PEOPLE v. JUAREZAppellant’s Answer Brief on the MeritsCal.January 27, 2015 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8219889 ) Plaintiff/Appellant, ) DCA No. G049037 ) (lead) vs. ) ) Consolidated with SUPREME cc GERARDOJUAREZet al., ) DCACase: ci oy ) No. G049038 PteSR Defendants/Respondents. ) . ) JAN 27 2015 CONSOLIDATED ANSWERBRIEF ON THE MERITS (00eeeDeputy FOLLOWING THE APPEAL FROM THE ~ SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE GREGGL. PRICKETT, JUDGE PRESIDING TONY RACKAUCKAS,DISTRICT ATTORNEY COUNTY OF ORANGE,STATE OF CALIFORNIA BY: BRIAN F. FITZPATRICK . DEPUTY DISTRICT ATTORNEY EMAIL:brian.fitzpatrick@da.ocgov.com STATE BAR NO..165480 POST OFFICE BOX 808 SANTA ANA, CALIFORNIA 92702 TELEPHONE:(714) 347-8789 FAX: (714) 834-5706 Attorneys for Appellant IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8219889 ) Plaintiff/Appellant, ) DCA No. G049037 ) (lead) VS. ) ) Consolidated with GERARDO JUAREZetal., ) DCA Case: ) No. G049038 Defendants/Respondents. ) ) CONSOLIDATED ANSWERBRIEF ON THE MERITS FOLLOWING THE APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE GREGGL. PRICKETT, JUDGE PRESIDING TONY RACKAUCKAS,DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BY: BRIAN F. FITZPATRICK DEPUTY DISTRICT ATTORNEY EMAIL:brian.fitzpatrick@da.ocgov.com STATE BAR NO.165480 POST OFFICE BOX 808 SANTA ANA, CALIFORNIA 92702 TELEPHONE:(714) 347-8789 FAX: (714) 834-5706 Attorneys for Appellant TABLE OF CONTENTS TABLE OF AUTHORITIES . 2.0.0.0... cece cee eee ee ili INTRODUCTION 2.0...ccceee eee eens 1 FACTUAL BACKGROUND ....... 00. c ccc cee ee eens 2 PROCEDURAL BACKGROUND ....... 0... cece eee eee 4 ARGUMENT... 0...occeee tte n nee een eens 6 A. THE COURT OF APPEAL CORRECTLY APPLIED THE “SAME ELEMENTS” TEST TO DETERMINE PENAL CODE SECTION 1387 DOES NOTBAR THE NEW CONSPIRACY CHARGESIN THIS CASE ....... 6 1, Section 1387’s Plain Language Shows It Only Applies Where The Successive Charges Allege The “Same Offense”... 0.0... ee ec eee eee eee 6 2. This Court Applies The “Same Elements” Test To Determine Whether Successive Charges Are For The “Same Offense” Under Section 1387 ......... 8 B. THIS COURT SHOULDNOTREPLACETHE “SAME ELEMENTS” TEST WITH DEFENDANTS’ “FACT- BASED” TEST ...... 0.0... ec ccc cee eee 10 I. This Court And The Court Of Appeal Have Already Rejected “Fact-Based” Tests ........... 11 2. Defendants’ “Fact-Based” Test Disregards Section 1387(a)’s Plain Language And Would Swallow The Rule ........ 0.0... eee ee eee 14 3. Defendants’ Position Is Contrary To The Cases They Cite .....cnn e ee eee e eee n ee enes 19 4. The Accusatory Pleading Test Has No Application Under Section 1387(a) ............. 31 C. THE “SAME ELEMENTS” TEST ENCOMPASSES PENAL CODE SECTION 1387°S POLICIES AND LEGISLATIVE INTENT ............. 0.000.000 ee 34 1. The Legislature Made A Policy Choice Narrowly Limiting Section 1387 To Successive Prosecutions Charging The “Same Offense” ...... 34 2. This Case Is Consistent With Section 1387(a)’s Policies And The Legislative Intent ............. 39 3. The Legislature’s Clear Language Governs ....... 48 CONCLUSION 2.0...eeeeee en een eae 53 CERTIFICATE OF WORD COUNT ........ 0.0.0.0 eee cece eee 54 PROOF OF SERVICE [END] ii TABLE OF AUTHORITIES CASES Bellizzi v. Superior Court (1974) 12 Cal.3d33 0... eececeteens 4] Burris v. Superior Court (2005) 34 Cal4th 1012 .. eeeeee, 20, 35, 40, 47 Dunn v. Superior Court (1984) 159 Cal.App.3d 1110 ............0...008. 19-22, 44, 47 Inre DB. (2014) 58 Cal.4th 941 0...eee eee 6, 49, 50, 52 In re Marriage ofCornejo (1996) 13 Cal.4th 381 2.eeeee27 Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549 2.0...eeeee 14, 39 Kellett vy. Superior Court (1966) 63 Cal.2d 822 20...eecee ee eee 15, 51 Miller v. Superior Court (2002) 101 Cal.App.4th 728 ..... 0.eececa 34 Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 0...eceeeee 6 People v. Bailey (2012) 54 Cal.4th 740 2.0...ccceee eee 32, 33 People v. Gilbert (1938) 26 Cal.App.2d 1.0... eee eee eee eee eee ed People v. Konow (2004) 32 Cal.4th 995 2...eeeee eee 52 ili People v. Lee (2003) 31 Cal.4th 613 20... . eeeeeeee ee 10 People v. Meza (1991) 231 Cal.App.3d 362 0.0.2... cece eee ee 12, 13, 22 People v. Morante (1999) 20 Cal.4th 403 2...eee9 People v. Orin (1975) 13 Cal.3d 937 oo.ieeeeee eee 34, 52 People v. Reed (2006) 38 Cal.4th 1224 2.0...ecee eee 31, 32 People v. Sahagun (1979) 89 CalApp.3d 1 oo... cece cee ee cee eee 41 People v. Salcido (2008) 166 Cal.App.4th 1303.0... 0... ee eee cee 24-29 People v. Sanders (2012) 55 Cal.4th 731... ceceee cee eens 32 People v. Snook (1997) 16 Cal.4th 1210 2...cceee eens 6 People v. Superior Court (Decker) (2007) 41 Cab4th 1...eeccc eens 10 People v. Traylor (2009) 46 Cal.4th 1205 .. 0...eeepassim People v. Trevino (2001) 26 Cal.4th 237 00...eecceens 16 People v. Whitfield (1993) 19 Cal.App.4th 1652 2...ecccc eee 38 iv State v. Abrahamson (lowa 2008) 746 N.W.2d 270 2.0... cee ce eee eee 29-31 State v. Lies (Iowa 1997) 566 N.W.2d 507 1.0... eee eee cee eee 30 Voices ofthe Wetlands v. State Water Resources Control Bad. (2011) 52 Cal.4th 499 2...eeeeee 6 Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 2.0.0... ee eee eee 22, 23 STATUTES Penal Code section 182 ©... 0.0... eectete eens 9 Penal Codesection 654, subdivision (€)..... 0... cece eee eee teens 15,51 Penal Code section 803, subdivision (b) 2.1... eeeee ee teen eens 38 Penal Code section 954 0.0... feieette e eens 51 Penal Code section 1385 2.0... .. 0. cee ec eee eee eens 52 Penal Codesection 1387, subdivision (€)....... 0.00 eee ee eee eee etna passim OTHER AUTHORITIES Statutes 1975, chapter 1069, section 1, p. 2615 ................ 00048. 35 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8219889 ) Plaintiff/Appellant, ) DCA No. G049037 (lead) VS. Consolidated with DCACase: No. G049038 GERARDO JUAREZet al., Defendants/Respondents. N e w e r N e e N e n e N e e N e e e e e e e ” INTRODUCTION Defendants’ position is contrary to Penal Code section 1387(a)’s plain language. That section only applies to successive prosecutionsfor.the “same offense.” Conspiracy to commit murderis not the “sameoffense”as attempted murder. They are different crimes that punish different acts and require different intents. Defendants’ policy-based arguments misunderstand section 1387(a)’s purpose and would swallow the rule. Defendants’citation to caselaw underminestheir position. The cases show that section 1387(a) precludes subsequent offenses that cannot be committed without committing the dismissed offense. Conspiracy to commit murder can be committed without committing attempted murder. Section 1387(a) is functioning precisely how the Legislature envisioned it would. The Court ofAppealcorrectly determined section 1387(a) does not apply to the new conspiracy chargesin this case. FACTUAL BACKGROUND On June 3, 2011, at approximately 5:00 p.m., victims John Doe and Jane Doe drove by a Jeep Grand Cherokee driven by defendant Emmanuel Juarez (“defendant Emmanuel’) in an alley near their apartment complex. (C.T. p. 40.)' As they passed, John Doe and defendant Emmanuelstared at each other and then stopped their respective vehicles. (C.T. p. 40.) They exited and exchanged words. (C.T. pp. 40-41.) When John Doe returned to his vehicle, Jane Doe heard him say he did not mean to disrespect defendant Emmanuel’s son. (C.T. p. 41.) John Doe and Jane Doereturned to their apartment complex, and at approximately 10:45 p.m. that evening, were preparing to leave again. (C.T. p. 43.) As they entered the samealley, they saw defendant Emmanueltogether with defendant Gerardo Juarez (“defendant Gerardo”). (C.T. pp. 44, 74.) Defendant Emmanuel approached John Doe and punched him in the face. (C.T. p. 44.) John Doesaid, “Let’s throw down.” (C.T. p. 45.) Defendant ' The facts are from the preliminary hearing held in Case No. 11NF1767. Thetranscript is identical for both defendants. References herein are to the transcript found in the Clerk’s Transcript for defendant Emmanuel Juarez. Emmanuel removed plastic bag from his waistband and gaveit to defendant Gerardo. (C.T. p. 45.) From its shape, the bag appeared to contain a gun. (C.T. p. 45.) Defendant Emmanuel and John Doe began to fight. (C.T. pp. 44-45.) During the fight, defendant Gerardo removed a gun from theplastic bag and gaveit to defendant Emmanuel. (C.T. p. 46.) Defendant Emmanuel yelled somethingsimilarto “Long Beach Psychos”or “Long Beach Cyclones” and then shot John Doe. (C.T.p. 46.) Jane Doeran throughthe alley to the entrance gate for the apartment complex. (C.T. pp. 46-47.) The gate was locked. (C.T. p. 47.) Defendant Emmanuel approached the gate driving the Jeep Grand Cherokee with defendant Gerardo walking alongside. (C.T. p. 47.) Defendant Gerardo ordered Jane Doeto open the gate. (C.T. p. 47.) Jane Doe said she could not open the gate. (C.T. p. 47.) Defendant Emmanuel exited and lifted the gate. (C.T. p. 47.) Defendant Gerardo looked at Jane Doe and Jane Doe begged him not to kill her. (C.T. pp. 47-48.) Defendant Gerardosaid, “Fuck you, bitch,” and fired one shot at Jane Doe. (C.T.p. 48.) PROCEDURAL BACKGROUND On June 7, 2011, defendants Emmanuel and Gerardo were charged by way offelony complaint in CaseNumber | 1NF 1767 with, amongotherthings, two counts of attempted murder - one count for John Doe andthe otherfor Jane Doe. (C.T. pp. 27-31.)° A preliminary hearing was held on November 17,2011. (C.T. pp. 33-88.) The magistrate held both defendants to answer on both attempted murder charges. (C.T. p. 87.) An information alleging both attempted murder charges wasfiled on November 21, 2011. (C.T. pp. 90-92.) OnJuly 16, 2012,the court dismissed Case Number 1 1NF 1767 on the People’s motion to dismiss. (C.T. p. 15.) On the same date, July 16, 2012, the People re-filed, among other charges, both attempted murder charges against defendants by felony complaint in Case Number 12NF0057. (C.T. p. 17.) On July 26, 2012,the parties waived preliminary hearing and wereheld to answer. (C.T. p. 18.) On July 30, 2012, the People filed an information alleging, among other things, the two attempted murderchargesagainst both defendants. (C.T. pp. 99-102.) After several continuances, and after the People had previously answered ready for trial, the People moved to continuethe trial date because Anaheim * The relevant procedural backgroundis identical for both defendants. Forsimplicity, the references herein are to the Clerk’s Transcript for defendant EmmanuelJuarez. Police Detective Darren Wyatt, the lead investigator and a necessary witness, wastraveling in Africa and unavailable to testify. (C.T. pp. 104-107.) On December 10, 2012, the court dismissed the case pursuant to Penal Code section 1382. (C.T. p. 20.) Onthat same date, the People filed the instant case alleging two counts of conspiracy to commit murder against each defendant. (C.T. pp. 109-112.) Defendants’ Penal Code section 1387 motions to dismiss were denied by the magistrate. (C.T. p. 9.) Defendants filed petitions for writ of mandate in superior court challenging the magistrate’s ruling. (C.T. p. 301.) The superior court granted defendants’ petitions and dismissed this case against both defendants. (C.T. p. 306.) The People appealed to the Court ofAppeal. (C.T. p. 349.) After consolidating defendants’ cases on appeal, the Court ofAppeal reversed the lower court’s order dismissing this case and both defendants petitioned for review in this Court. ARGUMENT A. THE COURT OFAPPEAL CORRECTLYAPPLIED THE “SAME ELEMENTS” TEST TO DETERMINE PENAL CODE SECTION 1387 DOES NOT BAR THE NEW CONSPIRACY CHARGESIN THIS CASE 1. Section 1387’s Plain Language ShowsIt Only Applies Where The Successive Charges Allege The “Same Offense” “When interpreting statutes, [the Court] begin[s] with the plain, commonsense meaning of the language used by the Legislature. [Citation.]” (Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519.) [I]t is well-settled that [the Court] must lookfirst to the words ofthe statute, “because they generally provide the mostreliable indicator of legislative intent.” [Citation.] (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) “Tf the statutory language is clear and unambiguous [the Court’s] inquiry ends.’ [Citation.]” (Jn re D.B. (2014) 58 Cal.4th 941, 945-946.) In other words, “[i]f there is no ambiguity in the language, [the Court must] presume the Legislature meant whatit said and the plain meaning ofthe statute governs. [Citations.]” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) Penal Codesection 1387, subdivision (a) (section 1387(a)) limits the numberoftimes a defendant may be charged with a criminal “offense.” (Pen. Code, § 1387, subd. (a)’.) It generally precludes prosecution for the “same offense”if it is a felony and it has been twice dismissed. (Pen. Code, § 1387, subd.(a).) The Legislature meant what it said when it narrowly limited section 1387(a) to successive prosecutions for “the same offense.” As this Court notes, although section 1387(a) has been amended numeroustimes and is “hardly pellucid,’” one thing is clear from section 1387(a)’s language, “it 3999applies only to successive prosecutions ‘for the same offense.’” (People v. Traylor (2009) 46 Cal.4th 1205, 1212, citation omitted.)* As wediscuss below, conspiracy to commit murderis not the “same offense” as attempted murder under section 1387(a). Therefore, section 1387(a) does notapply to the conspiracy to commit murder chargesin this case. 3 All further code references are to the Penal Code unless otherwise noted. * Defendant Gerardo notes this Court’s commentthat section 1387(a) is “hardly pellucid,” but fails to include the Court’s subsequent determination that section 1387(a)is clearly limited to successive prosecutionsfor the “same offense.” (Def. Gerardo’s brief at p. 9.) 7 2. This Court Applies The “Same Elements” Test To Determine Whether Successive Charges Are For The “Same Offense” Under Section 1387 In Traylor, this Court defined when two offenses are the “same offense” under section 1387(a). [SJuccessive prosecutions are “for the same offense,” and are thus governed by section 1387, where “the identical criminalact ... underlies” each of the prosecutions. (People v. Traylor, supra, 46 Cal.4th 1205, 1212, citing Burris v. Superior Court (2005) 34 Cal.4th 1012, 1016,fn. 3, omission in original.) Accordingly, “*Tw)hen two crimes have the same elements, they are the same offense for purposesof... section 1387.’” (People v. Traylor, supra, 46 Cal.4th 1205, 1212, italics and omissionin original, quoting Burris v. Superior Court, supra, 34 Cal.4th 1012, 1016-1017, fn. 3.) The Court then applied the “same elements”test to the situation in Traylor. There, the prosecutorfiled a lesser included misdemeanoroffense of vehicular manslaughter after a charge of felony vehicular manslaughter with gross negligence was dismissed. (People v. Traylor, supra, 46 Cal.4th 1205, 1208.) The Court noted the felony and misdemeanorcharges, although very closely related, “did not include the identical elements.” (bid.) The felony offense requires proof that a grossly negligent act caused thetraffic death, while the misdemeanor offense does not require such proof. (d. at p. 1213.) Thus, they were not the “same offense” under section 1387(a). (People v. Traylor, supra, 46 Cal.4th 1205, 1212-1213.) The successive charges in our case - attempted murder and conspiracy to commit murder - are less related than the charges in Traylor. Neither is a lesser-included or greater offense of the other. They have substantially different elements and punish substantially different criminal acts. “Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object ofthe conspiracy. [Citations.]” (People v. Morante (1999) 20 Cal.4th 403, 416, fn. omitted.) Conspiracy is an inchoate crimethat eee [F]ixes the point of legal intervention at [the time of] agreement to commit a crime,’ and ‘thus reaches further back into the preparatory conduct than attempt[.]’ [Citation.]” (Id. at p. 417, second modification in original.) Conspiracy to commit murder requires an agreement to commit murder and an overt act by one or more ofthe parties in furtherance ofthe agreement. (/d.at p. 416; Pen. Code, § 182, subd. (a)(1).) The overt act need not be criminal and can merely be a preparatory act. (People v. Gilbert (1938) 26 Cal.App.2d 1, 23.) In contrast, attempted murder does not require any agreement. It “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. ([Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) The direct but ineffectual act must be an act beyond merepreparation. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) Conspiracy to commit murder and attempted murderare two separate and distinct offenses. The Court of Appeal correctly determined section 1387(a) does not apply to the conspiracy to commit murder offenses in this case. B. THIS COURT SHOULD NOT REPLACE THE “SAME ELEMENTS” TEST WITH DEFENDANTS’ “FACT- BASED” TEST Defendants do not argue conspiracy to commit murder is the “same offense” as attempted murder underthe “same elements”test. Instead, they attack the test. They want this Court to disapprove ofthe “same elements”test used in Traylor, and discussed in Burris, and adopt defendants’ “fact-based” test. 10 Defendants, however, do not agree on their versions of their tests. Defendant Emmanuelargues “same offense” should be rewritten to mean “all related chargesarising out ofthe sameset ofcircumstances underlying the two dismissed cases.” (Def. Emmanuel’s briefat p. 14.) Defendant Gerardo argues “same offense” should mean charges that have the same “essence.” (Def. Gerardo’s brief at p. 7.) He does not define “essence,” but states that charges should be considered the “same offense” when the “exact same facts and intent are required to prove” them. (Def. Gerardo’s briefat p. 7.) This Court should reject defendants’ “fact-based”tests. 1. This Court And The Court Of Appeal Have Already Rejected “Fact-Based” Tests Asdiscussed above, in Traylor, the Court examined the “elements” of the successive charges,not the alleged facts ofthe case, to determine whether the charges were the “same offense” under section 1387(a). Nothing in the Court’s discussion supports defendants’ plea for a broader “fact-based”test. Onthe contrary, the Court specifically rejected the defendant’s claim that “section 1387(a) should apply to all charges arising from the same conductor behavior of the defendant....” (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6, original emphasis.) The Court foundthat “the statutory language belies such a necessarily broad construction.” (/bid.) 1] Instead, [O]ne crimeis the “same offense” as another whenit involves the “identical criminal act” as represented by the criminal elements necessary for a conviction. [Citation.] (Peoplev. rraylor, supra, 46 Cal.4th 1205, 1213, fn. 6.) In People v. Meza (1991) 231 Cal.App.3d 362, the Court of Appeal independently came to the same conclusion. In Meza, the defendantstole a victim’s car and collided with a police car after driving approximately one mile. (/d. at p. 364.) The defendant’s blood alcohol level was over the legal limit. (bid.) The defendant was charged with robbery and Vehicle Code section 10851, but the charges were dismissed because the “‘victim had not been personally served.’” (/bid.) The People refiled the same two charges. (Ibid.) The second case was dismissed because the People failed to timely bring the defendantto trial under section 1381. (/bid.) The People thenfiled a felony complaint charging two counts of driving under the influence of alcohol and causing injury. (/bid.) Thetrial court dismissed the charges under section 1387(a) because {T]he driving underthe influence of alcohol and causing bodily injury offenses were transactionally related to the [previously dismissed robbery and vehicle-taking offenses].... (Id. at pp. 364-365.) 12 The Court of Appeal reversed the trial court’s decision, which was based uponthe facts ofthe case. (People v. Meza, supra, 231 Cal.App.3d 362, | 365-366.) The Court of Appeal instead looked to the elements of the successive chargesfinding that the driving under the influence charges “could have been committed without engaging in the conduct alleged in the twice dismissed robbery and ‘Vehicle Code section 10851’ offenses.” (Peoplev. Meza, supra, 231 Cal.App.3d 362, 365.) Thus, Neither driving under the influence charge was “the same offense” within the meaning of Penal Code section 1387 as either of the twice dismissed charges. (People v. Meza, supra, 231 Cal.App.3d 362, 365.) The same is true in our case. Conspiracy to commit murder can be committed without committing attempted murder. They are not the “same offense.” This is consistent with Traylor. Misdemeanor vehicular manslaughter can be committed without committing felony vehicular manslaughter with gross negligence. Thus, under both Traylor and Meza, section 1387(a) does not apply to the conspiracy to commit murder chargesin our case. 13 2. Defendants’ “Fact-Based” Test Disregards Section 1387(a)’s Plain Language And Would Swallow The Rule Defendants wantthis Court to rewrite section 1387(a) disregarding the Legislature’s plain language. The Court should refuse. Wherethe terms of a statute are plain and not absurd, a court may not presume a drafting error and thereby substitute its judgment for the Legislature’s. [Citation.| To do so would contravene [the Court’s] constitutional role, tread into the domain of a coequal branch, and inject intolerable uncertainty into the drafting and lawmaking process, since neither the Legislature nor the public could rely on a court to follow plain statutory language. (Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 558.) Defendants’ “fact-based” test disregards section 1387(a)’s narrow application and would swallow the rule. For example, in ourreply briefto the Court of Appeal, we asked the court to consider the hypothetical situation where both defendants in our case had methamphetamine in their pockets during the commission ofthe attacks and, instead of charging conspiracy to commit murderin the present prosecution, the People charged possession of a controlled substance in violation of Health and Safety Code section 11377. Weaskedifdefendants would argue the drug-offense prosecution was barred under section 1387(a). 14 Defendant Emmanuel answersthis question in the affirmative. He confirmsthat, under the “fact-based”test, the possession ofmethamphetamine charge would be the “same offense” under section 1387(a) as the attempted murder charges. Defendants’ position makes no sense. Possession of methamphetamineis not the “same offense”as attempted murder. Defendants’ “fact-based” test would rewrite the limiting language in section 1387(a). Defendant Emmanuel cites Kellett v. Superior Court (1966) 63 Cal.2d 822 and claims section 1387(a) should apply to all offenses arising from the facts knownto the prosecution. His citation to Kellett is misplaced and undermines his position. Kellett interpreted section 654, not section 1387(a). Ud. at p. 824.) The Legislature used different language in section 654. That section applies to prosecutions“for the sameact or omission,” while section 1387(a) applies to prosecutions “for the same offense.” (Pen. Code, §§ 654, subdivision (a), 1387, subdivision (a).) Defendants’ “fact-based” test would equate section 1387(a) and section 654 even though the Legislature used significantly different language. This would contravenethe settled principle that 15 Whenthe Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning. [Citation.] (People v. Trevino (2001) 26 Cal.4th 237, 242.) It would also contravene Traylor. There, this Court concluded that the contrasting language between sections 1387(a) and 654 demonstrates the Legislature’s intent to provide distinct and narrower coverage under section 1387(a). (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6.)° Defendant Emmanuelalso cites section 1387(a)’s policies. He claims precluding the possession ofmethamphetamine charge would “serve”section 1387(a)’s policies of preventing harassment and delay. His argument proves too much. Barring every successive prosecution would “serve” to prevent harassmentand delay. Yet, in contrast to section 654, the Legislature narrowly limited section 1387(a) to successive prosecutions “for the same offense.” (Pen. Code, § 1387, subd. (a).) This demonstrates the flaw in defendants’ policy-driven position. It is error to use the policies to define when offenses are the “same offense” under section 1387(a).° > Wediscuss the differences between sections 1387(a) and 654 more fully in Section C, below. © We discuss the flaws in defendants’ policy-driven claims morefully in Section C, below. 16 Defendants’ “fact-based”test is at odds with the result in Traylor. The lesser-included misdemeanor vehicular manslaughter charge wasa “related” charge “arising out of the same set of circumstances”as the dismissed felony vehicular manslaughter charge. Both charges were based upon the sameset offacts, i.e., the defendant’s collision with the nine-year-old motorcyclerider. (People v. Traylor, supra, 46 Cal.4th 1205, 1209-1211.) The only issue was whetherthe evidence showed gross negligenceor ordinary negligence. (/d. at pp. 1209-1212.) Thus under defendants’ “fact-based”test, the successive charges in Traylor would be the “sameoffense.” The limiting language in 7raylor does not help defendants in our case. In a footnote, the Court stated its holding waslimited to the situation where a magistrate dismisses a felony charge indicating the evidence supportsa lesser included misdemeanorand the People file that lesser included misdemeanor charge. (People v. Traylor, supra, 46 Cal.4th 1205, 1220, fn. 10.) The Court further indicated it was not addressing how section 1387(a) would apply where the prosecution filed a “lesser-included offense” in contravention of a magistrate’s prior determination or when dismissed felonies are followed by 7 The same would betrue under defendant Gerardo’s “fact-based”test because the successive charges in Traylor involved the samevictim, intent and action by the defendant. 17 lesser-included felonies or a dismissed misdemeanor is followed by a lesser-included misdemeanor. (People v. Traylor, supra, 46 Cal.4th 1205, 1220, fns. 9 and 10.) Noneofthe situations contemplated in Traylor is present in our case. Conspiracy to commit murder and attempted murder are neither greater nor lesser-included offenses ofthe other. They are separate anddistinct offenses. Moreover, nothing aboutthe new prosecution for conspiracy to commitmurder in our case was done in contravention of a magistrate’s prior determination. The only magistrate to hear the evidence presented in our case held both defendants to answer on both attempted murder charges and defendants waived preliminary hearing in the second case. In any event, nothing about the Court’s discussion in Traylor suggests the Court would abandon the “same elements” test under section 1387(a) - particularly in our case where the successive prosecutions do not involve lesser-included or greater offenses. On the contrary, as discussed above, the Court reaffirmed the “same elements” test and rejected the defendant’s argument that “section 1387(a) should apply to all charges arising from the same conduct or behavior of the defendant[.]” (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6, emphasis in original.) 18 Defendants’ “fact-based” test would convert section 1387(a) from the Legislature’s narrow scope to a broad prohibition that would preclude the filing of any charges following the requisite dismissals. There would be no uniformity, consistency or predictability. Whether offenses were the “same offense” would vary with the facts of each case, This is contrary to the Legislature’s choice ofclear, unambiguous languagelimiting section 1387(a) to successive prosecutions for the “same offense.” 3. Defendants’ Position Is Contrary To The Cases They Cite Noneofthe cases defendants cite supports their position. For example, defendants cite Dunn v. Superior Court (1984) 159 Cal-App.3d 1110. In that case, the court held two dismissals ofsimple kidnapping charges(section 207) barred filing a kidnapping for robbery charge (section 209). (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118-1119.) The court also held that prior dismissals of auto theft (Vehicle Code section 10851) and robbery (section 211) charges barred third filing charging robbery where the auto theft and robbery charges involved taking the same vehicle. (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118-1119.) 19 Defendantscite the court’s statementthat Although section 1387 bars charges of “the same offense”it is clear that this phrase does not simply mean that the district attorney is not permitted to charge violation ofthe samestatute. (Dunn vy. Superior Court, supra, 159 Cal.App.3d 1110, 1117-1118.) Neither this statement, nor the analysis in Dunn, however, supports defendants’ claim that conspiracy to commit murderis the “same offense” as attempted murder undersection 1387(a). First, as this Court noted in Burris and reiterated in Traylor, the Dunn court {A|ppl[ied a] same elements test to determine whether[a] new charge [was the] same offense as [a] previously dismissed one for purposesof[section] 1387.” (Burris, supra, 34 Cal.4th at p. 1017, fn. 3, 22 Cal.Rptr.3d 876, 103 P.3d 276.) (People v. Traylor, supra, 46 Cal.4th 1205, 1212, first modification added.) This undermines defendants’ proposed “fact-based”test. The Dunn court’s application of the “same elements”test in that case further undermines defendants’ position. The court noted that “[k]idnaping for the purpose of robbery cannot be committed without committing the lesser offense ofkidnaping.” (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118.) Thus, the court reasoned the 20 [P]rosecution for kidnaping for the purpose of committing robbery [was barred] on the theory that to charge the greater would bealso to charge the lesser an additional and prohibited third time. (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118.) The court made the same observation with respect to the auto theft and robbery charges. (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118.) Where the same vehicle forms the basis of the auto theft and the robbery charges, auto theft is considered a necessarily included offense of robbery. (/bid.) Thus, the greater robbery charge could not have been committed without committing the lesser included auto theft charge. (Ibid.)* Ourcase is different. Unlike the greater section 209 offense and the greater robbery offense in Dunn, which includedall of the elements of the previously dismissed charges, conspiracy to commit murder doesnot include ® Defendants suggest the Dunn court’s analysis of the auto theft and robbery charges did not depend upon whetherauto theft wasa lesser included offense of robbery. They are mistaken. The court in Dunn cited this Court’s holding in People v. Marshall (1957) 48 Cal.2d 394, 398, for that proposition. (People v. Dunn, supra, 159 Cal.App.3d 1110, 1118-1119.) Moreover, this Court understood Dunn’s decision to involve lesser-included dismissed offenses followed by the corresponding greater offenses, stating, As Dunn suggested, when one or more dismissed charges of a lesser offense are followed by a new chargeofthe same or a greater inclusive offense, the subsequent charge includesall “the same elements”as the earlier ones, and perhaps additional elements as well. (Dunn, supra, 159 Cal.App.3d 1110, 1118 [].) (People v. Traylor, supra, 46 Cal.4th 1205, 1218, original emphasis.) 21 all of the elements of attempted murder. Conspiracy to commit murder and attempted murderare separate and distinct offenses with different elements. Attempted murderis not a lesser included offense of conspiracy to commit murder. Defendants can conspire to commit murder without committing attempted murder. Rather than support defendants’ position, Dunn showsthe charges filed in ourcase are different and section 1387(a) does not apply.” The same is true with Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 - case cited in Dunn. In Wallace, the court considered whether the failure to timely prosecute a Vehicle Code section 23152, subdivision (a) charge bars a subsequent prosecution under Vehicle Code section 23152, subdivision (b). The court stated a “generalrule”distilled from cases that one action bars a subsequent action “whenthe essenceofthe offense chargedin the secondaction is the sameasthe essenceofthe offense [charged in the previousaction].” (Wallace v. Municipal Court, supra, 140 Cal.App.3d 100, 107.) * In Meza, the court distinguished Dunn on similar grounds,stating, Dunn is quite obviously different from the present case. One can drive under the influence of alcohol and commit bodily injury against another without committing a robbery or a violation of Vehicle Code section 10851. (People v. Meza, supra, 231 Cal.App.3d 362, 365.) 22 Defendants cite Wallace and argue the “essence”ofthe offenses in our case is the same because, defendants claim, they “involved the samevictims, the same specific intent, and the exact same actions/evidence ....” (Def. Gerardo’s brief at p. 12.) Their claim is contrary to Wallace. In Wallace, the court examinedthe statutory “elements”ofthe offenses, not the alleged facts, to determine whether they were the same offense. The court stated, Whenthe statutory scheme for the punishmentofviolations of Vehicle Code section 23152, subdivisions (a) and (b), is consideredit is clear that they do not charge essentially the same violation. (Wallace v. Municipal Court, supra, 140 Cal.App.3d 100, 107.) Moreover, as noted in Dunn,although the Wallace court did not define “essence,” the court concluded the “essence” ofthe two Vehicle Code offenses was different because “either offense could be committed without committing the other....””> (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1118, citing Wallace v. Municipal Court, supra, 140 Cal.App.3d 100, 109.) The sameis true in our case. Conspiracy to commit murder can be committed without committing attempted murder. Thus, the “essence”ofthe two offensesis different and, under Wallace, conspiracy to commit murderis not the “same offense”as attempted murder. 23 In any event, defendant Gerardo is wrong in his claim that the successive charges in our case require the exact same specific intent and actions. Conspiracy requires an agreement to commit the crime; attempted murder does not. Attempted murder requires a direct but ineffectual act toward accomplishing the intended killing. Conspiracy does not. Conspiracy . merely requires at least one overt act in furtherance ofthe conspiracy. It need not be a criminal act and it can be merely preparatory. The conspiracy to commit murder can be proved with actions that occurred before the evidence required to prove the attempted murders.’° Defendants also cite People v. Salcido (2008) 166 Cal.App.4th 1303. That case involved charges ofsection 4501 (assault by a prisoner with a deadly weapon or force likely to produce great bodily injury) and section 4501.5 (battery by a prisoner on a nonprisoner). According to the court’s statement '0 Although his “fact-based”test should be summarily rejected, we note defendant Gerardo is inconsistent in stating his test. Hefirst states his test applies where “the exact same facts and intent are required to prove” the successive charges. (Def. Gerardo’s brief at p. 7, emphasis added.) Elsewhere, he changes the test to when the charges “involve[] the same victims, the samespecific intent, and the exact same actions/evidence.” (Def. Gerardo’s brief at p. 12, emphasis added.) Finally, he states the test as when the charges are “based on the exact same conduct.” (Def. Gerardo’s briefat p. 20, emphasis added.) 24 in the procedural background, the section 4501.5 charge was filed and dismissed in the first and secondcases andthe section 4501 charge wasfiled and dismissed in the second case. (People v. Salcido, supra, 166 Cal.App.4th 1303, 1306-1307.) To avoid section 1387’s bar, the People added great bodily injury enhancements (section 12022.7) to the section 4501 and section 4501.5 chargesin the third case to come within section 1387.1’s third filing provision for violent felonies. (People v. Salcido, supra, 166 Cal.App.4th 1303, 1307-1308.) The court held section 1387.1 did not apply to the third filing even though the added enhancements made the charges violent felonies. (People v. Salcido, supra, 166 Cal.App.4th 1303, 1313.) The court basedits decision on section 1387.1’s plain language, but in dicta, indicated that if the People believed the defendant’s conduct was appropriate for a great bodily injury enhancement, the enhancement should have been includedin the prior two accusatory pleadings. (People v. Salcido, supra, 166 Cal.App.4th 1303, 1313-1314.) Defendants first argue Salcido is authority for a “waiver”rule under section 1387(a). According to defendants, the People “waive”the right to allege in a third filing any charges that arise from the facts knownto the People in the previousfilings. (Def. Gerardo’s brief at pp. 19-20.) Defendants misread Salcido. 25 Salcido considered a different issue under a different statute. The Salcido court confronted whatit called an issue of first impression; namely, [Whether section 1387.1 permits a third filing to charge a violent felony offense when only a nonviolent felony offense was charged in two accusatory pleadings previously dismissed,.... (People v. Salcido, supra, 166 Cal.App.4th 1303, 1312.) The court held section 1387.1’s plain language means“the violent felony offense for which charges may be refiled must be one of the charged offenses previously dismissed.” (/bid.) The People could not add a great bodily injury enhancementin the third filing simply to avoid section 1387’s two-dismissal rule. (/d. at p. 1314.) The circumstances in Salcido have nothing to do with our case. Our case does not involve adding an enhancementto convert previously dismissed felonies to “violent” felonies within section 1387.1’s third filing exception."! Moreover, defendants’ extrapolation from Salcido makes no sense. Under defendants’ rule, the People could neverfile any offense following the '! The Salcido court did not cite any case dealing with section 1387 in connection with its “waiver” comment. The court cited People v. Mancebo (2002) 27 Cal.4th 735, a case in which this Court considered the “narrow question” of whether the defendant’s gun use could support two section 12022.5 enhancements for sentencing purposes whenit had already been pled and proved to invoke One Strike sentencing. (People v. Salcido, supra, 166 Cal.App.4th 1303, 1314) 26 dismissal of two previous actions. Defendants would argue the People “waived” such filing by failing to allege the offense in the prior actions. Defendants’ position would create a new requirement undersection 1387(a) - that the new offense cannot be based upon facts previously knownto the prosecution. Defendants’ position would swallow the rule. It would bar filings such as the filing permitted by this Court in Traylor. Defendants misread Salcido. That case did not incorporate a “waiver”rule into section 1387(a). Defendants’ second claim based upon Salcido is also flawed. Defendant Emmanuelclaimsthat becausethe court dismissed the section 4501 charge, which is a different offense than the section 4501.5 charge, Salcido established a new rule that section 1387(a) applies even though the offenses are not the “same offense.” (Def. Emmanuel’s brief at p. 17.) Not so. As mentioned above, Salcido considered section 1387.1, not section 1387. The court did not consider the issue ofwhen two offenses are the “same offense” undersection 1387(a). Thus, Salcido is not authority on this issue. (See Jn re Marriage ofCornejo (1996) 13 Cal.4th 381, 388 [“‘axiomatic that cases are not authority for propositions not considered [therein].’ [Citation.] [Fn. omitted.]”’) 27 In any event, nothing in Salcido purports to interpret section 1387(a) contrary to its plain language. Rather, the court repeatedly affirmed that section 1387(a) only applies where the “same offense” has been twice dismissed. The court quoted section 1387(a) and thenstated it “operatesto bar any third or subsequent prosecution on the same charge ....” (People v. Salcido, supra, 166 Cal.App.4th 1303, 1309, quoting 5 Witkin & Epstein,Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 423, p. 600, citation omitted, emphasis added.) The court also quoted this Court’s statement in Burris that, under section 1387(a), “‘two previous dismissals of charges for the same offense will bar a new felony charge.’ (Burris, at p. 1019, [].)” (People v. Salcido, supra, 166 Cal.App.4th 1303, 1309, emphasis added.) Furthermore, regardless of the court’s recitation in the procedural history, the court dismissed the section 4501 charge under section 1387(a) because the court believed both the section 4501.5 offense and the section 4501 offense had been twice dismissed. In reciting the defendant’s argument, the court stated the defendant argued for dismissal “because neither of the offenses previously charged, which charges were twice dismissed, was a violent felony ....” (People v. Salcido, supra, 166 Cal.App.4th 1303, 1307, emphasis added.) Elsewhere, the court stated the People could not add the 28 great bodily injury enhancements “to thefe/onies originally charged in the two prior dismissed accusatory pleadings to maketheir thirdfiling a charge of a violent felony ....” (People v. Salcido, supra, 166 Cal.App.4th 1303, 1313, citation omitted, emphasis added.) The court concluded, Becausethe People charged Salcido twice with nonviolentfelony offenses arising out of his June 15, 2000, conduct and those charges were dismissed, section 1387’s two-dismissalrule bars further prosecution of him for that conduct. (Id. at p. 1314, emphasis added.) The court believed both the section 4501.5 and the section 4501 charges had been twice dismissedin the prior two cases. Salcido is not authority for defendants’ claim that section 1387(a) applies where the successive charges are not the “sameoffense.” Finally, defendant Emmanuelcites an Iowa case, State v. Abrahamson (Iowa 2008) 746 N.W.2d 270. That case does nothelp defendants. Defendant Emmanuel correctly notes the successive charges in Abrahamson were conspiracy to manufacture methamphetamine and manufacturing methamphetamine. Defendant Emmanuel neglects to note that, in contrast to our case, both the conspiracy and the manufacturing charges were alleged under the samestatutory offense - a violation of lowa Code section 124.401. (Ud. at pp. 275-276.) In Iowa, that code section “defines one offense, drug trafficking, and enumerates numerousalternative means of committingit,” 29 including conspiracy to manufacture a controlled substance and manufacturing a controlled substance. (State v. Abrahamson, supra, 746 N.W.2d 270, 276, fn. 6.) Thus, the court held “manufacturing and conspiracy [were] alternative means of committing a single offense under section 124.401(1). [Fn. omitted.]” (bid.) The Abrahamson court distinguished its prior decision in State v. Lies (Iowa 1997) 566 N.W.2d 507, where the defendant was first charged with burglary and then charged with conspiracy to commit the same burglary. (/d. at p. 508.) In contrast to Abrahamson, the subsequent indictment in Lies alleged conspiracy to commit burglary under Iowa’s separate, general conspiracy statute, not the same burglary statute alleged in the prior complaint. (Id. at p. 509.) The court held that “conspiracy to commit burglary is neither the same offense as the burglary for which defendant was arrested nor a lesser-included offense;....” (/bid.) Ourcaseis like Lies, not Abrahamson. Defendants are not charged with conspiracy to commit murder under the samestatute as the previous attempted murder offenses. They are charged under California’s general conspiracy statute - section 182. As with the conspiracy law in Iowa, conspiracy undersection 182 is a separate and distinct offense from any crime 30 that may be committed pursuant to the conspiracy.’* Defendants’citation to Abrahamson and Iowa law underminestheirposition and showsthe successive offenses in our case are not the “same offense” under section 1387(a). None of the cases defendants cite supports their position. None disregards section 1387(a)’s plain language. All of the cases examine the elements of the alleged crimes rather than the facts of the case to determine whether a subsequent offense is the “same offense” as a previous offense. 4, The Accusatory Pleading Test Has No Application Under Section 1387(a) Defendants argue the Court should substitute the established “elements” test with the “accusatory pleading” test to determine whether successive chargesare the “same offense” undersection 1387(a). Defendants’ suggestion is contrary to this Court’s decisions. In contrast to the elements test, the accusatory pleading test is a fact-based inquiry that examinesthefacts ofthe case alleged in the accusatory pleading. (People v. Reed(2006) 38 Cal.4th 1224, 1227-1228.) As mentioned '2 The Iowa conspiracy statute expressly provides that conspiracy is a separate and distinct offense. (State v. Abrahamson, supra, 746 N.W.2d 270, 276.) As discussed above, California cases reach the same conclusion. 31 above, in Traylor, this Court has already rejected a fact-based test under section 1387(a) because “the statutory languagebelies such anecessarily broad construction” of the phrase “same offense.” (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6.) Moreover,this Court has refused to expandthe accusatory pleadingtest to situations bearing no relevanceto its purpose. “The accusatory pleadingtest arose to ensure that defendants receive notice before they can be convicted of an uncharged crime.” (People v. Reed, supra, 38 Cal.4th 1224, 1229.) In Reed, the Court found the accusatory pleading test has no relevance in deciding whether a defendant may be convicted ofmultiple charged offenses. “[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns aboutnotice are irrelevant when both offenses are separately charged....” [Citation.] (Id. at pp. 1229-1230, second omissionin original; see also People v. Sanders (2012) 55 Cal.4th 731, 738-739 [rejecting the defendant’s request to consider the facts in the case and applying statutory elementstest].) In People v. Bailey (2012) 54 Cal.4th 740, the Court refused to apply the accusatory pleading test to determine whether one offense was a lesser-included offense of another for purposes of modifying a conviction under section 1181, subdivision 6. (/d. at pp. 751-752.) The Court reiterated that, 32 [T]he accusatory pleading test only applies in determining whether a defendant received notice of the charges against him in order to have a reasonable opportunity to prepare and present his defense. [Citations.] (People v. Bailey, supra, 54 Cal.4th 740, 751, emphasis in original.) Thus, 999[W]here “‘concerns about notice are irrelevant,’” ... the legal elementstest, rather than the accusatory pleadingtest, is used to determine whether an offense is necessarily included within another. [Citation.] (Ibid.) Because concerns about notice were not at issue in Bailey, “the accusatory pleading test [was] not applicable.” (/d. at p. 752.) The accusatory pleadingtest is similarly inapplicable in our case. There is no issue concerning notice of the charges. There is no issue concerning multiple punishment. Therefore, the accusatory pleadingtest has no relevance to determine whether successive charges are the “same offense” under 1387(a). Defendants’ reference to the accusatory pleadingtest is misguided and would apply the wrong standard.” '3 Defendants’ reference to the accusatory pleadingstest is misguided for additional reasons. It would encourage artful pleading by prosecutors to circumvent section 1387(a). In our case, for example, if the accusatory pleading merely alleged overt acts 1 and 2 for both counts, defendants would have no argument that the alleged facts supported an attempted murder offense. In addition, in contrast to the elements test, defendants’ accusatory pleading test would vary with the facts alleged in any given case and provide no predictability or uniformity in deciding whether successive offenses were the “same offense” under section 1387(a). 33 C. THE “SAME ELEMENTS” TEST ENCOMPASSES PENAL CODE SECTION 1387’S_ POLICIES AND LEGISLATIVE INTENT 1. The Legislature Made A Policy Choice Narrowly Limiting Section 1387 To Successive Prosecutions Charging The “Same Offense” “The predominant purposeof section 1387 is to establish some limit to a defendant’s period of potential criminal liability, thereby avoiding harassment and discouraging prosecutorial forum-shopping. [Citation.]” [Citation.] (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 740, first omission in original.) In deciding whereto set the limit, the Legislature balanced two competing interests. “[S]ociety, represented by the People, has a legitimate interest in the ‘fair prosecution of crimes properly alleged.’ [Citation.]” (People v. Orin (1975) 13 Cal.3d 937, 947.) Defendants havean interest in avoiding potential harassmentand delay that may result from repeated criminal prosecutions. For over 100 years, the Legislature drew the balance wholly in favor of society’s interest with respect to felonies. 34 [U]ntil 1975, the interest in prosecuting felonies was considered so much greater that, while a one-dismissal rule applied to misdemeanors, felony charges could be refiled ad infinitum. [Citations.] (Burris v. Superior Court, supra, 34 Cal.4th 1012, 1019.) In 1975, the Legislature implementedthe “two-dismissal”limit. (See Stats. 1975, ch. 1069, § 1, p. 2615.) Generally, “two previous dismissals of charges for the same offense will bar a new felony charge.” (Burris v. Superior Court, supra, 34 Cal.4th 1012, 1019, emphasis added.) The Legislature chose to draft section 1387(a) narrowly. The Legislature did notintend for section 1387(a) to barall offenses arising out of the samefacts or circumstances. (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6 [“the statutory language belies such a necessarily broad construction”’].) [S]ince its adoption in 1872, section 1387(a) applies only to repetitive charges “for the same offense”(italics added), and then describes such an “offense” in terms of whether“it” is a “felony” or a “misdemeanor.” (ibid., emphasis in original.) Such a correlation, this Court found, {I|mplies that, for purposes of section 1387(a), an “offense”is defined not by conduct, but by its particular definition as such in the Penal Code. Thus,... one crimeis the “same offense” as another when it involves the “identical criminal act” as represented by the criminal elements necessary for a conviction. [Citation.] (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6, emphasis in original.) 35 Asfurther support of the Legislature’s intent, this Court noted that {S]Jection 1387(a)’s use ofthe narrow phrase “the same offense” contrasts with the provisions of other statutes that provide broader protection against multiple prosecutions after the defendant has been convicted or acquitted of, or placed in jeopardy for, offenses arising from the same course ofcriminal conduct. [Citations.] (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6, emphasis in original.) For example, the Court observed section 654 provides that the “acquittal or conviction under one statute bars further prosecution for the ‘same act or omission’ under another[.]” (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6) Section 1023 provides that the “conviction, acquittal, or jeopardy underan accusatory pleadingbars further prosecution for‘the offense charged in such accusatory pleading,... orfor an offense necessarily included therein’ (italics added)[.]” (bid., quoting section 1023, emphasis and omission in original.) Finally, under Kellett v. Superior Court, supra, 63 Cal.2d 822, section “654 applies to all offenses arising from the ‘same act or course of conduct’[.]” (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6) Defendants’ “fact-based”test is contrary to the legislative intent. It would convert the meaning of “same offense” under section 1387(a) into the same meaning as “same act or omission” under section 654. This Court 36 concludedin Traylor, however, that the contrasting language betweensection 1387(a) and section 654 demonstrates the Legislature’s intent to provide distinct and narrower coverage under section 1387(a). (People v. Traylor, supra, 46 Cal.4th 1205, 1213, fn. 6.) The Legislature’s use ofdifferent language in sections 1387(a) and 654 reflects the Legislature’s policy distinction betweenfiling charges before the defendant has been acquitted or convicted and filing charges after that time. Generally, securing an acquittal or conviction demands greater resourcesto be spent by both sides, and the potential harassment and waste of resources caused by additional trials are more significant. Hence, the Legislature provides broader protection in section 654 than in section 1387(a). If the Legislature intended section 1387(a) to have broader coverage, it would have used broader language suchas the language usedin section 654. Whenthe Legislature wants to broaden the scope ofa statute, it knows how to do so. The Legislature’s changein the law relatingto the tolling ofthe statute of limitationsillustrates this point. Former section 802.5 provided 37 “*.. no time during which a criminal action is pendingis a part of any limitation of the time for recommencing that criminal action in the event of a prior dismissal of that action, subject to the provisions of Section 1387.” (Stats. 1981, ch. 1017, § 3, p. 3927.) (People v. Whitfield (1993) 19 Cal.App.4th 1652, 1659, fn. 8, quoting former § 802.5 (1982).) In 1984, the Legislature repealed section 802.5 and added section 803, subdivision (b), which read, No time during which prosecution ofthe same personfor the same conductis pendingin a court ofthisstate is a part of a limitation of time prescribed in this chapter. (Pen. Code, § 803, subd. (b), emphasis added.) In its commentto section 803, subdivision (b), the Law Revision Commission explained that former section 802.5’s limitation that “TPjermitted recommencing the same ‘criminal action’ [was] replaced by the broader standard of prosecution of the ‘same conduct,’ drawn from [the] Model Penal Code § 1.06(6)(b).” (People v. Whitfield, supra, 19 Cal.App.4th 1652, 1659, fn. 8.) The Commission further explained that “The former law that provided tolling only for a subsequent prosecution for the same offense was too narrow, since the dismissal may have been based upon a substantial variation between the previous allegations and the proof.” (Ibid., emphasis added.) 38 Althoughsection 1387(a) has been amended numeroustimessinceits inception in 1872, the Legislature has never changed the limiting phrase, “same offense.” Where the Legislature has madea policy choice, using as here particularly clear and unambiguouslanguage, [a court] may not second-guessits determination. [Citation.] (Joshua D. v. Superior Court, supra, 157 Cal.App.4th 549, 565.) Here, the Legislature made a policy choice narrowly limiting section 1387(a) to successive prosecutions charging the “same offense.” When the new case alleges a different offense, the Legislature determined section 1387(a) does not apply. The “same elements” test stays true to section 1387(a)’s plain language and furthers the legislative intent. 2. This Case Is Consistent With Section 1387(a)’s Policies And The Legislative Intent Defendants claim this Court must find that conspiracy to commit murder is the “same offense” as attempted murder to preserve section 1387(a)’s policies. They are mistaken. Asdiscussed in the previoussection, none ofsection 1387(a)’s policies is violated in this case. Section 1387(a) is operating how the Legislature envisioned it would. It precludes the People from refiling attempted murder 39 charges because those offenses have been twice dismissed. It does not preclude the conspiracy to commit murder charges becausethey are not the “same offense” as the attempted murder charges. While defendants cite section 1387(a)’s policies, they neglect to note that the policies assume the “offense” in the subsequent prosecution is the “same offense” as the dismissed prosecutions. Defendants’ own quotation from Traylor makesthis point: “*A primary purposeofsection 1387(a)is to protect a defendant against harassment, and the denial of speedy-trial rights, that result from the repeated dismissal and refiling of identical charges.”” (Def. Gerardo’s brief at p. 15, emphasis added, quoting People v. Traylor, supra, 46 Cal.4th 1205, 1209.) Nothing in section 1387(a)’s policies suggests the Legislature meant “same offense” to apply to all successive offenses. Defendants’ specific claim that applying section 1387(a)’s plain language will “completely eviscerate the speedytrial right protections intended in section 1387[]” suffers from the same flaw. (Def. Gerardo’s briefat p. 24.) Asthis Court stated in Burris, section 1387(a) “prevents the evasion ofspeedy trial rights through the repeated dismissal and refiling of the same charges. [Citations.]” (Burris v. Superior Court, supra, 34 Cal.4th 1012, 1018, emphasis added.) Conspiracy to commit murderis not “the same charge” as attempted murder. 40 In any event, defendants are not deprived of any speedy trial rights in this case. They can challenge the instant prosecution on both statutory and constitutional speedy trial grounds. (See, e.g., Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 38 [“the prosecution’s statutory right to refile cannot infringe upon petitioner’s constitutional right to a speedytrial[{]”]; see also People v. Sahagun (1979) 89 Cal.App.3d 1, 16-17 [determinations madein prior criminal proceedings may be considered in determining whether subsequentfiling demonstrates prosecutorial delay abridging accused’s right to speedytrial].) Defendants’ policy-driven arguments disregard section 1387(a)’s plain language and would convert section 1387(a) from the Legislature’s narrow scope to a broad prohibition that could preclude the filing of any charges following two dismissals. The defendant could simply cite the policies against delay and potential harassment and have the subsequent filing dismissed regardless of the charges. After all, dismissing the third case would always save the accused from the consequences of facing additional criminal proceedings. It would prevent potential harassment and delay from successive prosecutions. 2 66In fact, defendants’ “policy” arguments would apply equally to the prosecution in Jraylor. Defendants could argue that disallowing the 4] successive prosecution in that case would curtail prosecutorial harassment, reduce prosecutors’ ability to forum-shop and prevent the evasion of speedy trial rights. Defendants’ policy-driven claims do not help them. They do not mandate that conspiracy to commit murderis the “same offense” as attempted murder under section 1387(a). Nor do defendants’ allegations concerning the prosecutor’s motives. Defendants claim the prosecutor in Traylor had “clean hands” because the prosecutor followed the magistrate’s recommendation to file the lesser misdemeanoroffense. They contrast Dunn, claiming the prosecutor in that case filed the subsequent prosecution to “churn the charges to different permutations to evade section 1387[.]” (Def. Gerardo’s brief at p. 23.) They argue that this Court should find conspiracy to commit murderis the “same offense”as attempted murderin this case because the prosecutionis trying to evade section 1387(a)’s policies. Defendants’ claim is misplaced. As discussed above, the prosecution in this case is consistent with section 1387(a)’s plain language, legislative intent, and policies. There is no evidence ofany inappropriate prosecutorial attemptto harass, delay, or “forum shop.” The People did not file the conspiracy to commit murder charges in this case to forum shop after a magistrate found the evidence supporting the attempted murder charges insufficient. The only magistrate to hear the 42 evidencein this case held both defendants to answerfor both attempted murder charges. (C.T. p. 87.) There is no evidence the People are attempting to “churn” charges a magistrate found too weakto sustain. Noris there any evidence of attempts to harass or evade speedy trial rights. After moving to dismiss the first case, the People refiled the same charges on the same date - July 16, 2012. (C.T. p. 17.) The parties waived preliminary hearing and after several motions to continue the trial date by defendant Emmanuel, the People and defendant Gerardo again answered ready for trialon November7, 2012. (C.T. pp. 18-19.) Defendant Emmanuel moved to continue the trial date to November 19, 2012. (C.T. p. 19.) The People informed the court and defendants’ counselthat if the trial were continued to November19, 2012, the People would be unable to proceed becausethe lead investigator and a necessary witness in the case would be in Africa. (C.T.pp. 106-107.) The court continuedthe trial to November 19, 2012 and the People filed a motion to continue, but the case was eventually dismissed pursuantto section 1382 on December 10, 2012. (C.T. pp. 19-20.) The People filed the instant case on the same date, December 10, 2012. (C.T. pp. 109-112.) This procedural history shows a prosecutorial motive to protect society’s interest in punishing defendants for their criminal behavior. There is no evidence of prosecutorial malfeasancein this case. 43 In any event, defendants cite this Court’s comments regarding the magistrate’s determination and the prosecutor’s conduct in Traylor out of context. The tension in Traylor does not exist in this case. In Traylor, the Court considered how section 1387(a) applies where the subsequent offense is a lesser-included offense of the dismissed offense. This Court noted that accepting the result in Dunn - that a lesser-included offense is the “same offense”as a subsequentlyfiled greater offense under section 1387(a)-did not mandate the sameresult for the converse situation presented in 7raylor - a dismissed greater offense followed by a misdemeanorlesser-included offense. (People v. Traylor, supra, 46 Cal.4th 1205, 1218.) The Court observed that a prime objective of section 1387(a) [I]s to limit prosecutorial forum shopping on evidencethatprior magistrates have alreadyfoundinsufficient. That precise danger is presented if the People, after sustaining one or more dismissals of charge A for lack of evidence, can continue to refile the identical charge A, or go “up the ladder” to even more serious charges that include A, until they find a magistrate willing to hold the defendant to answer. ([bid., emphasis in original.) Unlike either Dunn or Traylor, our case does not involve lesser included and greater offenses. Conspiracy to commit murder and attempted murderare distinct and separate crimes. There is no danger the prosecution 44 will continue to file the identical charge or a charge that includes the identical charge. Defendants’ speculation concerningprosecutorial motives is misplaced for additional reasons. Whether successive offenses are the “same offense” under section 1387(a) should not vary depending upon the | particular procedural history or perceived motives in any given case. That would render the phrase “same offense” meaningless and reduce the inquiry undersection 1387(a) to a case-by-case review depending upon the circumstances. It would lead to inconsistent results. The same successive charges could be considered the “same offense” in one case, but not in the other. For example, consider if in Traylor the prosecutor had twicefiled the same felony gross vehicular manslaughter charge and, in both cases, magistrates held the defendant to answer, but both cases were eventually dismissed because the prosecution was unable to proceed due to witness unavailability. The prosecution then filed the same misdemeanor vehicular manslaughter charge filed in Traylor. Defendants would make the same arguments they make in ourcase. They would argue the prosecution was trying to evade section 1387(a)’s policies. They would argue the misdemeanor vehicular manslaughter charge wasthe “sameoffense” under section 1387(a) as the dismissed felony charge. 45 Under defendants’ position, the same misdemeanor vehicular manslaughter charge would be considered the “same offense” in one case but not the other simply because of the magistrate’s determination. Considerinsteadifthe magistrates reached different conclusions. The magistrate in the first case found the evidence only supported the misdemeanor vehicular manslaughter offense, but the magistrate in the second case found the evidence supported the felony vehicular manslaughter offense. Would defendants argue the subsequent misdemeanor vehicular manslaughter charge wasthe “same offense” under section 1387(a)? Similarly, consider the situation where both magistrates in successive cases hold a defendant to answer on a simple kidnapping charge, but both cases are dismissed because the prosecution is unable to proceed due to witness unavailability. The prosecutor then files aggravated kidnapping. Would the Court distinguish Dunn on the grounds that in Dunn the second magistrate did not hold the defendant to answer on the lesser-included kidnapping charge while in the hypothetical case both magistrates found sufficient evidence? 46 The court in Dunn did not base its decision on the fact that the second magistrate found insufficient evidenceofthe lesser offenses.'"* As this Court observed in Burris, the court in Dunn applied the “same elements” test to determine whether the successive charges were the “same offense” under section 1387(a). (Burris v. Superior Court, supra, 34 Cal.4th 1012, 1016, fn. 3, cited in People v. Traylor, supra, 46 Cal.4th 1205, 1212.) As this Court observed in Traylor, the court in Dunn determined a greater offense is the “same offense” under section 1387(a) as a dismissed lesser-included offense Gee because - regardlessofthe facts or procedural circumstances - “‘to charge the ‘greater would be also to charge the lesser an additional and prohibited third time.’ (Dunn, supra, 159 Cal.App.3d 1110, 1118 [], italics added.)” (People v. Traylor, supra, 46 Cal.4th 1205, 1217.)" '4 In this respect, in Dunn, the magistrate at the first preliminary hearing found sufficient evidence and held the defendant to answer on the lesser charges. (Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1114.) Thus, it was not apparent in Dunn that the prosecutor attempted to press forward even though the evidence wasinsufficient. '5 The converse situation in Traylor did not present the same problem under section 1387(a). Because the successive lesser-included offense does not includeall of the elements of the previously dismissed greater offense, to charge the lesser-included offense is not to charge the greater offense an additional and prohibited third time. In our case, to charge conspiracy to commit murderis not to charge attempted murderan additionaland prohibited third time. 47 A final situation involving the successive charges in our case further illustrates the wisdom ofusing the “same elements”test to determine when offenses are the “same offense” under section 1387(a). Consider if two magistrates refused to hold the defendants to answer on attempted murder charges in two successive cases but stated on the record that the evidence supported conspiracy to commit murder charges instead. The prosecutor then filed a new case charging conspiracy to commit murder. Would defendants concede the conspiracy to commit murder charges were notthe “same offense” as the attempted murder chargesin that case? These situations and many more that could ariseillustrate the flaw in defendants’ position. Whether successive charges are the “same offense” under section 1387(a) does not depend upon the particular procedural variations in a case. Instead, courts wisely examine the offenses and their respective elements. The successive charges in our case are separate and distinct offenses with different elements. They are not the “same offense” undersection 1387(a). 3. The Legislature’s Clear Language Governs Section 1387(a)’s pertinent language is clear. It applies only to successive prosecutions for the “same offense.” It reflects the Legislature’s policy decision balancing defendants’ interest in avoiding harassment and 48 delay from repeated prosecution and society’s interest in prosecuting defendants for their criminal behavior. Defendants complain about where the Legislature drew the line. They complain that section 1387(a) does not limit the numberoftimes prosecutors can file successive prosecutions in the samecasealleging different offenses. They want section 1387(a) to bar all successive prosecutionsarising out ofthe samefacts and circumstances. They want section 1387(a) to provide the same protection as section 654 even though section 654 uses substantially different language. Defendants complain to the wrong branch of government. In In re D.B., supra, 58 Cal.4th 941, this Court recently rejected a similar complaint. In that case, the Court considered language in Welfare and Institutions Code section 733, subdivision (c) that provided for a minor’s commitment to the Department of Corrections juvenile facility only if “the most recent offense alleged”in the petition and sustainedis a violent or serious offense. (/d. at p. 944, quoting Welf. & Inst. Code, § 733, subd. (c).) The lower court determined the plain language meant a juvenile commitmentis available only if the juvenile’s most recently committed offense is violent or serious. (dn re D.B., supra, 58 Cal.4th 941, 944.) The People claimed the plain language could produce absurd consequences as where a juvenile commits numerous violent offenses, but the most recent alleged offense is 49 nonviolent. (In re D.B., supra, 58 Cal.4th 941, 944.) That juvenile, although quite violent, would not receive a commitment to the Department of Corrections juvenile facility. ([bid.) This Court acknowledged some potential consequences from the statute’s plain language were “troubling.” (dn re D.B., supra, 58 Cal.4th 941, 948.) The Court found, however, that the language was clear and stated, “Whena law is unambiguous, we must conclude the Legislature meant what it said even if the outcomestrikes us as unwise or disagreeable.” (Jd. at p. 944.) The Court explained, To justify departing from literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them. [Citation.] (Id. at p. 948.) The Court observed that The Legislature’s primary purpose in enactingthestatute[in that case] was to reduce the numberofjuvenile offenders housed in - state facilities by shifting responsibility to the county level ““‘for all but the most serious youth offenders.’” [Citations.] Un re D.B., supra, 58 Cal.4th 941, 948.) The Court stated, Although reasonable minds may debate the wisdom of the chosen approach, decisions about how to limit [juvenile offender] commitments are the Legislature’s to make. (Ibid.) 50 The sameis true in our case. In clear language, the Legislature limited | section 1387(a) to successive prosecutionsfor the “same offense.” (People v. Traylor, supra, 46 Cal.4th 1205, 1212.) Although defendants complain about section 1387(a)’s narrow scope, decisions about how to limit when additional criminal offenses maybefiled are the Legislature’s to make. The Legislature could reasonably believetherisk that prosecutors will notjoin all charges arising from the samesetoffacts in one prosecutionis low. Section 954 greatly expands the scope ofpermissible joinder and prosecutors havelittle, if any, incentive to purposefully withhold charges. They have limited resourcesandtherisks to successful prosecution increase over time as memories fade and necessary witnesses or evidence maybelost. In addition, section 654 provides a strong disincentive against withholding charges. An acquittal or conviction bars the prosecution from filing additional charges arising out of the same act or course of conduct. (Pen. Code, § 654; Kellett v. Superior Court, supra, 63 Cal.2d 822, 827.) As this Court noted in Kellett, [T]o avoid these risks, it has always been necessary for prosecutors carefully to assess the seriousness of a defendant’s criminal conduct before determining what charges should be prosecuted against him. (Kellett v. Superior Court, supra, 63 Cal.2d 822, 828.) 51 Section 1385 provides a court with broad discretion to dismiss “in furtherance of justice” on its own motion or as a result of a defendant’s suggestion. (People v. Orin, supra, 13 Cal.3d 937, 945; People v. Konow (2004) 32 Cal.4th 995, 1022.) Under section 1385, the court considers the “{C]onstitutional rights of the defendant, and the interests of society represented by the People, in determining whetherthere should be a dismissal. [Citations.]” [Citations.] (People v. Orin, supra, 13 Cal.3d 937, 945, second omission and emphasis in original.) Section 1385 provides protection where defendants believe they are subjected to unwarranted harassment or delay by successive prosecutions alleging different offenses. Finally, as mentioned above, defendants retain their statutory and constitutional speedy-trial protection. To the extent defendants argue these protections are insufficient, their complaints are misplaced. “[The Court is] not free to rewrite the law simply becausea literal interpretation may produceresults ofarguable utility.” Un re D.B., supra, 53 Cal.4th 941, 948.) Rather, it is for the Legislature to amend the statute “ifthe language it has enactedis [] understood to create unintended consequences.” (/bid.) 52 Sincethe statute’s adoption in 1872, the Legislature has limited section 1387(a) to successive prosecutions charging the “same offense.” The Court of Appeal correctly determined that if section 1387(a)’s protection “is to be broadened,it is up to the Legislature.” CONCLUSION For the foregoing reasons, the People respectfully request this Court affirm the judgment of the Court of Appeal. Dated this 26th day of January, 2015. Respectfully submitted, TONY RACKAUCKAS, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BRIANF. FITZPATRICK DEPUTY DISTRICT ATTORNEY 53 CERTIFICATE OF WORD COUNT [California Rules of Court, Rule 8.520(c)| The text of the Consolidated Answer Brief on the Merits consists of 10,819 words as counted by the word-processing program used to generate this brief. Dated this 26th day of January, 2015. Respectfully submitted, TONY RACKAUCKAS, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BY: FB. FL BRIANF. FITZPAJPRICK DEPUTY DISTRICT ATTORNEY 54 PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) RE: PEOPLE vs. GERARDO JUAREZ,etal. NO.8219889 DCA NO. G049037 (LEAD) CONSOLIDATED WITH DCA CASE: NO. G049038 I am a citizen ofthe United States; I am over the age of eighteen years and not a party to the within entitled action; my business address is: Office ofthe District Attorney, County ofOrange, 401 Civic Center Drive West Santa Ana, California 92701. On, January 26 2015, I served the within CONSOLIDATED ANSWER BRIEF ON THE MERITSoninterested parties in said action by placing a true copy thereof enclosed in a sealed envelope, in the United States mail at Santa Ana, California, that same day, in the ordinary courseofbusiness, postage thereon fully prepaid, addressed as follows: ANTONYC. UFLAND ORANGE COUNTY SUPERIOR COURT ORANGE COUNTY ALTERNATIVE DEFENDER CENTRAL JUSTICE CENTER 600 WEST SANTA ANA BOULEVARD ATTN: HON. GREGG L. PRICKETT SUITE 600 700 CIVIC CENTER DR., WEST SANTA ANA,CA 92701 SANTA ANA, CA 92701 JOHN F. SCHUCK ATTORNEY AT LAW 885 NORTH SAN ANTONIO ROAD, SUITE A LOS ALTOS,CA 94022 DISTRICT COURT OF APPEAL FOURTH APPELLATEDISTRICT, DIV. 3 CLERK OF THE COURT 601 W. SANTA ANA BLVD. SANTA ANA, CA 92701 OFFICE OF THE STATE ATTORNEY GENERAL P.O. BOX 85266 SAN DIEGO, CA 92186-5266 I declare under penalty of perjury that the foregoingis true and correct. Executed on January 26, 2015, at Santa Ana, California. YeHe LISA GOMEZ c> ATTORNEYCLERK II
