two-dismissal rule in California

2023(See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [“[f]elony prosecutions . . . are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge”].) Furthermore, our review does not disclose that defendant was prejudiced by the delay in bringing defendant to trial on the first filing of the felony charges.

2022In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith.” (Id., subd. (a).) “‘[E]xcusable neglect’ includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” (Id., subd. (b).) 4. previous dismissals of charges for the same offense will bar a new felony charge.’” (People v. Trujeque (2015) 61 Cal.4th 227, 255 , quoting Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 (Burris).) However, section 1387.1 provides an exception to the two-dism

2016Even a dismissal in the superior court following an order setting aside an information or indictment is no bar to a future prosecution for the same offense. (... § 999; see also § 1387.)" ( People v. Uhlemann (1973) 9 Cal.3d 662 , 666, 108 Cal.Rptr. 657 , 511 P.2d 609 ( Uhlemann ).) *849 Section 1387 " 'is sometimes loosely described as establishing a two-dismissal rule.' " ( *1241 People v. Hatch (2000) 22 Cal.4th 260 , 270, 92 Cal.Rptr.2d 80 , 991 P.2d 165 ( Hatch ), citing People v. Superior Court ( Martinez ) (1993) 19 Cal.App.4th 738 , 744, 23 Cal.Rptr.2d 733 .) Section 1387, subdivision

2016Even a dismissal in the superior court following an order setting aside an information or indictment is no bar to a future prosecution for the same offense. (... § 999; see also § 1387.)" ( People v. Uhlemann (1973) 9 Cal.3d 662 , 666, 108 Cal.Rptr. 657 , 511 P.2d 609 ( Uhlemann ).) *849 Section 1387 " 'is sometimes loosely described as establishing a two-dismissal rule.' " ( *1241 People v. Hatch (2000) 22 Cal.4th 260 , 270, 92 Cal.Rptr.2d 80 , 991 P.2d 165 ( Hatch ), citing People v. Superior Court ( Martinez ) (1993) 19 Cal.App.4th 738 , 744, 23 Cal.Rptr.2d 733 .) Section 1387, subdivision

2021Section 1387.1 creates an exception to the two- dismissal rule, and permits a third filing, where the action involves a “violent felony” as defined in section 667.5, and where either of the prior dismissals was “due solely to excusable neglect” and the conduct of the prosecution did not “amount[ ] to bad faith.”2 (§1387.1, subd. (a).) The exception was “designed to save serious-felony prosecutions from improvident loss.” (People v. Woods (1993) 12 Cal.App.4th 1139, 1157 .) “ ‘[E]xcusable neglect’ includes, but is not limited to, error on the part of the court, prosecution, law enforcement agen

2020(Id. at p. 1197, citing People v. Woods (1993) 12 Cal.App.4th 1139, 1155 ; Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1114 .) Section 1387.1, subdivision (a) creates an exception to the two-dismissal rule for violent felonies: “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect.

2016Section 1387, subdivision (c), provides: "An order terminating an action is not a bar to prosecution if a complaint is dismissed before the commencement of a preliminary hearing in favor of an indictment filed pursuant to [s]ection 944 and the indictment *850 is based upon the same subject matter as charged in the dismissed complaint, information, or indictment." An exception to the two-dismissal rule is when after a complaint has been filed the prosecution seeks an indictment based on the same charges prior to the preliminary hearing on the complaint. ( Uhlemann, supra, 9 Cal.3d at p. 666 , 1

2016Section 1387, subdivision (c), provides: "An order terminating an action is not a bar to prosecution if a complaint is dismissed before the commencement of a preliminary hearing in favor of an indictment filed pursuant to [s]ection 944 and the indictment *850 is based upon the same subject matter as charged in the dismissed complaint, information, or indictment." An exception to the two-dismissal rule is when after a complaint has been filed the prosecution seeks an indictment based on the same charges prior to the preliminary hearing on the complaint. ( Uhlemann, supra, 9 Cal.3d at p. 666 , 1

2023(People v. Mason (2006) 140 Cal.App.4th 1190, 1195 (Mason).) Section 1387.1 carves out an exception to the two-dismissal rule when the action involves a violent felony, as defined in section 667.5.

2021DISCUSSION I Section 1387 and the Two Dismissal Rule Section 1387, subdivision (a), provides, in part and with four enumerated exceptions not relevant here: “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 . . . and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995. . . .” “This commonly is called in felony cases the two dismissal rule.” (People v. Mason (2006) 140 Cal.App.4th 1190, 1195 .) 12 Defendant’s contentions, summarize

2023I Legal Background “Under section 1387, felony prosecutions are generally ‘subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.’ [Citation.] . . . [Section 1387.1] provides an exception to the ‘two-dismissal rule’: it permits the prosecution to file a violent felony charge a third time if either of the prior dismissals were due to ‘excusable neglect,’ and the prosecution did not act in ‘bad faith.’ (§ 1387.1, subd. (a); see Miller v. Superior Court (2002) 101 Cal.App.4th 728, 739 .)” (People v. Trujeque (2015) 61 Cal.4th 227, 25

2022In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith.” (Id., subd. (a).) “‘[E]xcusable neglect’ includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” (Id., subd. (b).) 4. previous dismissals of charges for the same offense will bar a new felony charge.’” (People v. Trujeque (2015) 61 Cal.4th 227, 255 , quoting Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 (Burris).) However, section 1387.1 provides an exception to the two-dism

2023Under section 1387.1, a third filing is permitted where (1) either of the prior dismissals were “due solely to excusable neglect,” and (2) the conduct of the prosecution did not “amount[] to bad faith.” ( Mason, supra, at p. 1196 .) The statute broadly defines excusable neglect by stating it “includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” (§ 1387.1, subd. (b).) “ ‘ “[E]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” ’ ” (People v. M

2023(Miller v. Superior Court (2002) 101 Cal.App.4th 728, 741 (Miller); People v. Massey (2000) 79 Cal.App.4th 204, 211 (Massey); People v. Woods (1993) 12 Cal.App.4th 1139, 1149 (Woods).) In Miller, the appellate court denied a writ petition challenging the denial of a section 1387 motion to dismiss the prosecution of charges, including robbery and first degree burglary, after a third filing.

2023The Legislature had created an exception to the two-dismissal rule that would likely apply in this instance, but the exception is reserved for violent felonies.5 (§ 1387.1.) “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect.” (Ibid.) “ ‘ “Simply expressed, ‘excusable neglect is neglect that might have been the act or omission of a reas

2023The Legislature had created an exception to the two-dismissal rule that would likely apply in this instance, but the exception is reserved for violent felonies.5 (§ 1387.1.) “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect.” (Ibid.) “ ‘ “Simply expressed, ‘excusable neglect is neglect that might have been the act or omission of a reas

2023(See Sutton Place, supra, 826 F.2d at p. 640 [in considering the two-dismissal rule of Rule 41(a)(1)(B), “it must be remembered that federal rules are carefully-crafted instruments designed to achieve, by their uniform application, fairness and expedition in the conduct of federal litigation”]; see also 9 Wright & Miller, § 2368, fns. omitted [“two[-]dismissal rule applies in federal court actions whether the first dismissal was in a state or a federal court”].) The fact that Rule 41(a) is centered on federal court proceedings is underscored by the application of the two-dismissal rule.

2023(See Sutton Place, supra, 826 F.2d at p. 640 [in considering the two-dismissal rule of Rule 41(a)(1)(B), “it must be remembered that federal rules are carefully-crafted instruments designed to achieve, by their uniform application, fairness and expedition in the conduct of federal litigation”]; see also 9 Wright & Miller, § 2368, fns. omitted [“two[-]dismissal rule applies in federal court actions whether the first dismissal was in a state or a federal court”].) The fact that Rule 41(a) is centered on federal court proceedings is underscored by the application of the two-dismissal rule.

2020(Id. at p. 1197, citing People v. Woods (1993) 12 Cal.App.4th 1139, 1155 ; Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1114 .) Section 1387.1, subdivision (a) creates an exception to the two-dismissal rule for violent felonies: “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect.

2020(Id. at p. 1197, citing People v. Woods (1993) 12 Cal.App.4th 1139, 1155 ; Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1114 .) Section 1387.1, subdivision (a) creates an exception to the two-dismissal rule for violent felonies: “Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect.

2023“These are questions of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71 ; see also People v. Salcido (2008) 166 Cal.App.4th 1303, 1311 [reviewing questions of statutory interpretation of section 1387 under the de novo review standard].) The Two-Dismissal Rule Under Section 1387, Subdivision (a) “[S]ection 1387 limits the number of times the prosecution may dismiss and refile charges.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 107 .) “Although the text of section 1387 is ‘hardly pellucid’ (Burris v. Superior Court (2005) 34 Cal.4th 1012,

2023“These are questions of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71 ; see also People v. Salcido (2008) 166 Cal.App.4th 1303, 1311 [reviewing questions of statutory interpretation of section 1387 under the de novo review standard].) The Two-Dismissal Rule Under Section 1387, Subdivision (a) “[S]ection 1387 limits the number of times the prosecution may dismiss and refile charges.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 107 .) “Although the text of section 1387 is ‘hardly pellucid’ (Burris v. Superior Court (2005) 34 Cal.4th 1012,

2023(See People v. Buycks (2018) 5 Cal.5th 857, 880 [“ ‘When the Legislature “has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.” ’ ”]; Tarrant Reg’l Water Dist. v. Herrmann (2013) 569 U.S. 614, 629 [“ ‘ “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed [that] Congress acts intentionally and purposely in the disparate inclusion or exclusion.” ’ ”].) Finally, a dismissal under section 1385 is different than the other grounds of dismissal lis

2023(See People v. Buycks (2018) 5 Cal.5th 857, 880 [“ ‘When the Legislature “has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.” ’ ”]; Tarrant Reg’l Water Dist. v. Herrmann (2013) 569 U.S. 614, 629 [“ ‘ “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed [that] Congress acts intentionally and purposely in the disparate inclusion or exclusion.” ’ ”].) Finally, a dismissal under section 1385 is different than the other grounds of dismissal lis

2023(See Engelhardt v. Bell & Howell Co. (8th Cir. 1962) 299 F.2d 480, 484 [plaintiff’s voluntary dismissal of second federal diversity suit following dismissal of prior federal diversity suit was an “ ‘adjudication [on] the merits’ ” barring third federal action].) Here, however, Appellants filed a state court action alleging only state-law claims, having abandoned the federal claims they had asserted in the first and second federal suits.

2023(See Engelhardt v. Bell & Howell Co. (8th Cir. 1962) 299 F.2d 480, 484 [plaintiff’s voluntary dismissal of second federal diversity suit following dismissal of prior federal diversity suit was an “ ‘adjudication [on] the merits’ ” barring third federal action].) Here, however, Appellants filed a state court action alleging only state-law claims, having abandoned the federal claims they had asserted in the first and second federal suits.

2023“These are questions of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71 ; see also People v. Salcido (2008) 166 Cal.App.4th 1303, 1311 [reviewing questions of statutory interpretation of section 1387 under the de novo review standard].) The Two-Dismissal Rule Under Section 1387, Subdivision (a) “[S]ection 1387 limits the number of times the prosecution may dismiss and refile charges.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 107 .) “Although the text of section 1387 is ‘hardly pellucid’ (Burris v. Superior Court (2005) 34 Cal.4th 1012,

2023“These are questions of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71 ; see also People v. Salcido (2008) 166 Cal.App.4th 1303, 1311 [reviewing questions of statutory interpretation of section 1387 under the de novo review standard].) The Two-Dismissal Rule Under Section 1387, Subdivision (a) “[S]ection 1387 limits the number of times the prosecution may dismiss and refile charges.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 107 .) “Although the text of section 1387 is ‘hardly pellucid’ (Burris v. Superior Court (2005) 34 Cal.4th 1012,