Supreme Court of California Justia
Citation 46 Cal. 4th 1205, 210 P.3d 433, 96 Cal. Rptr. 3d 277

People v. Traylor

Filed 7/13/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S157820
v.
Ct.App. 3 C053172
DALE TRAYLOR,
Nevada County
Defendant and Respondent.
Super. Ct. No. M05-0569
____________________________________)

Penal Code section 1387, subdivision (a) (section 1387(a))1 sets forth
circumstances under which the dismissal of a criminal action will bar further
prosecution. In most instances, under this statute, one such dismissal precludes
further prosecution “for the same offense” (1) “if it is a felony or . . . a
misdemeanor charged together with a felony,” and the action previously has been
dismissed, or (2) “if it is a misdemeanor not charged together with a felony.”
In this case, a nine-year-old boy was killed when defendant‟s sports utility
vehicle collided with the victim‟s motorcycle. The issue is whether, under section
1387(a), the prior dismissal of a felony complaint against defendant for vehicular
manslaughter with gross negligence barred the current prosecution for the lesser

1
All further unlabeled statutory references are to the Penal Code.
1


included misdemeanor offense of vehicular manslaughter with ordinary
negligence.
On the facts presented here, we conclude the answer is no. For purposes of
section 1387(a), the misdemeanor prosecution in this case was not “for the same
offense” as that charged in the prior felony complaint. We base this conclusion on
several grounds.
First, the felony and misdemeanor charges did not include the identical
elements. The misdemeanor charge lacked the felony charge‟s requirement of
proof that defendant operated his vehicle with gross negligence. In Burris v.
Superior Court (2005) 34 Cal.4th 1012 (Burris), we suggested that “when two
crimes have the same elements, they are the same offense for purposes of . . .
section 1387.” (Burris, supra, at pp. 1016-1017, fn. 3, italics added.)
Second, we also made clear in Burris that “grammatical arguments” about
the meaning of section 1387(a) are not dispositive, and we must approach
interpretation of this statute by seeking to divine “ „the human intent that underlies
the statute.‟ ” (Burris, supra, 34 Cal.4th 1012, 1017.) We consider the meaning of
the phrase “for the same offense” in this spirit.
A primary purpose of section 1387(a) is to protect a defendant against
harassment, and the denial of speedy-trial rights, that results from the repeated
dismissal and refiling of identical charges. In particular, the statute guards against
prosecutorial “forum shopping” — the persistent refiling of charges the evidence
does not support in hopes of finding a sympathetic magistrate who will hold the
defendant to answer. On the other hand, the statute was not intended to penalize
the People when, following a magistrate‟s dismissal of a first felony complaint on
the grounds the evidence supports only a lesser included misdemeanor, they elect
to refile that lesser charge rather than exercise their undoubted statutory right to
2
refile the felony. Under such circumstances, prosecutors do not abuse, but actually
promote, the statutory purposes.
That is what happened here. The magistrate who dismissed the initial
felony complaint explicitly found that while evidence of felony gross negligence
was lacking, there was sufficient evidence defendant had committed the lesser
misdemeanor crime of vehicular manslaughter based on ordinary negligence.
Ultimately accepting that determination, the prosecutor filed a second complaint
setting forth the lesser misdemeanor charges.
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 successive filings “for the same offense.” Accordingly, section 1387(a)
did not preclude the People from proceeding on the misdemeanor complaint.
The Court of Appeal decided otherwise, holding that under Burris, supra,
34 Cal.4th 1012, prior dismissal of a felony complaint against defendant barred his
current prosecution for the same conduct as a misdemeanor. Because we find that
the Court of Appeal erred, we will reverse its judgment.
FACTS
Late on the afternoon of April 10, 2004, nine-year-old Tyler Lason was
riding a motorcycle westbound on Creek View Drive near his Grass Valley home.
His motorcycle collided with an eastbound Chevrolet Blazer driven by defendant
Dale Traylor. Tyler died as a result of the accident.
3
The prosecution filed a complaint charging defendant with the felony of
vehicular manslaughter with gross negligence. (§§ 192, subd. (c)(1), 193,
subd. (c)(1).)2 The preliminary hearing adduced the following evidence:
At the time of the accident, the weather was clear and cool, and the
pavement was dry and in good condition. Creek View Drive is a narrow, winding,
and undulating two-lane private road. The collision occurred near the crown of a
hill, where a driver approaching from one side cannot see a vehicle approaching
from the other until the last moment. Nothing indicated that defendant‟s Blazer
had already crested the hill at the time of the accident. Defendant testified he was
travelling at 15 miles per hour just before the collision; skid mark analysis
indicated a speed over 20 miles per hour. The eastbound Blazer came to rest at a
point entirely in the westbound lane.
The investigating officer, who arrived at the scene between 20 and 50
minutes after the accident, concluded it was the result of the Blazer being driven
on the wrong side of the road. After detecting a faint odor of alcohol on
defendant‟s breath, the officer administered balance and coordination tests, which
defendant completed successfully, and a preliminary alcohol screening test, which
indicated a low alcohol content in defendant‟s blood. The officer opined that
neither speed, alcohol consumption, nor the Blazer‟s inoperable antilock braking
system, or ABS, was a factor in the accident.
As one approaches the crown of the hill from the west, an optical illusion
creates the impression that there is a tree in the middle of the road. A longtime

2
Vehicular manslaughter with gross negligence is a “wobbler,” which may
be punished as either a felony or a misdemeanor. (§§ 17, 192, subd. (c)(1), 193,
subd. (c)(1).)
4


neighborhood resident testified that, for this reason, most eastbound drivers
arriving at this point favor the left side of the road.
Based on this evidence, the magistrate concluded that “there has been
sufficient evidence presented to hold the defendant to answer a misdemeanor
charge of negligent vehicular manslaughter, under Penal Code section
192[, subdivision] (c)(2),” but that “insufficient evidence has been presented to
hold the defendant to answer a felony charge of vehicular manslaughter [with
gross negligence] under Penal Code section 192[, subdivision] (c)(1).” The
magistrate ordered the district attorney to file a misdemeanor complaint in
accordance with his decision, and set a date of January 12, 2005, for defendant to
enter a plea on the misdemeanor charge. The prosecution failed to file a
misdemeanor complaint within this time. As a consequence, the pending felony
complaint was dismissed pursuant to section 871.3
Subsequently, the People consulted with the California Highway Patrol
Multidisciplinary Accident Investigation Team (CHP) on the issue whether the
case was more appropriately pursued as a felony or a misdemeanor. The CHP
advised that prosecution as a misdemeanor was the preferable alternative.
On May 6, 2005, a complaint was filed charging defendant with the
misdemeanor of negligent vehicular homicide (§ 192, subd. (c)(2)). Defendant
moved to dismiss the action, urging that, under section 1387(a), the prior dismissal
of a complaint based on the same conduct barred further prosecution of that
conduct as a misdemeanor. On October 19, 2005, the trial court agreed and

3
Section 871 provides in pertinent part: “If, after hearing the proofs, it
appears either that no public offense has been committed or that there is not
sufficient cause to believe the defendant guilty of a public offense, the magistrate
shall order the complaint dismissed and the defendant to be discharged . . . .”

5


dismissed the complaint. On the People‟s appeal, the appellate department of the
superior court affirmed the order of dismissal.
The Court of Appeal granted the People‟s application for transfer to that
court. (Cal. Rules of Court, former rules 62, 63, now rules 8.1002, 8.1005.) It
thereafter affirmed the judgment of the appellate department. The Court of Appeal
agreed with the trial court and the appellate department that under section 1387(a)
as construed in Burris, supra, 34 Cal.4th 1012, the prior dismissal of a felony
complaint bars further prosecution for the same conduct as a misdemeanor.
We granted review. We will reverse the judgment of the Court of Appeal.4
DISCUSSION5
As noted above, section 1387 limits, in most instances, the number of times
prosecution “for the same offense” may occur after prior complaints have been
dismissed. Dismissals under section 871 are among those that count against later
prosecutions. Thus, under section 1387(a), as applicable to the facts of this case,
“[a]n order terminating an action pursuant to . . . Section . . . 871 . . . is a bar to any
other prosecution for the same offense if it is a felony or . . . a misdemeanor

4
After we granted review, the parties advised us of the possibility that the
misdemeanor complaint, filed in May 2005, is barred by the statute of limitations.
This issue has not been formally briefed, in either the Court of Appeal or this
court, and the parties insist they are not asking us to address it. On the other hand,
they agree we should decide the section 1387(a) issue, even if it is technically
moot. We therefore confine our opinion to the application of section 1387(a). Our
decision should not be construed to preclude further proceedings below with
respect to the statute of limitations.

5
An amicus curiae brief in support of defendant has been filed by the Public
Defender of Los Angeles County. An amicus curiae brief in support of the People
has been filed by the Los Angeles County District Attorney.

6


charged together with a felony and the action has been previously terminated . . . or
if it is a misdemeanor not charged together with a felony . . . .”
To determine the application of section 1387(a) to the facts before us, we
begin, as usual, with the statutory language, giving the words their plain,
commonsense meaning. “If the language of the 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 Union High School Dist.
(2003) 29 Cal.4th 911, 919; County of Santa Clara v. Perry (1998) 18 Cal.4th 435,
442; California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.
(1997) 14 Cal.4th 627, 632-633.)
As we noted in Burris, 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, supra, 34 Cal.4th 1012, 1018.) Nonetheless, the
People argue that one thing is clear from the language of section 1387(a): it
applies only to successive prosecutions “for the same offense.”
We agree. Indeed, we assumed as much in Burris. There we noted that
successive prosecutions are “for the same offense,” and are thus governed by
section 1387, where “the identical criminal act . . . underlies” each of the
prosecutions. (Burris, supra, 34 Cal.4th 1012, 1016, fn. 3.) In other words, we
stated, “[w]hen two crimes have the same elements, they are the same offense for
purposes of . . . section 1387.” (Id. at pp. 1016-1017, fn. 3, italics added.) We
included a citation to Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1118
(Dunn), where, we observed, the Court of Appeal had “appl[ied a] same elements
test to determine whether [a] new charge [was the] same offense as [a] previously
dismissed one for purposes of [section] 1387.” (Burris, supra, 34 Cal.4th at
p. 1017, fn. 3.)
7
Under this test, when a prosecution for a greater offense, having been
dismissed, is followed by a subsequent prosecution for a lesser included offense,
the two prosecutions may not be “for the same offense.” This is because the
offense charged in the second complaint does not include all the elements of the
offense charged earlier, and thus does not involve the “identical criminal act.”6
Here, for example, the original, dismissed complaint charged a grossly negligent
act or omission causing a traffic death, while the offense charged in the current
complaint does not require proof of an act or omission of gross negligence.
We further explained in Burris that, although the rules of grammar and the
canons of construction are useful tools in divining a statute‟s purpose, the normal
principles of statutory interpretation may not, in particular circumstances, disclose

6
As below, defendant urges that section 1387(a) should apply to all charges
arising from the same conduct or behavior of the defendant, but the statutory
language belies such a necessarily broad construction. Thus, in qualifying words
section 1387 has contained since its adoption in 1872, section 1387(a) applies only
to repetitive charges “for the same offense” (italics added), and then describes such
an “offense” in terms of whether “it” is a “felony” or a “misdemeanor.” This
correlation implies that, for purposes of section 1387(a), an “offense” is defined
not by conduct, but by its particular definition as such in the Penal Code. Thus, as
Burris suggested, one crime is the “same offense” as another when it involves the
“identical criminal act” as represented by the criminal elements necessary for
conviction. (Burris, supra, 34 Cal.4th 1012, 1016, fn. 3, italics added.) Moreover,
section 1387(a)‟s use of the narrow phrase “the same offense” contrasts with the
provisions of other statutes that provide broader protection against multiple
prosecutions after the defendant has been convicted or acquitted of, or placed in
jeopardy
for, offenses arising from the same course of criminal conduct. (E.g.,
§§ 654 [acquittal or conviction under one statute bars further prosecution for
“same act or omission” under another], 1023 [conviction, acquittal, or jeopardy
under an accusatory pleading bars further prosecution for “the offense charged in
such accusatory pleading, . . . or for an offense necessarily included therein
(italics added)]; see Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [§ 654
applies to all offenses arising from “same act or course of conduct”].)

8


a clear legislative intent behind the often-amended language of section 1387(a). In
such a situation, we said, courts must remember that “ „[t]hose who write statutes
seek to solve human problems. Fidelity to their aims requires us to approach an
interpretive problem not as if it were a purely logical game, like a Rubik‟s Cube,
but as an effort to divine the human intent that underlies the statute.‟ [Citation.]”
(Burris, supra, 34 Cal.4th 1012, 1017-1018.) We examine in this light the
meaning and application to this case of the “same offense” requirement.
As we explained in Burris, “[s]ection 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 speedy trial rights
through the repeated dismissal and filing of the same charges. [Citations.]
“The statute‟s differential treatment of misdemeanors and felonies reflects a
different set of public policies. On the one hand, society has an interest in the
expeditious resolution of lesser charges. Section 1387 reflects a judgment that
scarce prosecutorial resources should not be expended in multiple attempts to
punish misdemeanor conduct and mere misdemeanants should not be subjected to
serial prosecutions. [Citations.]
“On the other hand, there is a heightened societal interest in the prosecution
of more serious crimes. . . . [¶] Section 1387 reflects a legislative judgment that
because of the heightened threat to society posed by serious crimes, more filings
9
should be permitted for serious crimes than for minor ones. . . .” (Burris, supra,
34 Cal.4th 1012, 1018-1019, fn. omitted.)7
Thus, the central aim of section 1387 is to prevent unlimited dismissals and
refilings of complaints charging the same offense, particularly where one or more
magistrates have previously found insufficient evidence to support the charge. At
the same time, the statute provides slightly greater leeway in the treatment of
felony charges, as a reflection of society‟s greater interest in prosecuting more
serious offenses. Allowing the filing of a lesser included misdemeanor charge
under the circumstances of this case violates none of these principles.
In the first place, a magistrate‟s dismissal of a complaint charging a felony
may indicate only a determination that the evidence does not support that
particular charged offense. Such a dismissal does not necessarily imply the
magistrate‟s finding of insufficient evidence to support a lesser misdemeanor
charge that lacks some elements of the greater.
In fact, the magistrate who previously dismissed the original felony charge
in this case made his views on these issues clear. He found that the only element
lacking in the prosecution‟s showing of probable cause on the original charge was
that defendant, at the time of the fatal collision, operated his vehicle with gross
negligence. On the other hand, the magistrate explicitly determined, there was
sufficient evidence to support a misdemeanor charge that defendant committed an
act of ordinary negligence resulting in a fatal accident. Ultimately accepting this

7
Of course, society‟s enhanced interest in pursuing more serious crimes
extends to serious misdemeanors, including the offense of vehicular manslaughter.
(See In re Dennis B. (1976) 18 Cal.3d 687, 696.)

10


assessment, the prosecution filed new charges on a different, lesser offense
supported by the evidence.
Under such circumstances, section 1387(a)‟s fundamental aims are not
contravened by a conclusion that, following the dismissal of a greater felony
charge, the statute permits the subsequent filing of a lesser misdemeanor charge
that lacks the element or elements the magistrate found wanting. In such a case,
the subsequent misdemeanor filing does not indicate a prosecutorial attempt to
delay or harass, or to “forum shop” the same weak charges until a receptive
magistrate is found. Instead, it represents an ameliorative effort to charge a
different offense that conforms to the actual evidence.
By the same token, where, as here, the dismissal of a prior felony charge
does not imply an absence of probable cause to support conviction of a lesser
misdemeanor offense, section 1387(a) should not operate to leave the People with
a Hobson‟s choice between once again overcharging the same felony, thereby
risking a justified second and final dismissal, or abandoning all effort to prosecute
the offender as a misdemeanant for a lesser crime the evidence does support. In
this case, such a result would mean that defendant, as the consequence of a single
prior dismissal, would, for that sole reason, be immune from prosecution for
alleged negligent operation of a motor vehicle that resulted in the death of a nine-
year-old boy. 8

8
As noted above, at the conclusion of the preliminary hearing, the magistrate
did not immediately dismiss the action initiated by the felony complaint charging
vehicular manslaughter with gross negligence. Instead, the magistrate directed the
prosecutor to substitute, by a specified date, a complaint for the misdemeanor of
vehicular manslaughter with ordinary negligence. When no such misdemeanor
complaint was filed within the time specified, the magistrate entered a dismissal.
However, there is serious question whether the magistrate was within his powers
in his effort to prevent application of section 1387(a) by permitting a misdemeanor
(Footnote continued on next page.)
11


Defendant, like the Court of Appeal, asserts that Burris‟s citation to Dunn,
supra, 159 Cal.App.3d 1110, dictates a contrary result. As we shall explain,
however, Dunn is distinguishable, and nothing about our reference to Dunn in
Burris supports the Court of Appeal‟s position.
In Dunn, the prosecution first filed a complaint charging the defendant with
the felonies of simple kidnapping (§ 207), assault with intent to commit rape
(§ 220), and unconsented taking of another‟s vehicle with intent to deprive the
owner of title or possession (Veh. Code, § 10851). The defendant was held to
answer on all charges. The prosecution thereafter filed an information containing
only kidnapping and assault charges, and then, on the morning set for trial,
obtained a dismissal of the information.

(Footnote continued from previous page.)

filing before the originally filed felony complaint was dismissed. (See People v.
Superior Court (Feinstein)
(1994) 29 Cal.App.4th 323, 330, 332 [under statutory
scheme, magistrate can reduce “wobbler” charged as a felony to identical offense
charged as a misdemeanor, but cannot order charges reduced from felony to
different misdemeanor offense; effect of such attempt is to dismiss the felony
complaint].) Indeed, when he ultimately dismissed the felony complaint, the
magistrate opined that his prior order was in error. In any event, the prosecutor did
not violate the purpose of section 1387(a), or otherwise act improperly, when he
declined the magistrate‟s direction. After the magistrate determined that probable
cause for felony charges was lacking, the People were entitled to evaluate the
evidence for themselves to determine whether they should exercise their statutory
right to file a second felony complaint.

For similar reasons, there is no merit to defendant‟s suggestion that the
prosecutor should expressly include, in the original complaint, all misdemeanor
offenses included within a charged felony. That solution would leave the
prosecutor with only the misdemeanor option if the magistrate dismissed the
felony charge, contrary to the statutory scheme that expressly allows a second
felony
filing.

12


Thereafter, the People filed a second complaint with respect to the same
criminal incident, charging the defendant with the felonies of kidnapping for
robbery (§ 209), robbery (§ 211), receiving stolen property (§ 496), and accessory
to kidnapping, robbery, and theft (§ 32). The complaint specified that the alleged
robbery was the taking of the vehicle referred to in the previously dismissed
accusatory pleading. After a preliminary hearing, the magistrate dismissed all
except the accessory charge, finding insufficient evidence of a kidnapping or a
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, urging that these were barred because they had
twice previously been terminated. The superior court denied the motion, but the
Court of Appeal reversed.
Acknowledging that section 1387 limits the number of prosecutions after
dismissals of accusatory pleadings charging the “same offense,” the Dunn court
sought to determine the meaning of this statutory terminology. “[I]t is clear,”
Dunn observed, “that this phrase does not simply mean . . . the district attorney is
not permitted to charge violation of the same statute.” (Dunn, supra,
159 Cal.App.3d 1110, 1117-1118.) For guidance about how much further the
prohibition might go, the court turned to Wallace v. Municipal Court (1983)
140 Cal.App.3d 100 (Wallace), a case that had construed a somewhat analogous
statute, the 1981 version of section 853.6, subdivision (e)(3). That statute then
provided that, when an accused misdemeanant had been released by the citing
officer upon written promise to appear, the officer must file a duplicate notice with
the prosecuting attorney, who must initiate a prosecution, by filing the duplicate
notice or a formal complaint with the magistrate, within 25 days of the arrest.
Failure to initiate a timely prosecution in this manner barred further prosecution
13
“ „of the misdemeanor charged in the notice to appear.‟ ” (Wallace, supra, at
pp. 104-105.)
The issue in Wallace was whether failure to timely prosecute the offense
specified in the notice to appear in that case — driving under the influence of
alcohol (DUI) (Veh. Code, former § 23152, subd. (a)) — barred a subsequent
prosecution for driving with a blood-alcohol content (BAC) of 0.10 or above
(BAC 0.10) (id., former subd. (b)). As Dunn noted, Wallace concluded from its
survey of relevant authorities that “ „[t]he general rule which can be distilled 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.‟ [Citation.] The [Wallace] court concluded that the
essence of the two offenses before it was not the same. Although the court did not
go on to provide a definition of „essence,‟ it pointed out that either offense [i.e.,
DUI or BAC 0.10] could be committed without committing the other and held that
„[t]hus the essence of the two offenses is different. . . .‟ [Citation.]” (Dunn, supra,
159 Cal.App.3d 1110, 1118, quoting Wallace, supra, 140 Cal.App.3d 100, 107,
109.)
Such was not true, Dunn concluded, with respect to the successive theft,
robbery, and kidnapping charges there at issue. As Dunn noted, kidnapping for
robbery, the offense charged in the second complaint, could not be committed
without committing the previously dismissed offense of simple kidnapping.
Similarly, one could not commit robbery of a specified vehicle, as charged in the
second complaint, without also committing the unconsented taking of the same
auto, as charged in the previously dismissed complaint. Thus, Dunn reasoned,
dismissal of the greater offenses, after previous dismissals of their lesser
counterparts, should bar further prosecutions of each such offense “on the theory
14
that to charge the greater would be also to charge the lesser an additional and
prohibited third time.” (Dunn, supra, 159 Cal.App.3d 1110, 1118, italics added.)
Relating this analysis “to the „same elements‟ test approved [with a citation
to Dunn] in Burris,” the instant Court of Appeal concluded “Dunn thus stands for
the proposition that for purposes of section 1387, the „same elements‟ may be
located not only in successive charges of the same offense but also in successive
charges of greater and lesser included offenses.” (Last italics added.) However,
we do not read either Dunn or Burris so broadly.
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. Hence, to the
extent Dunn implied that its “same elements” test, to which we referred in Burris,
governed both greater and lesser successive charges, regardless of their order, that
implication was dictum.
Certainly, when one or more dismissals are followed by a new charge of the
identical offense —the situation we faced in Burris (see discussion, post) — or a
greater inclusive one, the later charge comprises all the “same elements” of the
earlier — and perhaps additional ones as well. In the first case, one or more
charges of A have been followed by yet another charge of A, and in the second,
one or more charges of A have been followed by a new charge of A plus B, which
includes A.
As Dunn suggested, 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, and
perhaps additional elements as well. (Dunn, supra, 159 Cal.App.3d 1110, 1118.)
15
Thus, when one or more dismissed charges of an offense comprised of element A
are followed by a new charge of the same offense, or of a greater one comprising
both elements A and B, all the charges have included the common element A.
Moreover, a conclusion that section 1387(a) does strictly limit refilings
under the circumstances at issue in Dunn comports with the fundamental statutory
purpose. As we have indicated above, a prime objective of the statute is to limit
prosecutorial forum shopping on evidence that prior magistrates have already
found insufficient. That precise danger is presented if the People, after sustaining
one or more dismissals of charge A for lack of evidence, can continue to refile the
identical charge A, or go “up the ladder” to even more serious charges that include
A, until they find a magistrate willing to hold the defendant to answer.
For all these reasons, acceptance of the result in Dunn does not compel us
to conclude here that the lesser included misdemeanor charge filed in the instant
case constituted “the same offense” as the greater previously dismissed felony.
We decline to do so.
Finally, we disagree with the Court of Appeal that the interpretation of
section 1387(a) set forth in Burris, supra, 34 Cal.4th 1012, requires dismissal of
the instant misdemeanor charge. In Burris, an original complaint charged
misdemeanor counts of DUI (Veh. Code, § 23152, subd. (a)) and driving with a
BAC of 0.08 percent or more (id., subd. (b)). Two prior DUI convictions were
alleged. Before trial, the prosecutor found a third prior DUI conviction. A DUI
conviction with three or more prior DUI convictions is a “wobbler” that can be
punished as either a misdemeanor or a felony. (Pen. Code, § 17; Veh. Code,
§ 23550, subd. (a).) Electing the latter approach, the prosecutor obtained dismissal
of the misdemeanor charge and refiled a felony complaint.
The defendant sought dismissal of the felony complaint, asserting that,
under the “misdemeanor one-and-out” rule of section 1387, the prior misdemeanor
16
dismissal barred any further prosecution. The trial court denied the motion. We
affirmed the Court of Appeal decision upholding the denial. (See Burris, supra,
34 Cal.4th 1012, 1019.)
At the outset, we stressed there was no doubt that both the misdemeanor
and felony complaints charged “the same offense” for purposes of section 1387(a).
We explained that both complaints alleged the “identical criminal act” with the
“same elements” — DUI — and that Vehicle Code section 23550, subdivision (a),
which allows felony punishment when there are three or more prior DUI
convictions, “define[s] not [additional] elements [of the substantive offense] but
conditions for imposition of sentencing enhancements.” (Burris, supra, 34 Cal.4th
1012, 1016, fn. 3.)
We therefore proceeded to determine how section 1387(a) should apply
when successive complaints have charged the same offense, once as a
misdemeanor and once as a felony. In that circumstance, we held, the current
charge, not the original one, determines, for purposes of section 1387(a), whether a
previously dismissed complaint bars further prosecution. Thus, we reasoned,
where, as in Burris, the current charge is a felony, it is subject to the more liberal
“two-and-out” rule applicable to felony charges; while the prior dismissal counts
against the prosecution, the People have a second chance to pursue the felony.
(Burris, supra, 1012, 1019.)
In a passage on which defendant, like the Court of Appeal, relies heavily,
we acknowledged that “[o]n the other hand, as the People concede, our
interpretation of section 1387[(a)] also dictates that a qualifying dismissal of a
felony charge will bar the refiling of a misdemeanor charge.” (Burris, supra,
34 Cal.4th 1012, 1020.) But that determination is not dispositive here. It applies
under the circumstances addressed in Burris — the successive filing of
misdemeanor and felony complaints charging what section 1387(a) deems the
17
same offense. Here, as we have explained, the successive complaints did not
charge the “same offense” for purposes of section 1387(a).
We therefore hold that when the People initially file a felony complaint,
which is then dismissed by a magistrate on grounds there is sufficient evidence
only to support a lesser included misdemeanor offense, the subsequent filing of a
second complaint containing such a reduced misdemeanor charge, comprising
fewer than all the elements of the previously dismissed offense, is not barred by
section 1387(a).9 Here, the dismissing magistrate specifically indicated his belief
that while the evidence of felony vehicular manslaughter with gross negligence
was insufficient, the evidence would support a different and lesser charge of
misdemeanor manslaughter that did not require proof of a grossly negligent act or
omission. Under those circumstances, the People properly could, following the
first felony dismissal, file a second complaint alleging the lesser included
misdemeanor.10

9
We do not confront in the case before us, and thus need not and do not
address, how section 1387(a) would apply if magistrates dismissing prior
complaints had made clear that specific elements of the charged offense, or
evidence of the defendant‟s identity as the offender, were found lacking, and the
People thereafter attempted a new prosecution which, though technically for a
“lesser included offense,” nonetheless directly contravened the prior
determinations.

10
As the reader will notice, we have carefully limited our holding to the
situation in which an initial felony charge, having been dismissed by a magistrate
on grounds that the evidence supports only a lesser included misdemeanor, is
followed by the filing of a second complaint charging that misdemeanor offense.
We do not here confront, and expressly do not decide, how section 1387(a) should
apply when dismissed felony charges are followed by one or more new complaints
charging lesser included felonies, or when a dismissed misdemeanor charge is
followed by a new complaint charging a lesser included misdemeanor.
18


Accordingly, the judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

19


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Traylor
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 339
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S157820
Date Filed: July 13, 2009
__________________________________________________________________________________

Court:

Superior
County: Nevada
Judge: Robert L. Tamietti

__________________________________________________________________________________

Attorneys for Appellant:

Michael W. Ferguson and Clifford H. Newell, District Attorneys, and David M. Walters, Deputy District
Attorney, for Plaintiff and Appellant.

Steve Cooley, District Attorney (Los Angeles), Lael R. Rubin, Phyllis C. Asayama and Tracey W. Lopez,
Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of
Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Thomas M. Anderson, Public Defender, and Daniel M. Geffner, Deputy Public Defender, for Defendant
and Respondent.

Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy Public Defender as
Amici Curiae on behalf of Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

David M. Walters
Deputy District Attorney
201 Church Street, Suite 8
Nevada City, CA 95959
(530) 265-1301

Tracey W. Lopez
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-2743

Daniel M. Geffner
Deputy Public Defender
224 Main Street
Nevada City, CA 95959
(530) 265-1400


Petition for review after the Court of Appeal affirmed an order dismissing a criminal complaint. This case presents the following issue: Can a misdemeanor complaint charging a lesser included offense be filed if a felony complaint charging the greater crime was dismissed after a preliminary hearing?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/13/200946 Cal. 4th 1205, 210 P.3d 433, 96 Cal. Rptr. 3d 277S157820Review - Criminal Appealclosed; remittitur issued

Parties
1The People (Plaintiff and Appellant)
Represented by David Marsh Walters
Office of the District Attorney
110 Union Street
Nevada City, CA

2Traylor, Dale (Defendant and Respondent)
Represented by Daniel Martin Geffner
Office of the Public Defender
224 Main Street
Nevada City, CA

3Office of the Los Angeles County District Attorney (Amicus curiae)
Represented by Tracey Whitney Lopez
Office of the District Attorney
320 W. Temple Street, Suite 18000
Los Angeles, CA

4Office of the Los Angeles County District Attorney (Amicus curiae)
Represented by Lael Ronna Rubin
Office of the District Attorney
210 W. Temple Street, Suite 18000
Los Angeles, CA

5Office of the Los Angeles County Public Defender (Amicus curiae)
Represented by John Hamilton Scott
Office of the Public Defender
320 W. Temple Street, Room 590
Los Angeles, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Disposition
Jul 13 2009Opinion: Reversed

Dockets
Oct 31 2007Received premature petition for review
The People, plaintiff David M. Walters, Deputy District Attorney CA opinion certified for publication on October 23, 2007, file as of November 23, 2007.
Nov 27 2007Case start: Petition for review filed
Nov 27 2007Record requested
Dec 11 20072nd record request
via email
Dec 12 2007Received Court of Appeal record
one doghouse
Jan 22 2008Time extended to grant or deny review
to and including February 25, 2008, or the date upon which review is either granted or denied.
Jan 30 2008Petition for review granted (criminal case)
George, C.J., was absent and did not participate. Votes: Baxter, A.C.J., Werdegar, Chin, Moreno, and Corrigan, JJ.
Feb 14 2008Request for extension of time filed
counsel for respondent requests extension of time to March 28, 2008, to file the opening brief.
Feb 21 2008Extension of time granted
On application of respondent and good cause apopearing it ordered that the time to serve and file the opening brief on the merits is extended to and including March 28, 2008.
Mar 27 2008Opening brief on the merits filed
counsel for aplt. (People)
Apr 1 2008Filed:
counsel for resp. Letter: re notice of omission and correction on page 29 of the opening brief.
Apr 4 2008Request for extension of time filed
counsel for aplt. (Traylor) requests extension of time to 5-27-08, to file the answer brief on the merits.
Apr 8 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 27, 2008.
May 20 2008Received:
counsel for resp. Letter re: Petition for Review.
May 23 2008Answer brief on the merits filed
counsel for resp. (Traylor)
May 27 2008Request for extension of time filed
counsel for respondent requests extension of time to July 2, 2008, to file the reply brief on the merits.
May 29 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 2, 2008.
Jul 2 2008Reply brief filed (case fully briefed)
counsel for aplt. (People)
Jul 30 2008Received application to file Amicus Curiae Brief
Michael P. Judge, Public Defender of Los Angeles County
Aug 1 2008Received application to file Amicus Curiae Brief
District Attorney of Los Angeles County
Aug 8 2008Permission to file amicus curiae brief granted
Michael P. Judge, Public Defender of Los Angeles County
Aug 8 2008Amicus curiae brief filed
The application of Michael P. Judge, Public Defender of Los Angeles County, for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Aug 8 2008Permission to file amicus curiae brief granted
Los Angeles County District Attorney
Aug 8 2008Amicus curiae brief filed
The application of the Los Angeles County District Attorney for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Oct 2 2008Change of contact information filed for:
counsel for aplt. (People)
Apr 1 2009Case ordered on calendar
to be argued Monday, May 4, 2009, at 1:30 p.m., in San Francisco
Apr 8 2009Filed:
Letter from David M. Walters, counsel for appellant The People, requesting to share 10 minutes of oral arugment time with amicus curiae Los Angeles County District Attorney's Office.
Apr 10 2009Filed:
Letter from Tracy Lopez, Deputy D.A. for amicus curiae L.A. County District Attorney's Office ~ joining in request of appellant's Apr 3rd letter, to divide time and to use 10 minutes of oral argument.
Apr 14 2009Order filed
The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Office of the Los Angeles County District Attorney 10 minutes of appellants 30-minute allotted time for oral argument is granted.
May 4 2009Cause argued and submitted
Jul 10 2009Notice of forthcoming opinion posted
Jul 13 2009Opinion filed: Judgment reversed
Majority Opinion by Baxter, J. ----- Joined by George, C. J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 14 2009Remittitur issued
Aug 20 2009Received:
receipt for remittitur from CA 3

Briefs
Mar 27 2008Opening brief on the merits filed
counsel for aplt. (People)
May 23 2008Answer brief on the merits filed
counsel for resp. (Traylor)
Jul 2 2008Reply brief filed (case fully briefed)
counsel for aplt. (People)
Aug 8 2008Amicus curiae brief filed
The application of Michael P. Judge, Public Defender of Los Angeles County, for permission to file an amicus curiae brief in support of respondent is hereby granted.
Aug 8 2008Amicus curiae brief filed
The application of the Los Angeles County District Attorney for permission to file an amicus curiae brief in support of appellant is hereby granted.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 10, 2009
Annotated by Joelle Emerson

SUMMARY: The California Supreme Court ruled that a defendant against whom a felony complaint has been dismissed can still be prosecuted for the lesser included misdemeanor offense. Section 1387(a) of the Penal Code precludes prosecutions “for the same offense” after one complaint has been dismissed; the Court found that “for the same offense” requires that both offenses (the one for which the claim was initially dismissed and the one for which the subsequent claim was brought) must have the same elements. In this case, the initial felony complaint—which was dismissed—required the defendant to act with gross negligence. The subsequently filed misdemeanor charge required only ordinary negligence. Because the two offenses are not made up of the same elements, they do not constitute “the same offense” for purposes of 1387(a).

Nov 10, 2009
Annotated by Joelle Emerson

FACTS: The defendant, Dale Traylor, hit and killed 9-year-old Tyler Lason when Traylor’s car collided with Lason’s motorcycle. Initially the prosecution charged him with the felony of vehicular manslaughter with gross negligence. The magistrate concluded that there was insufficient evidence to charge the defendant with this felony, but that there was sufficient evidence to charge him with negligent vehicular manslaughter, a misdemeanor. {facts about pros not charging w/in time the magistrate had requested?} Later, after consulting with the California Highway Patrol Multidisciplinary Accident Investigation Team, the Prosecution decided to charge the defendant with the misdemeanor of negligent vehicular homicide.

PROCEDURE: The defendant moved to dismiss the action under section 1387(a) of the Penal Code, which precludes prosecution for the same criminal offense “if it is a felony...or a misdemeanor charged together with a felony,” and the action has been previously dismissed, or “if it is a misdemeanor not charged together with a felony.” The trial court dismissed the complaint on these grounds, and the appellate department of the superior court affirmed the dismissal. The Court of Appeal also affirmed. The Supreme Court then took the case to consider whether, on these facts, the defendant could be charged with the misdemeanor offense.

ISSUE: Whether, under section 1387(a) of the California Penal Code, the prior dismissal of a felony complaint against a defendant bars a subsequent prosecution for a lesser included misdemeanor offense.

HOLDING: No; the dismissal of a felony complaint does not bar future prosecution for a lesser included misdemeanor.

RULE: When the People file a felony complaint which is dismissed by a magistrate because there is only sufficient evidence to charge a defendant with the lesser included misdemeanor offense, the subsequent filing of a second complaint for the reduced misdemeanor charge is not barred by Penal Code section 1387(a).

REASONING: The Court begins its discussion by looking at the statutory language of section 1387(a) of the Penal Code, which precludes prosecution for the same criminal offense “if it is a felony...or a misdemeanor charged together with a felony,” and the action has been previously dismissed, or “if it is a misdemeanor not charged together with a felony.” Based on this language as well as on the Court’s holding in Burris, the Court holds that successive prosecutions “for the same offense,” as governed by section 1387, occur when “the identical criminal act…underlies” each of the prosecutions (Burris, 34 Cal.4th 1012, 1016, fn. 3). The Court concludes that this occurs only when two crimes have the same elements. Thus, when a prosecution for a greater offense is dismissed and followed by a prosecution for a lesser included offense, the two prosecutions, by definition, are not “for the same offense,” because the offense charged initially includes more elements than the lesser offense. In this case, the felony for which the defendant was initially charged required “gross negligence,” whereas the misdemeanor required only normal negligence.

The Court then looks at the statutory intent. The intent of section 1387, it explains, is three-fold. It is meant to is to curb prosecutorial harassment by limiting the number of times charges can be refiled, to reduce forum shopping, and to prevent the evasion of speedy trial rights through the repeated dismissal and filing of the same charges. The Court finds that allowing the filing of the misdemeanor charge in this case doesn’t violate the statutory intent, because the prosecution is not attempting to refile the same charges and hope for a better result. Rather, the prosecution is filing lesser charges that are more appropriate under the circumstances which, the Court argues, is exactly what prosecutors should do when the facts warrant prosecution for a lesser offense.

Further, the magistrate in this case specifically determined that there was evidence to support a misdemeanor charge. Thus, in filing a misdemeanor complaint it’s clear that the prosecution had no intent to delay or forum shop for a receptive magistrate, since the magistrate was already receptive to prosecution for the misdemeanor offense. Instead, the prosecution was attempting to charge the defendant with a more appropriate offense under the circumstances.

Finally, the court compares the facts of the case—where the elements of the misdemeanor were not the same as the elements of the felony—to cases where either the two offenses have the same elements, or the second offense includes all of the elements of the first. The Court elaborates that when a charge of X offense is followed by another charge of X offense, these two charges clearly include the same elements. When a charge of X offense is followed by a new charge of X plus Y, the latter charge still includes X, so the same elements are present. In this case, however, the misdemeanor charge did not include the “gross negligence” element of the offense, and thus it was comprised of different elements.