Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Super. Ct. No. 05CF2562
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Luis Guadalupe Ruiz appeals from a judgment of conviction for vehicle burglary and assault with a firearm. As explained post, we affirm.
First, defendant argues the trial court should have dismissed the criminal complaint under Penal Code section 1387, subdivision (a), the two-dismissal rule. (All further statutory references are to the Penal Code, unless otherwise noted.) The trial court properly concluded one of the two dismissals of the criminal action against defendant was either a duplicate filing, which does not implicate section 1387 (People v. Bohlen (1992) 4 Cal.App.4th 400, 403; People v. Elias (1990) 218 Cal.App.3d 1161, 1164), or a matter of excusable neglect, which is an exception to the two-dismissal rule (§ 1387.1).
Second, defendant argues the trial court abused its discretion by sentencing him to prison, rather than committing him to the California Youth Authority (Youth Authority). The trial court did not abuse its discretion under Welfare and Institutions Code section 1732.6, subdivision (a). In any event, Welfare and Institutions Code section 1732.6, subdivision (b) precluded the trial court from committing defendant to the Youth Authority, because he was 16 years old at the time the crimes were committed, he was convicted of assault with a firearm, and the jury found true he violated section 12022.5, subdivision (a).
Statement of Facts and Procedural History
On July 22, 2003, Luis Avila was working as a security guard for First American Title (First American) in Santa Ana. Around 2:00 p.m., another First American employee told Avila a vehicle on the first floor of the First American parking structure was being burglarized. Avila used his radio to call for help from another First American security guard and went into the parking structure.
Avila saw defendant on a bicycle next to a car parked by one of the entrances to the parking structure, and asked what he was doing. Avila then saw another person inside the car, attempting to remove the stereo. That person fled. Avila grabbed defendant as he tried to ride away on the bicycle, and forced him to sit down. As Avila attempted to call the police on his cell phone, defendant tried to flee and the two struggled. During the struggle, Avila was shot. (At trial, defendant testified that he was trying to get rid of the gun, but the gun went off when Avila’s arm hit defendant’s arm.) The bullet entered the left side of Avila’s neck and lodged in the back of his neck. The emergency room doctors were unable to remove the bullet.
Jose Flores testified against defendant in exchange for a more lenient sentence in connection with this crime and other crimes. Flores admitted breaking into a car in the First American parking structure with defendant; Flores testified he was the person Avila saw inside the car, and he ran away when Avila confronted him and defendant. When Flores and defendant met later that afternoon, defendant told Flores he shot the security guard; there was blood on defendant’s clothes. Flores also testified defendant had a gun with him after the burglary. That gun was found in Flores’s apartment, and a .25-caliber cartridge case found at the scene of the shooting matched that gun.
Defendant was charged in an information with: (1) attempted murder (§§ 187, subd. (a), 664, subd. (a) [count 1]); (2) second degree vehicle burglary (§§ 459, 460, subd. (b) [count 2]); and (3) assault with a semiautomatic firearm (§ 245, subd. (b) [count 3]). As to counts 1, 2, and 3, the information alleged defendant personally inflicted great bodily injury on Avila (§ 12022.7, subd. (a)), defendant personally used a firearm in the commission of the crimes (§ 12022.5, subd. (a)), and the crimes were serious felonies (§ 1192.7, subd. (c)(8), (9) & (39)).
A jury convicted defendant of counts 2 and 3, and found true the allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on Avila (§ 12022.7, subd. (a)). At the time of the offense, defendant was 16 years old. Defendant’s motion to be sentenced as a juvenile, pursuant to section 1170.19, subdivision (a)(4), was denied.
The court sentenced defendant to a total term of 13 years: six years for count 3, a consecutive four-year term for violating section 12022.5, subdivision (a), and a consecutive three-year term for violating section 12022.7, subdivision (a). Defendant received 1,481 days’ presentence custody credits.
Discussion
I.
Motion to Dismiss
A second amended information was filed in Orange County Superior Court case No. 03CF2566 (case No. 03CF2566) on June 17, 2005. This information charged defendant with attempted premeditated murder, second degree vehicle burglary, battery, and assault with a semiautomatic firearm.
On August 5, 2005, a new complaint was filed in Orange County Superior Court case No. 05CF2489 (case No. 05CF2489). This complaint also charged defendant with attempted premeditated murder, second degree vehicle burglary, battery, and assault with a semiautomatic firearm.
On August 9, 2005, Deputy District Attorney Aleta Bryant advised the court that case No. 03CF2566 was scheduled for trial on August 11, 2005, but, because there were witness issues, she anticipated the information would be dismissed. Bryant also advised the court the filing of the complaint in case No. 05CF2489 was an inadvertent filing and a clerical error; the complaint had been drafted and signed in order to be filed if case No. 03CF2566 had to be dismissed. The trial court dismissed case No. 05CF2489 without prejudice because it was a duplicate filing. On the record, the trial court made the following statement: “Well, I will say for the record this is not a dismissal under [section] 1385 or 1387.”
On August 11, 2005, case No. 03CF2566 was dismissed upon the request of the district attorney’s office. A third complaint, Orange County Superior Court case No. 05CF2562 (case No. 05CF2562), was filed that same day. That complaint also charged defendant with attempted premeditated murder, second degree vehicle burglary, battery, and assault with a semiautomatic firearm.
Defendant moved to dismiss case No. 05CF2562 under section 1387, subdivision (a), which reads in relevant part, as follows: “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 . . . .” This section is sometimes referred to as the “‘two-dismissal rule.’” (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 739.) “Two dismissals of a felony action bars further prosecution, except in certain specified circumstances.” (Ibid.)
The court conducted a hearing, at which Bryant testified she had asked a secretary to prepare a new complaint and have it ready so it could be filed if case No. 03CF2566 had to be dismissed. Bryant had signed the complaint in case No. 05CF2489 after it had been completed on August 4, 2005, to prevent something “falling through the cracks.” She learned on August 9 that the new complaint had been filed while the existing case was still pending. She had requested defendant’s arraignment in the new case be put over; she did not request dismissal of the new case, because there was still a possibility the original complaint would be dismissed.
The trial court denied defendant’s motion, and stated: “The court feels that [People v.] Elias is valid authority. I have shepardized it just as you have, probably. It is valid authority. It states at the bottom of page 1164 in pertinent part: ‘The purported dismissal of an inadvertent duplicate filing of a criminal complaint does not constitute a termination of the action within the meaning of either sections 1385 or 1387.’ [¶] Now, true, Elias facts are not exactly the same as ours. It was cited again in [People v.] Bohlen. And Bohlen makes the further point, and again Bohlen is not the exact fact situation either. That’s the Long Beach city attorney versus the L.A. D.A., that the argument raised by the defense both in Bohlen and in here, such semantic procedural distinctions would invoke neither the concepts nor concerns regarded repeated criminal prosecutions which Penal Code [section] 1387 is designed to prevent. [¶] Looking at Burris [v. Superior Court], what are the policies behind [section] 1387? Quoting from page 1018 and in pertinent part: ‘will prevent possible abuses by prosecutors who dismiss and reinstate felony prosecutions in order to harass defendants.’ [¶] The statute also reduces the possibility the prosecutors might use the power to dismiss and refile to forum shop. [¶] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges. [¶] . . . [¶] So, the court feels that there’s been no prejudice shown to the defendant. That, yes, a mistake was made, and we don’t applaud mistakes. [¶] . . . [¶] The court feels it is a clerical error. [¶] The goals of [section] 1387 have not been violated. There is no prejudice. There is no sinister motive. It cries out clearly that it’s simply a mistake. [¶] In addition, if the court is held to be wrong, in terms of the rulings under Elias, the court does find that there has been excusable neglect under the definition put forth in Miller versus Superior Court cited by the People’s brief. Quote, [‘]neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.[’] Excusable neglect. [¶] So, the motion is denied.” (Italics added.)
A. Duplicate Filing
Generally, the dismissal of a duplicate complaint does not implicate section 1387. (People v. Bohlen, supra, 4 Cal.App.4th at p. 403; People v. Elias, supra, 218 Cal.App.3d at p. 1164.)
Defendant argues this was not a duplicate filing, because case No. 03CF2566 was an information, while case No. 05CF2489 was a complaint. We see this as a distinction without any legal significance in this case. Whether an action is an information or a complaint does not affect our analysis under section 1387. The important issues are whether the substance of the filings is the same, and whether defendant is being made to answer for the same conduct. The complaint in case No. 05CF2489 was a duplicate of case No. 03CF2566, and was filed before case No. 03CF2566 was dismissed. The dismissal of case No. 05CF2489 was a dismissal of a duplicate filing, and not subject to the two-dismissal rule.
B. Excusable Neglect
Section 1387.1 creates an exception to the two-dismissal rule: “(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 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. [¶] (b) As used in this section, ‘excusable neglect’ includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” We review a trial court’s decision to apply the section 1387.1 exception for an abuse of discretion. (People v. Mason (2006) 140 Cal.App.4th 1190, 1196.)
“In deciding whether counsel’s error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent . . . . [Citations.] In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error. [Citations.] In addition, ‘[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails.’ [Citation.]” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)
The trial court in this case found that there was excusable neglect. Based on the testimony of the deputy district attorney, as summarized ante, substantial evidence supported the court’s finding. The court did not abuse its discretion in determining section 1387.1 applied in this case.
II.
Sentencing Defendant as a Juvenile
Defendant argues the trial court abused its discretion in denying his motion under section 1170.19, subdivision (a)(4). As defendant acknowledges, Welfare and Institutions Code section 1732.6, subdivision (a), prohibits a trial court from sentencing a minor to the Youth Authority “when he or she is convicted in a criminal action for an offense described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 of the Penal Code and is sentenced to . . . a determinate period of years such that the maximum number of years of potential confinement when added to the minor’s age would exceed 25 years. Except as specified in subdivision (b), . . . the court shall retain discretion to sentence the minor to the Department of Corrections or to commit the minor to the Youth Authority.”
Section 1170.19, subdivision (a)(4), states that, notwithstanding any other provision of law, “[s]ubject to the knowing and intelligent consent of both the prosecution and the person being sentenced pursuant to this section, the court may order a juvenile disposition under the juvenile court law, in lieu of a sentence under this code, upon a finding that such an order would serve the best interests of justice, protection of the community, and the person being sentenced.”
This is a case in which section 667.5, subdivision (c)(8), is implicated, since that statute includes: “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 . . . or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.” The jury found true the allegations that defendant violated both sections 12022.7, subdivision (a) and 12022.5, subdivision (a). Additionally, section 1192.7, subdivision (c) is implicated because defendant was convicted of “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm” (§ 1192.7, subd. (c)(8)) and “any felony in which the defendant personally used a dangerous or deadly weapon” (§ 1192.7, subd. (c)(23)).
In People v. Thomas (2005) 35 Cal.4th 635, 638 (Thomas), the defendant pleaded guilty to robbery (§§ 211, 212.5), and admitted to use of a firearm (§ 12022.53). Under the plea agreement, the defendant could not be sentenced to more than 13 years in prison. (Thomas, supra, at p. 638.) The defendant requested commitment to the Youth Authority under section 1170.19. (Thomas, supra, at pp. 638-639.) The trial court denied the motion, finding that Welfare and Institutions Code section 1732.6 prevented the court from committing him to the Youth Authority because (1) the length of the defendant’s sentence, when added to his age, exceeded 25 years; and (2) he had admitted to personally using a firearm in violation of section 12022.53. (Thomas, supra, at pp. 643-644.) The Supreme Court found the restriction on the trial court’s discretion was valid because “[t]hrough Proposition 21 the voters of this state took that sentencing choice from the criminal court” and conditioned section 1170.19 on Welfare and Institutions Code section 1732.6. (Thomas, supra, at p. 644.)
Here, both elements of Welfare and Institutions Code section 1732.6, subdivision (a) are present. Defendant was found guilty of assault with a semiautomatic firearm and the jury made true findings that he personally used the firearm and inflicted great bodily injury, in violation of sections 12022.5, subdivision (a) and 12022.7, subdivision (a). These crimes are included in sections 667.5, subdivision (c), and 1192.7, subdivision (c). Additionally, defendant was 16 years eight months old when the crime was committed. Defendant was sentenced to a total of 13 years. Under the Welfare and Institutions Code section 1732.6, subdivision (a) calculation, defendant’s age at the time the crimes were committed plus his sentence is 29 years eight months. Although defendant received four years and 21 days of presentence custody credits, the total time to be served is still more than 25 years. (People v. Rangel (1999) 70 Cal.App.4th 350, 356; see also Thomas, supra, 35 Cal.4th at p. 643.)
Defendant argues, however, the trial court should have stricken the great bodily injury allegation under section 12022.7, subdivision (a), and imposed the low term (three years) on count 3. The trial court had the discretion to do so. (§ 1385 [discretion to strike enhancements]; People v. Carmony (2004) 33 Cal.4th 367, 375 [same]; Cal. Rules of Court, rule 4.420 [selection of base term of imprisonment].) If the trial court had exercised its discretion in this manner, defendant would have been eligible for, though not guaranteed of, commitment to the Youth Authority.
At the sentencing hearing, defendant asked the trial court to strike the section 12022.5, subdivision (a) enhancement; the court did not have the discretion to do so, however. (§ 12022.5, subd. (c).)
But the trial court did not abuse its discretion in opting not to strike the section 12022.7, subdivision (a) enhancement and not to select the low term rather than the middle term on count 3. Indeed, defendant’s argument is that the court should have exercised its discretion in a different manner. The court balanced mitigating factors such as defendant’s age and lack of a criminal record against aggravating factors such as the facts of the crime, and found neither outweighed the other. The court reasoned “it was a miracle” Avila did not die, and since defendant fired the gun intentionally, “it is not in the best interests of the minor, the protection of the community of a person being sentenced, in this case the defendant, to have a juvenile disposition of this case.” We find no abuse of discretion in the court’s determination that, under the facts and circumstances of this case, defendant was not an appropriate candidate for commitment to the Youth Authority.
Even if the trial court could have committed defendant to the Youth Authority under Welfare and Institutions Code section 1732.6, subdivision (a), Welfare and Institutions Code section 1732.6, subdivision (b) would have precluded it from doing so. That section reads, in relevant part: “No minor shall be committed to the Youth Authority when he or she is convicted in a criminal action for: [¶] . . . [¶] (3) An offense described in subdivision (b) of Section 707, if the minor had attained the age of 16 years of age or older at the time of commission of the offense.” Offenses listed in Welfare and Institutions Code section 707, subdivision (b), include “[a]ssault with a firearm or destructive device” and “[a]ny offense described in Section 12022.5 or 12022.53 of the Penal Code.” (Welf. & Inst. Code, § 707, subd. (b)(13), (17).)
Defendant was convicted of assault with a firearm and the jury found true that he violated section 12022.5, subdivision (a). The offenses were committed when defendant was 16 years eight months old. Welfare and Institutions Code section 1732.6, subdivision (b), removed from the trial court any discretion to commit defendant to the Youth Authority. The court did not err in denying defendant’s motion to be committed to the Youth Authority under section 1170.19.
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.