In re Kocontes

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].)

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

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 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, 146 Cal.Rptr.3d 297 , 283 P.3d 1181 ( 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

Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593 , 618, 41 Cal.Rptr.3d 686 ( 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, 74 Cal.Rptr.3d 256 ; Jenkins, supra, 138 Cal.App.4th at p. 621, 41 Cal.Rptr.3d 686 , People v. Conley (2004) 116 Cal.App.4th 566 , 571, 10 Cal.Rptr.3d 477 ;

Section 1387 " 'is sometimes loosely described as establishing a two-dismissal rule.' " (

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, 108 Cal.Rptr. 657 , 511 P.2d 609 .)

People v. Cossio (1977) 76 Cal.App.3d 369 , 142 Cal.Rptr. 781 ( 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, 142 Cal.Rptr. 781 .) Before a preliminary hearing was held on the second complaint, the grand jury returned an indictment. ( Id. at p. 371, 142 Cal.Rptr. 781 .) 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, 142 Cal.Rptr. 781 .) 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 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, 142 Cal.Rptr. 781 ; People v. Schlosser (1978) 77 Cal.App.3d 1007 , 1011, 144 Cal.Rptr. 57 ( 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, 72 Cal.Rptr.3d 664 ; 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

( Uhlemann, supra , 9 Cal.3d at p. 664, 108 Cal.Rptr. 657 , 511 P.2d 609 .) 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, 108 Cal.Rptr. 657 , 511 P.2d 609 .) In his dissent, 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, 108 Cal.Rptr. 657 , 511 P.2d 609 , (dis. opn. of Mosk, J.).) Justice Mosk opined this conduct only served to undermine the integrity of the courts. ( Id. at p. 671, 108 Cal.Rptr. 657 , 511 P.2d 609 , (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, 20 Cal.Rptr. 321 , 369 P.2d 937 .) 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, 22 Cal.Rptr.3d 876 , 103 P.3d 276 [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.

not be compelled to defend the appeal and simultaneously prepare for trial. ( Id. at p. 865, 59 Cal.Rptr. 426 , 428 P.2d 290 .)

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, 59 Cal.Rptr. 426 , 428 P.2d 290 .) 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 r 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, 59 Cal.Rptr. 426 , 428 P.2d 290 , 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

the appeal of Judge Evans's ruling after obtaining the indictment as required by Anderson, supra, 66 Cal.2d at page 867, 59 Cal.Rptr. 426 , 428 P.2d 290 . 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.

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.

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, 25 Cal.Rptr.2d 500 , 863 P.2d 745 ; 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.

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, 37 Cal.Rptr.2d 259 , 886 P.2d 1252 [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, 37 Cal.Rptr.2d 259 , 886 P.2d 1252 , 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, 37 Cal.Rptr.2d 259 , 886 P.2d 1252 .) 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.

DISPOSITION

The petition for writ of habeas corpus is denied.

WE CONCUR:

BEDSWORTH, J.

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

In re Huber (1930) 103 Cal.App. 315 , 284 P. 509 .) 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, 247 P.2d 398 .)

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, 255 Cal.Rptr. 81 .)

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

Procedural Facts

Italian authorities did not prosecute Kocontes for Kanesaki's death, and a federal

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

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.

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

Anderson v. Superior Court (1967) 66 Cal.2d 863 , 59 Cal.Rptr. 426 , 428 P.2d 290 ( 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

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, 146 Cal.Rptr.3d 297 , 283 P.3d 1181 .) 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.

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 prior trial.' [Citations.]" ( People v. Santamaria (1994) 8 Cal.4th 903 , 916, 35 Cal.Rptr.2d 624 , 884 P.2d 81 .) We review the applicability of collateral estoppel de novo. (

In re Pedro C. (1989) 215 Cal.App.3d 174 , 181, 263 Cal.Rptr. 428 .) However, People v. Howie (1995) 41 Cal.App.4th 729 , 48 Cal.Rptr.2d 505 ( 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, 48 Cal.Rptr.2d 505 .) 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, 48 Cal.Rptr.2d 505 .) 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 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, 48 Cal.Rptr.2d 505 , 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, 108 Cal.Rptr. 657 , 511 P.2d 609 ( Uhlemann ).)

People v. Hatch (2000) 22 Cal.4th 260 , 270, 92 Cal.Rptr.2d 80 , 991 P.2d 165 ( Hatch ), citing People v. Superior Court ( Martinez ) (1993) 19 Cal.App.4th 738 , 744, 23 Cal.Rptr.2d 733 .) 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, 92 Cal.Rptr.2d 80 , 991 P.2d 165 .)

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 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, 22 Cal.Rptr.3d 876 , 103 P.3d 276 ( 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, 22 Cal.Rptr.3d 876 , 103 P.3d 276 .) 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, 22 Cal.Rptr.3d 876 , 103 P.3d 276 .)

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, 72 Cal.Rptr.3d 664 ( 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, 22 Cal.Rptr.3d 876 , 103 P.3d 276 .) Pursuant to Burris,

section 1387 did not prohibit the district attorney from filing the second complaint charging Kocontes with murder for financial gain. ( Burris, supra , 34 Cal.4th at p. 1023, 22 Cal.Rptr.3d 876 , 103 P.3d 276 .)

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

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, 72 Cal.Rptr.3d 664 .)

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 , 108 Cal.Rptr. 657 , 511 P.2d 609 , 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.

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 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, 59 Cal.Rptr. 426 , 428 P.2d 290 , 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

Kocontes also cites to People v. Sims (1982) 32 Cal.3d 468 , 186 Cal.Rptr. 77 , 651 P.2d 321 ( Sims ), superseded by statute as stated in Gikas v. Zolin (1993) 6 Cal.4th 841 , 851, 25 Cal.Rptr.2d 500 , 863 P.2d 745 ( 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, 42 Cal.Rptr.2d 543 , 897 P.2d 481 .)

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. 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, 54 Cal.Rptr.3d 601 ["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.3d 468 , 186 Cal.Rptr. 77 , 651 P.2d 321 , 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.3d at pp. 479, 489-490, 186 Cal.Rptr. 77 , 651 P.2d 321 .) 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

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, 272 Cal.Rptr. 767 , 795 P.2d 1223 .) Kocontes contends the policies underlying collateral estoppel require its application in this case. Not so.

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 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.

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, 255 Cal.Rptr. 81 ( 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;

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.