People v. Superior Court (Martinez)

Decision Date21 October 1993
Docket NumberNo. B075272,B075272
Citation19 Cal.App.4th 738,23 Cal.Rptr.2d 733
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Isiais MARTINEZ et al., Real Parties in Interest.

Gil Garcetti, Dist. Atty., Patrick D. Moran and Brentford J. Ferreira, Deputy Dist. Attys., for petitioner.

No appearance for respondent.

Rand Steven Rubin and Timothy C. Lannen, Los Angeles, for real parties in interest.

CHARLES S. VOGEL, Associate Justice.

As to two defendants, the superior court dismissed one count (murder) of a twelve-count multi-party indictment on the ground that prosecution of the murder charge against them is barred by Penal Code section 1387. 1 That section provides that further prosecution of a felony is barred if the action has twice been previously terminated. The People seek a writ of mandate compelling the superior court to vacate this order. We shall issue the writ, concluding that the murder charge has not been twice previously terminated.


On June 22, 1992, the People filed a complaint (case number BA060225) in two counts, charging real parties in interest Isiais Martinez and Rubidia Lopez, as well as Jorge Sanchez (not a party to this proceeding), with (1) murder (§ 187), and (2) conspiracy to commit insurance fraud (former Ins.Code, § 1871.1, see now Pen.Code, § 550, subd. (a)(6)).

As required by sections 859b and 738, a preliminary hearing was held on this complaint from September 24 to October 6, 1992. The evidence at the preliminary hearing indicated the defendants staged a vehicle accident for the purpose of defrauding an insurer.

On June 17, 1992, Sanchez drove a Pontiac in which Martinez, Lopez, and the decedent Jose Luis Perez were passengers. On the freeway Sanchez repeatedly maneuvered the Pontiac in front of a big rig car carrier, braking and swerving for no apparent reason. The big rig collided with the Pontiac and jacknifed, falling on top of the Pontiac. Perez was killed in the accident.

At the conclusion of the preliminary hearing on October 6, 1992, the magistrate held Sanchez to answer for murder and held all three defendants to answer for conspiracy to commit insurance fraud. (§ 872.) The magistrate concluded, however, that the evidence was insufficient to provide reasonable cause to believe Martinez and Lopez were guilty of murder. (§ 871.)

On October 20, 1992, as permitted by section 739, the People filed an information (still Superior Court, L.A. County, number BA060225) charging Sanchez, Martinez, and Lopez with both murder and conspiracy to commit insurance fraud. Sanchez, Martinez, and Lopez were arraigned on this information on October 20, 1992, and pleaded not guilty. Trial setting conference was set for October 30.

Meanwhile, the People were seeking a grand jury indictment (§ 737) covering the entire scope of a scheme by an attorney, his alleged capper, and numerous other persons to stage vehicle accidents for the purpose of insurance fraud. The grand jury returned a 12-count indictment against 30 defendants, alleging insurance fraud, conspiracy to commit insurance fraud, conspiracy to commit grand theft, conspiracy to violate Business and Professions Code section 6152, and murder. Count 9 of the indictment charged murder, based on the June 17 vehicle accident, against Sanchez, Martinez, and Lopez, and also against the attorney and the alleged capper. Count 8 of the indictment charged Sanchez, Martinez, Lopez, the attorney and the alleged capper with insurance fraud for presenting a claim based on the June 17 accident.

On October 30, 1992, the indictment (Superior Court, L.A. County, number BA066800) was unsealed and presented. (§ 944.) On that date, on the People's motion, the trial court dismissed information number BA060225 in the interest of justice (§ 1385) and arraigned Sanchez, Martinez, and Lopez on the indictment (number BA066800).

On the motion of Martinez and Lopez to set aside the indictment, the trial court found the evidence presented to the grand jury provided reasonable cause to try Martinez and Lopez for murder. (§ 995, subd. (a)(1)(B).) Martinez and Lopez thereafter contended, however, that the dismissal of October 30 was a second termination which, pursuant to section 1387, barred further prosecution under the indictment. After a somewhat convoluted procedural history which need not be recounted here, the trial court agreed with Martinez and Lopez that prosecution of them for murder under count 9 of the indictment was barred by section 1387. On May 3, 1993, the court dismissed count 9 of the indictment as to Martinez and Lopez.

The People sought a writ of mandate to compel the superior court to vacate this order, and an immediate stay of the trial of Martinez and Lopez for insurance fraud. We issued an order to show cause and a stay of the trial. Review by extraordinary writ is appropriate. The People's remedy by appeal (§ 1238, subd. (a)(1)) is inadequate because proceeding with trial of Martinez and Lopez for insurance fraud would involve needless duplication of evidence relating to the dismissed murder count if the appeal were ultimately successful. (See People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 862, 225 Cal.Rptr. 62.)


Subject to numerous exceptions (§§ 1387, 1387.1), the general rule of section 1387 is that "[a]n order terminating an action pursuant to this chapter, or Section ... 871 ... is a bar to any other prosecution for the same offense if it is a felony ... and the action has been previously terminated pursuant to this chapter, or Section ... 871...." (§ 1387, subd. (a).) The basic purpose of this section is to limit improper successive prosecutions which harass a defendant. (People v. Cossio (1977) 76 Cal.App.3d 369, 372, 142 Cal.Rptr. 781; Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640, 191 Cal.Rptr. 361.) This section is sometimes loosely described as establishing a two-dismissal rule, but by its terms requires two orders "terminating an action." In this case that distinction is significant.

In support of the trial court's order Martinez and Lopez contend (1) the magistrate's order was the first termination, (2) the order dismissing the information under section 1385 was the second termination, barring a "third" prosecution under the indictment, and (3) the prosecution was required to utilize the procedure established in section 871.5. They are wrong on all three grounds.


The People may prosecute either by information or by indictment. (§ 737.) Before an information is filed there must be a preliminary examination and an order holding the defendant to answer. The proceeding for a preliminary examination is commenced by a complaint. (§ 738.)

If it appears from the evidence at the preliminary examination that a public offense has been committed and there is sufficient cause to believe the defendant is guilty, the magistrate shall order the defendant held to answer. (§ 872.)

If, on the other hand, it appears from the evidence at the preliminary hearing that no public offense has been committed or that there is no sufficient cause to believe the defendant guilty, the magistrate shall order the complaint dismissed and the defendant discharged. (§ 871.) Even without a formal order of dismissal, the magistrate's decision not to hold the defendant to answer is the equivalent of a section 871 dismissal of the complaint. (Brazell v. Superior Court (1986) 187 Cal.App.3d 795, 800, 232 Cal.Rptr. 246; In re Williams (1985) 164 Cal.App.3d 979, 983, 211 Cal.Rptr. 32.)

Whether the magistrate's order of dismissal under section 871 is an order terminating the action within the meaning of section 1387 depends on the circumstances.

Because section 1387 allows one previous termination, the People may elect to treat the magistrate's dismissal as a final termination of that (first) action, and start over with a new (second) action. Under this procedure, the People file a new complaint, leading to a new (second) preliminary hearing and a second magistrate's evaluation. (E.g., Ramos v. Superior Court (1982) 32 Cal.3d 26, 29, 184 Cal.Rptr. 622, 648 P.2d 589.) 2 In that situation, the magistrate's order of dismissal of the complaint under section 871 terminates the (first) action. That was not the situation here.

Because the magistrate held Martinez and Lopez to answer on the transactionally related insurance fraud count, section 739 authorized the People to proceed in the same case by filing an information charging Martinez and Lopez "with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." Under this procedure, there is no second preliminary hearing. The People take the risk whether the magistrate was wrong in evaluating the sufficiency of evidence at the preliminary hearing, and that legal issue is normally tested in superior court by the defendant's motion under section 995 to set aside the information. (People v. Slaughter (1984) 35 Cal.3d 629, 633, 200 Cal.Rptr. 448, 677 P.2d 854; People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1225-1226, 6 Cal.Rptr.2d 242; People v. Encerti (1982) 130 Cal.App.3d 791, 798, 182 Cal.Rptr. 139; § 995, subd. (a)(2)(B).)

In such a case, the magistrate's dismissal under section 871 at the preliminary hearing does not terminate the action. The action continues with an information filed under the same case number pursuant to section 739. The action is not terminated at all if the superior court disagrees with the magistrate and denies a section 995 motion based on the evidence produced at the preliminary hearing. The action then proceeds, possibly to conviction. In any event, the action remains alive at least until the superior court agrees with the magistrate's ruling and grants the...

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