Filed 5/27/16 P. v. Juarez CA4/2




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Appellant,                                          G049037 (consol. with G049038)

         v.                                                            (Super. Ct. No. 12CF3528)

GERARDO JUAREZ and EMMANUEL                                            OPINION
JUAREZ,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg
Prickett, Judge. Affirmed.
                   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.
                                             *               *               *
              Penal Code section 13871 limits 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, and we reversed based on our high court’s decision in People v. Traylor
(2009) 46 Cal.4th 1205, 1208, where the court, interpreting section 1387, held that two
charged offenses are the “same offense” only if they include “identical elements.” We
observed that applying that rule in this case would violate the policies animating section
1387, but we believed ourselves bound by our high court’s holding.
              The California Supreme Court reversed our judgment. (People v. Juarez
(2016) 62 Cal.4th 1164.) It held that while People v. Traylor, supra, 46 Cal.4th 1205
stands for the proposition that two offenses with the same elements are the same offense,
“we did not say the converse — that a later charged offense that contains different
elements than the earlier charge is never the same offense under section 1387.” (Juarez,
at p. 1173.) The court held that while examining the statutory elements is one way of
determining whether two offenses are the same offense, courts may also apply the
accusatory pleading test in this context. “‘Under the accusatory pleading test, if the facts
actually alleged in the accusatory pleading include all of the elements of the lesser
offense, the latter is necessarily included in the former.’” (People v. Shockley (2013) 58
Cal.4th 400, 404.) “Applying this test, the conspiracy to commit murder charges, as
pleaded, are the same offenses as the previously dismissed attempted murder charges.


1
              All statutory references are to the Penal Code.


                                             2
The element of attempted murder that is missing from conspiracy to commit murder is a
direct but ineffectual act toward accomplishing the intended killing. The felony
complaint in this case alleged several overt acts regarding each conspiracy charge,
including actually shooting the intended victim of each alleged conspiracy. Alleging an
actual shooting of the intended victim necessarily also alleges a direct act toward
accomplishing the intended killing. Accordingly, as pleaded, the conspiracy charges
include all of the elements of the previous attempted murder charges, thus making them
the same offenses as the previous charges.” (People v. Juarez, supra, 62 Cal.4th at p.
1174.) Following our high court’s holding, we affirm the trial court’s judgment.




                                                 IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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