Dietrick v. Superior Court

California Court of Appeal Oct 30, 2013 No. C073008Published

Before: Duarte

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Holding. The court held that the two-dismissal rule under Penal Code section 1387 does not bar the refiling of felony charges when a penalty allegation has been dismissed only once, as the statute requires two prior terminations of the same charge.

Issues

Whether the two-dismissal rule of Penal Code section 1387 bars the refiling of felony DUI charges after a prior penalty allegation was dismissed once and the substantive misdemeanor charges were dismissed once.

Disposition. denied

Quotations verified verbatim against the opinion

“The flaw in this reasoning is that the magistrate’s act of finding the prior alleged DUI conviction not true was not the dismissal of any “felony charge” as petitioner states, but was instead merely the “dismissal” of a penalty allegation.”

“Therefore that penalty allegation was not dismissed twice, as petitioner assumes, but only once.”

“Here, the substantive DUI counts, having been dismissed only once before when they stood as misdemeanors, could be refiled as felonies, in the company of the prior DUI conviction allegation, without violating the two-dismissal rule.”

Filed 10/30/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

ERICK LLOYD DIETRICK, C073008

Petitioner, (Super. Ct. Nos. 12F01905 & 12F06313) v.

THE SUPERIOR COURT OF SACRAMENTO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J. McCormick, Judge. Petition for Writ of Mandate is denied.

Charles M. Bonneau and Mark H. Sollitt for Petitioner. No appearance for Respondent. Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, and Clara M. Levers, Deputy Attorney General, for Real Party in Interest.

This case involves “‘a particularly unpardonable fault of the prosecutor- unpreparedness.’” (People v. Whitaker (2013) 213 Cal.App.4th 999, 1006.) PROCEDURAL BACKGROUND On March 16, 2012, the People filed their first felony complaint charging petitioner Erick Lloyd Dietrick with driving under the influence of alcohol (DUI) (Count One), and DUI with a blood-alcohol level above .08 percent (Count Two), and as to each count alleged he had been convicted of a felony DUI within the past 10 years. (See Veh. Code, §§ 23152, subds. (a) & (b), 23550.5.) Absent the allegation of a prior conviction for DUI, Counts One and Two would have been misdemeanors. (Id., § 23536, subd. (a).) Pleading and proof of the prior, to elevate the substantive counts to felonies, was required as a matter of due process. (See People v. Casillas (2001) 92 Cal.App.4th 171, 184.) At the preliminary hearing held on September 20, 2012, the prosecutor neglected to produce any evidence of the alleged prior DUI, speculating after resting his case and presenting argument that he had left the evidence in his office. The magistrate (Candee, J.) held petitioner to answer on the two DUI counts as misdemeanors. Petitioner immediately attempted to plead guilty “to the sheet,” but the magistrate declined to accept the plea. After a brief recess, the same prosecutor moved to reopen, apparently having found the missing evidence. The magistrate declined to reopen the hearing.1 The prosecutor moved to dismiss the case, and the magistrate granted the motion. On September 21, 2012, the People filed their second felony complaint, largely identical to the first, but adding two prior prison term allegations.

Dietrick v. Superior Court

AI Brief

ERICK LLOYD DIETRICK, C073008

THE SUPERIOR COURT OF SACRAMENTO COUNTY,

THE PEOPLE,

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