PEOPLE v. McKINNEY

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Gregory McKINNEY, Defendant and Appellant.

No. B088665.

Decided: December 19, 1996

Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Marc J. Nolan, Deputy Attorney General, for Plaintiff and Respondent.

Appellant, Gregory McKinney, appeals from a judgment of conviction for second degree robbery.   His primary contention on appeal is prosecution of the robbery charge was barred by Penal Code section 1387 because the charge was twice dismissed, once by the superior court in case number SA013918, and the second time by the magistrate in the present case, case number SA015919.   He also argues insufficiency of the evidence and instructional error require reversal of the robbery conviction.

We agree the robbery count was twice dismissed within the meaning of Penal Code section 1387 1 which barred further prosecution of the charge.   Accordingly, we reverse the robbery conviction on that ground and do not reach appellant's other contentions.

FACTS AND PROCEEDINGS BELOW

On May 7, 1993, Laura Beck went to the Mervyn's department store in the Westchester area of Los Angeles.   She parked her car in the parking lot at the rear of the store.   She placed her infant daughter in a baby “sling” attached to her body and hung her purse over her shoulder.   She started walking toward the store when someone came up from behind her, grabbed her purse and pushed her to the ground.   She took a few moments to check on her child.   She then turned around and saw a man running away.   The man was about ten parking spaces, or roughly 80 feet, away by the time Ms. Beck saw him.

Ms. Beck described the man as over six feet tall and weighing approximately 185 pounds.   He was African–American with a medium build, a medium complexion and short hair.   By the way he ran Ms. Beck assumed he was in his early twenties.   He wore black pants and a loose fitting black shirt or jacket.

Although Ms. Beck saw part of the man's left profile, she did not see his face and stated she could not identify him.

Less than an hour later Inglewood police officers stopped a car for speeding.   They ordered the three male occupants to exit the car when none could produce personal identification or registration for the car.   As appellant exited the passenger seat one of the officers noticed a checkbook protruding from the seat crevice.   An officer examined the checkbook and found both checks and credit cards in the name of Laura Beck.   In the back seat of the car appellant's notebook was wrapped in a black shirt several sizes too small for appellant.

On May 11, 1993, appellant was charged in a felony complaint (case number SA013918) alleging one count of receiving stolen property (§ 496, subd. (a)).  At the preliminary hearing in the municipal court appellant requested a lineup.   In response, the district attorney informed the court and counsel the robbery victim could not identify her attacker and therefore the prosecution did not intend to file a robbery charge.   Appellant did not pursue his request for a lineup.

Based on the evidence presented at the preliminary hearing appellant was held to answer on the receiving stolen property charge.

Thereafter, the district attorney's office reviewed the facts of the case and concluded that based on the victim's physical description of the perpetrator appellant should have been charged with robbery.

On July 30, 1993, a different prosecutor filed an amended information in the superior court charging both robbery (§ 211) and receiving stolen property (§ 496, subd. (a)).  Appellant urged the superior court to dismiss the robbery count on the theory he had detrimentally relied on the initial prosecutor's representation he would not be charged with robbery.   Appellant argued the prosecutor's representation caused him to forego his right to an Evans 2 lineup and to cross-examine the victim at the preliminary hearing about her ability to identify her attacker.   The superior court gave the prosecutor the option of proceeding to trial solely on the receiving stolen property charge or dismissing the charge and refiling the complaint.   The prosecutor elected to file a new complaint.   On November 22, 1993, the action in case number SA013918 was dismissed.

The prosecutor subsequently filed a new felony complaint alleging a robbery count as well as a receiving stolen property count in the present case (case number SA015919).   At the beginning of the second preliminary hearing appellant urged the magistrate to dismiss the robbery count in the interest of justice under section 1385.3  Again appellant argued he had relied on the initial prosecutor's representation he would not proceed with a robbery charge, and based on that representation he had relinquished his right to an Evans lineup and to cross-examine the complaining witness regarding her identification of the perpetrator.

The magistrate found it would have granted a defense request for an Evans lineup in this case.   In addition, the magistrate found appellant had relied on the prosecutor's representation to his detriment.   Accordingly, the magistrate ordered the robbery count dismissed in the interest of justice under section 1385.

After the presentation of evidence appellant was held to answer on the receiving stolen property count.   However, the prosecutor contended filing an information under section 739 recharging the twice dismissed count was the appropriate method to test the propriety of the magistrate's ruling.   The magistrate immediately arraigned appellant on the current information charging both robbery and receiving stolen property.4

On February 22, 1994, appellant moved in the superior court to dismiss the robbery count.   He argued the robbery count had been twice dismissed and further prosecution was barred under the “two dismissal rule” of section 1387 (see fn. 1, supra ).   He argued the prosecution's remedy to test the propriety of the magistrate's ruling was to instead seek review under section 871.5 5 because the prosecution was barred from filing an information in the superior court alleging the twice dismissed robbery count.   Alternatively, appellant argued his defense had been irreparably harmed by the initial prosecutor's representation he would not be charged with robbery and argued that count should be dismissed in the interest of justice under section 1385.

The prosecutor agreed the robbery count had been terminated once when he agreed to dismiss case number SA013918.   However, he argued the robbery count had not been twice terminated with the magistrate's dismissal because the prosecutor instead elected to file an information alleging the robbery charge under section 739.

The superior court (Judge Neidorf) noted it was within the bounds of discretion for the magistrate to find appellant was entitled to an Evans lineup.   However, the court invited argument on whether the prosecutor could seek review of the magistrate's dismissal by simply filing an information recharging the twice dismissed count, or whether the prosecutor's proper procedural remedy was to file a motion in the superior court under section 871.5.   Ultimately, the trial court agreed with the prosecution and denied appellant's motion to dismiss under section 1387.   The trial court opined that had appellant “not been held to answer on anything, including the 496 [receiving stolen property], I think you would be right.   That would be the only remedy.   They couldn't refile with an “A” number, but they could have taken an 871.5 [by appealing the dismissal of the robbery count to the superior court].”

Thereafter the case was assigned to Judge Light for trial.   Appellant renewed his motion to dismiss, arguing the robbery count had been twice dismissed and section 1387 precluded further prosecution of the charge.   The prosecutor opposed the motion.   He argued the second dismissal by the magistrate was invalid, and therefore ineffective.   He argued that because the victim could not, and did not, identify the perpetrator appellant was not entitled to an Evans lineup as a matter of law.   The trial court deemed the prosecution's opposition a motion under section 871.5.   The trial court agreed with the prosecution appellant was not entitled to an Evans lineup and therefore the magistrate's reasons for dismissing the robbery count constituted error.   Accordingly, the trial court denied appellant's motion to dismiss.

Trial was to a jury.   The jury found appellant guilty of robbery (§ 211) and not guilty of the receiving stolen property count (§ 496, subd. (a)).  In a bifurcated proceeding the trial court found true two prior serious felony allegations (§ 667, subd. (a)) and one prior prison term allegation (§ 667.5, subd. (b)).  The court sentenced appellant to a total term of 16 years.

Appellant appeals from the judgment of conviction.

DISCUSSION

I. THE ROBBERY COUNT WAS TWICE DISMISSED WITHIN THE MEANING OF SECTION 1387.

 Subject to numerous exceptions inapplicable to this case, section 1387 establishes a general rule which precludes further prosecution of a charge which has been previously twice dismissed.  Section 1387, subdivision (a) provides in pertinent part:  “An order terminating an action pursuant to this chapter [§§ 1381–1388], or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony ․ and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995․”  The basic purpose of this section is to limit improper successive prosecutions which harass a defendant as well as to prevent the prosecution from forum shopping.  (People v. Superior Court (Martinez ) (1993) 19 Cal.App.4th 738, 744, 23 Cal.Rptr.2d 733;  Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640, 191 Cal.Rptr. 361;  People v. Cossio (1977) 76 Cal.App.3d 369, 372, 142 Cal.Rptr. 781;  People v. Horning (1984) 150 Cal.App.3d 1015, 1021, 198 Cal.Rptr. 384.)

There is no dispute the action was terminated in case number SA013918 when the prosecutor refused to proceed to trial on solely the receiving stolen property count and agreed to dismiss the complaint under section 1385.6  Then in the second action, case number SA015919, the magistrate held appellant to answer for the offense of receiving stolen property but dismissed the robbery count in the interest of justice under section 1385.

Appellant contends the magistrate's order dismissing the robbery count was a second termination of the action as to the robbery count.   Consequently, he argues section 1387 barred further prosecution of the robbery count and the People were barred from filing an information pursuant to section 739 to allege the twice dismissed count.   Appellant contends the People's remedy, which the People failed to follow, was to challenge the magistrate's order directly pursuant to section 871.5.   Accordingly, he argues the trial court erred in denying his motion to dismiss.

In this case the trial court (Judge Neidorf) denied appellant's motion to dismiss under section 1387, finding the People were not precluded from filing an information alleging the dismissed count because appellant had been held to answer on the alternative receiving stolen property count and the entire action had therefore not been terminated.

 Despite the language of section 1387 which refers to “actions” which have terminated, it is well settled this section applies to the dismissal of a single count in a criminal proceeding, even though the entire information or complaint is not dismissed.  (See, e.g., People v. Crowder (1982) 136 Cal.App.3d 841, 848, 186 Cal.Rptr. 469 [although defendant held to answer on forgery count, count alleging possession of controlled substance had been twice dismissed which barred further prosecution of that offense];  Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1118–1119, 206 Cal.Rptr. 242 [although held to answer on charge of being accessory, further prosecution of the robbery and kidnapping counts was barred];  Brazell v. Superior Court (1986) 187 Cal.App.3d 795, 798, 232 Cal.Rptr. 246 [although held to answer on other charges arising from a traffic collision, petitioner could not be prosecuted for the murder charges which had been twice dismissed];  Lee v. Superior Court, supra, 142 Cal.App.3d 637, 191 Cal.Rptr. 361 [defendant held to answer on solicitation for murder count but count alleging conspiracy to commit murder had been twice dismissed, precluding further prosecution];  see also 5 Witkin & Epstein (2d ed.   1989) Trial, § 2561, pp. 3069–3070.)

The Supreme Court's decision in Ramos v. Superior Court (1982) 32 Cal.3d 26, 184 Cal.Rptr. 622, 648 P.2d 589 expanded the definition of “action” in section 1387 to include special circumstance allegations.   There the court held dismissal of a special circumstance allegation similarly constituted “an order terminating an action” for purposes of section 1387.

In Ramos the magistrate held two codefendants to answer for a murder charge and special circumstance allegation but found the evidence insufficient as to Ramos and dismissed the complaint as to him under section 871.   A few days later the prosecutor filed a new complaint charging Ramos with the identical charges which had been dismissed.   At the conclusion of the second preliminary hearing the magistrate held Ramos to answer on the murder charge but dismissed the special circumstance allegation.   Two weeks later, and without seeking reinstatement of the dismissed special circumstance allegation under section 871.5, the prosecutor filed an information in the superior court pursuant to section 739 charging Ramos with one count of murder and the same special circumstance allegation which had previously been twice dismissed.  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 29, 184 Cal.Rptr. 622, 648 P.2d 589.)

The Supreme Court concluded there was no principled reason to treat dismissal of a special circumstance allegation differently from dismissal of an entire action, or dismissal of one or more of several offenses charged in a complaint or information in determining when an “action” has been “terminated” for purposes of the “two dismissal rule” of section 1387.   Accordingly, the high court held “the district attorney's reinstatement of the special circumstance allegation pursuant to section 739 was an ‘other prosecution for the same offense’ which was barred under section 1387 because the allegation had already been dismissed twice under section 871.”  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 36, 184 Cal.Rptr. 622, 648 P.2d 589.)

 In the present case the conclusion is inescapable there were two orders “terminating the action” as to the robbery count under section 1385.   This is true whether the robbery count was validly or erroneously dismissed.   Because the robbery count was twice dismissed section 1387 barred “any other prosecution for the same offense.”   Accordingly, we conclude the trial court erred in failing to grant appellant's motion to dismiss the robbery court under section 1387, unless the filing of an information under section 739 alleging the twice dismissed count was the proper vehicle to review the magistrate's ruling and to avoid the bar to further prosecution.

II. AFTER THE SECOND DISMISSAL THE PEOPLE'S EXCLUSIVE REMEDY WAS TO SEEK REVIEW OF THE MAGISTRATE'S DISMISSAL ORDER UNDER SECTION 871.5.

On appeal the People generally acknowledge the prosecution is not entitled to recharge an allegation or count by information pursuant to section 739 which has been twice dismissed under the relevant statutory provisions.   However, the People argue the magistrate's second dismissal of the robbery count was invalid on its face and therefore was not effective to trigger the “two dismissal rule” of section 1387.   The People claim the magistrate's ruling was in error because appellant was not entitled to an Evans lineup as a matter of law.   In addition, they claim the magistrate's dismissal was ineffective because the court failed to give written reasons for the dismissal under section 1385 in the minute order dismissing the robbery count.   They argue that because the magistrate's second dismissal “did not count,” the prosecutor was entitled to reinstate the robbery count under section 739 by filing an information recharging robbery because the offense was shown by the evidence at the preliminary hearing.

 The People's claimed deficiencies in the magistrate's ruling could have provided specific grounds to seek review of the magistrate's dismissal order.7  However, the issue or resolution in this appeal is whether a prosecutor may bypass the statutory procedure to review a magistrate's dismissal order and file an information in the superior court alleging a twice dismissed count whenever a prosecutor concludes on his or her own a magistrate's action is invalid.   We think not.

By permitting the prosecutor to file the information alleging robbery after that count had been twice dismissed the trial court gave the People three chances to prosecute appellant, contrary to the intent and purpose of section 1387.  (See, Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 999, 180 Cal.Rptr. 742.)   Nothing in section 1387 indicates the “two dismissal rule” only pertains to substantively valid dismissals, procedurally flawless dismissals, or dismissals which meet the approval of the prosecuting attorney.   As noted in Ramos v. Superior Court, supra, 32 Cal.3d at p. 36, 184 Cal.Rptr. 622, 648 P.2d 589 the district attorney's attempt to reinstate the twice dismissed charge by filing an information in the superior court was an “other prosecution for the same offense” which was barred under section 1387.

Nothing precludes the People from filing an information under section 739 following the first dismissal of an “action” by a magistrate.   In Ramos v. Superior Court, supra, 32 Cal.3d at p. 35, 184 Cal.Rptr. 622, 648 P.2d 589 the Supreme Court explained “after a first dismissal by the magistrate, the district attorney may either refile a new complaint, file an information under section 739 charging the dismissed matter (see People v. Encerti (1982) 130 Cal.App.3d 791, 795–798, 182 Cal.Rptr. 139 [provided the defendant has been held to answer on some charge] ), or—if he wishes to eliminate the effect of the first dismissal for section 1387 purposes—challenge the dismissal directly under section 871.5.  (See Chism v. Superior Court (1981) 123 Cal.App.3d 1053, 1061, 176 Cal.Rptr. 909.)   On the other hand, there is nothing in the new legislation to support the People's suggestion that when a charge has already been dismissed twice under section 871, an information filed under the section 739 procedure recharging the dismissed matter is not ‘any other prosecution for the same offense.’   Such a conclusion would significantly undermine both the respect which the new legislation generally accords to dismissals by a magistrate and the added protection from repeated refilings afforded defendants by the amendment of section 1387.”  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 35, 184 Cal.Rptr. 622, 648 P.2d 589.)

In Ramos the Supreme Court expressly rejected the People's argument it should equate the district attorney's authority to proceed under section 739 with his authority to challenge a magistrate's ruling under section 871.5.   “[S]ection 871.5 differs from section 739 in a number of significant respects, establishing more stringent time limitations and notice requirements than section 739 and, perhaps most importantly, placing the burden on the People—rather than the defendant—to go forward and demonstrate the impropriety of the magistrate's dismissal.   In light of the overall purpose and interrelated provisions of the 1980 legislation, we conclude that after a second dismissal, section 1387 bars the People from simply refiling the dismissed charges under section 739.”  (Ramos v. Superior Court, supra, 32 Cal.3d at pp. 36–37, 184 Cal.Rptr. 622, 648 P.2d 589.)

The Ramos court described section 871.5 primarily as a remedy available to the People after a second dismissal by a magistrate, the condition under which Ramos held the People could not use section 739.  (Ramos v. Superior Court, supra, 32 Cal.3d at pp. 36–37, 184 Cal.Rptr. 622, 648 P.2d 589;  see also People v. Mayo (1986) 185 Cal.App.3d 389, 395, 229 Cal.Rptr. 762;  Dunn v. Superior Court, supra, 159 Cal.App.3d 1110, 1116, 206 Cal.Rptr. 242;  People v. Superior Court (Martinez ), supra, 19 Cal.App.4th 738, 749–750, 23 Cal.Rptr.2d 733.)   As explained by Justice Lillie for the court in Vlick v. Superior Court, supra, 128 Cal.App.3d 992, 180 Cal.Rptr. 742, the purpose of section 871.5 was to create a new vehicle for the People to obtain speedy review of dismissal orders.   Section 871.5 “has special significance because it reflects legislative consideration of a comprehensive method of disposing of issues of law upon which a magistrate's dismissal of a felony complaint is based which when used by the People precludes them from refiling.   The element of finality built into this statutory procedure was intended as a protection to the defendant, and advances the stated purpose of [the legislation] to decrease the number of refiled felony complaints not only by authorizing the magistrate to dismiss a felony complaint but by allowing him to order a dismissal that serves as an effective bar to further prosecution.   (See Legislative Analysis, AB 2383.)   Having thus limited the People's action in this regard the Legislature devised a method by which they could obtain speedy review by the superior court of a dismissal by the magistrate based upon a legal ruling.   Second, the language of section 871.5, Penal Code does not specify the kind of magistrate's dismissal to be reviewed by the superior court or how the dismissal must come about or the kind of motion that must give rise to the legal ruling on which the order of dismissal is based;  the only limitation on review is the ground upon which the People's challenge must be based, i.e., ‘as a matter of law, the magistrate erroneously dismissed the action․’  (§ 871.5, Pen.Code.)” (Vlick v. Superior Court, supra, 128 Cal.App.3d at p. 998, 180 Cal.Rptr. 742.)

 A 1982 amendment to section 871.5 makes clear its remedy is intended for situations in which the People are precluded from using section 739.   This includes situations in which (1) the magistrate dismisses all the charges (see People v. Luna (1983) 140 Cal.App.3d 788, 793, fn. 3, 189 Cal.Rptr. 792);  (2) the dismissed and nondismissed counts are not transactionally related (People v. Slaughter (1984) 35 Cal.3d 629, 633, 200 Cal.Rptr. 448, 677 P.2d 854);  or (3) the magistrate's dismissal is the second dismissal (Ramos v. Superior Court, supra, 32 Cal.3d 26, 184 Cal.Rptr. 622, 648 P.2d 589;  see also, People v. Superior Court (Martinez), supra, 19 Cal.App.4th 738, 749–750, 23 Cal.Rptr.2d 733).

Thus, because the robbery count had been twice dismissed the People's proper remedy in this case was to seek review of the magistrate's dismissal under section 871.5.  (People v. Mimms (1988) 204 Cal.App.3d 471, 481, 251 Cal.Rptr. 672 [in this context “section 871.5 is the exclusive method by which the People may obtain a review of a magistrate's order of dismissal”];  People v. Mayo, supra, 185 Cal.App.3d 389, 395, 229 Cal.Rptr. 762 [same];  Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804, 50 Cal.Rptr.2d 236 [People's remedy was to challenge the magistrate's order directly pursuant to section 871.5];  see also 4 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Proceedings Before Trial, § 1991, p. 2351 [“P.C. 871.5 is the exclusive method by which the prosecution may obtain a review of a magistrate's order of dismissal”].)

However, the People failed to pursue their exclusive remedy in the superior court to reinstate the robbery count.   Consequently, further prosecution of the charge was barred by section 1387 and the judgment must be reversed unless the trial court had jurisdiction to sua sponte rule in the People's favor as if they had sought timely review under section 871.5.

III. THE TRIAL COURT WAS WITHOUT JURISDICTION TO DEEM THE PEOPLE'S OPPOSITION TO APPELLANT'S RENEWED MOTION TO DISMISS AS A TIMELY MOTION TO REINSTATE THE ROBBERY CHARGE UNDER SECTION 871.5.

The case came to trial before Judge Light several months after the magistrate's dismissal of the robbery count, and months after Judge Neidorf denied appellant's request to dismiss the robbery count under section 1387.   Before trial appellant renewed his motion to dismiss which the prosecutor opposed on the ground the magistrate's dismissal was erroneous because appellant was not entitled to an Evans lineup as a matter of law.   Judge Light deemed the People's opposition to appellant's renewed motion a motion under section 871.5.   The court ruled the magistrate's dismissal was in error and denied appellant's motion to dismiss.   Based on the decisions interpreting section 871.5 the trial court had no jurisdiction to entertain the People's opposition to appellant's motion to dismiss.

“The People's right to appeal is entirely statutory;  a judgment or order is not appealable unless the Legislature expressly makes it so.  (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 446 P.2d 138;  People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.)   The restriction on the People's right to appeal is a substantive limitation on review of trial court determinations in criminal matters.   [Citation.]  In our view this same reasoning should apply to determinations by magistrates.”  (People v. Hanley (1992) 4 Cal.App.4th 340, 346, 5 Cal.Rptr.2d 643 [case in which People took the reverse position and argued section 871.5 was the only vehicle for reviewing a magistrate's dismissal order under any statutory provision].)

In People v. Dethloff (1992) 9 Cal.App.4th 620, 11 Cal.Rptr.2d 814 Division Four of this court reviewed the purpose and effect of section 871.5 and concluded this section conferred appellate jurisdiction on the superior court to review dismissal orders.  “[T]his review procedure essentially vests the superior court with appellate jurisdiction and is appropriately governed by well-established principles of appellate review, including jurisdictional limitations.”  (People v. Dethloff, supra, 9 Cal.App.4th at p. 624, 11 Cal.Rptr.2d 814;  see also Review of Selected 1980 California Legislation (1980) 12 Pacific L.J. 334, 337 [in describing the new legislation states section 871.5 “provides for an appeal of a dismissal in the event that the action is terminated by the magistrate”].)

 Section 871.5 requires the motion to reinstate be made within 15 days of the dismissal of the “action” by the magistrate (see fn. 5, supra ).   Because the People filed their motion on the 20th day the Dethloff court held the superior court was without jurisdiction to review the dismissal or to reinstate the charges.  “This was the 20th day after the dismissal of the complaint.   We conclude, therefore, that the superior court was without jurisdiction to hear the motion.  (See 4 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Proceedings Before Trial, § 1991, pp. 2351–2353.)  ․ [¶][¶]  If a court is without jurisdiction, no amount of consent or estoppel can bestow it.  (See Griggs v. Superior Court (1976) 16 Cal.3d 341, 344, 128 Cal.Rptr. 223, 546 P.2d 727;  4 Witkin & Epstein, Cal.Criminal Law, supra, Jurisdiction and Venue, § 1822, p. 2159.)   Respondent's failure to raise his jurisdictional objection below, therefore, does not preclude him from doing so on appeal.”  (People v. Dethloff, supra, 9 Cal.App.4th at pp. 624–625, 11 Cal.Rptr.2d 814.) 8

The appellate court dismissed the People's appeal from the trial court's order denying their motion to reinstate the complaint.  “[W]hen the action required to invoke appellate jurisdiction has not been taken within the relevant jurisdictional period—and applicable rules of construction and interpretation do not require the action to be deemed to have been taken—the reviewing court lacks all power to consider the matter;  and considerations of prejudice, estoppel or excuse do not come into play.  [Citation.]”  (People v. Dethloff, supra, 9 Cal.App.4th at p. 626, 11 Cal.Rptr.2d 814;  compare People v. Dianda (1986) 178 Cal.App.3d 174, 178, 223 Cal.Rptr. 635 [the People served and filed notice of the motions to reinstate the complaints within 15 days of the magistrate's dismissal, consequently the trial court “erred in concluding it had no jurisdiction to consider the People's motions”].)

In this case the People failed to invoke the appellate jurisdiction of the superior court.   Moreover, Judge Light's sua sponte invocation of the review procedures of section 871.5 did not occur within the relevant jurisdictional time period.   Consequently, the trial court was without jurisdiction to deem the People's opposition a motion under section 871.5 or to reinstate the robbery count.  (People v. Dethloff, supra, 9 Cal.App.4th at pp. 624, 626, 11 Cal.Rptr.2d 814.)

In a supplemental brief filed at the request of this court the People concede the time limitation of section of section 871.5 is jurisdictional.   The People further agree Judge Light had no authority to deem their opposition a section 871.5 motion.   Accordingly, the robbery conviction must be reversed because section 1387 precluded further prosecution of the charge after it had been twice dismissed under section 1385.  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 36, 184 Cal.Rptr. 622, 648 P.2d 589.)

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   Penal Code section 1387 is generally referred to as the “two dismissal rule.”   This section provides in pertinent part:  “(a) 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 is a felony ․ and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995,․”All further statutory references are to the Penal Code.

2.   In Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681 the Supreme Court held a defendant's right to a lineup arises “where eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.”  (Id. at p. 625, 114 Cal.Rptr. 121, 522 P.2d 681.)

3.   Section 1385, subdivision (a) provides:  “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes․”

4.   Section 739 authorizes the prosecution to file an information charging those offenses for which the defendant has been held to answer as well as those offenses shown by the evidence at the preliminary hearing.   Section 739 provides:  “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.   The information shall be in the name of the people of the State of California and subscribed by the district attorney.”

5.   Section 871.5 was intended by the Legislature to be used by the People for superior court review of an erroneous dismissal by a magistrate arising out of the magistrate's ruling as a matter of law on any motion.   (See, Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 998, 180 Cal.Rptr. 742.)Section 871.5 provides in pertinent part:  “(a) When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate.”  (Italics added.)

6.   The minute order dismissing the initial complaint in case number SA013918 states the dismissal was pursuant to section 1382 which pertains to a failure to proceed to trial within the 60 day statutory period.   We presume the minute order is in error because both sides treat the initial dismissal as the prosecutor's election not to proceed and his agreement to dismiss the first complaint in the interest of justice in order to refile the charges in a new complaint.   In any event, the difference is immaterial for purposes of this appeal because both provisions qualify as dismissals for purposes of section 1387.

7.   The People cite no authority, and we have found none, which holds the failure to state reasons in the minute order dismissing an action pursuant to section 1385 is a jurisdictional matter which may be raised at any time, including in a responsive brief on appeal from a judgment of conviction, or in opposition to a petition for a writ of habeas corpus.   On the other hand, our Supreme Court has held the People may waive their right to challenge the defective procedure by themselves moving for such dismissals, or by “not having objected thereto when expressly done in open court.”  (People v. Hunt (1977) 19 Cal.3d 888, 897, fn. 10, 140 Cal.Rptr. 651, 568 P.2d 376;  see also People v. Orin (1975) 13 Cal.3d 937, 945, fn. 10, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Curtiss (1970) 4 Cal.App.3d 123, 127, 84 Cal.Rptr. 106;  compare Brazell v. Superior Court, supra, 187 Cal.App.3d 795, 800, 232 Cal.Rptr. 246 [second termination of the action was a bar to further prosecution even though magistrate failed to give any reason—either orally or in writing—for the second dismissal].)In this case the People did not object to any procedural defect in the dismissal under section 1385 when the magistrate ruled in open court.   Nor did the People ever object to the magistrate's ruling on procedural grounds in the superior court or seek review in this court by writ of mandate.  (See, e.g., People v. Superior Court (Flores ) (1989) 214 Cal.App.3d 127, 262 Cal.Rptr. 576.)   Indeed, the procedural defect only came to light when Judge Light mentioned it in his ruling in denying appellant's renewed motion to dismiss just prior to trial.   In these circumstances the People must be deemed to have waived the right to challenge the defective procedure by failing to timely object.

8.   In this case appellant repeatedly argued the People's sole remedy to review the magistrate's dismissal was to seek review pursuant to section 871.5.   There is no indication in the record appellant sought review of the trial court's denial of his motion to dismiss pursuant to section 1387 by seeking extraordinary relief in this court.   However, this failure similarly does not preclude him from doing so now on appeal.   (People v. Dethloff, supra, 9 Cal.App.4th 620, 625, 11 Cal.Rptr.2d 814.)

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.