Filed 9/28/15
                            CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            THIRD APPELLATE DISTRICT
                                            (Placer)
                                              ----




Conservatorship of the Person and Estate of                     C077467
CHRISTOPHER B.
                                                       (Super. Ct. No. SMH0001523)

MAUREEN F. BAUMAN, as Public
Guardian, etc.,

                Petitioner and Appellant,

        v.

CHRISTOPHER B.,

                Objector and Appellant.




       APPEAL from a judgment of the Superior Court of Placer County, Michael W.
Jones, Judge. Reversed.

     Gerald O. Carden, County Counsel, Valerie D. Flood, Chief Deputy County
Counsel, Roger B. Coffman, David K. Huskey and Renju P. Jacob, Deputy County
Counsel, for Petitioner and Appellant.

      Timothy E. Warriner, under appointment by the Court of Appeal, for Objector and
Appellant.


                                               1
       Objector Christopher B. appeals from the order of the probate court (following a
bench trial) granting the petition of the Placer County Public Guardian to establish a
conservatorship over the objector’s person and estate. Christopher B. argues there is
insufficient evidence of a pending indictment in underlying criminal proceedings, a
jurisdictional prerequisite for his “Murphy conservatorship” under the Lanterman-Petris-
Short Act. (Welf. & Inst. Code, §§ 5000 et seq., 5008, subd. (h)(1)(B), 5361; Pen. Code,
§ 1370.) Named after the legislator who sponsored the 1974 amendment that added a
second definition of “gravely disabled” to the act (Stats. 1974, ch. 1511, § 12, pp. 3321-
3322), the Murphy conservatorship is a renewable one-year civil commitment for
criminal defendants who are otherwise incompetent to stand trial for a felony involving
death, great bodily harm, or a serious threat to the physical well-being of another, and
who do not have the prospect of a restoration of competency. (People v. Karriker (2007)
149 Cal.App.4th 763, 775; In re Polk (1999) 71 Cal.App.4th 1230, 1237.) Christopher B.
also contends the evidence does not support imposition of a restriction on his right to
enter into contracts. The Public Guardian cross-appeals, contending the probate court
imposed an incorrect termination date for the renewed conservatorship. We will vacate
the order imposing the conservatorship with directions to dismiss the petition. This
disposition moots the issue of the contractual restriction and the cross-appeal.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Given the narrow focus of the legal underpinning for the Murphy conservatorship,
we do not need to relate the evidence at trial. We draw some of the following facts from
our opinion in Christopher B.’s appeal from the first effort to establish a conservatorship
over his person and estate. (Conservatorship of Christopher B. (Mar. 6, 2014, C073478)
[nonpub. opn.].)

       In September 2003, Christopher B. entered a plea of no contest to stalking and
possessing a billy club. The conduct was directed at his ex-wife’s former husband.


                                             2
Christopher B. has subsequently denied any wrongdoing, attributing the plea to
ineffective assistance of counsel in resolving a series of events he characterized as
coincidental and unfortunate.

       From 2005 through 2007, Christopher B. was found to be a mentally disordered
offender (Pen. Code, § 2960 et seq.) and placed in a state hospital. He would not accept
the diagnosis that he has a delusional disorder, and has refused voluntary treatment. By
February 2008, Christopher B. had been under commitment for the full length of the
prison term for his offense, and the state hospital released him.

       Following his release, Christopher B. harassed his ex-wife and his stepdaughter.
This resulted in a June 2009 complaint alleging criminal threats, stalking, and being a
felon in possession of a gun (Placer County case No. 62-090819). After holding a
hearing in July 2009, the criminal court found Christopher B. was not competent to stand
trial; the criminal proceedings were suspended, and in September 2009 the court ordered
his transfer to the custody of a state hospital. At the conclusion of the three-year
maximum period of commitment (Pen. Code, § 1370, subd. (c)(1)), the state hospital
found that Christopher B. could not be restored to competency because he refused
voluntary treatment under his ongoing belief that he does not have any mental disorder.
The state hospital recommended the institution of a Murphy conservatorship.

       Given the imminent expiration of the commitment to the state hospital, and unable
to file an information based on the 2009 complaint because of the stay on the criminal
case, the district attorney obtained a grand jury indictment on the same charges in August
2012 (People v. Carrington (2009) 47 Cal.4th 145, 180-181 [indictment is independent of
complaint and information; thus prosecution may seek former even while latter stayed
and even without dismissing latter]) in order to satisfy the prerequisite for a Murphy
conservatorship. (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)(ii) [in order for



                                              3
incompetent criminal defendant to come within definition of “gravely disabled” for
imposition of conservatorship, indictment or information must still be pending].)

       In March 2013, the Public Guardian obtained an order establishing a Murphy
conservatorship over Christopher B. and his estate. We reversed the order in March 2014
because of an absence of sufficient admissible evidence of his incompetence to stand trial
in the criminal proceedings as of the time of the conservatorship proceedings. We also
found that the trial court had failed to obtain Christopher B.’s express personal waiver of
a hearing before it imposed a contractual disability on him pursuant to stipulation of his
attorney. Our remittitur issued in May 2014. (Conservatorship of Christopher B., supra,
C073478.)

       This concludes the historical prologue. We come to the facts that are at the heart
of the present appeal.

       While the previous appeal was pending, the criminal court (Hon. Frances
Kearney) convened with counsel in defendant’s absence on June 19, 2013, for a status
conference in case No. 62-090819. The trial court began, “[this] matter is on today for
review. And it’s my understanding that there has been established now a Murphy’s
conservatorship, and [defendant] is . . . subject to further review now on the probate
conservatorship calendar. So, in light of that, I believe the People are now moving to
dismiss the charges . . . ; is that correct?”1 (Italics added.) The prosecutor replied, “We
would so move based on the establishment of the Murphy’s conservatorship.” The court
responded, “That will be the Court’s order. No further reviews.” The form minute order
has a check next to the box for “Dismissed” (with the case number handwritten next to



1 Although the criminal matter is suspended during a defendant’s incompetence, there is
an express exception for a motion to dismiss pursuant to Penal Code section 1385. (Pen.
Code, § 1370, subds. (a)(1)(B), (d).)


                                             4
it), and “[Defendant] in Murphy’s Conservatorship” is handwritten in a lower comment
section.

       On the following day, the criminal court reconvened. The trial court had defense
counsel on the phone; the prosecutor was personally present. The trial court told defense
counsel, “we needed to confirm with you . . . , as you know, there’s a Murphy’s in this
case. [¶] And yesterday inadvertently—well, I guess, what the People are asking me to
clarify is that the complaint that was dismissed yesterday is directed solely to the original
[2009] complaint and not to the subsequent [2012] indictment, because you do need to
have [at least] an indictment in effect in order for the Murphy’s to remain in effect. [¶] If
we are all in agreement on that—I’ll just clarify the underlying original complaint was
dismissed but not the indictment. . . . [¶] . . . [W]hat’s been represented to me is if you
don’t have that in effect, then the Murphy’s goes away. So we don’t want that to happen.
[¶] So do you want me to just put it back on calendar next Wednesday?” This apparently
being defense counsel’s desire, the court set the matter for the following week. After
hanging up the phone with defense counsel, the court then told the prosecutor, “She
doesn’t recall us trying to differentiate. So you should probably talk to her between now
and then, because I don’t think you guys want the Murphy’s to go away.” In response to
the prosecutor’s request for clarification, the court stated, “To be clear: Pending the
hearing next week, the Court has determined that there is still pending before the Court
an indictment and the Murphy’s is thus still in effect. . . . But for right now, the
underlying complaint is dismissed but not the indictment.”

       At the hearing on June 26, 2013, the trial court described the focus of the hearing
on June 19 as having involved “some discussion as to what happens with” the criminal
case (No. 62-090819) in light of the conservatorship; “And the Court recited certain
understandings for the record. And I believe the People said yes.” The trial court noted
it had not yet received a transcript of the proceedings on June 19, but the court reporter


                                              5
had read her notes to the court‘s clerk, which the court shared in chambers with counsel.
Somewhat at odds with the transcript we have quoted above, the trial court summarized it
as, “The general idea, as to what was said, is that the Complaint is being dismissed. And
[the] answer was ‘yes.’ [¶] Subsequently, there was some concern expressed by both the
People and the Defense . . . as to whether or not that then affected the . . . Indictment. [¶]
And, in point of fact, you need that as a basis for the Murphy’s Conservatorship . . . .”

       Defense counsel asserted, “As far as we’re concerned, the case was dismissed last
week. . . . [¶] If the People are asking to reconsider that motion, I think that would be
their motion.” The prosecutor responded, “the case was on for just a review to see
whether the Murphy’s Conservatorship had been established in the case. And it was. . . .
[¶] And then the inquiry was made whether we should dismiss the case, the Complaint,
in that matter. . . . [¶] I’m not aware that there was an Indictment [at issue] at that time
. . . . And I believe that the Complaint, that the original Complaint, could be dismissed.
But the Indictment would not be included in that dismissal. . . . [¶] . . . I believe [that the
transcript] doesn’t specifically list the Indictment. And the intention of this Court in this
case was not to undermine the Murphy’s Conservatorship. So we would ask that the
Indictment still stand at this point.” (Italics added.) Defense counsel replied, “[W]e
discussed the case, itself, being dismissed. We didn’t discuss a Complaint versus an
Indictment being dismissed. [¶] And, as far as that goes, I think what’s done is done.
What happened last week, the case was dismissed.” The trial court adhered to its
“impression” that only the 2009 complaint had been at issue. “So . . . I am going to
interpret the People’s motion as being to dismiss the . . . Complaint . . . and not . . . the
Indictment . . . . And, certainly, it was not my intention to in any way disturb the
Murphy’s Conservatorship. And, in point of fact, the purpose of the hearing was to make
sure [Christopher B.] had been released . . . on the Murphy’s Conservatorship . . . .” The
trial court then set the matter for hearing on the following week to confirm its ruling after



                                               6
having an opportunity to review a written transcript from the June 19 status conference.
The minute order for the June 26 hearing included a handwritten note that the “Complaint
. . . is dismissed. The Indictment is not dismissed.”

       The court met with the parties on July 3, July 10, and July 24 to determine if they
had received copies of all the pertinent transcripts. On the last of these dates, defense
counsel confirmed she had received the necessary transcripts. The court asked, “At this
point, you wish to drop the matter?” She responded, “Yes.” The prosecutor then told the
court, “We don’t need any further review since he’s gone to Murphy’s and that’s in a
separate court.” The court replied, “All right. The matter will be dropped.” There
apparently was a minute order on August 3, 2013 (not included in the present record),
confirming the June 26 minute order. In the present proceedings, new defense counsel
stated that his office had not sought appellate review of the criminal order because as a
tactical matter his office believed the conservatorship was “the [most] appropriate time”
to litigate the issue.2

       In light of our reversal of the previous order establishing the Murphy
conservatorship, the Public Guardian petitioned for a temporary conservatorship in
March 2014, which the probate court granted. At the outset of the proceedings on the
present petition for a permanent conservatorship in September 2014, new defense counsel
noted that it was the position of his office that the criminal case “was dismissed,” despite
the conclusion of the criminal court that “it wasn’t dismissed; or, if it was, it was done
inadvertently and that was not the intent of the parties. I’m in a position where I have to
take a hard line on that, but I don’t believe there’s any further litigation to be done on that

2 However, Christopher B.’s trial counsel filed a petition for a writ of prohibition with a
request for stay in both the criminal and conservatorship matters. We issued an order
denying the writ as untimely in the criminal matter and unnecessary in the
conservatorship matter in light of the pending appeal. (Christopher B. v. Superior Court
(Feb. 11, 2015, C078343) [order].)


                                              7
issue.” The trial court disagreed, asserting that this was an evidentiary matter for the
present proceedings, and queried about the purpose to be served in the criminal court of
merely dismissing a superfluous complaint: “I don’t understand why that would happen,
why that would occur. I can’t think of any reason.” Counsel for the Public Guardian
asserted that regardless of whether the criminal court was correct or not in construing its
order as being limited to the complaint, the criminal court’s order was final and not
presently subject to challenge.

       After briefing on the issue, the trial court ruled as follows. “I don’t know that
anybody here can dispute with me that the court record says the charges are dismissed
[on June 19] . . . in . . . [that] criminal case number. The Indictment . . . has that case
number on it. [¶] . . . There is not a separate case number for the Indictment.” The trial
court also highlighted the criminal court’s use of the word “inadvertently” on June 20. It
concluded the prosecutor had erred in acceding to dismissal of the case, and then must
have brought the need for a pending indictment to the attention of the criminal court. The
trial court concluded that the June 19 order of dismissal divested the criminal court of
further jurisdiction, so the subsequent criminal proceedings were irrelevant. The trial
court further concluded that the criminal court was without jurisdiction even to issue the
June 19 order because the criminal proceedings had been suspended.3 The trial court
asserted this was a tentative decision on an evidentiary matter to be addressed at trial,
which it would revisit.

       On September 11, 2014, at the conclusion of the bench trial on the permanent
conservatorship petition, defense counsel asked for clarification of the trial court’s ruling
on the issue of a pending indictment. The trial court reiterated its belief that the criminal


3 As we noted above, a motion to dismiss is an express statutory exception to the
suspension of proceedings during incompetency. The trial court later acknowledged
this provision.


                                               8
court did not have jurisdiction to dismiss the case on June 19, 2013 (due to the previous
suspension of the criminal proceedings as a result of Christopher B.’s incompetency), and
further, the criminal court’s order of dismissal was not valid because the minute order did
not include an adequate statement of reasons in compliance with Penal Code section 1385
(citing People v. Bonnetta (2009) 46 Cal.4th 143; People v. Superior Court (Flores)
(1989) 214 Cal.App.3d 127). The court thus found the Public Guardian had sustained its
burden, and it imposed a permanent conservatorship; defense counsel stipulated to the
finalization of the proposed letters of conservatorship, which included a prohibition on
Christopher B.’s right to contract. At the behest of the Public Guardian, the trial court set
the expiration of the conservatorship for March 2015. At a subsequent hearing on
October 3, 2014, the trial court denied the Public Guardian’s request to set the expiration
of the conservatorship for September 2015 (the correct date (Welf. & Inst. Code, § 5361))
because Christopher B. had already filed a notice of appeal.

                                        DISCUSSION

       Although a trial court retains jurisdiction to correct clerical error (i.e., an error in
the recording of a judgment) at any time, it does not have jurisdiction to correct judicial
error in an entered judgment (i.e., an error in rendering a deliberate “exercise of judicial
discretion”). (In re Candelario (1970) 3 Cal.3d 702, 704-707 [omission of a recidivist
finding in pronouncement of judgment cannot be corrected in trial court, and must be
deemed an acquittal of the finding].) Correction of judicial error, “being in excess of the
court’s jurisdiction is ineffective for any purpose” (id. at p. 708), in other words, void
(7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 343(3), p. 953). It does not matter
that a court or moving party acted under a mistake as long as the court “was performing
the act it intended to perform.” (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 292
(maj. opn. of White, P. J.) (Smith).)




                                               9
       While a trial court has inherent jurisdiction to reconsider erroneous orders, this is
limited to interim matters. (Compare People v. DeLouize (2004) 32 Cal.4th 1223, 1231-
1233 [order granting new trial does not have final effect on case and therefore may be
reconsidered; this does not offend policies favoring finality of judgments], People v.
Nesbitt (2010) 191 Cal.App.4th 227, 238 [may reconsider dismissal of two counts before
entry of judgment], People v. Castello (1998) 65 Cal.App.4th 1242, 1246, 1247-1248
[may reconsider ruling that did not sustain recidivist finding before entry of judgment;
“few limits” on inherent constitutional power to reconsider], Castello, at p. 1249 [it
would impair operations of court to require “infallibility” in interim rulings], and In re
Anthony H. (1982) 138 Cal.App.3d 159, 164-166 [may reconsider oral dismissal of one
count before entry of written order in minutes] with Smith, supra, 115 Cal.App.3d at
pp. 288-292 [grant of prosecution’s motion to dismiss premised on mistaken factual
basis; could not vacate this final order on the following week]; see Smith, at pp. 292, fn. 3
[reserving issue of whether court may vacate order of dismissal entered as a result of a
fraud upon the court] & 293, fn. 4 [noting that court may vacate a final judgment if in
“excess” of jurisdiction, such as an unlawful sentence]; see also Smith, at p. 294 (dis. opn.
of Scott, J.) [trial court had inherent power to grant relief for inadvertence or excusable
neglect]); Marler v. Municipal Court (1980) 110 Cal.App.3d 155, 159, 162 [cannot
reconsider misdemeanor dismissal order].)

       In the present case, the criminal court issued an order of dismissal unambiguously
dismissing the entire case at the request of the prosecution. Having realized the effect on
the continued viability of the conservatorship proceeding, the prosecutor then sought on
the next day to convince the criminal court to “clarify” that its ruling applied only to the
underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge
rather than take the straightforward route of seeking a reindictment; at oral argument the




                                             10
parties did not explore, beyond conclusory assertions with limited analysis, whether a
second prosecution would have been time barred.)

       As a result, the criminal court’s transparent efforts to garb its reconsideration of its
dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous
dismissal order to be one for the unnecessary act of dismissing a superseded complaint
are unavailing. It did not have jurisdiction to correct its judicial error, and its subsequent
orders are void on their face. They are therefore subject to collateral challenge in the
present proceedings even though Christopher B. did not appeal from the criminal case.

       The Public Guardian attempts to sustain the subsequent orders on the basis of the
inadequacies of the order of dismissal under Penal Code section 1385. Echoing the trial
court in this matter, the Public Guardian contends dismissal was ineffective because the
minute order does not adequately state reasons explaining why the dismissal is in the
interests of justice. (We note that a recently effective amendment to Penal Code section
1385 dispenses with the need for a written statement of reasons, except on request of the
parties or where the proceedings are not being recorded. This amendment does not have
any bearing on this appeal, however.) Notably absent from the Public Guardian’s list of
authorities, however, are the cases explaining that a defective order of dismissal pursuant
to the statute is voidable, not void, for which reason a failure to raise a contemporaneous
objection to the order’s defects in the trial court forecloses the parties from raising the
issue on appeal, and renders defects on the prosecutor’s motion to be invited error on
appeal. (Smith, supra, 115 Cal.App.3d at p. 293; see People v. Hunt (1977) 19 Cal.3d
888, 897, fn. 10; People v. Orin (1975) 13 Cal.3d 937, 945, fn. 10; People v. Curtiss
(1970) 4 Cal.App.3d 123, 127 [all pointing out that unappealed defective order is
binding, or principle of invited error can apply on an appeal from it]; cf. Brazell v.
Superior Court (1986) 187 Cal.App.3d 795, 800 [defects in binding second order of




                                              11
dismissal do not render it invalid for purposes of two-dismissal rule].) It is thus the order
of dismissal that is effective, not the orders attempting to backwheel from it.

       Given our need to order dismissal of the conservatorship for insufficient evidence
of the element of a pending indictment, the issue of the imposed contractual disability is
moot. The cross-appeal regarding the length of the conservatorship is moot as well.

                                      DISPOSITION

       The order imposing the conservatorship is reversed with directions to dismiss the
petition for insufficient evidence of an element of the conservatorship. The cross-appeal
is dismissed as moot. The stay previously issued in this matter, having served its
purpose, is dissolved upon the issuance of our remittitur.




                                                        BUTZ                   , J.



We concur:



      RAYE                  , P. J.



      RENNER                , J.




                                             12
BUTZ, J., Concurring.
       With apologies to Dolly Parton, here I go again, concurring with myself. (See
People v. Elder (2014) 227 Cal.App.4th 1308, 1318 (conc. & dis. opn. of Butz, J.).) My
fellow justices quite rightly agree that the criminal court attempted to correct judicial
error in a ruling that was final and, therefore, under Smith v. Superior Court (1981)
115 Cal.App.3d 285 (Smith), its subsequent orders were void (and, as a result, subject to
collateral attack in the present proceedings). Although unable to convince my colleagues
to head down this path, I concur separately to advocate that there is other precedent
suggesting Smith’s broad holding—that a dismissal order is a final ruling never subject to
modification—is not necessarily correct.
       Jackson v. Superior Court (2010) 189 Cal.App.4th 1051 (Jackson) added a nuance
to the distinction between interim and “final” orders. It concluded a trial court retains the
jurisdiction to reconsider an order granting a petition for habeas corpus before the taking
of an appeal, because the order was not “binding” until the period to appeal expired. (Id.
at pp. 1067-1068.) Among the authority on which it relied was People v. Wadkins (1965)
63 Cal.2d 110, 113, which held that a trial court has jurisdiction to vacate a final
judgment (or alternately grant a petition for a writ of coram nobis) before the time to
appeal expired in order to allow a defendant to withdraw a plea. (Accord, People v.
McGill (1970) 6 Cal.App.3d 953, 955 [trial court had jurisdiction to set aside final order
granting probation before the time to take an appeal expired to entertain a new trial
motion, citing Wadkins]).1



1 Just to make things interesting, Jackson does not cite either In re Candelario (1970)
3 Cal.3d 702, 704-707, where the court had entered the amended judgment before that
defendant’s unsuccessful appeal, or Smith, supra, 115 Cal.App.3d at page 287 (maj. opn.
of White, P. J.), where the court vacated its order of dismissal before the taking of any
appeal and, conversely, neither Candelario nor Smith took the period to appeal into
account in the determination of finality, or the holdings in Wadkins or McGill.


                                              1
       People v. Krivda (1971) 5 Cal.3d 357, 362-363 and footnote 2 (maj. opn. of
Wright, C. J.) (which described the question of the extent of the trial court’s inherent
power to reconsider as unsettled, but declined to provide any answer) also suggested that
the point at which a final order becomes binding is relevant to the analysis of when
reconsideration is permissible. It held that a ruling on a motion to suppress is final for
purposes of review within 30 days as a matter of statute and therefore cannot be
reconsidered after that time, suggesting the converse (in accord with the later holding in
Jackson, which does not cite it): that reconsideration of even a final determination that is
not yet binding is proper.2

       Entwined in the concept of the binding status of a final ruling are considerations of
jeopardy. Obviously, there cannot be anything more final than a postjeopardy rendition
of judgment that amounts to an acquittal of an enhancement, as in Candelario, supra,
3 Cal.3d 702, which is not subject to review, and this must inform that decision in some
sense. (Smith, supra, 115 Cal.App.3d at p. 293 [“The tenor of the Candelario decision
suggests that when the discretionary judicial act has been performed in the defendant’s
favor, the judgment or order is immune from . . . trial court attack.”].) This might explain
why the then recent holdings in Wadkins (which vacated a criminal judgment to allow
withdrawal of a plea) or McGill (which set aside a final order of probation to allow a
defendant to file a motion for new trial) did not figure at all in Candelario’s analysis,
because they did not involve reviving a terminated prosecution against a defendant
postjeopardy. Had the Candelario opinion expressly made this point, it might have better
informed the analysis in this area of law.



2 A court has jurisdiction to reconsider a suppression ruling during that 30-day period
only to correct its own error sua sponte in applying the law, and under several other
narrow circumstances in the interests of justice. (People v. Ramirez (1992) 6 Cal.App.4th
1583, 1589, fn. 4, 1592-1593.)


                                              2
       Viewing the above authority and the authorities cited in the majority opinion
(which do not, for the most part, take each other into account) in light of this possible
“binding ruling” qualification (subject to considerations of jeopardy), the reinstatement of
charges or a recidivist finding in People v. Nesbitt (2010) 191 Cal.App.4th 227 (Nesbitt)
and People v. Castello (1998) 65 Cal.App.4th 1242 (Castello) postjeopardy is permissible
because these rulings were preliminary to the rendition of any judgment of acquittal
(even if refiling of charges were not possible) and thus not final rulings terminating the
trial court’s jurisdiction to prosecute the defendants further (and In re Anthony H. (1982)
138 Cal.App.3d 159 being an even more preliminary ruling because the oral order had
not yet been officially recorded). Wadkins, McGill, and Jackson properly focused on
whether the rulings were final with respect to the time to appeal, because in each instance
the postjeopardy reconsiderations did not seek to reinstate jurisdiction over prosecutions
of those defendants that had terminated, nor does reconsideration of collateral relief in
Jackson.

       With this understanding, it can be seen that Smith’s holding—which did not take
the concept of a binding final order into account—should not prescribe the result in every
instance. An order of dismissal is not necessarily like the rendition of the postjeopardy
judgment of acquittal in Candelario, which was binding, and thus I think it is too broad a
statement to consider all orders of dismissal to be “final” as of their rendition merely
because this is a termination of the action against a defendant. (E.g., Nesbitt, supra,
191 Cal.App.4th at p. 238 & fn. 10; Smith, supra, 115 Cal.App.3d at p. 289.) If it is a
first order of dismissal of felony charges prejeopardy, there is still the power to prosecute
the defendant, and thus a trial court’s jurisdiction to reinstate the charges against a




                                              3
defendant through reconsideration of its order should not terminate until the taking of an
appeal3 or the order becoming binding upon the expiration of the time to do so.

       People DeLouize (2004) 32 Cal.4th 1223, 1232-1233 indicates that the doctrine of
“finality” is not an absolute, but reflects the expression of a collection of principles. A
first felony dismissal does not have a terminating effect on the ability to reprosecute a
defendant,4 and a timely correction in the trial court of an erroneous dismissal thus does
not represent relitigation of settled issues—rather, it forestalls unnecessary expenditure of
judicial resources in going through the additional process of refiling new charges. (In
contrast, the result in Marler v. Municipal Court (1980) 110 Cal.App.3d 155 involved the
dismissal of a misdemeanor, which terminated the ability to prosecute those defendants
further and thus the order of dismissal would be binding on issuance.) Although I would
not imagine the present situation to represent a recurring problem, it offends my notions
of judicial efficiency to accord the status of “magic words” to a trial court’s oral
pronouncement, which then cannot be taken back after being recorded in the minutes.
(Cf. Castello, supra, 65 Cal.App.4th at p. 1249 [“A court could not operate successfully
under the requirement of infallibility in its interim rulings.”].) The result in the present
case is not an outcome that any of the parties desired for the deeply disturbed subject of
the proceedings (though the attorneys for Christopher B. were obligated to pursue it).

       This is not the tidiest collection of holdings to apply in the present case. Having
sewn this precedent together into one piece, perhaps this concurring opinion can inspire


3 The People may appeal an order of dismissal that does not implicate double jeopardy.
(People v. Eroshevich (2014) 60 Cal.4th 583, 589, fn. 3; Pen. Code, § 1238, subd. (a)(8).)
However, as I noted in the majority opinion (at p. 11, ante), a defective order of dismissal
pursuant to Penal Code section 1385 is not void, and a failure to make a
contemporaneous challenge forfeits the right to raise defects in the order on appeal.
4 Again, I note that the parties have not explored whether reindictment of Christopher B.
was an option in the criminal case after the court’s ruling. (Maj. opn., ante, at p. 10.)


                                              4
the Supreme Court to take the opportunity to tailor it more seamlessly on the question of
whether a final ruling also being “binding” plays any role in the holding of Smith.




                                                       BUTZ                  , J.




                                             5
