I respectfully dissent. In my view, the majority opinion radically and, in derogation of the Legislature, changes the law with respect to enhancements. Without admitting so, the majority have embroidered the statutory scheme to provide a procedural protection that the Legislature did not intend. The two-dismissal rule which expressly applies to “actions” or “offenses” now applies to 1
“This court . . . [should be] loathe to construe a statute which has the effect of ‘adding’ . . . language. [Citation.]” (People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030,1034 [56 Cal.Rptr.2d 21]; see also Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1697-1700 [8 Cal.Rptr.2d 614].) Before today, Penal Code section 1387, subdivision (a), the two-dismissal rule, provided, in pertinent part: “An order terminating an action ... 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 . . . .” Under the majority analysis, the Legislature’s express reference to “action” and “offense” is denigrated and the word “enhancement” is now added to Penal Code section 1387, subdivision (a).
There is no question that the two-dismissal rule extends to death penalty cases. In Ramos v. Superior Court (1982) 32 Cal.3d 26 [184 Cal.Rptr. 622, *811648 P.2d 589], our Supreme Court held that a “special circumstances” allegation, because of its dire consequence, comes within the two-dismissal rule. Death penalty cases are sui generis because the punishment therefor is like no other. (People v. Garcia (1984) 36 Cal.3d 539, 552 [205 Cal.Rptr. 265, 684 P.2d 826].)
True enhancements, like the instant gang enhancement, and others, may significantly impact the length of sentence. (See People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 760 [191 Cal.Rptr. 1, 661 P.2d 1081]; People v. Winslow (1995) 40 Cal.App.4th 680, 783 [46 Cal.Rptr.2d 901].) These enhancements are not, however, sui generis.
The philosophical underpinnings of the two-dismissal rule is to prevent harassment of the defendant and forum shopping by the People. (See Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [177 Cal.Rptr. 325, 634 P.2d 352].) These considerations are not here presented. The substantive offense was at all times progressing through the criminal justice system. There were no multiple halings of the defendant into court. The record does not show that the People had a marginal case with respect to the enhancement and were forum shopping for a judge who would sustain it.
Radical change to the law of criminal procedure is best addressed by the Legislature. If the two-dismissal rule is to apply to a true enhancement, in my view the Legislature should so declare, not the Court of Appeal.
A petition for a rehearing was denied December 24, 1997. Yegan, J., was of the opinion that the petition should be granted. Respondent’s petition for review by the Supreme Court was denied March 11, 1998.
A strong case can be made for the proposition that there were not two dismissals of the gang enhancement. The first “dismissal” was actually the granting of a Penal Code section 995 motion on the substantive change. The superior court judge never reached the merits of the gang enhancement.