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Name: People v. Mason
Case #: B180724
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 06/27/2006

Mason was charged with carjacking and several weapons charges. The case was dismissed first in February, 2004 when the prosecution was unable to proceed. Charges were refiled, and dismissed again when the victim became unavailable to testify due to a misunderstanding. Appellant moved to dismiss the charges pursuant to Penal Code section 1387.1. The appellate court held that the trial court correctly denied the motion to dismiss the carjacking charge, but should have dismissed the weapons possession charge. The “two dismissal rule” bars prosecution for a felony if charges have already been dismissed twice. Under section 1387.1, the prosecution is afforded an additional opportunity to prosecute if one of the prior dismissals was due to excusable neglect, but the exception only applies to violent felonies. Here, there was excusable neglect because the prosecutor had no reason to believe the victim would not appear and was not at fault for her inability to proceed. Because carjacking is a violent felony, that charge could still be pursued, though the weapons charge could not. Further, there was sufficient evidence of asportation to support the carjacking conviction where defendant’s accomplice attempted to drive the truck away with the parking brake on, and the truck lurched forward and stalled.