Appellate Practice
Aug. 3, 2002
Court OKs Refiling After Dismissal of Charges
LOS ANGELES - Prosecutors can upgrade a misdemeanor to a felony even if the original charges have been dismissed, a state appellate court said Thursday. The three-justice panel of the 4th District Court of Appeal reached back to a 1904 California Supreme Court case, People v. Smith , 143 Cal. 597 (Cal. 1904), to interpret the meaning of Penal Code Section 1387, which 4th District Justice Richard Aronson described as "not a model of clarity."
The three-justice panel of the 4th District Court of Appeal reached back to a 1904 California Supreme Court case, People v. Smith, 143 Cal. 597 (Cal. 1904), to interpret the meaning of Penal Code Section 1387, which 4th District Justice Richard Aronson described as "not a model of clarity." Burris v. Superior Court, 2002 DJDAR 8667 (Cal. App. 4th Dist. Aug. 2, 2002).
The statute had given some prosecutors procedural headaches, by appearing to prevent them from refiling felony charges after misdemeanor charges for the same crime had been thrown out, said Orange County Deputy District Attorney Brian Gurwitz, who argued the case.
Refilings are common when additional information about prior offenses or the crime itself comes to light before trial, making felony charges more suitable than misdemeanors. Prosecutors can change gears in several ways, including filing a new felony charge and dismissing the earlier, lesser count.
"Veteran prosecutors for years have counseled their inexperienced colleagues to proceed with care when attempting to supplant a pending misdemeanor complaint with a new felony charge," Aronson wrote for the 4th District panel. "They warned that premature dismissal of the misdemeanor before a new felony charge was filed would bar any further prosecution ... We consider in this writ petition whether this commonly held belief is accurate. It is not."
Aronson was joined in the published opinion by Justices William W. Bedsworth and Kathleen E. O'Leary.
The underlying case involved a drunken-driving offense that was charged as a misdemeanor. Later, the Orange County district attorney's office discovered that the suspect, Michael Burris, had not two but three prior drunken-driving convictions and upgraded the charges from misdemeanors to felonies.
Because of a clerical error, the felony complaint was filed 90 minutes after the court dismissed the misdemeanor charges. Burris then asked to have the felony charges dismissed because they were filed after the previous charges had been dropped. Orange County Superior Court Judge Gail Andrea Andler denied his request, and he appealed. Thursday's 4th District decision affirms the trial court and puts Burris' felony case back in play.
"The issue doesn't come up all that often, but when it comes up, it's an important discussion," Gurwitz said.
Thursday's opinion "clarifies, sort of, a previously uncertain area of the law," he said.
The 4th District's published decision in Burris conflicts with a 1964 opinion from the 2nd District Court of Appeal, People v. Nelson, 228 Cal.App.2d 135 (Cal. App. 2nd Dist. 1964), which came to the opposite conclusion about the meaning of the statute.
"Trial courts will now have a choice. They can follow Nelson, or they can follow this case. Assuming the Supreme Court doesn't grant review, there's gong to be a split of authority," Gurwitz said. "I'm confident that the trial courts will follow Burris because it's a much more well-reasoned opinion."
Marlin G. Stapleton Jr., attorney for Burris, said he planned to ask for Supreme Court review of the decision because of the two conflicting appellate court opinions.
Stapleton said that although the court's interpretation sent Burris back to court, the ruling could benefit future defendants who face misdemeanor charges after felony charges are dismissed.
"If the case now before the court is a misdemeanor which was a previously dismissed felony, you can't do it that way because you don't get a second shot at the misdemeanor," Stapleton said.
At the 4th District's request, the California attorney general and the Orange County and Los Angeles public defenders' offices had filed amicus briefs in the case. The decision was published in late April, then withdrawn for minor changes and republished Thursday.
Katherine Gaidos
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