Filed 10/21/19
                              CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION THREE


 THE PEOPLE,
            Plaintiff and Appellant,
                                                      A153473
 v.
 ANGEL SANCHEZ,                                       (City & County of San Francisco
                                                      Super. Ct. No. MCN17010380)
            Defendant and Respondent.


        Defendant and appellant Angel Sanchez was charged with robbery, assault with a
deadly weapon on a transit passenger, and receiving stolen property. He successfully
moved to dismiss the complaint for prosecutorial vindictiveness. The People moved to
reinstate the complaint under Penal Code section 871.5. The superior court denied
reinstatement because the magistrate’s dismissal was not grounded on one of the statutes
enumerated in Penal Code section 871.5. We affirm.
                                        BACKGROUND
        In January 2016, Sanchez was charged with robbery (Pen. Code, § 211) 1, assault
with a deadly weapon on a transit passenger (§ 245.2), and receiving stolen property (§
496, subd. (a)) for acts against victim R.D. alleged to have occurred on a Muni bus on
January 26, 2016. The People dismissed the complaint due to victim unavailability.
        In July 2016, Sanchez was charged with another robbery (§ 211), assault with
force likely to cause great bodily injury (§ 245, subd. (a)(4)), and vandalism (§ 594, subd.
(b)(1)) for acts against a different victim on a city street alleged to have occurred on July
20, 2016. He rejected all plea offers and proceeded to trial on the July charges. In


        1
            All statutory references are to the Penal Code unless otherwise stated.

                                                1
preparation for jury trial, the prosecutor sought to locate R.D. from the January crime to
testify as a witness under Evidence Code section 1101, subdivision (b) (uncharged acts).
After several attempts, R.D. was eventually served with a subpoena to appear, and he
testified at trial. The jury found Sanchez guilty of misdemeanor assault (§ 240) and
felony vandalism (§594, subd. (b)(1)). The jury hung on the robbery count, and the trial
court deferred sentencing until the prosecution decided whether it would retry the charge.
       In July 2017, approximately a week before sentencing, the prosecution re-filed the
previously dismissed case against Sanchez alleged in the January 2016 complaint. The
prosecution informed the trial court that it would dismiss the robbery count but proceed
on the re-filed January 2016 case. Sanchez was sentenced for the assault and felony
vandalism. 2
       In August 2017, before the preliminary hearing, Sanchez moved to dismiss the re-
filed complaint based upon the January 2016 incident for vindictive prosecution in
violation of his constitutional right to due process. The magistrate judge found a
presumption of vindictiveness and granted the motion. He explained the reasons for
dismissal in a 19-page opinion which referenced no statutory grounds for the disposition.
However, the court’s minutes stated the case was dismissed “PURSUANT TO PENAL
CODE 1385 FOR REASONS STATED ON THE RECORD.”
       The People moved to reinstate the re-filed complaint pursuant to section 871.5.
The superior court denied the motion. The People appeal.
                                      DISCUSSION
                                    A. Section 871.5
       The People argue the superior court erred when it concluded the magistrate’s
dismissal could not be reinstated under section 871.5.
       “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

       2
        In People v. Sanchez (Feb. 28, 2019, A152088) [non-pub. opn.], this court
affirmed the trial court’s refusal to reduce his felony vandalism conviction to a
misdemeanor.

                                             2
Code, 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.” (§ 871.5, subd. (a).) The
statute allows the prosecution to seek review of the magistrate’s dismissal in the superior
court and request reinstatement of the charges “under the same terms and conditions as
when the defendant last appeared before the magistrate.” (Ibid.)
       The superior court denied the prosecution’s motion to reinstate the complaint
against Sanchez. The superior court considered the motion improper because the
dismissal was for vindictive prosecution and not based on any of the statutes enumerated
in section 871.5. The superior court concluded the magistrate dismissed the complaint
pursuant to Twiggs v. Superior Court (1983) 34 Cal.3d 360 (Twiggs) and In re Bower
(1985) 38 Cal.3d 865 (Bower), neither of which reference the statutes enumerated in
section 871.5. As we will explain, review of a magistrate’s decision is strictly limited to
orders based upon the statutes specified in section 871.5. Since the magistrate dismissed
the re-filed complaint against Sanchez on constitutional grounds not listed in section
871.5, the superior court did not err when it denied the motion to reinstate.
       In People v. Hanley (1992) 4 Cal.App.4th 340 (Hanley) disapproved on other
grounds in People v. Williams (2005) 35 Cal.4th 817 (Williams), the defendant was
charged with violations of Vehicle Code section 23152 for driving under the influence.
(Id. at p. 342.) The complaint further alleged three prior convictions which made the
pending offense punishable as a felony or misdemeanor. (Ibid.) Hanley moved to strike
one of the prior convictions under Vehicle Code section 41403, which permitted a
defendant to bring a constitutional challenge to a conviction under Vehicle Code section
23152. (Id. at p. 343.) The magistrate granted Hanley’s motion to strike and, with only
two prior convictions remaining, determined the charges were misdemeanors as a matter
of law and transferred the cause to the municipal court. (Id. at pp. 342, 345.) The People
unsuccessfully moved for reinstatement under section 871.5 and appealed. (Id. at p. 342.)
       The appeal was dismissed. (Hanley, supra, 4 Cal.App.4th at p. 342.) The Hanley
court explained that the plain language of section 871.5 “evidences an intent to permit
superior court review of dismissal orders by magistrates when a complaint has been


                                             3
dismissed pursuant to specifically enumerated statutory authority.” (Id. at p. 345.) The
court held the prosecution was not entitled to review under section 871.5 because the
magistrate had not acted pursuant to any of its specified statutes. (Ibid.) Since the prior
conviction was dismissed pursuant to Vehicle Code section 41403, and it was not one of
the statutes then listed in section 871.5 3, the superior court lacked jurisdiction to reinstate
the complaint. (Ibid.) The court rejected the People’s argument that the magistrate’s
dismissal was actually pursuant to section 1385, one of the enumerated statutes. 4 (Id. at
p. 343-344.) The court noted that the defendant moved for dismissal on constitutional
grounds and specifically identified the proceeding as a “Vehicle Code motion.” (Ibid.)
The court “ha[d] no doubt that this was a motion pursuant to Vehicle Code section 41403,
and that the magistrate, following the procedures set forth therein, dismissed the . . .
conviction pursuant to that statute.” (Id. at p. 344.)
       The Supreme Court adopted a similarly narrow construction of section 871.5 in
Williams, supra, 35 Cal.4th 817, in which it observed that “[c]ourts have resisted
prosecutors’ efforts to expand the reach of section 871.5 beyond its terms.” (Id. at
p. 825.) In Williams, after the preliminary hearing, a magistrate had reduced two charged
felonies to misdemeanors pursuant to section 17, subdivision (b)(5). (Id. at p. 820.) The
People moved to reinstate the felony complaint pursuant to section 871.5, and the motion
was denied. (Id. at p. 822.) The trial court reasoned that the magistrate’s reduction of the
felonies to misdemeanors could not be construed as a dismissal of the felony complaint,



       3
        At the conclusion of its opinion, the Hanley court stated: “We therefore defer to
the Legislature to determine whether, in the future, a magistrate’s order striking a prior
under Vehicle Code section 41403 should be included within the scope of section 871.5.”
(Hanley, supra, 4 Cal.App.4th 340, 347.) In 1993, the Legislature amended section 871.5
to add Vehicle Code section 41403 to the list of dismissal orders that could be reviewed
pursuant to section 871.5. (Stats.1993, ch. 542, § 1, p. 2743; see Williams, supra, 35
Cal.4th at pp. 827-828.)
       4
         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.”

                                               4
so it lacked the authority to consider the motion. (Ibid.) The Supreme Court agreed that
section 871.5 did not provide the People a vehicle to seek reinstatement of a felony
complaint that had been reduced under section 17, subdivision (b)(5). (Id. at p. 824.)
The Court explained section 871.5 was not a vehicle for reviewing all dismissals by
magistrates and cited Hanley for the point that “ ‘[t]he plain language of 871.5 evidences
an intent to permit superior court review of dismissal orders by magistrates when a
complaint has been dismissed pursuant to specifically enumerated statutory authority’[.]
[Citations.]” (Id. at p. 827.) The Williams court concluded, “The list of dismissal orders
that may be reviewed pursuant to section 871.5 does not include an order under section
17(b)(5) that a wobbler offense that was charged as a felony is a misdemeanor, and we
decline to add it.” (Id. at p. 828.)
       We reach the same conclusion here as in Hanley and Williams, the latter of which
we are bound to follow. Sanchez moved for dismissal on constitutional grounds. The
basis for his motion was stated as “state retaliation for Sanchez’s rejection of a plea
bargain and his successful exercise of his right to a jury trial, violating Due Process (5th
Amend. US Const; art 1, §§ 7, 15).” He never cited section 1385 or any other statutory
basis for relief. Even the prosecution’s opposition, captioned “People’s Response and
Opposition to Defendant’s Non-Statutory Motion to Dismiss,” reflects an understanding
that Sanchez’s motion was not based on any statute. (Italics added.) Nor was the
magistrate’s dismissal based on statutory grounds. The magistrate’s 19-page written
order cited no statute as grounds for dismissal. Rather, the magistrate relied on Twiggs,
supra, 34 Cal.3d 360, and Bower, supra, 38 Cal.3d 865, neither of which were decided
under section 1385, as the superior court correctly observed. Also, when announcing the
decision, the magistrate referred to the written opinion, read aloud its conclusion, and
made no reference to any statutory basis for the decision. We have no doubt that
Sanchez’s motion to dismiss for vindictive prosecution was made and decided as a matter
of constitutional due process. Such a dismissal is not one of the enumerated orders that
may be reviewed pursuant to section 871.5, and we cannot add it.



                                              5
       The People remind us the minute order reflecting the magistrate’s dismissal states
the case was dismissed “ ‘pursuant to Penal Code 1385 for reasons stated on the
record.’ ” This does not change the result. Entering the order in the minutes is a purely
clerical function. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Where there is a
discrepancy between the court’s oral pronouncement and the entry in the minutes, we
presume the discrepancy results from clerical error in recording the court’s order. (Ibid.;
cf. In re Jerred H. (2004) 121 Cal.App.4th 793, 798, fn.3 [entry of minute order signed
by a judge is not a ministerial act].) The magistrate’s oral pronouncement referred to the
19-page opinion, and neither the pronouncement or the opinion referred to section 1385.
Both control over the minutes. (See People v. Rodriguez (2013) 217 Cal.App.4th 326,
333-334.) The People contend the conflicting record must be harmonized. Where a
lengthy written opinion signed by the magistrate clearly sets forth the grounds for the
magistrate’s dismissal, we need not do so.
       The People argue that a magistrate’s dismissal on constitutional grounds is
“necessarily a statutory dismissal” because “ ‘[a] magistrate’s powers at a felony
preliminary hearing are purely statutory.’ ” The People further contend that because “the
powers of magistrates are limited by statutes, courts have construed dismissals on
constitutional grounds to be statutory dismissals pursuant to section 1385.” Neither do
these contentions persuade us.
       While magistrates are undoubtedly “creature[s] of statute” (People v. Shrier
(2010) 190 Cal.App.4th 400, 419; see §§ 807, 808), we reject the suggestion that
magistral authority is limited to acts expressly conferred by statute or that must be
construed as statutory. In re Geer (1980) 108 Cal.App.3d 1002 (Geer) illustrates the
point. There, Geer was charged with possession of cocaine after he had been previously
convicted of misdemeanor marijuana possession stemming from the same arrest. (Id. at
p. 1004.) He demurred to the felony complaint on the ground that he was being subjected
to multiple prosecutions. The magistrate decided it had no jurisdiction to hear the
demurrer and transferred the matter to the superior court. (Ibid.) The court of appeal
observed that the Legislature “ha[d] not expressly stated who shall hear and rule on the


                                             6
demurrer.” (Id. at p. 1007.) Nonetheless, the court explained, “Statutory interpretation,
judicial precedent, traditional concepts of due process and fair play, and judicial economy
compel our conclusion that the magistrate, who has the power to entertain a felony
complaint, arraign a defendant thereon, appoint counsel if necessary, take defendant’s
plea, hold a preliminary hearing and either hold him to answer or discharge defendant
(Cal. Const., art. I, § 14; Pen. Code, § 859 et seq.), is also empowered as an integral part
of that preliminary process to hear and rule on a demurrer to a felony complaint and, if
the demurrer is sustained and the defect cannot be corrected, has the inherent power to
dismiss the complaint.” (Ibid.) The statutory framework for the handling of felony
complaints convinced the court “that it was not the intent of the Legislature that a
defendant have the right of demurrer as early as the arraignment but not the right to have
it heard and decided by the magistrate.” (Ibid.) Even without express statutory
authorization, the court recognized the magistrate’s authority to rule on a demurrer and to
dismiss the complaint if the defect cannot be cured. Geer undermines the People’s
argument that a magistrate’s powers are “purely statutory.”
       We also reject the People’s argument that the magistrate’s dismissal was
necessarily statutory pursuant to section 1385. 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.”
Section 1385 permits the court, the magistrate, or the People to move for dismissal but
makes no provision for a defendant to bring such a motion. Since the motion to dismiss
here was made by Sanchez, it cannot be deemed a section 1385 motion. (See People v.
Andrade (1978) 86 Cal.App.3d 963, 973 [“The Legislature limited the right to initiate the
use of the authority of section 1385 to the People and to the court. Granting a
defendant’s motion cannot be properly characterized as a dismissal of charges in
furtherance of justice as authorized by Penal Code section 1385.”].)
       The cases the People rely on for the proposition that magistrate dismissals on
constitutional grounds are to be construed as statutory dismissals pursuant to section 1385
are unavailing.


                                              7
       In People v. Shrier, supra, 190 Cal.App.4th 400, the magistrate dismissed an
action due to prosecutorial misconduct, and the superior court denied the People’s section
871.5 motion to reinstate the complaint. (Id. at p. 405.) The defendant argued the
dismissal could not be reinstated because the basis for the dismissal was not listed in
section 871.5. (Ibid.) The court concluded the motion for dismissal was predicated upon
specific case law premised on section 1385, one of the statutes listed in section 871.5.
(Id. at pp. 410-411.) Here, however, the magistrate issued a detailed order dismissing the
case based on authorities not reliant on section 1385.
       In People v. Konow (2004) 32 Cal.4th 995 (Konow), the magistrate dismissed a
complaint charging the defendants with the sale of marijuana. (Id. at p. 1006.) The
People successfully moved to reinstate the complaint under section 871.5. (Id. at
p. 1007.) Both the People and the defendants took the position that the magistrate “had
dismissed the complaint both for the absence of a crime or of probable cause under
section 871, and also in furtherance of justice under section 1385.” (Id. at pp. 1007-
1008.) The parties did not dispute the statutory grounds for the magistrate’s dismissal
and both statutes were expressly subject to 871.5 review. Whether the magistrate’s
dismissal was proper under section 871.5 was never an issue before the Court. Konow is
not authority for a proposition the court did not consider or questions it did not decide.
(See People v. Braxton (2004) 34 Cal.4th 798, 819 (Braxton).)
       In Chism v. Superior Court (1981) 123 Cal.App.3d 1053, the sole issue the court
considered was whether the superior court exceeded its authority under section 871.5
when, after granting reinstatement, it proceeded to rule on the issue of probable cause
rather than returning the case to the magistrate. (Id. at p. 1056.) The court did not
consider whether section 871.5 relief was available and instead presumed the magistrate’s
dismissal on Fifth and Sixth Amendment grounds was pursuant to section 1385, an issue
that was not disputed. (Id. at pp. 1061-1062.) Chism is not authority for the issue before
us. (See Braxton, supra, 34 Cal.4th at p. 819)
       Since we conclude the superior court did not err when it denied reinstatement, it is
unnecessary for us to review the merits of the dismissal for vindictive prosecution.


                                              8
   B. Appellate Review of Magistrate Dismissals on Grounds Not in Section 871.5
       The People contend that “because it is not clear whether the People can appeal
directly to the Court of Appeal from a magistrate’s ruling [citations], clarification by this
court of the limits of the magistrate’s power is necessary. Without clarification, the
People are required to protect their appellate rights by filing section 871.5 motions even
where a magistrate dismisses on constitutional grounds, and if the superior court fails to
address the merits, required to seek further review in the appellate courts. In order to
avoid unnecessary litigation in the courts of appeal, this court should make clear that
dismissals like the one issued by the magistrate in this case must be pursuant to section
1385.” As explained above, the magistrate dismissed Sanchez’s case pursuant to
constitutional due process grounds, not section 1385. In this appeal, we decide that a
dismissal on such constitutional grounds cannot be reviewed under section 871.5 because
it is not a statutory ground within the scope of the statute. Since the People have not
directly appealed the magistrate’s dismissal, the issue of appellate review of the
magistrate’s dismissal on grounds not listed in section 871.5 is not properly before us and
we render no opinion on that issue. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084
[As a general rule, reviewing courts do not “ ‘adjudicate hypothetical claims or render
purely advisory opinions’ ” in the absence of an adequate factual record.].) 5
                                      DISPOSITION
       The judgment of dismissal is affirmed.




       5
         Setting aside the parties’ dispute as to whether the People can appeal directly to
the Court of Appeal from a magistrate’s dismissal on grounds outside of section 871.5,
which we do not address, we do note a section 871.5 motion to reinstate the charges was
not the prosecutor’s only recourse after the magistrate’s dismissal. As the People
recognize, a magistrate’s ruling can be challenged by a petition for an extraordinary writ
in appropriate cases. (See People v. Superior Court (Chico etc. Health Center) (1986)
187 Cal.App.3d 648.)

                                              9
                                               _________________________
                                               Siggins, P. J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Wick, J. *




People v. Sanchez, A153473

      *
        Judge of the Superior Court of Sonoma County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                          10
Trial Court:                                   San Francisco City & County Superior
                                               Court



Trial Judge:                                   Honorable Garrett L. Wong

Counsel:


Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan,
Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, for
Appellant.

Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Dorothy Bischoff, Deputy
Public Defender, for Respondent.




                                          11
