IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
February 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEFFREY LYNN MOORE ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. SF111111A, SF111111B)
The opinion of the court was delivered by: Hull , Acting P. J.
P. v. Moore
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Jeffrey Lynn Moore and Steven Eugene Moore of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c); statutory references that follow are to the Penal Code unless otherwise stated.) Jeffrey Moore admitted that he previously had served three prison terms. (§ 667.5, subd. (b).) The trial court sentenced him to state prison for four years, assessing the low term of two years for the robbery plus two enhancements of one year each for prior prison terms; the remaining prior prison term enhancement was dismissed. Steven Moore was sentenced to state prison for the upper term of five years. Sentence was imposed in July 2009.
On appeal, both defendants contend the trial court erred by denying their motions to dismiss the complaint and information on the ground that the court previously had dismissed two other actions charging them with the same robbery at issue in the present case. Steven Moore further contends the prosecutor committed misconduct in connection with the motion to dismiss the complaint and in his closing summation. We find the first contention dispositive and have no occasion to consider the remaining contentions.
FACTS AND PROCEEDINGS
In August 2008, Santiago Macias spent a day working in the fields near Galt and was planning to eat a meal with his friend Emilio Jauregui in Stockton. Macias used a $20 bill to buy take-out food at a restaurant and beer at a liquor store. He placed the change, approximately $15, in his pants pocket and walked toward the market where Jauregui worked. He sat down by himself in front of an abandoned building across the street from the market.
While Macias was seated, three people later identified as Vida Gray, defendant Jeffrey Moore, and defendant Steven Moore approached Macias and surrounded him. Gray took Macias's beer, drank some of it, and asked him to give her some of his food. He complied. Afraid that the group was going to rob him, Macias stood up and started walking toward the market. Jeffrey Moore grabbed Macias and held him while Steven Moore hit him and stole the change from his pocket. Jeffrey Moore released Macias and hit him before leaving the place of the robbery with Steven Moore.
Macias got up, ran to the market, and told Jauregui to call the police. Jauregui did that and then Macias led him out outside and identified defendants, who were walking away shirtless, as being the assailants. Jauregui got in his pickup truck and followed defendants until they stopped under a shady tree several blocks away. Jauregui parked approximately half a block away, telephoned his daughter, and asked her to tell the police where defendants were located. After police arrived and detained defendants, Jauregui went back to the market.
The police brought Macias and Jauregui to the place where defendants were being detained and Macias identified defendants as being the assailants. Jauregui similarly identified defendants as being the people whom Macias had earlier identified as being the assailants.
The police searched Steven Moore and found six $1 bills in his possession. There was no evidence that police searched Jeffrey Moore or found any money in his possession.
Neither defendant testified at trial.
Defendants contend the trial court erred when it found that section 1387.1 allowed the prosecution to file the robbery charges a third time. Thus, they claim the court erred in denying their motions to dismiss the charges pursuant to section 1387. Specifically, they argue the court erred in finding that at least one of the two prior dismissals was due solely to excusable neglect within the meaning of section 1387.1, such that the prosecutor could file the charges a third and final time. For reasons we explain, we conclude this claim has merit.
A. Statutory Background and Standard of Review
We first place the procedural facts in the appropriate statutory context. Several decades ago, former section 1387 provided that an order dismissing a criminal action was "a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony." (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1022, fn. 9 (Burris).) At that time, "felony charges could be refiled ad infinitum." (Id. at p. 1019.)
In 1975, the Legislature amended section 1387 to provide in relevant part that an order dismissing a criminal action is "a bar to any other prosecution for the same offense if it is a felony and the action has been previously dismissed pursuant to this chapter . . . ." (Stats. 1975, ch. 1069, § 1.) This amendment established "a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge." (Burris, supra, 34 Cal.4th at p. 1019.) As amended, section 1387 "implements a series of related public policies." (Burris, supra, at p. 1018.) Specifically, it "curtails prosecutorial harassment," "reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop," and "prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges." (Ibid.)
In 1987, the Legislature enacted 1387.1 "to create an exception to [the two-dismissal] rule for certain violent felonies" by allowing "a third opportunity to prosecute after two prior dismissals, assuming specific enumerated circumstances apply." (Tapp v. Superior Court (1989) 216 Cal.App.3d 1030, 1032 (Tapp); Stats. 1987, ch. 1211, § 47.5.)
Section 1387.1 provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were [sic] due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith. [¶] (b) As used in this section, 'excusable neglect' includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses."
The phrase "excusable neglect" is given the same construction that it has been given in civil cases. (People v. Mason (2006) 140 Cal.App.4th 1190, 1196; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 741; People v. Massey (2000) 79 Cal.App.4th 204, 211; People v. Woods (1993) 12 Cal.App.4th 1139, 1149 (Woods); Tapp, supra, 216 Cal.App.3d at p. 1035.) "Simply expressed, '[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.'" (Woods, supra, 12 Cal.App.4th at p. 1149, quoting Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) In other words, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Woods, supra, at p. 1149.)
Once the defense raises the section 1387.1 issue, the prosecution has the burden of proving that the charged offense is a violent felony and that one prior dismissal was due solely to excusable neglect. (Miller v. Superior Court, supra, 101 Cal.App.4th at pp. 746-747.)
The trial court's section 1387.1 determination historically has been reviewed for abuse of discretion. (E.g., People v. Mason, supra, 140 Cal.App.4th at p. 1196; Miller v. Superior Court, supra, 101 Cal.App.4th at p. 741; People v. Massey, supra, 79 Cal.App.4th at p. 211.) Defendants nevertheless claim our Supreme Court's decision in People v. Cromer (2001) 24 Cal.4th 889 (Cromer) "requires an independent review of the lower court's application of the facts to the law."
Cromer held that "appellate courts should independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Cromer, supra, 24 Cal.4th at p. 901.) Here, we need not resolve which is the proper standard of review because the result is the same whether we review the ruling independently or for an abuse of discretion.
B. The First Dismissal
We next consider the procedural background of defendants' contention. The prosecution originally charged defendants with robbing Macias in case Nos. SF109301A and SF109301B. Defendants did not waive their statutory right (§ 1382) to be brought to trial within 60 days of their arraignment on the information. The parties agreed that, absent good cause for a continuance, the last day for defendants to be brought to trial was Friday, November 21, 2008.
The court initially scheduled defendants' trial to begin on Friday, November 14, 2008. On that date, the Deputy District Attorney, Tory Christensen, asked the court to continue the case beyond the time allotted under section 1382 to December 1, 2008, apparently because witness Jauregui was out of the country. Judge Vlavianos observed that Christensen had failed both to make his request in writing and to give defendants advance notice as required by section 1050. In any event, the trial could not begin immediately because no judges were available. Judge Vlavianos continued the case for three court days to the following Wednesday, November 19, 2008, and "ordered Mr. Christensen to file a motion and serve Counsel."
At the next hearing on Wednesday, November 19, 2008, Judge Vlavianos found that although Christensen had timely filed a written motion to continue, he had not served it on opposing counsel in a timely manner. Further, the court found that Christensen's declaration in support of a continuance was "totally inadequate" because it stated that "the witnesses are unavailable to be here on that date," but it did not "say why." Christensen responded that his declaration had explained that Jauregui and his family had been contacted but he was "out of the country and unable to return until the 1st of December." When the court asked why Jauregui was unable to return, Christensen said that his investigators had contacted the family and the family simply stated that Jauregui was out of the country. Christensen conceded that his investigators had not asked "why" he was gone. In response, both defense counsel said it was their understanding that the prosecution had known for some time that Jauregui was out of the country and "just hadn't bothered to follow the procedure to get him served." Thus, according to defense counsel, Jauregui "was never even served."
Judge Vlavianos found that the motion failed to demonstrate good cause to continue the case beyond the 60 days allotted under section 1382. He said that, in any event, the trial could not begin immediately because there still were no judges available. Judge Vlavianos continued the case for two days to Friday, November 21, which he observed was the last day upon which trial could begin under section 1382. The judge deferred formally ruling on the motion to continue and anticipated that, at the Friday hearing, "there will either be good cause or there won't. [¶] If there is not good cause, then the 21st is the 60th day. I'll have a courtroom."
At the hearing on Friday, November 21, 2008, a different Deputy District Attorney, Katherine Mahood, withdrew the motion to continue and announced, "We have located one of the witnesses we really needed. [¶] So we are ready." The court assigned the trial to Judge Orcutt.
According to attorney Mahood, Judge Orcutt called the case at 10:30 a.m., stated "that the jury panel had been exhausted and there were no jurors available," and took no further steps to begin defendants' trial. According to counsel for Jeffrey Moore, Judge Orcutt "informed counsel that the matter could not proceed to trial as no jurors were available. The court had exhausted all jury panels served for the week of November 17, 2008 due to the number of jury trials in process." The lack of jurors was "due to court congestion," in that "all jury trial courtrooms were being used for jury trials. Jurors were thus need[ed] in those courtrooms already in trial." Counsel for Steven Moore agreed that there "were no jurors available for trial."
On Monday, November 24, 2008, Judge Vlavianos heard defendants' motion to dismiss the first filing under section 1382. Judge Vlavianos confirmed that Judge Orcutt did not begin the case on time because there were no jurors available. Judge Vlavianos explained that he had been "caught by surprise by the People saying they were ready to proceed," because the prosecutor "had indicated on two prior occasions they would not be ready to proceed; the DA witness was unavailable until the 1st [of December]." Judge Vlavianos noted that, if the court had known in advance that the prosecution would be ready to proceed, the court "might have been able to save a panel" of jurors or might otherwise "have taken some steps to make sure the panels were not exhausted by that date." Judge Vlavianos concluded that, "[w]ithout knowing until the morning of the 21st, we were not able to make sure there were any panels . . . . We did everything we could. [¶] We were not made aware--as a matter of fact, on [November 14 and 19, 2008], we were specifically told [that] the People were not ready to proceed until the 1st week in December. [¶] So on [November 21, 2008], we were caught unaware as the jury panels [had] run out[.]" (Italics added.) Each of the pending charges was dismissed. In this appeal it is undisputed that the lack of jurors, resulting from court congestion, did not provide good cause to continue the cases beyond the 60th day. (See generally People v. Hajjaj (2010) 50 Cal.4th 1184; People v. Engram (2010) 50 Cal.4th 1131.)
In April 2009, defendants filed written motions to dismiss this third filing of the action. The prosecution filed a written opposition. The trial court took judicial notice of the reporter's transcripts of proceedings on November 19 and 21, 2008. We granted defendant Jeffrey Moore's request for judicial notice of the transcripts on appeal.
In denying defendants' dismissal motions as to this third filing, the trial court (Judge Martin) addressed the issue of excusable neglect as to the first filing and found that the dismissal of case Nos. SF109301A and SF109301B was due solely to excusable neglect, as follows: "I do think that there was a mistake by the court on [November 21, 2008], and that is the court did indicate on [November 19, 2008], once it realized that it's going to be put over there, that [there] would be a court available. And the mistake the court made in its heavy volume is not checking with the Jury Commissioner downstairs and [saying], 'You know, we potentially have this case coming, are you going to have jurors there?' And I think that's reasonable you should have. And I think whether it's now reasonable neglect, or a prudent judge, and I think when you put it in the context of the volume of what's coming to the court and what the court was focusing on in getting it a courtroom, it said it'd be available, I don't think the court at that time thought--and that's where the neglect came in--about 'What if it gets there and there are no jurors there?' [¶] But I think that, frankly, that is a--it's a[n] excusable ne--excusable neglect in the context of the--what the court assignment judge that's handling and how it came before him." (Italics added.)
We must respectfully disagree with Judge Martin's finding of excusable neglect as to the first filing.
The parties agree that Judge Martin correctly identified the cause of the first dismissal: Judge Vlavianos failed to notify the Jury Commissioner of the potential trial on November 21, 2008. Defendants contend the record fails to show that the court's failure to have jurors available for their trial was excusable neglect. We agree.
Section 1387.1 defines "excusable neglect" as including error on the part of the "prosecution," as well as "error on the part of the court." Thus, a dismissal is not "due solely to excusable neglect," within the meaning of the statute, unless the evidence shows that every neglect leading to the dismissal--whether by the court or the prosecution--is excusable. (Italics added.)
In dismissing the first filings, Judge Vlavianos explained that "We were not made aware--as a matter of fact, on [November 14 and 19, 2008], we were specifically told [that] the People were not ready to proceed until the 1st week in December. [¶] So on [November 21, 2008], we were caught unaware as the jury panels [had] run out[.]" (Italics added.)
These comments make plain that the court's actions had been informed--and, as it turned out, misinformed--by the prosecution's representations. We first consider whether the evidence shows that these misrepresentations constitute excusable neglect. They do not.
The prosecution's oral and written responses to defendants' dismissal motions never explained why the prosecution erroneously believed that Jauregui would remain out of the country until December 1, 2008, thus serving as a basis for a viable motion to continue the trial which, as late as November 19, the prosecution predicted it would present to the court. Nor did it explain why the trial could not commence in Jauregui's absence and be continued at a later date, should he remain unavailable.
Thus, the prosecution presented no evidence that its representation that trial could not commence earlier than December 2008 had resulted from excusable neglect as opposed to, e.g., an inexcusably lax effort to obtain Jauregui's return and attendance, as suggested by the colloquy during the November 19, 2008, hearing that we have set forth above.
Instead of offering evidence, the prosecutor stated, "I don't think either of the defense [counsel] are going to say that [withdrawal of the continuance motion on the 60th day was] misconduct on the part of the prosecution." This statement did not satisfy the prosecutor's burden of producing evidence. (Miller v. Superior Court, supra, 101 Cal.App.4th at pp. 746-747.)
On appeal, the Attorney General asserts that the prosecution may be excused for having twice failed to prepare a proper continuance motion, and for having failed to alert the court that it would withdraw the pending continuance motion and announce that it was ready for trial on the 60th day. These assertions beg the question, not answered by any evidence, whether the prosecutor's representation that the case could not proceed due to Jauregui's unavailability constituted excusable neglect.
The prosecutor's representation that Jauregui would not be available misled Judge Vlavianos into failing to obtain jurors for the crucial 60th day, November 21, 2008. Even if Judge Vlavianos's failure were excusable neglect, the fact remains that the first dismissal did not result solely from the judge's failure but resulted as well from the prosecution's erroneous representation. The first dismissal was not based on excusable neglect and does not support a third filing pursuant to section 1387.1.
C. The Second Dismissal
The day after Judge Vlavianos dismissed the first cases against defendants, the prosecutor initiated new cases by filing complaints in case Nos. SF110233A and SF110233B. After conducting a new preliminary examination and again holding defendants to answer, the court arraigned defendants on a new information on December 23, 2008. Section 1382 thus required the trial to begin on or before Monday, February 23, 2009.
The court initially scheduled defendants' trial to begin on Friday, February 6, 2009. The trial could not begin as scheduled because no judges were available; the case was continued to Monday, February 9, 2009. Because there were no judges available on February 9, 2009, and because the prosecutor was not available for the next regularly scheduled trial assignment calendar on Friday, February 13, 2009, the court continued the case over the Presidents Day weekend to Tuesday, February 17, 2009. No judges were available on February 17, 18, 19, or 20, 2009, and the matter was continued to its 60th day, February 23, 2009. There were no judges available on February 23, so Judge Vlavianos continued the case over defendants' objections to February 24, 2009, at which time he granted their motions to dismiss this second filing under section 1382.
According to Deputy District Attorney Christensen, Judge Vlavianos "basically said . . . he didn't give priority to the case, he didn't know it was a second filing and . . . he may have been able to provide a court if he'd known it was a second filing . . . ." Also according to Christensen, Judge Vlavianos "relied on the fact that [the prosecution] didn't tell them that it was a second filing . . . ." Christensen did not remember whether he had "specifically said it was a second filing," but he did "recall specifically saying that [he] thought [they] had priority over the cases that--or at least one case that was sent out during that time." Jeffrey Moore's trial counsel similarly recalled that Christensen "did raise the fact of priority, but . . . didn't indicate what the priority was."
In denying defendants' dismissal motions in the present case, Judge Martin found that the dismissal of the second filing in case Nos. SF110233A and SF110233B was solely due to excusable neglect as follows: "I think, again, when the assignments come to the judge, I don't think there's many judges out there that have the recall of the cases that come before, which ones have, which one had been, what motions have they been, what motions have been granted, what motions been denied, where they are. [¶] This was one he was fully aware of, it was the 60th day [that] was approaching. And then when the motion was made he felt like, 'Well, there's been no basis to show good-cause continuance; dismiss.' [¶] I don't think that Judge Vlavianos or any other judge, being aware that that case had been dismissed before under the circumstances in which it had been dismissed, would have not put pressure on some court within the time frame that  was put over--it was put over several times, not just once or twice, out to court. And I think they would have made a point that 'There is going to be somebody out there, I'm going to hijack the court and they're going to take this case before that 60th day is exceeded on there.' [¶] And I--again, it was neglect on Vlavianos' part not to have done that. But I think it comes within the definition. What is it? Excusable neglect is neglect that might have been an act or omission of a reasonably prudent person under the same or similar circumstances. [¶] And I think you put that in the context of the assignment judge in what he was focusing in on  that second case--and it was the 60th day. And [he] was fully aware of it. Everybody was aware of it being put over to that 60th day, the 23rd of February was looming, it's in front of him. But nowhere, as I pointed--I could find in the record that the judge was aware or anyone brought [it] to his attention--it wasn't only looming, that 60th day but it would be the second dismissal of this felony[.] [¶] . . . [¶] So, anyway, I'm going to find that there was, for reason I've just said on the record, excusable neglect as defined as what that is by the judge when he did what he did on those dates."
As can be seen, Judge Martin's evaluation of the second dismissal parallels his evaluation of the first dismissal, in that neither scrutinized the prosecution's conduct that led to Judge Vlavianos's ruling. Here, Judge Martin never analyzed whether Deputy District Attorney Christiansen's omission or failure to advise Judge Vlavianos explicitly that defendants were seeking a second dismissal of the charges was something that a "reasonably prudent [prosecutor] under the same or similar circumstances" would have omitted. Had Judge Martin considered this question, the evidence would have compelled him to answer "no." Reasonable prudence demanded that the point, which was well within Christensen's knowledge, be brought forcefully to the court's attention so that a courtroom could be found to at least begin hearing the case. Thus, even if Judge Vlavianos's consequent failure to "hijack" a courtroom constitutes excusable neglect, a point we need not consider, the judge's omission was not the sole cause of the second dismissal.
Because neither prior dismissal resulted "solely" from excusable neglect, within the meaning of section 1387.1, Judge Martin's refusal to dismiss the present charges was error and an abuse of discretion. Since the charges cannot be filed a fourth time, we have no occasion to consider Steven Moore's remaining contentions.
As to each defendant, the judgment is reversed. The trial court is directed to enter dismissal of each information.
We concur: ROBIE, J. DUARTE, J.
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