Dismissals

Number of dismissals

Felony

Whether to allow a third refile would be litigated under PC1387 and PC1387.1. Miller v. Superior Court (2002) discusses what's "excusable neglect" and that prosecutor has burden of proof that there was excusable neglect. by a preponderance of the evidence. People v. Rodriguez (2013) 217 Cal.App.4th 326, seems to "excusable neglect" is meant for clerical errors, not for legal errors, because the remedy for legal errors is an appeal.

"It is likely the failure of the People to afford sufficient time to account for complications resulting from COVID-19 exposure is excusable neglect." (Barron v. Superior Court (Apr. 13, 2023, F085382)

PC1387(c) allows for a third refile, if the first filing was dismissed under PC859b, 861, 871, or 995, and second dismissal was because of PX not within 60 days under PC859b, or a 995 for various reasons. In Barron v. Superior Court (Apr. 13, 2023, F085382), first dismissal was under PC1385, and second dismissal was under PC859b for 60-day violation, so a third filing didn't fall under PC1387(c).

Re-filing under same case number

Penal Code 1387.2: "Upon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387, the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading and a new time period pursuant to Section 859b or 1382 shall commence."