People v. Aguilar-Jimenez

Filed 9/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050153
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. C2200332)
v.
ESTEBAN MARTIN AGUILAR-
JIMENEZ,
Defendant and Respondent.
The “two-dismissal rule” of Penal Code section 1387 1 “bar[s] further prosecution
of a felony if the action against the defendant has been twice previously terminated
according to the provisions of that statute.” (Berardi v. Superior Court (2008) 160
Cal.App.4th 210, 218.) “Section 1387 implements a series of related public policies. It
curtails prosecutorial harassment by placing limits on 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. [Citations.]” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) The bar
to prosecution after two dismissals is, however, subject to exceptions. At issue here: “[i]f
a previous termination was made under Section . . . 871[] or 995, a subsequent order
1
Unspecified statutory references are to the Penal Code.
terminating an action is not a bar to prosecution if: [¶] . . . [¶] (3) The motion pursuant
to Section 995 was granted after dismissal by the magistrate of the action pursuant to
Section 871 and was recharged pursuant to Section 739.” (§ 1387, subd. (c).) In short,
not every dismissal is a termination for the purposes of section 1387.
The parties here dispute whether the superior court’s dismissal under section 995
of two counts of murder, recharged by information after the magistrate dismissed the
counts under section 871 in the same action, is a bar to further prosecution for the same
offenses. Because we consider section 739 to have permitted the recharging of the
murder counts and reject defendant Esteban Martin Aguilar-Jimenez’s narrow
interpretation of section 1387, subdivision (c)(3), we discern only a single prior
termination of the murder prosecutions. We therefore reverse the judgment of dismissal.
I. BACKGROUND
A. The First Case (C1922671)
In December 2019, the Santa Clara County District Attorney charged Aguilar-
Jimenez by felony complaint in case number C1922671 with two counts of murder
(§ 187, subd. (a); counts 1 and 2), driving under the influence of alcohol and causing
injury to another (Veh. Code, § 23153, subd. (a); count 3), and driving under the
influence of alcohol with a blood-alcohol level of 0.08% or more and causing injury
(Veh. Code, § 23153, subd. (b); count 4). It was alleged as to counts 3 and 4 that
Aguilar-Jimenez personally inflicted great bodily injury within the meaning of sections
12022.7, subdivision (a) and 1203, subdivision (e)(3) as to multiple victims.
The evidence presented at the preliminary hearing reflected that during the early
morning hours of December 1, 2019, Aguilar-Jimenez drove his car while his blood-
alcohol level exceeded 0.188 percent. Reaching speeds between 146 and 158 miles per
hour, Aguilar-Jimenez ultimately crashed into another vehicle, killing two of its
2
occupants and inflicting great bodily injury on a third. Aguilar-Jimenez’s three
passengers were also injured in the crash.
The magistrate (the Honorable Robert Hawk) held Aguilar-Jimenez to answer on
counts 3 and 4 but declined to hold Aguilar-Jimenez on the two murder counts due to a
lack of probable cause under section 871. In articulating the reasons for its limited
holding order, the magistrate stated that the evidence presented at the preliminary hearing
“compel[led] the factual conclusion that defendant Aguilar-Jimenez did not have the
requisite state of mind for implied malice” murder. 2
In particular, the magistrate found “significant” that Aguilar-Jimenez had “folks
that . . . considered themselves to be his friends in the car with him,” which “cut[] against
any inference that he actually consciously understood that his conduct posed a substantial
risk of killing others, killing his friends, killing himself, but that he just disregarded that.”
The magistrate further noted that there was “no evidence of any prior DUI’s” and “no
inference to be made supporting implied malice based on Watson advisement or prior
history with DUI’s.” Moreover, the magistrate found that Aguilar-Jimenez’s young age
“cut[] against [an] inference that he would have the experience and the judgment of an
older individual in his same position.” Although there was evidence that Aguilar-
Jimenez was speeding and making an unsafe lane change at the time of the crash, the
magistrate found that this evidence did not “support[] an inference of knowing disregard
for human life.” The magistrate also noted that there was no evidence or prior accidents
2
“Under certain circumstances, malice may be implied when a defendant kills
someone while willfully driving under the influence of alcohol, thus subjecting the
defendant to a charge of murder.” (People v. Munoz (2019) 31 Cal.App.5th 143, 152
(Munoz).) “This is ‘colloquially known as a Watson murder’ after [People v. Watson
(1981) 30 Cal.3d 290]. [Citation.] Among other things, conviction on this basis requires
a showing that the defendant had a subjective, actual awareness of the risk presented by
his or her conduct. [Citation.]” (Ibid.)
3
or near accidents that night, nor was there evidence that Aguilar-Jimenez tried to flee
from the police.
Approximately two weeks later, the district attorney filed an information
recharging the same two murder counts (counts 1 and 2) and the two related DUI counts
(counts 3 and 4).
In the superior court, Aguilar-Jimenez moved to dismiss the murder counts under
section 995, arguing that the magistrate’s determination of no probable cause reflected
factual findings that were supported by the evidence. In opposition, the prosecutor
argued that recharging the murder counts was proper under section 739, in that the
magistrate had not made factual findings but reached legal conclusions to which the
superior court owed no deference.
The superior court (the Honorable Philip Pennypacker) granted Aguilar-Jimenez’s
section 995 motion. Although the superior court considered the magistrate to have made
factual findings when declining to hold Aguilar-Jimenez to answer on the two murder
counts, the court also concluded that the evidence was insufficient to support a finding of
implied malice.
Several months later, in January 2022, the superior court granted the prosecutor’s
request to dismiss the remaining counts of the information.
B. The Second Case (C2200332)
The same day that case number C1922671 was dismissed, the district attorney
filed a felony complaint in case number C2200332. The complaint charged Aguilar-
Jimenez with two counts of murder (§ 187, subd. (a); counts 1 and 2), two counts of gross
vehicular manslaughter (§ 191.5, subd. (a); counts 3 and 4), driving under the influence
of alcohol and causing injury to another (Veh. Code, § 23153, subd. (a); count 5), and
driving under the influence of alcohol with a blood-alcohol level of 0.08% or more and
causing injury (Veh. Code, § 23153, subd. (b); count 6). As to counts 5 and 6, it was
4
alleged that Aguilar-Jimenez personally inflicted great bodily injury within the meaning
of sections 12022.7, subdivision (a) and 1203, subdivision (e)(3) as to multiple victims.
Aguilar-Jimenez moved to dismiss the two murder counts (counts 1 and 2) under
section 1387, arguing that there had already been two terminations of the murder counts.
The magistrate (the Honorable Nona Klippen) initially denied the motion, determining
that the two dismissals in case number C1922671 constituted “one action,” which had not
been terminated until the superior court granted the section 995 motion. After a new
preliminary hearing and before independently evaluating the sufficiency of the evidence,
however, the magistrate reconsidered her denial of the motion to dismiss in light of Jones
v. Superior Court (1971) 4 Cal.3d 660 (Jones). After further briefing by the parties, the
magistrate concluded that the exceptions to the two-dismissal rule articulated under
section 1387, subdivisions (a)(1) and (c)(3) were inapplicable. Noting that section 739
permitted the district attorney to recharge counts dismissed pursuant to section 871 only
“when the charges were dismissed by [a] magistrate as a matter of law,” she reasoned that
the previous magistrate had dismissed the murder counts “as a matter of fact.” Further
concluding that the district attorney had not shown excusable neglect under section
1387.1, the magistrate accordingly vacated her earlier denial of the motion to dismiss the
two murder counts and entered a new order granting the motion.
Aguilar-Jimenez thereafter entered an open plea of no contest to the remaining
charges, duly advised of the district attorney’s intention to appeal the magistrate’s
dismissal of the murder counts. This timely appeal followed.
II. DISCUSSION
The dismissal order under appeal turns on the proper interpretation of section 1387
and our determination as to whether the first magistrate made conclusive factual findings
foreclosing the district attorney’s reliance on section 1387, subdivision (c)(3)’s exception
to the two-dismissal rule. Our review of both issues is de novo. (California State
5
University, Fresno Assn., Inc. v. County of Fresno (2017) 9 Cal.App.5th 250, 265
[questions of statutory interpretation are reviewed de novo]; People v. Abelino (2021) 62
Cal.App.5th 563, 578 [magistrate’s legal determination is reviewed de novo].) As we
explain, we consider the undisputed procedural history of the murder prosecution to fall
squarely within the exception of section 1387, subdivision (c)(3). The first magistrate’s
dismissal of the charges under section 871 was not a termination of the action, given the
lawful recharging of the counts in the information under section 739; the superior court’s
dismissal of the recharged murder counts under section 995 therefore constituted only the
first termination of the murder prosecutions.
A. The Propriety of the Recharging of the Murder Counts Under Section 739
To begin, Aguilar-Jimenez concedes that “[s]ection 739 permitted the prosecutor
here to file the murder charges in the information in Case No. C1922671.” His
concession is well taken. 3
Following a preliminary examination of the evidence, if it “appears . . . that no
public offense has been committed or that there is not sufficient cause to believe the
defendant guilty of a public offense, the magistrate shall order the complaint dismissed
and the defendant to be discharged . . . .” (§ 871.) If, however, the magistrate holds the
defendant to answer a charged offense, the prosecutor under section 739 has “the duty . . .
to file in the superior court . . . within 15 days after the commitment, an information
against the defendant which may charge the defendant with either the offense or offenses
3
The district attorney argues that subdivision (c)(3) of section 1387 does not
require the murder counts to have been properly included under section 739 in the since-
dismissed information, on the theory that the exception applies even if the murder counts
could not have been validly included in the information under section 739. We need not
reach this alternative argument, given our acceptance of Aguilar-Jimenez’s concession.
6
named in the order of commitment or any offense or offenses shown by the evidence
taken before the magistrate to have been committed.” (Italics added.)
“ ‘[U]nder Penal Code section 739 the district attorney is not bound by the view of
the committing magistrate; he is free to file an information charging the highest offense
which any reasonable construction of the evidence adduced at the preliminary hearing
admits [citation].’ ” (People v. Barba (2012) 211 Cal.App.4th 214, 227.) Section 739
thus permits the prosecutor to refile charges even if the magistrate has made a “legal
conclusion on the insufficiency of the evidence of an offense not named in the
complaint.” (People v. Brice (1982) 130 Cal.App.3d 201, 210 (Brice).) But the
prosecutor’s ability to recharge counts under section 739 is not unlimited: “[A] literal
construction of section 739 would bring it into conflict with the constitutional mandate
which ‘protects a person from prosecution in the absence of a prior determination by
either a magistrate or a grand jury that such action is justified.’ [Citations.]” (Jones,
supra, 4 Cal.3d at p. 664.)
“Accordingly, the rule has developed that an information which charges the
commission of an offense not named in the commitment order will not be upheld unless
(1) the evidence before the magistrate shows that such offense was committed (Pen.
Code, § 739), and (2) that the offense ‘arose out of the transaction which was the basis
for the commitment’ on a related offense.” (Jones, supra, 4 Cal.3d at pp. 664-665.)
Moreover, “[t]he district attorney is precluded from [recharging dismissed
counts] . . . where factual findings made by the magistrate are fatal to the allegation that
the offense was committed.” (Brice, supra, 130 Cal.App.3d at p. 210.)
“A clear example of [a fatal factual finding] would be when the magistrate
expresses disbelief of a witness whose testimony is essential to the establishment of some
element of the corpus delicti.” (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133
(Pizano); People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1015 (Day)
7
[magistrate makes fatal factual finding by determining “as a matter of fact there is no
possible evidentiary support for the charge”].) Similarly, a prosecutor has been barred
from recharging sexual assault offenses where “the magistrate found, as a matter of fact,
that [the victim] consented to intercourse and that no acts of oral copulation or sodomy
occurred . . . .” (Jones, supra, 4 Cal.3d at p. 666.)
“When, however, the magistrate either expressly or impliedly accepts the evidence
and simply reaches the ultimate legal conclusion that it does not provide probable cause
to believe that the offense was committed, such conclusion is open to challenge by
adding the offense to the information. Addition of the offense is, of course, subject to
attack in the superior court under Penal Code section 995, to review by pretrial writ, and
finally, to appellate review from the judgment of conviction.” (Pizano, supra, 21 Cal.3d
at p. 133.) For example, in Pizano, the California Supreme Court determined that the
magistrate’s “explanation of his refusal to hold petitioner” for murder (where the
petitioner used the victim as a shield to effect his escape) “clearly reveal[ed] that his
determination that implied malice was not shown was a legal conclusion, not a finding of
fact as that term is used in Jones.” (Pizano, supra, 21 Cal.3d at pp. 133-134, italics
added; see also Zemek v. Superior Court (2020) 44 Cal.App.5th 535, 543, 547 (Zemek)
[magistrate’s conclusion that evidence supported implied malice but not express malice
was a legal conclusion].)
At its core, a magistrate’s decision whether the evidence is sufficient to hold a
defendant to answer a particular charge is fundamentally a mixed question of fact and
law. In cases where the decision turns on disputed facts, the magistrate’s resolution of
those factual disputes may preclude refiling under section 739. But in cases where the
bare facts are undisputed—and the decision turns on the inferences to be drawn from
those facts and on their legal sufficiency—the issue is purely one of law, independently
reviewable by the superior court under section 995.
8
Here, the first magistrate framed his careful assessment of the evidence before the
court as a factual finding, but “the magistrate’s role is limited by statute to determining
whether or not there is ‘sufficient cause’ to believe the defendant guilty of a public
offense.” (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) Of course, the magistrate “is
entitled to perform adjudicatory functions” in examining the sufficiency of cause and
accordingly “may weigh the evidence, resolve conflicts, and give or withhold credence to
particular witnesses. [Citation.]” (Ibid.) This was not, however, a preliminary hearing in
which the magistrate found any prosecution witness to be incredible or resolved any
factual conflict between competing witness accounts, as in Jones. (See Jones, supra, 4
Cal.3d at p. 667 [magistrate “with[held] credence to the testimony of [the victim]”].)
Rather, considering the evidence in light of the factors present in Watson, 4 the magistrate
reasoned: (1) that Aguilar-Jimenez had friends in the car when he drove, (2) that there
was no evidence of prior DUIs or prior Watson advisements that would suggest implied
malice, (3) Aguilar-Jimenez’s young age cut against an inference that he had the insight
of someone more mature, (4) Aguilar-Jimenez’s high rate of speed and his unsafe lane
change did not support an inference of knowing disregard for human life, (5) that
Aguilar-Jimenez had no prior accidents or near misses that night, and (6) that there was
no evidence Aguilar-Jimenez tried to flee from the police.
Accordingly, given the limited purpose of a preliminary hearing and the limited
scope of the evidence presented at this particular preliminary hearing, the first
4
Generally, “[o]pinions affirming convictions [of Watson murders] have relied on
a number of factors present in Watson, including ‘ “(1) blood-alcohol level above the
.08 legal percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the
hazards of driving while intoxicated; and (4) highly dangerous driving.” ’ ” (Munoz,
supra, 31 Cal.App.5th at p. 152.) But the presence or absence of one or more of these
factors is not dispositive: “ ‘Rather, [Watson] states that the presence of those factors was
sufficient in that case . . . .’ ” (People v. Wolfe (2018) 20 Cal.App.5th 673, 683.)
9
magistrate’s “factual conclusion that . . . Aguilar-Jimenez did not have the requisite state
of mind” under Watson, supra, 30 Cal.3d 290, was in fact a legal conclusion as to the
sufficiency of otherwise undisputed facts and evidence presented at the preliminary
hearing. (See Pizano, supra, 21 Cal.3d at p. 133; see also Day, supra, 174 Cal.App.3d at
p. 1015; Zemek, supra, 44 Cal.App.5th at p. 547; Dudley v. Superior Court (1974) 36
Cal.App.3d 977, 985 [magistrate’s conclusion that the defendant acted without malice
was not a factual finding as in Jones].)
As the magistrate did not make factual findings that were “fatal to the allegation
that the offense was committed,” the prosecutor was authorized to recharge the murder
counts with the related DUI offenses under section 739. (Brice, supra, 130 Cal.App.3d at
p. 210.)
B. The Two-Dismissal Rule and Section 1387, subdivision (c)(3)
Having determined that the first magistrate’s dismissal of the murder charges did
not divest the district attorney of the discretion to recharge them in the information under
section 739, we turn to whether the antecedent dismissal under section 871 and the
subsequent dismissal under section 995 constitute one or two terminations for purposes of
section 1387.
Beginning with the plain language of the statute, “we construe the words in
question in context, keeping in mind the statutes’ nature and obvious purposes.
[Citation.] We must harmonize the various parts of the enactments by considering them
in the context of the statutory framework as a whole.” (People v. Cole (2006) 38 Cal.4th
964, 975 (Cole).) Although section 1387 generally bars further prosecution if there have
been two terminations, the Legislature has prescribed exceptions to this general rule. As
is pertinent here, “[i]f a previous termination was made under section . . . 871, or 995, the
subsequent order terminating an action is not a bar to prosecution if: [¶] . . . [¶] (3) The
motion pursuant to Section 995 was granted after dismissal by the magistrate of the
10
action pursuant to Section 871 and was recharged pursuant to Section 739.” (§ 1387,
subd. (c).) Differently put, when the superior court grants a defendant’s section 995
motion to dismiss counts recharged under section 739 despite a magistrate’s previous
dismissal of the charges under section 871, subdivision (c)(3) of section 1387 treats the
magistrate’s dismissal and the superior court’s dismissal as a single termination. The
superior court’s later review of the magistrate’s findings under section 995 is not a
separate proceeding: both the magistrate’s dismissal under section 871 and the superior
court’s subsequent dismissal under section 995 were successive examinations of the same
preliminary hearing in the same action: “ ‘[I]n proceedings under section 995 it is the
magistrate who is the finder of fact; the superior court has none of the foregoing powers,
and sits merely as a reviewing court . . . .’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138,
1141 (Gonzalez).) Thus, when the prosecutor refiled the charges in case
number C1922671, the prosecutor commenced a second prosecution—not a third—and
had not yet run afoul of section 1387’s two-dismissal rule.
Our reading of the statutory language is consistent with People v. Superior Court
(Martinez) (1993) 19 Cal.App.4th 738 (Martinez), in which the Second District Court of
Appeal held that “a magistrate’s (first) dismissal under section 871 is not by itself a
termination of the action when followed by the filing of an information under
section 739.” (Id. at p. 746.) In Martinez, following a preliminary hearing on a
complaint charging defendants Martinez and Lopez with murder and conspiracy to
commit insurance fraud, the magistrate declined to hold the defendants to answer for
murder. (Id. at p. 742.) The prosecutor then filed an information under section 739,
charging Martinez and Lopez with not only conspiracy to commit insurance fraud but
also murder. (Martinez, supra, at p. 742.) Meanwhile, the grand jury returned an
indictment charging 30 defendants in connection with a broader insurance fraud
conspiracy, and the charges as to Martinez and Lopez included the original murder and
11
insurance fraud. (Id. at p. 743.) After the indictment was unsealed, the information was
dismissed under section 1385; the superior court later agreed with defendants that, under
section 1387, this dismissal of the information was “a second termination” of the murder
charge that barred further prosecution. (Martinez, supra, at p. 743.)
On the prosecutor’s petition for writ of mandate, the Second District observed that
while a magistrate’s decision under section 871 not to hold a defendant to answer was a
dismissal, not every such dismissal was a “termination” under section 1387: “Whether
the magistrate’s order of dismissal under section 871 is an order terminating the action
within the meaning of section 1387 depends on the circumstances[,]” including the
prosecutor’s election not to abide by the magistrate’s evaluation of the evidence.
(Martinez, supra, 19 Cal.App.4th at p. 744.) Had the prosecutor chosen to treat the
magistrate’s dismissal “as a final termination of that (first) action, and start over with a
new (second action)”—by filing a new complaint and submitting to a second preliminary
hearing—“the magistrate’s order of dismissal of the complaint under section 871 [would
have] terminate[d] the (first) action.” (Id. at p. 745.) But where the prosecutor elects
under section 739 to stand on the record of the original preliminary hearing and file an
information charging the defendant with offenses beyond those named in the holding
order, “whether the magistrate was wrong in evaluating the sufficiency of the evidence at
the preliminary hearing” is a legal issue to be “tested in superior court by the defendant’s
motion under section 995 to set aside the information.” (Martinez, supra, at p. 745.) In
such cases, “the magistrate’s dismissal under section 871 at the preliminary hearing does
not terminate the action. The action continues with an information filed under the same
case number pursuant to section 739. The action is not terminated at all if the superior
court disagrees with the magistrate and denies a section 995 motion based on the
evidence at the preliminary hearing. . . . In any event, the action remains alive at least
12
until the superior court agrees with the magistrate’s ruling and grants the defendant’s
section 995 motion.” (Ibid.)
Applying this rationale, the Martinez court found that the dismissal of the
information—notwithstanding the magistrate’s earlier dismissal under section 871—was
merely a first termination within the meaning of section 1387. (Martinez, supra, 19
Cal.App.4th at p. 746.) The indictment was therefore a second prosecution and was thus
not barred by section 1387. (Martinez, supra, at p. 746.)
Aguilar-Jimenez argues that we should not follow Martinez, as Martinez did not
resolve whether a section 871 dismissal after a preliminary hearing, followed by a
recharging of the counts in an information under section 739 and a dismissal under
section 995, counts as one termination or two. Aguilar-Jimenez maintains that any
guidance from Martinez on this point is dicta because the proceedings there, as Martinez
itself noted, “did not get that far”: the indictment prompted dismissal of the information
without a section 995 motion. (Martinez, supra, 19 Cal.App.4th at pp. 745-746.)
Although Aguilar-Jimenez is correct that Martinez did not resolve the issue specifically
presented in this case, its pure statement of law—that a dismissal under section 871 does
not constitute a first termination under section 1387 of counts recharged under
section 739—was essential to the resolution of the case and is not dictum. (People v.
Valencia (2011) 201 Cal.App.4th 922, 929.)
In arguing that the section 995 dismissal and the antecedent section 871 dismissal
on the same preliminary hearing record should count as two terminations, Aguilar-
Jimenez relies on Ramos v. Superior Court (1983) 32 Cal.3d 26 (Ramos) and Dunn v.
Superior Court (1984) 159 Cal.App.3d 1110 (Dunn). Both decisions, however,
addressed iterations of section 1387 that pre-dated its amendment in 1984, which added
13
the language now found in subdivision (c)(3). 5 Both decisions are moreover procedurally
distinguishable, in that the dismissals constituting the requisite two terminations prior to
the disputed refiling came after separate preliminary hearings in each of two
independently filed actions. (Dunn, supra, at pp. 1113-1114 [where the prosecution
dismissed an information the morning of trial, a magistrate’s section 871 dismissal of a
refiled complaint after a new preliminary hearing was a second termination barring the
prosecution’s filing of a section 739 information with the same charges]; Ramos, supra,
at p. 29 [where there were two complaints, two preliminary hearings, and two dismissals
under section 871 of the special circumstances allegation for insufficiency of the
evidence, section 739 information recharging the allegation was barred].)
This procedural circumstance—where each dismissal following a separate
evidentiary presentation counted as a termination—presents a critical distinction that
Aguilar-Jimenez does not address in endeavoring to analogize his case to Ramos, Dunn,
and other cases decided under section 1387 as amended in 1984. As summarized by
another court, Ramos stands for the proposition that “two section 871 dismissals by a
5
As noted in Martinez, the year after Ramos was decided, the Legislature
amended section 1387 to add the language now found in subdivision (c)(3)—that “if the
previous termination was pursuant to Section . . . 995, the subsequent order terminating
an action is not a bar to prosecution if: [¶] . . . [¶] . . . The motion pursuant to Section
995 was granted after dismissal by the magistrate of the action pursuant to Section 871
and was recharged pursuant to Section 739” (Stats. 1984, ch. 924, § 1, pp. 3090-3091)—
thus suggesting that “the Legislature also considered a magistrate’s first section 871
dismissal, followed by refiling under section 739 and the grant of a section 995 dismissal,
to constitute parts of a single prosecution, resulting in a termination of an action, not
two.” (Martinez, supra, 19 Cal.App.4th at p. 746.)
14
magistrate bars prosecution under section 1387.” (People v. Carreon (1997) 59
Cal.App.4th 804, 807 (Carreon).) 6
Aguilar-Jimenez argues that Carreon, supra, 59 Cal.App.4th 804 is a “close but
not . . . exact match to the instant case” in that it too involved a dismissal under
section 871 and another under section 995—only in the reverse order, a detail Aguilar-
Jimenez posits is insignificant. In Carreon, the grand jury returned an indictment
charging the defendant with multiple counts, including assault with a deadly weapon and
a gang enhancement, but the superior court granted the defendant’s section 995 motion as
to that count and the gang enhancement and then granted the prosecutor’s later motion to
dismiss the indictment as a whole. (Carreon, supra, at p. 806.) After the prosecutor filed
a new complaint alleging the same assault and gang enhancement, the magistrate at the
preliminary hearing held the defendant to answer on the substantive assault but did not
hold him to answer on the gang enhancement, which was dismissed pursuant to
section 871. (Carreon, supra, at p. 806.) The prosecutor then filed an information
charging the defendant with both the assault and the gang enhancement. (Ibid.) On
appeal, the Second District determined that the case before it was more akin to Ramos
than to Martinez and concluded that section 1387 barred the prosecution of the gang
enhancement. (Carreon, supra, at p. 810.)
From this, Aguilar-Jimenez argues that any combination of dismissals under
section 995 and section 871 constitute two terminations, on the ground that there is no
6
Even under the pre-1984 version of section 1387, the California Supreme Court
in Ramos expressly declined to reach the issue presented here: “We note that this case
does not present the question of the applicability of section 1387 to a case in which (1) a
magistrate dismisses a charge one time under section 871, (2) the prosecutor files an
information recharging the dismissed matter under section 739, and (3) the superior court
dismisses the refiled charges under section 995. Accordingly, we express no view on that
issue.” (Ramos, supra, 32 Cal.3d at p. 37, fn. 12.)
15
reason to think that the order of the dismissals has any significance under section 1387.
But the plain language of section 1387, subdivision (c)(3) defeats his logic, specifically
providing that if a “previous termination was pursuant to Section . . . 871, or 995, the
subsequent order terminating an action is not a bar to prosecution if: [¶] . . . [¶] (3) The
motion pursuant to Section 995 was granted after dismissal by the magistrate of the
action pursuant to Section 871 and was recharged pursuant to Section 739.” (Italics
added.) It is not the temporal relationship between a magistrate’s section 871 dismissal
and a superior court’s section 995 dismissal that matters but the functional relationship
between the two, linked as they are by the filing of the information under section 739 and
the superior court’s authority to review as support for that information the adequacy of
the same evidence the magistrate had found wanting at the preliminary hearing. When an
information is filed under section 739 and subject to a motion to dismiss under section
995, the superior court deciding the motion is reviewing the magistrate’s determination of
legal insufficiency. (See Gonzalez, supra, 2 Cal.5th at p. 1141.) A magistrate, of course,
never has comparable occasion to review the superior court’s section 995 determination.
Accordingly, Carreon did not discuss section 1387, subdivision (c)(3), nor the exception
contained within. It had no need to, because each of the two dismissals of the gang
enhancement followed a separate evidentiary presentation—one before a grand jury, the
other before a magistrate. (Carreon, supra, 59 Cal.App.4th at p. 806.) 7
Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, on which Aguilar-Jimenez
also relies, is similarly distinguishable. Although Bodner, like Carreon, post-dated the
7
Carreon’s holding that section 1387 barred recharging the gang enhancement
under section 739 after the second such evidentiary proceeding is an issue beyond the
scope of this case in its current posture. Here, the second magistrate decided to dismiss
the murder charges under section 1387 after concluding the first (and only) section 871
dismissal and the subsequent 995 dismissal constituted two terminations. At the time,
she had made no decision as to whether there was probable cause to hold Aguilar-
Jimenez to answer on the dismissed charges.
16
1984 amendments to section 1387, the refiling in dispute followed two separate
preliminary hearings in two separate actions, just as in Ramos and Dunn. (Bodner, supra,
at pp. 1803-1805.) In Bodner, the prosecutor elected to recharge the attempted murder
counts under section 739 following a dismissal after a preliminary hearing under
section 871. (Id.at p. 1803.) The attempted murder counts were then dismissed under
section 995. (Ibid.) The prosecutor thereafter dismissed the entire complaint and filed a
new complaint, again alleging the same counts of attempted murder, which were
dismissed following a second preliminary hearing under section 871. (Ibid.) Bodner thus
concluded that the attempted murder charges had been twice terminated under
section 1387, as in Ramos. (Bodner, supra, at p. 1806.)
Next, Aguilar-Jimenez argues that “the clear language” of subdivision (c)(3) of
section 1387 renders the exception inapplicable because the exception applies only where
a complaint was dismissed before a preliminary hearing in favor of an indictment.
Aguilar-Jimenez bases his argument on the Legislature’s division of subdivision (c) into
two distinct halves, the first of which provides: “An order terminating an action is not a
bar to prosecution if a complaint is dismissed before the commencement of a preliminary
hearing in favor of an indictment filed pursuant to Section 944 and the indictment is
based upon the same subject matter as charged in the dismissed complaint, information,
or indictment.” The second half of section 1387, subdivision (c), however, continues
with the language at issue here: “However, if the previous termination was pursuant to
Section 859b, 861, 871, or 995, the subsequent order terminating an action is not a bar to
prosecution if: [¶] . . . . [¶] (3) The motion pursuant to Section 995 was granted after
dismissal by the magistrate of the action pursuant to Section 871 and was recharged
pursuant to Section 739.”
We reject Aguilar-Jimenez’s narrow reading of section 1387, subdivision (c).
“ ‘The meaning of a statute may not be determined from a single word or sentence; the
17
words must be construed in context, and provisions relating to the same subject matter
must be harmonized to the extent possible.’ ” (People v. Shabazz (2006) 38 Cal.4th 55,
67 (Shabazz); Cole, supra, 38 Cal.4th a p. 975.) In harmonizing the provisions, we avoid
absurd results the Legislature could not have intended. (Shabazz, supra, at p. 68.) The
first paragraph of section 1387, subdivision (c) already carves out an exception to the
two-dismissal rule, one that applies where one of the asserted two dismissals is the
dismissal of a complaint before a preliminary hearing in favor of an indictment. It would
make little sense for the second half of subdivision (c), which sets forth additional
exceptions, to apply only in situations where application of the first exception makes
resort to additional exceptions unnecessary. We read the relevant language of
subdivision (c) as the equivalent of “[a]n order terminating an action is not a bar to
prosecution if the previous termination was pursuant to Section . . . 871[] or 995” and any
of the numbered conditions, such as subdivision (c)(3), applies.
Moreover, even if we were to find the language of the statute to “support[] more
than one reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history.” (Cole, supra, 38 Cal.4th at
975.) “Using these extrinsic aids, we ‘select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting rather than defeating
the general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” (People v. Sinohui (2002) 28 Cal.4th 205, 211 (Sinohui).) The
legislative history of section 1387 supports our interpretation. 8
8
On our own motion, we take judicial notice of the following legislative history:
(1) Assembly Bill No. 3810 (1983-1984 Reg. Sess.), (2) bill analyses of Assembly Bill
No. 3810 prepared by the Assembly Committee on Criminal Law and Public Safety and
the Senate Committee on the Judiciary, (3) Senate Bill No. 19 (1991 Reg. Sess.), (4) bill
analysis of Senate Bill No. 19 by the Senate Rules Committee, (5) Senate Bill No. 1827
18
As initially enacted, the exceptions set forth in section 1387 were not divided into
lettered subdivisions, and the first and second paragraphs of now subdivision (c)(3) were
simply stand-alone paragraphs contained within the same statute. (Stats. 1984, ch. 924,
§ 1 (Assem. Bill No. 3810).) 9
The bill analyses prepared by the Assembly Committee on Criminal Law and
Public Safety and the Senate Committee on the Judiciary both reflect that the 1984
amendments to section 1387 were meant to address the following concern: “Current law
provides that if a complaint alleges several related crimes and the magistrate determines
that there is sufficient evidence supporting some of the charges but not others, the
prosecution can nonetheless file any information which includes all of the charges to test
the magistrate’s finding. If the superior court agrees with the magistrate’s finding, the
(1993-1994 Reg. Sess.), (6) bill analysis of Senate Bill No. 1827 by the Senate Judiciary
Committee.
9
The 1984 version of section 1387 read in pertinent part:
“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 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 . . . .
“An order terminating an action is not a bar to prosecution if a complaint is
dismissed before the commencement of a preliminary hearing in favor of an
indictment filed pursuant to Section 944 and the indictment is based upon the
same subject matter as charged in the dismissed complaint, information, or
indictment.
“However, if the previous termination was pursuant to Section 859b, 861,
871, or 995, the subsequent order terminating an action is not a bar to prosecution
if:
“[¶] . . . [¶]
“(c) The motion pursuant to Section 995 was granted after dismissal by the
magistrate of the action pursuant to Section 871 and was recharged pursuant to
Section 739.” (Stats. 1984, ch. 924, § 1, pp. 3090-3091.)
19
additional charges will be set aside on a [9]95 motion. According to the [bill] sponsor, at
least one court has held that such a scenario would result in two dismissals, even though
there had only been a single prosecution. The sponsor contends that the law should be
clarified so that the various actions in the course of the same proceeding together count
only as a single dismissal.” (Assem. Com. on Crim. Law and Public Safety, Analysis of
Assem. Bill No. 3810 (1983-1984 Reg. Sess.) as amended May 7, 1984, p. 3; see also
Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3810 (1983-1984 Reg. Sess.) as
amended June 7, 1984, p. 4.)
In sum, both the plain text of section 1387, as amended in 1984, as well as the
analyses provided by the legislative committees, suggest that the language now found in
subdivision (c)(3) was added to section 1387 to ensure that a dismissal following a
section 995 motion is not bar to prosecution if the motion was granted after the counts
were recharged in an information under section 739 after being previously dismissed
under section 871.
That the provision subsequently went through a formatting change without a
substantive change in its language does not alter its applicability to this case, nor does the
statute’s subsequent legislative history reflect any intent by the Legislature to limit the
exception. In 1991, section 1387 was amended and reformatted to add lettered
paragraphs (a) and (b), with the two paragraphs now found in subdivision (c) grouped
together into former subdivision (b). (Stats. 1991, ch. 400, § 2.) Nothing in the
legislative history of the 1991 amendments reflect that by placing both paragraphs—the
exception related to dismissing a complaint or information in lieu of an indictment before
a preliminary hearing and the exceptions specified in now subdivision (c)(1) through
(3)—together within the same lettered paragraph, the Legislature somehow intended to
narrow the list of exceptions to the two-dismissal rule. Rather, the 1991 amendments to
the statute were, according to an analysis by the Senate Rules Committee, made to
20
“permit refiling of specified offenses, including misdemeanors, which were dismissed
due to the failure of the victim to appear in court.” (Sen. Rules Comm., Analysis of Sen.
Bill 19 (1991 Reg. Sess.) as amended June 28, 1991, p. 2.) 10 Indeed, the 1991
amendment to section 1387 substantively added the language in subdivision (a)(3), which
precludes the applicability of the two-dismissal rule if the prior dismissal was the result
of a failure to appear by the complaining witness. (Stats. 1991, ch. 400, § 2.)
And likewise, nothing in the legislative history of the 1994 amendment to the
statute, which relettered former subdivision (b) to its current position at subdivision (c),
reflects that there was any intent to limit the exceptions to the two-dismissal rule. (Stats.
10
Following the 1991 amendments, section 1387 was amended to read in pertinent
part:
“(a) 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 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 . . . . except in those felony cases . . . where subsequent to
the dismissal of the felony or misdemeanor the judge or magistrate finds any of the
following:
“[¶] . . . [¶]
“(3) That the termination of the action was the result of the failure to appear
by the complaining witness . . . .
“(b) An order terminating an action is not a bar to prosecution if a
complaint is dismissed before the commencement of a preliminary hearing in
favor of an indictment filed pursuant to Section 944 and the indictment is based
upon the same subject matter as charged in the dismissed complaint, information,
or indictment.
“However, if the previous termination was pursuant to Section 859b, 861,
871, or 995, the subsequent order terminating an action is not a bar to prosecution
if:
“[¶] . . . [¶]
“(3) The motion pursuant to Section 995 was granted after dismissal by the
magistrate of the action pursuant to Section 871 and was recharged pursuant to
Section 739.” (Stats. 1991, ch. 400, § 2, pp. 2128-2129.)
21
1994, ch. 169, § 1 (Sen. Bill No. 1827).) Substantively, the 1994 amendments added a
new subdivision (b) that provided that an order terminating an action is not a bar to
another prosecution or the same offense “if it is a misdemeanor charging an offense based
on an act of domestic violence . . . and the termination of the action was the result of the
failure to appear by the complaining witness, who had been personally subpoenaed.”
(Stats. 1994, ch. 169, § 1, p. 1639.) The bill analysis by the Senate Judiciary Committee
noted that the purpose of the 1994 amendment was to “expand the existing exception [to
section 1387] to include refiling of any misdemeanor based on an act of domestic
violence.” (Sen. Comm. on Judiciary, Analysis of Sen. Bill 1827 (1993-1994 Reg. Sess.)
as amended May 16, 1994, p. 1.)
We also find it telling that cases that have examined the exceptions set forth under
section 1387, subdivision (c)(1) through (3) have never interpreted the statute as applying
only to situations where a charging document has been dismissed in lieu of an indictment.
(See, e.g., Barron v. Superior Court (2023) 90 Cal.App.5th 628, 635-639 [interpreting
exception provided under section 1387, subdivision (c)(1)]; Brazell v. Superior Court
(1986) 187 Cal.App.3d 795, 799-800 [examining exception under former section 1387,
subdivision (b)(3)].) In sum, nothing in the statute’s legislative history, or in any cases
that have interpreted section 1387, suggest that subdivision (c)’s separate paragraphs
should be read together and not discretely.
And finally, Aguilar-Jimenez argues that the prosecutor’s filing of an information
recharging the dismissed counts under section 739 is a form of “sequential prosecution[]”
that amounts to “forum-shopping,” which section 1387 is intended to safeguard against.
Not so. Recharging the murder counts in section 739 was not a successive prosecution
but a continuation of the first. (Cf. § 654; Kellett v. Superior Court (1966) 63 Cal.2d 822,
827, fn. omitted [“[f]ailure to unite [offenses that are too interrelated] will result in a bar
to subsequent prosecution of any offense omitted if the initial proceedings culminate in
22
either acquittal or conviction and sentence”].) The purpose of section 739 is to “permit
the district attorney to dispute the magistrate’s erroneous designation of the offense
shown by the evidence to have occurred” at the preliminary hearing. (Jones, supra, 4
Cal.3d at p. 666.) That the prosecution was not successful in its endeavor under section
739 does not retroactively splinter a continuing pursuit of four transactionally related
offenses into two separate cases.
Accordingly, we conclude that the exception under section 1387,
subdivision (c)(3) applies to this case. As there had only been one prior termination—
when the superior court previously granted the section 995 motion—the subsequent
complaint was not barred under section 1387. (Martinez, supra, 19 Cal.App.4th at
pp. 744-747.) 11
III. DISPOSITION
The order dismissing the two murder counts is reversed.
Based on our conclusion, we need not reach the district attorney’s alternative
11
argument that section 1387.1 applies.
23
____________________________
LIE, J.
WE CONCUR:
_____________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
_____________________________________
GROVER, J.
People v. Aguilar-Jimenez
H050153
Trial Court: Santa Clara County
Superior Court No.: C2200332
Trial Judge: The Honorable Nona L. Klippen
Attorneys for Plaintiff and Appellant Jeffrey F. Rosen,
The People: District Attorney
Kaci Lopez,
Deputy District Attorney
David R. Boyd,
Deputy District Attorney
Jason Malinsky,
Deputy District Attorney
Attorney for Defendant and Respondent Aaron J. Schechter,
Esteban Martin Aguilar-Jimenez: under appointment by the Court of
Appeal, for Defendant and Respondent
People v. Aguilar-Jimenez
H050153