Necochea v. Superior Court

In Necochea v. Superior Court (1972) 23 Cal. App. 3d 1012, the Court held that dismissal of a complaint alleging misdemeanor forgery and utterance violations did not bar a new complaint alleging the offenses as felonies. Necochea did not quote or parse the language of section 1387. But it appears that in Necochea, just as in Romero, the two courts necessarily read their states' respective dismissal statutes to mean that "it" referred to subsequently filed charges. Applying that interpretation to section 1387, the statute reads: "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 the subsequently filed charge is a misdemeanor . . . ." As Necochea put it, "the dismissal of a misdemeanor proceeding cannot be followed by yet another misdemeanor complaint and when such a dismissal is entered . . . the offender either goes free or to a preliminary hearing upon a felony complaint." ( People v. Necochea, supra, 23 Cal. App. 3d at p. 1016.)