Filed 2/18/16




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE



In re LONNIE LOREN KOCONTES                             G051809

    on                                                  (Super. Ct. No. S223602)

Habeas Corpus.                                          OPINION



                  Original proceedings; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, William Lee Evans (Retired judge of the
Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.), and Gregg L. Prickett, Judges. Petition denied.
                  Law Offices of David M. Michael, David M. Michael and Edward M.
Burch for Petitioner.
                  Tony Rackauckas, District Attorney and Seton B. Hunt, Deputy District
Attorney, for Respondent.

                                                1
              No appearance for the Orange County Sheriff’s Department, Respondent.
              Lonnie Loren Kocontes filed a petition for writ of habeas corpus in the
California Supreme Court. In his habeas corpus petition, Kocontes argues the trial court,
Judge Gregg L. Prickett, erred by overruling his demurrer and denying his motion to
dismiss the indictment because collateral estoppel prevented him from reconsidering
Judge William Lee Evans’s ruling granting his previous motion to dismiss. The Supreme
Court ordered the Orange County Sheriff’s Department to show cause before this court
“why the relief prayed for should not be granted.” As we explain below, Kocontes’s
contentions have no merit, and we deny his petition for writ of habeas corpus.
                                          FACTS1
Substantive Facts
              We provide only a brief discussion of the facts because of the limited
nature of our review. In May 2006, Kocontes and his long-time partner, Micki Kanesaki,
went on a Mediterranean cruise; they had a balcony room. Early one morning, Kocontes
reported Kanesaki missing. Kocontes disembarked the ship, stayed in Italy for one
evening, and returned to the United States. That day, the Italian Coast Guard recovered
Kanesaki’s body off the Italian coast. An Italian chief medical examiner conducted the
autopsy while an Italian pathologist and a United States Army pathologist observed. The
examiner concluded Kanesaki was strangled by one assailant and put in the water where
she remained between 36 and 38 hours.2

1          Kocontes requests we take judicial notice of the records in case Nos.
G050582, G049056, and G048763. We grant his request. (Evid. Code, § 452, subd. (d).)

2               In his habeas corpus petition, Kocontes states, “Because of bruising, in the
thigh, the Italian medical examiner also concluded that an attempted sexual assault
occurred.” Kocontes does not provide a record reference for this statement. If he is
referring to the Italian medical examiner’s grand jury testimony, he is wrong. At the
grand jury, the examiner actually testified there was bruising on her legs but there was
“absolutely no[]” evidence she was sexually assaulted.


                                              2
Procedural Facts
              Italian authorities did not prosecute Kocontes for Kanesaki’s death, and a
federal grand jury did not indict him. A federal district court judge granted Kocontes’s
motion for summary judgment in a civil forfeiture action.
Case No. 13CF0463
              In February 2013, a complaint charged Kocontes with murder for financial
gain in People v. Kocontes (Super. Ct. Orange County, 2013, No. 13CF0463 (case
No. 13CF0463). (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(1), all further statutory
references are to the Pen. Code, unless otherwise indicated.) Kocontes filed a demurrer
and a nonstatutory motion to dismiss and/or quash the complaint alleging lack of
territorial jurisdiction of the state (§ 778a).3 Kocontes filed an amended demurrer and a
nonstatutory motion to dismiss alleging lack of territorial jurisdiction of the state
(§ 778a). The prosecution opposed the motion, and Kocontes replied.
              In April 2013, a first amended complaint (first complaint) charged
Kocontes with the same offense and added that he committed preliminary acts in Orange
County that culminated in the offense outside California (§ 778a). At a hearing the same
day, Judge Kazuharu Makino overruled Kocontes’s demurrer to the first complaint.
Judge Makino declined Kocontes’s request to consider his motion to dismiss for lack of
territorial jurisdiction, ruling the proper time to consider that motion was at the



3              The term “jurisdiction” can be problematic, i.e., personal jurisdiction,
subject matter jurisdiction, and venue. (See People v. Simon (2001) 25 Cal.4th 1082,
1096, fn. 7; see, e.g., Casey v. Superior Court (1989) 207 Cal.App.3d 837, 843-845
[venue case referring to venue jurisdiction as territorial jurisdiction].) In this case, we are
referring to the territorial jurisdiction of California, i.e. subject matter jurisdiction, to try
Kocontes and not venue. (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Jurisdiction and Venue, §§ 2, 17, 22 & 46.)


                                                3
preliminary hearing. Kocontes’s arraignment was continued. The following month, the
parties filed briefs on the issue of territorial jurisdiction.
               On May 16, 2013, Judge Evans arraigned Kocontes—he waived his right to
have his preliminary hearing within 10 days of his arraignment. The parties subsequently
filed briefs on the issue of territorial jurisdiction. At the end of May, there was a
three-day hearing before Judge Evans on Kocontes’s motion to dismiss for lack of
territorial jurisdiction based on stipulated facts. This hearing was separate from and
preceded a preliminary hearing.
               At the morning session of day three, Judge Evans granted Kocontes’s
motion to dismiss the case “for lack of territorial jurisdiction,” concluding section 778a,
subdivision (a), prohibited prosecution of a crime occurring outside the United States
(Judge Evans’s ruling). Judge Evans did not specify the statutory basis for the dismissal
order. Noting he was sitting as a “magistrate,” Judge Evans stated “none of [his]
decisions constitute stare decisis or anything that binds any other judicial officer[,]” and
he was “not at the level in which [his] rulings constantly bind some other judicial
officer.” After a discussion regarding whether the court must release Kocontes, the court
granted the prosecution a short recess.
Case No. 13CF1773
               During the recess, the prosecution filed a new complaint (second
complaint) alleging the same charge and allegations in People v. Kocontes (Super. Ct.
Orange County, 2013, No. 13CF1773 (case No. 13CF1773). When court resumed,
Judge Evans ordered Kocontes released in case No. 13CF0463—no preliminary hearing
was held in that case. When Judge Evans began arraigning Kocontes in case
No. 13CF1773, Kocontes’s defense counsel objected and orally moved to dismiss the
second complaint on the same grounds as the first complaint. After a discussion whether
the prosecution was prohibited from filing the second complaint, Judge Evans recessed
for lunch and ordered counsel back that afternoon to litigate the issue. When the hearing

                                                 4
resumed, Judge Evans denied Kocontes’s motion to dismiss the second complaint and
remanded Kocontes. Judge Evans granted Kocontes’s motion to continue his
arraignment. About a week later, Kocontes filed a demurrer, and motions to strike and
dismiss the second complaint.
Case No. 13ZF01634
              The grand jury heard testimony over two days in June 2013. The grand
jury returned a true bill of indictment alleging murder for financial gain with the
jurisdictional allegation (§§ 187, subd. (a), 190.2, subd. (a)(1), 778a, subd. (a)).
Judge Prickett, sitting in Department C5, ordered the indictment filed in People v.
Kocontes (Super. Ct. Orange County, 2013, No. 13ZF0163 (case No. 13ZF0163).
              At a hearing three days later, Judge Prickett noted an indictment supersedes
a complaint and the prosecution moved to dismiss the second complaint in case
No. 13CF1773, which Judge Prickett granted (§ 1387, subd. (c)). With respect to the
indictment, Kocontes stated he intended to incorporate his previously filed demurrer,
motion to strike, and motion to dismiss. When Judge Prickett indicated the matter would
“stay here” and inquired when the motion should be set, counsel asked, “You mean in
your court?” Judge Prickett indicated whether the case was assigned to another
department for hearing on the motions was within the master calendar judge’s discretion
and he set the matter for the following week. Judge Prickett stated he would consider
Kocontes’s motions from case No. 13CF0463.
              A few days later, the prosecution opposed Kocontes’s demurrer and
motions. Despite Judge Prickett’s agreement he would consider Kocontes’s motions
from case No. 13CF0463 (motions on the first complaint before Judge Evans) in case
No. 13ZF0163, Kocontes filed another demurrer, motion to strike the indictment, and
motion to dismiss the case, a reply, and a supplemental memorandum.

4               On October 29, 2015, on our own motion, we augmented the record with
the trial court minutes from case No. 13ZF0163.

                                              5
              At a hearing in June 2013, Judge Prickett indicated he had read and
considered the moving papers and counsel argued the motion. Judge Prickett stated he
intended to issue a written opinion. A few weeks later, the prosecution filed a
supplemental brief, and Kocontes filed a reply.
              On July 25, 2013, eight weeks after Judge Evans’s ruling, the Orange
County District Attorney appealed from the order granting Kocontes’s motion to dismiss
case No. 13CF0463, which became case No. G048763 on appeal.
              At a hearing days later, Judge Prickett stated he had considered the briefs,
and he informed counsel he overruled the demurrer and denied the motions to strike and
dismiss the indictment. Judge Prickett issued a lengthy written order detailing his rulings
(Judge Prickett’s ruling). First, Judge Prickett ruled the prosecution could file the second
complaint (§ 1387). Second, he ruled collateral estoppel did not apply because of the
following: (1) Judge Evans’s ruling was not final, and (2) assuming it was final,
collateral estoppel did not apply because (a) jeopardy had not attached; (b) collateral
estoppel did not apply to similar magistrate orders; (c) collateral estoppel had limited
application to legal issues in criminal cases; and (d) policy reasons precluded collateral
estoppel. Judge Prickett made his ruling while the appeal was pending in case
No. G048763 and before Kocontes was arraigned on the indictment.
              In September 2013, Kocontes filed and this court summarily denied his
petition for writ of habeas corpus, mandate, and/or prohibition and request for immediate
stay of Judge Prickett’s ruling, alleging lack of territorial jurisdiction, the two-dismissal
rule, and due process violations. (Kocontes v. Superior Court (Sept. 27, 2013, G049056)
[nonpub. order].)




                                               6
              Judge Lance Jensen, sitting in department C5, arraigned Kocontes on the
indictment on November 8, 2013. Kocontes pleaded not guilty and denied the
allegation.5 Judge Jensen assigned the case to Judge James A. Stotler.
              In December 2013, Kocontes filed, inter alia, the following: (1) motion to
set aside the indictment pursuant to section 995 and due process, alleging insufficient
probable cause and errors in the grand jury proceedings; and (2) motion to dismiss the
indictment for lack of territorial jurisdiction. The prosecution opposed the motions,
Kocontes filed replies, and the prosecution filed a response. In August 2014,
Judge Stotler denied Kocontes’s motion to set aside the indictment (§ 995). Judge Stotler
did not rule on Kocontes’s motion to dismiss the indictment for lack of territorial
jurisdiction, and based on our review of the record, that motion is still pending.
              In August 2014, Kocontes filed a petition for writ of habeas corpus,
mandate, and/or prohibition of Judge Stotler’s ruling alleging errors in the grand jury
proceedings. This court summarily denied the petition. (Kocontes v. Superior Court
(Aug. 28, 2014, G050582) [nonpub. order].)
              In early October 2014, after the district attorney failed to file a reply brief
and the matter was set for oral argument, the district attorney filed a notice of
abandonment of its appeal of Judge Evans’s ruling in case No. G048763. This court
dismissed the appeal. (People v. Kocontes (Oct. 6, 2014, G048763) [nonpub. order].)
              In December 2014, Kocontes filed a petition for writ of habeas corpus,
mandate, and/or prohibition alleging collateral estoppel barred Judge Prickett from
reconsidering Judge Evans’s ruling. This court summarily denied the petition. (Kocontes
v. Superior Court (Dec. 24, 2014, G051135) [nonpub. order].)




5             Kocontes mistakenly states he was arraigned on June 26, 2013.

                                              7
              In January 2015, Kocontes filed a petition for writ of habeas corpus in the
California Supreme Court, essentially the same habeas corpus petition he filed with this
court in December 2014, and which we denied. The only issue Kocontes raises in his
habeas corpus petition is collateral estoppel. However, in his petition he states, “If, for
some reason, this Court were to conclude that collateral estoppel does not bar this
prosecution, then it is respectfully requested that this Court decide the merits of the
jurisdictional issue.” He makes the same request in two other places citing to interests of
judicial economy. However, Kocontes does not discuss the merits of the jurisdictional
issue in his petition (and he does not discuss the election of remedies rule articulated in
Anderson v. Superior Court (1967) 66 Cal.2d 863 (Anderson). Kocontes requests the
Supreme Court issue an order to show cause (OSC), release him on his own recognizance
or set reasonable bail, and grant the habeas corpus petition thereby dismissing the
indictment and discharging him.
              The following month, the district attorney filed an informal response in
which it argues collateral estoppel is inapplicable. The district attorney adds Kocontes
requests the Supreme Court address the merits of the jurisdictional issue; the district
attorney does address the merits.
              The next month, Kocontes filed an informal reply. After addressing the
collateral estoppel issue, Kocontes asserts the Supreme Court should not address the
merits of the jurisdictional issue, asserting he did not invite the court to do so. Relying
on the fact he did not address the merits of the jurisdictional issue in the habeas corpus
petition, Kocontes adds he requested the court address the issue “through orderly
procedure if and only if the present writ petition (based on collateral estoppel) was
denied.” Nevertheless, Kocontes addresses the merits of the jurisdictional issue out of an
abundance of caution.




                                              8
              On April 22, 2015, the California Supreme Court issued an order which
stated: “The Orange County Sheriff’s Department is ordered to show cause before the
Court of Appeal, Fourth Appellate District, Division Three, when the matter is placed on
calendar, why the relief prayed for should not be granted.” The Supreme Court ordered
the return to be filed on or before April 24, 2015, two days later. On April 29, 2015,
acknowledging the error, the Supreme Court ordered the return filed by May 22, 2015,
but not before Kocontes filed a motion, dated April 27, 2015, requesting we grant his
habeas corpus petition because the district attorney did not file a return within the initial
and erroneous two-day deadline.
              The following month, the district attorney filed a return and accompanying
exhibits. In its return, the district attorney denies the habeas corpus petition’s allegations,
denies Kocontes is unlawfully incarcerated, and denies collateral estoppel applies. The
distict attorney admits Kocontes is in custody because he was indicted and asserts
California has territorial jurisdiction. After arguing collateral estoppel does not apply, the
district attorney again contends Kocontes alternatively requests we address the merits of
the jurisdictional issue—it again addresses the merits of that issue. The district attorney
does not cite to Anderson, supra, 66 Cal.2d 863, or address whether its election of
remedies was timely.6




6             At oral argument in November 2015, the district attorney sought to
distinguish Anderson, relying on Anthony v. Superior Court (1980) 109 Cal.App.3d 346.


                                               9
              Kocontes filed a traverse and accompanying exhibits.7 In his traverse,
Kocontes argues the following: (1) the district attorney’s admission of material facts
entitles him to relief; (2) collateral estoppel applies based in part on Anderson and the
prosecution’s untimely election of remedies; and (3) citing to the fact he did not discuss
the merits of the jurisdictional issue in his habeas corpus petition, this court should not
reach the merits of the jurisdictional issue, although he again addresses the merits out of
an abundance of caution.
              On July 31, 2015, this court invited the Orange County Sheriff’s
Department to file a formal written return. We also denied Kocontes’s request for bail or
release on his own recognizance, and stayed further proceedings. Later, the Orange
County Sheriff’s Department declined our invitation to file a return.
                                          DISCUSSION
I. Nature of Our Review
              Before we begin, we must clearly state the issues we are and are not
addressing in this habeas corpus petition. We address the collateral estoppel issue below.
However, we will not address the territorial jurisdiction issue because Kocontes did not
raise it in his habeas corpus petition.
              “‘The court determines on the basis of the allegations of the original
petition . . . , as well as the supporting documentary evidence and/or affidavits, which
should be attached if available, whether a prima facie case entitling the petitioner to relief
if the allegations are proven has been stated. If so, the court issues an order directing the

7              In his traverse’s table of contents, Kocontes states, “Falsities perpetuated by
a corrupt district attorney’s office that form the basis of the pending shameful state
criminal action against petitioner.” (Capitalization omitted; italics added.) “[A] reminder
to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy
does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility.
[Citations.] Zeal and vigor in the representation of clients are commendable. So are
civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of
Davenport (2011) 194 Cal.App.4th 1507, 1537.)

                                              10
respondent to show cause why the relief sought should not be granted based on those
allegations. When an [OSC] does issue, it is limited to the claims raised in the petition
and the factual bases for those claims alleged in the petition. It directs the respondent to
address only those issues.’” (In re Reno (2012) 55 Cal.4th 428, 458-459, fn. 15 (Reno).)
              Here, the only issue Kocontes raises in his habeas corpus petition is
collateral estoppel. He does not address the merits of the territorial jurisdiction in his
petition. In his informal response to the Supreme Court, Kocontes stated he asks the
court to address the merits of the territorial jurisdiction issue only if the court rejects his
collateral estoppel argument and “through orderly procedure.” And he acknowledges his
habeas corpus petition does not address the merits of the issue. In his traverse, he
requests this court not address the merits of the territorial issue, although he addresses the
merits out of an abundance of caution.
              The Reno court spoke clearly when it said that when a court issues an OSC,
“it is limited to the claims raised in the petition and the factual bases for those claims
alleged in the petition.” (Reno, supra, 55 Cal.4th at pp. 458-459, fn. 15.) Kocontes did
not raise and argue the merits of the territorial issue in his habeas corpus petition, and he
did not include the factual bases for the territorial jurisdiction claim. Thus, we limit our
discussion to collateral estoppel.
II. Collateral Estoppel/Issue Preclusion
              Kocontes argues the prosecution’s dismissal of its appeal of Judge Evans’s
ruling in case No. G048763, which occurred after Judge Prickett’s ruling on the
indictment, acts as collateral estoppel of that ruling and prohibits his prosecution for
Kanesaki’s death. We disagree.
              “We have generally applied collateral estoppel ‘if (1) the issue necessarily
decided at the previous trial is identical to the one which is sought to be relitigated; if
(2) the previous trial resulted in a final judgment on the merits; and if (3) the party
against whom collateral estoppel is asserted was a party or in privity with a party at the

                                               11
prior trial.’ [Citations.]” (People v. Santamaria (1994) 8 Cal.4th 903, 916.) We review
the applicability of collateral estoppel de novo. (Jenkins v. County of Riverside (2006)
138 Cal.App.4th 593, 618 (Jenkins).)
              Because we review the issue of collateral estoppel de novo, we need only
determine whether its elements are satisfied and not the reasons for Judge Prickett’s
ruling. The only element in dispute is the second element, finality. Before we address
that element, and Kocontes’s contentions, we briefly discuss one preliminary issue—does
collateral estoppel apply to purely legal issues in criminal cases.
A. Collateral Estoppel of Legal Issues in Criminal Cases
              “It is debatable whether the doctrine of collateral estoppel even applies to
pure questions of law.” (In re Bush (2008) 161 Cal.App.4th 133, 146, fn. 6; Jenkins,
supra, 138 Cal.App.4th at p. 621, People v. Conley (2004) 116 Cal.App.4th 566, 571;
In re Pedro C. (1989) 215 Cal.App.3d 174, 181.) However, People v. Howie (1995)
41 Cal.App.4th 729 (Howie), provides some authority for the conclusion collateral
estoppel does apply to legal issues in criminal cases, although in a different procedural
context.
              In that case, defendant pleaded guilty to robbery in 1973, and in 1979, he
was charged with another offense and the prosecution sought to enhance his punishment
on the basis of the 1973 robbery. (Howie, supra, 41 Cal.App.4th at p. 734.) Defendant
successfully argued the 1973 robbery was invalid and the prosecution did not appeal.
Defendant was charged with another offense in 1982 and, again, the prosecution sought
to enhance the punishment based on the 1973 robbery. Again defendant prevailed in
striking the 1973 robbery, and this time it was affirmed on appeal. The prosecution once
again tried to use the 1973 offense to enhance punishment for an offense occurring in
1993. (Id. at pp. 734-735.) The court held the prosecution could not continue to
relitigate the validity of the 1973 ruling that was never appealed: “[The 1973 ruling]
determined a matter of substantial right on an issue of law, and the People were a party to

                                             12
that proceeding. It was a determination based on the merits. The People did not
challenge the trial court’s ruling on appeal. The ruling was final. Subsequently, the
appellate court prohibited the People from relitigating the validity of the prior conviction.
The People are bound by these determinations.” (Id. at p. 736, italics added.)
              Although Judge Prickett concluded it was doubtful collateral estoppel
applied to legal issues in criminal cases as an alternative basis for denying Kocontes’s
motions, the district attorney does not assert this as a basis for denying Kocontes’s habeas
corpus petition. Assuming without deciding collateral estoppel applies to purely legal
issues in criminal cases, we conclude the elements of collateral estoppel were not
satisfied here.
B. Finality
1. Section 1387
              “It is, of course, the rule in this state that the magistrate’s order dismissing a
felony complaint is not a bar to another prosecution for the same offense, either by filing
a subsequent complaint [citations], or by seeking a grand jury indictment [citations].
Even a dismissal in the superior court following an order setting aside an information or
indictment is no bar to a future prosecution for the same offense. (. . . § 999; see also
§ 1387.)” (People v. Uhlemann (1973) 9 Cal.3d 662, 666 (Uhlemann).)
              Section 1387 “‘is “sometimes loosely described as establishing a
two-dismissal rule.’” (People v. Hatch (2000) 22 Cal.4th 260, 270 (Hatch), citing People
v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744.) Section 1387,
subdivision (a), establishes that “two dismissals pursuant to section 1385, 859b, 861, 871
or 995, bar retrial on felony charges except in limited circumstances.” (Hatch, supra,
22 Cal.4th at p. 270.)
              Section 1387, subdivision (a), provides in relevant part: “An order
terminating an action pursuant to this chapter, or [s]ection 859b, 861, 871, or 995, is a bar
to any other prosecution for the same offense if it is a felony or if it is a misdemeanor

                                              13
charged together with a felony and the action has been previously terminated pursuant to
this chapter, or [s]ection 859b, 861, 871, or 995, or if it is a misdemeanor not charged
together with a felony . . . .” Section 1387, subdivisions (b) [domestic violence
misdemeanors] and (c) [complaint & indictment], and section 1387.1 [two dismissals
violent felony excusable neglect] specify exceptions to the two-dismissal rule.
              In Burris v. Superior Court (2005) 34 Cal.4th 1012, 1016-1022 (Burris),
the California Supreme Court provided a detailed review of the rationale behind
section 1387 and its differing treatment of misdemeanors and felonies. As relevant here,
the court stated, “Felony prosecutions . . . are subject to a two-dismissal rule; two
previous dismissals of charges for the same offense will bar a new felony charge.”
(Burris, supra, 34 Cal.4th at p. 1019.) The court explained that because defendant, who
had been charged with a felony, “has had charges for the same offense dismissed once
before[,]” and “felony charges are subject to a two-dismissal rule, . . . section 1387 [did]
not bar the instant charges.” (Burris, supra, 34 Cal.4th at p. 1023.)
              Here, section 1387 did not prohibit the prosecution from either filing the
second complaint or obtaining an indictment and seeking dismissal of the second
complaint. As to filing the second complaint, the initial issue is whether Judge Evans’s
ruling constituted a termination of the action pursuant to section 1387. Kocontes filed a
nonstatutory motion to dismiss, and Judge Evans did not specify the statutory basis for
his ruling. “‘Because [section] 1387 refers to dismissals under specified statutes, it
presumably does not apply to a dismissal made on nonstatutory grounds [citation].’
[Citation.]” (Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 218 (Berardi).)
              But even if we were to conclude Judge Evans’s ruling did constitute a
termination of the action pursuant to section 1387, it was the first dismissal.
Section 1387 prohibits a new felony charge after two previous charges for the same
offense. (Burris, supra, 34 Cal.4th at p. 1023.) Pursuant to Burris, section 1387 did not



                                             14
prohibit the district attorney from filing the second complaint charging Kocontes with
murder for financial gain. (Burris, supra, 34 Cal.4th at p. 1023.)
              With respect to obtaining an indictment and seeking dismissal of the second
complaint, section 1387, subdivisions (c), specifically authorizes that procedure.
Section 1387, subdivision (c), provides: “An order terminating an action is not a bar to
prosecution if a complaint is dismissed before the commencement of a preliminary
hearing in favor of an indictment filed pursuant to [s]ection 944 and the indictment is
based upon the same subject matter as charged in the dismissed complaint, information,
or indictment.” An exception to the two-dismissal rule is when after a complaint has
been filed the prosecution seeks an indictment based on the same charges prior to the
preliminary hearing on the complaint. (Uhlemann, supra, 9 Cal.3d at p. 666.)
              People v. Cossio (1977) 76 Cal.App.3d 369 (Cossio), is instructive. In that
case, the prosecution dismissed the first complaint because it was unable to proceed and
later filed a second complaint. (Id. at pp. 370-371.) Before a preliminary hearing was
held on the second complaint, the grand jury returned an indictment. (Id. at p. 371.)
After the trial court ordered the second complaint dismissed, defendant argued the two
dismissals barred prosecution on the indictment. The Cossio court disagreed, explaining,
“In our case, however, the indictment with which we are concerned was returned while
the second municipal court complaint was still pending and there was, at that date, only
one dismissal by a magistrate.” (Ibid.) The court agreed with the prosecution “the
subsequent dismissal of the second complaint was merely to clear the court records of
what, in light of the return of the indictment, had become an unnecessary proceeding.”
(Id. at p. 372.) The court concluded the following: “The purpose of section 1387 is to
prevent improper successive attempts to prosecute a defendant. Where, as here, the
proceedings are ready to go forward, on an indictment properly filed, the subsequent
dismissal of a complaint involving the same facts does not involve the defendant in the
kind of successive prosecutions that section 1387 was designed to prevent. In fact, the

                                            15
proceedings below effectuated, rather than impeded, the statutory objective. Defendant
was relieved from the necessity of meeting the same charges in two different courts and
was left with one prosecution to answer and defend.” (Id. at p. 372; People v. Schlosser
(1978) 77 Cal.App.3d 1007, 1011 (Schlosser) [same].) Section 1387, subdivision (c), is
the Legislature’s codification of the principles set forth in Cossio and Schlosser.
(Berardi, supra, 160 Cal.App.4th at p. 222; Stats. 1984, ch. 924, § 1, p. 3090.)
                Here, after Judge Evans dismissed the first complaint, the prosecutor filed
the second complaint. Before the arraignment and the preliminary hearing on the second
complaint, the prosecution obtained an indictment. On the prosecutor’s motion,
Judge Prickett dismissed the second complaint. Pursuant to section 1387, subdivision (c),
and Cossio and Schlosser, this was permissible because the second complaint was a
“duplicate filing” and Kocontes was left with one prosecution to answer and defend.
Thus, Judge Prickett’s dismissal did not constitute a termination of the action pursuant to
section 1387. (Berardi, supra, 160 Cal.App.4th at p. 225.)
                Kocontes argues section 1387, subdivision (c), is applicable only when the
district attorney prevails on appeal. However, Kocontes cites to no authority to support
his contention. Kocontes does criticize the prosecution for the timing of filing the second
complaint and for judge shopping. A brief discussion of Uhlemann, supra, 9 Cal.3d 662,
is warranted.
                In that case, the majority held a magistrate’s dismissal pursuant to
section 1385 did not preclude the prosecution from a second filing of charges at a time
when felony charges could be refiled ad infinitum. (Uhlemann, supra, 9 Cal.3d at
p. 664.) The majority acknowledged though “the possibility that, in a particular case,
repeated prosecutions for the same offense could lead to harassment of the accused, and
we have no doubt that the courts retain the inherent power to protect against serious
abuses of prosecutorial discretion in this regard.” (Id. at p. 669.) In his dissent,



                                              16
Justice Mosk, joined by Justice Trainor, stated that instead of pursuing its proper remedy,
an appeal, the prosecutor engaged in “calculated forum shopping” in the grand jury where
the weakness of its case would not be exposed and defendant would not be present. (Id.
at p. 670, dis. opn. of Mosk, J.).) Justice Mosk opined this conduct only served to
undermine the integrity of the courts. (Id. at p. 671, dis. opn. of Mosk, J.).)
              First, we are bound to follow the majority opinion of the court and not the
dissenting opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Second, the abuses the Uhlemann dissent were concerned with were addressed in
1975, two years after Uhlemann, when the Legislature amended section 1387 to add the
felony dismissal limit. (Stats. 1975, ch. 1069, § 1, p. 2615 [amending § 1387 to add
felony dismissal limit]; Burris, supra, 34 Cal.4th at p. 1019 [until Legislature amended
section 1387 in 1975 interest in prosecuting felonies so great felony charges could be
refiled endlessly].) Third, as we explain above, the prosecution’s conduct was
permissible, and not uncommon. Finally, Judge Prickett’s decision to hear Kocontes’s
motions while sitting in Department C5, the master calendar court, while unusual, was
within his discretion. Thus, the prosecution was permitted to proceed first on the second
complaint and then on the indictment after dismissal of the second complaint. We must
now determine whether Judge Evans’s ruling had collateral estoppel effect on the
indictment in case No. 13ZF0163. We conclude it did not.
2. Section 1238
              Section 1238, subdivision (a)(1), authorizes the prosecution to appeal from
an order setting aside inter alia a complaint, and section 1238, subdivision (a)(8), permits
the prosecution to appeal from, “An order or judgment dismissing or otherwise
terminating all or any portion of the action including such an order or judgment after a
verdict or finding of guilty or an order or judgment entered before the defendant has been
placed in jeopardy or where the defendant has waived jeopardy.” Section 1238,
subdivision (b), provides: “If, pursuant to paragraph (8) of subdivision (a), the people

                                             17
prosecute an appeal to decision, or any review of such decision, it shall be binding upon
them and they shall be prohibited from refiling the case which was appealed.”
               In Anderson, supra, 66 Cal.2d at page 864, immediately after the dismissal
order of the indictment under section 995, the prosecution filed a notice of appeal from
the order setting aside the indictment. Two weeks later, while the appeal was pending,
the court held a hearing to determine if an information could be filed against defendant.
(Ibid.) After a preliminary hearing, defendant was held to answer, an information was
filed, and the matter was set for trial. (Ibid.) Prior to the jury being sworn, the trial court
inquired whether it had subject matter jurisdiction due to the pending appeal. (Ibid.)
Defendant filed a writ petition seeking a determination of the jurisdictional issue, arguing
he should not be compelled to defend the appeal and simultaneously prepare for trial.
(Id. at p. 865.)
               The California Supreme Court in Anderson, characterizing section 1238 as
an “important right” of the prosecution, stated “the People may simultaneously file an
appeal from the dismissal of the first pleading and seek a new accusation.” (Anderson,
supra, 66 Cal.2d at pp. 864, 866.) The court added, however, the prosecution must elect
between the two remedies “to foreclose the possibility of harassment of the defendant,
and to that end the People should elect as soon as feasible between maintaining the
appeal or proceeding under the new accusatory pleading. At the latest, this election
should occur either when the new accusatory pleading withstands a motion under
section 995 or at the time of arraignment for plea, whichever first occurs. We thereby
assure the People an opportunity to obtain a valid accusatory pleading on which to go to
trial, yet also guarantee that the defendant will not be called upon to defend an appeal and
at the same time a trial on the basis of a second accusation, both resulting from the same
alleged crime.” (Id. at p. 867, italics added.)
               Here, as we explain above, the prosecution could properly file the second
complaint because the action had been terminated just once, and obtain an indictment and

                                              18
dismiss the second complaint (§ 1387, subd. (c)). The prosecution was also permitted to
appeal Judge Evans’s ruling granting Kocontes’s motion to dismiss for lack of territorial
jurisdiction (§ 1238). Additionally, the prosecutor made its election of remedies,8
dismissing the appeal of Judge Evans’s ruling after obtaining the indictment as required
by Anderson, supra, 66 Cal.2d at page 867. The issue we must decide is what effect the
prosecution’s dismissal of its appeal in October 2014 had on Judge Prickett’s ruling in
July 2013.

8              An interesting issue but unfortunately one that is not before us is the
timeliness of the district attorney’s election of remedies. The Anderson court stated the
prosecution must exercise its election of remedies “when the new accusatory pleading
withstands a motion under section 995 or at the time of arraignment for plea, whichever
first occurs.” (Anderson, supra, 66 Cal.2d at pp. 864, 867, italics added.)
               Judge Evans made his ruling on May 31, 2013. On June 14, 2013,
Judge Prickett ordered the indictment filed. The prosecution appealed from
Judge Evans’s ruling on July 25, 2013, eight weeks after Judge Evans’s ruling and six
weeks after the indictment. Judge Jensen arraigned Kocontes in November 2013, and
Judge Stotler denied Kocontes’s section 995 motion in August 2014. The prosecution
dismissed its appeal in October 2014, 11 months after Kocontes was arraigned and when
the prosecution should have made its election pursuant to Anderson.
               In his habeas corpus petition, Kocontes does not cite to Anderson or
provide any meaningful discussion of this issue, nor does he discuss section 1238 in any
meaningful way. Kocontes asserts in conclusory fashion the prosecution’s abandonment
of its appeal on the eve of oral argument after “15 months” forced Kocontes to “expend
scarce resources.” Kocontes does cite to Anderson and develop this argument more fully
in his informal reply and traverse. The argument that dismissal of an appeal authorized
by section 1238 renders the judgment final necessarily includes the argument the
prosecution’s decision to file and dismiss that appeal was untimely. These allegations
and facts should have been in the petition.
               “‘While the traverse may allege additional facts in support of the claim on
which an order to show cause has issued, attempts to introduce additional claims or
wholly different factual bases for those claims in a traverse do not expand the scope of
the proceeding which is limited to the claims which the court initially determined stated a
prima facie case for relief.’ [Citations.] [¶] For similar reasons, belatedly raising new
claims or theories for the first time in the informal reply brief [citation] is also improper.
‘If the imprisonment is alleged to be illegal, the petition must also state in what the
alleged illegality consists.’ [Citation.]” (Reno, supra, 55 Cal.4th at pp. 458-459, fn. 15.)
Kocontes did not adequately raise the timeliness of the election of remedies in his habeas
corpus petition, and thus that issue is not before us.

                                             19
              Kocontes asserts Judge Evans’s ruling in case No. 13CF0463 was final for
purposes of collateral estoppel in the indictment case, case No. 13ZF0163, before
Judge Prickett because the prosecution dismissed its appeal of Judge Evans’s ruling. The
extent of Kocontes’s argument on this issue is the following: At the hearing,
Judge Prickett stated Judge Evans’s ruling was not final because it was on appeal and
thus Judge Evans’s ruling is final because the prosecution later dismissed its appeal.
              Needless to say, Judge Prickett’s comments about the procedural posture of
the case at the time of his ruling are not binding on this court. Kocontes also cites to
People v. Sims (1982) 32 Cal.3d 468 (Sims), superseded by statute as stated in Gikas v.
Zolin (1993) 6 Cal.4th 841, 851 (Gikas), but he does not explain how Sims is relevant.
When a party asserts a point but fails to support it with reasoned argument and citations
to relevant authority, we may treat the argument as waived and disregard it. (People v.
Stanley (1995) 10 Cal.4th 764, 793.)
              Kocontes’s assertion the prosecution’s dismissal of its appeal of
Judge Evans’s ruling renders Judge Evans’s ruling final for purposes of collateral
estoppel, and invalidates Judge Prickett’s prior ruling, contradicts the plain meaning of
sections 1387 and 1238. Judge Prickett made his ruling while the appeal was pending in
case No. G048763 and before Kocontes was arraigned on the indictment. Kocontes
contends the prosecution’s only remedy was its appeal of Judge Evans’s ruling. But
section 1387 expressly allows refiling of a dismissed case, and section 1238 authorizes
the prosecution to appeal from the order dismissing the case and elect which to pursue.
Had the prosecution pursued the appeal of Judge Evans’s ruling and this court issued an
opinion, Judge Evans’s ruling would be final (§ 1238, subd. (b)). But the prosecution
chose to obtain an indictment while the appeal was pending in case No. G048763 and
later dismiss that appeal, which is authorized by sections 1387 and 1238. Acceptance of
Kocontes’s theory would render the election of remedies provision meaningless.



                                             20
Judge Evans’s ruling did not have collateral estoppel effect in the newly filed case.
Although one superior court judge may not overrule another superior court judge (People
v. Goodwillie (2007) 147 Cal.App.4th 695, 713 [“rule that one superior court judge may
not reconsider the previous ruling of another superior court judge”]), Judge Prickett did
not overrule Judge Evans because they presided over different causes.
              Kocontes’s reliance on Sims, supra, 32 Cal.4th 468, is meritless. In Sims,
the court held an administrative determination defendant had not engaged in welfare
fraud barred the State—under the doctrine of collateral estoppel—from prosecuting
defendant for a criminal offense involving the same conduct. (Sims, supra, 32 Cal.4th at
pp. 479, 489-490.) Sims is inapplicable because the identical factual allegations at issue
in the administrative hearing were at issue in the criminal prosecution. At issue here was
a legal question decided before the preliminary hearing in a different case. Additionally,
in response to Sims, the California Legislature enacted legislation stating administrative
proceedings have no collateral estoppel effect in criminal prosecutions. (Gikas, supra,
6 Cal.4th at p. 851; see Veh. Code, §§ 13353.2, subd. (e), 13557, subd. (f), 13558,
subd. (g), 13559, subd. (b).) Therefore, the prosecution’s dismissal of its appeal of
Judge Evans’s ruling did not render that decision final in the indictment case before
Judge Prickett for purposes of collateral estoppel.
C. Collateral Estoppel’s Policies
              The policies underlying collateral estoppel are the following:
(1) minimizing repetitive litigation to promote judicial economy; (2) preventing
inconsistent judgments to promote integrity of the judicial system; and (3) preventing a
person from being harassed by vexatious litigation. (Lucido v. Superior Court (1990)
51 Cal.3d 335, 343.) Kocontes contends the policies underlying collateral estoppel
require its application in this case. Not so.




                                                21
               First, although promoting judicial economy is a factor to be considered in
every case, as we explain above, the prosecution’s election of remedies was authorized
by statute. Section 1238 authorizes the prosecution to appeal in a dismissed case,
section 1387 allows filing a new case, and Anderson requires the prosecution to elect
between which to pursue. Second, it is true Judge Prickett’s ruling is inconsistent with
Judge Evans’s ruling. But we are not convinced this undermines trust in the judicial
system. As we explain above, the rulings were in different cases. Criminal law’s
statutory framework allows for multiple charging documents in early stages of the
proceedings.
               Finally, filing a new complaint and obtaining an indictment that superseded
the complaint after appealing Judge Evans’s ruling cannot be considered vexatious
litigation. The appeal and the filing of a new complaint and obtaining an indictment were
authorized by statute. As we explain above, the issue of the timing of the election of
remedies is not before us. None of the policies underlying application of collateral
estoppel outweigh the prosecutor’s statutory right to file a new case. Therefore, the
policies underlying collateral estoppel do not require its application in this case
D. Habeas Corpus Procedure
               In his traverse, citing to California Rules of Court, rule 8.385(d), and case
authority holding issuance of an OSC indicates a court’s preliminary assessment
petitioner is entitled to relief if the factual allegations are proved, Kocontes claims that
because the district attorney admitted procedural facts the California Supreme Court
already considered when issuing its OSC, this court must grant Kocontes’s petition and
order him released. Not so.
               California Rules of Court, rule 8.385(d), provides: “If the petitioner has
made the required prima facie showing that he or she is entitled to relief, the court must
issue an [OSC]. An [OSC] does not grant the relief sought in the petition.” (Italics
added.) We need not provide a detailed treatise on habeas corpus practice. Suffice it to

                                              22
say, after the petitioner files a habeas corpus petition and a court issues an OSC
signifying its preliminary determination of a prima facie case for relief, the respondent
may file a return alleging facts establishing the legality of the petitioner’s confinement
and respond to the petitioner’s contentions the confinement is unlawful. Any facts not
denied in the return are admitted as true. In response to the return, the petitioner may file
a traverse and like the return any facts not denied in the traverse are admitted as true.
(See People v. Duvall (1995) 9 Cal.4th 464, 474-479 [providing an exhaustive discussion
of habeas corpus practice] (Duvall).)
              In Duvall, the California Supreme Court explained: “‘[W]here there are no
disputed factual questions as to matters outside the trial record, the merits of a habeas
corpus petition can be decided without an evidentiary hearing.’ [Citations.] Thus,
‘[w]hen the return effectively admits the material factual allegations of the petition and
traverse by not disputing them, we may resolve the issue without ordering an evidentiary
hearing.’ [Citation.]” (Duvall, supra, 9 Cal.4th at pp. 478-479, italics added.)
              Here, the district attorney admitted Kocontes was indicted for the murder of
Kanesaki, was in custody, and asserted California has jurisdiction over him pursuant to
section 778a, subdivision (a). The district attorney denied the other allegations in
Kocontes’s habeas corpus petition, including that collateral estoppel prohibited
prosecution of Kocontes in the indictment. Contrary to Kocontes’s assertion otherwise,
the California Supreme Court’s OSC in conjunction with the district attorney’s admission
does not automatically entitle Kocontes to relief. The district attorney did not admit any
facts establishing collateral estoppel applies in this case. As Duvall stated, when there
are no disputed factual questions because a return effectively admits the petition’s factual
allegations, the court may resolve the legal issue without an evidentiary hearing. (Duvall,
supra, 9 Cal.4th at pp. 478-479.) That there are no disputed factual questions when a
return effectively admits the petition’s factual allegations does not automatically entitle
the petitioner to the relief requested without addressing the merits of the legal issue.

                                             23
                                DISPOSITION
         The petition for writ of habeas corpus is denied.




                                            O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.




                                       24
THOMPSON, J., Dissenting—I respectfully dissent. Judge Evans granted Kocontes’s
motion to dismiss in case No. 13CF0463 “for lack of territorial jurisdiction.” As I will
explain, a dismissal for lack of territorial jurisdiction is not a dismissal in the furtherance
of justice within the meaning of Penal Code section 1385 (all further statutory references
are to this code), and it is not subject to the “two-dismissal” rule of section 1387.
               “A dismissal for lack of territorial jurisdiction is qualitatively different
from those situations in which dismissals in the furtherance of justice [under section
1385] have been approved. In the former situation, the court is not empowered to hear
the case; in the latter it chooses to dismiss the case because other factors outweigh its
authority to act.” (Casey v. Superior Court (1989) 207 Cal.App.3d 837, 844 (Casey).)
              The conclusion that a dismissal for lack of territorial jurisdiction is not a
dismissal under section 1385 is supported by the fact a number of methods exist to
challenge a court’s power to hear a case. If a court acts in excess of its territorial
jurisdiction, a defendant may seek relief through extraordinary measures such as habeas
corpus to prevent a court from proceeding. (§ 1487; In re Huber (1930) 103 Cal.App.
315.) Likewise, the lack of territorial jurisdiction may be raised in a motion for new trial
or on appeal. (See, e.g., People v. Gerundo (1952) 112 Cal.App.2d 863, 865–869.)
              Further, section 1385 explicitly limits the types of dismissals which can be
considered to have been made in the furtherance of justice by providing: “A dismissal
shall not be made for any cause that would be ground of demurrer to the accusatory
pleading.” (§ 1385, subd. (a).) Lack of jurisdiction is a ground for demurrer. (§ 1004,
subd. (1).) And because this type of defect cannot be cured by amendment, an action in
excess of territorial jurisdiction must be dismissed pursuant to section 1008 after the
demurrer is sustained, which is exactly what Judge Evans did in case No. 13CF0463.
              Finally, dismissals made pursuant to section 1008 are not among the
terminating orders specifically enumerated in section 1387. So the two-dismissal rule of
section 1387 does not apply. (Casey, supra, 207 Cal.App.3d at pp. 844-845.)

                                               1
              In sum, Judge Evans’s dismissal for lack of territorial jurisdiction in case
No. 13CF0463 was not a dismissal within the meaning of section 1385 and the two-
dismissal rule of section 1387 did not apply. For these reasons: (a) the People were not
authorized to file the complaint in case No. 13CF1773 or seek the indictment in case No.
13ZF0163; and (b) the only manner in which the People were authorized to challenge the
dismissal was to appeal, which they did, although they later abandoned that appeal.
              Under these circumstances, Judge Prickett erred by overruling Kocontes’s
demurrer and denying his motion to dismiss in case No. 13ZF0163. To hold otherwise is
to permit prosecutorial forum shopping, to sanction refilling dismissed charges in the
hope that a different judge will view the territorial jurisdiction issue more favorably, and
to deprive this court of its jurisdiction to review the correctness of Judge Evans’s ruling.
The petition for habeas corpus must be granted to prevent the trial court from proceeding.




                                                  THOMPSON, J.




                                              2
