Burris v. Superior Court

Relying on section 1387, Burris moved to dismiss the felony complaint. The trial court denied the motion. The Court of Appeal denied Burris’s ensuing petition for a writ of mandate, holding that section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and was previously dismissed. In so holding, the Court of Appeal expressly disagreed with People v. Nelson (1964) 228 Cal.App.2d 135 [ 39 Cal.Rptr. 238 ]. We granted Burris’s petition for review.

Discussion

We begin with the text of the statute. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 , 977 [ 90 Cal.Rptr.2d 260 , 987 P.2d 727 ]; People v. Cruz (1996) 13 Cal.4th 764 , 775 [ 55 Cal.Rptr.2d 117 , 919 P.2d 731 ].) Section 1387, subdivision (a) provides: “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 if 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 any of the following: [circumstances not relevant here] . . . .” Both parties agree that for purposes of this statute, there has been one prior termination of charges for the same offense.^[3]

In contrast, the People contend that whether a future prosecution is barred under section 1387 hinges on the character of the later charge: one prior qualifying dismissal^[5] will bar a later misdemeanor charge, but will not bar a later felony charge. They argue that under an established canon of construction, the last antecedent rule (White v. County of Sacramento (1982) 31 Cal.3d 676 , 680 [ 183 Cal.Rptr. 520 , 646 P.2d 191 ]), the pronoun “it” in the phrase “is a bar to any other prosecution for the same offense if it is a felony” (italics added) refers to the future “other prosecution for the same offense.” Thus, according to the People, under section 1387 an order terminating an action bars a future prosecution for a misdemeanor, but bars a future prosecution for a felony only when there has been an additional prior dismissal.

We do not find these grammatical arguments dispositive here. The rules of grammar and canons of construction are but tools, “guides to help courts determine likely legislative intent. [Citations.] And that intent is critical. Those who write statutes seek to solve human problems. Fidelity to their aims requires us to approach an interpretive problem not as if it were a purely logical game, like a Rubik’s Cube, but as an effort to divine the human intent that underlies the statute.” (J.E.M. AG Supply v. Pioneer Hi-Bred (2001) 534 U.S. 124 , 156 [ 151 L.Ed.2d 508 , 122 S.Ct. 593 ] (dis. opn. of

On the other hand, there is a heightened societal interest in the prosecution of more serious crimes. Compared to a misdemeanor violation, “[i]f the offense is potentially a felony, society has a much greater interest in its punishment . . . .” (Necochea v. Superior Court, supra, 23 Cal.App.3d at p. 1016, fn. 4.) As we once colorfully explained, the Legislature’s differential treatment of misdemeanors and felonies in section 1387 is justified by the fact that felonies include crimes “so heinous in character that to [their] frequent and unchecked commission might be attributed the origin of a possible statewide disaster, or eventually, the downfall of organized society,” while many misdemeanors “may be insignificant as far as [their] effect upon the body politic is concerned.” (People v. Dawson (1930) 210 Cal. 366 , 370 [ 292 P. 267 ]; see also Alex T. v. Superior Court, supra, 72 Cal.App.3d at p. 31.) Indeed, until 1975, the interest in prosecuting felonies was considered so much greater that, while a one-dismissal rule applied to misdemeanors, felony charges could be refiled ad infinitum. (See Stats. 1975, ch. 1069, § 1, p. 2615 [amending § 1387 to add felony dismissal limit]; People v. Williams (1969) 71 Cal.2d 614 , 623 [ 79 Cal.Rptr. 65 , 456 P.2d 633 ].)

Section 1387 reflects a legislative judgment that because of the heightened threat to society posed by serious crimes, more filings should be permitted for serious crimes than for minor ones.^[6] In turn, the best measure of the seriousness of a crime—and the corresponding societal interest in its prosecution and punishment—is not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence. It follows that, for purposes of categorizing a crime as subject to a one-dismissal or two-dismissal rule, what matters is the current charge, not the one previously dismissed. The interpretation of section 1387 that most closely comports with these underlying legislative goals is this: Misdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge. Felony prosecutions, in contrast, are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.

The consequences of this interpretation are consistent with the Legislature’s purposes. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1387 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ] [“Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation”].) When new evidence comes to light that suggests a crime originally charged as a misdemeanor is in fact graver and should be charged as a felony, section 1387 allows the People to do so. “Often the district attorney doesn’t have enough information to make a firm election before filing the complaint or in the prosecution’s early stage. New knowledge may reveal that mitigation of the charge [to a misdemeanor] was a regrettable choice.” (Malone v. Superior Court (1975) 47 Cal.App.3d 313 , 317 [ 120 Cal.Rptr. 851 ].) To hold, as Burris argues, that a single misdemeanor filing and dismissal could preclude subsequent felony prosecution, even when new evidence demonstrates that the crime committed was a felony, would be inconsistent with the Legislature’s intent to permit more dismissals for serious crimes.

On the other hand, as the People concede, our interpretation of section 1387 also dictates that a qualifying dismissal of a felony charge will bar the refiling of a misdemeanor charge. But nothing about this more lenient treatment of true misdemeanants is fundamentally inconsistent with the Legislature’s goals in enacting section 1387.

To illustrate these points, consider the cases of two individuals charged with misdemeanors. Each has previously been charged, one for a misdemeanor and one for a felony, but had those initial charges dismissed. The societal interest in prosecution, given the current understanding of their respective crimes, is the same. The countervailing interests in avoiding harassment, delay, and forum shopping recognized by the Legislature in section 1387 also are the same—each defendant potentially is facing a second prosecution. Thus, the treatment of these two defendants should be the same. The interpretation we adopt treats these cases identically: in each, the further prosecution is barred. The interpretation pressed by Burris would allow reprosecution of one defendant, but not the other, despite the fact the legislative policy considerations in each case are indistinguishable.

Our interpretation of section 1387 is consistent with the results we have reached when applying earlier versions of the statute. In People v. Smith (1904) 143 Cal. 597 [ 77 P. 449 ], we applied the original version of section 1387, which imposed a one-dismissal rule for misdemeanors but allowed for unlimited refiling of felonies.^[8] The defendant, Smith, was charged with petit larceny, a misdemeanor. New evidence revealed that Smith had previously been convicted of burglary, a prior conviction that elevated the petit larceny to a felony. The prosecution obtained an order dismissing the misdemeanor complaint and refiled felony charges. (People v. Smith, at pp. 598-599.)

On appeal following Smith’s conviction, we rejected the notion that former section 1387 would bar refiling in these circumstances. We held that the judgment of dismissal was not a bar to subsequent felony prosecution because the offense, as presently charged, was a felony. (People v. Smith, supra, 143 Cal. at pp. 598-599.) We concluded: “It was never intended that [a misdemeanor] dismissal should be a bar to a prosecution for a felony.” (Id. at p. 599.) That conclusion remains sound today.

Seventy years later, in Learning v. Municipal Court (1974) 12 Cal.3d 813 [ 117 Cal.Rptr. 657 , 528 P.2d 745 ], the defendant raised a speedy trial claim when, after repeated continuances of his misdemeanor trial, on the date of trial the misdemeanor complaint against him was abandoned and he was arraigned on felony charges. After summarily rejecting the defendant’s speedy trial claim on the ground he had requested the continuances, we noted as well that the defendant could not complain about the new felony charges because “ [dismissal of a misdemeanor complaint does not bar a felony prosecution.” (Id. at p. 818, fn. 3, citing former § 1387.)

Burris and amicus curiae the Los Angeles County Public Defender rely on one Court of Appeal decision, People v. Nelson, supra, 228 Cal.App.2d 135 (Nelson), that reached the opposite conclusion in the context of a felony-to-misdemeanor prosecution. The defendant was charged with felony manslaughter and felony drunk driving. (Pen. Code, former § 192, subd. 3(a); Veh. Code, former § 23101.) These charges were dismissed twice, and charges for misdemeanor manslaughter and misdemeanor drunk driving were filed. (Pen.. Code, former § 192, subd. 3(b); Veh. Code, former § 23102.) The defendant challenged the new charges under Penal Code former section 1387.^[9] The Nelson court rejected the challenge, concluding: “The words ‘if it is a misdemeanor’ refer to the complaint which was dismissed, not to the new complaint which was filed.” (Nelson, at p. 137.) Thus, Nelson allowed felony charges to be followed by misdemeanor charges.

Nelson offered no explicit explanation for its interpretation. As best one can discern, the court viewed the syntax of section 1387 as dictating its result. But as we have discussed, the syntax of the statute offers no clear answer, while the legislative policies underlying the statute point to a conclusion opposite the one reached by Nelson. To the extent People v. Nelson, supra, 228 Cal.App.3d 135 , holds that the determination of which dismissal rule to apply hinges on the nature of the dismissed charge, rather than the new charge, we disapprove it.

Burris argues that even if we interpret section 1387 to allow prosecution of a felony after dismissal of a misdemeanor, under the rule of lenity he should be shielded from the application of that ruling and have the Nelson interpretation of the statute applied to his case. We disagree.

The rule of lenity, under which “ambiguous penal statutes are construed in favor of defendants [,] is inapplicable unless two reasonable