People v. Elias

Opinion

DAVIS, J.

This is an appeal by the People based upon the superior court’s dismissal of an information pursuant to Penal Code section 1387.

1

We shall reverse.

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On August 19, 1988, the People filed complaint No. F-44986 in the municipal court charging defendant with grand theft (Pen. Code, § 487, subd. (1)). On August 26, complaint No. F-45050 was filed in the municipal court charging defendant with the same grand theft olfense but adding two prior felony convictions.

On September 2, defendant was held to answer on the first filed complaint, complaint No. F-44986, and on September 7, based upon the holding order the district attorney filed information No. 42941 in the superior court.

On October 3, the superior court granted defendant’s motion to dismiss the information pursuant to Penal Code section 995 and on October 4 the district attorney refiled the same grand theft charge as complaint No. F-45372.

At defendant’s arraignment on complaint No. F-45372, complaint No. F-45050, which had been filed by a prosecutor other than the one who had filed complaint No. F-44986, was discovered; complaint No. F-45050 had never been acted upon. At the prosecutor’s request, complaint No. F-45050 was dismissed as a duplicate filing.

Prior to the preliminary examination on complaint No. F-45372 defendant filed a motion to dismiss pursuant to Penal Code section 1387 (see fn.

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1), claiming there had been two dismissals of the action within the meaning of that section. The motion was denied and defendant was held to answer.

Based upon the new holding order the People filed information No. 43289 in the superior court. Defendant pled not guilty and again sought dismissal on Penal Code section 1387 grounds.