1

Filed 9/28/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

Conservatorship of the Person and Estate of 

CHRISTOPHER B.

C077467

(Super. Ct. No. SMH0001523)

MAUREEN F. BAUMAN, as Public 

Guardian, etc.,

Petitioner and Appellant,

v.

CHRISTOPHER B.,

Objector and Appellant.

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

Jones, Judge. Reversed.

Gerald O. Carden, County Counsel, Valerie D. Flood, Chief Deputy County 

Counsel, Roger B. Coffman, David K. Huskey and Renju P. Jacob, Deputy County 

Counsel, for Petitioner and Appellant.

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

Appellant.
2

Objector Christopher B. appeals from the order of the probate court (following a

bench trial) granting the petition of the Placer County Public Guardian to establish a 

conservatorship over the objector’s person and estate. Christopher B. argues there is

insufficient evidence of a pending indictment in underlying criminal proceedings, a 

jurisdictional prerequisite for his “Murphy conservatorship” under the Lanterman-PetrisShort Act. (Welf. & Inst. Code, §§ 5000 et seq., 5008, subd. (h)(1)(B), 5361; Pen. Code, 

§ 1370.) Named after the legislator who sponsored the 1974 amendment that added a 

second definition of “gravely disabled” to the act (Stats. 1974, ch. 1511, § 12, pp. 3321-

3322), the Murphy conservatorship is a renewable one-year civil commitment for 

criminal defendants who are otherwise incompetent to stand trial for a felony involving 

death, great bodily harm, or a serious threat to the physical well-being of another, and 

who do not have the prospect of a restoration of competency. (People v. Karriker (2007) 

149 Cal.App.4th 763, 775; In re Polk (1999) 71 Cal.App.4th 1230, 1237.) Christopher B.

also contends the evidence does not support imposition of a restriction on his right to 

enter into contracts. The Public Guardian cross-appeals, contending the probate court 

imposed an incorrect termination date for the renewed conservatorship. We will vacate 

the order imposing the conservatorship with directions to dismiss the petition. This 

disposition moots the issue of the contractual restriction and the cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Given the narrow focus of the legal underpinning for the Murphy conservatorship, 

we do not need to relate the evidence at trial. We draw some of the following facts from 

our opinion in Christopher B.’s appeal from the first effort to establish a conservatorship 

over his person and estate. (Conservatorship of Christopher B. (Mar. 6, 2014, C073478) 

[nonpub. opn.].) 

In September 2003, Christopher B. entered a plea of no contest to stalking and 

possessing a billy club. The conduct was directed at his ex-wife’s former husband. 
3

Christopher B. has subsequently denied any wrongdoing, attributing the plea to 

ineffective assistance of counsel in resolving a series of events he characterized as 

coincidental and unfortunate.

From 2005 through 2007, Christopher B. was found to be a mentally disordered 

offender (Pen. Code, § 2960 et seq.) and placed in a state hospital. He would not accept 

the diagnosis that he has a delusional disorder, and has refused voluntary treatment. By 

February 2008, Christopher B. had been under commitment for the full length of the 

prison term for his offense, and the state hospital released him. 

Following his release, Christopher B. harassed his ex-wife and his stepdaughter. 

This resulted in a June 2009 complaint alleging criminal threats, stalking, and being a 

felon in possession of a gun (Placer County case No. 62-090819). After holding a 

hearing in July 2009, the criminal court found Christopher B. was not competent to stand 

trial; the criminal proceedings were suspended, and in September 2009 the court ordered 

his transfer to the custody of a state hospital. At the conclusion of the three-year 

maximum period of commitment (Pen. Code, § 1370, subd. (c)(1)), the state hospital 

found that Christopher B. could not be restored to competency because he refused 

voluntary treatment under his ongoing belief that he does not have any mental disorder. 

The state hospital recommended the institution of a Murphy conservatorship. 

Given the imminent expiration of the commitment to the state hospital, and unable 

to file an information based on the 2009 complaint because of the stay on the criminal 

case, the district attorney obtained a grand jury indictment on the same charges in August 

2012 (People v. Carrington (2009) 47 Cal.4th 145, 180-181 [indictment is independent of 

complaint and information; thus prosecution may seek former even while latter stayed 

and even without dismissing latter]) in order to satisfy the prerequisite for a Murphy 

conservatorship. (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)(ii) [in order for 
4

incompetent criminal defendant to come within definition of “gravely disabled” for 

imposition of conservatorship, indictment or information must still be pending].) 

In March 2013, the Public Guardian obtained an order establishing a Murphy 

conservatorship over Christopher B. and his estate. We reversed the order in March 2014 

because of an absence of sufficient admissible evidence of his incompetence to stand trial 

in the criminal proceedings as of the time of the conservatorship proceedings. We also 

found that the trial court had failed to obtain Christopher B.’s express personal waiver of 

a hearing before it imposed a contractual disability on him pursuant to stipulation of his 

attorney. Our remittitur issued in May 2014. (Conservatorship of Christopher B., supra, 

C073478.) 

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

of the present appeal. 

While the previous appeal was pending, the criminal court (Hon. Frances 

Kearney) convened with counsel in defendant’s absence on June 19, 2013, for a status 

conference in case No. 62-090819. The trial court began, “[this] matter is on today for 

review. And it’s my understanding that there has been established now a Murphy’s 

conservatorship, and [defendant] is . . . subject to further review now on the probate 

conservatorship calendar. So, in light of that, I believe the People are now moving to 

dismiss the charges . . . ; is that correct?”1 (Italics added.) The prosecutor replied, “We 

would so move based on the establishment of the Murphy’s conservatorship.” The court 

responded, “That will be the Court’s order. No further reviews.” The form minute order 

has a check next to the box for “Dismissed” (with the case number handwritten next to 

 

1 Although the criminal matter is suspended during a defendant’s incompetence, there is 

an express exception for a motion to dismiss pursuant to Penal Code section 1385. (Pen. 

Code, § 1370, subds. (a)(1)(B), (d).)
5

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

section. 

On the following day, the criminal court reconvened. The trial court had defense 

counsel on the phone; the prosecutor was personally present. The trial court told defense 

counsel, “we needed to confirm with you . . . , as you know, there’s a Murphy’s in this 

case. [¶] And yesterday inadvertently—well, I guess, what the People are asking me to 

clarify is that the complaint that was dismissed yesterday is directed solely to the original 

[2009] complaint and not to the subsequent [2012] indictment, because you do need to 

have [at least] an indictment in effect in order for the Murphy’s to remain in effect. [¶] If 

we are all in agreement on that—I’ll just clarify the underlying original complaint was 

dismissed but not the indictment. . . . [¶] . . . [W]hat’s been represented to me is if you 

don’t have that in effect, then the Murphy’s goes away. So we don’t want that to happen. 

[¶] So do you want me to just put it back on calendar next Wednesday?” This apparently 

being defense counsel’s desire, the court set the matter for the following week. After 

hanging up the phone with defense counsel, the court then told the prosecutor, “She 

doesn’t recall us trying to differentiate. So you should probably talk to her between now 

and then, because I don’t think you guys want the Murphy’s to go away.” In response to 

the prosecutor’s request for clarification, the court stated, “To be clear: Pending the 

hearing next week, the Court has determined that there is still pending before the Court 

an indictment and the Murphy’s is thus still in effect. . . . But for right now, the 

underlying complaint is dismissed but not the indictment.” 

At the hearing on June 26, 2013, the trial court described the focus of the hearing 

on June 19 as having involved “some discussion as to what happens with” the criminal 

case (No. 62-090819) in light of the conservatorship; “And the Court recited certain 

understandings for the record. And I believe the People said yes.” The trial court noted 

it had not yet received a transcript of the proceedings on June 19, but the court reporter 
6

had read her notes to the court‘s clerk, which the court shared in chambers with counsel. 

Somewhat at odds with the transcript we have quoted above, the trial court summarized it 

as, “The general idea, as to what was said, is that the Complaint is being dismissed. And 

[the] answer was ‘yes.’ [¶] Subsequently, there was some concern expressed by both the 

People and the Defense . . . as to whether or not that then affected the . . . Indictment. [¶] 

And, in point of fact, you need that as a basis for the Murphy’s Conservatorship . . . .” 

Defense counsel asserted, “As far as we’re concerned, the case was dismissed last 

week. . . . [¶] If the People are asking to reconsider that motion, I think that would be 

their motion.” The prosecutor responded, “the case was on for just a review to see 

whether the Murphy’s Conservatorship had been established in the case. And it was. . . . 

[¶] And then the inquiry was made whether we should dismiss the case, the Complaint, 

in that matter. . . . [¶] I’m not aware that there was an Indictment [at issue] at that time 

. . . . And I believe that the Complaint, that the original Complaint, could be dismissed. 

But the Indictment would not be included in that dismissal. . . . [¶] . . . I believe [that the 

transcript] doesn’t specifically list the Indictment. And the intention of this Court in this 

case was not to undermine the Murphy’s Conservatorship. So we would ask that the 

Indictment still stand at this point.” (Italics added.) Defense counsel replied, “[W]e 

discussed the case, itself, being dismissed. We didn’t discuss a Complaint versus an 

Indictment being dismissed. [¶] And, as far as that goes, I think what’s done is done. 

What happened last week, the case was dismissed.” The trial court adhered to its 

“impression” that only the 2009 complaint had been at issue. “So . . . I am going to 

interpret the People’s motion as being to dismiss the . . . Complaint . . . and not . . . the 

Indictment . . . . And, certainly, it was not my intention to in any way disturb the 

Murphy’s Conservatorship. And, in point of fact, the purpose of the hearing was to make 

sure [Christopher B.] had been released . . . on the Murphy’s Conservatorship . . . .” The 

trial court then set the matter for hearing on the following week to confirm its ruling after 
7

having an opportunity to review a written transcript from the June 19 status conference. 

The minute order for the June 26 hearing included a handwritten note that the “Complaint 

. . . is dismissed. The Indictment is not dismissed.”

The court met with the parties on July 3, July 10, and July 24 to determine if they 

had received copies of all the pertinent transcripts. On the last of these dates, defense 

counsel confirmed she had received the necessary transcripts. The court asked, “At this 

point, you wish to drop the matter?” She responded, “Yes.” The prosecutor then told the

court, “We don’t need any further review since he’s gone to Murphy’s and that’s in a

separate court.” The court replied, “All right. The matter will be dropped.” There 

apparently was a minute order on August 3, 2013 (not included in the present record), 

confirming the June 26 minute order. In the present proceedings, new defense counsel 

stated that his office had not sought appellate review of the criminal order because as a 

tactical matter his office believed the conservatorship was “the [most] appropriate time” 

to litigate the issue.2

In light of our reversal of the previous order establishing the Murphy 

conservatorship, the Public Guardian petitioned for a temporary conservatorship in 

March 2014, which the probate court granted. At the outset of the proceedings on the 

present petition for a permanent conservatorship in September 2014, new defense counsel 

noted that it was the position of his office that the criminal case “was dismissed,” despite 

the conclusion of the criminal court that “it wasn’t dismissed; or, if it was, it was done 

inadvertently and that was not the intent of the parties. I’m in a position where I have to 

take a hard line on that, but I don’t believe there’s any further litigation to be done on that 

 

2 However, Christopher B.’s trial counsel filed a petition for a writ of prohibition with a 

request for stay in both the criminal and conservatorship matters. We issued an order 

denying the writ as untimely in the criminal matter and unnecessary in the 

conservatorship matter in light of the pending appeal. (Christopher B. v. Superior Court 

(Feb. 11, 2015, C078343) [order].) 
8

issue.” The trial court disagreed, asserting that this was an evidentiary matter for the 

present proceedings, and queried about the purpose to be served in the criminal court of 

merely dismissing a superfluous complaint: “I don’t understand why that would happen, 

why that would occur. I can’t think of any reason.” Counsel for the Public Guardian 

asserted that regardless of whether the criminal court was correct or not in construing its 

order as being limited to the complaint, the criminal court’s order was final and not 

presently subject to challenge. 

After briefing on the issue, the trial court ruled as follows. “I don’t know that 

anybody here can dispute with me that the court record says the charges are dismissed 

[on June 19] . . . in . . . [that] criminal case number. The Indictment . . . has that case 

number on it. [¶] . . . There is not a separate case number for the Indictment.” The trial 

court also highlighted the criminal court’s use of the word “inadvertently” on June 20. It 

concluded the prosecutor had erred in acceding to dismissal of the case, and then must 

have brought the need for a pending indictment to the attention of the criminal court. The 

trial court concluded that the June 19 order of dismissal divested the criminal court of 

further jurisdiction, so the subsequent criminal proceedings were irrelevant. The trial 

court further concluded that the criminal court was without jurisdiction even to issue the 

June 19 order because the criminal proceedings had been suspended.3 The trial court 

asserted this was a tentative decision on an evidentiary matter to be addressed at trial, 

which it would revisit.

On September 11, 2014, at the conclusion of the bench trial on the permanent 

conservatorship petition, defense counsel asked for clarification of the trial court’s ruling 

on the issue of a pending indictment. The trial court reiterated its belief that the criminal 

 

3 As we noted above, a motion to dismiss is an express statutory exception to the 

suspension of proceedings during incompetency. The trial court later acknowledged 

this provision. 
9

court did not have jurisdiction to dismiss the case on June 19, 2013 (due to the previous 

suspension of the criminal proceedings as a result of Christopher B.’s incompetency), and 

further, the criminal court’s order of dismissal was not valid because the minute order did 

not include an adequate statement of reasons in compliance with Penal Code section 1385 

(citing People v. Bonnetta (2009) 46 Cal.4th 143; People v. Superior Court (Flores) 

(1989) 214 Cal.App.3d 127). The court thus found the Public Guardian had sustained its 

burden, and it imposed a permanent conservatorship; defense counsel stipulated to the 

finalization of the proposed letters of conservatorship, which included a prohibition on 

Christopher B.’s right to contract. At the behest of the Public Guardian, the trial court set 

the expiration of the conservatorship for March 2015. At a subsequent hearing on 

October 3, 2014, the trial court denied the Public Guardian’s request to set the expiration 

of the conservatorship for September 2015 (the correct date (Welf. & Inst. Code, § 5361)) 

because Christopher B. had already filed a notice of appeal. 

DISCUSSION

Although a trial court retains jurisdiction to correct clerical error (i.e., an error in 

the recording of a judgment) at any time, it does not have jurisdiction to correct judicial

error in an entered judgment (i.e., an error in rendering a deliberate “exercise of judicial 

discretion”). (In re Candelario (1970) 3 Cal.3d 702, 704-707 [omission of a recidivist 

finding in pronouncement of judgment cannot be corrected in trial court, and must be 

deemed an acquittal of the finding].) Correction of judicial error, “being in excess of the 

court’s jurisdiction is ineffective for any purpose” (id. at p. 708), in other words, void 

(7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 343(3), p. 953). It does not matter 

that a court or moving party acted under a mistake as long as the court “was performing 

the act it intended to perform.” (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 292 

(maj. opn. of White, P. J.) (Smith).) 
10

While a trial court has inherent jurisdiction to reconsider erroneous orders, this is 

limited to interim matters. (Compare People v. DeLouize (2004) 32 Cal.4th 1223, 1231-

1233 [order granting new trial does not have final effect on case and therefore may be 

reconsidered; this does not offend policies favoring finality of judgments], People v. 

Nesbitt (2010) 191 Cal.App.4th 227, 238 [may reconsider dismissal of two counts before

entry of judgment], People v. Castello (1998) 65 Cal.App.4th 1242, 1246, 1247-1248 

[may reconsider ruling that did not sustain recidivist finding before entry of judgment; 

“few limits” on inherent constitutional power to reconsider], Castello, at p. 1249 [it 

would impair operations of court to require “infallibility” in interim rulings], and In re 

Anthony H. (1982) 138 Cal.App.3d 159, 164-166 [may reconsider oral dismissal of one 

count before entry of written order in minutes] with Smith, supra, 115 Cal.App.3d at 

pp. 288-292 [grant of prosecution’s motion to dismiss premised on mistaken factual 

basis; could not vacate this final order on the following week]; see Smith, at pp. 292, fn. 3 

[reserving issue of whether court may vacate order of dismissal entered as a result of a 

fraud upon the court] & 293, fn. 4 [noting that court may vacate a final judgment if in 

“excess” of jurisdiction, such as an unlawful sentence]; see also Smith, at p. 294 (dis. opn. 

of Scott, J.) [trial court had inherent power to grant relief for inadvertence or excusable 

neglect]); Marler v. Municipal Court (1980) 110 Cal.App.3d 155, 159, 162 [cannot 

reconsider misdemeanor dismissal order].)

In the present case, the criminal court issued an order of dismissal unambiguously 

dismissing the entire case at the request of the prosecution. Having realized the effect on 

the continued viability of the conservatorship proceeding, the prosecutor then sought on 

the next day to convince the criminal court to “clarify” that its ruling applied only to the 

underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge 

rather than take the straightforward route of seeking a reindictment; at oral argument the 
11

parties did not explore, beyond conclusory assertions with limited analysis, whether a 

second prosecution would have been time barred.) 

As a result, the criminal court’s transparent efforts to garb its reconsideration of its

dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous 

dismissal order to be one for the unnecessary act of dismissing a superseded complaint 

are unavailing. It did not have jurisdiction to correct its judicial error, and its subsequent 

orders are void on their face. They are therefore subject to collateral challenge in the 

present proceedings even though Christopher B. did not appeal from the criminal case.

The Public Guardian attempts to sustain the subsequent orders on the basis of the 

inadequacies of the order of dismissal under Penal Code section 1385. Echoing the trial 

court in this matter, the Public Guardian contends dismissal was ineffective because the 

minute order does not adequately state reasons explaining why the dismissal is in the 

interests of justice. (We note that a recently effective amendment to Penal Code section 

1385 dispenses with the need for a written statement of reasons, except on request of the 

parties or where the proceedings are not being recorded. This amendment does not have 

any bearing on this appeal, however.) Notably absent from the Public Guardian’s list of 

authorities, however, are the cases explaining that a defective order of dismissal pursuant 

to the statute is voidable, not void, for which reason a failure to raise a contemporaneous 

objection to the order’s defects in the trial court forecloses the parties from raising the 

issue on appeal, and renders defects on the prosecutor’s motion to be invited error on 

appeal. (Smith, supra, 115 Cal.App.3d at p. 293; see People v. Hunt (1977) 19 Cal.3d 

888, 897, fn. 10; People v. Orin (1975) 13 Cal.3d 937, 945, fn. 10; People v. Curtiss 

(1970) 4 Cal.App.3d 123, 127 [all pointing out that unappealed defective order is 

binding, or principle of invited error can apply on an appeal from it]; cf. Brazell v. 

Superior Court (1986) 187 Cal.App.3d 795, 800 [defects in binding second order of 
12

dismissal do not render it invalid for purposes of two-dismissal rule].) It is thus the order 

of dismissal that is effective, not the orders attempting to backwheel from it.

Given our need to order dismissal of the conservatorship for insufficient evidence 

of the element of a pending indictment, the issue of the imposed contractual disability is 

moot. The cross-appeal regarding the length of the conservatorship is moot as well.

DISPOSITION

The order imposing the conservatorship is reversed with directions to dismiss the 

petition for insufficient evidence of an element of the conservatorship. The cross-appeal 

is dismissed as moot. The stay previously issued in this matter, having served its 

purpose, is dissolved upon the issuance of our remittitur. 

 BUTZ , J.

We concur:

 RAYE , P. J.

 RENNER , J.
1

BUTZ, J., Concurring.

With apologies to Dolly Parton, here I go again, concurring with myself. (See 

People v. Elder (2014) 227 Cal.App.4th 1308, 1318 (conc. & dis. opn. of Butz, J.).) My 

fellow justices quite rightly agree that the criminal court attempted to correct judicial 

error in a ruling that was final and, therefore, under Smith v. Superior Court (1981) 

115 Cal.App.3d 285 (Smith), its subsequent orders were void (and, as a result, subject to 

collateral attack in the present proceedings). Although unable to convince my colleagues 

to head down this path, I concur separately to advocate that there is other precedent 

suggesting Smith’s broad holding—that a dismissal order is a final ruling never subject to 

modification—is not necessarily correct. 

Jackson v. Superior Court (2010) 189 Cal.App.4th 1051 (Jackson) added a nuance 

to the distinction between interim and “final” orders. It concluded a trial court retains the 

jurisdiction to reconsider an order granting a petition for habeas corpus before the taking 

of an appeal, because the order was not “binding” until the period to appeal expired. (Id. 

at pp. 1067-1068.) Among the authority on which it relied was People v. Wadkins (1965) 

63 Cal.2d 110, 113, which held that a trial court has jurisdiction to vacate a final 

judgment (or alternately grant a petition for a writ of coram nobis) before the time to

appeal expired in order to allow a defendant to withdraw a plea. (Accord, People v. 

McGill (1970) 6 Cal.App.3d 953, 955 [trial court had jurisdiction to set aside final order 

granting probation before the time to take an appeal expired to entertain a new trial 

motion, citing Wadkins]).1 

 

1 Just to make things interesting, Jackson does not cite either In re Candelario (1970) 

3 Cal.3d 702, 704-707, where the court had entered the amended judgment before that 

defendant’s unsuccessful appeal, or Smith, supra, 115 Cal.App.3d at page 287 (maj. opn. 

of White, P. J.), where the court vacated its order of dismissal before the taking of any 

appeal and, conversely, neither Candelario nor Smith took the period to appeal into 

account in the determination of finality, or the holdings in Wadkins or McGill.
2

People v. Krivda (1971) 5 Cal.3d 357, 362-363 and footnote 2 (maj. opn. of 

Wright, C. J.) (which described the question of the extent of the trial court’s inherent 

power to reconsider as unsettled, but declined to provide any answer) also suggested that 

the point at which a final order becomes binding is relevant to the analysis of when 

reconsideration is permissible. It held that a ruling on a motion to suppress is final for 

purposes of review within 30 days as a matter of statute and therefore cannot be 

reconsidered after that time, suggesting the converse (in accord with the later holding in 

Jackson, which does not cite it): that reconsideration of even a final determination that is 

not yet binding is proper.2

Entwined in the concept of the binding status of a final ruling are considerations of

jeopardy. Obviously, there cannot be anything more final than a postjeopardy rendition 

of judgment that amounts to an acquittal of an enhancement, as in Candelario, supra,

3 Cal.3d 702, which is not subject to review, and this must inform that decision in some 

sense. (Smith, supra, 115 Cal.App.3d at p. 293 [“The tenor of the Candelario decision 

suggests that when the discretionary judicial act has been performed in the defendant’s 

favor, the judgment or order is immune from . . . trial court attack.”].) This might explain 

why the then recent holdings in Wadkins (which vacated a criminal judgment to allow 

withdrawal of a plea) or McGill (which set aside a final order of probation to allow a 

defendant to file a motion for new trial) did not figure at all in Candelario’s analysis, 

because they did not involve reviving a terminated prosecution against a defendant 

postjeopardy. Had the Candelario opinion expressly made this point, it might have better 

informed the analysis in this area of law. 

 

2 A court has jurisdiction to reconsider a suppression ruling during that 30-day period 

only to correct its own error sua sponte in applying the law, and under several other 

narrow circumstances in the interests of justice. (People v. Ramirez (1992) 6 Cal.App.4th 

1583, 1589, fn. 4, 1592-1593.)
3

Viewing the above authority and the authorities cited in the majority opinion 

(which do not, for the most part, take each other into account) in light of this possible 

“binding ruling” qualification (subject to considerations of jeopardy), the reinstatement of

charges or a recidivist finding in People v. Nesbitt (2010) 191 Cal.App.4th 227 (Nesbitt) 

and People v. Castello (1998) 65 Cal.App.4th 1242 (Castello) postjeopardy is permissible 

because these rulings were preliminary to the rendition of any judgment of acquittal 

(even if refiling of charges were not possible) and thus not final rulings terminating the 

trial court’s jurisdiction to prosecute the defendants further (and In re Anthony H. (1982) 

138 Cal.App.3d 159 being an even more preliminary ruling because the oral order had 

not yet been officially recorded). Wadkins, McGill, and Jackson properly focused on 

whether the rulings were final with respect to the time to appeal, because in each instance 

the postjeopardy reconsiderations did not seek to reinstate jurisdiction over prosecutions 

of those defendants that had terminated, nor does reconsideration of collateral relief in 

Jackson.

With this understanding, it can be seen that Smith’s holding—which did not take 

the concept of a binding final order into account—should not prescribe the result in every 

instance. An order of dismissal is not necessarily like the rendition of the postjeopardy

judgment of acquittal in Candelario, which was binding, and thus I think it is too broad a

statement to consider all orders of dismissal to be “final” as of their rendition merely 

because this is a termination of the action against a defendant. (E.g., Nesbitt, supra, 

191 Cal.App.4th at p. 238 & fn. 10; Smith, supra, 115 Cal.App.3d at p. 289.) If it is a 

first order of dismissal of felony charges prejeopardy, there is still the power to prosecute 

the defendant, and thus a trial court’s jurisdiction to reinstate the charges against a 
4

defendant through reconsideration of its order should not terminate until the taking of an 

appeal3 or the order becoming binding upon the expiration of the time to do so.

People DeLouize (2004) 32 Cal.4th 1223, 1232-1233 indicates that the doctrine of 

“finality” is not an absolute, but reflects the expression of a collection of principles. A

first felony dismissal does not have a terminating effect on the ability to reprosecute a 

defendant,4 and a timely correction in the trial court of an erroneous dismissal thus does 

not represent relitigation of settled issues—rather, it forestalls unnecessary expenditure of

judicial resources in going through the additional process of refiling new charges. (In 

contrast, the result in Marler v. Municipal Court (1980) 110 Cal.App.3d 155 involved the 

dismissal of a misdemeanor, which terminated the ability to prosecute those defendants 

further and thus the order of dismissal would be binding on issuance.) Although I would 

not imagine the present situation to represent a recurring problem, it offends my notions 

of judicial efficiency to accord the status of “magic words” to a trial court’s oral 

pronouncement, which then cannot be taken back after being recorded in the minutes. 

(Cf. Castello, supra, 65 Cal.App.4th at p. 1249 [“A court could not operate successfully 

under the requirement of infallibility in its interim rulings.”].) The result in the present 

case is not an outcome that any of the parties desired for the deeply disturbed subject of 

the proceedings (though the attorneys for Christopher B. were obligated to pursue it).

This is not the tidiest collection of holdings to apply in the present case. Having 

sewn this precedent together into one piece, perhaps this concurring opinion can inspire 

 

3 The People may appeal an order of dismissal that does not implicate double jeopardy. 

(People v. Eroshevich (2014) 60 Cal.4th 583, 589, fn. 3; Pen. Code, § 1238, subd. (a)(8).) 

However, as I noted in the majority opinion (at p. 11, ante), a defective order of dismissal 

pursuant to Penal Code section 1385 is not void, and a failure to make a 

contemporaneous challenge forfeits the right to raise defects in the order on appeal.

4 Again, I note that the parties have not explored whether reindictment of Christopher B. 

was an option in the criminal case after the court’s ruling. (Maj. opn., ante, at p. 10.)
5

the Supreme Court to take the opportunity to tailor it more seamlessly on the question of 

whether a final ruling also being “binding” plays any role in the holding of Smith.

 BUTZ , J.