Brazell v. Superior Court

Opinion

THE COURT.

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Petitioner seeks a writ of mandate directing the trial court to grant her motion to dismiss the murder charges pending against her.

Facts

On November 4, 1985, petitioner was arraigned on an amended complaint alleging multiple violations of both the Penal Code and the Vehicle Code arising out of a traffic collision. In two counts of that complaint petitioner was charged with murder pursuant to Penal Code section 187 based upon the deaths of Monty Conley and Joe Landin which occurred as a result of the collision.

Following a preliminary examination, petitioner was held to answer on all charges.

[798]

On January 6, 1986, petitioner was arraigned on an information which included the murder charges.

On April 22,1986, the superior court granted petitioner’s motion pursuant to Penal Code section 995 to dismiss the information. A copy of the superior court’s ruling is attached to this opinion as exhibit 1.

On April 25, 1986, petitioner was arraigned on a new complaint which alleged the dismissed counts.

On July 22, 1986, following a second preliminary hearing the magistrate ruled as follows: “I’m not going to hold her to answer on [the murder charges] on my comments. She will be ordered to appear in the Superior Court to answer to the rest of the charges.”

On August 6, 1986, petitioner was arraigned in respondent court on an information which realleged the murder charges.

On September 11, 1986, petitioner filed a motion to dismiss the murder charges pursuant to Penal Code section 1387. Respondent court denied that motion by an order filed on September 23,1986, and an amendment rendered on October 3, 1986.

Discussion

Penal Code section 1387 provides in pertinent part as follows: “An order terminating an action pursuant to . . . 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 . . . Section . . . 995 ....