Filed 6/30/14 Certified for publication 7/9/14 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Appellant,

v.

GERARDO JUAREZ, 

 Defendant and Respondent.

 G049037 

 (Super. Ct. No. 12CF3528)

THE PEOPLE,

 Plaintiff and Appellant,

v.

EMMANUEL JUAREZ, 

 Defendant and Respondent.

 G049038

 (Super. Ct. No. 12CF3528)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Gregg 

Prickett, Judge. Reversed.

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy 

District Attorney, for Plaintiff and Appellant.

Frank Davis, Alternate Defender, and Antony C. Ufland, Deputy Alternate 

Defender, for Defendant and Respondent Gerardo Juarez.

John F. Schuck for Defendant and Respondent Emmanuel Juarez. 

 
2

Penal Code section 13871limits the number of times the People may file a 

complaint for the “same offense.” In the case of a felony, the People may file twice. 

Here, twice the People filed attempted murder charges, and both cases were dismissed. 

The People then filed a third complaint. Instead of filing charges of attempted murder, 

which would be barred under section 1387, the People alleged conspiracy to commit 

murder, which arose out of the same underlying incident. The trial court held this was 

the “same offense,” for purposes of section 1387, and dismissed the complaint. The 

People appealed.

We reverse. Our high court has narrowly defined “same offense” as an 

offense with identical elements. Defendants may attempt murder without conspiring to 

murder, and may conspire to murder without attempting to murder. Thus, they were not 

the same offense, and section 1387 did not bar the filing of the third complaint. 

FACTS

In June 2011, the People filed their initial complaint against defendants

Gerardo Juarez and Emmanuel Juarez, alleging, among other things, two counts of 

attempted murder against each defendant.

2

 In November 2011, the court held a 

preliminary hearing that disclosed the following evidence. 

This case arises from an incident in which defendant Emmanuel fought 

with victim John Doe. Prior to the fight, Emmanuel handed a gun to defendant Gerardo. 

During the fight, Gerardo handed the gun back to Emmanuel. Emmanuel then shot John 

 

1

All statutory references are to the Penal Code unless otherwise stated.

2

Because the defendants share the same last name, we refer to them by first 

name to avoid confusion.
3

Doe. John Doe’s companion, Jane Doe, attempted to flee, but defendants caught up with 

her and Gerardo shot her in the thigh. 

After defendants were held to answer, the People filed an information 

alleging two counts of attempted murder (§§ 664, subd. (a), 187, subd. (a).) against both 

defendants, and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) 

against Gerardo. Nearly eight months later, in June of 2012, the People filed an amended 

information that added counts for assault with a firearm (§ 245, subd. (b)). For reasons 

not disclosed in the record, in July 2012 the court granted the People’s motion to dismiss 

the case.3

That same day, the People refiled the same charges. In November 2012, 

the People were not ready to proceed to trial and requested a continuance. The court 

granted the continuance to December 10, 2012, but warned that December 10 would be 

day 10 of 10. On December 10, the People were again not ready to proceed, so the court 

dismissed the case in its entirety.

The People then filed a third case against defendants, this time alleging two 

counts of conspiracy to commit murder. The facts recited in the complaint indicate the 

charges were based on the same incident as the previous complaints.

Defendants moved to dismiss this complaint under section 1387. The 

magistrate denied the motion without comment.

Defendant then petitioned the superior court for a writ of mandate or 

prohibition, which the court treated as a petition for writ of habeas corpus. During oral 

argument, the court posed the following questions to the People: “Where is the limit in 

regard to your theory of refiling? [¶] If we take assaultive conduct like attempted 

murder, you could have two dismissals for an attempted murder, and then you could have 

 

3

During oral argument in the trial court, defense counsel claimed that the 

People dismissed the first time because they had not produced 800 pages of mandatory 

discovery at the time of trial.
4

two dismissals for an assault with a deadly weapon, and then you could have two 

dismissals for an attempted vol[untary manslaughter], and then you could have two 

dismissals for assault by force likely to produce great bodily injury, and then you could 

have two dismissals for a [section] 243[, subdivision (d)] battery causing great bodily 

injury. Where would it end?” The court later granted the petition without further 

comment and dismissed the case. The People timely appealed.

DISCUSSION

Penal Code section 1387, subdivision (a), states, “An order terminating an 

action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other 

prosecution for the same offense if it is a felony or if it is a misdemeanor charged 

together with a felony and the action has been previously terminated pursuant to this 

chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together 

with a felony.” As the reader may note, this statutory formulation leaves much to be 

desired. Our Supreme Court has observed that section 1387 “has been amended nine 

times since its adoption in 1872, and the resulting 108-word, 13-comma, no period 

subdivision is hardly pellucid . . . .” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 

1018 (Burris).) To oversimplify, what the statute means is that a felony complaint may 

be refiled once but a misdemeanor complaint may not. 

The weakness in this oversimplification was exposed by the situation 

encountered in Burris, supra, 34 Cal.4th at page 1012. There, the People filed a 

misdemeanor complaint for driving under the influence, but later decided there was 

sufficient evidence to support a felony, so the People dismissed the misdemeanor 

complaint and refiled a felony complaint. (Id. at pp. 1015-1016.) The defendant moved 

to dismiss under section 1387. (Burris, at p. 1016.) Is this considered a misdemeanor for 

purposes of section 1387, such that refiling is impermissible, or a felony? The Burris 
5

court held it was the second filing that determined which rule applied. (Burris, at p. 

1019.) Since the second filing was a felony complaint, the refiling was permissible. 

The logical consequence of that rule was tested in People v. Traylor (2009) 

46 Cal.4th 1205 (Traylor), where the opposite occurred. The People filed a felony 

complaint for vehicular manslaughter with gross negligence. (Id. at p. 1210.) After the 

preliminary hearing, the magistrate dismissed the charge on the ground there was 

insufficient evidence of gross negligence, but expressed the view that the evidence would 

support a misdemeanor charge of negligent vehicular manslaughter. (Id. at p. 1210.) The 

People then refiled the misdemeanor charge, and the defendant moved to dismiss. (Id. at 

p. 1211.) Under the rule announced in Burris, since the misdemeanor charge was the 

second filing, the rule preventing a refiling of a misdemeanor charge applied. 

To avoid that result, the Traylor court took a narrow view of the statutory 

phrase “same offense.” Two charged offenses are the “same offense” only if they include 

“identical elements.” (Traylor, supra, 46 Ca.4th at p. 1208.) The court made clear that 

the protection offered by section 1387 is “narrow,” and emphasized that in interpreting 

the term “same offense,” it is not the underlying criminal conduct that matters, but the 

elements of the offense charged. (Traylor, at p. 1213, fn. 6.) Since the subsequent 

misdemeanor charge did not require proof of gross negligence as the felony charge had, 

they were not the “same offense.” (Ibid.)

The Traylor court supported its holding by noting the result comported with 

the policy goals of section 1387. “A primary purpose of section 1387[, subdivision (a)] is 

to protect a defendant against harassment, and the denial of speedy-trial rights, that 

results from the repeated dismissal and refiling of identical charges. In particular, the 

statute guards against prosecutorial ‘forum shopping’ — the persistent refiling of charges 

the evidence does not support in hopes of finding a sympathetic magistrate who will hold 

the defendant to answer. On the other hand, the statute was not intended to penalize the 

People when, following a magistrate’s dismissal of a first felony complaint on the 
6

grounds the evidence supports only a lesser included misdemeanor, they elect to refile 

that lesser charge rather than exercise their undoubted statutory right to refile the felony. 

Under such circumstances, prosecutors do not abuse, but actually promote, the statutory 

purposes.” (Traylor, supra, 46 Cal.4th at p. 1209.)

Here we encounter the next antithesis in the dialectical process: attempted 

murder and conspiring to murder do not share identical elements, but permitting a refiling

here would violate the policies supporting section 1387. 

Conspiracy to commit murder requires an agreement to commit murder and 

an overt act by one or more of the parties in furtherance of the agreement. Our high court 

has specifically noted the distinction between conspiracy and attempt, stating, “‘“As an 

inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement 

to commit a crime,” and “thus reaches further back into preparatory conduct than 

attempt . . . .”’” (People v. Morante (1999) 20 Cal.4th 403, 417, italics added.) 

Attempted murder does not require any agreement. It “requires the specific intent to kill 

and the commission of a direct but ineffectual act toward accomplishing the intended 

killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Thus the two charges do not share 

identical elements.

4

 

The policy goals of section 1387, on the other hand, unlike the facts of 

Traylor, militate in favor of application of section 1387. “Section 1387 implements a 

series of related public policies. It curtails prosecutorial harassment by placing limits on 

 

4

And although a conspiracy charge need not be pleaded, it cannot be said 

that the attempted murder charge impliedly set forth a conspiracy claim of conspiring to 

attempt murder. “This is because the targeted crime of the conspiracy, attempted murder, 

requires a specific intent to actually commit the murder, while the agreement underlying 

the conspiracy pleaded to contemplated no more than an ineffectual act. No one can 

simultaneously intend to do and not do the same act, here the actual commission of a 

murder. This inconsistency in required mental states makes the purported conspiracy to 

commit attempted murder a legal falsehood.” (People v. Iniguez (2002) 96 Cal.App.4th 

75, 77.) 
7

the number of times charges may be refiled. [Citations.] The statute also reduces the 

possibility that prosecutors might use the power to dismiss and refile to forum shop. 

[Citations.] Finally, the statute prevents the evasion of speedy trial rights through the 

repeated dismissal and refiling of the same charges.” (Burris, supra, 34 Cal.4th at p. 

1018.) The refilings here were simply the result of the People failing to timely prepare to 

move forward. Thus they directly implicate defendant’s right to a speedy trial. And 

while there is no evidence of intentional harassment here, the trial court’s forceful 

questioning of the prosecutor raises legitimate concerns about the possibility of repeated 

filings if we only look at the elements of the crime. 

Ultimately, however, we are bound by our Supreme Court. And while we 

believe the trial court has raised a legitimate concern, that concern is properly directed to 

our Supreme Court’s narrow interpretation of the term “same offense.” Also, though 

examining outcomes in light of policy goals may be a useful tool in interpreting 

otherwise ambiguous language (Burris, supra, 34 Cal.4th at pp. 1017-1018), there is 

nothing ambiguous about our high court’s interpretation of “same offense,” and we are 

not at liberty to deviate from that interpretation.

Defendants encourage us to apply a broader definition of “same offense”

that would treat attempted murder and conspiring to murder as the same offense. They 

principally rely on Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace) and 

Dunn v. Superior Court (1984) 159 Cal.App.3d 1110 (Dunn), cases which defendants 

interpret as adopting a so-called “essence” test. Under defendants’ proposed rationale, if 

the essence of the offense charged in the later filing is the same as the essence of the 

offense charged in the earlier filing, the latter filing is barred. 
8

Wallace framed the issue before it as follows: “[S]ection 853.6, 

subdivision (e)(3), provides that the failure of the prosecutor to file the notice to appear or 

a formal complaint in the municipal or justice court within 25 days of the arrest shall bar 

prosecution of the misdemeanor charged in the notice to appear. The principal issue in 

this writ proceeding is whether, for the purposes of the bar of that section, the crime of 

driving under the influence of an alcoholic beverage or any drug in violation of Vehicle 

Code section 23152, subdivision (a), is the same offense as driving with a blood-alcohol 

level of 0.10 percent or more in violation of Vehicle Code section 23152, subdivision (b). 

We hold that it is not.”

5

 (Wallace, supra, 140 Cal.App.3d at pp. 102-103.) The Wallace 

court noted that it was applying the same concept as the “same offense” language used in 

section 1387. (Wallace, at p. 105.) In reaching its conclusion, the Wallace court stated, 

“The general rule . . . is that when the essence of the offense charged in a second action is 

the same as the essence of the offense in a previously dismissed action the second action 

will be barred.” (Id. at p. 107, italics added.) Although Wallace did not define 

“essence,” it went on to note that one can drive under the influence without having a 

blood-alcohol level of 0.10 percent or more, and vice versa, and thus the two are not the 

same offense. (Id. at p. 108.)

In Dunn the People first charged the defendant with, among other things,

kidnapping (§ 207) and theft of an automobile (Veh. Code, § 10851). (Dunn, supra, 159

Cal.App.3d at p. 1113.) The People dismissed those charges and refiled charges of 

kidnapping for the purpose of robbery (§ 209) and robbery (§ 211). (Dunn, at p. 1114.) 

The magistrate did not hold those charges to answer. The district attorney then reinstated 

the charges in an information, and the defendant moved to dismiss under section 1387. 

(Dunn, at p. 1114.) The Dunn court held the third filing was barred. It mentioned the 

 

5

At the time Wallace was decided, Vehicle Code section 23152, subdivision 

(b), prohibited driving with a blood-alcohol level of 0.10 percent or greater. That section 

was since amended to reflect 0.08 percent or greater.
9

“essence” test articulated in Wallace and stated, “Kidnapping for the purpose of robbery 

cannot be committed without committing the lesser offense of kidnapping. Two 

dismissals of kidnapping should bar a prosecution for kidnapping for the purpose of 

committing robbery on the theory that to charge the greater would be also to charge the 

lesser an additional and prohibited third time.” (Dunn, at p. 1118.) With respect to the 

theft of an automobile and robbery charges, the court found they were in “essence” the 

same, stating, “Although every robbery does not include an auto theft, the concept of 

necessarily included offenses permits reference to the facts in the accusatory pleading. 

[Citation]. Here, the essence of the auto theft and robbery is the same since the robbery 

was specifically alleged to be the taking of the same automobile.” (Dunn, at pp. 1118-

1119.)

From these cases, Emmanuel contends “a court can properly consider the 

essence of the charges and the underlying criminal act, as well as whether the third 

refiling involves the same statutory offense,” which Emmanuel goes on to describe as 

“[a] consideration of all the circumstances . . . .”

The problem is, Traylor extensively discussed Dunn and interpreted it as 

applying the same elements test. (Traylor, supra, 46 Cal.4th at pp. 1217-1218.) It 

interpreted Dunn as consistent with the same elements test because in Dunn the People 

initially charged lesser crimes, and the subsequent greater crimes contained all of the 

same elements as the earlier-charged crimes. (Traylor, at pp. 1217-1218.) Since the 

same elements test was satisfied, applying the bar of section 1387 was proper. 

Further, the Traylor court expressly rejected the contention that “section 

1387[, subdivision (a)] should apply to all charges arising from the same conduct or 

behavior of the defendant.” (Traylor, supra, 46 Cal.4th at p. 1213, fn. 6.) Rather, the 

court held, “[A]n ‘offense’ is defined not by conduct, but by its particular definition as 

such in the Penal Code.” (Ibid.)
10

Defendants’ final argument is that a footnote in Traylor limits its scope. At 

the end of the opinion, the court added the following footnote: “As the reader will notice, 

we have carefully limited our holding to the situation in which an initial felony charge, 

having been dismissed by a magistrate on grounds that the evidence supports only a 

lesser included misdemeanor, is followed by the filing of a second complaint charging 

that misdemeanor offense. We do not here confront, and expressly do not decide, how 

section 1387[, subdivision (a)] should apply when dismissed felony charges are followed 

by one or more new complaints charging lesser included felonies, or when a dismissed 

misdemeanor charge is followed by a new complaint charging a lesser included 

misdemeanor.” (Traylor, supra, 46 Cal.4th at p. 1220, fn. 10.)

In our view, this footnote does not significantly limit the application of 

Traylor. While the court’s holding may have been narrow, the rationale it used to get 

there — that “same offense” means identical elements — is quite broad in its application. 

The examples the court gave of what it was not deciding (e.g. a felony followed by a 

refiled lesser included felony) are not at issue here. And in any event, given the court’s 

rationale, we fail to see how a felony followed by a lesser included felony would have 

any different result than a felony followed by a lesser included misdemeanor. 

We recognize the result we reach is counterintuitive, and generally not in 

keeping with the policies section 1387 is supposed to represent. However, our hands are 

tied. The muddled language of section 1387 has not stood the test of time, and our high 

court’s struggle to interpret that language has resulted in a law with narrow protection. If 

that protection is to be broadened, it is up to the Legislature.
11

DISPOSITION

The judgment dismissing the case is reversed. The trial court is directed to 

reinstate the case.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.
Filed 7/9/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Appellant,

v.

GERARDO JUAREZ, 

 Defendant and Respondent.

 G049037

 (Super. Ct. No. 12CF3528)

THE PEOPLE,

 Plaintiff and Appellant,

v.

EMMANUEL JUAREZ, 

 Defendant and Respondent.

 G049038

 (Super. Ct. No. 12CF3528)

 O R D E R 

Appellant has requested that our opinion, filed on June 30, 2014, be 

certified for publication. It appears that our opinion meets the standards set forth in 

California Rules of Court, rule 8.1105(c). The request is GRANTED. 
2

The opinion is ordered published in the Official Reports.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.