PEOPLE v. JUAREZ

Respondent, Gerardo Juarez, Petition for Review

Cal.August 18, 2014

S2ivs39g Cony Case No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA PlaintiffandAppellant, SUPREMECOURT ribf VS. AUG 1 8 2014 GERARDO JUAREZ AND EMMANUEL JUAREZ Defendants and Respondents, Frank &. MoGuire Clerk RESPONDENT GERARDO JUAREZ’ Deputy oqpe PETITION FOR REVIEW From the Published Opinion ofthe Court ofAppeal 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 Attorneysfor Respondent GERARDO JUAREZ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Appellant VS. GERARDO JUAREZ, EMMANUEL JUAREZ Defendants/Respondents. Ne we r? N a m e No me ” Ne we r” N o m e N e m m s e ” N e e ” N e w ” N e e N e e N e m N e e N e e N o e N e e N e e N e e e e ” N e e ” e e e ” e e e ” e e e ” No.: RESPONDENT GERARDO JUAREZ’ PETITION FOR REVIEW From the published opinion of the Court of Appeal, Fourth District, Division Three DCA No.: G049037 OC S. Ct. No.: 12CF3528 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........... 00.00. ccccccecceccceecuceuccucsenseceececeecesccccce i Table of Authorities..........00 000 0c ccc ceccecccuccecceceeceeceeeesecceccceccce ii I. Issue Presented for ReVieW............cccccccecccceseccueecccecceccccce.2 II. Reasons why Review Should be Granted...............00ccc0eceecce.3 Hl. Statementofthe Cases.........0.. 0. cccceccecaccececcecececcecececccecees4 IV. Statement of Facts........0 0.0. cc ccc cecccccecuccecuceccecececcececcccce6 V. ALQUMEME..0 0... eee cee cece eee ececceaccueceseescstesuececerserevense7 A. THE SUPERIOR COURT PROPERLY DISMISSED SUPERIOR COURTCASE 12CF3528, THE THIRD FILING AGAINST RESPONDENT... ...ccccceccecccccccesecceeeees 7 B. 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, AND THOSE POLICIES WOULD BE DISSERVED AND UNDERMINED IF THIS COMPLAINT WAS ALLOWEDTO BE RE-INSTATED ween eee eee e eee e eee ne en aen esse eeeseceucseeeesestaeaceuaneuteresecenevece 18 C. DISMISSAL OF SUPERIOR COURT CASE 12CF3528 WAS REQUIRED BECAUSE THE CONSPIRACY TO COMMIT MURDER CHARGES CONTAINED THEREIN. WERE “NECESSARILY INCLUDED OFFENSES” OF THE TWICE DISMISSED ATTEMPTED MURDER CHARGES wate cence cece teen eee eeeeeeeeeunuaseeceeaeennerstetecneutcenneteeencccccs22 VI. Conclusion.........0.0. 0.0. c cece ccecececccaeccccecucecevecereccceccccs25 Appendix A (Published Opinion of the Court of Appeal)...............27 Appendix B (Order Certifying Opinion for Publication)..................28 Certificate of Word Coumt............. 2... c cece ccccececeecceeecceeeseeeeees29 Declaration of Service...............0 cece eee eee c cece eee ceen conc ceeeeeeseeees30 TABLE OF AUTHORITIES Cases California Supreme Court: People v. Traylor (2009) 46 Cal.4" 1205..........::0cc0eeeeeee+ +passim Burris v. Superior Court (2005) 34 Cal.4" 1012................ 15, 16, 19 People v. Clark (1990) 50 Cal.3d 583.............. eee ee eee e eee e ee eeee ee22 People v. Barrick(1982) 33 Cal.3d 115.220... ...c ccc cece ee eee en ene ee eee22 People v. Cannady (1972) 8 Cal.3d 379.00... ...cccccecee cece eee e eee enna22 People v. Birks (1998) 19 Cal.4™ 108............:ccceeeeeeeeneen seen ennens23 California Court ofAppeal: Dunn v. Superior Court (1984) 159 Cal.App.3d 1110............passim People v. Salcido (2008) 166 Cal.App.4™ 1303..............s008passim Wallace v. Municipal Court (1983) 140 Cal.App.3d 100...........9, 14 Statutes Penal Code: BBDLecce cece erence ene tence eee nee e ee eens ee nen eee aes ESE E ese ne EEE EEE EE ES 8 § 182/187... cece cece eee cee eens eens ena e ease eaee ees 3, 5, 13, 17, 22 § L92(C)L)..eee ec ec nec ec cence eeeeneeseeeeeeeceueueeauee see sauseesees 12 82(0) )12 § L93(C)L).oecece cece cece ea eceesceceeaeeeeesccssesssssessssssssseseel 2 § 207...ecc cece nc ee ee neeeeceenececeetseeeaeeeseseueeeeeeesss8,9, 15 § 209...enecece eee ee eee ee eeeeneceeaeeeeeeeeneneeenegensens8,9, 15 BLLcecee ceaececeeeeeeeeeeseneensaeaeeueeneass 8,9, 11, 15 § 220...eccee cee ec cee eececeeeeeaeeeeeaeseseeseucaveusesuraeeneenewers 8 § 245(BD)... cece ec eeceececeeeeeaeceeceeceesaeeescucuensnseuceeaeeenees 10 8496.eeeeee ec eee eee eee eeeeeneeaerseteeeeseueeesaeteneneeens 8 § 664-1870.cece cece ences eeeeeeeenenees3, 4, 10, 13, 17, 22, 24 § 1382...ccccec cence eee eceeeecneeseseseessusavavereueeneneeass21 § B87.cece ee cec nce ceeececeeeeeeuecessetesecseaeueeueneneanspassim § B87eecec cence ete eeeeteeeeseeessssssseeel 821 §4SOLeeeeee ee ee ceeeeneeeeeeaeeaeaeeneaeeeeeaceeenensans 16, 18 §ASOL.S0.cece e cece cee ee eee eseeeeeeeeaeeeseeeeeesueeeeneass 16, 17 § 2022.7.ceecece cence ec sence eeeeeeeeneneseeeeaseesenees 16, 17 Vehicle Code: § LO8SDeeeceec eee eneceeeesaeeneseenegeeaeas 8,9, 11, 15 Other CALCRIM: GOO... cece cc ccc cee ne eee eeneeeneeteeeneeeeceeassssssssessstsssesseeeseesessQO Rules of Court: a1 8.504(b)(3).....ccscccsecscessseccseceessessesseecsseececssssseuseeeeeeeeene 1 8.516... cccccccscccesscceceeecesnsecssesseessssvesuesseseesevsussesueeneees2 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No.: RESPONDENT GERARDO JUAREZ?’ PETITION FOR REVIEW Plaintiff/Appellant From the published opinion of the Court of Appeal, Fourth VS. District, Division Three DCA No.: G049037 OC S. Ct. No.: 12CF3528 GERARDO JUAREZ, EMMANUEL JUAREZ Defendants/Respondents. e w e N e e N e e N e e e e e e e e e e e e e e e e e e e s e e e e e e e s e s a e e s e e w e TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT Respondent, Gerardo Juarez, pursuant to California Rules of Court 8.500 and 8.516, hereby petitions this honorable court for review to consider the published opinion of the Court of Appeal of the State of California, Fourth Appellate District, Division Three, filed on June 30, 2014 and ordered published on July 9, 2014. The opinion reversed the 1 Orange County Superior Court’s July 25, 2013 order, which granted Respondent’s Petition for a Writ of Mandate/Prohibition, and holds that Penal Code section 1387 bar against third filings for the “same offense” only applies to repeated filings for violations of the exact same code sections. A true copy of the court’s opinion is attached hereto as “Appendix A”. A true copy of the July 9, 2014 Order Certifying the Opinion for Publication is attached hereto as “Appendix B”. A Petition for Rehearing was not filed in the Court of Appeal. (California Rules of Court 8.504(b)(3)) Co-respondent Emmanuel Juarez filed a Petition for Review in this consolidated appeal on August 11, 2014 under California Supreme Court case number S219889. I. ISSUE PRESENTED FOR REVIEW Does Penal Code! section 1387’s prohibition on a 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? ? All subsequentreferencesto codesections are the California Penal Code, unless otherwise indicated. 2 . IL. REASONS WHY REVIEW SHOULD BE GRANTED Respondent requests that this court grant review to settle an important issue of state wide import, with far reaching impact, which was expressly left unsettled by this Court in People v. Traylor (2009) 46 Cal.4® 1205, 96 Cal.Rptr.3d 277, and to settle a discrepancy between precedent established by the First District Court of Appeal, Division Four, in Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, one hand, and the opinion issued by the Court of Appeal in this matter on the other. Respondent was charged in two successive criminal informations with violations of section 664-187, subdivision (a), premeditated attempted murder for the same conduct which allegedly occurred on June 3, 2011. Each of those informations was dismissed prior to trial due to the prosecution’s inability to proceed. After the second information was dismissed on December 10, 2012, the prosecution immediately filed a third case, regarding the exact same conduct, but this time charging the conduct as violations of section 182/187, conspiracy to commit murder, arguing that this was not a “third”filing, but rather a “new”filing. If the Court of Appeal’s opinion is allowed to stand, Respondentwill face a third successive felony prosecution for his alleged conduct on June 3, 2011, despite the fact that the Court of Appeal recognized that such a prosecution would be “counterintuitive” and would be “generally not in 3 keeping with policies that section 1387 is supposed to represent”. (DCA Op.at p. 10) This Court is currently examining this exact issue in Barbosa v. Superior Court (People), 8219615. Hil. STATEMENT OF THE CASES 1 1NF1767 On November 21, 2011 respondent and his brother, co-respondent Emmanuel Juarez, were charged in case 11NF1767 with, inter alia, violations of section 664/187(a), premeditated and deliberate attempted murder (counts 1, 2). (1CT 90-92.)? All charges arose out of a single incident allegedly occurring on June 3, 2011. On July 16, 2012 the prosecution dismissed the case. (1CT 15; 2CT 261.) 12NF0057 On July 16, 2012, respondent and his brother, co-respondent Emmanuel Juarez, were again charged, this time in case 12NF0057 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 1INF1767. (1CT 94-98.) An information alleging the same attempted ? “CT”refers to the Clerk’s Transcript in case no. G049037. “RT” refers to the Reporter’s Transcript in case no. G049037. 4 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. (1CT 103-104; 2CT 133.) 12CF3528 On December 10, 2012, based on the same June 3, 2011 incident that formed the basis of the charges in cases 11NF1767 and 12NF0057, the prosecution filed a third case against respondents in case number 12CF3528. However, in an attempt to avoid the two dismissal rule of section 1387, the prosecution charged respondents with conspiracy to commit murder, violations of section 182/187(a). (1CT 109-1 12; 2CT 250- 253.) On December 13, 2012 co-respondent Emmanuel Juarez filed a Notice of Motion and Motion to Dismiss case number 12CF3528 pursuant to section 1387. On December 24, 2012 respondent filed a Notice of Joinderin co-respondent Emmanuel Juarez’ Motion to Dismiss. 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 14, 2013, respondent filed a petition for a writ of 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. (2CT 305-306; RT 34-36.) 5 On September 19, 2013 the prosecution timely filed a notice of appeal. (2CT 349-350.) On January 2, 2014 the Court of Appeal consolidated the prosecution’s appeal of respondent’s case with the prosecution’s identical appeal of co-respondent Emmanuel Juarez’ case. On June 30, 2014 the Court of Appeal reversed the judgment ofthe 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 was filed on behalf of co-respondent Emmanuel Juarez under California Supreme Court case number $219889. IV. STATEMENTOF FACTS Respondent Gerardo Juarez hereby incorporates by reference the brief statement of facts offered by co-respondent Emmanuel Juarez in his Petition for Review ofthis consolidated appeal, filed on August 11, 2014, in California Supreme Court case number $219889. Vv. ARGUMENT A. THE SUPERIOR COURT PROPERLY DISMISSED SUPERIOR COURT CASE 12CF3528, THE THIRD FILING AGAINST RESPONDENT. Penal Codesection 1387, subdivision (a), 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 offenseif it is a felony orifit 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, 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 term “same offense” has been interpreted not in a strict or technical manner, but rather broadly to effectuate the policies behind section 1387. Courts have frowned upon transparent attempts to evade the tule of section 1387 by creative recasting of charges despite no newly discoveredfacts. 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 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 morning 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 dismissedall of the charges except the violation of section 32, finding an insufficiency of evidence as to the kidnapping or robbery. When the prosecutorfiled 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) 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 foundthat 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 12CF3528herein are the same “essence” as the previously twice dismissed “attempted murder” chargesas 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 charged at his original preliminary hearing (Case 11NF1767), but the prosecution ultimately moved to dismiss the resulting information when faced with a speedytrial problem. Just as in Dunn, the prosecutionhererefiled 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 dismissedwent to the purposes ofsection 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.) 10 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 ended in dismissal, so further prosecution was barred under section 1387. (/d.) Although the Dunn court ruled that finding a charge of a necessarily includedoffenseis 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 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. Dunn specifically stated, “Although section 1387 bars charges of ‘the sameoffense,’ 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) 11 Traylor Reliance on People v Traylor (2009) 46 Cal.4th 1205,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 and stated that there wasinsufficient 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 prosecution’s charging document. The magistrate therefore ordered the prosecution to file a misdemeanor complaintalleging that charge. (Traylor, supra, at pp. 1210-1211) It is important to 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 onthe refiling 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 12 determining that the refiling did not involve the “same offense”. 7;raylor 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) Specific to the charges contained in that case, the 7,raylor Court noted that “[§ 1387] was not intended to penalize the People when, following a magistrate's dismissal ofa 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 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 wasalso very limited, as the Court stated, “Under these circumstances, we conclude, the filing and dismissal of the originally charged felony, followed in immediate succession by the filing of a lesser misdemeanor charge that lacked elements essential to the felony, did not constitute successivefilings ‘for the same offense.’”(Id.) 13 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 was insufficient for section 1387 and: “[flor guidance about how much further the prohibition might go, the court turned to Wallace [citation], a case that had 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”. (Op. at p. 5, emphasis added,citing Traylor, supra, at p. 1208) 7;raylor did not actually go sofar. At page 1208, Traylorstated that, “on the facts presented here”the filings were not for the “same offense”, and that finding was based on “several grounds”. (Jd.) One of those grounds wasthe fact that the two offense did not contain identical elements. (/d.) Traylor went on to explain that “when two crimes have the same elements, they are the same offense for purposes 14 of...section 1387.”(/d., citing Burris v. Superior Court (2005) 34 Cal.4" 1012) Traylor did not state that identical elements is the only test. Furthermore, Traylor discussed at length, with apparent approval, the Dunn case which heldthat 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 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 misdemeanoroffense of one or more previously dismissed felony charges. Indeed, Dunnpresented exactly the converse problem, i.e. greater felony offenses charged after prior dismissals of lesser included offenses.” (Traylor, supra,at p. 1217, emphasis original) 15 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 wasfirst 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 the commission of the aforementioned offenses (§ 12022.7). All of the filings were based on the same incident. The Salcido opinion perfectly explained the critical policy considerations that underscore section 1387 and that are directly implicated by the prosecution’s attempts to repeatedly charge Respondent for the same offense. These policies that are intended to be implemented by the statute are ofcritical importance when analyzingstatutes like section 1387, which the California Supreme Court has described as “hardly pellucid”. (Traylor, supra, at pg. 1212,citing Burris, supra, at pg. 1018) 16 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, andthat: “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 enhancement wasa 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 supporteda section 12022.7(a) allegation, which was used in the third filing, they should have includedit in the earlier filings, and that the failure to do so was a discretionary charging decision which constituted a “waiver”oftheir ability to charge it in the third filing. Applied to the present case, the charges containedin the third filing, section 182/187(a) violations, are based on the exact same conduct that gaverise to the charges alleged 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 chargesin their previous accusatory pleadings. Thefailure to do so is 17 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 matterthat the case itself was primarily an analysis of section 1387.1. B. THE POLICIES UNDERLYING THE TWO DISMISSAL RULE IN SECTION 1387 WOULD BE SERVED BY ENFORCEMENT OF THE RULE TO BAR PROSECUTION OF THE CHARGESIN THE THIRD COMPLAINT, AND THOSE POLICIES WOULD BE DISSERVED AND UNDERMINED IF THIS COMPLAINT WAS ALLOWED TO BE RE- INSTATED. Section 1387 is firmly rooted in public policy considerations. It specifically implements a series of related public policies and enforces the rules andthe will ofthe 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 18 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 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”. (DCA Op.at p. 7) 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. Whilethe 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 implementsa series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may berefiled. [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 19 charges. [Citations.]’ (Burris v. Superior Court [(2005)] 34 Cal.4th at p. 1018.) ‘The purpose ofsection 1387is 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].) Even the Traylor Court explained the circumstances of that case below and the appropriate and non-manipulative charging decisions below, concluding that the purposes of section 1387 would not be served by its application to that case in those circumstances, and for this reason, the Traylor court refused to grant the defendantrelief 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 was proved up and not the 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 reduce it to a misdemeanor. (People v. Traylor, supra, at pp. 1208-1209.) Not surprisingly, the Court foundthis 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 was fair, and did not manipulate charges to try to preserve the right to prosecute) verses Dunn (where the prosecutor 20 tried to churn the chargesto different permutations to evade section 1387) or Salcido (wherethe prosecutortried to add additional allegations to evade section1387 by availing himself of section 1387.1) or this case (where the prosecutor delayed the proceedings until dismissed in lieu of violating section 1382 and untimely Brady compliance, then actually violated section 1382 to accommodatea police witness, then recast the same crimes under an alternative code section). The prosecution’s attempt to recast the exact same inchoate crime under a new code section 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 “human intent” 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 human intent that underlies the statute. 21 C. DISMISSAL OF SUPERIOR COURT CASE 12CF3528 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 determineif 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 offense are included in all the elements of the of the greater’, and the second test is whether the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that mannerthe 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 is necessarily included in a 3 The “elementstest”. * The “accusatorypleadingstest”. 22 greater offense if either the statutory elements of the greater offense, or the facts actually allegedin 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 werepled as follows: Overt Act 1: In Orange County on June 3, 201 1, Gerardo Juarez and EmmanuelJuarez obtain a loaded handgun. Overt Act 2: In Orange County on June 3, 201 I, Gerardo Juarez and Emmanuel Juarez wait for John Doe by John Doe’scar. 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 handgun from his brother Gerardo Juarez. Overt Act 5: In Orange County on June 3, 201 1, Emmanuel Juarez uses the handgun to shoot John Doein the chest. (ICT 1-4; 2CT 246-249) Theovert acts listed for Count Two were pled as follows: Overt Act 1: In Orange County on June 3, 2011, Emmanuel Juarez gives a loaded handgun to his brother Gerardo Juarez. Overt Act 2: In Orange County on June 3, 2011, Gerardo Juarez takes the loaded handgun from his brother EmmanuelJuarez. Overt Act 3: In Orange County on June 3, 2011, Gerardo Juarez exits from a car driven by Emmanuel Juarez. 23 Overt Act 4: In Orange County on June 3, 2011, Gerardo Juarez uses the handgunto 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 way that if they were committed in the mannerdescribed, 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 towards its 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 12NF0057. Under the holding of Dunn, which was reiterated by Traylor when the Supreme Court distinguished Dunn, filing of the greater included offenses in 12CF3528 violated section 1387’s two dismissalrule. Review ofthe 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. 24 Even Traylor 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 includesall the same elements as the earlier ones. (Traylor, supra, at p. 1218) VI. CONCLUSION In its Traylor opinion, this Court expressly stated “we have carefully limited our holding to the situation in which aninitial felony charge, having been dismissed by a magistrate on groundsthat 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(a) should apply when dismissed felony charges are followed by one or more new complaints charging lesser includedfelonies...”. (Tiraylor, supra, at fn. 10) The present case represent the very question that 7)raylor expressly left open. If the Court is to give meaning to the public policies that underlie section 1387, and not simply rely on “grammatical arguments”, then it mustfind that the charges in the third filing in the present case were 25 for the “same offense” as those contained in the first two filed and dismissed cases. For the reasons stated above, review is warranted. Dated: August 13, 2014 Respectfully submitted FRANK DAVIS Alternate Defender Orange,County CO, Co ANTONYC. UFLAND Senior Deputy Alternate Defender Attorneysfor Petitioner Gerardo Juarez 26 APPENDIX A (Court ofAppeal Published Opinion) 27 NOTTOBE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court,rule 8.1115(a), prohibits courts and parties from citingor relying on opinions not certified forpublication or ordered published, except as Specified by rule 8.1115(b). This opinion has not been certified for publicationor ordered published for purposesof rule 8.1115. IN THE COURT OF APPEALOF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Appellant, G049037 (consol. with G04903 8) Vv. (Super. Ct. No. 12CF3528) GERARDO JUAREZ and EMMANUEL OPINION JUAREZ, Defendants and Respondents. Appeal from a judgmentofthe Superior Court of Orange County, Gregg Prickett, Judge. Reversed. Tony Rackauckas, District Attomey, 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 forDefendant and Respondent EmmanuelJuarez. * * * Penal Code section 1387! limits the numberof times 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 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 Emmanuel Juarez, alleging, among other things, two counts of attempted murder against each defendant. In November201 1, 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. ; Because the defendants share the same last name, we refer to them byfirst name to avoid confusion. Doe. John Doe’s companion, Jane Doe, attemptedto flee, but defendants caught up with her and Gerardo shot herin 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 countofpossession 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 disclosedin 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 readyto proceedto trial 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 December 10, the People were again not ready to proceed, so the court dismissedthe 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 complaintindicate the charges were based on the sameincident as the previous complaints. Defendants movedto dismissthis complaint under section 1387. The magistrate denied the motion without comment. Defendant then petitioned the superiorcourt 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 yourtheory of refiling? [9] 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 thetrial court, defense counsel claimed that the People dismissedthefirst time because they had not produced 800 pages of mandatorydiscovery 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 greatbodily 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 sameoffenseif 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 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 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 and refiled a felony complaint. (/d. at pp. 1015-1016.) The defendant moved to dismiss undersection 1387. (Burris, at p. 1016.) Is this considered a misdemeanorfor purposes of section 1387, such that refiling is impermissible, or a felony? The Burris 4 court held it was the secondfiling that determined whichrule applied. (Burris, at p. 1019.) Since the secondfiling was a felony complaint, the refiling was permissible. The logical consequenceofthat rule wastested in People v. Traylor (2009) 46 Cal.4th 1205 (Traylor), where the opposite occurred. The Peoplefiled 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 misdemeanorchargeofnegligent vehicular manslaughter. (Jd. at p. 1210.) The People then refiled the misdemeanorcharge, and the defendant movedto dismiss. (/d. at p. 1211.) Under the rule announced in Burris, since the misdemeanor charge was the secondfiling, the rule preventinga refiling of a misdemeanor charge applied. To avoidthat result, the Traylor court took a narrow view ofthe statutory phrase “sameoffense.” Two charged offensesare the “same offense” only if they include “identical elements.” (Traylor, supra, 46 Ca.4th at p. 1208.) The court madeclearthat the protection offered by section 1387 is “narrow,” and emphasized thatin interpreting the term “sameoffense,”it is not the underlying criminal conductthat 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 notthe “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 andrefiling of identical charges. In particular, the Statute guards against prosecutorial ‘forum shopping’ - thepersistentrefiling of charges the evidence does not support in hopes offinding a sympathetic magistrate who will hold the defendant to answer. Onthe other hand,the statute was not intended to penalize the People when,following a magistrate’s dismissalofa first felony complaint on the groundsthe evidence supports only a lesser included misdemeanor,they elect to refile that lesser charge rather than exercise their undoubted statutory right to refile thefelony. 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 notshare identical elements, but permitting a refiling here wouldviolate 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 does not require 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, unlikethe 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 under]ying 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 numberoftimes charges mayberefiled. [Citations.] The statute also reduces the possibility that prosecutors might use the powerto dismiss andrefile 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 the result of the People failing to timely prepare to move forward. Thustheydirectly implicate defendant’s right to a speedy trial. And while there is no evidence ofintentional harassment here, the trial court’s forceful questioning of the prosecutorraises legitimate concerns about the possibility of repeated filings if we only look at the elements ofthe 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 narrowinterpretation of the term “same offense.” Also, though examining outcomesin light of policy goals may be a usefultool in interpreting otherwise ambiguous language (Burris, supra, 34 Cal.4th at pp. 1017-1018), there is nothing ambiguousabout our high court’s interpretation of “same offense,” and we are not atliberty to deviate from that interpretation. Defendants encourageusto apply a broader definition of “same offense” that would treat attempted murder and conspiring to murder as the same offense. They principally rely on Wallacev. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace) and Dunn v. 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 essenceof the offense chargedin the later filing is the sameas the essenceofthe offense chargedin the earlier filing, the latter filing is barred. Wallace framedtheissue beforeit as follows: “[S]ection 853.6, subdivision (e)(3), provides that the failure of the prosecutorto file the notice to appear or a formal complaint in the municipal or justice court within 25 days ofthe arrest shall bar prosecution of the misdemeanorcharged in the notice to appear. Theprincipal issue in this writ proceeding is whether, for the purposesofthe bar of that section, the crime of driving underthe influenceof 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 notedthat it was applying the same conceptas the “same offense” language usedin section 1387. (Wallace, at p. 105.) In reaching its conclusion, the Wallace court stated, “The general rule . . is that when the essenceofthe offense charged in a secondactionis the sameas the essence ofthe offense in a previously dismissed action the second action will be barred.” (Jd. at p. 107, italics added.) Although Wallace did not define “essence,” it went on to note that one can drive underthe influence without having a blood-alcohol level of 0.10 percent or more, and vice versa, and thus the twoare notthe same offense. (/d. at p. 108.) In Dunnthe Peoplefirst 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 and refiled 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 onthetheory that to charge the greater would bealso 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 doesnot include an auto theft, the concept of necessarilyincluded offenses permits reference to the facts in the accusatory pleading. [Citation]. Here, the essence ofthe auto theft and robbery is the samesince 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 ofthe charges and the underlying criminalact, as well as whether the third refiling involves the same Statutory offense,” which Emmanuel goes on to describe as “[a] consideration ofall the circumstances tee The problem is, Traylor extensively discussed Dunn and interpreted it as applying the same elementstest. (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 contained all of the same elements as the earlier-charged crimes. (7;raylor, at pp. 1217-1218.) Since the same elements test wassatisfied, applying the bar of section 1387 was proper. Further, the Traylor court expressly rejected the contentionthat “section 1387[, subdivision (a)] should apply to all chargesarising 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 byits 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 have carefully limited our holding to the situation in which aninitialfelony charge, having been dismissed by a magistrate on groundsthat the evidence supports only a lesser included misdemeanor,is followed bythe filing of a second complaint charging that misdemeanoroffense. We do 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 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 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 hands are 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 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] APPENDIX B (Court ofAppeal Order Certifying the Opinion for Publication) 28 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT COURTOF APPEAL-ATH OFGT Diy 4 FILED DIVISION THREE JUL 89 2014 PEOPLE, Deputy Clerk Plaintiff and Appellant, G049037 (consol. with G049038) V. (Super. Ct. No. 12CF3528) GERARDO JUAREZ and EMMANUEL ORDER JUAREZ, Defendants and Respondents. Appellant has requested that our opinion, filed on June 30, 2014, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rule 8.1 105(c). The request is GRANTED. The opinion is ordered published in the Official Reports. IKOLA,J. WE CONCUR: O’LEARY,P. J. RYLAARSDAM,J. COPY CERTIFICATE OF WORD COUNT [California Rules of Court, Rule 28.1(e) (1)] I certify that the text of Petitioner’s Petition for Review consists of 5,294 words as counted by “Word”, the word-processing program usedto generate it. Dated this 13 day ofAugust, 2014 CL Co ANTONY C. UFLAND l Senior Deputy Alternate Defender 29 DECLARATION OF 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 thathe 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 hasa business address at 600 West Santa Ana Blvd, #600, Santa Ana, CA 92701. That on the 13" day of August, 2014, I served a copy of the Petition for Review 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 addressedasfollows: ATTORNEY GENERAL State of California P.O. Box 85266 San Diego, CA 92186-5266 TONY RACKAUCKAS DISTRICT ATTORNEY 401 Civic Center Dr. Santa Ana, CA 92701 Attn: Law & Motion GERARDO JUAREZ 1521 E. HardingSt. Long Beach, CA 90805 APPELLATE DEFENDERS, INC 555 W. BeechSt., Ste 300 San Diego, CA 92101 CLERK OF THE COURT COURT OF APPEAL Fourth Appellate District, Div. 3 601 W. Santa Ana Blvd. Santa Ana, CA 92701 DEPUTY COUNTY CLERK Attn: Hon. Gregg L. Prickett Orange County Superior Court Dept. C5 700 Civic Center Drive West Santa Ana, CA 92701 JOHN F. SCHUCK Law Office of John Schuck 885 N. San Antonio Rd. Ste A Los Altos, CA 94022 30 I declare under penalty of perjury that the foregoing is true and correct. Executed on this 13day of August, 2014, at Santa Ana, California. Co. f Antony C. Ufland | 31