A complaint charges the “same offense” within the meaning of Penal Code 1387 if, as pleaded, either the new felony charge or a previously dismissed felony charge is necessarily included in the other charge. The defendants were charged with two counts of attempted murder (Pen. Code, §§ 664/187) and assault with a firearm (Pen. Code, § 245, subd. (b)). In July 2012, the prosecution successfully moved to dismiss that information and refiled the case the same day. When the case came to trial, the prosecution was unprepared to proceed, and the case was dismissed. The prosecution filed a third case, this time alleging two counts of conspiracy to commit murder. The defendants’ petition for dismissal under section 1387 was granted. The Court of Appeal reversed. The California Supreme Court granted review. Held: Reversed. Section 1387, subdivision (a) generally permits a felony charge to be dismissed and refiled once, but not twice for the “same offense” (under certain circumstances Pen. Code, § 1387.1 permits violent felony charges to be refiled twice). What the Legislature meant by “same offense” is not entirely clear. Section 1387 implements a number of public policies: it curtails prosecutorial harassment by limiting the number of times a criminal case can be filed, it discourages prosecutorial forum shopping, and it prevents the evasion of speedy trial rights. Under section 1387, an “offense” is not defined by conduct, but by its definition in the Penal Code. While it is true that attempted murder and conspiracy to commit murder do not contain the same elements, section 1387 is not limited to felonies that contain identical elements. If, as pleaded, either charge is necessarily included in the other charge, the new charge is the “same offense.” Applying the pleading test here, the conspiracy to commit murder charges are the same offenses as the previously dismissed attempted murder charges.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S219889.PDF