Lee v. Superior Court

[639]

Opinion

BROWN (Gerald), P. J.

The petitioner, an attorney, is charged with solicitation for murder (Pen. Code, § 653f, subd. (b)) and conspiracy to commit murder (Pen. Code, § 182, subd. 1). In the middle of his first preliminary hearing, petitioner made a motion to continue on the ground he had just been successful in retaining counsel. The newly retained attorney was not in court that day, but had sent an associate to plead his cause and to tell the court he could put on the preliminary hearing in two weeks. The motion to continue was denied. Petitioner was bound over on both counts. Lee successfully challenged the denial of the motion to continue by a writ of mandate to this court. In granting the writ this court instructed the trial court “to vacate the order denying the Penal Code 995 motion . . . [and] set aside the information. ...” Pursuant to our order the action was dismissed.

A new complaint was filed alleging the same two counts. At the conclusion of the second preliminary hearing, petitioner was held to answer on the solicitation charge. The magistrate found there was insufficient evidence to bind over on the conspiracy count.

On November 16, 1982, an information was filed charging solicitation and the twice-dismissed conspiracy count. Petitioner brought a motion to dismiss the conspiracy charge on the ground that an action which has been twice dismissed cannot then be prosecuted (Pen. Code, § 1387). The motion was denied. Petitioner sought a writ of mandate in this court which was likewise denied. A petition for hearing in the Supreme Court was granted and the matter was retransferred to this court with instructions to issue an alternative writ.

The question presented here is whether a dismissal pursuant to section 995, which was ordered on the ground of denial of counsel at the preliminary hearing, qualifies as an action “previously terminated” under Penal Code section 1387. That section states: “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 or it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds that substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at or prior to the time of termination of the action or that the termination of the action was the result of the direct intimidation of a material witness, as shown by a preponderance of the evidence.