P. v. Rodriguez
The trial court issued an order barring the prosecutor from proceeding further against defendant Mark Anthony Rodriguez on count 1 (murder) and count 3 (firing into an inhabited dwelling house) of the criminal complaint filed against him. The order was made pursuant to Penal Code section 1387, which bars further prosecution of any felony offense after it has twice been terminated for reasons specified in the statute. (All further statutory references are to the Penal Code.) The prosecutor appeals, arguing the court’s order dismissing the first indictment alleging those counts did not qualify as a termination for purposes of section 1387. Alternatively, the prosecutor argues he should have been afforded one additional opportunity to refile the charges, because the court’s order dismissing the first indictment constituted “excusable neglect†under section 1387.1. Finding neither contention persuasive, we affirm.
The court’s order dismissing the first indictment qualified as a termination for purposes of section 1387 because it arose out of Rodriguez’s motion to dismiss pursuant to section 995 – one of the specified bases for a qualifying termination under section 1387. Although the prosecutor did argue the court should simply dismiss the first indictment as “duplicative†and not reach the merits of the section 995 motion, in light of the grand jury’s subsequent return of a second indictment against Rodriguez alleging the same counts, the court rejected that option. Instead, the court made clear its intention to afford Rodriguez relief on the merits of his section 995 motion, just as it had previously done for a different defendant who had been separately indicted on charges arising out of the same incident. (We grant Rodriguez’s request for judicial notice of documents pertaining to the motion to dismiss filed by the other defendant, Wesley Solis, as well as the court’s ruling thereon.) Indeed, the court expressly stated its intention was to treat the dismissal “as [a] 1387†dismissal. And while that order was directly appealable, the prosecutor elected not to pursue such an appeal.
The prosecutor’s alternative claim, that the court’s order dismissing the first indictment constitutes “excusable neglect†under section 1387.1, likewise fails because it is unsupported by any showing that either the court’s decision to reach the merits of the section 995 motion, or its ruling thereon, was actually erroneous.
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