Opinion
E053346
06-13-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LAWRENCE GIULIANO, Defendant and Appellant.
Valerie Ross for Defendant and Appellant. Kamala D. Harris, Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI1001950)
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Reversed.
Valerie Ross for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Christopher Lawrence Giuliano appeals from the denial of his motion to dismiss a false imprisonment (Pen. Code, § 236) charge. The charge had been brought and dismissed three times prior to the instant charge being filed. He was eventually convicted of the charge. The People concede that the charge should have been barred under section 1387, and that the conviction should be reversed. We agree.
All further statutory references will be to the Penal Code, unless otherwise noted.
PROCEDURAL BACKGROUND
On November 17, 2009, defendant was charged in case No. MVI904316 with misdemeanor battery on a cohabitant (§ 243, subd. (e)(1), count 1) and misdemeanor false imprisonment (§ 236, count 2). Both of these counts concerned the victim G.B. and arose out of an incident that occurred on November 4, 2009.
On January 28, 2010, the trial court granted the People's motion to dismiss misdemeanor case No. MVI904316, and the case was refiled as case No. FVI1000104. In the complaint in case No. FVI1000104, the two counts previously charged were switched: the false imprisonment charge (§ 236) was now charged as a felony in count 1, with the added words "by violence." The battery charge was now count 2 and remained a misdemeanor.
On February 10, 2010, a preliminary hearing was held, and the magistrate granted the defense motion to reduce the false imprisonment charge in count 1 to a misdemeanor, pursuant to section 17, subdivision (b).
The magistrate's granting of the defense motion under section 17, subdivision (b), was procedurally improper, since false imprisonment is not a "wobbler" offense. (People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 330 (Feinstein).) If it is committed by violence, menace, fraud or deceit, it is a straight felony, and the court has no power to reduce it to a misdemeanor. (Ibid.) The prosecutor conceded below that the ruling at the preliminary hearing operated as a dismissal of the felony charge. (Id. at pp. 330-331.)
On March 12, 2010, the People moved to consolidate case No. FVI1000104 with another case, case No. FVI902531, in which defendant was charged with four counts against a different victim, P.P. The cases were consolidated under case No. FVI902531. A second amended information in case No. FVI902531 was filed, reflecting the consolidation. Counts 1 through 4 were the charges concerning P.P. Counts 5 and 6 were the charges concerning G.B. Count 5 was the false imprisonment charge, charged again as a misdemeanor, and count 6 was the battery charge, also a misdemeanor.
On August 26, 2010, on the People's motion, the second amended information in case No. FVI902531 was dismissed pursuant to section 1385.
On that same day, the complaint in the instant case, case No. FVI1001950, was filed. The only difference in the charges between the instant case and case No. FVI902531 was that the false imprisonment was charged as a felony in count 5, once again. All other counts remained the same. Defendant pled not guilty to all counts.
Defendant moved to dismiss the false imprisonment and battery charges, pursuant to section 1387. The People agreed that count 6 (battery) was barred and dismissed that count. The court denied the motion to dismiss the felony false imprisonment charge, finding that felony false imprisonment was not the same offense as misdemeanor false imprisonment, and that the felony charge was only dismissed once. Defendant renewed the motion repeatedly, and it was denied each time.
A preliminary hearing was held on October 7, 2010, and defendant was held to answer on the felony false imprisonment charge, as well as the charges regarding P.P. An information was filed charging defendant with felony false imprisonment regarding G.B. (§ 236, count 5), along with four other charges regarding P.P. (counts 1-4).
Count 3 was subsequently dismissed.
During trial, the defense requested that the jury be given an instruction that misdemeanor false imprisonment was a lesser offense to the felony false imprisonment charge. The jury found defendant not guilty on all charges related to P.P., and found him guilty of the lesser included offense of misdemeanor false imprisonment on count 5. The court found that defendant had served his time and released him.
ANALYSIS
The Trial Court Erred in Failing to Dismiss the False Imprisonment Charge in Count 5,
Pursuant to Section 1387
Defendant argues that the court erred in denying his motion to dismiss count 5. He contends that, under section 1387, the two dismissals of the misdemeanor false imprisonment charge barred the instant prosecution of the felony false imprisonment charge, since the felony charge included the lesser charge of misdemeanor false imprisonment. The People correctly concede.
Section 1387, subdivision (a), provides in relevant 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 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 . . . ." "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 (Burris).)
Pursuant to section 1387, "[m]isdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge. Felony prosecutions, in contrast, are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge." (Burris, supra, 34 Cal.4th at p. 1019.)
The court in Dunn v. Superior Court (1984) 159 Cal.App.3d 1110 (Dunn), held that two dismissals of a lesser included offense bar the subsequent filing of the greater offense. Thus, when the prosecution had twice dismissed kidnapping charges, a third filing for kidnapping for the purpose of committing robbery was barred by section 1387 "on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time." (Dunn, at p. 1118.)
The Supreme Court in People v. Traylor (2009) 46 Cal.4th 1205 (Traylor) approved of the reasoning in Dunn, and explained it as follows: "Certainly, when one or more dismissals are followed by a new charge of the identical offense—the situation we faced in Burris (see discussion, post)—or a greater inclusive one, the later charge comprises all the 'same elements' of the earlier—and perhaps additional ones as well. In the first case, one or more charges of A have been followed by yet another charge of A, and in the second, one or more charges of A have been followed by a new charge of A plus B, which includes A. [¶] As Dunn suggested, when one or more dismissed charges of a lesser offense are followed by a new charge of the same or a greater inclusive offense, the subsequent charge includes all 'the same elements' as the earlier ones, and perhaps additional elements as well. [Citation.] Thus, when one or more dismissed charges of an offense comprised of element A are followed by a new charge of the same offense, or of a greater one comprising both elements A and B, all the charges have included the common element A. [¶] Moreover, a conclusion that section 1387[, subdivision] (a) does strictly limit refilings under the circumstances at issue in Dunn comports with the fundamental statutory purpose. As we have indicated above, a prime objective of the statute is to limit prosecutorial forum shopping on evidence that prior magistrates have already found insufficient. That precise danger is presented if the People, after sustaining one or more dismissals of charge A for lack of evidence, can continue to refile the identical charge A, or go 'up the ladder' to even more serious charges that include A, until they find a magistrate willing to hold the defendant to answer." (Traylor, at pp. 1217-1218.)
In the instant case, the misdemeanor false imprisonment charge was a lesser included offense of the felony false imprisonment charge in count 5, as the People concede. Both offenses included the elements that: 1) the defendant intentionally and unlawfully restrained, confined, or detained someone; and 2) the defendant made the other person stay or go somewhere against that person's will. The only difference was that the felony false imprisonment charge included the requirement that the defendant restrained someone by violence or menace. Thus, when the prosecution had twice dismissed misdemeanor charges, a third filing for felony false imprisonment was barred by section 1387 "on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time." (Dunn, supra, 159 Cal.App.3d at p. 1118.) Since the felony false imprisonment charge was barred by section 1387, defendant's ultimate conviction on count 5 must be reversed.
We note that the prosecution of count 5 was also procedurally barred because the magistrate had previously ordered the false imprisonment charge reduced from a felony to a misdemeanor. The record indicates that the magistrate ruled that a felony had not been committed, and it struck the "by violence" portion of the felony charge. Although the magistrate lacked the power to reduce the charge (see fn. 3), the magistrate's ruling operated as a dismissal of the felony charge. (Feinstein, supra, 29 Cal.App.4th at p. 331.) The effect of the magistrate's order was to preclude the People from trying defendant on the felony false imprisonment charge because the evidence of felony false imprisonment was insufficient. (See Id. at pp. 331-332.)
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DISPOSITION
The conviction for misdemeanor false imprisonment (§ 236) in count 5 is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.