Because the first dismissal was due to the trial court’s excusable neglect, we reverse.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2019, the District Attorney charged defendant with, among other offenses,
driving under the influence (Veh. Code, § 23153, subd. (f)) with an allegation that he
caused the victim great bodily injury (§ 12022.7), which is a violent felony (§ 667.5,
subd. (c)(8)). The deadline to hold a preliminary hearing under section 859b fell on April
3, 2020, during the early days of the COVID-19 pandemic when the Riverside Superior
Court was closed and the Chief Justice had issued various orders permitting certain 2 continuances. When that day came, however, the trial court sua sponte and without the
1 Unless otherwise indicated, all further statutory references are to the Penal Code. 2 See Superior Court of California, County of Riverside, Administrative Order.: 2020-10, available at https://www.riverside.courts.ca.gov/PublicNotices/CourtOrders/Order-Concerning- Temporary-Courthouse-Closures-04-02-2020.pdf; The People v. Superior Court; Jose Tapia (2023) 93 Cal.App.5th 394.
2
parties present continued a felony settlement conference to May 5, 2020. Because the
preliminary hearing deadline was not met, the trial court granted defendant’s section 995
motion to dismiss the case for violating his right under section 859b to a preliminary
hearing within 60 days of arraignment.
The court noted, however, that the preliminary hearing was not timely held
because of the disruption caused by the COVID-19 pandemic. As the court put it, “I
think everybody was trying to figure out what the hell to do, and I think we got it wrong.
I think that when the Court continued these cases without explicitly securing time
waivers from the defendant on those two very limited times that the defendant was in
court, our failure to do so and People’s failure to do so.” The court continued: “What no
one paid any attention to was what about those defendants that are in custody who gave a
limited time waiver, what about them? And nobody really dealt with that issue. I don’t
know whether people, you know, just forgot about those folks. I don’t know that we ever
had a conversation with those. And then it was oops, I think, you know, maybe we need
to put those defendants on calendar.” The trial court then candidly acknowledged that “a
lot of folks fell through the cracks,” including defendant, because “[w]e didn’t know
what the hell we were doing, period. And we’re still trying to figure that out.” The court
concluded by “tak[ing] the blame” because the court repeatedly continued defendant’s
case without him present, “thinking we had the authority to do so.”
The District Attorney did not appeal the dismissal, but instead refiled the same
charges against defendant. The trial court timely held a preliminary hearing, and
3
defendant was held to answer on some charges, including the count for driving under the
influence with a great bodily injury allegation.
About two months later, the trial court granted defendant’s motion to traverse the
search warrant. Five days later, the prosecutor told the trial court: “As to [defendant’s]
case . . . given the prior rulings and what has occurred, the People are going to dismiss
that case -- are going to move to dismiss that case. And we’re going to ask to refile the
case pursuant to . . . [s]ection 1387.1, which gives us a second chance at a dismissal
based on excusable neglect.” The trial court granted the prosecution’s motion to dismiss
the case, and the District Attorney refiled the same charges against defendant later that
day.
Defendant later moved to dismiss the case under section 1387, which bars further
prosecution of a felony offense after it has been terminated twice for certain reasons
outlined in the statute. The District Attorney opposed the motion, arguing that section
1387.1 authorized a third refiling of the charges against defendant because the first
dismissal was caused by the prosecution and the trial court’s excusable neglect stemming
from the onset of the COVID-19 pandemic.
In his reply, defendant argued that People v. Rodriguez (2013) 217 Cal.App.4th
326 (Rodriguez) “specifically rejected the prosecution’s argument.” According to
defendant, Rodriguez held that errors that constitute “excusable neglect under [section]
1387. 1 are limited to errors which are clerical and do not include legal errors which can
4
be reviewed on appeal.” Defendant thus argued at the hearing on his motion to dismiss
that Rodriguez was “determinative” and concerned “the exact same thing.”
The trial court ruled that the third filing of charges against defendant was
unauthorized under section 1387.1. The court found that the first dismissal was required
because defendant’s “absolute right to go to preliminary hearing in a timely fashion” was
violated, and “and the remedy for a violation of that absolute right is a dismissal.” In
other words, the trial court found that because the dismissal was legally mandated, it did
not matter whether the 60-day deadline in section 859b was missed because of the court
or prosecutor’s excusable neglect.
The court also noted that the District Attorney did not challenge or appeal the
dismissal, and never suggested that the failure to timely bring defendant to a preliminary
hearing was excusable because of the “chaos caused by the pandemic.” Following
Rodriguez, supra, 217 Cal.App.4th 326 as “right on point,” the trial court ruled that the
District Attorney could not “go back in time” and challenge the first dismissal by arguing
for the first time that defendant was not timely brought to a preliminary hearing because
of excusable neglect since the District Attorney did not appeal that dismissal. The trial
court explained that, if the first dismissal was wrong, then the prosecution should have
appealed the decision and argued that the court “got it wrong.” But because the decision
was not appealed, the court did not “know how [it] could now revisit that and try to say
that it was due to excusable neglect.”
5
The trial court therefore granted defendant’s motion to dismiss under section 1387.
The District Attorney timely appealed.
III.
DISCUSSION
The only issue we must decide is whether the trial court properly found that the
first dismissal of the charges against defendant was not “due solely to excusable neglect” 3 of the court and the District Attorney. We conclude the trial court erred.
Section 1387.1 was expressly enacted in response to People v. Mackey (1985) 176
Cal.App.3d 177 (Mackey). (See Senate Committee on Judiciary, Analysis of S.B. 709, p.
106.) There, the defendant was charged with murder, but the case was dismissed because
the prosecutor “failed to comply with a discovery order by not disclosing the statement of
the principal witness and the questionable circumstances under which it was obtained.”
(Mackey, supra, at p. 181.) The prosecutor refiled the charges, but the case was again
dismissed because the preliminary hearing was held past the 60-day period set forth in
section 859b. (Mackey, supra, at p. 181.) The hearing was not timely held because the
prosecutor “inexplicably stated that the 60-day limit [in section 859b] referred to the time
for trial in the superior court,” and the magistrate thought the prosecutor was right.
(Mackey, supra, at p. 182.) The magistrate therefore set and held the preliminary hearing
3 We note that, as to the first dismissal, defendant does not suggest the District Attorney acted in bad faith. (See § 1387.1, subd. (a).) We also note that the People do not contend the second dismissal, which occurred because the prosecutor requested a dismissal, was due to excusable neglect.
6
for a date beyond the 60-day deadline, which led the superior court to later dismiss the
case. (Ibid.)
The prosecutor refiled the charges again, but the trial court dismissed them under
section 1387, which generally provides that dismissed felony charges may only be refiled
once. (§ 1387, subd. (a).) The Mackey court affirmed, holding that section 1387 barred
the third filing of charges against the defendant. (Mackey, supra, 176 Cal.App.3d at p.
187.)
The author of the bill that enacted section 1387.1 explained that the statute was
intended “to ensure that suspects do not go free due to clerical or minor procedural error.”
(Leg. History, p. 233.) According to the author, “the results of the district attorney’s
mistakes in the Mackey case should not result in the release of a suspected murderer”
because “in the case of a serious felony, the price society must pay for procedural error is
too high.” (Leg. History, p. 341; see also People v. Henderson (2020) 46 Cal.App.5th
533, 542-543.)
Section 1387.1, therefore, permits prosecutors to file violent felony charges
against a defendant for a third and final time if the charges had been dismissed “‘due
solely to the excusable neglect’” of “‘the court, prosecution, law enforcement agency, or
witnesses.’” “‘Excusable neglect’” is “‘“neglect that might have been the act or omission
of a reasonably prudent person under the same or similar circumstances.”’” (People v.
Massey (2000) 79 Cal.App.4th 204, 211.) Examples of excusable neglect under section
1387.1 include a prosecutor failing to file a “technically correct affidavit” stating that a
7
witness was unavailable (Tapp v. Superior Court (1989) 216 Cal.App.3d 1030), and
prosecutors being unable to locate or produce a witness despite reasonable efforts (People
v. Mason (2006) 140 Cal.App.4th 1190, 1196; People v. Villanueva (2011) 196
Cal.App.4th 411, 425; People v. Massey, supra, at pp. 208-209; Miller v. Superior Court,
(2002)101 Cal.App.4th 728, 741.)
We review the trial court’s excusable neglect finding under section 1387.1 for an
abuse of discretion. (Miller v. Superior Court, supra, 101 Cal.App.4th at p. 741.) But
because section 1387.1 is a remedial statute, we review a trial court’s decision denying
relief more carefully than an order granting relief. (People v. Massey, supra, 79
Cal.App.4th at p. 211.) As a result, the policy favoring trial on the merits must prevail
unless there is clear inexcusable neglect. (Ibid.)
In Rodriguez, the defendant was charged with murder (a violent felony), and other
charges. (Rodriguez, supra, 217 Cal.App.4th at p. 329.) He moved to dismiss the
charges on the grounds he had been illegally committed without probable cause, and the
prosecutor had withheld exculpatory evidence from the grand jury and had committed
misconduct before it. (Ibid.) On the date of the hearing on the defendant’s motion, the
prosecutor moved to deny the motion as moot because of a new, superseding indictment.
(Id. at p. 330.) At a subsequent hearing, the trial court dismissed the first indictment and
8
“treat[ed] that dismissal under [section] 1387.” (Ibid.) The court urged the prosecution
to appeal the decision, but they did not do so. (Ibid.)
The prosecution refiled the same charges against the defendant, but the trial court
dismissed the murder count (and another count) under section 995. (Rodriguez, supra,
217 Cal.App.4th at p. 331.) Again, the prosecution did not appeal the dismissal.
Instead, the prosecution refiled the charges for a third time. (Rodriguez, supra,
217 Cal.App.4th at p. 404.) The trial court, however, found that the charges were barred
under section 1387 and were not permissible under section 1387.1, because the first
dismissal was not caused by the court’s excusable neglect, as the prosecutor asserted.
(Rodriguez, supra, at p. 405.) The trial court explained that, in its view, “excusable
neglect” is “restricted to essentially clerical errors, rather than substantive legal rulings.”
(Ibid.)
The Rodriguez court affirmed. (Rodriguez, supra, 217 Cal.App.4th at p. 328.)
The appellate court rejected the prosecutor’s main argument that the first dismissal did
not qualify as a dismissal for purposes of section 1387’s “two-dismissal rule.”
(Rodriguez, supra, at p. 335.) The court concluded that the dismissal so qualified
“because it arose out of [the defendant’s] motion to dismiss pursuant to section 995—one
of the specified bases for a qualifying termination under section 1387.” (Rodriguez,
supra, at p. 329.) As a result, the dismissal was correct, not “due to any neglect,
excusable or otherwise.” (Id. at p. 335.)
9
In dicta, the Rodriguez court explained that even if the dismissal was erroneous,
the appropriate remedy was appealing it, not challenging it long after the deadline to
appeal has expired. (Rodriguez, supra, 217 Cal.App.4th at p. 335.) In that court’s view,
“[i]t would be inconsistent with the general treatment of appealable orders as final once
the time for appeal has expired if we were to allow the prosecutor to eschew that
appellate remedy and first assert that an appealable order was legally erroneous months
(or years) after the time for appeal has expired.” (Id. at p. 336.) Without any further
analysis, the Rodriguez court then held that “a court’s ‘excusable neglect’ under section
1387.1 must be limited to errors which are essentially clerical in nature, and would not
include the sort of legal errors which are properly reviewable on direct appeal.” (Ibid.)
We reject this dicta from Rodriguez, which the trial court erroneously relied on.
Section 1387.1’s intent is “to ensure that suspects do not go free due to clerical or minor
procedural error.” (Leg. History, p. 233.) The Legislature expressly found that the
errors in Mackey—the prosecutor and the magistrate not understanding section 859b’s
60-day deadline and the prosecutor not disclosing a witness before the preliminary
examination—should not result in a violent offender escaping prosecution. These errors
were not “essentially clerical,” but were “minor procedural errors” that the Legislature
found should be excused. Rodriguez’s conclusion that section 1387.1’s “excusable
neglect” standard covers only a court’s “essentially clerical” errors, but not its “minor
procedural errors,” conflicts with the statute’s stated purpose.
10
The Rodriguez court’s understandable concern (in dicta) that the prosecutor’s
failure to appeal the dismissal was “inconsistent with the general treatment of appealable
orders as final once the time for appeal has expired” is not controlling here. (Rodriguez,
supra, 217 Cal.App.4th at p. 336.) The District Attorney does not dispute that the first
dismissal was correct, and for good reason. California law has long made clear that
“section 859b’s 60-day rule is absolute and requires dismissal of a felony complaint
against a nonconsenting defendant whose preliminary hearing is set or continued more
than 60 days from arraignment.” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719,
730, italics added; Mackey, supra, 176 Cal.App.3d at p. 183 [“In clear, unambiguous
language the final paragraph of section 859b . . . states that the complaint shall be
dismissed” if the 60-day deadline is not met].) The trial court has no discretion to do
anything but dismiss the case if the 60-day deadline has not been met, regardless of why
it was not met. (People v. Standish (2006) 38 Cal.4th 858, 886; Del Castillo v. Superior
Court (2019) 38 Cal.App.5th 1117, 1120 [noting there is no good-cause exception to the
60-day rule]; Lacayo v. Superior Court (2020) 56 Cal.App.5th 396 [the Attorney General
conceded that the 60-day deadline could not be extended because of the COVID-19
pandemic and statewide emergency orders.) Any appeal of the trial court’s dismissal for
missing the 60-day deadline would have been fruitless, if not frivolous. The District
Attorney should not be faulted for not taking what he acknowledges would have been a
clearly meritless appeal. The fact that the District Attorney did not appeal the decision
does not now preclude him from arguing that the first dismissal was caused by excusable
11
neglect because, as defendant puts it, his “failure to appeal the first dismissal is not
inconsistent with [his] current position that excusable neglect was the sole cause of that
dismissal.”
More to the point, the fact that the first dismissal was compelled by section 859b
does not mean that it did not result from excusable neglect. As the trial court recognized,
the preliminary hearing was not timely held by the April 3, 2020 deadline because
“everybody was trying to figure out what the hell to do,” as the COVID-19 pandemic
shut down the superior courts, “and I think we got it wrong.” The court also
acknowledged that the preliminary hearing was not timely held because the court sua
sponte continued defendant’s case on the last day for a preliminary hearing “without
explicitly securing [a] time waiver[],” which may have happened because “people . . . just
forgot about those folks.”
This case thus involves an error like in Mackey. Like the magistrate in Mackey,
the trial court here scheduled the preliminary hearing past the 60-day deadline. But the
Mackey magistrate did so simply because he and the prosecutor incorrectly thought the
deadline did not apply. Here, however, the trial court was just weeks into the COVID-19
pandemic, when courts throughout the state were grappling with how to proceed within
the constraints of the pandemic and the associated statewide emergency orders. (See
Lacayo v. Superior Court, supra, 56 Cal.App.5th at p. 399; People v. Superior Court
(Tapia), supra, 93 Cal.App.5th at p. 398.) If the Legislature thought the prosecutor and
magistrate’s misunderstanding that the 60-day deadline did not apply was excusable
12
neglect, then surely the Legislature would find the trial court’s error in letting defendant’s
case slip “through the cracks” in the midst of the uncertainty caused by the onset of the
COVID-19 pandemic was excusable.
We therefore conclude that the trial court’s failure to timely hold a preliminary
hearing by section 859b’s 60-day deadline was due solely to the excusable neglect of the
trial court trying to navigate the chaos during the early days of the COVID-19 pandemic.
As a result, the first dismissal was due solely to the trial court’s excusable neglect, so the
third filing of violent felony charges against defendant was authorized by section 1387.1.
We therefore reverse the trial court’s order dismissing the charges.
IV.
DISPOSITION
The trial court’s order dismissing the charges against defendant in Case No.
BAF2200472 is reversed. We remand for further proceedings consistent with this
opinion.
CERTIFIED FOR PUBLICATION
CODRINGTON J. We concur:
McKINSTER Acting P. J.
MILLER J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court's failure to timely hold a preliminary hearing due to the chaos of the COVID-19 pandemic constitutes "excusable neglect" under Penal Code section 1387.1, thereby authorizing a third filing of violent felony charges. The court rejected the view that excusable neglect is limited to clerical errors, finding that minor procedural errors resulting from the pandemic fall within the statute's remedial scope.
Issues
Whether a trial court's failure to meet the section 859b preliminary hearing deadline due to COVID-19 pandemic disruptions constitutes "excusable neglect" under section 1387.1.
Whether the prosecution is precluded from asserting "excusable neglect" for a dismissal it did not appeal.
Whether "excusable neglect" under section 1387.1 is limited to clerical errors or includes minor procedural errors.
Disposition. reversed
Quotations verified verbatim against the opinion
“Because the first dismissal was due to the trial court’s excusable neglect, we reverse.”
“We therefore conclude that the trial court’s failure to timely hold a preliminary hearing by section 859b’s 60-day deadline was due solely to the excusable neglect of the trial court trying to navigate the chaos during the early days of the COVID-19 pandemic.”
“Rodriguez’s conclusion that section 1387.1’s “excusable neglect” standard covers only a court’s “essentially clerical” errors, but not its “minor procedural errors,” conflicts with the statute’s stated purpose.”