Filed 10/30/13
                               CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                           (Sacramento)
                                               ----



ERICK LLOYD DIETRICK,                                              C073008

                 Petitioner,                              (Super. Ct. Nos. 12F01905 &
                                                                   12F06313)
        v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

                 Respondent;

THE PEOPLE,

                 Real Party in Interest.




      APPEAL from a judgment of the Superior Court of Sacramento County,
Kevin J. McCormick, Judge. Petition for Writ of Mandate is denied.

      Charles M. Bonneau and Mark H. Sollitt for Petitioner.
      No appearance for Respondent.
      Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Julie A. Hokans, Supervising Deputy Attorney General, and Clara M. Levers,
Deputy Attorney General, for Real Party in Interest.




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       This case involves “‘a particularly unpardonable fault of the prosecutor-
unpreparedness.’” (People v. Whitaker (2013) 213 Cal.App.4th 999, 1006.)
                            PROCEDURAL BACKGROUND
       On March 16, 2012, the People filed their first felony complaint charging
petitioner Erick Lloyd Dietrick with driving under the influence of alcohol (DUI) (Count
One), and DUI with a blood-alcohol level above .08 percent (Count Two), and as to each
count alleged he had been convicted of a felony DUI within the past 10 years. (See Veh.
Code, §§ 23152, subds. (a) & (b), 23550.5.) Absent the allegation of a prior conviction
for DUI, Counts One and Two would have been misdemeanors. (Id., § 23536, subd. (a).)
Pleading and proof of the prior, to elevate the substantive counts to felonies, was required
as a matter of due process. (See People v. Casillas (2001) 92 Cal.App.4th 171, 184.)
       At the preliminary hearing held on September 20, 2012, the prosecutor neglected
to produce any evidence of the alleged prior DUI, speculating after resting his case and
presenting argument that he had left the evidence in his office. The magistrate (Candee,
J.) held petitioner to answer on the two DUI counts as misdemeanors. Petitioner
immediately attempted to plead guilty “to the sheet,” but the magistrate declined to
accept the plea. After a brief recess, the same prosecutor moved to reopen, apparently
having found the missing evidence. The magistrate declined to reopen the hearing.1
The prosecutor moved to dismiss the case, and the magistrate granted the motion.
       On September 21, 2012, the People filed their second felony complaint, largely
identical to the first, but adding two prior prison term allegations.

_____________________________________________________________________
1 The magistrate indicated it was “offended” by the prosecutor’s comparison of his
request for a recess to find missing evidence (after he had rested his case) to defense
counsel’s earlier request for a facilities break. We agree with the magistrate’s
disapproval of the prosecutor’s attempt to “equate a failure of proof to going to the
bathroom.” We add that a prosecutor has a duty to prepare his or her case. Blaming the
People’s unpreparedness on the trial court’s refusal to allow the People to reopen their
case was unprofessional.

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       Petitioner moved to dismiss pursuant to Penal Code section 1387 (§ 1387), the
“two-dismissal” rule, which generally bars “further prosecution of a felony if the action
has twice been previously terminated according to the provisions of that statute.”
(Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 218; see generally Burris v.
Superior Court (2005) 34 Cal.4th 1012, 1018-1020 [describing the different statutory
treatment of successive felony and misdemeanor prosecutions] (Burris).)
       The trial court (McCormick, J.) denied the motion, finding “no purpose of
[§ 1387] would be promoted” by finding two dismissals had occurred.
       Petitioner filed the instant petition for a writ of mandate commanding the trial
court to grant his motion to dismiss. We stayed further proceedings and, after
considering the People’s preliminary opposition, issued an alternative writ.
       We now deny the petition and lift the stay, because we find the two-dismissal rule
inapplicable to these procedural facts.
                                      DISCUSSION
       Section 1387 provides in relevant part as follows:

               “(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 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, except in
       those felony cases, or those cases where a misdemeanor is charged with a felony,
       where subsequent to the dismissal of the felony or misdemeanor the judge or
       magistrate finds any of the following:

               “(1) That substantial new evidence has been discovered by the prosecution
       which would not have been known through the exercise of due diligence at, or
       prior to, the time of termination of the action.”
       “Despite the reference in P.C. 1387(a) to an order ‘terminating an action,’ it is
now well established that the provision applies to the dismissal of a single count in a
criminal proceeding, even though the entire . . . complaint is not dismissed.” (5 Witkin &
Epstein, Cal. Crim. Law (4th ed. 2012) Criminal Trial, § 481(3), p. 749 (Witkin).)


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       Petitioner’s claim in this court is straightforward: “Further prosecution as a felony
is barred by the two-dismissal rule of section 1387. The felony charge has been
dismissed [i.e., by the magistrate] for failure of proof. The identical misdemeanor charge
has been dismissed [on the People’s motion] in the interests of justice. Further
prosecution of this charge is barred by statute.”
       The flaw in this reasoning is that the magistrate’s act of finding the prior alleged
DUI conviction not true was not the dismissal of any “felony charge” as petitioner states,
but was instead merely the “dismissal” of a penalty allegation. (Cf. Burris, supra, 34
Cal.4th at p. 1020 [“either two felony dismissals or one misdemeanor and one felony
dismissal[fn.] will bar a subsequent felony charge”].)
       The prior DUI allegation was a penalty provision, or “sentence-enhancing statute
and not a substantive offense statute.” (People v. Coronado (1995) 12 Cal.4th 145, 152,
fn. 5 [describing similar former statute]; see People v. Muhammad (2007) 157
Cal.App.4th 484, 492-493.) That penalty allegation was dismissed once. It was
dismissed as a matter of law when the magistrate found no evidence had been produced
to support it, and declined to hold petitioner to answer for it. (See In re Williams (1985)
164 Cal.App.3d 979, 982-983 (Williams); 4 Witkin, supra, Pretrial Proceedings, § 174,
p. 443.) “[A] failure or refusal to hold, even without a formal order of dismissal,
constitutes a termination of the action within the meaning of section 1387.” (Williams,
supra, at p. 983; see Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1119.)
       The magistrate held petitioner to answer for the substantive DUI charges. The
magistrate then dismissed those two charges at the request of the People, once. The
People’s request for dismissal did not encompass and could not have encompassed
dismissal of the penalty allegation because that allegation had already been dismissed due
to the prosecutor’s unpreparedness, resulting in a failure of proof. The dismissal of the
prior was the action which caused the substantive charges to revert to misdemeanors,



                                              4
which were then themselves dismissed on the People’s motion. Therefore that penalty
allegation was not dismissed twice, as petitioner assumes, but only once.
       The People could not simply have ignored the magistrate’s factual finding as to
the prior, and filed a felony information. (See Jones v. Superior Court (1971) 4 Cal.3d
660, 665-668 [magistrate’s explicit finding of consent by alleged victim precluded
charging rape in the information].) Instead, after neglecting to bring critical evidence to
court, the prosecutor proceeded in a permissible manner by dismissing the current
complaint and refiling the case. (See People v. Uhlemann (1973) 9 Cal.3d 662, 668-669
[“nothing we said in Jones would have precluded the People from rejecting the
magistrate’s findings altogether, dismissing the complaint, and refiling the same charges
with another magistrate (or alternatively seeking an indictment)”].)
       As stated by our Supreme Court in a somewhat analogous case:

               “A primary purpose of section 1387(a) is to protect a defendant against
       harassment, and the denial of speedy-trial rights, that result 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 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.” (People v. Traylor (2009) 46 Cal.4th 1205,
       1209 (Traylor), emphasis in original; see People v. Hernandez (2010) 181
       Cal.App.4th 404, 411-412 [“This case continued on its original trajectory, without
       additional harassment to defendant, without the possibility of forum shopping and
       without endangering defendant’s right to a speedy trial”].)
       Here, the substantive DUI counts, having been dismissed only once before when
they stood as misdemeanors, could be refiled as felonies, in the company of the prior DUI
conviction allegation, without violating the two-dismissal rule. (See Traylor, supra, 46
Cal.4th at p. 1209.)



                                             5
       In illustrative contrast, the People point to People v. Ramos (1982) 32 Cal.3d 26
(Ramos), where a special circumstance (a penalty provision) was dismissed twice. At the
first preliminary hearing, Ramos was charged with murder with a special circumstance,
but was not held to answer, and his case was dismissed. (Id. at p. 29.) The People refiled
charges against Ramos, and after a second preliminary hearing, he was held to answer on
murder, but not the special circumstance. (Ibid.) The People were barred from including
the special circumstance in the information, because it had been dismissed twice, first
when Ramos was not held to answer for any charges at the first preliminary hearing, and
a second time when Ramos was not held to answer for the special circumstance at the
second preliminary hearing. (Id. at pp. 31-37.)
       Here, as we have explained, the felony DUI penalty provision, unlike the special
circumstance in Ramos, was dismissed only once. While this means petitioner may
indeed face a second preliminary hearing and felony prosecution, this does not constitute
the kind of “harassment” that section 1387 was designed to prevent.
                                        DISPOSITION
       The petition for writ of mandate is denied. The stay previously issued by this
court is lifted upon finality of this decision in this court.



                                                          DUARTE                 , J.



We concur:



          NICHOLSON                   , Acting P. J.



          BUTZ                        , J.

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