People v. Bohlen

[402]

Opinion

GATES, Acting P. J.

Defendant Dawn Kay Bohlen appeals from the judgment (order granting probation) entered upon her plea of no contest to charges that she drove a motor vehicle when she was so under the influence that her blood-alcohol content exceeded 0.20 percent and while so doing she committed an unlawful act that resulted in injury to another. (Veh. Code, § 23153, subds. (a) and (b), § 23206.1.) She contends:

“Penal Code section 1387 barred prosecution of appellant in information A042185 after the People suffered two dismissals in prosecutions 88L05329 and A041266.”

We frequently have rejected such a contention when presented under similar factual circumstances. However, since we regarded its resolution as clear, we have not published our decisions. In the hope of breaking this cycle, we will do so here.

Though in view of appellant’s plea, the facts underlying the instant charges were not established by trial, the record indicates that at approximately 2 a.m., while driving under the influence of alcohol or drugs, she ran a red light and struck a motorcyclist, injuring him to such an extent it was necessary to amputate one of his legs. Three-quarters of an hour later her blood-alcohol content still ranged between 0.24 and 0.29 percent.

Apparently because of the alternative penalties provided for such conduct, the Long Beach City Prosecutor filed a misdemeanor complaint (88L05329) that was followed by a felony complaint (A041266) lodged by the District Attorney of Los Angeles County. This, of course, rendered the city prosecutor’s complaint duplicative, since the possibility that appellant’s offense might yet be reduced to a misdemeanor by sentence was inherent in the district attorney’s more serious accusation. Consequently, the city prosecutor’s complaint was then dismissed with the specific observation that this was being done due to the filing of the felony complaint. Although this fact was also noted in handwriting on the municipal court’s docket, the stamp used by the clerk to record this entry was of the “interest of justice” variety. (See attachment hereto.)

Unfortunately, for unknown reasons, the People neglected to introduce evidence of appellant’s blood-alcohol content at her preliminary hearing. Therefore, they “joined” in her Penal Code section 995 motion to dismiss the information filed in A041266, refiling the same charges as A042185, i.e., the present proceeding.