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Name: People v. Turner (2023) 97 Cal.App.5th 568
Case #: E079183
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/28/2023

Where the first dismissal of a violent felony charge against defendant was based on the trial court’s excusable neglect, the trial court erred in finding that the prosecution was barred from filing the charges a third time. In 2019, defendant was charged with driving under the influence (Veh. Code, § 23153(f)) with an allegation that he caused the victim great bodily injury (Pen. Code, § 12022.7), which is a violent felony. The preliminary hearing was not timely held due to the deadline falling within the early days of the COVID-19 pandemic, and the court dismissed the charges. The District Attorney did not appeal the dismissal, but refiled the same charges against defendant. A few months later, the case was again dismissed, and the prosecution refiled the same charges. Defendant moved to dismiss under Penal Code section 1387, arguing the charges could not be filed a third time because the first two dismissals were not due to excusable neglect. The trial court granted defendant’s motion, finding that because the first dismissal of the charges was legally mandated (as the remedy for the violation of defendant’s right to a timely preliminary hearing), it did not matter whether the 60-day deadline was missed due to excusable neglect. The People appealed. Held: Reversed. If a charge for a violent felony has been dismissed twice, section 1387.1 authorizes prosecutors to refile the charge for a third time so long as one of the dismissals was “due solely to excusable neglect . . . on the part of the court, prosecution, law enforcement agency, or witnesses,” and the prosecution did not act in bad faith. Here, the trial court’s failure to timely hold a preliminary hearing by section 859b’s 60-day deadline was due solely to the excusable neglect of the trial court trying to navigate the chaos during the early days of the COVID-19 pandemic. As a result, the first dismissal was due solely to the trial court’s excusable neglect, so the third filing of violent felony charges against defendant was authorized by section 1387.1.