Opinion
G036990
5-23-2007
NAM HAOI NGUYEN, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, and Kevin J. Phillips, Assistant Public Defender, for Petitioner. No appearance for Respondent Court. Tony Rackauckas, District Attorney, James J. Mulgrew and Brian Gurwitz, Deputy District Attorneys, for Real Party in Interest.
NOT TO BE PUBLISHED
Petitioner, Nam Haoi Nguyen, seeks an order from this court directing the trial court to dismiss the indictment charging him with mayhem and assault with a firearm. He argues the indictment constitutes the fourth filing of the same offenses and is barred by Penal Code section 1387.1. The prosecution contends the indictment is the third filing and therefore permitted. A second question presented itself at oral argument: Was the fact the charges varied from charging document to charging document significant to the ultimate resolution of this writ? We grant the petition.
All further statutory references are to the Penal Code.
FACTS
The underlying facts of the case are not in dispute. At the preliminary hearing on the first amended complaint, Detective Dale Walker testified concerning his interview with the victim, Linda Tran, and the injuries he observed. Walker stated the interview took place at Western Medical Center Burn Unit on April 25, 2003. Walker testified Tran was "all bandaged up" with bandages on her face, neck, and chest area. Tran told Walker she had a gun shot wound to her right thigh. Walker asked Tran how she was injured.
Walker also testified regarding a murder charge involving a different victim on a different date, but because that charge is not the subject of this writ, we will not recount that testimony.
Tran said on or about April 13, she drove around Los Angeles County and Orange County with her boyfriend, Nguyen, they argued, and Nguyen threatened to kill her brother. While they were driving on the Interstate 10 freeway, Nguyen took out a gun and shot Tran in the leg. Nguyen drove to Trans brothers house and they continued to argue. Tran said she never told her brother she was injured. After leaving her brothers house, they drove to the Temple City area in Los Angeles County and parked behind a shopping center loading dock. Nguyen took out some lighter fluid, sprayed Tran, and set her on fire. Tran went across the street to get help, and Nguyen left on foot.
PROCEDURAL HISTORY
This case begins with an Orange County felony complaint (Case No. 03WF0113) charging Nguyen with murder, attempted murder, and possession of a firearm by a felon occurring on December 22, 2002, in Orange County. The complaint alleged Nguyen personally discharged a firearm and caused great bodily injury and he suffered a prior serious or violent felony conviction. Apparently, Nguyen was not immediately apprehended. Approximately four months later, a Los Angeles felony complaint (Case No. GA053044) charged Nguyen with attempted murder, aggravated mayhem, kidnapping, torture, and possession of a firearm by a felon occurring on April 14, 2003, in Los Angeles County. This complaint alleged he personally and intentionally discharged a firearm and caused great bodily injury, personally used of a firearm, personally inflicted great bodily injury under circumstances involving domestic violence, and suffered a prior conviction for a serious or violent felony.
For purposes of consolidating the Los Angeles County offenses with the Orange County offenses, in September 2003, the Los Angeles trial court granted the Los Angeles District Attorneys motion to dismiss the felony complaint "in furth[erance] of justice per [sic] [section] 1385 . . . ." In October 2004, the Orange County District Attorney filed a first amended complaint adding the previously dismissed Los Angeles aggravated mayhem charge as count 4 and the previously dismissed Los Angeles kidnapping charge as count 5, but did not allege the remaining Los Angeles charges that had been dismissed (attempted murder, torture, or possession of a firearm by a felon).
In November 2005, a preliminary examination was conducted on the first amended complaint, and at the conclusion of the hearing, Nguyen was held to answer on the three Orange County offenses, but not the two Los Angeles offenses. With respect to the Los Angeles offenses, the magistrate stated, "I dont believe there is enough to show count 5, and as such not enough to show continuous course of conduct and establish jurisdiction on count 4, so I am not going to hold him to answer on [counts] 4 and 5 due to insufficient evidence on count 5 and lack of jurisdiction on count 4."
In December 2005, the prosecution filed an information charging Nguyen with the three Orange County counts on which he had been held to answer. Pursuant to section 739, an information charged Nguyen with the Los Angeles aggravated mayhem count that had been dismissed by the magistrate and included previously uncharged offenses of assault with a firearm and possession of a firearm by a felon. The information did not include the Los Angeles kidnapping count previously dismissed by the magistrate.
Section 739 states: "When a defendant has been examined and committed, as provided in [s]ection 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney."
In January 2006, Nguyen filed a section 995 motion to set aside the information on the basis the Orange County and Los Angeles County offenses were not transactionally related and, therefore, the prosecution did not have authority to reinstate the Los Angeles offenses in the information. The next month, the prosecution responded, conceded the motion had merit, and acknowledged, "the [prosecution] mistakenly filed [the Los Angeles offenses] in the information pursuant to . . . section 739, rather than filing a motion to reinstate the charges pursuant to . . . section 871.5. Thus[,] the [prosecution] concede[s] that [Nguyens] motion has merit and that counts 4 through 6 must be set aside as he requests." However, before the actual hearing on the section 995 motion, the prosecution sought and obtained an indictment from the grand jury (Case No. 06ZF0124), the subject of this petition, charging Nguyen with assault with a firearm, aggravated mayhem, and possession of a firearm by a felon in Los Angeles County on April 14, 2003.
Before his arraignment on the indictment, Nguyen filed a motion to dismiss the indictment pursuant to section 1387 on the ground the indictment represented the fourth filing of the Los Angeles felony offenses, which the Penal Code does not authorize. At the hearing on the motion, the prosecution argued the indictment represented the third filing of the Los Angeles County offenses and was proper pursuant to section 1387.1, subdivision (a), which authorizes a third filing if the offense is a violent felony and "where either of the prior dismissals under [s]ection 1387 were due solely to excusable neglect." The prosecution also argued the magistrates error, failing to hold Nguyen to answer, and its error, failing to recognize the Orange County and Los Angeles County offenses were not transactionally related and failing to seek relief pursuant to section 739 rather than section 871.5, constituted excusable neglect and, therefore, section 1387.1, subdivision (a), authorized the filing of the indictment.
The trial court denied Nguyens section 1387 motion to dismiss the indictment stating, "Although, if I had my personal preference I would have granted it, because I think the standard as far as what constitutes excusable neglect is very broad and liberal and favors the [prosecution] to a very extreme degree, I think, far more than I would. But excusable neglect, I think, covers, basically everything which is negligence, even negligence which would be not expected from attorneys who practice in a certain area for many[,] many years. [¶] The only thing that bothers me is that there simply was no direct evidence about why it wasnt filed at the time, and the [prosecution] simply asked to make inference[s] based on the state of the evidence, and my reluctance is why should I make an inference in their favor when they can present direct evidence and fail to do so? But then, I suppose, this failure to do so for the next case, the next motion would be a reconsideration for their excusable neglect in failing to do so."
The following week, the trial court granted the section 995 motion dismissing the Los Angeles County offenses that had been erroneously included in the information. At the arraignment on the indictment, the court denied Nguyens motion to reconsider the motion to dismiss the aggravated mayhem and assault with a firearm counts from the indictment pursuant to section 1387, but granted the motion to reconsider count 3. The court dismissed count 3 because possession of a firearm by a felon does not qualify as a violent felony for purposes of section 1387.1, subdivision (a).
Nguyen filed a petition for a writ of prohibition/mandate challenging the trial courts ruling denying his motion to dismiss pursuant to section 1387. We requested and received an informal response from the prosecution, stayed the trial on the indictment, and issued an order to show cause.
DISCUSSION
Section 1387.1, subdivision (a), provides, "Where an offense is a violent felony, as defined in [s]ection 667.5 and the prosecution has had two prior dismissals, as defined in [s]ection 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under [s]ection 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith." This section provides an exception to the so-called two dismissal rule stated in section 1387. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019, fn. 6 (Burris), People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 743-744 (Martinez).)
The charges that are the subject of this petition are undeniably violent felonies as defined in section 1387. It is undisputed the dismissal of the Los Angeles offenses by the Los Angeles court pursuant to section 1385 and the dismissal of the Los Angeles offenses under section 995 were dismissals within the meaning of section 1387. The question presented is whether the Los Angeles charges included within the indictment had been previously dismissed twice or thrice?
A second question, not initially raised by the parties, arose at oral argument regarding the significance of the variation in the specific charges that were filed. The record is clear that although the aggravated mayhem had been alleged in all the charging documents, the assault with a firearm offense had only been alleged twice. In dispute is whether the assault with a firearm charge should be deemed dismissed as well as part and parcel of the previous dismissals of the Los Angeles charges?
Are the Los Angeles charges included in the indictment barred by section 1387?
Nguyen seeks to establish the indictment as the fourth filing of all the Los Angeles charges. Nguyen counts the dismissal by the Los Angeles magistrate under section 1385 as the first dismissal, the dismissal by the Orange County magistrate at the conclusion of the preliminary hearing as the second dismissal, and the granting of the section 995 motion as the third dismissal. This method of calculation would render the indictment the fourth filing of the Los Angeles offenses.
It is not surprising the prosecution disagrees with Nguyens calculation. The prosecution maintains Nguyen is mistaken in his contention the magistrates ruling not holding him to answer on the Los Angeles offenses constituted a dismissal because it was not a termination of the action. The prosecution contends the magistrates dismissal and the courts granting of the section 995 motion constitutes only a single dismissal. In support of its position, the prosecution cites to language contained in section 1387 and relies on Martinez, supra, 19 Cal.App.4th 738.
The prosecution cites to section 1387, subdivision (c)(3), which states: "[I]f the previous termination was pursuant to [s]ection . . . 871, . . . the subsequent order terminating an action is not a bar to prosecution if: [¶] . . . [¶] (3) The motion pursuant to [s]ection 995 was granted after dismissal by the magistrate of the action pursuant to section 871 and was recharged pursuant to [s]ection 739." The prosecution contends Martinez holds a section 871 dismissal, followed by a section 739 refiling, and concluding in a section 995 dismissal, is a single prosecution and results in only a single dismissal. The prosecution states it did specifically what is provided for in the statute and approved of in Martinez.
Nguyen agrees that under section 1387 and Martinez, supra, 19 Cal.App.4th 738, a magistrates dismissal of charges at the conclusion of the preliminary hearing pursuant to section 871 does not amount to a termination of the action if the charges may properly be filed in the information under section 739. In that instance, a single dismissal would occur when the trial court dismisses the charges pursuant to section 995. But, Nguyen and the prosecution agree section 739 was not applicable. Therefore, Nguyen argues the dismissal by the magistrate was a termination of the second action and the granting of the section 995 motion was a second, separate dismissal. Nguyen clarifies that in Martinez the information was lawfully filed pursuant to section 739, and that is not the case here. Accordingly, Nguyen concludes Martinez is inapt. He asserts that when the prosecution is not authorized by section 739 to refile the counts dismissed by the magistrate, the magistrates dismissal is a termination of the action and a dismissal for purposes of section 1387.
In determining whether the indictment is a fourth filing as Nguyen contends, we first look to Martinez, supra, 19 Cal.App.4th 738. In Martinez, the court held the magistrates dismissal of a count did not terminate the action and, therefore, the dismissal of the information was the first termination within the meaning of section 1387. (Id. at pp. 744-747.) The court explained a magistrates failure to hold defendants to answer is not a dismissal because it is not a final termination of the action. (Id. at p. 744.) The court stated, "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 produced at the preliminary hearing. The action then proceeds, possibly to conviction. In any event, the action remains alive at least until the superior court agrees with the magistrates ruling and grants the defendants section 995 motion. The action is terminated when the superior court dismisses the information pursuant to section 995." (Id. at p. 745.) The court opined, "[A] magistrates (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.)
When faced with a dismissal of charges by a magistrate, the Martinez court noted the prosecution could elect to begin again with a new complaint, or it could seek to remedy the situation by refiling the dismissed charges pursuant to section 739. (Martinez, supra, 19 Cal.App.4th at p. 745.) In the first instance, the magistrates dismissal would be deemed final upon the filing of the new complaint. If on the other hand, the charges were refiled, a dismissal within the meaning of section 1387 would only occur if the court dismissed the charges pursuant to section 995. The Martinez court did not address the occasion where a refiling of the charges is not legally authorized. However, the Martinez court did state, "Whether the magistrates order of dismissal under section 871 is an order terminating the action within the meaning of section 1387 depends on the circumstances." (Id. at p. 744.)
We now turn to Ramos v. Superior Court (1982) 32 Cal.3d 26 (Ramos), another case cited by Nguyen. In Ramos, the magistrate dismissed a complaint containing a charge of murder and a special circumstance allegation based on insufficient evidence. (Id. at p. 29.) Days later, the prosecutor filed a new complaint charging defendant with murder and the same special circumstance allegation that had been dismissed. At the end of the second preliminary hearing, defendant was held to answer on the murder charge, but the special circumstance allegation was again dismissed. The prosecutor filed an information pursuant to section 739 charging defendant with murder and reinstating the special circumstance allegation that had already been dismissed twice. (Ibid.) The court held the prosecutions exclusive remedy to challenge the magistrates second dismissal of the special circumstance was to seek review by filing a motion pursuant to section 871.5 to reinstate dismissed counts or enhancements. (Id. at p. 35.) In holding the prosecution had no authority to refile the special circumstance in the information, the court stated: "[W]e conclude that the district attorneys reinstatement of the special circumstance allegation pursuant to section 739 was an `other prosecution for the same offense which was barred under section 1387 because the allegation had already been dismissed twice under section 871. [¶] This interpretation of section 1387 does not leave the [prosecution] without means to challenge a second order of a magistrate dismissing all or a portion of a complaint. The 1980 legislation added a new Penal Code provision—section 871.5—which provides the [prosecution] with a specially designed procedure for challenging a magistrates dismissal order. In this case, however, the [prosecution] did not avail themselves of the remedy afforded by section 871.5, but instead attempted simply to ignore the second dismissal by proceeding directly under section 739." (Id. at p. 36.)
Here, the prosecution concedes it erred by failing to seek reinstatement of the dismissed charges pursuant to section 871.5. For this error, the prosecution asserts Nguyen suffered no consequences. The prosecution contends "the fact that the [section 995] motion was granted because of limitations on the use of . . . section 739 by case law merely means that the [prosecution] [was] deprived of a review on the merits of the magistrates ruling on venue, which the [prosecution] maintain[s] was in error. Thus, the [prosecution] had to suffer a dismissal without getting review of this adverse ruling." The prosecution implicitly argues that because the trial court dismissed the unlawfully brought charges, Nguyen suffered no harm. We disagree.
The prosecution was not deprived of a review of the magistrates ruling—the prosecution failed to avail itself of the right to section 871.5 review. Section 871.5 expressly provides the prosecution with a specially designed procedure for challenging a magistrates dismissal. It is noteworthy section 871.5 places the burden on the prosecution as the party seeking relief. Pursuant to section 871.5, the prosecution must make its motion within a specified time period, 15 days, and the prosecution must give notice of the motion to the defendant and the magistrate. When the prosecution failed to pursue the remedy it was afforded under the law, and chose to proceed on the Los Angeles offenses by way of information, the prosecution succeeded in shifting its burden to Nguyen. Rather than a proceeding at which the prosecution would bear the burden of demonstrating the magistrate had erred, Nguyen was compelled to challenge the Los Angeles charges pursuant to section 995 and establish he had not been legally committed or he had been committed without reasonable or probable cause. (§ 995.) There is nothing in the record to indicate, but for Nguyens 995 motion, the information would not have been prosecuted to plea or verdict.
When the magistrate failed to hold Nguyen to answer on the Los Angeles charges, the prosecutions exclusive remedy was relief pursuant to section 871.5. When the time elapsed for the prosecution to seek relief pursuant to section 871.5, the action was terminated for a second time and dismissed for a second time within the meaning of section 1387. The filing of the Los Angeles offenses in the information cannot be considered a continuation of the first amended complaint because the inclusion of the Los Angeles offenses in the information was not authorized by law. The granting of Nguyens section 995 motion then terminated the action a third time as to the charge of aggravated mayhem. Having been dismissed three times, we conclude the aggravated mayhem as alleged in the indictment was a fourth filing and barred by section 1387.
Should the analysis for the assault with a firearm charge be any different?
We now address the second issue regarding the significance, if any, of the variation in the way the Los Angeles activity has been characterized in the different charging documents. The Los Angeles activity, in pertinent part, was first charged as attempted murder, kidnapping, and torture. The first amended complaint in Orange County charged a Los Angeles kidnapping. The information and indictment charged a Los Angeles assault with a firearm. All of these charges arise out of events that occurred in Los Angeles on April 13.
At oral argument, Nguyen maintained the charge of assault with a firearm arose out of the same conduct, at the same time, and involved the same victim, as the previous charges. Therefore, despite the variance in the specific charges alleged, the action has been terminated three times, and the assault with a firearm charge in the indictment is barred by section 1387. The prosecution contends the assault with a firearm is a distinct offense and has been dismissed only once and, therefore, the consequences of a fourth filing do not come into play. The parties were invited to, and did, file supplemental letter briefs citing cases but, as instructed by the court, offering no analysis or argument.
Nguyen cites sections 7, 871.5, subdivision (a), 1238, subdivision (a)(8), and 1385, subdivision (a). Nguyen also cites Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), People v. Bas (1987) 194 Cal.App.3d 878 (Bas), and People v. Hudson (1917) 35 Cal.App. 234 (Hudson), to support his position. The prosecution cites Burris, supra, 34 Cal.4th 1012, and Dunn v. Superior Court (1984) 159 Cal.App.3d 1110 (Dunn).
There is no dispute the offense of assault with a firearm was alleged for the first time in the information and for a second time in the indictment, but a brief review of the history of the evolution of the charges is worthwhile. The initial Los Angeles complaint included charges of attempted murder, kidnapping, and torture. The first amended complaint included a charge of kidnapping, but not attempted murder or torture. The information and the indictment alleged an assault with a firearm, but not a charge of attempted murder, kidnapping, or torture. The same date of occurrence and the same victim were alleged in the attempted murder, kidnapping, torture, and assault with a firearm charges, and there is no dispute these charges all arose out of the same Los Angeles course of conduct.
We begin with a review of the cases cited by Nguyen. In Kellett, supra, 63 Cal.2d at page 824, defendant was initially charged with a misdemeanor and later charged with a felony. Both charges arose out of observations the police made on a single occasion. Defendant pled guilty to the misdemeanor and moved to dismiss the felony charge. In prohibiting the prosecution of the felony, the Supreme Court stated, "When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause." (Id. at p. 827.)
In Bas, supra, 194 Cal.App.3d at pages 881-883, this court held convictions for felony charges were barred by section 654 because the felony charges arose from the same acts as misdemeanors and infractions for which defendant had previously pled guilty. Defendant was originally charged with two misdemeanors and was later charged with two felony counts. (Id. at p. 880.) At the time set for the preliminary hearing on the felony counts, both the misdemeanor complaint and the felony complaint were before the court. Defendant attempted to enter guilty pleas to the misdemeanor charges, but the court resisted. The next day, with the agreement of the prosecutor, the court accepted guilty pleas to the misdemeanor filing. (Id. at pp. 880-881.) Subsequently, defendant was held to answer on the felony counts and ultimately entered guilty pleas. Defendant later appealed claiming his earlier guilty pleas on the misdemeanor counts barred further prosecution on the felony charges. (Id. at p. 881.) This court agreed and reversed the felony convictions concluding the felony charges were barred by defendants previous plea to the misdemeanor pleas because they arose from the same acts. (Id. at p. 883.)
Lastly, in Hudson, supra, 35 Cal.App. at page 235, defendant was charged in a felony complaint with entering the victims apartment with the intent "`to commit the crime of larceny and then and there to kill and murder" the victim. The information later charged defendant with three separate counts of burglary. The three separate counts referred to the same victim, but each charge alleged a different intent. "The intent described in the first count was to commit the crime of larceny; the second, murder; and the third, rape." Pursuant to defendants motion, the trial court dismissed the information "`on the ground that the defendant has never been legally committed by a magistrate on the charges embraced in the information." (Id. at p. 236.) The Hudson court implicitly found the prosecution cannot split its cause of action after the magistrate has ruled.
(Id. at pp. 237-238.)
We now turn to the first case cited by the prosecution, Dunn, supra, 159 Cal.App.3d 1110. The charging history in Dunn rivals the complexity of the charging history now before us. In the first complaint, defendant was charged with kidnapping, assault with intent to commit rape, and theft of an automobile. (Id. at p. 1113.) Defendant was held to answer on all the charges, but was only charged in the information with kidnapping and assault with intent to commit rape. (Id. at pp. 1113-1114.) This information was later dismissed on the day set for jury trial. Subsequent to this dismissal, the prosecution filed a second complaint alleging kidnapping for the purpose of robbery, robbery, possession of stolen property, and accessory to kidnapping, robbery, and automobile theft. A preliminary hearing was held in conjunction with a motion to suppress evidence. At the end of the preliminary hearing, the magistrate granted the motion to suppress evidence and found there was insufficient evidence to hold defendant to answer on any charge except for the accessory charge as it related to the auto theft. Despite the magistrates ruling, the prosecution included in the information all the counts included in the second complaint and filed a request for a de novo hearing pursuant to section 1538.5, subdivision (j), on the suppression issue. After conducting a hearing, the trial court ruled the search was proper and the evidence excluded by the magistrate was admissible, and the case proceeded. Defendant filed a motion for dismissal of the kidnapping, robbery, and receiving stolen property counts under section 1387. The trial court denied the motion. (Id. at p. 1114.) The Dunn court ruled the charges were barred by section 1387 and ordered the information dismissed. (Id. at pp. 1117-1119.) The Dunn court stated, "Although section 1387 bars charges of `the same offense, it is clear that this phrase does not simply mean that the district attorney is not permitted to charge violation of the same statute." (Id. at pp. 1117-1118.) In deciding the issue, the Dunn court cited the "`essence" test as described in Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace). (Dunn, supra, 159 Cal.App.3d at p. 1118.)
At the time this case was decided, section 1387 did not provide for a third filing.
In Wallace, supra, 140 Cal.App.3d at page 107, the court determined that when the "`essence" of the two charges is the same, the second filing is barred by section 1387. No clear definition of the "`essence" of an offense was provided, but the court did indicate that when one offense could be committed without committing the other, the "`essence" of the two offenses would be different. (Id. at p. 109.)
Finally, in Burris, supra, 34 Cal.4th at page 1015, defendant was charged with misdemeanor counts of driving under the influence of alcohol and driving with a blood-alcohol level of at least 0.08 percent. The complaint also alleged two prior convictions for driving under the influence. (Id. at pp. 1015-1016.) Before trial, the prosecutor discovered a third prior and elected to refile defendants case as a felony. (Ibid.) The prosecution then "moved to dismiss the misdemeanor complaint." (Id. at p. 1016.) The trial court granted the motion, and the prosecution filed a felony complaint. Defendant "moved to dismiss the felony complaint[]" under section 1387. "The trial court denied the motion. The Court of Appeal denied [his] ensuing petition for a writ of mandate, holding that section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and was previously dismissed." (Ibid.) After granting review, the California Supreme Court held the prior dismissal of the misdemeanor charge did not bar further prosecution as a felony because felony charges are subject to a two-dismissal rule pursuant to section 1387. (Id. at p. 1019.)
Having reviewed and considered the cases cited by counsel, we conclude prosecution for assault with a firearm as alleged in the indictment is precluded by section 1387. All the Los Angeles facts were known to the prosecution prior to any Orange County filing. Any offense arising out of those facts should have been prosecuted together. The assault with a firearm is simply a different characterization of the same conduct.
DISPOSITION
For the foregoing reasons, the petition is granted. Respondent court is ordered to vacate its order of March 28, 2006, denying Nguyens motion, and enter a new and different order granting Nguyens motion to dismiss pursuant to section 1387. The stay previously issued is dissolved.
We concur:
RYLAARSDAM, Acting P. J.
IKOLA, J.