Bodner

Introduction

Defendant and petitioner Michael Bodner seeks a writ compelling the trial court to dismiss attempted murder charges against him, pursuant to Penal Code section 1387, which bars further prosecution of an action which has been twice terminated. We grant the writ. A prior action was terminated by the granting of defendant’s motion under section 995; at the preliminary hearing in the second action the magistrate declined to hold defendant to answer for attempted murder, but held him to answer for assault with a deadly weapon. Under Ramos v. Superior Court (1982) 32 Cal.3d 26, 35-36 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ], the second magistrate’s order is a second termination of attempted murder charges, which bars the People’s further prosecution under section 739 for attempted murder.

Factual and Procedural Background

The prosecution arises from an incident in which defendant shot at one named victim, who testified at the preliminary hearing, and at a John Doe victim.

There is no dispute that there has been a previous prosecution, in 1994 in superior court case (People v. Bodner (Super. Ct. L.A. County No. BA094674)), which was finally terminated. In the prior…