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Name: People v. Hernandez
Case #: E047219
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 01/26/2010

Where the initial misdemeanor complaint alleging driving under the influence is dismissed and a felony complaint/information alleging the same offense, but with prior convictions, is then filed, Penal Code section 1387 does not bar prosecution of the offense when the prior conviction required for felony driving under the influence is stricken, thereby returning the offense to a misdemeanor. A misdemeanor complaint charged appellant with driving under the influence; but when the People discovered appellant had prior driving under the influence convictions that elevated the offense to a felony, they dismissed the complaint (Pen. Code, sec. 1385) and filed a felony complaint alleging the priors. Appellant argued that one of the priors was invalid because when he pled guilty to it, the “window” for priors was seven years rather than the current ten years. The People agreed to strike the prior in question, making the offense again a misdemeanor. Appellant then argued that, pursuant to Penal Code section 1387, jurisdiction over the matter was lost. Section 1387 states that an order terminating an action is a bar to any other prosecution for the same offense if it is a misdemeanor not charged together with a felony. Reviewing the public policies promoted by section 1387 (i.e., to curtail prosecutorial harassment; to deter forum shopping by prosecutors; to deter prosecutorial endangerment of speedy trial rights), the court found that section 1387 does not apply to bar continuation of the instant case as a misdemeanor prosecution.