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Name: Barron v. Superior Court (2023) 90 Cal.App.5th 628
Case #: F085382
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 04/13/2023
Subsequent History: Modified 4/26/2023

Where the first case against defendant was dismissed under Penal Code section 1385, the “good cause” exception to the two-dismissal rule did not apply and the third prosecution of defendant was barred. After petitioner was charged with a felony, the case was dismissed in the furtherance of justice under section 1385. A second complaint was filed with the same charges, but later dismissed under section 859(b) due to delays with the preliminary hearing. After a third complaint was filed, petitioner moved to dismiss on the ground that further prosecution was barred by the two-dismissal rule. The trial court denied the motion and petitioner sought writ relief. Held: Petition granted. Section 1387 permits the prosecution to refile felony charges following dismissal only once, which is known as the two-dismissal rule. Subdivision (c) contains an exception: “[I]f the previous termination was pursuant to Section 859b, 861, 871, or 995, the subsequent order terminating an action is not a bar to prosecution” if good cause is shown why the preliminary hearing was not held within 60 days from arraignment or plea. “Previous termination” refers to dismissal of the first prosecution, and “subsequent order terminating an action” refers to the dismissal of the second prosecution. The court agreed with petitioner that the exception only applies where the first prosecution was terminated for one of the four grounds enumerated in section 1387, subdivision (c), which did not occur here. The trial court was ordered to grant the motion to dismiss and further prosecution of the charge was barred.

The full opinion is available on the court’s website here: