Monday, August 24, 2026
Page 3
C.A. Announces New Carve-Out to Multiple-Prosecutions Ban
Opinion Says So-Called Kellett Rule Does Not Preclude Filing Charges Where Similar Counts Were Dismissed in Prior Case Due to Since-Vacated Federal Decision Declaring Law Unconstitutional
By Kimber Cooley, associate editor
Div. Three of the Fourth District Court of Appeal has held that a ban on filing charges that could have been brought during an earlier prosecution does not preclude a criminal complaint accusing a man of violating a Penal Code section relating to large-capacity magazines where similar counts were dismissed in an earlier case in the interests of justice due to a since-vacated federal decision declaring the law unconstitutional.
Acting Presiding Justice Eileen C. Moore authored Thursday’s opinion, joined in by Justices Thomas A. Delaney and Deborah C. Servino, noting that “[t]his appears to be an issue of first impression” and declaring:
“We hold there is an exception to the…rule where, as here, the People were not permitted to proceed on dismissed felony criminal charges in an initial proceeding that resulted in either defendant’s acquittal or conviction and sentence on different charges, but the People were then later able to pursue those same dismissed felony criminal charges in a subsequent prosecution.”
Citing Penal Code §1387, which generally gives prosecutors a second chance to file criminal charges after a case has been dismissed, she added:
“In the initial proceedings in this case, the trial court granted [the defendant’s] motion to dismiss the [high-capacity magazine] charges under section 1385(a), but the People were later able to pursue those same charges in a subsequent prosecution under section 1387. Therefore, we find [ban on multiple prosecutions] is not implicated under these facts, and the court properly denied [the defendant’s]…motion to dismiss the…charges.”
High Court Decision
At issue is the so-called Kellett bar, named for the 1966 California Supreme Court decision in Kellett v. Superior Court, in which the court held that the failure to unite all offenses of which prosecutors should be aware in a single proceeding will operate as a bar to later criminal action for charges not filed in the first matter.
Asserting that the Kellett rule protects him against a new prosecution was Sebastian Bogdan Dumbrava, who was advised that he could no longer legally possess a firearm or ammunition without prior court authorization after he was released from a 2019 involuntarily commitment that followed social media posts about a mass shooting at the University of California, Irvine (“UCI”).
In January 2020, law enforcement officers executed a search warrant on Dumbrava’s residence after new threats to the campus were posted on his Twitter account. They discovered a locked duffel bag containing firearm components, instructions on how to build a civilian version of an assault rifle, and 22 large-capacity magazines in his room.
He was charged with attempting to possess a firearm as a prohibited person, unlawful ownership of ammunition, and 22 counts of violating Penal Code §32310(a), which provides:
“[A]ny person…who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment.”
Large-Capacity Magazine
A “large-capacity magazine” is defined elsewhere as one capable of holding more than 10 rounds. On March 29, 2019, U.S. District Court Judge Roger T. Benitez of the Southern District of California entered an order enjoining the state from enforcing §32310, finding that the provision violates the Second Amendment.
After the majority of a three-judge panel of the Ninth U.S. Circuit Court of Appeals affirmed in April 2020, Dumbrava successfully moved to dismiss the LCM charges against him based on the decision. A court trial was held on the remaining charges and Orange Superior Court Judge Scott A. Steiner found him guilty and sentenced him to three years in prison.
In 2021, an en banc panel of the Ninth Circuit vacated the court’s earlier decision and reversed course, declaring in November 2021 that the law withstands constitutional scrutiny, and Dumbrava was released on community supervision. A search of an Anaheim storage unit he had been seen frequenting revealed a receipt from an Arizona gun store showing the purchase of five LCMs in January 2020.
Prosecutors filed charges relating to an alleged extortion scheme based on two lawsuits he filed against officials at UCI as well as violations of §32310. After Orange Superior Court Judge Terri K. Flynn-Peister denied his Kellett motion as to the LCM charges, and a jury found him guilty only as to those counts; the jurist sentenced him to three years in prison on Jan. 8, 2025.
Effectively Prohibited
Moore wrote:
“Here, the People were effectively prohibited from joining the LCM charges with the remaining charges in the first proceeding due to the court’s dismissal of the LCM charges in the interests of justice. (§1385 (a).) But in the second prosecution, the People were not precluded from refiling five of the LCM charges that had been previously dismissed only once.”
She continued:
“Our holding is consistent with the California Supreme Court’s stated rationale in Kellett of preventing the ‘needless harassment’ of criminal defendants ‘and the waste of public funds.’…This is because the People are routinely allowed to refile felony criminal charges where, as here, the trial court had previously dismissed the felony criminal charges only once.”
She noted that cases that followed Kellett have recognized several exceptions to the rule, including one for “unavailable evidence” covering cases where a prosecutor was unable to proceed on a more serious charge during the first case but later discovers additional evidence that could not have been found with the exercise of ordinary due diligence. Finding this exception also applicable, she opined:
“After Dumbrava was released from prison, the People obtained an out-of-state receipt, as well as other evidence that tended to prove that five of the LCMs found in the initial search of Dumbrava’s bedroom were purchased and unlawfully brought into the state prior to that search. The People then refiled five of the counts that accused Dumbrava of violating the LCM statute.”
The judge found persuasive the assertion by prosecutors that the receipt provided additional evidence necessary to defeat a potential defense that Dumbrava could have legally purchased the magazines in question during the period between Benitez’s order invalidating the law and the imposition of a stay pending appeal approximately one week later.
The case is People v. Dumbrava, 2026 S.O.S. 2609.
Copyright 2026, Metropolitan News Company