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Name: People v. Traylor
Case #: C053172
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/23/2007
Subsequent History: 1/30/08: Rev. gr. (S157820)

Misdemeanor prosecutions are subject to a one-dismissal rule and dismissal of an offense charged as either a felony or as a misdemeanor bars refiling of the offense as a misdemeanor. Appellant was charged by complaint with felony manslaughter. The nine-year-old victim had been operating a motorcycle on a narrow, winding and undulating country road when he was struck by a vehicle driven by appellant and died soon after. At the preliminary hearing, it was established that neither speed nor alcohol was a factor in the collision but that appellant may have been driving on the wrong side of the road as he approached the crown of a hill and was unable to see on-coming traffic. A longtime resident of the area testified that most people favored the left side of the road because of an optical illusion. The court concluded that there was no evidence of gross negligence, only negligence, and did not hold appellant to answer on the felony charge. The court’s finding was later supported by an independent California Highway Patrol report finding no gross negligence. The superior court’s appellate department affirmed the trial court order dismissing a subsequent complaint as barred by Penal Code section 1387, which provides that an order terminating an action is a bar to any other prosecution for the same offense if it is a misdemeanor. The prosecution appealed and on review, the court determined that the failure to hold appellant to answer resulted in dismissal of the action and under Penal Code section 1387, it could not be refiled as a misdemeanor. (Burris v. Superior Court (2005) 34 Cal.4th 1012.) In view of the preliminary hearing evidence and the later CHP report, the prosecution, in good faith, could not refile it as a felony.]