Carreon

[Opinion certified for partial publication. [*] ]

OPINION

GILBERT, J.

An enhancement is dismissed twice, the first time by a superior court judge pursuant to a Penal Code section 995 motion. [1] The enhancement is refiled. It is dismissed a second time by a magistrate after a preliminary hearing.

Here we hold that section 1387 bars prosecution of the enhancement.

The prosecution of defendant Salvador Carreon first proceeded by grand jury indictment. Count III of the indictment charged Carreon with, among other matters, assault with a deadly weapon on J.H. by means likely to produce great bodily injury. "J.H." apparently refers to Joey Hernandez.

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The superior court granted Carreon's section 995 motion to dismiss count III, which included a gang enhancement. [[/]] [*]

Despite the dismissal of some counts by the trial court, the matter proceeded to jury selection. Before a jury was sworn, however, the prosecution moved to dismiss the case in the interest of justice. (§ 1385.) The motion was granted.

The prosecution refiled the action, this time proceeding by complaint. Count IV of the complaint alleged Carreon assaulted Hernandez. The count included a gang…

An enhancement is dismissed twice, the first time by a superior court judge pursuant to a Penal Code section 995 motion. 1 The enhancement is refiled. It is dismissed a second time by a magistrate after a preliminary hearing.

Here we hold that section 1387 bars prosecution of the enhancement.

*806 The Two-dismissal Rule

The prosecution of defendant Salvador Carreon first proceeded by grand jury indictment. Count in of the indictment charged Carreon with, among other matters, assault with a deadly weapon on J.H. by means likely to produce great bodily injury. “J.H.” apparently refers to Joey Hernandez.

[[/]] *

The superior court granted Carreon’s section 995 motion to dismiss count HI, which included a gang enhancement. [[/]]*

Despite the dismissal of some counts by the trial court, the matter proceeded to jury selection. Before a jury was sworn, however, the prosecution moved to dismiss the case in the interest of justice. (§ 1385.) The motion was granted.

The prosecution refiled the action, this time proceeding by complaint. Count IV of the complaint alleged Carreon assaulted Hernandez. The count included a gang enhancement.

After the preliminary hearing, the…

I respectfully dissent. In my view, the majority opinion radically and, in derogation of the Legislature, changes the law with respect to enhancements. Without admitting so, the majority have embroidered the statutory scheme to provide a procedural protection that the Legislature did not intend. The two-dismissal rule which expressly applies to “actions” or “offenses” now applies to 1

“This court . . . [should be] loathe to construe a statute which has the effect of ‘adding’ . . . language. [Citation.]” (People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030,1034 [ 56 Cal.Rptr.2d 21 ]; see also Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1697-1700 [ 8 Cal.Rptr.2d 614 ].) Before today, Penal Code section 1387, subdivision (a), the two-dismissal rule, provided, in pertinent part: “An order terminating an action ... 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 . . . .” Under the majority analysis, the Legislature’s express reference to “action” and “offense” is denigrated and the word “enhancement” is now added to Penal Code…