Thursday, July 10, 2014
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Court Takes Narrow View of Limitation on Criminal Refiling
Justices Say Precedent Requires ‘Counterintuitive’ Result, Allowing Conspiracy Charge Despite Prior Dismissals
By KENNETH OFGANG, Staff Writer
A pair of defendants against whom attempted murder charges were twice dismissed can be charged with conspiracy to murder in connection with the same incident, the Fourth District Court of Appeal has ruled.
Div. Three yesterday certified for publication its June 30 ruling reinstating conspiracy charges against Gerardo and Emmanuel Juarez in connection with the shootings of two people, identified by the court as John Doe and Jane Doe.
Justice Raymond Ikola acknowledged that the result appears inconsistent with the purposes of Penal Code §1387, which generally bars the refiling of a twice-dismissed felony charge, but said a 2009 ruling of the state high court supports the Orange County district attorney’s position.
The Juarezes were charged with multiple felonies, including two counts of attempted murder, in a June 2011 complaint. In November of that year, a preliminary hearing was held.
According to the evidence presented at the hearing, Emmanuel Juarez and John Doe had a fight, during which Gerardo Juarez handed Emmanuel Juarez a gun, which Emmanuel Juarez had possessed earlier. Emmanuel Juarez then shot John Doe.
When Jane Doe attempted to flee, the Juarezes ran after her, and Gerardo Juarez shot her in the thigh.
The magistrate judge held the defendants to answer, and an information charged both of them with attempted murder, and also charged Gerardo Juarez with possession of a firearm by a felon. An amended information added charges of assault with a firearm.
Motion to Dismiss
The case was dismissed in July 2012 on motion of the prosecution. Ikola explained that the reason for the dismissal was not disclosed by the record, but that the defense asserted at oral argument that the prosecution moved to dismiss because it had not produced hundreds of pages of mandatory discovery.
The charges were refiled the day of the dismissal. After a continuance to Dec. 10, 2012, the prosecution was unable to proceed and the case was dismissed.
The prosecution then filed a third case against the defendants, alleging conspiracy to murder John Doe and Jane Doe. A motion to dismiss under §1387 was denied by the magistrate.
The statute says:
“An order terminating an action pursuant to [specified sections of the Penal Code] 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 [those sections] or if it is a misdemeanor not charged together with a felony.”
Writ Petition
After the magistrate ruled, the defendants brought a writ petition, which Orange Superior Court Judge Gregg Prickett granted, after asking the prosecutor:
“Where is the limit in regard to your theory of refiling?
“If we take assaultive conduct like attempted murder, you could have two dismissals for an attempted murder, and then you could have two dismissals for an assault with a deadly weapon, and then you could have two dismissals for an attempted vol[untary manslaughter], and then you could have two dismissals for assault by force likely to produce great bodily injury, and then you could have two dismissals for a…battery causing great bodily injury. Where would it end?”
But Ikola, writing for the Court of Appeal, said the answer to the question is found in People v. Traylor (2009) 46 Cal.4th 1205, which said that two crimes are the “same offense” referred to in §1387 only if they have identical elements.
Traylor, the justice explained, involved a charge of vehicular manslaughter with gross negligence. The preliminary hearing magistrate dismissed for insufficient evidence of gross negligence, but opined that the evidence was sufficient to charge the defendant with negligent vehicular manslaughter.
The prosecution then filed such a charge, but it was dismissed on the ground that §1387 barred the refiling of a dismissed misdemeanor.
Not ‘Same Offense’
The Supreme Court, however, held that negligent vehicular manslaughter was not “the same offense” as vehicular manslaughter with gross negligence, since the former does not require proof of gross negligence. That holding was consistent with the purposes of §1387, the high court held, because it allowed the prosecution to charge a lesser offense rather than file the felony charge a second time.
In the Juarezes’ case, however, allowing the refiling “would violate the policies supporting section 1387.”
The justice explained:
“The refilings here were simply the result of the People failing to timely prepare to move forward. Thus they directly implicate defendant’s right to a speedy trial. And while there is no evidence of intentional harassment here, the trial court’s forceful questioning of the prosecutor raises legitimate concerns about the possibility of repeated filings if we only look at the elements of the crime.”
The lower courts, however, “are not at liberty to deviate from” the Supreme Court’s unambiguous interpretation of the statute,” Ikola said. “We recognize the result we reach is counterintuitive, and generally not in keeping with the policies section 1387 is supposed to represent. However, our hands are tied. The muddled language of section 1387 has not stood the test of time, and our high court’s struggle to interpret that language has resulted in a law with narrow protection. If that protection is to be broadened, it is up to the Legislature.”
The case is People v. Juarez, 14 S.O.S. 3537.
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