California Court of Appeals, Fourth District, Third Division
Appeal from an order of the Superior Court of Orange County, No. 11NF3242, James H. Poole, Judge. (Retired judge of the Orange County Super.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Request for Judicial Notice. Request granted. Order affirmed.
Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant.
Susan S. Bauguess, by appointment by the Court of Appeal, for Defendant and Respondent.
RYLAARSDAM, ACTING P. J.
The trial court issued an order barring the prosecutor from proceeding further against defendant Mark Anthony Rodriguez on count 1 (murder) and count 3 (firing into an inhabited dwelling house) of the criminal complaint filed against him. The order was made pursuant to Penal Code section 1387, which bars further prosecution of any felony offense after it has twice been terminated for reasons specified in the statute. (All further statutory references are to the Penal Code.) The prosecutor appeals, arguing the court’s order dismissing the first indictment alleging those counts did not qualify as a termination for purposes of section 1387. Alternatively, the prosecutor argues he should have been afforded one additional opportunity to refile the charges, because the court’s order dismissing the first indictment constituted “excusable neglect” under section 1387.1. Finding neither contention persuasive, we affirm.
The court’s order dismissing the first indictment qualified as a termination for purposes of section 1387 because it arose out of Rodriguez’s motion to dismiss pursuant to section 995 – one of the specified bases for a qualifying termination under section 1387. Although the prosecutor did argue the court should simply dismiss the first indictment as “duplicative” and not reach the merits of the section 995 motion, in light of the grand jury’s subsequent return of a second indictment against Rodriguez alleging the same counts, the court rejected that option. Instead, the court made clear its intention to afford Rodriguez relief on the merits of his section 995 motion, just as it had previously done for a different defendant who had been separately indicted on charges arising out of the same incident. (We grant Rodriguez’s request for judicial notice of documents pertaining to the motion to dismiss filed by the other defendant, Wesley Solis, as well as the court’s ruling thereon.) Indeed, the court expressly stated its intention was to treat the dismissal “as [a] 1387” dismissal. And while that order was directly appealable, the prosecutor elected not to pursue such an appeal.
The prosecutor’s alternative claim, that the court’s order dismissing the first indictment constitutes “excusable neglect” under section 1387.1, likewise fails because it is unsupported by any showing that either the court’s decision to reach the merits of the section 995 motion, or its ruling thereon, was actually erroneous.
On December 11, 2008, the Orange County Grand Jury returned separate indictments against Rodriguez and four others arising out of an incident which allegedly occurred in June 2008. The indictment returned against Rodriguez charged him with counts of murder, attempted murder, shooting at an inhabited dwelling house, robbery and street terrorism.
In August 2010, one of the other defendants charged in connection with the incident, Solis, moved to dismiss the indictment returned against him under sections 995 and 939.71. Judge Francisco P. Briseno granted that motion in September of 2010.
On October 8, 2010, Rodriguez also moved to dismiss the indictment returned against him pursuant to sections 995 and 939.71. He argued he had been illegally committed without probable cause, and the prosecutor had withheld exculpatory evidence from the grand jury and otherwise committed misconduct before it. Five days later, the prosecutor presented evidence to the grand jury and requested new indictments be returned against the defendants charged in connection with the incident. The grand jury issued a new indictment against Rodriguez that same day.
On October 22, the date scheduled for hearing on Rodriguez’s motion to dismiss the first indictment, the prosecutor requested the motion be dismissed as moot in light of the new indictment, or in the alternative, that the hearing be continued. After Rodriguez’s counsel stated his desire to proceed with the motion, the court – again per Judge Briseno – ordered the hearing continued and requested further briefing on the issue of whether the new indictment rendered the pending motion moot.
At the continued hearing, the court thanked the parties for their supplemental briefing, but characterized the case as “procedurally... a mess, some of it caused by the D.A.” The court then explained it was the fact the prosecutor had obtained separate indictments of each of the five defendants, rather than a single indictment encompassing all of them, which was the source of the procedural complication. Having already granted the section 995 motion filed by Solis, the court stated it was inclined to “dismiss the four other indictments that were originally filed, and have everybody be arraigned... in Department 5.” However, the court noted it was struggling with “whether the dismissals as to these two defendants should be treated as a dismissal under 1387... and that’s why I’m looking to see why it was five separate indictments, because that appears to be an election by the People. And... if you agree with that, then I think we ought to grant the defense request that this dismissal of the first indictment be treated as one under 1387.” The court explained that if the prosecutor had obtained only one indictment covering all defendants charged in the incident, and thus had joined all of them in a single case, Solis’s section 995 motion would have been easily joined by all the other defendants and resolved consistently for all.
After some further colloquy with the prosecutor, who was arguing that the court should simply dismiss the initial indictment on the ground it was “duplicative” of the new indictment obtained after Solis’s successful section 995 motion, without reaching the merits of Rodriguez’s separate motion, the court made its ruling: “You might well be right.... But I’m going to take a practical approach, and I’m simply going to dismiss the first indictment as to these two defendants, and treat that dismissal under 1387, and I wanted to put on the record the basic procedure that preceded this motion here today.” The court then clarified that it agreed “the second indictment does, in fact, supersede the first one.... But I’m also finding that the dismissal of the first ...