Can a charge be refiled a third time under section 1387.1 of the California Criminal Code?

The idea that a charge may be refiled a third time even though both prior dismissals were deliberately made for tactical reasons rather than as a result of excusable neglect cannot be reconciled with the plain language of section 1387.1. In the words of the statute, a third refiling of a previously dismissed charge is permissible only where either of the prior dismissals of each dismissed charge "were due solely to excusable neglect." ( 1387.1, subd. (a), italics added.) The majority concedes, as it must, that for purposes of section 1387.1, "excusable neglect" must be separately considered as to each of multiple counts sought to be refiled. (See Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1118, 206 Cal.Rptr. 242.)

[12 Cal.App.4th 1169] The majority is unwilling to conclude that section 1387.1 means what it says because

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