Refiling Murder Charges In California

Section 1387.1 permits a third filing of charges of murder and certain other violent offenses "where either of the prior dismissals under Section 1387 were due solely to excusable neglect." ( 1387.1, subd. (a), 667.5.) The statute broadly defines excusable neglect by stating it "includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses." ( 1387.1, subd. (b).) Section 1387.1, subdivision (a), adds that "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." "Excusable neglect" is a legal term of art common in the law. Appellate courts have held that the phrase is to be given the same construction in criminal cases as it has previously been given in civil cases. (Tapp v. Superior Court (1989) 216 Cal. App. 3d 1030, 1035-1036 265 Cal. Rptr. 267.) "Simply expressed, 'excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.' " (People v. Woods, supra, 12 Cal. App. 4th at p. 1149.) The application of section 1387.1 is generally a discretionary determination for the judge which should be afforded great weight unless clear abuse of discretion is demonstrated. ( People v. Woods, supra, 12 Cal. App. 4th at p. 1149.) Courts recognize, however, that remedial statutes, such as section 1387.1, require that a lower court's decision denying relief be more carefully scrutinized than an order granting relief. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 276 228 Cal. Rptr. 190, 721 P.2d 71.) Thus, "unless inexcusable neglect is clear, the policy favoring trial on the merits prevails." (Woods, supra, at p. 1149, italics added.)