The instant and third prosecution for Freeburg's 1980 county jail escape, his conviction and sentence therefor, and this appeal, followed.

Freeburg here contends, as he did in the superior court, that:  “Dismissal under section 1381.5 [ordered by this court] is a bar to any further prosecution [under section 1387,] as the charges were previously dismissed under section 995.”

Penal Code section 1387 was amended 1981 (and after the above-noted Penal Code section 995 dismissal) to provide, as here relevant:

“An order terminating an action pursuant to this chapter ․ is a bar to any other prosecution for the same offense if it is a felony ․ and the action has been previously terminated pursuant to [Penal Code section] 995․”

The prosecution for Freeburg's escape had previously been terminated pursuant to Penal Code section 995, and it had again been terminated pursuant to the Penal Code chapter in which both sections 1381.5 and 1387 are to be found.   Superficially, at least, it would seem that the superior court erred in denying Freeburg's motion to dismiss the instant action.

But the People here argue that Freeburg “should not now receive a windfall dismissal by the retroactive application of section 1387.”

Thus, an issue appears whether section 1387, as applied to this case, has a retroactive operation.

As we read the amended statute, it applied only to in futuro judicial dismissals of criminal proceedings, which might be brought about because of future prosecutorial errors or shortcomings.   It did not purport to affect the validity, or operation, of any past judicial determination.   The condition precedent to the statute's operation, as here, a dismissal under Penal Code section 995, does therefore not involve the amended section 1381.5's retroactive operation.  “A statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.”  (Sitzman v. City Board of Education, 61 Cal.2d 88, 89, 37 Cal.Rptr. 191, 389 P.2d 719.)

The judgment is reversed, and the superior court will enter its judgment of dismissal of the action.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur. Hearing denied;  GRODIN, J., did not participate.