Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF0295, David Hoffer, Judge.
Laura P. Gordon for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Alejandro Garibay challenges his conviction for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and possessing ammunition as a prohibited person (§ 12316, subd. (b)(1).) Defendant’s sole contention on appeal is the court erroneously denied his motion to dismiss his case pursuant to the “two-dismissal rule” set forth in section 1387, subdivision (a). Subject to various exceptions, section 1387, subdivision (a) provides that “[a]n order terminating an action pursuant to this chapter [section 1381 et seq.], 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 [section 1381 et seq.], or Section 859b, 861, 871, or 995.”
All further statutory references are to the Penal Code.
Given the inadequate record, we are unable to assess defendant’s claim of error. Accordingly, we affirm the judgment.
FACTS
On June 24, 2004, police officers searched defendant’s residence and found a loaded firearm. Later that month, the People charged defendant with possession of a firearm by a felon (§ 12021, subd. (a)(1)) and with gang enhancements. The People also alleged defendant had a prior conviction. In July 2004, the People dismissed the complaint. Neither the 2004 complaint nor the dismissal were presented to the court below, and they are not part of the record on appeal. The only information we have about this complaint (and its subsequent dismissal) comes from comments the prosecutor in this case made at a pretrial hearing. She explained that she was working at the United States Attorney’s Office when the complaint “came across [her] desk.” She “worked with [her] state colleagues . . . in having the case dismissed at the state level in favor of federal prosecution, given the fact that the defendant had some particular drug background that [she] was interested in federally.” The People’s written motion to dismiss the initial complaint, if any, is not part of the record, nor is a transcript of the oral proceedings, if any, concerning that dismissal.
On an unknown date, an indictment charging defendant with unspecified crimes was filed in federal court. At some point thereafter, the indictment was dismissed. Neither the federal indictment nor the dismissal were before the court below, nor are they part of the appellate record. As with the initial complaint, the only information in the record about the indictment comes from the prosecutor in this case; she explained at a pretrial hearing that she left the United States Attorney’s Office and returned to the Office of the Orange County District Attorney. Upon her return, she learned “the [federal] case [against defendant] had been dismissed . . . before commencing any trial proceedings.”
On January 26, 2006, the prosecutor filed a felony complaint charging defendant with one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)), possessing ammunition as a prohibited person (§ 12316, subd. (b)(1)), and street terrorism (§ 186.22, subd. (a)). The People also charged defendant with gang enhancements and alleged defendant had prior convictions. Defendant was held to answer the charges and the case was set for trial. Before trial, defendant orally moved to dismiss the case. He argued the refiling of his case in January 2006 violated the “two-dismissal rule” set forth in section 1387. Presumably because defense counsel had not submitted any evidence in support of defendant’s motion, the court located a docket report for the initial complaint to learn about the circumstances surrounding its dismissal. According to the court, “The [dismissal] entry simply says that a copy of a federal warrant was filed, that the defendant has a federal warrant in the system and that the People represent that a federal officer will be picking up the defendant . . . and that count 1, the firearm count, is dismissed on the motion of the People.” The docket report is not part of the appellate record.
The court denied defendant’s motion to dismiss. The case proceeded to trial, the jury convicted defendant, and the court sentenced him to five years in prison. Defendant timely appealed.
DISCUSSION
Defendant argues the court’s denial of his section 1387 motion to dismiss was erroneous. As noted above, section 1387 is “sometimes loosely described as establishing a two-dismissal rule.” (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744; see also Miller v. Superior Court (2002) 101 Cal.App.4th 728, 738-739.) It establishes that “two dismissals pursuant to section 1385, 859b, 861, 871 or 995, bar retrial on felony charges except in limited circumstances.” (People v. Hatch (2000) 22 Cal.4th 260, 270.) As our high court has explained, 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.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018 (Burris).)
But “[n]ot every dismissal qualifies as a dismissal for purposes of section 1387.” (Burris, supra, 34 Cal.4th at p. 1017, fn. 5.) “Whether a third or subsequent prosecution of a felony is barred by an earlier termination depends on the nature and circumstances of the previous dismissals. [Section] 1387 expressly refers to an action terminated by a dismissal for want of prosecution, speedy trial, or in furtherance of justice ([section] 1381 et seq., [section] 1385), a dismissal for failure to provide a speedy or continuous preliminary examination ([section] 859b, [section] 861), a dismissal for lack of proof that a public offense has been committed ([section] 871), and an order setting aside an indictment or information ([section] 995). Where there are successive dismissals on any of these grounds, or combinations of them, the order terminating the second action operates to bar any third or subsequent prosecution on the same charge unless one of the statutory exceptions applies.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial § 423, p. 600.) Section 1387, subdivisions (b) and (c), and section 1387.1 specify exceptions to the two-dismissal rule.
The parties agree the initial complaint and the federal indictment were dismissed. The threshold question, then, is whether the dismissal of the initial complaint is a “qualifying” dismissal under section 1387. The next question is whether the dismissal of the federal indictment is a “qualifying” dismissal under that same statute. Only if the answer to both of these questions is “yes” would section 1387 bar the current (and third) prosecution.
As noted above, the People dismissed the initial complaint on their own motion. One could surmise the dismissal was probably pursuant to section 1385, subdivision (a) and would therefore qualify as “[a]n order terminating an action pursuant to this chapter [section 1381 et seq.].” (§ 1387, subd. (a).) On the other hand, had the court intended to dismiss the initial complaint pursuant to section 1385, subdivision (a), it presumably would have followed that statute’s requirement and stated the reason for the dismissal — “in furtherance of justice” — on the record. (§ 1385, subd. (a); Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 226, fn. 13 [rejecting defendant’s assumption that the court’s dismissal of the information was pursuant to section 1385 where the court stated it was dismissing the information as a duplicative filing and not that the dismissal was in furtherance of justice].) Because the dismissal order was not before the lower court and it is not part of the appellate record, we can only speculate about the basis for the dismissal and cannot determine whether it was a “qualifying” dismissal under section 1387. We are similarly unable to determine whether the dismissal of the federal indictment was a “qualifying” dismissal under section 1387 because neither federal indictment nor the order dismissing that indictment were presented to the trial court and are not part of the record on appeal.
Section 1385, subdivision (a), provides: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”
Because the record is inadequate, we cannot assess defendant’s claim that the court erroneously denied his section 1387 motion to dismiss. We therefore affirm the judgment. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1531-1532, 1534; People v. Garza (2005) 35 Cal.4th 866, 881 [party challenging a judgment or order must “affirmatively show[ ] prejudicial error”]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [appellant must provide adequate record on appeal to demonstrate error; “[f]ailure to do so precludes an adequate review and results in affirmance of the trial court’s determination”]; see also People v. Slocum (1975) 52 Cal.App.3d 867, 879 [“[i]t is well-settled that an appellate court, reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the trial proceedings”].)
One thing is clear from the dearth of information in the record: in the court below, defendant failed to meet his burden of establishing the dismissal of the initial complaint and the dismissal of federal indictment were “qualifying” dismissals under section 1387. Accordingly, the court was justified in denying defendant’s motion to dismiss on that basis alone.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., ACTING P. J., FYBEL, J.