Felony Dismissal Did Not Bar Misdemeanor Prosecution

Tuesday, July 14, 2009

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Felony Dismissal Did Not Bar Misdemeanor Prosecution—S.C.

By SHERRI M. OKAMOTO, Staff Writer

The prior dismissal of a felony complaint for vehicular manslaughter against a driver whose alleged negligent operation of a motor vehicle resulted in the death of a 9-year-old boy did not bar a subsequent prosecution for a reduced misdemeanor charge, the California Supreme Court ruled yesterday.

Reversing an unpublished decision by the Third District Court of Appeal, the unanimous high court explained that the misdemeanor prosecution of Dale Traylor was not “for the same offense” as that charged in the prior felony complaint for purposes of Penal Code Sec. 1387(a) even though both were based on the same fatal April 2004 collision.

Tyler Larson was riding a motorcycle westbound on Creek View Drive—a narrow, winding private lane near his Grass Valley home—while Traylor was traveling eastbound in his 1993 Chevrolet Blazer.

The motorcycle and SUV collided near the crown of a hill less than one-quarter mile from Larson’s home. According to evidence adduced during the preliminary hearing, a driver would not see a vehicle coming from the other direction until close to the apex of the hill.

Traylor testified he was traveling at 15 miles per hour just before the collision, but skid mark analysis indicated a speed over 20 miles per hour.

After the collision, the Blazer came to rest at a point entirely within the westbound lane and the investigating officer opined this was a result of the vehicle being driven on the wrong side of the road.

A longtime resident of the area testified that an optical illusion creates the impression that a tree is in the center of the road as drivers approach the hill from the west. Due in part to this illusion, the resident claimed that most people driving the road favor the left side of the road when approaching from that direction.

The officer said he detected a faint odor of alcohol on Traylor’s breath and Traylor admitted to having consumed one light beer within an hour of the accident, but Traylor successfully completed the field sobriety tests administered by the officer and a preliminary alcohol screening test measured his blood alcohol content as being around 0.054 percent.

Nevada Superior Court Judge Robert L. Tamietti found that Traylor’s speed was within the reasonable range for prudent drivers and did not raise a strong suspicion of negligence. He also declined to find Traylor’s consumption of alcohol or the Blazer’s inoperable antilock braking system had contributed to the accident.

Tamietti said that the evidence suggesting Traylor had been driving on the wrong side of the road created “a strong suspicion of negligence,” but determined that any such negligence was neither aggravated nor reckless as it was apparently customary for those persons who frequented the private road to drive on the left side of the road when approaching the accident site.

Based upon his findings, Tamietti opined that there was insufficient evidence to charge Traylor with a felony charge of vehicular manslaughter and ordered the prosecutor to file an amended complaint charging Traylor with the misdemeanor offense instead. When the prosecution failed to do so, the felony complaint was dismissed.

The prosecution later consulted with the California Highway Patrol Multidisciplinary Accident Investigation Team before determining that the case was most appropriately prosecuted as a misdemeanor.

In May 2005, the prosecutors charged Traylor with misdemeanor negligent vehicular homicide. He moved to dismiss, arguing that the prior dismissal of the felony complaint based on the same conduct barred further prosecution of that conduct as a misdemeanor. Tamietti agreed and dismissed the complaint.

The Superior Court Appellate Division later affirmed the order of dismissal, as did the Third District.

Writing for the California Supreme Court, Justice Marvin R. Baxter explained that Sec. 1387(a) only prohibits successive prosecutions where the identical criminal act underlies each of the prosecutions and citing Burris v. Superior Court (2005) 34 Cal.4th 1012—which held that two crimes are the same offense for purposes of Sec. 1387(a) if they share the same elements—Baxter reasoned that the prosecution of Traylor for a lesser included offense following the dismissal of the felony complaint was not a prosecution for the same offense.

As the dismissed complaint charged a grossly negligent act or omission causing a traffic death and the offense charged in the latter complaint did not require proof of an act or omission of gross negligence, Baxter concluded that Burris’ “same elements test” was not satisfied.

He further noted that the “central aim” of Sec. 1387(a) was to prevent prosecutorial forum shopping, but that the statute “was not intended to penalize the People when, following a magistrate’s dismissal of a first felony complaint on the grounds the evidence supports only a lesser included misdemeanor, they elect to refile that lesser charge rather than exercise their undoubted statutory right to refile the felony.”

Baxter emphasized that the dismissal of a prior felony charge does not imply an absence of probable cause to support conviction of a lesser misdemeanor offense and that Sec. 1387(a) “should not operate to leave the People with a Hobson’s choice between once again overcharging the same felony, thereby risking a justified second and final dismissal, or abandoning all effort to prosecute the offender as a misdemeanant for a lesser crime the evidence does support.”

He therefore concluded the filing and dismissal a felony complaint, followed by the filing of a lesser misdemeanor charge lacking elements essential to the felony, will not constitute successive filings “for the same offense” barred by Sec. 1387(a).

Nevada County Deputy District Attorney David M. Walters, Los Angeles Deputy District Attorney Tracey W. Lopez and Nevada Deputy Public Defender Daniel M. Geffner argued the case before the Supreme Court.

The offices of the Los Angeles District Attorney and Public Defender joined as amicus curiae on behalf of the state and the defendant, respectively.

The case is People v. Traylor, 09 S.O.S. 4232.