P v. Juarez (Cal. Supreme Ct.) The California Supreme Court Provides (slight) Guidance on What Is Meant by "Same Offense" in PC 1387

November 2011, the state filed a complaint charging Mr. Juarez with two counts of attempted murder.  July 2011, upon the state's motion, the trial court dismissed the case.  Later the same day, the state refiled the same charges against Juarez.  December 2012, this case was dismissed.  The state then filed a complaint charging Juarez with two counts of conspiracy to commit murder.

Juarez moved to dismiss the conspiracy complaint under PC 1387, which prohibits subsequent filings for the "same offense" after two dismissals (subject to exceptions inapplicable here).  A magistrate denied Juarez's motion to dismiss leading him to petition for a writ of habeas corpus in the Superior Court.  The Superior Court judge granted the petition and dismissed the conspiracy case.  The judge did not accept the state's argument that because conspiracy to commit murder was not the "same offense" or even a lesser included offense of the original attempted murder charges, PC 1387 did not bar subsequent filings, positing:

Where is the limit in regard to your theory of refiling? If we take assaultive conduct like attempted murder, you could have two dismissals for an assault with a deadly weapon, and then you could have two dismissals for an attempted vol[untary manslaughter], and then you could have two dismissals for assault by force likely to produce great bodily injury, and then you could have two dismissals for a [section] 243[, subdivision (d)] battery causing great bodily injury. Where would it end?

The state appealed and the Court of Appeal reversed, holding that while it was uneasy with the result, it was obliged to follow the California Supreme Court's holding in P v. Traylor, 46 Cal. 4th 1205.  The California Supreme Court granted review.

And it reverses.  

Anyone looking for a clear holding of what is meant by "same offense" in PC 1387 will be disappointed.  Rather the opinion tells lower courts to evaluate the phrase "same offense" using a rubric comprised of a case-by-case consideration of the policy goals of PC 1387, namely avoiding prosecutorial harassment, dissuading forum shopping, and preventing the evasion of a defendant's speedy trial rights.

Applying the rubric to Juarez, the opinion decides that the accusatory pleading test is tantamount to the policy goals above.  Because in the accusatory pleading in the conspiracy case, one of the enumerated "acts in furtherance" is shooting and missing the targets, the conspiracy pleading is a necessary included offense of the dismissed attempted murder charges.

As to P v. Traylor, the opinion limits that holding to the facts considered therein, specifically the filing of a misdemeanor lesser after a dismissal following a preliminary examination on a greater felony.