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Name: Miller v. Superior Court
Case #: G029632
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/28/2002
Subsequent History: Review Denied November 26, 2002

Under Penal Code section 1387.1, the prosecution was permitted to continue prosecuting defendant, despite two earlier dismissals, due to the prosecution’s excusable neglect and lack of bad faith. The prosecution made reasonable efforts to secure an absent witness’ attendance by checking jail records and police records, and checked her last known address when she failed to respond to a subpoena. There was no showing of bad faith. If the prosecution relies on Penal Code section 1387.1, it bears the burden of producing evidence that the defendant is charged with a violent felony and one of the prior two dismissals was due solely to excusable neglect. A defendant bears the burden of rebutting a presumption of good faith. Proof by a preponderance of evidence is sufficient to establish the section 1387.1 exception.