California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County Nos. 12F01905 & 12F06313, Kevin J. McCormick, Judge.
Charles M. Bonneau and Mark H. Sollitt for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, and Clara M. Levers, Deputy Attorney General, for Real Party in Interest.
This case involves “‘a particularly unpardonable fault of the prosecutor-unpreparedness.’” (People v. Whitaker (2013) 213 Cal.App.4th 999, 1006.)
On March 16, 2012, the People filed their first felony complaint charging petitioner Erick Lloyd Dietrick with driving under the influence of alcohol (DUI) (Count One), and DUI with a blood-alcohol level above.08 percent (Count Two), and as to each count alleged he had been convicted of a felony DUI within the past 10 years. (See Veh. Code, §§ 23152, subds. (a) & (b), 23550.5.) Absent the allegation of a prior conviction for DUI, Counts One and Two would have been misdemeanors. (Id., § 23536, subd. (a).) Pleading and proof of the prior, to elevate the substantive counts to felonies, was required as a matter of due process. (See People v. Casillas (2001) 92 Cal.App.4th 171, 184.)
At the preliminary hearing held on September 20, 2012, the prosecutor neglected to produce any evidence of the alleged prior DUI, speculating after resting his case and presenting argument that he had left the evidence in his office. The magistrate (Candee, J.) held petitioner to answer on the two DUI counts as misdemeanors. Petitioner immediately attempted to plead guilty “to the sheet, ” but the magistrate declined to accept the plea. After a brief recess, the same prosecutor moved to reopen, apparently having found the missing evidence. The magistrate declined to reopen the hearing.
The prosecutor moved to dismiss the case, and the magistrate granted the motion.
On September 21, 2012, the People filed their second felony complaint, largely identical to the first, but adding two prior prison term allegations.
Petitioner moved to dismiss pursuant to Penal Code section 1387 (§ 1387), the “two-dismissal” rule, which generally bars “further prosecution of a felony if the action has twice been previously terminated according to the provisions of that statute.” (Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 218; see generally Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018-1020 [describing the different statutory treatment of successive felony and misdemeanor prosecutions] (Burris).)
The trial court (McCormick, J.) denied the motion, finding “no purpose of [§ 1387] would be promoted” by finding two dismissals had occurred.
Petitioner filed the instant petition for a writ of mandate commanding the trial court to grant his motion to dismiss. We stayed further proceedings and, after considering the People’s ...