Traylor

Penal Code section 1387, subdivision (a) (section 1387(a)) sets forth circumstances under which the dismissal of a criminal action will bar further prosecution. In most instances, under this statute, one such dismissal precludes further prosecution “for the same offense” (1) “if it is a felony or ... a misdemeanor charged together with a felony,” and the action previously has been dismissed, or (2) “if it is a misdemeanor not charged together with a felony.”

In this case, a nine-year-old boy was killed when defendant’s sports utility vehicle collided with the victim’s motorcycle. The issue is whether, under section 1387(a), the prior dismissal of a felony complaint against defendant for vehicular manslaughter with gross negligence barred the current prosecution for the lesser included misdemeanor offense of vehicular manslaughter with ordinary negligence.

On the facts presented here, we conclude the answer is no. For purposes of section 1387(a), the misdemeanor prosecution in this case was not “for the same offense” as that charged in the prior felony complaint. We base this conclusion on several grounds.

First, the felony and misdemeanor charges did not include the…