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Name: Berardi v. Superior Court
Case #: D051271
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/25/2008

“Two dismissal rule” did not bar prosecution where there were not two previous dismissals of the action pursuant to section 1387. Berardi filed a petition for writ of mandate and/or prohibition challenging the trial court’s order overruling his demurrer to a complaint charging him with murder and conspiracy to commit murder. He contended that the complaint was barred by the “two dismissal” rule pursuant to section 1387 because there had been two prior dismissals of actions against him involving the same charges (one an information, and the other an indictment). The appellate court denied the petition, finding that the prosecutor had properly sought the previous dismissal of the information as a duplicative accusatory pleading unnecessary to their prosecution of Berardi due to the subsequent indictment. The trial court had inherent authority to dismiss a duplicative accusatory pleading. Also, the information and the indictment were pending concurrently and were not “successive” accusatory pleadings. The prosecution was not barred because there were not two previous terminations of actions against Berardi. The court also rejected Berardi’s argument that he was denied equal protection of law because the class of defendants with two prior dismissals of informations are treated more favorably under section 1387 than the class of defendants with one prior dismissal of an information and one dismissal of an indictment.