People v. Juarez

Citation62 Cal.4th 1164,366 P.3d 989,199 Cal.Rptr.3d 735
Decision Date17 March 2016
Docket NumberNo. S219889.,S219889.
CourtUnited States State Supreme Court (California)
Parties The PEOPLE, Plaintiff and Appellant, v. Gerardo JUAREZ, Defendant and Respondent. The People, Plaintiff and Appellant, v. Emmanuel Juarez, Defendant and Respondent.

62 Cal.4th 1164
366 P.3d 989
199 Cal.Rptr.3d 735

The PEOPLE, Plaintiff and Appellant,
Gerardo JUAREZ, Defendant and Respondent.

The People, Plaintiff and Appellant,
Emmanuel Juarez, Defendant and Respondent.

No. S219889.

Supreme Court of California

March 17, 2016.

199 Cal.Rptr.3d 736

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant.

Frank Davis, Alternate Public Defender, and Antony C. Ufland, Deputy Alternate Defender, for Defendant and Respondent Gerardo Juarez.

John F. Schuck, Palo Alto, under appointment by the Supreme Court, for Defendant and Respondent Emmanuel Juarez.


366 P.3d 990
62 Cal.4th 1167

Penal Code section 1387 generally permits a felony charge to be dismissed and refiled once, but not twice.1 Two dismissals " bar ... any other prosecution for the same offense." (§ 1387, subd. (a).) Here, charges that defendants committed attempted murder were dismissed twice. The People then charged them with conspiracy to commit murder based on the same underlying facts as the twice-dismissed charges. The Court of Appeal held that conspiracy to commit murder is not the "same offense" as attempted murder under section 1387, and thus the statute does not bar prosecution for that crime. The court expressed unease with this conclusion but believed that a recent opinion from this court compelled it. (People v. Traylor (2009) 46 Cal.4th 1205, 96 Cal.Rptr.3d 277, 210 P.3d 433 (Traylor ).)

We conclude that Traylor does not govern this situation. Because, as pleaded, the conspiracy charges contain all of the

199 Cal.Rptr.3d 737

elements of the twice-dismissed attempted murder charges, they are the same offenses under section 1387.


We adopt the Court of Appeal's summary of the factual and procedural history.

"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 November 2011, 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. Emmanuel then shot John Doe. John Doe's companion, Jane Doe, attempted to flee, but defendants caught up to her and Gerardo shot her in the thigh.

62 Cal.4th 1168

"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,

366 P.3d 991

and one count of possession of a firearm by a felon (former § 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 disclosed in 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 ready to proceed to 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 dismissed the 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 complaint indicate the charges were based on the same incident as the previous complaints.

"Defendants moved to dismiss this complaint under section 1387. The magistrate denied the motion without comment.

"Defendants then petitioned the superior court 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: ‘Where is the limit in regard to your theory of refiling? [¶] If we take assaultive conduct like attempted murder, you could have 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 great bodily 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." (Fns. omitted.)

The Court of Appeal reversed the judgment dismissing the case and directed the trial court to reinstate it. Relying on this court's interpretation of section 1387 in Traylor, supra, 46 Cal.4th 1205, 96 Cal.Rptr.3d 277, 210 P.3d 433, it held that conspiracy to commit murder is not the "same offense" as attempted murder under section 1387, and thus section 1387 does not bar filing the third complaint. It "recognize[d] the result we reach is counterintuitive, and generally not in keeping with the policies section 1387 is supposed

199 Cal.Rptr.3d 738

to represent," but it believed its "hands [were] tied." "Ultimately," the court said, "we are bound

62 Cal.4th 1169

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 narrow interpretation of the term ‘same offense.’ "

We granted defendants' petitions for review to decide how to apply section 1387 in this situation.


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]...." (Italics added; see Burris v. Superior Court (2005) 34 Cal.4th 1012, 1016, 22 Cal.Rptr.3d 876, 103 P.3d 276 (Burris ).)

In Burris, we described this "108–word, 13–comma, no period subdivision [as] hardly pellucid." (Burris, supra, 34 Cal.4th at p. 1018, 22 Cal.Rptr.3d 876, 103 P.3d 276.) But here, the statutory question is quite straightforward. Everyone agrees this case is a felony, and that the original action was terminated twice within the meaning of section 1387. Thus, section 1387 bars another prosecution "for the same offense." The question here is whether the most recent complaint, charging defendants with conspiracy to commit murder, is for the same offense as the

366 P.3d 992

previous action, which charged defendants with attempted murder.

Describing the statutory question as straightforward does not mean it is easy. It is actually quite difficult. What the Legislature means by "same offense" is far from clear. Obviously, if the new matter charges precisely the same offense as the twice-terminated action, section 1387 would bar further prosecution. But what if the new charge is slightly different? Is it still the same offense? Can the prosecution continually refile felony charges (twice each) as long as it finds different penal provisions to charge? If not, how different must the new charge be to not be the same offense?

The district attorney argues that attempted murder and conspiracy to commit murder are not the same offense under section 1387 because they contain different elements. They do, indeed, contain different elements. Conspiracy to commit murder requires an agreement to commit murder and an overt act by one or more of the conspirators. (

62 Cal.4th 1170

People v. Smith (2014) 60 Cal.4th 603, 616, 180 Cal.Rptr.3d 100, 337 P.3d 1159.) Attempted murder requires the intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7, 58 Cal.Rptr.3d 421, 157 P.3d 1017.) Because an agreement to commit murder necessarily includes an intent to kill (People v. Swain (1996) 12 Cal.4th 593, 607, 49 Cal.Rptr.2d 390, 909 P.2d 994 ), both crimes require an intent to kill. But attempted murder does not require an agreement. Conspiracy does not require an ineffectual act toward...

To continue reading

Request your trial
1 cases
  • People v. Juarez, S219889.
    • United States
    • United States State Supreme Court (California)
    • March 17, 2016
    ...62 Cal.4th 1164366 P.3d 989199 Cal.Rptr.3d 735The PEOPLE, Plaintiff and Appellant,v.Gerardo JUAREZ, Defendant and Respondent.The People, Plaintiff and Appellant,v.Emmanuel Juarez, Defendant and Respondent.No. S219889.Supreme Court of CaliforniaMarch 17, 2016.199 Cal.Rptr.3d 736Tony Rackauck......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT