Ct.App. 3 C053172, Super. Ct. No. M05-0569, Judge: Robert L. Tamietti.
The opinion of the court was delivered by: Baxter, J.
Penal Code section 1387, subdivision (a) (section 1387(a))*fn1 sets forth circumstances under which the dismissal of a criminal action will bar further prosecution. In most instances, under this statute, one such dismissal precludes further prosecution "for the same offense" (1) "if it is a felony or . . . a misdemeanor charged together with a felony," and the action previously has been dismissed, or (2) "if it is a misdemeanor not charged together with a felony."
In this case, a nine-year-old boy was killed when defendant‟s sports utility vehicle collided with the victim‟s motorcycle. The issue is whether, under section 1387(a), the prior dismissal of a felony complaint against defendant for vehicular manslaughter with gross negligence barred the current prosecution for the lesser included misdemeanor offense of vehicular manslaughter with ordinary negligence.
On the facts presented here, we conclude the answer is no. For purposes of section 1387(a), the misdemeanor prosecution in this case was not "for the same offense" as that charged in the prior felony complaint. We base this conclusion on several grounds.
First, the felony and misdemeanor charges did not include the identical elements. The misdemeanor charge lacked the felony charge‟s requirement of proof that defendant operated his vehicle with gross negligence. In Burris v. Superior Court (2005) 34 Cal.4th 1012 (Burris), we suggested that "when two crimes have the same elements, they are the same offense for purposes of . . . section 1387." (Burris, supra, at pp. 1016-1017, fn. 3, italics added.)
Second, we also made clear in Burris that "grammatical arguments" about the meaning of section 1387(a) are not dispositive, and we must approach interpretation of this statute by seeking to divine " "the human intent that underlies the statute.‟ " (Burris, supra, 34 Cal.4th 1012, 1017.) We consider the meaning of the phrase "for the same offense" in this spirit.
A primary purpose of section 1387(a) is to protect a defendant against harassment, and the denial of speedy-trial rights, that results from the repeated dismissal and refiling of identical charges. In particular, the statute guards against prosecutorial "forum shopping" - the persistent refiling of charges the evidence does not support in hopes of finding a sympathetic magistrate who will hold the defendant to answer. On the other hand, the statute was not intended to penalize the People when, following a magistrate‟s dismissal of a first felony complaint on the grounds the evidence supports only a lesser included misdemeanor, they elect to refile that lesser charge rather than exercise their undoubted statutory right to refile the felony. Under such circumstances, prosecutors do not abuse, but actually promote, the statutory purposes.
That is what happened here. The magistrate who dismissed the initial felony complaint explicitly found that while evidence of felony gross negligence was lacking, there was sufficient evidence defendant had committed the lesser misdemeanor crime of vehicular manslaughter based on ordinary negligence. Ultimately accepting that determination, the prosecutor filed a second complaint setting forth the lesser misdemeanor charges.
Under these circumstances, we conclude, the filing and dismissal of the originally charged felony, followed in immediate succession by the filing of a lesser misdemeanor charge that lacked elements essential to the felony, did not constitute successive filings "for the same offense." Accordingly, section 1387(a) did not preclude the People from proceeding on the misdemeanor complaint.
The Court of Appeal decided otherwise, holding that under Burris, supra, 34 Cal.4th 1012, prior dismissal of a felony complaint against defendant barred his current prosecution for the same conduct as a misdemeanor. Because we find that the Court of Appeal erred, we will reverse its judgment.
Late on the afternoon of April 10, 2004, nine-year-old Tyler Lason was riding a motorcycle westbound on Creek View Drive near his Grass Valley home. His motorcycle collided with an eastbound Chevrolet Blazer driven by defendant Dale Traylor. Tyler died as a result of the accident.
The prosecution filed a complaint charging defendant with the felony of vehicular manslaughter with gross negligence. (§§ 192, subd. (c)(1), 193, subd. (c)(1).)*fn2 The preliminary hearing adduced the following evidence:
At the time of the accident, the weather was clear and cool, and the pavement was dry and in good condition. Creek View Drive is a narrow, winding, and undulating two-lane private road. The collision occurred near the crown of a hill, where a driver approaching from one side cannot see a vehicle approaching from the other until the last moment. Nothing indicated that defendant‟s Blazer had already crested the hill at the time of the accident. Defendant testified he was travelling at 15 miles per hour just before the collision; skid mark analysis indicated a speed over 20 miles per hour. The eastbound Blazer came to rest at a point entirely in the westbound lane.
The investigating officer, who arrived at the scene between 20 and 50 minutes after the accident, concluded it was the result of the Blazer being driven on the wrong side of the road. After detecting a faint odor of alcohol on defendant‟s breath, the officer administered balance and coordination tests, which defendant completed successfully, and a preliminary alcohol screening test, which indicated a low alcohol content in defendant‟s blood. The officer opined that neither speed, alcohol consumption, nor the Blazer‟s inoperable antilock braking system, or ABS, was a factor in the accident.
As one approaches the crown of the hill from the west, an optical illusion creates the impression that there is a tree in the middle of the road. A longtime neighborhood resident testified that, for this reason, most eastbound drivers arriving at this point favor the left side of the road.
Based on this evidence, the magistrate concluded that "there has been sufficient evidence presented to hold the defendant to answer a misdemeanor charge of negligent vehicular manslaughter, under Penal Code section 192[, subdivision] (c)(2)," but that "insufficient evidence has been presented to hold the defendant to answer a felony charge of vehicular manslaughter [with gross negligence] under Penal Code section 192[, subdivision] (c)(1)." The magistrate ordered the district attorney to file a misdemeanor complaint in accordance with his decision, and set a date of January 12, 2005, for defendant to enter a plea on the misdemeanor ...