People v. Juarez and Juarez (2016) 62 Cal. 4th 1164
Here, two defendants with the same last name of Juarez were charged with attempted murder twice and the charges were dismissed twice when the state was unprepared to proceed. In a third complaint, the state charged the men with conspiracy to commit murder based on the same underlying facts as the twice-dismissed charges.The defendants sought dismissal in the trial court which was denied and sought a writ in the Court of Appeal. But 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, People v. Traylor (2009) 46 Cal.4th 1205 [96 Cal.Rptr.3d 277, 210 P.3d 433] (Traylor)), compelled the conclusion.
Penal Code Section 1387
Penal Code section 1387 generally permits a felony charge to be dismissed and refiled once, but not twice. Two dismissals "bar ... any other prosecution for the same offense." (§ 1387, subd. (a).)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. [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 refiling of the same charges.” (Ibid.)
Holding
The California Supreme Court held that Traylor does not govern this situation. Because, as pleaded, the conspiracy charges contain all of the elements of the twice-dismissed attempted murder charges, they are the same offenses under section 1387.Rational
Although the statutory elements of conspiracy to commit murder do not include all of the elements of attempted murder, under the accusatory pleading test. if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Shockley (2013) 58 Cal.4th 400, 404; cf. People v. Reed (2006) 38 Cal.4th 1224, 1229 [for purposes of § 954, only the statutory elements test applies].)The California Supreme court applied the accusatory pleading test. Applying that test, the conspiracy to commit murder charges, as pleaded, are the same offenses as the previously dismissed attempted murder charges.
The element of attempted murder that is missing from conspiracy to commit murder is a direct but ineffectual act toward accomplishing the intended killing. The felony complaint in this case alleged several overt acts regarding each conspiracy charge, including actually shooting the intended victim of each alleged conspiracy.
Alleging an actual shooting of the intended victim necessarily also alleges a direct act toward accomplishing the intended killing. Accordingly, as pleaded, the conspiracy charges include all of the elements of the previous attempted murder charges, thus making them the same offenses as the previous charges.
Thus, the Supreme Court reversed and remanded to the trial court to take action consistent with this ruling.
Copyright © 2016 Christine Esser
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