Burris v. Superior Court

• Decision Date: 10 January 2005
• Docket Number: No. S109746.,S109746.
• Citation: 22 Cal.Rptr.3d 876,103 P.3d 276,34 Cal.4th 1012
• Court: California Supreme Court
• Parties: Michael Lehman BURRIS, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The People, Real Party in Interest.

22 Cal.Rptr.3d 876

34 Cal.4th 1012

103 P.3d 276

Michael Lehman BURRIS, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent;

The People, Real Party in Interest.

No. S109746.

Supreme Court of California.

January 10, 2005.

Law Offices of Marlin G. Stapleton, Jr., Marlin G. Stapleton, Jr., Tustin; Law Offices of Robert M. Dykes and Robert M. Dykes, Tustin, for Petitioner.

Carl C. Holmes, Public Defender (Orange), Deborah A. Kwast, Chief Deputy Public Defender, Kevin J. Phillips and Lee Blumen, Deputy Public Defenders, as Amici Curiae on behalf of Petitioner.

Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy

Public Defender, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Patti W. Ranger and Lise Jacobson, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.

WERDEGAR, J.

Does the dismissal of a misdemeanor complaint bar all further prosecution for the same offense, even a felony charge based on the same conduct? It does not. Instead, two prior dismissals are required before felony prosecution will be barred. Because charges against defendant Michael Lehman Burris were dismissed only once, we affirm the Court of Appeal's denial of writ relief.

PROCEDURAL AND FACTUAL BACKGROUND

Burris was charged with misdemeanor counts of driving under the influence of alcohol (DUI) and driving with a blood-alcohol level of at least 0.08 percent. (Veh. Code, § 23152, subds.(a), (b).) The complaint alleged two prior DUI convictions. Before trial, the prosecutor discovered a third DUI prior. Under Vehicle Code section 23550, subdivision (a), driving under the influence within seven years of three or more DUI convictions is a "wobbler" and may be prosecuted as a misdemeanor or a felony at the prosecutor's discretion. (See Pen.Code, § 17, subd. (b)(4).)¹ The prosecutor elected to refile Burris's case as a felony and moved to dismiss the misdemeanor complaint. The trial court granted the motion,² and the prosecution filed a felony complaint.

Relying on section 1387, Burris moved to dismiss the felony complaint. The trial court denied the motion. The Court of Appeal denied Burris's ensuing petition for a writ of mandate, holding that section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and was previously dismissed. In so holding, the Court of Appeal expressly disagreed with People v. Nelson (1964) 228 Cal.App.2d 135, 39 Cal.Rptr. 238. We granted Burris's petition for review.

DISCUSSION

I. Interpretation of Section 1387

We begin with the text of the statute. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977, 90 Cal.Rptr.2d 260, 987 P.2d 727; People v. Cruz (1996) 13 Cal.4th 764, 775, 55 Cal.Rptr.2d 117, 919 P.2d 731.) Section 1387, subdivision (a) provides: "An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following: [circumstances not relevant here]...." Both parties agree that for purposes of this statute, there has been one prior termination of charges for the same offense.³

Burris argues that whether a future prosecution is barred hinges on the character of the earlier dismissal. Under this interpretation of section 1387, the pronoun "it" in the statutory phrase "is a bar to any other prosecution for the same offense if it is a felony" (italics added) refers to the terminated action. Thus, if the terminated action is, as here, a misdemeanor, section 1387 prohibits a second prosecution for either a misdemeanor or a felony. If the terminated action is a felony, a new prosecution will be barred only when there has been an additional prior dismissal.⁴ This interpretation is consistent with usage in the second half of the statute that appears to categorize cases according to the character of the dismissed charge. (See § 1387, subd. (a) [creating exception for "those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor" certain findings are made].)

In contrast, the People contend that whether a future prosecution is barred under section 1387 hinges on the character of the later charge: one prior qualifying dismissal⁵ will bar a later misdemeanor charge, but will not bar a later felony charge. They argue that under an established canon of construction, the last antecedent rule (White v. County of Sacramento (1982) 31 Cal.3d 676, 680, 183 Cal.Rptr. 520, 646 P.2d 191), the pronoun "it" in the phrase "is a bar to any other prosecution for the same offense if it is a felony" (italics added) refers to the future "other prosecution for the same offense." Thus, according to the People, under section 1387 an order terminating an action bars a future prosecution for a misdemeanor, but bars a future prosecution for a felony only when there has been an additional prior dismissal.

We do not find these grammatical arguments dispositive here. The rules of grammar and canons of construction are but tools, "guides to help courts determine likely legislative intent. [Citations.] And that intent is critical. Those 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." (J.E.M. AG Supply v. Pioneer Hi-Bred (2001) 534 U.S. 124, 156, 122 S.Ct. 593, 151 L.Ed.2d 508 (dis. opn. of Breyer, J.); see Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 920, 129 Cal.Rptr.2d 811, 62 P.3d 54["[T]he rules of statutory construction are merely aids and sometimes can be used to reach opposite results"].) Here, these tools do not reveal a clear legislative intent. The statute has been amended nine times since its adoption in 1872, and the resulting 108-word, 13-comma, no period subdivision is hardly pellucid, as all parties readily concede. The syntax of the statute is such that "it" could readily refer to either the terminated action or the future prosecution. Nor does the legislative history behind the statute and its substantive revisions contain evidence the Legislature chose a particular construction in order to implement one rule or the other. Consequently, we must consider the human problems the Legislature sought to address in adopting section 1387 — "`the ostensible objects to be achieved [and] the evils to be remedied.'" (Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 977, 90 Cal.Rptr.2d 260, 987 P.2d 727, quoting People v. Woodhead (1987) 43 Cal.3d 1002, 1008, 239 Cal.Rptr. 656, 741 P.2d 154.)

Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 14, 177 Cal.Rptr. 325, 634 P.2d 352; People v. Peters (1978) 21 Cal.3d 749, 758-759, 147 Cal.Rptr. 646, 581 P.2d 651 (dis. opn. of Mosk, J.); People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744, 23 Cal.Rptr.2d 733; Sen. Rules Com., Rep. on Sen. Bill No. 487 (1975-1976 Reg. Sess.) Apr. 8, 1975, p. 1 ["Proponents claim the bill [amending § 1387 to limit felony refilings] will prevent possible abuses by prosecutors who dismiss and reinstate felony prosecutions in order to harass defendants"].) The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. (Landrum v. Superior Court, at p. 14, 177 Cal.Rptr. 325, 634 P.2d 352; People v. Peters, at p. 759, 147 Cal. Rptr. 646, 581 P.2d 651 (dis. opn. of Mosk, J.); People v. Carreon (1997) 59 Cal. App.4th 804, 808, 69 Cal.Rptr.2d 438.) Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges. (See People v. Posey (2004) 32 Cal.4th 193, 206-207, 8 Cal.Rptr.3d 551, 82 P.3d 755; Barker v. Municipal Court (1966) 64 Cal.2d 806, 811, 51 Cal.Rptr. 921, 415 P.2d 809; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 738, 124 Cal.Rptr.2d 591; Paredes v. Superior Court (1999) 77 Cal. App.4th 24, 28, 91 Cal.Rptr.2d 350.)

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. (See Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1016, 100 Cal. Rptr. 693 [noting "clear policy of the law favoring an expeditious resolution of misdemeanor charges"]; Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 31-32, 140 Cal.Rptr. 17 ["In the case of misdemeanors ... other considerations may reasonably justify giving the People only one bite at the apple"]; cf. Apprendi v. New Jersey (2000) 530 U.S. 466, 480, fn. 7, 120 S.Ct. 2348, 147 L.Ed.2d 435 [characterizing misdemeanors as "those `smaller faults and omissions of less consequence'"].)

On the other hand, there is a heightened societal interest...