Tooby's California Post-Conviction Relief for Immigrants

A charge once dismissed under Penal Code § 1385 may not be refiled as a misdemeanor alone.[495]  There is an exception where the offense is refiled as a misdemeanaor within six months of the dismissal, is based on an act of domestic violence, and the dismissal was based on the complaining witness's failure to appear after being personally subpoenaed.[496]

            Regardless whether the offense was originally charged as a misdemeanor or as a felony, if the offense is once dismissed under Penal Code § 1385, it may be refiled as a felony or a misdemeanor charged together with a felony.[497]  If it is twice so dismissed, it may not be refiled as a felony or as a misdemeanor together with a felony unless, after the dismissal, a judge or magistrate finds that the prosecution discovered substantial new evidence that would not have been known through the exercise of due diligence at or before the time the dismissal was granted, the case was terminated as a result of intimidation of a material witness, or the action involved a listed domestic violence offense and was based terminated based on the complaining witness's failure to appear after being personally subpoenaed.[498]

            The statute of limitations may apply, as usual, to prevent the prosecution from filing any new charge(s) after a dismissal under Penal Code § 1385.  See § 12.10, infra.

[495] Penal Code § 1387; Burris v. Superior Court (2005) 34 Cal.4th 1012, 22 Cal.Rptr. 876. 

[496] Penal Code § 1387(b); see Penal Code § 13700 (definition of domestic violence).

[497] Penal Code § 1387; Burris v. Superior Court (2005) 34 Cal.4th 1012, 22 Cal.Rptr. 876.

[498] Penal Code § 1387(b); see Penal Code § 13700 (definition of domestic violence).  See generally California Criminal Defense Practice § 51.23[2] (Erwin, Millman, Monroe, Sevilla, & Tarlow, eds. 2009).