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Burris v. Superior Court of Orange County1/10/2005
Does the dismissal of a misdemeanor complaint bar all further prosecution for the same offense, even a felony charge based on the same conduct? It does not. Instead, two prior dismissals are required before felony prosecution will be barred. Because charges against defendant Michael Lehman Burris were dismissed only once, we affirm the Court of Appeal's denial of writ relief.
Procedural and Factual Background
Burris was charged with misdemeanor counts of driving under the influence of alcohol (DUI) and driving with a blood-alcohol level of at least 0.08 percent. (Veh. Code, § 23152, subds. (a), (b).) The complaint alleged two prior DUI convictions. Before trial, the prosecutor discovered a third DUI prior. Under Vehicle Code section 23550, subdivision (a), driving under the influence within seven years of three or more DUI convictions is a "wobbler" and may be prosecuted as a misdemeanor or a felony at the prosecutor's discretion. (See Pen. Code, § 17, subd. (b)(4).) The prosecutor elected to refile Burris's case as a felony and moved to dismiss the misdemeanor complaint. The trial court granted the motion, and the prosecution filed a felony complaint.
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. We granted Burris's petition for review.
Discussion
I. Interpretation of Section 1387
We begin with the text of the statute. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977; People v. Cruz (1996) 13 Cal.4th 764, 775.) 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.
Burris argues that whether a future prosecution is barred hinges on the character of the earlier dismissal. Under this interpretation of section 1387, the pronoun "it" in the statutory phrase "is a bar to any other prosecution for the same offense if it is a felony" (italics added) refers to the terminated action. Thus, if the terminated action is, as here, a misdemeanor, section 1387 prohibits a second prosecution for either a misdemeanor or a felony. If the terminated action is a felony, a new prosecution will be barred only when there has been an additional prior dismissal. This interpretation is consistent with usage in the second half of the statute that appears to categorize cases according to the character of the dismissed charge. (See § 1387, subd. (a) [creating exception for "those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor" certain findings are made].)
In contrast, the People contend that whether a f
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