PEOPLE v. JUAREZ

Respondent, Gerardo Juarez, Opening Brief on the Merits

Cal.November 17, 2014

FRASE ns LG ML a Case No. 219889 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Plaintiffand Appellant, VS. GERARDO JUAREZ AND EMMANUEL JUAREZ Defendants and Respondents, RESPONDENT GERARDO JUAREZ?’ NOV 17 2014 OPENING BRIEF ON THE MERITS From the Published Opinionof the Court of Appeat=~ => ~~ = Fourth District, Division Three, No. G049037 Orange County Superior Court No.: 12CF3528 The Honorable Gregg L.Prickett, Judge, Dept. C-5 ORANGE COUNTY ALTERNATE DEFENDER’S OFFICE FRANK DAVIS Alternate Defender ANTONY C. UFLAND Senior Deputy Alternate Defender EMAIL: Tony.Ufland@altdef.ocgov.com State Bar No. 157620 600 W. Santa Ana Blvd, #600 Santa Ana, California 92701 Telephone: (714) 568-4160 Fax: (714) 568-4200 Attorneys for Respondent GERARDO JUAREZ Case No. 219889 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Plaintiffand Appellant, VS. GERARDO JUAREZ AND EMMANUELJUAREZ Defendants and Respondents, RESPONDENT GERARDO JUAREZ?’ OPENING BRIEF ON THE MERITS From the Published Opinion of the Court of Appeal Fourth District, Division Three, No. G049037 Orange County Superior Court No.: 12CF3528 The Honorable Gregg L. Prickett, Judge, Dept. C-5 ORANGE COUNTY ALTERNATE DEFENDER’S OFFICE FRANK DAVIS Alternate Defender ANTONYC. UFLAND Senior Deputy Alternate Defender EMAIL: Tony.Ufland@altdef.ocgov.com State Bar No. 157620 600 W. Santa Ana Blvd, #600 Santa Ana, California 92701 Telephone: (714) 568-4160 Fax: (714) 568-4200 Attorneysfor Respondent GERARDO JUAREZ TABLE OF CONTENTS Page Table of Contents ...... 0.0... cececeec eee cc eee eececeene nena ee ee eee eesenenseaeenensaes i Table of Authorities........ 0.0... ce ccecc ccc enceeeceeec eee eeeeeeeeensenseseaeenaees li Issue Presented. ...... 0.0... c cece nee e cent eee cence ence ee eeeae eae eeeeaeeaeeesseesss 1 Statement of the Cases........ ccc. cece ccc cece cecceceeeccnacseeuaaccsseceesscerereseeel Statement of Facts....... 0.0... ccc ccc cccseecccccccceecccceaucececccceaauaceeeeecuners4 ATQUMENL. 0.0...cece eee eee teen eee ene e eens eee eeeee eee nee sane eeees 5 I. PENAL CODE SECTION 1387(a).............ccccececeesceeeseeeseeeens 5 Il. DETERMINING THE APPLICATION OF SECTION 1387(a) cece cee ceccceceecceceuceccsncseeeceseceaeneeteeseeeseeeeeugceeuceceeeeentnanecers 8 II. COURTS HAVE REPEATEDLY AFFIRMED THAT SECTION 1387 MUST BE INTERPRETED IN A MANNER THAT SUPPORTS THE INTENT THAT UNDERLIES THE STATUTE eee10 IV. THE POLICIES UNDERLYING THE TWO DISMISSAL RULE IN SECTION 1387 WOULD BE SERVED BY ENFORCEMENT OF THE RULE TO BAR PROSECUTION OF THE CHARGES IN THE THIRD COMPLAINT IN THE PRESENT CASE, AND THOSE POLICIES WOULD BE DISSERVED AND UNDERMINED IF THIS COMPLAINT WAS ALLOWEDTOBE RE-INSTATED Leeneee nee nee EEE EEE EEE EE EE EEE EE SESE EE OEE SE SEEDS RESTO EEE Ee EEE20 V. DISMISSAL OF THE THIRD FILING WAS REQUIRED BECAUSE THE CONSPIRACY TO COMMIT MURDER CHARGES CONTAINED THEREIN WERE “NECESSARILY INCLUDED OFFENSES” OF THE TWICE DISMISSED ATTEMPTED MURDER CHARGES. Deen een eee ne EE EE ERED EEDA OEE EDDA OEE EE SEES FEES DESH ES DE HERS e EE EES EEE25 Conclusion........ 0. cc cece cece ccc cececcceceeececeaeeeueseeeeuetetnneeetnennns 29 Certificate of Word Count........ 0.00c cc cccccecnccceeceuuuunnecevens 30 Declaration of Service.......... ccc cece cece ccceeccecccecuccccenvecesennucees 31 TABLE OF AUTHORITIES Cases California Supreme Court: Brown vy. Kelly Broadcasting Company (1989) 49 Cal.3d 711.......... 8 People v. Overstreet (1986) 42 Cal.3d 891...........c cece ce cee eee ee ee eees 8 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4" 911.0... cecceceeeeseeseens9 People v. Traylor (2009) 46 Cal.4" 1205.00... ....c:ccccecee esse eenspassim Burris v. Superior Court (2005) 34 Cal.4" 1012........0....9,17, 21, 22 People v. Mancebo (2002) 27 Cal.4" 735.......ccccccecceeeseeeececuesans 19 Dyna-Med, Inc. v. Fair Employment and Housing Comm. (1987) 43 Cal.3d 1379 ..........cccccc cece eee n eee 24 People v. Clark (1990) 50 Cal.3d 583............ccccccecccees eee ee ease ees 26 People v. Barrick (1982) 33 Cal.3d 115 .........ccc cece cece cc eee eee eneees26 People v. Cannady (1972) 8 Cal.3d 379.0... cc. cc ccec cece cence ee eeeens 26 People v. Birks (1998) 19 Cal.4" 108.00... ...cccccccceeecccceeeeeeeeeuaees26 California Court of Appeal: Paredes v. Superior Court (1999) 77 Cal.App.4" 24..........0c.0cc0ceee 8 People v. Superior Court (Martinez) (1993) 19 Cal.App.4" 738........9 People v. Cossio (1977) 76 Cal.App.3d 369.............cccc cece eens9,22 Lee v. Superior Court (1983) 142 Cal.App.3d 637.............0.00859, 13 Alex T. v. Superior Court (1977) 72 Cal.App.3d 24................ 10, 13 Dunn v. Superior Court (1984) 159 Cal.App.3d 1110............passim People v. Salcido (2008) 166 Cal.App.4" 1303...................passim Wallace v. Municipal Court (1983) 140 Cal.App.3d 100.......... 12, 16 Alford v. Pierno (1972) 27 Cal.App.3d 682...........0cccccceceeeeeeeees 24 Ivens v. Simon (1963) 212 Cal App.2d 177............cccc cece eeeeeeeeees24 Statutes Penal Code: Benereenter ene n eet e ee eE eds et ede e as eee EE EGE EEE ERNE ES 11 § 182/187...ccc ce cence cece eee teeta tenes teen ens 2, 16, 20, 25 § 192(C)D)..cececece ence eee teens eect ena t enna t eee eanes 13, 14 Si 071(|0)eee13, 14 § L9B(CML)eccececcccccccccccecesecececeeeetetettsssersrssessussssesssesssessseesed3 § 207. eecccccceeceeseeseeecsseceseeeeevencreceuseutstertseeeeeeeceees 10, 12, 17 § 209.ccc cnet eee e nee n teen dette eens et ea eee a tate 11, 12,17 SQLcece ene ne ene eee eee eneeeeeetaeeenaeenees 11, 12, 14,17 § 220.ccc eee e nent nee eee ence enact eens e eee ea setae eee nae ea tenses 10 SZDal0)ce13 $496.cencenee ener nent En EEE EEE EEE eet eae ee tnEE 11 § 664-1870ceee e nett eee e nee eeneees 1, 2, 13, 16, 20, 25, 27 § 1382cccee cece eee e eee e eee ee ee eee ee ae ea tena ena e gs 8, 10 8 1884ceceener rere enero ence nee e ne eet seen teed eee nents 8 SIt 8 S LBB7ccccece ener enn eee ene En EEE EEE EEE EEE etepassim S LB87cccete cee ee ence rete t eens eeeteeassasttsstsseesseens D0, 23 S ASOLeeeeeee been ee eee tees tetas ene enae eae eesseeenes 18 S ASOLScc ccc eee cette tee teat ee ee tease teeneeneeenas 18, 19 § 2022.7cence cece eee ee eee teeta eee ee taeeeteaeeneenaees 19 Vehicle Code: § L0851.ene ete cna e eee e ence eneenerees 10, 11, 12, 13, 17 Other CALCRIM: 600...cence een cence ene ne ener neta enensanetsattsersessseseteesteseDT IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Appellant GERARDO JUAREZ, EMMANUEL JUAREZ ) ) ) ) ) ) ) ) ) ) ) VS. ) ) ) ) ) ) ) ) ) ) ) Defendants/Respondents. ) ) No.: $219889 DEFENDANT/RESPONDENT GERARDO JUAREZ?’ OPENING BRIEF ON THE MERITS From the published opinion of the Court of Appeal, Fourth District, Division Three DCA No.: G049037/G049038 OC S. Ct. No.: 12CF3528 TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT ISSUE PRESENTED Does California Penal Code! section 1387’s prohibition on third, successive felony prosecution for the “same offense” operate to bar a third prosecution of a defendant for precisely the same conduct at issue in two previously dismissed cases where no statutory exception applies, but where the prosecutor has elected to charge the exact same conduct under a different Penal Code section? STATEMENT OF THE CASES LI NF1767 On November 21, 2011 defendant/respondent Gerardo Juarez, hereinafter “Gerardo”, and his brother co-defendant/respondent Emmanuel Juarez, hereinafter “Emmanuel”, were charged in Orange County Superior Case 11NF1767 with, inter alia, violations of section 664/187(a), premeditated and deliberate attempted murder (Counts One and Two). (1CT 90-92.) All charges in this case arose out ofa single incident which occurred on June 3, 2011. On July 16, 2012 the prosecution dismissed this case. (ICT 15; 2CT 254.) i All subsequent references to code sections are to the California Penal Code, unless otherwise indicated. 2 “CT”refers to the Clerk’s Transcript in Court of Appeal case G049037, 1 1 2NFO057 On July 16, 2012, Gerardo and Emmanuel were again charged,this time in Orange County Superior Court case 12NFO057 with, inter alia, violations of section 664/187(a), premeditated and deliberate attempted murder. These charges arose out of the same alleged June 3, 2011 incident that formed the basis of the charging document in case 11NF1767. (1CT 94-97.) An Information alleging the same attempted murder charges was filed on July 30, 2012. (1CT 99-102.) On December 10, 2012, this case was dismissed because the prosecution was not prepared to proceedto trial. (ICT 104-107; 2CT 136.) 12CF3528 On December 10, 2012, based on the same June 3, 2011 incident that formed the basis of the charges in cases 11NF1767 and 12 NFOO57, the prosecution filed a third case against Gerardo and Emmanuel Juarez in Orange County Superior Court case 12CF3528. However, in an attemptto avoid the two dismissal rule of section 1387, the prosecution charged Gerardo and Emmanuel with conspiracy to commit murder, violations of sections 182/187(a). (ICT 109-112; 2 CT 246-248.) On January 10, 2013 a jointly filed Motion to Dismiss case 12CF3528 as a violation of section 1387 was denied by a Superior Court magistrate. On February 14, 2013, Gerardo filed a petition for a writ of 2 mandate/prohibition in the Superior Court seeking review of the denial of the section 1387 dismissal motion. On July 25, 2013, the petition was granted and case 12CF3528 was dismissed. (2 CT 311-312.) On September 19, 2013 the prosecution timely filed a notice of appeal. (2 CT 366-367.) On January 2, 2014 the Court of Appeal consolidated the prosecution’s appeal of Gerardo’s case with the prosecution’s identical appeal of Emmanuel’s case. On June 30, 2014 the Court of Appeal reversed the judgment of the Orange County Superior Court, and on July 9, 2014 the Court of Appeal ordered the opinion published. On August 11, 2014 a Petition for Review of the Court of Appeal’s opinion wasfiled on behalf of EmmanuelJuarez, and on August 18, 2014 a similar Petition for Review wasfiled on behalf of Gerardo Juarez. This Court granted the Juarez’ Petitions for Review on September 10, 2014. STATEMENT OF FACTS The followingis a brief statement of the facts that were used by the prosecution to supportall three of the afore-mentioned cases: At approximately 5:00 pm on June 3, 2011 Jane Doe and John Doe were driving thru the alley of their apartment complex when John Doe when they passed a Jeep Cherokee driven by Emmanuel Juarez. (1 CT 40; RT* 8.) Emmanuel and John Doe exited their vehicles and had a brief conversation. (1 CT 40-41; RT 9.) At approximately 8:45 pm that same day John and Jane Doe were exiting the complex when Emmanuel wasin the alley with another person identified as Gerardo Juarez. (1 CT 43-44; RT 12.) Emmanuel Juarez and John Doe gotinto a fistfight, with John Doe saying “Let’s get down”. (1 CT 44; RT 12.) Jane Doe stood next to Gerardo Juarez while Emmanuel and John Doe fought. Gerardo was holding a plastic bag that Emmanuel had handed to him. (1 CT 44-45; RT 12-13.) Jane Doe told Gerardo that the two men should notbe fighting, and Gerardo agreed with her. Gerardo then handed Emmanuel a handgun. Emmanuelthen shot John Doe one time. (1 CT 46; RT 14.) Jane Doe ran throughthe alley to the front gate, which was locked. (1 CT 46-47; RT 14- 15.) 3 “RT” refers to the Reporter’s Transcript of the preliminary examination associated with case 11NF1767. 4 When Jane Doe reached the gate the Jeep Cherokee approached the gate and Gerardo told her to open the gate. Whenshetold him that she was not able to, Emmanuel Juarez got out of the Jeep and lifted the gate open. (1 CT 46-47; RT 14-15.) After that, Gerardo fired one shot in Jane Doe’s direction. (1 CT 48; RT 16.) Jane Doe did not receive any wounds or injuries. (1 CT 58; RT 26.) ARGUMENT PENAL CODE SECTION 1387’S PROHIBITION ON A THIRD FELONY PROSECUTION FOR THE “SAME OFFENSE” BARS A THIRD PROSECUTION OF A DEFENDANT FOR PRECISELY THE SAME CONDUCT AT ISSUE IN THE TWO PREVIOUSLY DISMISSED CASES, WHERE NO STATUTORY EXCEPTION APPLIES, BUT WHERE THE PROSECUTOR HAS ELECTED TO CHARGE THE SAME CONDUCT UNDER A DIFFERENT PENAL CODE SECTION. PENAL CODE SECTION 1387(a) Penal Code section 1387, subdivision (a), known as California’s “Two Dismissal” Rule, provides, in material part that: “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 same offense if it is a felony orif it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not ‘ charged together with a felony, except in those felony cases, 5 or those cases where a misdemeanoris charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following...”. The Rule was first codified in section 1387 when the California Penal Code was adopted in 1872, and read: An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the sameoffense, if it is a misdemeanor; but it is not a bar if the offense is a felony. (Stats. 1872, ch. 278, sec. 1387, p. 382.) Section 1387 wasfirst made applicable to felonies in 1975, when the statute was amendedto read: An order for the dismissal of an action pursuant to this chapter is a bar to any other prosecution for the same offense if it is a felony and the action has been previously dismissed pursuant to this chapter, or if it is a misdemeanor; except in those felony cases where subsequentto the dismissal of the felony the court finds that substantial new evidence has been discovered by the prosecution which would not have been knownthrough the exercise of due diligence at or prior to the time of dismissal. (Stats. 1975, ch. 1069, sec. 1.) The present case calls upon this Court to give guidance in the situation where the same felony code sections are charged and dismissed twice, and then, in the third filing regarding the same factual scenario, different code sections are selected by the prosecutor, specifically because the original code sections are no longer available to the prosecution. The Court is asked to determine the meaning of the two words, “same offense” in this particular situation. Based on this Court’s opinion in People v. Traylor, (2009) 46 Cal.4" 1205, which involved a completely different situation and was expressly limited to its particular procedural history, the prosecution herein asks the Court to announce a severely limiting rule. The prosecution erroneously suggests that “same offense” only applies to the re-filing of identical code sections, or code sections with identical elements. As this case makes obvious, and as the Court of Appeal below recognized, such a rule is counterintuitive, and violates the strong public policies that section 1387 wasintendedto protect. In contrast, defendant Gerardo Juarez urges the Court to give meaning to the policies that section 1387 is intended to represent and hold that the words “same offense” bar the filing of a third felony complaint where the “essence” of the charges in the third complaint is the same as the essence of the charges that were dismissed in two previous felony complaints. Gerardo Juarez asks the Court to hold that, where the exact same facts and intent are required to prove the charges contained in the third filing documentas were required to prove the chargesin the first two complaints, the prosecution my not purposely avoid section 1387’s bar by simply charging a different code section. As will be apparent below, the term “same offense” has been interpreted by courts notin a strict or technical manner, but rather broadly to effectuate the policies behind section 1387. Court have frowned upon transparent attempts to evade the rule of section 1387 by creative recasting of charges despite no newly discovered facts. Division One of the Second Appellate District Court of Appeal probably summedthe statute up best by holding that “Read together, these statutes [sections 1382, 1384, 1387 and 1387.2] mean that a felony case once dismissed for delay can berefiled, but (subject to certain exceptions) a felony case twice dismissed for delay cannot. In short, a third or subsequent prosecution is barred.” (Paredes v. Superior Court (1999) 77 Cal.App.4" 24, 28, emphasis added.) I. DETERMINING THE APPLICATION OF SECTION 1387(a) A court’s primary task in construing a statute is to determine the legislature’s intent. (Brown v. Kelly Broadcasting Company (1989) 49 Cal.3d 711, 724.) To determine the application of the language in section 1387(a) the Court must start with the statutory language, giving the words their plain, commonsense meaning. Whenthe statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. (People v. Overstreet (1986) 42 Cal.3d 891, 895.) Where the 8 plain language ofa statute is not ambiguous,the plain meaning controls and resort to extrinsic sources to determine the Legislature’s intent is unnecessary. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4" 911, 919.) However, this Court has already stated that section 1387 is “hardly pellucid”. (Traylor, supra, at p. 1212, citing Burris v. Superior Court (2005) 34 Cal.4"" 1012) In determining the Legislature’s intent in enacting section 1387 this Court stated, in Burris, supra, that Section 1387 implements a series of related public policies including the curtailing of prosecutorial harassment by placing limits on the numberof times charges may be refiled. (Burris, supra, at p. 1018) Burris also found that the statute “prevents the evasion of speedytrial rights through the repeated dismissal and refiling of the same charges.” (/d.) The basic purpose of this section (1387) is to limit improper successive prosecutions which harass a defendant. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4" 738, 744; People v. Cossio (1977) 76 Cal.App.3d 369, 372.) The basic policy behind Penal Code section 1387 is to prevent the prosecution from harassing defendants or forum shopping for a judge who would rule in favor of the prosecution. (Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640.) Section 1387 is also intended to help protect the speedy trial limits in section 1382. (Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 30.) It is with these well-accepted recognitions of the Legislature’s intent in enacting section 1387 that this Court must analyze the words “same offense”. III. COURTS HAVE REPEATEDLY AFFIRMED THAT SECTION 1387 MUST BE INTERPRETED IN A MANNER THAT SUPPORTS THE INTENT THAT UNDERLIES THE STATUTE Regardless of the outcomein each particular case, virtually all courts that have attempted to divine the meaning of section 1387 have found that the statute was always intended to prevent the prosecution from harassing defendants with successive prosecutionsand to protect the defendant from a denial of speedytrial rights. Even the Traylor opinion acknowledgedthat: Thus, the central aim of section 1387 is to prevent unlimited dismissals and refilings of complaints charging the same offense. (Traylor, supra, at p. 1214.) Dunn In Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, the prosecution first filed a complaint charging the defendant with simple kidnapping (§ 207), assault with intent to commit rape (§ 220) and unlawful auto taking (Vehicle Code (VC) § 10851). The defendant was held to 10 answer to all of the charges following the preliminary examination. The prosecution thereafter filed an information containing only kidnapping and assault charges, effectively dismissing the vehicle theft charge. On the moring set for trial, the prosecution obtained a dismissal of the information. They then refiled a second complaint with respect to the same incident, charging the defendant with kidnapping for robbery (§ 209), robbery (§ 211, with the object property being the car that was the subject of the VC § 10851), receiving stolen property (§ 496), and accessory to kidnapping, robbery and theft (§ 32). After a preliminary hearing the magistrate dismissed all of the charges except the violation of section 32, finding an insufficiency of evidence as to the kidnapping or robbery. When the prosecutor filed an information that included the dismissed counts the defendant moved under section 1387 to dismiss the kidnapping, robbery and receiving counts. The trial Court denied the defendant’s section 1387 motion, however the Court of Appeal ultimately granted Dunn’s petition for a writ of mandate and ordered dismissal of the kidnapping and robbery counts. (Dunn, supra at p. 1119) Dunn specifically stated, “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 of the same statute.” (Dunn, supra, at pp. 1117-1118, emphasis added) 11 In determining the meaning of “same offense’ Dunn discussed Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, which stated that “The general rule which can bedistilled from these examples is that when the essence of the offense charged in a second action is the same as the essence of the offense in a previously dismissed action the second action will be barred.” (Wallace, supra, at p. 107) While the Wallace case did not give a further definition of “essence”, the Dunn Court found that kidnapping (§ 207) and kidnapping for robbery (§ 209(b)) were obviously of the same “essence”. More importantly, the Court found that auto theft (VC § 10851) and robbery (§ 211), in the circumstances of that case, were of the same “essence” [“‘the “auto theft and robbery is the same since the robbery was specifically alleged to be the taking of the same automobile” (Dunn, supra, at pp. 1118- 1119)]. The “conspiracy to commit murder” charges in 12CF3528 herein are the same “essence” as the previously twice dismissed “attempted murder” charges as they involved the same victims, the same specific intent, and the exact same actions/evidence that supported the attempted murder prosecutions. Just as in Dunn, Respondent was held to answer as chargedat his original preliminary hearing (Case 11NF1767), but the prosecution 12 ultimately moved to dismiss the resulting information when faced with a speedytrial problem. Just as in Dunn, the prosecution here refiled a second complaint with respect to the same criminal incident with materially overlapping (§ 245(b)) and identical (§ 664(a)-187(a)) charges. Again, the prosecution ultimately dismissed their second information (Case 12NF0057) when faced with a speedytrial problem. The Dunn court’s final thoughts before ruling that the disputed charges must be dismissed wentto the purposesof section 1387: {T]he purpose of section 1387 is to prevent the prosecution from harassing defendants with successive prosecutions (Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640) and, in part, to pressure the prosecution to bring the case to trial within the time limits of section 1382 (Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 30).” (Dunn, supra, at p. 1119.) The court immediately went on to observe that Mr. Dunn had been twice subjected to preliminary hearings for taking a car, and each prosecution had endedin dismissal, so further prosecution was barred under section 1387. (/d.) Although the Dunn court ruled that finding a charge of a necessarily included offenseis sufficient to render that charge the “same offense” under section 1387, the court also ruled that a prior dismissal of a vehicle taking/driving (VC § 10851) charge was also considered the “same 13 offense” under section 1387 as a later allegation of robbery (§ 211). The property alleged stolen in the robbery charge was the same vehicle as had been driven without permission of the ownerin the vehicle taking charge. Clearly, if the analysis was limited to “lesser included” analysis the car taking-related charge in Dunn could not have been barred, as each dismissed crime includes elements not included in the other. In discussing the question of what “offenses” were twice terminated within the meaning of section 1387, Dunn specifically stated, “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 of the samestatute.” (Dunn, supra, at pp. 1117-1118) Traylor The prosecution’s reliance on the Traylor opinion to suggest that section 1387 only bars third prosecutions for the same code sections is erroneous. Penal Code section 1387 addresses barsto refilings in various situations. Traylor was a case where a magistrate dismissed a felony charge of gross vehicular manslaughter (§§ 192(c) (1)/193(c) (1)) following a preliminary examination andstated that there was insufficient evidence to support the gross negligence vehicular manslaughter, but there was sufficient evidence of a misdemeanor negligent vehicular manslaughter charge (§ 192(c) (2)). However, that charge was not included in the 14 prosecution’s charging document. The magistrate therefore ordered the prosecutionto file a misdemeanor complaintalleging that charge. (Traylor, supra, at pp. 1210-1211) It is importantto note at the outset that Traylor is a case dealing with section 1387's ban on the refiling of misdemeanors. It had nothing to do with section 1387’s ban on therefiling of twice dismissed felony offenses. Traylor never indicated that section 1387 only bars the third filing, or re-filing, where the subsequently charged offenses contained the exact same elements. The fact that the subsequently filed section 192(c)(2) violation, in Traylor, did not contain exactly the same elements as the dismissed felony violation of section 192(c)(1) was only one factor in determining that the refiling did not involve the “same offense”. Traylor also stated that: “A primary purpose of section 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. In particular, the statute guards against prosecutorial ‘forum shopping’-the persistent refiling of charges the evidence does not support in hopes of finding a sympathetic magistrate who will hold the defendant to answer.”(Traylor, supra, at p. 1209) 15 Specific to the charges contained in that case, the Traylor Court noted that “[§ 1387] 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 elect to refile that lesser charge rather than exercise their undoubted statutory right to refile the felony. Under such circumstances, prosecutors do not abuse, but actually promote, the statutory purposes.” (/d.) In Respondent’s case, the prosecution filed different (§ 182/187(a)) chargesin the third filing specifically because they did not have a “statutory right” to file the previously twice dismissed section 664-187(a) charges. Traylor’s holding was also very limited, as the Court stated, “Under these circumstances, we conclude, the filing and dismissal of the originally charged felony, followed in immediate succession bythe filing of a lesser misdemeanor charge that lacked elements essential to the felony, did not constitute successivefilings “for the same offense.’” (/d.) While Traylor ultimately ruled that the purposes behind section 1387 would not be served by dismissal in that case, the opinion discussed Dunn, supra, and in particular, the Dunn court’s exploration of Wallace v. Municipal Court (1983) 140 Cal. App. 3d 100 (Wallace). (Traylor, supra, at pg. 1216.) Traylor explained that Dunn had recognized that a simple “samestatute” analysis wasinsufficient for section 1387 and: “[fJor guidance about how muchfurther the prohibition might go, the court turned to Wallace [citation], a case that had 16 construed a somewhat analogousstatute, the 1981 version of section 853.6, subdivision (e)(3).” (Id.) Finally, a close reading of Traylor reveals that it does not expressly support the Court of Appeal’s extremely narrow definition of “same offense”. The Court of Appeal in the present case held that Traylor announced a bright-line rule that “[T]wo charged offenses are the ‘same offense’ only if they include ‘identical elements”. (People v. Juarez (2014) 227 Cal.App.4" 1138, 1142, emphasis added, citing Traylor, supra, at p. 1208) Traylor did not actually go so far. At page 1208, Traylor statedthat, “on the facts presented here” the filings were not for the “same offense”, and that finding was based on “several grounds”. (/d.) One of those grounds wasthe fact that the two offense did not contain identical elements. (Id.) Traylor went on to explain that “when two crimes have the same elements, they are the same offense for purposes of...section 1387.”(d., citing Burris v. Superior Court (2005) 34 Cal.4" 1012) Traylor did not state that identical elementsis the only test. Furthermore, Traylor discussed at length, with apparent approval, the Dunn case which held that charges with different elements (§207 and §209; and more importantly §211 and VC §10851) were the “same offense” for purposes of section 1387. The Traylor opinion merely distinguished 17 Dunn, for the same reasons that this Court would likely distinguish the present case from Traylor. After explaining the procedural history of the Dunn case, this Court stated: ‘At the outset, we note that neither Dunn, nor the decision on which it primarily relied, Wallace, involved a situation in which a successive charge was a lesser included misdemeanor offense of one or more previously dismissed felony charges. Indeed, Dunn presented exactly the converse problem, i.e. greater felony offenses charged after prior dismissals of lesser included offenses.” (Traylor, supra, at p. 1217, emphasis original) Salcido Finally, in People v. Salcido (2008) 166 Cal. App. 4th 1303, the defendant, a state prison inmate, struck a corrections officer with a six-foot long board. The battery caused a two-inch laceration which required six stitches. Mr. Salcido was first charged, by complaint, with battery by a prisoner on a non-confined person (§ 4501.5). When that complaint was dismissed Mr. Salcido was charged in a second filing with the same section 4501.5 as well as an assault by a prisoner with a deadly weapon or by meanslikely to cause great bodily injury (§ 4501). That filing was also dismissed, and the prosecution filed on Mr. Salcido a third time, again charging the section 4501 and section 4501.5 offenses, but ultimately adding an allegation that Mr. Salcido inflicted great bodily injury during - 18 the commission of the aforementioned offenses (§ 12022.7). All of the filings were based on the sameincident. The Salcido opinion perfectly explained the critical policy considerations that underscore section 1387 andthat are directly implicated by the prosecution’s attempts to repeatedly charge Respondentfor the same offense. These policies that are intended to be implemented bythe statute are of critical importance whenanalyzing statutes like section 1387, which the California Supreme Court has described as “hardly pellucid”. (Traylor, supra, at pg. 1212, citing Burris, supra, at pg. 1018) The Salcido Court also discussed the fact that the filing of a different charge in the third charging document was not based on some new evidence, and was based entirely on the same evidence that twice before been used to support the section 4501.5 charges, and that: “Had the People believed Salcido's conduct on June 15, 2000, was appropriate for a section 12022.7, subdivision (a), allegation, they should have included that allegation in their prior accusatory pleadings. (Cf. People v. Mancebo (2002) 27 Cal.4th 735, 749 [prosecution's failure to allege an enhancementwasa discretionary charging decision, resulting in waiver of that enhancement].) The People cannot now add that allegation in a third filing of an accusatory pleading to avoid the two-dismissal rule.” (Salcido, supra, at pp. 1313- 1314) Salcido essentially held that the if the prosecution had been aware that the conduct supported a section 12022.7(a) allegation, which was used 19 in the third filing, they should haveincludedit in the earlier filings, and that the failure to do so was a discretionary charging decision which constituted a “waiver”of their ability to chargeit in thethirdfiling. Applied to the present case, the charges containedin the third filing, section 182/187(a) violations, are based on the exact same conduct that gave rise to the chargesalleged in the first two filings, which were alleged as violations of section 664-187(a). If those facts gave rise to charges of section 182/187(a) from the outset, the prosecution should have included those charges in their previous accusatory pleadings. The failure to do so is a discretionary filing decision, which now constitutes a “waiver” of their ability to file the charges in a third complaint. Whatever else it addressed, Salcido very accurately discussed the public policies that section 1387 was intended to implement. It does not matter that the case itself was primarily an analysis of section 1387.1. 20 IV. THE POLICIES UNDERLYING THE TWO DISMISSAL RULE IN SECTION 1387 WOULD BE SERVED BY ENFORCEMENT OF THE RULE TO BAR PROSECUTION OF THE CHARGES IN THE THIRD COMPLAINT IN THE PRESENT CASE, AND THOSE POLICIES WOULD BE DISSERVED AND UNDERMINED IF THIS COMPLAINT WAS ALLOWEDTO BE RE-INSTATED. As has been discussed above, section 1387 is firmly rooted in public policy considerations. It specifically implements a series of related public policies and enforces the rules and the will of the legislature. In reversing the trial court and dismissing the section 4501 charge, the Salcido Court was unimpressed by the court below’s acceptance of the People’s efforts to evade the reach of section 1387 by amendingto allege a violent felony. While citing Dunn, the Salcido court put no focus on the fact that the charge on which Salcido was convicted (§ 4501) was neither a twice dismissed charge nor in a lesser included category with respect to such a charge. Salcido focused instead on the fact that the conduct at issue was the same, no new facts were discovered allowing a legitimate and material adjustment of the charges (cf., Burris v. Superior Court (2005) 34 Cal.4th 1012), the policies promoted by section 1387, and the opportunity for evasion of section 1387 by the People if cases such as this were permitted to stand. Interestingly, while the Court of Appeal in the present | 21 case stated that legitimate concerns regarding repeated filings were raised by the trial court, they were bound by the Supreme Court, and those concerns were properly directed to the Supreme Court’s narrow interpretation of the term “same offense”. (Juarez, supra, at p. 1143.) The Salcido court devoted an entire page of their discussion to the purposes and public policies behind section 1387, and ultimately rejected the People’s attempt to evade the two dismissal rule by (just like in the presentcase) filing a different but related charge. While the trial court had accepted these maneuvers, the Salcido Court of Appeals rejected them and concluded that section 1387’s bar must be enforced in this situation to ensure fairness-related public policies: ‘Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. [Citations.] The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedytrial rights through the repeated dismissal and refiling of the same charges. [Citations.]’ (Burris v. Superior Court [(2005)] 34 Cal.4th at p. 1018.) ‘The purposeof section 1387 is to prevent improper successive attempts to prosecute a defendant.’ (People v. Cossio (1977) 76 Cal.App.3d 369, 372.)”(People v. Salcido, supra, at p. 1309 [other citations omitted in original].) The Traylor Court explained the circumstances of that case’s procedural history and the appropriate and non-manipulative charging decisions that had been made by the prosecution, concluding that the 22 purposesof section 1387 would not be servedbyits application to that case in those circumstances, and for this reason, the Traylor court refused to grant the defendant relief under section 1387. The People had filed and gone to preliminary hearing on a felony, but the magistrate had found that only the lesser included misdemeanor wasproved up andnotthe felony as charged. Mr. Traylor complained that the People filed the misdemeanorthat the judge had found righteous, rather than taking another run at the felony and then perhaps seeking to reduceit to a misdemeanor. (People v. Traylor, supra, at pp. 1208-1209.) Not surprisingly, the Court found this proper and not subject to dismissal under section 1387. The contrast is obvious between the absolutely clean hands of the prosecutor in Traylor (whose only offense was doing what the independent magistrate expressly told him wasfair, and did not manipulate charges to try to preserve the right to prosecute) verses Dunn (where the prosecutor tried to churn the charges to different permutations to evade section 1387) or Salcido (where the prosecutor tried to add additional allegations to evade section1387 by availing himself of section 1387.1) or this case (where the prosecutor suffered two dismissals of attempted murder chargesas a result of being unable proceed, then recast the same crimes under an alternative code section only because he already twice dismissed the afore-mentioned attempted murder charges). The prosecution’s attemptto recast the exact 23 same inchoate crime under a new codesection for a parallel inchoate crime cannot be permitted to evade the public policy considerations underlying section 1387’s two-dismissalrule. Virtually every case that discusses section 1387 stresses the importance of considering the “humanintent” behind the section and not relying simply on “grammatical arguments”. The Court of Appeal’s decision in the present case does exactly the opposite;it relies, at best, on a purely grammatical argument and completely ignores the humanintent that underlies the statute. This Court should also consider the consequences that will flow from its determination of the meaning of the term “same offense”. “Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.” (Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379, 1387: Alford v. Pierno (1972) 27 Cal.App.3d 682, 688; Ivens v. Simon (1963) 212 Cal.App.2d 177, 181.) Adopting the violently narrow interpretation suggested by the prosecution would completely eviscerate the speedytrial right protections intended in section 1387. As this case illustrates, if the Court holds that “same offense” only bars the third filing of the same code section, the prosecution will simply move on to a new code section that might also describe the conduct at hand. Instead of getting twobites at the apple, prosecutors will be entitled to two bites at every different kind of 24 apple they can creatively imagine. Just as an example, every multiple defendant attempted murdercase, like the present one, could be filed and dismissed twice as an attempted murder, then filed and dismissed twice as a conspiracy to commit murder, then twice as an aggravated assault, then twice as a conspiracy to commit an aggravated assault, etc. Such a consequence would rendersection 1387’s bar meaningless. V. DISMISSAL OF THE THIRD FILING WAS REQUIRED BECAUSE THE CONSPIRACY TO COMMIT MURDER CHARGES CONTAINED THEREIN WERE “NECESSARILY INCLUDED OFFENSES” OF THE TWICE DISMISSED ATTEMPTED MURDER CHARGES. Dunn, supra, held that two dismissals of kidnapping charges should also bar a prosecution for kidnapping for the purpose of robbery on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time. (Dunn, supra, at p. 1118) In the present case, dismissal of the conspiracy to commit murder (§ 182/187) was proper because it was a necessarily included, and greater, offense to the previously dismissed charges of attempted murder (§ 664-187). There are twotests to determine if an offense is necessarily included in another. The first test is if the greater offense cannot be committed without committing the lesser because all of the elements of the lesser 25 offense are included in all the elements of the of the greater*, and the second test 1s whether the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed.? (People v. Clark (1990) 50 Cal.3d 583; People v. Barrick (1982) 33 Cal.3d 115; People v. Cannady (1972) 8 Cal.3d 379) A lesser offense 1s necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4™ 108, 117) The complaint in case 12CF3528, the third filing at issue herein, charges Respondents with two counts of conspiracy to commit murder (Counts One and Two). The overt acts listed for Count One were pled as follows: Overt Act 1: In Orange County on June 3, 2011, Gerardo Juarez and Emmanuel Juarez obtain a loaded handgun. Overt Act 2: In Orange County on June 3, 2011, Gerardo Juarez and Emmanuel Juarez wait for John Doe by John Doe’s car. Overt Act 3: In Orange County on June 3, 2011, Gerardo Juarez gives a loaded handgunto his brother Emmanuel Juarez. Overt Act 4: IN Orange County on June 3, 2011, Emmanuel Juarez takes the loaded handgunfrom his brother Gerardo Juarez. 4The “elements test”. ° The “accusatory pleadings test”. 26 Overt Act 5: In Orange County on June 3, 2011, Emmanuel Juarez uses the handgun to shoot John Doe in the chest. (1CT 1-4; 2CT 246-249) The overt acts listed for Count Two werepled as follows: Overt Act 1: In Orange County on June 3, 2011, Emmanuel Juarez gives a loaded handgunto his brother Gerardo Juarez. Overt Act 2: In Orange County on June 3, 2011, Gerardo Juarez takes the loaded handgun from his brother Emmanuel Juarez. Overt Act 3: In Orange County on June 3, 2011, Gerardo Juarez exits from a car driven by EmmanuelJuarez. Overt Act 4: In Orange County on June 3, 2011, Gerardo Juarez uses the handgun to shoot Jane Doe. (1CT 1-4; 2CT 246-249) The pleadings by the prosecution in case 12CF3528 describe the conspiracy to commit murder offenses in such a waythat if they were committed in the manner described, the twice dismissed, lesser offenses of attempted murder would necessarily also have been committed. Attempted murder (§ 664-187) requires (1) the specific intent to commit murder, and (2) a direct but ineffectual act done towardsits commission. (CALCRIM 600) Under the accusatory pleadings test, the conspiracy to commit murder charges contained in 12CF3528 would have been necessarily included offenses to the attempted murder offenses contained in cases 11NF1767 and 12NFO00S7. Under the holding of Dunn, which was reiterated by Traylor when the Supreme Court distinguished Duna, filing of 27 the greater included offenses in 12CF3528 violated section 1387’s two dismissalrule. Review of the cases cited above leads to the inescapable conclusion that section 1387’s ban on third filings must also apply, at a minimum to “new” charges that are “necessarily included” offenses. The Court of Appeal’s opinion does not address this argumentat all as it applies to the defendants herein. Even Traylor, supra, suggested that when one or more dismissed charges of a lesser offense are followed by a new charge of the same or a greater inclusive offense, the subsequent charge includes all the same elements as the earlier ones. (Traylor, supra, at p. 1218) 28 CONCLUSION The prosecution’s filing of a third complaint against Gerardo Juarez that includes conspiracy to commit murder charges instead of the twice- dismissed attempted murder charges1s a blatant attempt to subvert section 1387's two dismissal rule. In fact, the prosecution’s filing of what they creatively call a “new filing” specifically violates one of the key public policy rationales underlying the section. The filing of the third complaint in this case was an attempt to violate Gerardo Juarez’ Constitutionally guaranteed rights to a speedy trial. Reversal of the Court of Appeal’s opinion is required. This Court must fashion an interpretation of the term “same offense” which includes an “essencetest” that gives meaning to the Legislature’s intent in enacting section 1387. Dated:13/14 Respectfully Submitted, FRANK DAVIS Alternate Defender Orange County | ONC.UFLAND efenderSenior Deputy Alternate Attorneysfor Defendant/Respondent Gerardo Juarez 29 CERTIFICATE OF WORD COUNT [California Rules of Court, Rule 28.1(e) (1)] I certify that the text of Defendant/Respondent Gerardo Juarez’ Opening Brief on the Merits consists of 6,532 words as counted by “Word”, the word-processing program used to generateit. Datedthis 13'" day of November, 2014 26 ANTONYC. UFLAND Senior Deputy Alternate Defender 30 DECLARATIONOF SERVICE The People v. Gerardo Juarez (Case No. G049037; O.C.S.Ct. No. 12CF3528) STATE OF CALIFORNIA) ) ss COUNTY OF ORANGE ) Antony Ufland, declares that he is a citizen of the United States, a resident of Orange County, over the age of 18 years, not a party to the above-entitled action and has a business address at 600 West Santa Ana Blvd, #600, Santa Ana, CA 92701. That on the 13" day of November, 2014, I served a copy of Defendant/Respondent Gerardo Juarez’ Opening Brief on the Merits in the above-entitled action by depositing a copy thereof in a sealed envelope, postage thereon fully prepaid, in the United States Mail at Santa Ana, California. Said envelope was addressed as follows: ATTORNEY GENERAL CLERK OF THE COURT State of California COURT OF APPEAL P.O. Box 85266 Fourth Appellate District, Div. 3 San Diego, CA 92186-5266 601 W. Santa Ana Blvd. Santa Ana, CA 92701 TONY RACKAUCKAS DEPUTY COUNTY CLERK DISTRICT ATTORNEY Attn: Hon. Gregg L. Prickett 401 Civic Center Dr. Orange County Superior Court Santa Ana, CA 92701 Dept. C42 Attn: Law & Motion 700 Civic Center Drive West Santa Ana, CA 92701 GERARDO JUAREZ JOHN F. SCHUCK 1521 E. HardingSt. Law Office of John Schuck Long Beach, CA 90805 885 N. San Antonio Rd. Ste A Los Altos, CA 94022 31 APPELLATE DEFENDERS, INC 555 W. Beech St., Ste 300 San Diego, CA 92101 I declare under penalty of perjury that the foregoing is true and correct. Executed on this 13'" day of November, 2014, at Santa Ana, California. CA AntonyC. Ufland 32