PEOPLE v. JUAREZRespondent, Emmanuel Juarez, Petition for ReviewCal.August 11, 2014 $219889 SUPREME COURT FILED SUPREME COURT, STATE OF CALIFORNIA AUG 11 2014 Frank A. McGuire Clerk PEOPLE OF THE STATE OF CALIFORNIA, ) No: Deputy , ) Plaintiff/Appellant, ) ) RESPONDENT EMMANUEL Vv. ) JUAREZ’S PETITION ) FOR REVIEW GERARDO JUAREZ AND EMMANUEL ) JUAREZ, ) ) G049037-CPR-Juarez ) ) Defendants/Respondents. AFTER OPINION OF THE COURT OF APPEAL FOURTH APPELLATEDISTRICT, DIVISION THREE JUNE 30, 2014 CASE NO. G049037 (Consolidated with G049038) APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA ORANGE COUNTY SUPERIOR COURT CASE NO.12CF3528 THE HONORABLE GREGGL. PRICKETT, JUDGE LAW OFFICES OF JOHNF. SCHUCK John F. Schuck, #96111 885 N. San Antonio Road, SuiteA Los Altos, CA 94022 (650) 383-5325 Attorney for Respondent EMMANUEL JUAREZ By appointmentofthe Court of Appeal under the Appellate Defenders,Inc. independent case system JuarezPetitionForReview SUPREME COURT, STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No: ) Plaintiff/Appellant, ) ) RESPONDENT EMMANUEL V. ) JUAREZ’S PETITION ) FOR REVIEW GERARDO JUAREZ AND EMMANUEL ) JUAREZ, ) ) G049037-CPR-Juarez Defendants/Respondents. ) ) AFTER OPINION OF THE COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION THREE JUNE 30, 2014 CASE NO. G049037 (Consolidated with G049038) APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA ORANGE COUNTY SUPERIOR COURT CASE NO. 12CF3528 THE HONORABLE GREGGL. PRICKETT, JUDGE LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 885 N. San Antonio Road, Suite A Los Altos, CA 94022 (650) 383-5325 Attorney for Respondent EMMANUEL JUAREZ By appointmentofthe Court ofAppeal under the Appellate Defenders, Inc. independent case system JuarezPetitionForReview TABLE OF CONTENTS I. ISSUES PRESENTED FOR REVIEW ........... 000 cece eeeeececeeeeees 1 II. REASONS WHY REVIEW SHOULD BE GRANTED .................05. 1 Ml. STATEMENT OF THE CASE ..........0.0. 000s cece cece eee eenneennes 3 IV. STATEMENT OF THE FACTS .......... 00000. cece cece eee e eee eeeues 5 V. ARGUMENT.... 0...ccc eee ect e en nennnnennnas 6 PURSUANT TO PENAL CODE SECTION 1387, THE SUPERIOR COURT PROPERLY DISMISSED THE THIRD FILING OF CHARGES AGAINST RESPONDENT .........00.0. 00 ccc cece cece ee nneneeueuns 6 lL. Introduction 2.0... 0... cece ccc cece nee nntnanes 6 2. The lowercourt’s ruling dismissing the third action was correct .. . 7 3. Conclusion 0.2.0.2... 0. ccc cece cece eee eae eeas 18 VI. CONCLUSION ........0 0.0.00 c cc cee cence eee ennnn venus 18 JuarezPetitionForReview i TABLE OF AUTHORITIES CASES PAGE NO. Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 72 Cal. Rptr.3d 664 2.2.0... 00. ccc ene eee 7 Burris v. Superior Court (2005) 34 Cal.4th 1012, 22 Cal.Rptr.3d 876 ........ 00.2 cece eee 8, 16, 17 Chevron U.S.A., Inc. v. W.C_A.B. (1999) 19 Cal.4th 1182, 81 Cal.Rptr.2d 521 22...ccceens 16 Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 206 Cal.Rptr.242 ............... 7,9, 10, 12, 13, 16, 17 Fetterly v. Paskett (9Cir.1993) 997 F.2d 1295 0...eeeene e teen ene eee nnes 18 Hicks v. Oklahoma (1980) 447 US. 343, 100 S.Ct. 2227 2.cccteen eeennes 18 Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 91 Cal.Rptr.2d 350 2.0.0...eens 8 People v. Carpenter (1997) 15 Cal.4th 312, 63 Cal.Rptr.2d 1 2.0...2.eens 17 People v. Cossio (1977) 76 Cal. App.3d 369, 142 Cal.Rptr.781 0.0.0...eens 8 People v. Hernandez (2010) 181 Cal_App.4th 404, 105 Cal-_Rptr.3d 25 20...eeeee 14 People v. Salcido (2008) 166 Cal.App. 4th 1303, 83 Cal.Rptr.3d 561 ................. 00.0000. 8, 12, 13 People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 23 Cal.Rptr.2d 733.0...ceees 8 JuarezPetitionForReview li TABLE OF AUTHORITIES CASES PAGE NO. People v. Traylor (2009) 46 Cal.4th 1205, 96 Cal.Rptr.3d 277 ....00...0.. 0.0000 e eee 1-3, 9, 13-17 Wallace v. Muncipal Court (1983) 140 Cal.App.3d 100, 189 Cal.Rptr.886 2.200.000 cece cece cece eee. 9 STATUTES California Rules of Court, Rules 8.500 and 8.516 .....00... 00... 000c-ec- eee eee. 1 Penal Code section 32 2.2... cece cece cece cece cece cece. 10 Penal Code section 182 «2.00.0...ecece cece cece cece. 4 Penal Code sec.182, subd.(a) .. 0...ecece cee cee cece. 14 Penal Code sec.190, subd.(a) ..0 0...ccc cee ccc cece cece cece. 14 Penal Code section 207 «10.0.0. cece ccc ccc e cece cece cece. 9 Penal Code section 209 22...cece ccc e cece cece cece. 10 Penal Code section 211 2.6... 0.cece cee cece ccc eee cece. 10 Penal Code section 220 .. 0.0.0... cece cece cece cece cece cece cece. 9 Penal Code section 496 2.0...ccc ect e cece ccc eee cece. 10 Penal Code sec.664, subd.(a) .. 0... cece cece ccc ce cece cece. 14 Penal Code section 664/187, subdivision (A).eeecece ec e eee 3 Penal Code section 1387 2.0.0.0... cece cece ccc cece cece ee. 1, 4, 6, 12, 14, 16 Penal Codesection 1387, subdivision (a) ooeee cece eee. 7,15 JuarezPetitionForReview ili TABLE OF AUTHORITIES STATUTES PAGE NO. Penal Code sec.3046, subd.(a)(1) .. 0. ccc ec cece eee eecceneeeeescees 14 Penal Code section 4501 1.0... ccc ccc cece ence eee enctneeenees 12 Penal Code section 4501.5 2... ccc cece cee eee eect cenecebneenes 12 Penal Code section 12022.7 1... 2...c cece cece ete eeeeevcceeeevnes 12 United States Constitution, Fifth Amendment ........... 0.000000 cc eeeccccee ee. 18 United States Constitution, Fourteenth Amendment ............................ 18 Vehicle Code section 10851 2... ccc ccc cece nt e eee eceeeeneeeeey 9 OTHER C.E.B., Calif. Crim. Law, Proc. and Prac. (2013) S€C.25.47, p.750 2.ccc ccc ccc ccc cece nee n enn e bees enbbbnnes 16 JuarezPetitionForReview iv PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE OF CALIFORNIA AND ASSOCIATE JUSTICES OF THE SUPREME COURT: Appellant Emmanuel Juarez, pursuant to Rules 8.500 and 8.516 of the California Rules of Court, petitions for review of the Opinion of the Court ofAppeal, Fourth Appellate District, Division Three filed June 30, 2014. (Exhibit A, attached.) I. ISSUES PRESENTED FOR REVIEW 1. Under Penal Code section 1387, based on the sameset ofunderlying facts, may the prosecution, after two dismissals, continue to file charges against a defendant an unlimited number oftimes, as long as the subsequentfilings are not for the same, exact statutory offense? 2. Should the term “same offense”as used in Penal Codesection 1387be given a natrow interpretation or a broad interpretation? Il. REASONS WHY REVIEW SHOULD BE GRANTED On twooccasions, the Peoplefiled attempted murder charges against respondent. On two occasionsthose cases were properly terminated. Penal Code section 1387 provides that two terminations such as occurred here constitutes a bar to any other prosecution for the “same offense.” Thus, the Superior Court in this matter properly dismissed the third case filed against respondent, a charge of conspiracy to commit murder, which wasbased on the same exact conduct and incident as thefirst two cases. On appeal, relying on this Court’s decision in People v. Traylor (2009) 46 Cal.4th JuarezEPetitionForReview 1 1205, 96 Cal.Rptr.3d 277, which gave the term “same offense” a narrow interpretation, the prosecution contendedthat it can suffer repeated dismissals yetstill refile against a defendant an unlimited numberoftimes, as long as the new chargeis not the same statutory offense pled in a twice-dismissed case. Respondent, on the other hand, urged the Court of Appeal to apply a broad definition of “same offense,” under which “...if the essence of the offense charged in the later filing is the sameas the essence ofthe offense charged in the earlier filing, the latter filing is barred.” (Op., p.7.) Under the compunction of Traylor - “our handsare tied” (Opinion, p.10) -- the Court ofAppeal reluctantly agreed with the prosecution’s argument and applied a narrow interpretation of “same offense.” But, the Court of Appeal was not happy with its decision. It stated that the language of Penal Code section 1387 “leaves much to be desired” (Op., p.4) and that “permitting a refiling here would violate the policies supporting section 1387.” (Op., p.6; italics original.) The Court of Appeal stated that, in the instant case: The policy goals of section 1387, on the other hand, unlike the facts of Traylor, militate in favor of application of section 1387....The refilings here were simply the result of the People failing to timely prepare to move forward. Thus they directly implicate defendant’s right to a speedytrial. And while there is no evidence of intentional harassment here, the trial court’s forceful questioning of the prosecutorraises legitimate concernsaboutthe possibility of repeated filings if we only look at the elements of the crime. (Op. 6-7.) Nevertheless, the Court of Appeal stated that it was “bound by”this Court’s JuarezEPetitionForReview 2 decision in Traylor. (Op., p.7.) And: Werecognize the result we reach is counterintuitive, and generally not in keeping with the policies section 1387 is supposed to represent. However, our hands are tied. The muddled language of section 1387 has not stood the test of time, and our high court’s struggle to interpret that language has resulted in a law with narrowprotection. If that protection is to be broadened, it is up to the Legislature. (Op., p.10.) But, the narrow interpretation given to the statute by the decision in Traylor was this Court’s interpretation. Thus, this Court, and not necessarily the Legislature, can change this interpretation. Therefore, review is required to reconsider Traylor in light of the Court of Appeal’s legitimate concerns and to determine whether the term “same offense” used in section 1387 should be given a broad interpretation, more in keeping with the salutary policies underlying the statute. IW. STATEMENT OF THE CASE On November 21, 2011, in case no. 11NF1767, an information wasfiled against Emmanuel Juarez and his brother, co-respondent Gerardo Juarez, charging them with, inter alia, violations of Penal Code section 664/187, subdivision (a) attempted murder (counts 1, 2). (ICT 90-92.)' All charges arose outof a single incidentallegedly occurring on June 3, 2011. On July 16, 2012, the People dismissed the case. (ICT 15; 2CT 261.) ' “CT”refers to the Clerk’s Transcript in case no. G049038. “RT”refers to the Reporter’s Transcript in case no. G049038. JuarezEPetitionForReview 3 On July 16, 2012, in case no. 12NF0057, the People filed a felony complaint against respondents once again charging them with, inter alia, attempted murder. These charges arose out of the same alleged June 3, 2011 incident that formedthe basis of the information in case no. 11NF1767. (1CT 94-98.) An information alleging the same attempted murders wasfiled on July 30, 2012. (1CT 99-102.) On December10, 2012, this case was dismissed because the prosecution wasnot prepared. (1CT 104-103; 2CT 133.) On December 10, 2012, based on the same June 3, 2011 incident that formed the basis of the two previously dismissed informations, the prosecution for the third time filed charges against respondents (case no. 12CF3528). However, in an attempt to get around the two dismissal rule of Penal Code section 1387, the prosecution charged respondents with conspiracy to commit murder, a violation of Penal Code section 182. (1CT 109-112; 2CT 250-253.) On December 13, 2012, respondentfiled a motion to dismiss case no. 12CF3528 pursuant to Penal Code section 1387. (1CT 14-112.) Co-respondent Gerardo joined. (ICT 113-114.) The prosecution filed opposition (2CT 260-264) and respondent filed areply. (ICT 115-121.) On January 10, 2013, after a hearing on January 4, 2013 (2CT 274-298; RT 1-22), the motion was denied. (2CT 300.) On February 7, 2013, respondent filed a petition for writ of mandate in the superior court seeking review ofthe denial of the section 1387 dismissal motion. (2CT 122-306.) On March 25, 2013, the prosecution filed an informal response. (2CT 307-311.) On JuarezEPetitionForReview 4 April 3, 2013, respondentfiled a reply. (2CT 312-315.) On June 6, 2013, the prosecution filed a return to the petition. (2CT 316-333.) On July 1, 2013, respondentfiled a traverse. (2CT 334-348.) On July 19, 2013, a hearing was held onthat petition. (2CT 304-305; RT 23-33.) On July 25, 2013, the petition was granted and case no. 12CF3538 was dismissed. (2CT 305-306; RT 34-36.) On September 19, 2013, the prosecution timely filed a notice of appeal. (2CT 349- 350.) On June 30, 2014, the Court of Appeal reversed the judgment. (Ex. A.) IV. STATEMENT OF THE FACTS’ On June 3, 2011, at around 5:00 p.m., John Doe wasdriving a Toyota Camry in an alley behind their apartment complex. Jane Doe wasin the front passenger seat. As they drove, their vehicle passed a Jeep Grand Cherokee. John Doe and respondent,the driver of the Jeep, stared at one another. Doe stopped andgot out of his car. Respondentexited the Jeep. The two men wentto the rear of the Toyota and had a brief conversation. Doe walked backto his car. As he wasgetting in, he said that he “did not mean to disrespect the other subject’s son.” Doe drove away. (2CT 181-184, 190, 193-194.) John Doe and Jane Doereturned to their apartment and parkedin the alley. At about 10:45 p.m., they exited the complex and walked into the alley where they saw * The statementoffacts is based on the preliminary examination testimony of two police officers. It is not based on the testimony of actual percipient witnesses. JuarezEPetitionForReview 5 respondent and Gerardo Juarez. Respondent supposedly punched John Doeinthe face. When Doesaid, “let’s throw down,” respondent gave a black plastic bag to Gerardo and the two menstarted fighting. Jane Doe thought there was a gun in the bag. Gerardo, who looked uncomfortable while holding the bag, said to respondent, “you’d better fucking get him.” (2CT 185-186, 190-191, 195-196.) Jane Doesaid that the two should not be fighting. Gerardo agreed. He took a gun out ofthe bag and handedit to respondent. Respondent purportedly shouted, “Long Beach Psychos”or “Long Beach Cyclones” and shot John Doe. (2CT 187, 196-197, 215.) Jane Doe ran westbound throughthe alley to the front gate, which was locked. Doe saw the Jeep approaching. Gerardo was walking alongside the Jeep. He said, “Open the gate, bitch.” Respondent exited the Jeep and opened the gate. Jane Doe asked Gerardo not to shoot her. Gerardo said, “Fuck you, bitch,” and shot her in the upper thigh. Jane Doe ran. (2RT 187-189, 197-199, 215.) Vv. ARGUMENT PURSUANT TO PENAL CODE SECTION 1387, THE SUPERIOR COURT PROPERLY DISMISSED THE THIRD FILING OF CHARGES AGAINST RESPONDENT. 1. Introduction Penal Code section 1387 provides that a second termination of an action bars a third prosecution for the same offense. “Section 1387 is generally intendedto protect JuarezEPetitionForReview 6 against successive dismissals and refilings of accusatory pleadings....[S]Jection 1387 ‘prevents the evasion of speedytrial rights through the repeated dismissal andrefiling of the same charges.’” (Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 225, 72 Cal. Rptr.3d 664, 675.) “The purpose of section 1387 is to prevent the prosecution from harassing defendants with successive prosecutions.” (Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1119, 206 Cal-Rptr.242, 248.)? Here, the prosecution soughtto circumvent and evadethese salutary purposesby filing charges a third time against respondent. The superior court, however, properly thwarted the prosecution’s attempted end run aroundsection 1387 by dismissing the third action, case no. 12CF3528. This ruling wascorrect in law andin basic fairness. It promoted the policy underlying section 1387. Nevertheless, being bound by this Court’s decision in People v. Traylor, supra, 46 Cal.4th 1205, 96 Cal.Rptr.3d 277, the Court of Appeal grudgingly reversed thetrial court’s ruling. Review is therefore required to enable this Court to reconsider the decision in Traylor. 2. The lower court’s ruling dismissing the third action was correct. Penal Code section 1387, subdivision(a) states, in pertinent part, “An order dismissing an action pursuantto this chapter...is a bar to any other prosecution for the sameoffenseif it is a felony...and the action has been previously terminated...”* Section * The parties agreed that there were two terminations falling within the ambit of section 1387. JuarezEPetitionForReview 7 1387 “...exist[s] to protect a defendant’s right to a speedytrial and must be construed to serve that overriding purpose.” (Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 28, 91 Cal.Rptr.2d 350, 352.) Appellant argued that, because attempted murder and conspiracy to commit 299murderare “not the ‘same offense,’” the third case filed against respondent should not have been dismissed. (AOB 2-6.) Implicit in appellant’s argumentis the claim that the prosecution can refile charges against a defendant innumerable times after two dismissals as long as the samestatutory offense is not charged. However,there is no authority for such a claim. And, such “ad infinitum”filing is prohibited by section 1387. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019, 22 Cal.Rptr.3d 876, 881 [Recognizing that felony charges cannot“be refiled ad infinitum.”]; accord, People v. Salcido (2008) 166 Cal.App. 4th 1303, 1309, 83 Cal.Rptr.3d 561,565.) Further, appellant’s novel theory of unlimited refiling defeats and frustrates the “purpose” of section 1387 which “...is to prevent successive attempts to prosecute a defendant.” (People v. Cossio (1977) 76 Cal. App.3d 369, 372, 142 Cal.Rptr.781, 783; accord, People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744, 23 Cal.Rptr.2d 733, 736 [“The basic purposeofthis section [1387] is to limit improper successive prosecutions which harass a defendant.”’}) Thus, contrary to appellant’s implicit claim, there is a limit to the numberofpermissible refilings, 1.e., two, as provided for in section 1387. Here,it is undisputedthat the incident described in the statementof facts (supra) JuarezEPetitionForReview 8 gaverise to the chargesin all three cases. The fundamental basis or essenceofall three cases, whether charged as attempted murder or conspiracy to commit murder, is the claim that respondentstried to murder John Doe and Jane Doe. Neither attempted murder nor conspiracy to commit murder could have been committed without engaging in the conductallegedin the third filing. In such situation, the filing of chargesa third timeis barred by section 1387. As stated in Wallace v. Muncipal Court (1983) 140 Cal.App.3d 100, 107, 189 Cal.Rptr.886, 891, “The general rule...is that when the essence of the offense charged in a [third] action is the sameas the essenceofthe offense in a previously dismissedaction the [third] action will be barred.”” This “essence”analysis was favorably cited in Dunn v. Superior Court, supra, 159 Cal.App.3d at 1118, 206 Cal.Rptr. at 247 and People v. Traylor, supra, 46 Cal.4th at 1216-1217, 96 Cal.Rptr .3d at 286.) Here, the essence of the attempted murder and conspiracy to commit murder chargesis the same -- respondents’ supposedeffort or undertaking to murder the Does. Thus, under the above authorities, the third prosecution is barred by section 1387. In Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 206 Cal.Rptr.242, the prosecution first charged the defendant with violations of Penal Codesection 207, kidnapping, Penal Code section 220, assault with intent to commit rape, and Vehicle Code section 10851, theft of an automobile. This information was dismissed on the day ° Although Wallace did not directly involve Penal Code section 1387,it discussed the statute. (140 Cal.App.3d at 106-107, 189 Cal.Rptr. at 891.) JuarezEPetitionForReview 9 set fortrial. The prosecution in Dunnfiled a second complaint charging appellant with violation of Penal Code section 209, kidnapping for robbery, Penal Code section 211, robbery, Penal Code section 496, possession of stolen property, and Penal Codesection 32, accessory to kidnapping, robbery, and autotheft. At the preliminary examination,all charges except accessory to auto theft were dismissed. This constituted the second termination of the case. The prosecutor, however, includedall charges a third time in the information. The defendantfiled a Penal Code section 1387 dismissal motion asto the kidnapping, robbery, and receiving counts. The motion was denied. The Court of Appeal reversed, holding that the kidnapping and robbery charges must be dismissed because they were ofthe essence of the previously dismissed charges: Section 1387 of the Penal Codeis a bar to prosecution of an action which has been twice terminated whetherat the request of the prosecution or by the dismissal of a magistrate... a ok 2 Weturn now to the question ofwhat “offenses” within the meaning of section 1387 were twice terminated. Although section 1387 bars charges of “the same offense,” it is clear that this phrase does not simply meanthatthe district attorney is not permitted to charge violation of the same statute. The attorney general concedes as muchby taking the position that the only offense twice terminated within the meaning of section 1387 is kidnapping althoughthis “offense” had been charged underboth sections 207 and 209 of the Penal Code. The attorney general, however, does not agree with petitioner that the charge of robbery is barred becauseofthe prior terminationsofauto theft and robbery involving the same vehicle.... JuarezEPetitionForReview 10 In seeking a meaning ofthe term “the same offense”in section 1387, attention has been directed by petitioner to the case of Wallace v. Municipal Court [supra]....The court likenedthis bar [of section 853.6] to the bar of section 1387 and, after reviewing several cases, stated: “The general rule which can bedistilled from these examplesis that when the essence ofthe offense charged in a secondaction is the same as the essence ofthe offense in a previously dismissed action the second action will be barred.” The court concludedthat the essence ofthe two offenses before it was not the same. Althoughthe court did not go on to provide a definition of “essence,” it pointed out that either offense could be committed without committing the other and held that “[{t]hus the essence ofthe two offenses is different...” This cannotbe said of the offenses ofkidnapping and kidnapping for the purpose ofrobbery. Kidnapping for the purpose of robbery cannot be committed without committing the lesser offense ofkidnapping. Twodismissals of kidnapping should bar a prosecution for kidnapping for the purpose of committing robbery on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time. So too with the offenses of auto theft and robbery. Although every robbery does not include an auto theft, the concept of necessarily included offenses permits reference to the facts in the accusatory pleading. (People v. Marshall (1957) 48 Cal.2d 394, 398, 309 P.2d 456.) Thus, in Marshall auto theft was held to be a necessarily included offense in robbery where the property taken in the robbery wasalleged in the information to be the automobile involved in the auto theft. Here, the essence of the auto theft and robbery is the same since the robbery wasspecifically alleged to be the taking of the same automobile. 38 ok The purposeof section 1387 is to prevent the prosecution from harassing defendants with successive prosecutions...and, in part, to pressure the prosecutionto bring the caseto trial within the time limits of section 1382.... JuarezEPetitionForReview 11 Let a peremptory writ of mandate issue directing respondent court to dismiss counts chargingpetitioner with kidnapping and robbery. (159 Cal.App.3d at 1114, 1118- 1119, 206 Cal.Rptr. at 244, 247-248.) As Dunn demonstrates vis-a-vis the robbery and auto theft charges, the charges do not have to be for the samestatutory offense before section 1387 applies. The term “‘same offense’...does not simply mean...[a] violation of the samestatute.” (id.) Appellant argued that, merely becausethe charge in the third complaint wasnot the same statutory offense, the refiling was proper. The argumentis refuted in Dunn, supra, and in People v. Salcido, supra, 166 Cal.App.466 1303, 83 Cal.Rptr.3d 561. In Salcido,the first and second charging documents charged the defendantwith a violation ofPenal Codesection 4501.5, battery by a prisoner on a nonconfined person. These two cases were dismissed. A third complaint, based on the same conduct asthe previous two cases, charged the defendant with violations of Penal Code section 4501.5 and Penal Codesection 4501, assault by a prisoner with a deadly weapon or by meansof force likely to cause great bodily injury. The prosecution subsequently alleged a Penal Codesection 12022.7, great bodily injury enhancement. The defendant’s section 1387 dismissal motion was denied. The Court of Appeal reversed and ordered the case dismissed with prejudice, even though section 4501 wasnotthe samestatutory offense as section 4501.5. The Court stated, “...the section 1387 two-dismissal rule barred the People from filing a third complaint against Salcido based on the June 15, 2000 incident.” (166 Cal.App.4th at 1312, 83 Cal.Rptr.3d at 567.) Regardingthe great bodily injury enhancement, the JuarezEPetitionForReview 12 Court stated: The People cannot now add that allegation in a third filing of an accusatory pleading to avoid the two-dismissal rule. [Citation.] Because the People charged Salcido twice with nonviolent felony offenses arising out of his June 15, 2000, conduct and those charges were dismissed, section 1387's two-dismissal rule bars further prosecution of him for that conduct.... (166 Cal.App.4th at 1314, 83 Cal.Rptr.3d at 569.) Thus, under Salcido, the two-dismissal rule applies even where the third complaint does not allege the same statutory offense. Appellant’s entire argument is based on People v. Traylor, supra, 46 Cal.4th 1205, 96 Cal.Rptr.3d 277.° While someofthe languagein Traylor may,atfirst glance, appear to support appellant’s contention, the case must bereadin light of the disparate facts of that case and the extremely narrow issue before the Court, an issue which is not before this Court in the instant case. As this Court stated in limiting its holding: Wetherefore hold that when the People initially file a felony complaint, which is then dismissed by a magistrate on groundsthere is sufficient evidence only to support a lesser included misdemeanoroffense, the subsequentfiling of a second complaint containing such a reduced misdemeanor charge, comprising fewerthan all the elements of the previously dismissed offense, is not barred by section 1387(a). Here, the dismissing magistrate specifically indicated his belief that while the evidence of felony vehicular manslaughter with gross negligence wasinsufficient, the evidence would support a different and lesser charge of ° In the lower courts, appellant attemptedto distinguish Dunn andothercasesthat support respondent’s position. (2CT 260-263, 307-310, 327-330.) Appellant did not address Dunnor these other authorities in the opening brief. JuarezEPetitionForReview 13 misdemeanor manslaughter that did not require proofof a grossly negligent act or omission. Underthose circumstances, the People properly could, followingthefirst felony dismissal, file a second complaintalleging the lesser included misdemeanor. FN10 FN10 Asthe reader will notice, we have carefully limited our holding to the situation in which aninitialfelony charge, having been dismissed by a magistrate on grounds that the evidence supports only alesser included misdemeanor, is followedby the filing of a second complaint charging that misdemeanor offense. We donot here confront, and expressly do not decide, how section 1387(a) should apply when dismissed felony charges are followed by one or more new complaints charging lesser includedfelonies, or when a dismissed misdemeanorchargeis followed by a new complaint charging a lesser included misdemeanor. (46 Cal.4th at 1219-1220, 96 Cal.Rptr.3d at 288; footnote 9 omitted.)’ Thus, Traylor is not authority for the proposition argued for by appellant,i.e., that a more serious felony, conspiracy to commit murder, can be chargedin a third prosecution based on the same conduct underlying two previously dismissed felony propositions.® Further, the one-timerefiling in Traylor “actually promote[d]”and did “not abuse” the salutary purposes of section 1387. (Traylor, supra, 46 Cal.4th at 1209, 96 Cal.Rptr.3d ” In discussing footnote 10 of Traylor, the Court in People v. Hernandez (2010) 181 Cal-App.4th 404, 410,fnn.14, 105 Cal.Rptr.3d 25, 29, fn.14 recognized that “...the court’s holding is narrow...” * The punishment for conspiracy to commit murder “...shall be that prescribed for murderin the first degree.” (Penal Code sec.182, subd.(a).) The punishmentforfirst degree murder is 25 yearsto life. (Penal Code sec.190, subd.(a).) Attempted murderis punishableby “life with the possibility of parole.” (Penal Code sec.664, subd.(a).) A person serving a life sentenceis eligible for parole after serving seven years. (Penal Code sec.3046, subd.(a)(1).) Thus, conspiracy to commit murder is the more serious offense. JuarezEPetitionForReview 14 at 435-436.) The refiling of a misdemeanor charge in Traylor “represent[ed] an ameliorative effort to charge a different offense that conformsto the actual evidence.” (46 Cal.4th at 1214-1215, 96 Cal.Rptr.3d at 284.) Here, the prosecution’s third refiling is not ameliorative of anything. By stark contrast to Traylor, it constitutes an abusive attempt to evade the protections of section 1387. Traylor does not stand for the proposition that the prosecution can repeatedly refile different charges after suffering successive dismissals for which the prosecution was responsible. In Traylor, the prosecution did nothing wrong. Here, on two occasions, the prosecution wasnot prepared. Citing Traylor, appellant claimed offenses are the “same offense” for purposes of section 1387 when they have the same elements. (AOB 3.) But, this Court did notstate that such an analysis was applicable where two felony informations have been dismissed and third has been filed based on the same underlying acts. Traylor involved the dismissal of a felony complaint based on insufficient evidence, after which a misdemeanorcharge wasfiled which lacked an element necessary for the felony charge. The Traylor Court stated that “[u]nder these circumstances,” the felony and misdemeanor were not the same offense. (46 Cal.4th at 1209, 96 Cal-Rptr. at 280.) These circumstancesare not present in the instant case. Although Traylor stated that section 1387, subdivision (a) “applies only to successive prosecutions ‘for the same offense’” (46 Cal.4th at 1212, 96 Cal.Rptr.3d at JuarezEPetitionForReview 15 282), such statement mustbe readin light of the different facts and narrow and expressly limited issue before the Court in that case. (Chevron U.S.A., Inc. v. W.C.A.B. (1999) 19 Cal.4th 1182, 1195, 81 Cal.Rptr.2d 521, 528 [“It is axiomatic that languagein a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.”]) In Traylor, there had been only one dismissal of a felony charge. The prosecution refiled a misdemeanorcharge. The dismissal was not due to anyfailings of the prosecution. And the prosecution’s refiling in that case “actually promote[d]” the purpose of section 1387"...to protect a defendant against harassment, and the denial of speedytrial rights that result from the repeated dismissal and refiling of identical charges.” (46 Cal.4th at 1209, 96 Cal.Rptr.3d at 280.) Such cannotbe said ofthe third refiling in the instant case. Further, the Traylor Court (46 Cal.4th at 1216-1217, 96 Cal.Rptr.3d at 286) did not reject the “essence of the offense”test of section 1387. (Dunn, supra, 159 Cal.App.3dat 1118, 206 Cal.Rptr. at 242 [‘‘...when the essence of the offense charged in a second action is the sameas the essence ofthe offense in a previously dismissed action the second action will be barred’’’]; and see C.E.B., Calif. Crim. Law, Proc. and Prac. (2013) sec.25.47, p.750 [Charge maynotbe “...filed that is of the same essenceas the twice- dismissed charges,” citing Dunn.]) Nor did the Traylor Court reject the statement in Burris, supra, “...that successive prosecutions are ‘for the same offense,’ and are thus governed by section 1387, where ‘the identical criminalact...underlies’ each of the JuarezEPetitionForReview 16 prosecutions.” (Traylor, 46 Cal.4th at 1212, 96 Cal.Rptr.3d at 282.) Rather, the Traylor Court considered and applied those logical, common sense concepts in analyzing the “same offense” issue. If the Court hadfelt those cases andtheir analyses oftheissue were wrongly decided, or had intended to overrule them, it would have expressly said so. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 381-382, 63 Cal.Rptr.2d 1, 40 [“Wecertainly did not clearly overrule what weso recently said wassettled law.) Given the narrow issues before this Court in Traylor, its favorable view of the “essence” and “identical criminal act” concepts, its decision not to overrule Dunn and Burris, and the purposes underlying section 1387, the Traylor decision does not stand for the cut-and- dried, unlimited refiling position urged by appellant and reluctantly applied by the Court ofAppeal. UnderTraylor (and Dunn , Burris, and other cases construing section 1387), in determining the applicability of section 1387, a court can properly consider the essence of the charges and the underlying criminal act, as well as whetherthethird refiling involves the same statutory offense. A consideration of all the circumstancesfurthers ““...the humanintent that underlies the statute.’” (Traylor, supra, 46 Cal.4th at 1213, 96 Cal.Rptr. 3d at 282.) Section 1387 is not limited to situations where the samestatutory offenseis alleged in the third pleading, nor did Traylor so hold. Here, the Superior Court considered all applicable factors and properly found that section 1387 required dismissal with prejudice of the third case. JuarezEPetitionForReview 17 3. Conclusion Respondent in this case has the due process right under the Fifth and Fourteenth Amendments to have the State follow its statutory procedures, here, to have the case against him dismissed pursuant to Penal Codesection 1387. (Hicks v. Oklahoma (1980) 447 U.S. 343, 100 S.Ct. 2227; Fetterly v. Paskett (9" Cir.1993) 997 F.2d 1295, 1300 [“the failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendmentagainst arbitrary deprivation by a state.”]) Here, the Superior Court properly applied the salutary purposes of section 1387. Fundamental due process requires that its decision be affirmed. To that end, review is required. VI. CONCLUSION For the reasons stated above, review is required. Dated: July G , 2014 JuarezEPetitionForReview 18 Respectfully submitted LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 885 N. San Antonio Road, Sui Los Altos, CA 94022- (650) 383-5325 eA By an HN FSCHUER™ Attorney for Respondent EMMANUEL JUAREZ (Appointed by the Court) CERTIFICATE OF WORD COUNT In reliance on the word countofthe computer program usedto generatethis brief, I, John F. Schuck, hereby certify that this Petition for Review contains 4,746 words. I declare under penalty of perjury that the aboveis prue ad c Dated: July Gj , 2014 L Jpa JuarezEPetitionForReview 19 Filed 6/30/14 P. v. Juarez CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying onopinions 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 ofrule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Appellant, G049037(consol. with G049038) V. (Super. Ct. No. 12CF3528) GERARDO JUAREZ and EMMANUEL OPINION JUAREZ, Defendants and Respondents. Appeal from a judgment of the Superior Court of Orange County, Gregg Prickett, Judge. Reversed. Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant. Frank Davis, Alternate Defender, and Antony C. Ufland, Deputy Alternate Defender, for Defendant and Respondent Gerardo Juarez. John F. Schuck for Defendant and Respondent Emmanuel Juarez. Penal Codesection 1387’ limits the numberoftimes the People mayfile a complaint for the “same offense.” In the case of a felony, the People mayfile twice. Here, twice the People filed attempted murder charges, and both cases were dismissed. The People thenfiled a third complaint. Instead offiling charges of attempted murder, which would be barred under section 1387, the People alleged conspiracy to commit murder, which arose out of the same underlying incident. Thetrial court held this was the “sameoffense,” for purposes of section 1387, and dismissed the complaint. The People appealed. Wereverse. Our high court has narrowly defined “same offense” as an offense with identical elements. Defendants may attempt murder without conspiring to murder, and may conspire to murder without attempting to murder. Thus, they were not the same offense, and section 1387 did not bar the filing of the third complaint. FACTS In June 2011, the People filed their initial complaint against defendants Gerardo Juarez and EmmanuelJuarez, alleging, among other things, two counts of attempted murderagainst each defendant.” In November 2011, the court held a preliminary hearing that disclosed the following evidence. This case arises from an incident in which defendant Emmanuel fought with victim John Doe. Prior to the fight, Emmanuel handed a gun to defendant Gerardo. During the fight, Gerardo handed the gun back to Emmanuel. Emmanuelthen shot John All statutory references are to the Penal Code unless otherwise stated. 2 Because the defendants share the same last name, werefer to them byfirst nameto avoid confusion. Doe. John Doe’s companion, Jane Doe, attemptedto flee, but defendants caught up with her and Gerardo shotherin the thigh. After defendants were held to answer, the People filed an information alleging two counts of attempted murder (§§ 664, subd. (a), 187, subd.(a).) against both defendants, and one countof possessionof a firearm by a felon (§ 12021, subd. (a)(1)) against Gerardo. Nearly eight monthslater, in June of 2012, the People filed an amended information that added counts for assault with a firearm (§ 245, subd. (b)). For reasons not disclosed in the record, in July 2012 the court granted the People’s motion to dismiss the case.° That same day, the People refiled the same charges. In November 2012, the People were not ready to proceedtotrial and requested a continuance. The court granted the continuance to December 10, 2012, but warned that December 10 would be day 10 of 10. On December10,the People were again not ready to proceed, so the court dismissed the case in its entirety. The People then filed a third case against defendants, this time alleging two counts of conspiracy to commit murder. The facts recited in the complaint indicate the charges were based on the sameincident as the previous complaints. Defendants movedto dismiss this complaint under section 1387. The magistrate denied the motion without comment. Defendantthen petitioned the superior court for a writ of mandate or prohibition, which the court treated as a petition for writ of habeas corpus. During oral argument, the court posed the following questionsto the People: “Whereis the limit in regard to your theory of refiling? [{] If we take assaultive conductlike attempted murder, you could have two dismissals for an attempted murder, and then you could have 3 During oral argumentin the trial court, defense counsel claimedthat the People dismissed the first time because they had not produced 800 pages of mandatory discovery at the timeoftrial. two dismissals for an assault with a deadly weapon, and then you could have two dismissals for an attempted vol[untary manslaughter], and then you could have two dismissals for assault by force likely to produce great bodily injury, and then you could have two dismissals for a [section] 243[, subdivision (d)] battery causing great bodily injury. Where wouldit end?” The court later granted the petition without further commentand dismissed the case. The People timely appealed. DISCUSSION Penal Code section 1387, subdivision (a), states, “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the sameoffenseifit is a felonyorif it is a misdemeanor charged together with a felony and the action has been previously terminated pursuanttothis chapter, or Section 859b, 861, 871, or 995,or if it is a misdemeanornot charged together with a felony.” As the reader may note, this statutory formulation leaves much to be desired. Our Supreme Court has observed that section 1387 “has been amended nine times since its adoption in 1872, and the resulting 108-word, 13-comma, no period subdivisionis hardly pellucid....” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018 (Burris).) To oversimplify, what the statute means is that a felony complaint may be refiled once but a misdemeanor complaint maynot. The weaknessin this oversimplification was exposed bythe situation encountered in Burris, supra, 34 Cal.4th at page 1012. There, the Peoplefiled a misdemeanor complaint for driving underthe influence, but later decided there was sufficient evidence to support a felony, so the People dismissed the misdemeanor complaint and refiled a felony complaint. (/d. at pp. 1015-1016.) The defendant moved to dismiss under section 1387. (Burris, at p. 1016.) Is this considered a misdemeanor for purposesofsection 1387, such that refiling is impermissible, or a felony? The Burris 4 court held it was the second filing that determined whichrule applied. (Burris,at p. 1019.) Since the second filing was a felony complaint, the refiling was permissible. The logical consequence of that rule was tested in People v. Traylor (2009) 46 Cal.4th 1205 (Traylor), where the opposite occurred. The People filed a felony complaint for vehicular manslaughter with gross negligence. (U/d. at p. 1210.) After the preliminary hearing, the magistrate dismissed the charge on the ground there was insufficient evidence of gross negligence, but expressed the view that the evidence would support a misdemeanorcharge of negligent vehicular manslaughter. (/d. at p. 1210.) The People then refiled the misdemeanor charge, and the defendant moved to dismiss. (/d. at p. 1211.) Underthe rule announced in Burris, since the misdemeanor charge was the secondfiling, the rule preventing a refiling of a misdemeanor charge applied. To avoid that result, the 7raylor court took a narrow view ofthe statutory phrase “same offense.” Two charged offenses are the “same offense”only if they include “identical elements.” (Tiraylor, supra, 46 Ca.4th at p. 1208.) The court made clearthat the protection offered by section 1387 is “narrow,” and emphasized that in interpreting the term “same offense,” it is not the underlying criminal conduct that matters, but the elements of the offense charged. (Traylor, at p. 1213, fn. 6.) Since the subsequent misdemeanor charge did not require proof of gross negligence as the felony charge had, they were not the “same offense.” (/bid.) | The Traylor court supported its holding by noting the result comported with the policy goals of section 1387. “A primary purpose of section 1387[, subdivision (a)] is to protect a defendant against harassment, and the denial of speedy-trial rights, that results from the repeated dismissal and refiling of identical charges. In particular, the statute guards against prosecutorial ‘forum shopping’ - thepersistentrefiling of charges the evidence does not support in hopes of finding a sympathetic magistrate who will hold the defendant to answer. On the other hand,the statute was not intended to penalize the People when, following a magistrate’s dismissal of a first felony complaint on the grounds the evidence supports only a lesser included misdemeanor,they electto refile that lesser charge rather than exercise their undoubted statutory rightto refile the felony. Under such circumstances, prosecutors do not abuse, but actually promote, the statutory purposes.” (Traylor, supra, 46 Cal.4th at p. 1209.) Here we encounter the next antithesis in the dialectical process: attempted murder and conspiring to murder do not share identical elements, but permitting refiling here would violate the policies supporting section 1387. Conspiracy to commit murder requires an agreement to commit murder and an overt act by one or moreofthe parties in furtherance of the agreement. Our high court has specifically noted the distinction between conspiracy and attempt, stating, “‘“‘As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,” and “thus reachesfurther back into preparatory conduct than attempt ....°” (People v. Morante (1999) 20 Cal.4th 403, 417, italics added.) Attempted murder doesnot require any agreement. It “requires the specific intent to kill and the commission ofa direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Thus the two charges do not share identical elements. The policy goals of section 1387, on the other hand, unlike the facts of Traylor, militate in favor of application of section 1387. “Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on \ Andalthough a conspiracy charge need not be pleaded, it cannot be said that the attempted murder charge impliedly set forth a conspiracy claim of conspiring to attempt murder. ‘“This is because the targeted crime of the conspiracy, attempted murder, requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no morethan an ineffectual act. No one can simultaneously intend to do and not do the sameact, here the actual commission of a murder. This inconsistency in required mental states makes the purported conspiracy to commit attempted murdera legal falsehood.” (People v. Iniguez (2002) 96 Cal.App.4th 75,77.) the numberoftimes charges mayberefiled. [Citations.] The statute also reduces the possibility that prosecutors might use the powerto dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges.” (Burris, supra, 34 Cal.4th at p. 1018.) The refilings here were simply the result of the People failing to timely prepare to move forward. Thus they directly implicate defendant’s right to a speedytrial. And while there is no evidenceofintentional harassment here, thetrial court’s forceful questioning of the prosecutorraises legitimate concerns aboutthe possibility of repeated filings ifwe only lookat the elementsofthe crime. Ultimately, however, we are bound by our Supreme Court. And while we believe the trial court has raised a legitimate concern, that concern is properly directed to our Supreme Court’s narrow interpretation of the term “same offense.” Also, though examining outcomesin light of policy goals may be a useful tool in interpreting otherwise ambiguous language (Burris, supra, 34 Cal.4th at pp. 1017-1018), there is nothing ambiguous aboutour high court’s interpretation of “same offense,” and weare notat liberty to deviate from that interpretation. Defendants encourage usto apply a broaderdefinition of “same offense” that would treat attempted murder and conspiring to murder as the same offense. They principally rely on Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace) and Dunn vy. Superior Court (1984) 159 Cal.App.3d 1110 (Dunn), cases which defendants interpret as adopting a so-called “essence” test. Under defendants’ proposedrationale, if the essenceofthe offense charged in thelaterfiling is the same as the essenceofthe offense charged in the earlier filing, the latter filing is barred. Wallace framed the issue beforeit as follows: “[S]Jection 853.6, subdivision (e)(3), providesthat the failure of the prosecutorto file the notice to appear or a formal complaint in the municipalor justice court within 25 days of the arrest shall bar prosecution of the misdemeanor chargedin the notice to appear. The principal issue in this writ proceeding is whether, for the purposesofthe bar of that section, the crime of driving under the influence of an alcoholic beverage or any drug in violation of Vehicle Code section 23152, subdivision (a), is the same offense as driving with a blood-alcohol level of 0.10 percent or more in violation of Vehicle Code section 23152, subdivision (b). Wehold thatit is not.” (Wallace, supra, 140 Cal.App.3d at pp. 102-103.) The Wallace court noted that it was applying the same concept as the “same offense” language used in section 1387. (Wallace, at p. 105.) In reachingits conclusion, the Wallace court stated, “The general rule . . . is that whenthe essence ofthe offense charged in a secondaction is the sameas the essence ofthe offense in a previously dismissed action the second action will be barred.” (/d. at p. 107,italics added.) Although Wallace did not define “essence,” it went on to note that one can drive under the influence without having a blood-alcohol level of 0.10 percent or more, and vice versa, and thus the two are not the same offense. (/d. at p. 108.) In Dunnthe Peoplefirst charged the defendant with, among other things, kidnapping (§ 207) and theft of an automobile (Veh. Code, § 10851). (Dunn, supra, 159 Cal.App.3d at p. 1113.) The People dismissed those charges and refiled charges of kidnappingfor the purpose of robbery (§ 209) and robbery (§ 211). (Dunn,at p. 1114.) The magistrate did not hold those charges to answer. The district attorney then reinstated the charges in an information, and the defendant moved to dismiss under section 1387. (Dunn, at p. 1114.) The Dunn court held the third filing was barred. It mentioned the ° At the time Wallace was decided, Vehicle Code section 23152, subdivision (b), prohibited driving with a blood-alcohollevel of 0.10 percent or greater. That section was since amendedto reflect 0.08 percent or greater. 8 “essence” test articulated in Wallace andstated, “Kidnapping for the purpose of robbery cannot be committed without committing the lesser offense of kidnapping. Two dismissals of kidnapping should bar a prosecution for kidnapping for the purpose of committing robbery onthe theory that to charge the greater would be also to charge the lesser an additional and prohibited third time.” (Dunn,at p. 1118.) With respectto the theft of an automobile and robbery charges, the court found they were in “essence”the same,stating, “Although every robbery doesnot include an autotheft, the concept of necessarily included offenses permits reference to the facts in the accusatorypleading. [Citation]. Here, the essence of the auto theft and robbery is the same since the robbery wasspecifically alleged to be the taking of the same automobile.” (Dunn,at pp. 1118- 1119.) From these cases, Emmanuel contends “a court can properly consider the essence of the charges and the underlying criminalact, as well as whether the third refiling involves the same statutory offense,” which Emmanuelgoes on to describe as “fa] consideration of all the circumstances... .” The problem is, Traylor extensively discussed Dunn and interpreted it as applying the same elements test. (Traylor, supra, 46 Cal.4th at pp. 1217-1218.) It interpreted Dunn as consistent with the same elements test because in Dunn the People initially charged lesser crimes, and the subsequentgreater crimes containedall of the same elements as the earlier-charged crimes. (Traylor, at pp. 1217-1218.) Since the same elements test was satisfied, applying the bar of section 1387 wasproper. Further, the 7raylor court expressly rejected the contention that “section 1387[, subdivision (a)| should apply to all charges arising from the same conductor behavior of the defendant.” (Traylor, supra, 46 Cal.4th at p. 1213, fn. 6.) Rather, the court held, “[A]n ‘offense’ is defined not by conduct, but by its particular definition as such in the Penal Code.” (/bid.) Defendants’ final argumentis that a footnote in Traylor limits its scope. At the end of the opinion, the court added the following footnote: “As the reader will notice, we havecarefully limited our holding to the situation in which an initial felony charge, having been dismissed by a magistrate on grounds that the evidence supports only a lesser included misdemeanor,is followed by the filing of a second complaint charging that misdemeanor offense. We do not here confront, and expressly do not decide, how section 1387[, subdivision (a)] should apply when dismissed felony chargesare followed by one or more new complaints charging lesser includedfelonies, or when a dismissed misdemeanorchargeis followed by a new complaint charging a lesser included misdemeanor.” (Traylor, supra, 46 Cal.4th at p. 1220, fn. 10.) In our view,this footnote does not significantly limit the application of Traylor. While the court’s holding may have been narrow,the rationaleit used to get there - that “same offense” meansidentical elements - is quite broadin its application. The examples the court gave of whatit was not deciding (e.g. a felony followed by a refiled lesser included felony) are not at issue here. And in any event, given the court’s rationale, we fail to see how a felony followedbya lesser included felony would have any different result than a felony followed bya lesser included misdemeanor. Werecognize the result we reachis counterintuitive, and generally not in keeping with the policies section 1387 is supposed to represent. However,our handsare tied. The muddled language of section 1387 has not stoodthe test of time, and our high court’s struggle to interpret that language has resulted in a law with narrow protection. If that protection is to be broadened,it is up to the Legislature. 10 DISPOSITION The judgmentdismissing the case is reversed. Thetrial court is directed to reinstate the case. IKOLA,J. WE CONCUR: O’LEARY,P.J. RYLAARSDAM,J. ll PROOF OF SERVICE I, John Schuck, declare: I am a citizen of the United States and a resident of the County of Santa Clara;I am over the age of eighteen years and am nota party to the within action; my business address is 885 N. San Antonio Road, Suite A, Los Altos, CA 94022. On July G , 2014 I served the within: PETITION FOR REVIEW on the following interested personsin said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Altos, California addressed as follows: Emmanuel Juarez AK9367 San Quentin State Prison San Quentin, CA 94974 Orange County Superior Court Anthony Ufland Central Justice Center - Criminal Orange County Alternate Defender’s Office 700 Civic Center Drive West 600 W. Santa Ana Blvd., Suite 600 Room K100 Santa Ana, CA 92701 Santa Ana, CA 92702 (Attorney for co-respondent) District Attorney Miles David Jessup, Deputy Public Defender P. O. Box 808 Orange County Public Defender’s Office Santa Ana, CA 92702 14 Civic Center Plaza Santa Ana, CA 92701 I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day in the ordinary course of business. I am aware that on motion ofparty served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. JuarezEPetitionForReview PROOF OF SERVICE CONT’D. Furthermore, I, Patricia Schuck, declare that I electronically served from my electronic service address of patmschuck@live.com the same referenced above document before 5:00 p.m. on July G , 2014 to the following entities: Appellate Defenders,Inc., eservice-criminal@adi-sandiego.com Attorney General’s office, ADIEService@doj.ca.gov. Court of Appeal, Fourth Appellate District, via e-submission. I declare under penalty of perjury that the foregoingis true andcorrect. Executed at Los Altos, California on July Y ; 2014. 2 CEra Aohy¥ Schuck << Paticerebofuccd. Patricia Schuck JuarezEPetitionForReview Filed 6/30/14 Certified for publication 7/9/14 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Appellant, G049037 Vv. (Super. Ct. No. 12CF3528) GERARDO JUAREZ, _ Defendant and Respondent. THE PEOPLE, Plaintiff and Appellant, G049038 Vv. (Super. Ct. No. 12CF3528) EMMANUEL JUAREZ, OPINION Defendant and Respondent. Appeal from a judgmentof the Superior Court of Orange County, Gregg Prickett, Judge. Reversed. Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant. Frank Davis, Alternate Defender, and Antony C. Ufland, Deputy Alternate Defender, for Defendant and Respondent Gerardo Juarez. John F. Schuck for Defendant and Respondent Emmanuel Juarez. Penal Code section 1387’ limits the numberoftimes the People mayfile a complaint for the “same offense.” In the case of a felony, the People mayfile twice. Here, twice the People filed attempted murder charges, and both cases were dismissed. The People then filed a third complaint. Instead of filing charges of attempted murder, which would be barred undersection 1387, the People alleged conspiracy to commit murder, which arose out of the same underlying incident. Thetrial court held this was the “same offense,” for purposes of section 1387, and dismissed the complaint. The People appealed. . Wereverse. Our high court has narrowly defined “sameoffense” as an offense with identical elements. Defendants may attempt murder without conspiring to murder, and may conspire to murder without attempting to murder. Thus, they were not the same offense, and section 1387 did notbar the filing of the third complaint. FACTS In June 2011, the People filed their initial complaint against defendants Gerardo Juarez and EmmanuelJuarez, alleging, among other things, two counts of attempted murder against each defendant. In November 2011, the court held a preliminary hearing that disclosed the following evidence. This case arises from an incident in which defendant Emmanuel fought with victim John Doe. Prior to the fight, Emmanuel handed a gun to defendant Gerardo. During the fight, Gerardo handed the gun back to Emmanuel. Emmanuelthen shot John All statutory references are to the Penal Code unless otherwise stated. 2 Because the defendants share the same last name, werefer to them byfirst name to avoid confusion. Doe. John Doe’s companion, Jane Doe, attempted to flee, but defendants caught up with her and Gerardoshotherin the thigh. After defendants were held to answer, the People filed an information alleging two counts of attempted murder (§§ 664, subd. (a), 187, subd. (a).) against both defendants, and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) against Gerardo. Nearly eight months later, in June of 2012, the People filed an amended information that added counts for assault with a firearm (§ 245, subd. (b)). For reasons not disclosed in the record, in July 2012 the court granted the People’s motion to dismiss the case.” That same day, the People refiled the same charges. In November 2012, the People were not ready to proceedto trial and requested a continuance. The court granted the continuance to December10, 2012, but warned that December 10 would be day 10 of 10. On December10, the People were again not ready to proceed, so the court dismissed the casein its entirety. The People then filed a third case against defendants,this time alleging two counts of conspiracy to commit murder. Thefacts recited in the complaint indicate the charges were based on the sameincident as the previous complaints. Defendants moved to dismiss this complaint under section 1387. The magistrate denied the motion without comment. Defendant then petitioned the superior court for a writ of mandate or prohibition, which the court treated as a petition for writ of habeas corpus. During oral argument, the court posed the following questions to the People: “Whereis the limit in regard to your theory ofrefiling? [{] If we take assaultive conductlike attempted murder, you could have two dismissals for an attempted murder, and then you could have 3 During oral argumentin the trial court, defense counsel claimedthat the People dismissedthe first time because they had not produced 800 pages of mandatory discovery at the timeoftrial. two dismissals for an assault with a deadly weapon, and then you could have two dismissals for an attempted vol[untary manslaughter], and then you could have two dismissals for assault by force likely to produce great bodily injury, and then you could have two dismissals for a [section] 243[, subdivision (d)] battery causing great bodily injury. Where would it end?” The court later granted the petition without further comment and dismissed the case. The People timely appealed. DISCUSSION Penal Code section 1387, subdivision (a), states, “An order terminating an action pursuantto this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the sameoffense if it is a felony orif it is a misdemeanor charged together with a felony and the action has been previously terminated pursuantto this chapter, or Section 859b, 861, 871, or 995, orif it is a misdemeanor not charged together with a felony.” As the reader may note, this statutory formulation leaves muchto be desired. Our Supreme Court has observed that section 1387 “has been amendednine times since its adoption in 1872, and the resulting 108-word, 13-comma,no period subdivision is hardly pellucid ....” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018 (Burris).) To oversimplify, what the statute meansis that a felony complaint may be refiled once but a misdemeanor complaint maynot. . The weaknessin this oversimplification was exposed bythe situation encountered in Burris, supra, 34 Cal.4th at page 1012. There, the People filed a misdemeanor complaint for driving underthe influence, but later decided there was sufficient evidence to support a felony, so the People dismissed the misdemeanor complaint andrefiled a felony complaint. (/d. at pp. 1015-1016.) The defendant moved to dismiss under section 1387. (Burris, at p. 1016.) Is this considered a misdemeanor for purposesof section 1387, such that refiling is impermissible, or a felony? The Burris 4 court held it was the secondfiling that determined which rule applied. (Burris, at p. 1019.) Since the secondfiling was a felony complaint, the refiling was permissible. The logical consequenceofthat rule was tested in People v. Traylor (2009) 46 Cal.4th 1205 (Traylor), where the opposite occurred. The People filed a felony complaint for vehicular manslaughter with gross negligence. (/d. at p. 1210.) After the preliminary hearing, the magistrate dismissed the charge on the ground there was insufficient evidence of gross negligence, but expressed the view that the evidence would support a misdemeanorcharge of negligent vehicular manslaughter. (id. at p. 1210.) The People then refiled the misdemeanor charge, and the defendant movedto dismiss. (/d. at p. 1211.) Under the rule announced in Burris, since the misdemeanor charge wasthe secondfiling, the rule preventing a refiling of a misdemeanor charge applied. To avoid that result, the Zraylor court took a narrow view ofthe statutory phrase “same offense.” Two charged offenses are the “same offense”only if they include “identical elements.” (Zraylor, supra, 46 Ca.4th at p. 1208.) The court madeclear that the protection offered by section 1387 is “narrow,” and emphasized thatin interpreting the term “sameoffense,” it is not the underlying criminal conduct that matters, but the elements of the offense charged. (Traylor, at p. 1213, fn. 6.) Since the subsequent misdemeanorcharge did not require proof of gross negligence as the felony charge had, they were not the “same offense.” (/bid.) The Traylor court supported its holding by noting the result comported with the policy goals of section 1387. “A primary purpose of section 1387[, subdivision (a)} is to protect a defendant against harassment, and the denial of speedy-trial rights, that results from the repeated dismissal and refiling of identical charges. In particular, the statute guards against prosecutorial ‘forum shopping’ - the persistentrefiling of charges the evidence does not support in hopesof finding a sympathetic magistrate whowill hold the defendant to answer. On the other hand, the statute was not intended to penalize the People when, following a magistrate’s dismissalofa first felony complaint on the 5 groundsthe evidence supports only a lesser included misdemeanor,theyelectto refile that lesser charge rather than exercise their undoubted statutory rightto refile the felony. Under such circumstances, prosecutors do not abuse, but actually promote,the statutory purposes.” (Traylor, supra, 46 Cal.4th at p. 1209.) Here we encounterthe next antithesis in the dialectical process: attempted murder and conspiring to murderdo not share identical elements, but permitting a refiling here would violate the policies supporting section 1387. Conspiracy to commit murder requires an agreement to commit murder and an overt act by oneor moreofthe parties in furtherance of the agreement. Our high court has specifically noted the distinction between conspiracy and attempt,stating, “““As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,” and “thus reachesfurther back into preparatory conduct than attempt ....’” (People v. Morante (1999) 20 Cal.4th 403, 417,italics added.) Attempted murderdoesnotrequire any agreement. It “requires the specific intentto kill and the commission ofa direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Thus the two charges do not share identical elements.” The policy goals of section 1387, on the other hand,unlike the facts of Traylor, militate in favor of application of section 1387. “Section 1387 implements a series ofrelated public policies. It curtails prosecutorial harassmentby placing limits on ‘ And although a conspiracy charge need not be pleaded, it cannot be said that the attempted murder charge impliedly set forth a conspiracy claim of conspiring to attempt murder. “This is because the targeted crimeofthe conspiracy, attempted murder, requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the sameact, here the actual commission of a murder. This inconsistency in required mental states makes the purported conspiracy to commit attempted murdera legal falsehood.” (People v. Iniguez (2002) 96 Cal-App.4th 75, 77.) the numberof times charges mayberefiled. [Citations.] The statute also reduces the possibility that prosecutors might use the powerto dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedytrial rights through the repeated dismissal andrefiling of the same charges.” (Burris, supra, 34 Cal.4th atp. 1018.) The refilings here were simply theresult of the People failing to timely prepare to move forward. Thusthey directly implicate defendant’s right to a speedy trial. And while there is no evidence of intentional harassmenthere, thetrial court’s forceful questioning of the prosecutorraises legitimate concerns about the possibility of repeated filings if we only look at the elements of the crime. Ultimately, however, we are bound by our Supreme Court. And while we believe the trial court has raised a legitimate concern, that concern is properly directed to our Supreme Court’s narrow interpretation of the term “same offense.” Also, though examining outcomesin light of policy goals may be a useful tool in interpreting otherwise ambiguous language (Burris, supra, 34 Cal.4th at pp. 1017-1018), there is nothing ambiguous aboutour high court’s interpretation of “same offense,” and we are not at liberty to deviate from that interpretation. Defendants encourage us to apply a broader definition of “same offense” that would treat attempted murder and conspiring to murder as the same offense. They principally rely on Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace) and Dunn y. Superior Court (1984) 159 Cal.App.3d 1110 (Dunn), cases which defendants interpret as adopting a so-called “essence” test. Under defendants’ proposedrationale,if the essence of the offense chargedin the later filing is the same as the essence of the offense chargedin the earlier filing, the latter filing is barred. Wallace framedthe issue before it as follows: “[S]ection 853.6, subdivision (e)(3), providesthat the failure of the prosecutortofile the notice to appear or a formal complaint in the municipalor justice court within 25 days of the arrest shall bar prosecution of the misdemeanorcharged in the notice to appear. Theprincipalissue in this writ proceeding is whether, for the purposesofthe bar of that section, the crime of driving under the influence of an alcoholic beverage or any drug in violation of Vehicle Code section 23152, subdivision (a), is the same offense as driving with a blood-alcohol level of 0.10 percent or more in violation of Vehicle Code section 23152, subdivision (b). Weholdthatit is not.”” (Wallace, supra, 140 Cal.App.3d at pp. 102-103.) The Wallace court noted that it was applying the same conceptas the “same offense” language used in section 1387. (Wallace, at p. 105.) In reaching its conclusion, the Wallace court stated, “The general rule. . . is that when the essence of the offense charged in a secondactionis the sameas the essenceofthe offense in a previously dismissed action the secondaction will be barred.” (/d. at p. 107,italics added.) Although Wallace did not define “essence,” it went on to note that one can drive under the influence without having a blood-alcohol level of 0.10 percent or more, and vice versa, and thus the two are not the same offense. (/d. at p. 108.) In Dunn the People first charged the defendant with, among otherthings, kidnapping (§ 207) and theft of an automobile (Veh. Code, § 10851). (Dunn, supra, 159 Cal.App.3d at p. 1113.) The People dismissed those charges andrefiled charges of kidnapping for the purpose of robbery (§ 209) and robbery (§ 211). (Dunn,at p. 1114.) The magistrate did not hold those charges to answer. Thedistrict attorney then reinstated the charges in an information, and the defendant moved to dismiss under section 1387. (Dunn, at p. 1114.) The Dunn court held the third filing was barred. It mentioned the ° At the time Wallace was decided, Vehicle Code section 23152, subdivision (b), prohibited driving with a blood-alcohollevel of 0.10 percent or greater. That section was since amendedto reflect 0.08 percent or greater. 8 “essence”test articulated in Wallace and stated, “Kidnapping for the purpose of robbery cannot be committed without committing the lesser offense of kidnapping. Two dismissals of kidnapping should bar a prosecution for kidnapping for the purpose of committing robbery on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time.” (Dunn,at p. 1118.) With respect to the theft of an automobile and robbery charges, the court found they were in “essence” the same, stating, “Although every robbery does notinclude an auto theft, the concept of necessarily included offenses permits reference to the facts in the accusatory pleading. [Citation]. Here, the essence of the auto theft and robbery is the same since the robbery wasspecifically alleged to be the taking of the same automobile.” (Dunn,at pp. 1118- 1119.) From these cases, Emmanuel contends “a court can properly considerthe essence of the charges and the underlying criminal act, as well as whether the third refiling involves the samestatutory offense,” which Emmanuelgoeson to describe as “[a] consideration ofall the circumstances... .” The problem is, Traylor extensively discussed Dunn andinterpretedit as applying the same elementstest. (Traylor, supra, 46 Cal.4th at pp. 1217-1218.) It interpreted Dunnas consistent with the same elements test because in Dunn the People initially charged lesser crimes, and the subsequent greater crimes containedall of the same elements as the earlier-charged crimes. (Traylor, at pp. 1217-1218.) Since the same elementstest wassatisfied, applying the bar of section 1387 wasproper. Further, the Traylor court expressly rejected the contention that “section 1387[, subdivision (a)] should apply to all charges arising from the same conduct or behavior of the defendant.” (Traylor, supra, 46 Cal.4th at p. 1213, fn. 6.) Rather, the court held, “[A]n ‘offense’ is defined not by conduct, but by its particular definition as such in the Penal Code.” (lbid.) Defendants’ final argumentis that a footnote in Traylor limits its scope. At the end of the opinion, the court added the following footnote: “Asthe reader will notice, we havecarefully limited our holding to the situation in which an initial felony charge, having been dismissed by a magistrate on grounds that the evidence supports only a lesser included misdemeanor, is followed bythefiling of a second complaint charging that misdemeanor offense. Wedo not here confront, and expressly do not decide, how section 1387[, subdivision (a)] should apply when dismissed felony charges are followed by one or more new complaints charging lesser includedfelonies, or when a dismissed misdemeanorcharge is followed by a new complaint charging a lesser included misdemeanor.” (Traylor, supra, 46 Cal.4th at p. 1220, fn. 10.) In our view,this footnote does not significantly limit the application of Traylor. While the court’s holding may have been narrow,the rationale it used to get there - that “same offense” meansidentical elements - is quite broadin its application. The examples the court gave of what it was not deciding (e.g. a felony followed by a refiled lesser included felony) are not at issue here. And in any event, given the court’s rationale, we fail to see how a felony followed by a lesser included felony would have any different result than a felony followed by a lesser included misdemeanor. Werecognize the result we reach is counterintuitive, and generally not in keeping with the policies section 1387 is supposed to represent. However, our handsare tied. The muddled language of section 1387 has not stood the test of time, and our high court’s struggle to interpret that language hasresulted in a law with narrow protection. If that protection is to be broadened,it is up to the Legislature. 10 DISPOSITION The judgment dismissing the case is reversed. Thetrial court is directed to reinstate the case. IKOLA,J. WE CONCUR: O’LEARY,P.J. RYLAARSDAM,J. 1] Filed 7/9/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Appellant, G049037 v. (Super. Ct. No. 12CF3528) GERARDO JUAREZ, Defendant and Respondent. THE PEOPLE, Plaintiff and Appellant, G049038 V. (Super. Ct. No. 12CF3528) EMMANUELJUAREZ, ORDER Defendant and Respondent. Appellant has requested that our opinion, filed on June 30, 2014, be certified for publication. It appears that our opinion meets the standardsset forth in California Rules of Court, rule 8.1105(c). The request is GRANTED. The opinion is ordered published in the Official Reports. IKOLA,J. WE CONCUR: O’LEARY,P.J. RYLAARSDAM,J.
