Dietrick v. Superior Court of Sacramento Cnty.

• Decision Date: 30 October 2013
• Docket Number: C073008
• Citation: 163 Cal.Rptr.3d 789,220 Cal.App.4th 1472
• Court: California Court of Appeals Court of Appeals
• Parties: Erick Lloyd DIETRICK, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent; The People, Real Party in Interest.

220 Cal.App.4th 1472
163 Cal.Rptr.3d 789

Erick Lloyd DIETRICK, Petitioner,
v.
The SUPERIOR COURT of Sacramento County, Respondent;
The People, Real Party in Interest.

C073008

Court of Appeal,
Third District, California.

Filed October 30, 2013

APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J. McCormick, Judge. Petition for Writ of Mandate is denied. (Super. Ct. Nos. 12F01905 & 12F06313)
Charles M. Bonneau, Sacramento, and Mark H. Sollitt, Elk Grove, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, and Clara M. Levers, Deputy Attorney General, for Real Party in Interest.

DUARTE, J.

[220 Cal.App.4th 1474]

This case involves “ ‘a particularly unpardonable fault of the prosecutor-unpreparedness.’ ” (People v. Whitaker (2013) 213 Cal.App.4th 999, 1006, 153 Cal.Rptr.3d 165.)

PROCEDURAL BACKGROUND

On March 16, 2012, the People filed their first felony complaint charging petitioner Erick Lloyd Dietrick with driving under the influence of alcohol (DUI) (Count One), and DUI with a blood-alcohol level above .08 percent (Count Two), and as to each count alleged he had been convicted of a felony DUI within the past 10 years. (See Veh. Code, §§ 23152, subds. (a) & (b), 23550.5.) Absent the allegation of a prior conviction for DUI, Counts One and Two would have been misdemeanors. ( Id., § 23536, subd. (a).) Pleading and proof of the prior, to elevate the substantive counts to felonies, was required as a matter of due process. (See People v. Casillas (2001) 92 Cal.App.4th 171, 184, 111 Cal.Rptr.2d 651.)

At the preliminary hearing held on September 20, 2012, the prosecutor neglected to produce any evidence of the alleged prior DUI, speculating after resting his case and presenting argument that he had left the evidence in his office. The magistrate (Candee, J.) held petitioner to answer on the two DUI counts as misdemeanors. Petitioner immediately attempted to plead guilty “to the sheet,” but the magistrate declined to accept the plea. After a brief recess, the same prosecutor moved to reopen, apparently having found the missing evidence. The magistrate declined to reopen the hearing.¹ The prosecutor moved to dismiss the case, and the magistrate granted the motion.

On September 21, 2012, the People filed their second felony complaint, largely identical to the first, but adding two prior prison term allegations.

Petitioner moved to dismiss pursuant to Penal Code section 1387 (§ 1387), the “two-dismissal” rule, which generally bars “further prosecution

[220 Cal.App.4th 1475]

of a felony if the action has twice been previously terminated according to the provisions of that statute.” (Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 218, 72 Cal.Rptr.3d 664; see generally Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018–1020, 22 Cal.Rptr.3d 876, 103 P.3d 276 [describing the different statutory treatment of successive felony and misdemeanor prosecutions] (Burris ).)

The trial court (McCormick, J.) denied the motion, finding “no purpose of [§ 1387] would be promoted” by finding two dismissals had occurred.

Petitioner filed the instant petition for a writ of mandate commanding the trial court to grant his motion to dismiss. We stayed further proceedings and, after considering the People's preliminary opposition, issued an alternative writ.

We now deny the petition and lift the stay, because we find the two-dismissal rule inapplicable to these procedural facts.

DISCUSSION

Section 1387 provides in relevant part as follows:

“(a) 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:

“(1) That substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at, or prior to, the time of termination of the action.”

“Despite the reference in P.C. 1387(a) to an order ‘terminating an action,’ it is now well established that the provision applies to the dismissal of a single count in a criminal proceeding, even though the entire ... complaint is not dismissed.” (5 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012) Criminal Trial, § 481(3), p. 749 (Witkin).)

Petitioner's claim in this court is straightforward: “Further prosecution as a felony is barred by the two-dismissal rule of section 1387. The felony charge has been dismissed [i.e., by the magistrate] for failure of proof. The...