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A Second Dismissal of a Felony Case? Can We Celebrate?

The Reader’s Digest Version: Under most circumstances, the second dismissal of a felony case is cause for celebration.  However, there are a few exceptions under which such a felony can be filed yet again, as this article describes below.
Under California Penal Code § 1387, one dismissal of a misdemeanor not charged together with a felony is a bar to any other prosecution of that misdemeanor.  Similarly, two dismissals of a case charged as a felony is a bar to further prosecution of the action.
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However, as in most provisions in our law, there are certain exceptions, so before one celebrates a seeming “final dismissal,” it is smart to keep in mind the exceptions to the two-dismissal rule.  The exceptions are:
1.    Substantial new evidence is discovered by the prosecution which would not have been known even through the exercise of due diligence prior to the second dismissal of the case.  This may be a new unknown witness who comes forward or a confession of a co-defendant years later.  It also may be new documentary evidence that is discovered amidst the investigation of a further crime committed well after the second dismissal;

2.    That the dismissal was due to intimidation of a material witness, as shown by a preponderance of the evidence.  This would be more likely in a gang-related case, i.e. a matter involving the more common gang-related offenses including, but not limited to, sales of a controlled substance, carjacking, grand theft auto, residential burglary, grand theft, vandalism, graffiti, stalking or assault with a deadly weapon.

3.    That the complaining witness failed to appear and had been personally served with a subpoena in an action for domestic violence, either under Penal Code § 243(e) (a misdemeanor) or 273.5, spousal rape (Penal Code § 262), or intentional violation of a court order to prevent domestic violence (Penal Code § 273.6).  The refiling of the case must be within six months of the dismissal, which many attorneys are not aware of and shocked when the case is refiled after the complaining witness returns from outside the country or outside the state;

4.    That the case was dismissed because the preliminary examination was not held within 60 days of the date of the arraignment, if good cause is shown for the delay being over 60 days (judges would be expected to find good cause if this is requested); or

5.    The second dismissal was a refiling under Penal Code § 739 (after the preliminary hearing) and the first dismissal was based on a Penal Code § 995 motion that was granted due to defendant’s insanity, lack of counsel after defendant opted to represent himself or herself, ineffective assistance of counsel, a conflict of interest of defense counsel, violation of time deadlines based on the unavailability of defense counsel or defendant’s motion to withdraw a waiver of a preliminary examination.

The other exceptions to the general two-dismissal rule are rather intuitive or obvious.  They are that the case can be refiled when one of the earlier dismissals is reversed on appeal or one of the dismissals was set aside by a motion to reinstate the complaint under Penal Code § 871.5; see Ramos v. Superior Court (1982) 32 Cal.3d 26, 36, 184 Cal.Rptr. 622.  Penal Code § 871.5 provides that a prosecutor can ask a judge to reinstate a complaint and reinstate the custodial status of defendant within fifteen days after a complaint is dismissed.

Lastly, special rules apply to a defendant charged with a violent felony, as defined under Penal Code § 667.5.  The prosecutor is allowed to refile charges under Penal Code § 1387.1(a) when a previous dismissal was caused by “excusable neglect.”  See, e.g., People v. Massey (2000) 79 Cal.App.4th 204, 211, 93 Cal.Rptr.2d 890 (excusable neglect found when prosecutor made reasonable, but unsuccessful efforts to secure attendance of witnesses).

For more information about dismissal of certain cases, please click on the following articles:
  1. Robbery Charges Dismissed When Police and Prosecutor Fail to Preserve Video Evidence Near Crime Scene
  2. Domestic Violence Case Filed in California Dismissed Because Acts Took Place in Hawaii
  3. Will the Prosecutor Dismiss the Domestic Violence Case If the Victim Will Not Testify or Appear at Trial?
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