Metropolitan News-Enterprise


Tuesday, January 11, 2005


Page 1


California Supreme Court Rules:

Dismissal of Misdemeanor Complaint No Bar to Felony Prosecution


By KENNETH OFGANG, Staff Writer/Appellate Courts


A single dismissal of a misdemeanor complaint does not bar prosecution of a felony charge arising from the same conduct, the state Supreme Court ruled yesterday.

Overruling a 1964 Court of Appeal decision suggesting otherwise, the justices held that where the refiled charge is a felony, Penal Code Sec. 1387 permits the prosecution to go forward. The statute bars refiling of a misdemeanor following a pretrial dismissal in most instances, but allows a felony to be refiled unless there have been two dismissals.

Allowing prosecution under the circumstances, Justice Kathryn M. Werdegar wrote for a unanimous court, is consistent with the “heightened societal interest in the prosecution of more serious crimes” that is the legislative justification for permitting refiling of dismissed felonies.

The high court upheld the Fourth District Court of Appeal’s denial of a writ petition by Michael L. Burris, who was seeking to dismiss a felony drunk driving charge now pending in Orange Superior Court.

Two Priors Charged

Burris was originally charged with driving under the influence and driving with an excessive blood alcohol level, with two priors. That offense is a misdemeanor punishable by up to a year in jail.

Prior to trial, however, the prosecutor learned of another prior DUI conviction. Because drunk driving with three priors is a “wobbler” punishable by up to three years in prison, the prosecutor moved to dismiss the pending charge in order to file a felony complaint.

After the motion to dismiss was granted and the complaint was filed, the defense moved to dismiss under Sec. 1387. Orange Superior Court Judge Gail Andrea Andler denied the motion and the Court of Appeal denied writ relief.

Sec. 1387 provides that a dismissal pursuant to any of several specified Penal Code sections “is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to [one of the specified sections] or if it is a misdemeanor not charged together with a felony,” subject to certain exceptions in felony cases.

While the parties argued whether the offense described as “it” in the statute is the crime charged in the dismissed complaint or in the refiled one, Werdegar said the legislative intent, not the grammar, is dispositive.

Sec. 1387, she said, balances the Legislature’s aversion to prosecutorial harassment, forum shopping, and delay against the goal of having cases tried on the merits. By treating misdemeanors and felonies differently, she continued, lawmakers intended to see that lesser charges were resolved expeditiously, while giving prosecutors greater leeway with respect to more serious cases.

Prior to 1975, Werdegar noted, the statute placed no limitation on the refiling of felonies.

“Section 1387 reflects a legislative judgment that because of the heightened threat to society posed by serious crimes, more filings should be permitted for serious crimes than for minor ones,” the justice wrote. “ In turn, the best measure of the seriousness of a crime—and the corresponding societal interest in its prosecution and punishment—is not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence.  It follows that, for purposes of categorizing a crime as subject to a one-dismissal or two-dismissal rule, what matters is the current charge, not the one previously dismissed. “

Thus, she elaborated, a defendant such as Burris, whose misdemeanor charge is dismissed, may be later charged with a felony, but not a misdemeanor, arising out of the same conduct. On the other hand, a defendant whose felony charge is dismissed cannot then be charged with a misdemeanor arising from the same acts, Werdegar wrote.

Contention Rejected

The justice went on to reject the contention that People v. Nelson (1964) 228 Cal.App.2d 135, which allowed the filing of misdemeanor charges based on conduct that had been the subject of two dismissed felony complaints, established a rule of law barring prosecution of conduct growing out of a dismissed misdemeanor.

Burris’ counsel argued that under Nelson, it was the nature of the original charge that determined whether the subsequent filing is permitted, and that any change in the rule should be applied prospectively only.

Werdegar, however, said that since Nelson did not consider the specific issue raised by Burris, was not part of a “uniform body of law that might be justifiably relied on,” and did not make it unforeseeable that the high court would interpret the statute as it did, yesterday’s ruling may be applied to pending cases.

The case was argued by Deputy District Attorney Brian Gurwitz for the prosecution and by Tustin lawyers Marlin G. Stapleton Jr. and Robert M. Dykes for the defense. The public defenders for Los Angeles and Orange counties filed amicus briefs in support of the defendant.

The case is Burris v. Superior Court (People), 05 S.O.S. 107.




Copyright 2005, Metropolitan News Company