People v. Martinez CA5

DISCUSSION

I. Prosecution After Two Dismissals

A. Applicable Law Felony prosecutions are subject to a “two-dismissal rule” set forth in section 1387. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.) Two dismissals of a criminal action, including voluntary dismissals under section 1385, generally preclude “any other prosecution for the same offense if it is a felony.” (§ 1387, subd. (a).) “However, section 1387.1 gives the prosecution one more opportunity to pursue charges under these circumstances if the alleged offense is a violent felony and the prior dismissals were due to excusable neglect.” (People v. Lomax (2010) 49 Cal.4th 530, 557.) A third filing of charges for a violent felony “is permitted where (1) either of the prior dismissals was ‘due solely to excusable neglect,’ and (2) the conduct of the prosecution did not ‘amount[] to bad faith.’” (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 739, quoting § 1387.1, subd. (a).) The statute defines excusable neglect as including, but “not limited to, error on the part of the court, prosecution, law

2. enforcement agency, or witnesses.” (§ 1387.1, subd. (b).) A trial court’s finding of excusable neglect…