2009 California Penal Code - Section 1381-1388 :: Chapter 8. Dismissal Of The Action For Want Of Prosecution Or Otherwise

PENAL CODE
SECTION 1381-1388

1381.  Whenever a defendant has been convicted, in any court of this
state, of the commission of a felony or misdemeanor and has been
sentenced to and has entered upon a term of imprisonment in a state
prison or has been sentenced to and has entered upon a term of
imprisonment in a county jail for a period of more than 90 days or
has been committed to and placed in a county jail for more than 90
days as a condition of probation or has been committed to and placed
in an institution subject to the jurisdiction of the Department of
the Youth Authority or whenever any person has been committed to the
custody of the Director of Corrections pursuant to Chapter 1
(commencing with Section 3000) of Division 3 of the Welfare and
Institutions Code and has entered upon his or her term of commitment,
and at the time of the entry upon the term of imprisonment or
commitment there is pending, in any court of this state, any other
indictment, information, complaint, or any criminal proceeding
wherein the defendant remains to be sentenced, the district attorney
of the county in which the matters are pending shall bring the
defendant to trial or for sentencing within 90 days after the person
shall have delivered to said district attorney written notice of the
place of his or her imprisonment or commitment and his or her desire
to be brought to trial or for sentencing unless a continuance beyond
the 90 days is requested or consented to by the person, in open
court, and the request or consent entered upon the minutes of the
court in which event the 90-day period shall commence to run anew
from the date to which the consent or request continued the trial or
sentencing. In the event that the defendant is not brought to trial
or for sentencing within the 90 days the court in which the charge or
sentencing is pending shall, on motion or suggestion of the district
attorney, or of the defendant or person confined in the county jail
or committed to the custody of the Director of Corrections or his or
her counsel, or of the Department of Corrections, or of the
Department of the Youth Authority, or on its own motion, dismiss the
action. If a charge is filed against a person during the time the
person is serving a sentence in any state prison or county jail of
this state or while detained by the Director of Corrections pursuant
to Chapter 1 (commencing with Section 3000) of Division 3 of the
Welfare and Institutions Code or while detained in any institution
subject to the jurisdiction of the Department of the Youth Authority
it is hereby made mandatory upon the district attorney of the county
in which the charge is filed to bring it to trial within 90 days
after the person shall have delivered to said district attorney
written notice of the place of his or her imprisonment or commitment
and his or her desire to be brought to trial upon the charge, unless
a continuance is requested or consented to by the person, in open
court, and the request or consent entered upon the minutes of the
court, in which event the 90-day period shall commence to run anew
from the date to which the request or consent continued the trial. In
the event the action is not brought to trial within the 90 days the
court in which the action is pending shall, on motion or suggestion
of the district attorney, or of the defendant or person committed to
the custody of the Director of Corrections or to a county jail or his
or her counsel, or of the Department of Corrections, or of the
Department of the Youth Authority, or on its own motion, dismiss the
charge. The sheriff, custodian, or jailer shall endorse upon the
written notice of the defendant's desire to be brought to trial or
for sentencing the cause of commitment, the date of commitment, and
the date of release.

1381.5.  Whenever a defendant has been convicted of a crime and has
entered upon a term of imprisonment therefor in a federal
correctional institution located in this state, and at the time of
entry upon such term of imprisonment or at any time during such term
of imprisonment there is pending in any court of this state any
criminal indictment, information, complaint, or any criminal
proceeding wherein the defendant remains to be sentenced the district
attorney of the county in which such matters are pending, upon
receiving from such defendant a request that he be brought to trial
or for sentencing, shall promptly inquire of the warden or other head
of the federal correctional institution in which such defendant is
confined whether and when such defendant can be released for trial or
for sentencing. If an assent from authorized federal authorities for
release of the defendant for trial or sentencing is received by the
district attorney he shall bring him to trial or sentencing within 90
days after receipt of such assent, unless the federal authorities
specify a date of release after 90 days, in which event the district
attorney shall bring the prisoner to trial or sentencing at such
specified time, or unless the defendant requests, in open court, and
receives, or, in open court, consents to, a continuance, in which
event he may be brought to trial or sentencing within 90 days from
such request or consent.
   If a defendant is not brought to trial or for sentencing as
provided by this section, the court in which the action is pending
shall, on motion or suggestion of the district attorney, or
representative of the United States, or the defendant or his counsel,
dismiss the action.

1382.  (a) The court, unless good cause to the contrary is shown,
shall order the action to be dismissed in the following cases:
   (1) When a person has been held to answer for a public offense and
an information is not filed against that person within 15 days.
   (2) In a felony case, when a defendant is not brought to trial
within 60 days of the defendant's arraignment on an indictment or
information, or reinstatement of criminal proceedings pursuant to
Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or,
in case the cause is to be tried again following a mistrial, an order
granting a new trial from which an appeal is not taken, or an appeal
from the superior court, within 60 days after the mistrial has been
declared, after entry of the order granting the new trial, or after
the filing of the remittitur in the trial court, or after the
issuance of a writ or order which, in effect, grants a new trial,
within 60 days after notice of the writ or order is filed in the
trial court and served upon the prosecuting attorney, or within 90
days after notice of the writ or order is filed in the trial court
and served upon the prosecuting attorney in any case where the
district attorney chooses to resubmit the case for a preliminary
examination after an appeal or the issuance of a writ reversing a
judgment of conviction upon a plea of guilty prior to a preliminary
hearing. However, an action shall not be dismissed under this
paragraph if either of the following circumstances exists:
   (A) The defendant enters a general waiver of the 60-day trial
requirement. A general waiver of the 60-day trial requirement
entitles the superior court to set or continue a trial date without
the sanction of dismissal should the case fail to proceed on the date
set for trial. If the defendant, after proper notice to all parties,
later withdraws, in open court, his or her waiver in the superior
court, the defendant shall be brought to trial within 60 days of the
date of that withdrawal. Upon the withdrawal of a general time waiver
in open court, a trial date shall be set and all parties shall be
properly notified of that date. If a general time waiver is not
expressly entered, subparagraph (B) shall apply.
   (B) The defendant requests or consents to the setting of a trial
date beyond the 60-day period. In the absence of an express general
time waiver from the defendant, or upon the withdrawal of a general
time waiver, the court shall set a trial date. Whenever a case is set
for trial beyond the 60-day period by request or consent, expressed
or implied, of the defendant without a general waiver, the defendant
shall be brought to trial on the date set for trial or within 10 days
thereafter.
   Whenever a case is set for trial after a defendant enters either a
general waiver as to the 60-day trial requirement or requests or
consents, expressed or implied, to the setting of a trial date beyond
the 60-day period pursuant to this paragraph, the court may not
grant a motion of the defendant to vacate the date set for trial and
to set an earlier trial date unless all parties are properly noticed
and the court finds good cause for granting that motion.
   (3) Regardless of when the complaint is filed, when a defendant in
a misdemeanor or infraction case is not brought to trial within 30
days after he or she is arraigned or enters his or her plea,
whichever occurs later, if the defendant is in custody at the time of
arraignment or plea, whichever occurs later, or in all other cases,
within 45 days after the defendant's arraignment or entry of the
plea, whichever occurs later, or in case the cause is to be tried
again following a mistrial, an order granting a new trial from which
no appeal is taken, or an appeal from a judgment in a misdemeanor or
infraction case, within 30 days after the mistrial has been declared,
after entry of the order granting the new trial, or after the
remittitur is filed in the trial court, or within 30 days after the
date of the reinstatement of criminal proceedings pursuant to Chapter
6 (commencing with Section 1367). However, an action shall not be
dismissed under this subdivision if any of the following
circumstances exists:
   (A) The defendant enters a general waiver of the 30-day or 45-day
trial requirement. A general waiver of the 30-day or 45-day trial
requirement entitles the court to set or continue a trial date
without the sanction of dismissal should the case fail to proceed on
the date set for trial. If the defendant, after proper notice to all
parties, later withdraws, in open court, his or her waiver in the
superior court, the defendant shall be brought to trial within 30
days of the date of that withdrawal. Upon the withdrawal of a general
time waiver in open court, a trial date shall be set and all parties
shall be properly notified of that date. If a general time waiver is
not expressly entered, subparagraph (B) shall apply.
   (B) The defendant requests or consents to the setting of a trial
date beyond the 30-day or 45-day period. In the absence of an express
general time waiver from the defendant, or upon the withdrawal of a
general time waiver the court shall set a trial date. Whenever a case
is set for trial beyond the 30-day or 45-day period by request or
consent, expressed or implied, of the defendant without a general
waiver, the defendant shall be brought to trial on the date set for
trial or within 10 days thereafter.
   (C) The defendant in a misdemeanor case has been ordered to appear
on a case set for hearing prior to trial, but the defendant fails to
appear on that date and a bench warrant is issued, or the case is
not tried on the date set for trial because of the defendant's
neglect or failure to appear, in which case the defendant shall be
deemed to have been arraigned within the meaning of this subdivision
on the date of his or her subsequent arraignment on a bench warrant
or his or her submission to the court.
   (b) Whenever a defendant has been ordered to appear in superior
court on a felony case set for trial or set for a hearing prior to
trial after being held to answer, if the defendant fails to appear on
that date and a bench warrant is issued, the defendant shall be
brought to trial within 60 days after the defendant next appears in
the superior court unless a trial date previously had been set which
is beyond that 60-day period.
   (c) If the defendant is not represented by counsel, the defendant
shall not be deemed under this section to have consented to the date
for the defendant's trial unless the court has explained to the
defendant his or her rights under this section and the effect of his
or her consent.

1383.  If the defendant is not charged or tried, as provided in
Section 1382, and sufficient reason therefor is shown, the court may
order the action to be continued from time to time, and in the
meantime may discharge the defendant from custody on his or her own
undertaking of bail for his or her appearance to answer the charge at
the time to which the action is continued.

1384.  If the judge or magistrate directs the action to be
dismissed, the defendant must, if in custody, be discharged
therefrom; or if admitted to bail, his bail is exonerated, or money
deposited instead of bail must be refunded to him or to the person or
persons found by the court to have deposited said money on behalf of
said defendant.

1385.  (a) 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.
   (b) This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667.
   (c) (1) If the court has the authority pursuant to subdivision (a)
to strike or dismiss an enhancement, the court may instead strike
the additional punishment for that enhancement in the furtherance of
justice in compliance with subdivision (a).
   (2) This subdivision does not authorize the court to strike the
additional punishment for any enhancement that cannot be stricken or
dismissed pursuant to subdivision (a).

1385.1.  Notwithstanding Section 1385 or any other provision of law,
a judge shall not strike or dismiss any special circumstance which
is admitted by a plea of guilty or nolo contendere or is found by a
jury or court as provided in Sections 190.1 to 190.5, inclusive.

1386.  The entry of a nolle prosequi is abolished, and neither the
Attorney General nor the district attorney can discontinue or abandon
a prosecution for a public offense, except as provided in Section
1385.

1387.  (a) 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,
except in those felony cases, or those cases where a misdemeanor is
charged with a felony, where subsequent to the dismissal of the
felony or misdemeanor the judge or magistrate finds any of the
following:
   (1) That substantial new evidence has been discovered by the
prosecution which would not have been known through the exercise of
due diligence at, or prior to, the time of termination of the action.
   (2) That the termination of the action was the result of the
direct intimidation of a material witness, as shown by a
preponderance of the evidence.
   (3) That the termination of the action was the result of the
failure to appear by the complaining witness, who had been personally
subpoenaed in a prosecution arising under subdivision (e) of Section
243 or Section 262, 273.5, or 273.6. This paragraph shall apply only
within six months of the original dismissal of the action, and may
be invoked only once in each action. Nothing in this section shall
preclude a defendant from being eligible for diversion.
   (b) Notwithstanding subdivision (a), an order terminating an
action pursuant to this chapter is not a bar to another prosecution
for the same offense if it is a misdemeanor charging an offense based
on an act of domestic violence, as defined in subdivisions (a) and
(b) of Section 13700, and the termination of the action was the
result of the failure to appear by the complaining witness, who had
been personally subpoenaed. This subdivision shall apply only within
six months of the original dismissal of the action, and may be
invoked only once in each action. Nothing in this subdivision shall
preclude a defendant from being eligible for diversion.
   (c) An order terminating an action is not a bar to prosecution if
a complaint is dismissed before the commencement of a preliminary
hearing in favor of an indictment filed pursuant to Section 944 and
the indictment is based upon the same subject matter as charged in
the dismissed complaint, information, or indictment.
   However, if the previous termination was pursuant to Section 859b,
861, 871, or 995, the subsequent order terminating an action is not
a bar to prosecution if:
   (1) Good cause is shown why the preliminary examination was not
held within 60 days from the date of arraignment or plea.
   (2) The motion pursuant to Section 995 was granted because of any
of the following reasons:
   (A) Present insanity of the defendant.
   (B) A lack of counsel after the defendant elected to represent
himself or herself rather than being represented by appointed
counsel.
   (C) Ineffective assistance of counsel.
   (D) Conflict of interest of defense counsel.
   (E) Violation of time deadlines based upon unavailability of
defense counsel.
   (F) Defendant's motion to withdraw a waiver of the preliminary
examination.
   (3) The motion pursuant to Section 995 was granted after dismissal
by the magistrate of the action pursuant to Section 871 and was
recharged pursuant to Section 739.

1387.1.  (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.

1387.2.  Upon the express consent of both the people and the
defendant, in lieu of issuing an order terminating an action the
court may proceed on the existing accusatory pleading. For the
purposes of Section 1387, the action shall be deemed as having been
previously terminated. The defendant shall be rearraigned on the
accusatory pleading and a new time period pursuant to Section 859b or
1382 shall commence.

1388.  (a) In any case where an order for the dismissal of a felony
action is made, as provided in this chapter, and where the defendant
had been released on his own recognizance for that action, if the
prosecutor files another accusatory pleading against the same
defendant for the same offense, unless the defendant is present in
court at the time of refiling, the district attorney shall send a
letter to the defendant at his last known place of residence, and
shall send a copy to the attorney of record, stating that the case
has been refiled, and setting forth the date, time and place for
rearraignment.
   (b) If the defendant fails to appear for arraignment as stated, or
at such time, date, and place as has been subsequently agreed to by
defendant's counsel and the district attorney, then the court shall
issue and have delivered for execution a warrant for his arrest
within 20 days after his failure to appear.
   (c) If the defendant was released on his own recognizance on the
original charge, he shall, if he appears as provided in subdivisions
(a) and (b), be released on his own recognizance on the refiled
charge unless it is shown that changed conditions require a different
disposition, in which case bail shall be set at the discretion of
the judge.

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