P. v. Gonzalez

1
Filed 10/30/09 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
v.
LORENA GONZALEZ,
Defendant and Respondent.
E048022
(Super.Ct.No. INF063176)
OPINION
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. Affirmed.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for
Plaintiff and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Respondent.

-- 1 of 19 --

2
This is an appeal by the People from the dismissal of the misdemeanor vandalism
case against defendant Lorena Gonzalez pursuant to Penal Code section 13821 because
the trial court found there were no courtrooms available to hear the last-day case in a
timely manner, and there was no good cause to continue the case.
The People contend on appeal that the trial court, pursuant to section 1050,
subdivision (a), should have given precedence to the instant case over civil cases; in
particular, it should have used a courtroom designated as a civil-only department in the
downtown Riverside courthouse and the “Hawthorne” civil courtrooms.2 Moreover, the
trial court should have contacted the family, probate, and other designated noncriminal
courtrooms to inquire if they could hear the instant matter. The refusal to make such
inquiry, the denial of the request to continue the case, and resultant dismissal constituted
errors of law by the trial court, and the charges against defendant should be reinstated.3
We find the trial court here did not abuse its discretion by dismissing defendant‟s
case based on the unavailability of any courtrooms to try the case and by denying a
continuance. We affirm the dismissal of the case.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2 Three courtrooms have been set up on a temporary basis at the Hawthorne
Elementary School to hear civil cases. (People v. Flores (2009) 173 Cal.App.4th Supp.
9, 13 (Flores).)
3 This court decided People v. Wagner (2009) 175 Cal.App.4th 1377 [Fourth
Dist., Div. Two], which addressed the same issues raised here. The Supreme Court
granted review on September 30, 2009 (S175794). On October 5, 2009, the People filed
a request to stay the instant case until a decision is reached in Wagner. We denied that
request on October 9, 2009.

-- 2 of 19 --

3
I
FACTUAL BACKGROUND4
On September 14, 2008, Indio Police Officer Paul McClain was dispatched to
46200 Calhon Street in Indio and came in contact with Alvaro Ochoa and Sergio
Gonzalez. Both advised Officer McClain that they had seen defendant and her boyfriend
or husband fighting in front of their mobile home. They had both told defendant they
were going to call the police.
They then observed defendant pick up a rock and throw it at Sergio. The rock hit
Sergio on his foot and hand. Defendant picked up another rock and threw it at Sergio‟s
truck. It hit the front windshield and broke it. The estimated damage at the preliminary
hearing was $750.
II
PROCEDURAL BACKGROUND
On September 16, 2008, defendant was charged in a felony complaint with one
count of vandalism (Pen. Code, § 594, subd. (b)(1)). A preliminary hearing was
conducted on September 29, 2008, and defendant was held to answer. An information
was filed with the same charges as the complaint on October 10, 2008.
On October 27, 2008, defendant was arraigned on the information. On December
17, 2008, the trial court, on a motion brought by the People, amended the information to
4 Since the case was dismissed prior to trial, we draw a brief statement of
facts from the preliminary hearing transcript.

-- 3 of 19 --

4
reduce the vandalism charge to a misdemeanor. The case was continued until February
19, 2009. On the last day for trial, the trial court concluded there were no available
courtrooms, and the case was set for a motion to dismiss under section 1382 on the
following day. That motion was granted, and the case was dismissed. The People filed a
timely notice of appeal under the authority of sections 1238, subdivision (a)(8) and 691,
subdivision (f).5
The People contend that the trial court committed an error of law when it
dismissed defendant‟s last-day case, finding there no courtrooms available in Riverside
County to try her case, and by refusing to grant a continuance. They request that the
charges be reinstated.
A. Additional Factual Background
On February 19, 2009, defendant‟s case was called on the last day in Department
2F in Indio. The trial court noted that it was the last day for the case. There were no
courtrooms available in the county, and the case was likely going to be dismissed. The
trial court had kept the case “local” to try to get it tried instead of sending it out.
However, the trial court noted that it had felony cases in its courtroom for the following
two weeks and would have to send it to downtown Riverside that afternoon. The victim,
Sergio Gonzalez, was allowed to make a statement on the record rather than have to
travel to Riverside.
5 Section 691, subdivision (f) provides, “„Felony case‟ means a criminal
action in which a felony is charged . . . .”

-- 4 of 19 --

5
The trial court advised Sergio that the “reality of the situation in Riverside County
is that we have too many cases set for trial and not enough judges and not enough
courtrooms,” which affected Sergio‟s case going to trial. It then stated, “In this situation
I have murderers, rapists, and child molesters, all who have priority over a misdemeanor
case, so when I look at what cases should be tried and what people should be taken off
the streets, I have to make a weighing of what cases have priority . . . .”
Sergio advised the trial court that he was upset because defendant had broken his
toe and a window on his truck. Sergio indicated that he just wanted to be compensated
for his damages. The trial court advised Sergio that it was without legal authority to
order defendant to reimburse him. The trial court advised him to seek reimbursement in
small claims court.
At 4:00 p.m. on that same day in a downtown Riverside courtroom, defendant‟s
case was recalled. It was recalled with at least five other misdemeanor cases. The trial
court then stated, “Judge Trask in Department 1 is now designated a full-time civil trial
department by the presiding judge, Judge Cahraman, pursuant to the authority of Guderan
and, however, that would be the only other traditional civil department that would be
open. [¶] At some point Judge Hopp‟s court in Indio will also be converted to a full-time
civil department. But at his point Judge Hopp is, in fact, engaged in an attempted murder
case, and has one other case trailing. [¶] So it will not happen for a while for him. But
at this point there is clearly one civil department that had been used for criminal cases
that could be assigned one of these six cases. So I did want to incorporate that into the

-- 5 of 19 --

6
record. [¶] Except for that one civil department the only other open courts are the
Hawthorn[e] courts doing civil, and the traditional family law, probate, and so forth.”
The People then argued that it objected to the designation of Judge Trask‟s
courtroom as a civil courtroom only. It was expressly against the directives of section
1050 to designate a courtroom expressly for hearing civil cases. Further, the People
asked that the trial court look to the family law, probate, guardianship and other
designated noncriminal courts to hear the cases that were going to be dismissed. The
People stated, “We disagree with the court‟s policy of not checking with those
courtrooms to determine if any of them are available to hear one of these jury trials
especially since several of these are very short jury trials.” The People also believed the
cases should be assigned to the “Hawthorn[e] and Palm Springs court judges.”6 Those
judges (presumably the Hawthorne judges) could use courtrooms in the downtown
Riverside courthouse if there was a concern for security.
The People argued, “Finally it is the position of the People the court has done
everything that is required of it to find a courtroom and none appear available, then that
would constitute good cause, and these cases should be continued for one day.”
The trial court responded that it hoped that this issue was addressed by the
reviewing courts. Initially, the trial court noted, “I would hope that if they decided to
6 There is no information in the record as to which department in Palm
Springs the People were referring, and they have provided no further information on
appeal.

-- 6 of 19 --

7
take this up, they would address the Hawthorne Courts and whether you can do what we
do in the Hawthorn[e] situation, address whether or not family law, probate and juvenile
are designated civil or not civil. [¶] These are all issues that will be continuing issues
that will not help us at all if they just tell us that we‟ll go back to having to have Judge
Trask do criminal cases. I implore if this case does get addressed again by some
appellate court they just don‟t limit their discussions to Judge Cahraman‟s decision to
reopen two more civil departments. [¶] To be fair to Judge Cahraman he is, in fact,
closing one of the DCD Courts in Indio and transferring that to a full-time criminal
department. And in terms of actual days available for trial we actually gain about three
half days for criminal case[s], so a lot happens.”
The People agreed that they wanted the issue reviewed. There was no discussion
regarding good cause for a continuance. The trial court then explained that all six cases,
including defendant‟s case, would be dismissed the following day. Defendant‟s case was
dismissed the following day.
B. Analysis
1. Standard of review
“The right to a speedy trial is a fundamental right. [Citation.] It is guaranteed by
the state and federal Constitutions. [Citations.] The Legislature has also provided for „“a
speedy and public” trial as one of the fundamental rights preserved to a defendant in a
criminal action. [Citation.]‟ [Citation.] To implement an accused‟s constitutional right

-- 7 of 19 --

8
to a speedy trial, the Legislature enacted section 1382. [Citation.]” (Rhinehart v.
Municipal Court (1984) 35 Cal.3d 772, 776.)
Here, defendant‟s case was dismissed because it had reached the last day, there
were no available courtrooms, and the trial court refused to grant a continuance under
section 1050, subdivision (a). Pursuant to section 1050, subdivision (a), criminal cases
shall take precedence over civil cases as long as such precedence is consistent with the
stated policy that hearing a criminal case before a civil case furthers the “ends of justice.”
In People v. Osslo (1958) 50 Cal.2d 75 (Osslo), the Supreme Court concluded that
the decision of whether a criminal case takes precedence over a civil case must not be
arbitrary. The language of section 1050 vests discretion in the trial court to make these
decisions, which evokes the abuse-of-discretion standard on appeal. Accordingly, we
uphold the trial court‟s decision “except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316, italics omitted.)
The People contend that review is de novo because the trial court committed errors
of law. They rely on the recent case of People v. Hajjaj (2009) 175 Cal.App.4th 415, but
review was granted in that case (S175307) on September 30, 2009, subsequent to the
filing of the People‟s briefs. We do not find the trial court committed an error of law in
this case. It properly exercised its discretion in finding no available courtrooms (as we
will discuss in more detail, post) and in denying the People‟s request for a continuance
due to court congestion.

-- 8 of 19 --

9
2. Section 1050, subdivision (a)
Section 1050, subdivision (a) provides in pertinent part, “The welfare of the
people of the State of California requires that all proceedings in criminal cases shall be
set for trial and heard and determined at the earliest possible time. To this end, the
Legislature finds that the criminal courts are becoming increasingly congested with
resulting adverse consequences to the welfare of the people and the defendant. . . . It is
therefore recognized that the people, the defendant, and the victims and other witnesses
have the right to an expeditious disposition, and to that end it shall be the duty of all
courts and judicial officers and of all counsel, both for the prosecution and the defense, to
expedite these proceedings to the greatest degree that is consistent with the ends of
justice. In accordance with this policy, criminal cases shall be given precedence over,
and set for trial and heard without regard to the pendency of, any civil matters or
proceedings.”
In Osslo, supra,50 Cal.2d 75, which still remains good law, the defendant claimed
that his case was erroneously continued after the date set for trial because civil cases were
being given precedence over his criminal case under section 681a. (Osslo, at p. 106.)
The trial court indicated that there were several judges out on assignment, the juvenile
courts were congested, and another department was handling the case of a person who
was confined as mentally ill. (Id. at pp. 105-106.) It also rejected the defendant‟s
objection to the continuance on the ground that there were civil trials occurring in other
departments over which his criminal trial took precedence. (Id. at p. 104.)

-- 9 of 19 --

10
At the time of Osslo, section 681a provided, “„The welfare of the people of the
state of California requires that all proceedings in criminal cases shall be heard and
determined at the earliest possible time. It shall be the duty of all courts and judicial
officers and of all district attorneys to expedite the hearing and determination of all such
cases and proceedings to the greatest degree that is consistent with the ends of justice.‟”
(Osslo, supra, 50 Cal.2d at p. 106.) The Supreme Court also cited to the then section
1050, which provided, “„Criminal cases shall be given precedence over all civil matters
and proceedings.‟” (Ibid.)7
Without defining “civil matters and proceedings” the Supreme Court held, “It does
not appear that the policy of sections 681a and 1050 was disregarded. [The trial court]‟s
explanation of the condition of the calendar shows that defendants were not being
deprived of precedence over civil cases for any arbitrary reason. . . . Rather, it appears
that the orderly administration of a crowded calendar required the continuances to enable
trial of the case in a proper department. The precedence to which criminal cases are
entitled is not of such an absolute and overriding character that the system of having
separate departments for civil and criminal matters must be abandoned.” (Osslo, supra,
50 Cal.2d at p. 106, italics added.)
Osslo clearly provides that the provisions of section 1050 are not absolute and that
a trial court is afforded the discretion to determine if a particular criminal case should be
7 In 1959, the Legislature amended section 1050 to include the language in
section 681a and repealed section 681a. (Stats.1959, ch. 1693, §§ 1, 2, pp. 4092-4093.)

-- 10 of 19 --

11
heard before a civil case. Further, it approves of the practice of providing separate
departments for civil and criminal trials. Finally, at no time did the Osslo court state that
the trial court was to consider the particular cases that were being heard in the various
departments, including traditional civil courtrooms or juvenile courts.
Based solely on the findings in Osslo (which we are bound to follow (see Auto
Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456)), where the Supreme
Court authorized that separate departments for civil and criminal cases are permissible
and that the decision to hear a criminal case over a civil case must not be arbitrary, we
conclude the trial court did not abuse its discretion in this case by finding that there were
no available courtrooms. Under Osslo, the presiding judge and court administrators can
designate separate civil departments that need not be considered to try criminal matters.
As such, the trial court exercises its discretion by prioritizing cases in the available
courtrooms. Section 1050 and Osslo require nothing more.
Here, based on the record, the presiding judge of the Riverside County Superior
Court had designated one additional courtroom in downtown Riverside to hear civil
cases. The other designated civil courtroom in Indio was hearing a criminal matter. This
did not violate section 1050. Further, we cannot conclude such decision was arbitrary, as
at the same time, another courtroom was being converted to a criminal-only courtroom.
The designation of the civil-only department at the downtown courthouse was not
arbitrary and was permissible.

-- 11 of 19 --

12
Further, as stated in People v. Flores (2009) 173 Cal.App.4th Supp. 9 (Flores),
which we will discuss in more detail, post, up until the time that the Hawthorne judges
were appointed, very few civil cases were being heard in Riverside County. (Id. at p.
Supp. 22.) We cannot find that the special appointment of three judges to hear civil cases
and the trial court‟s refusal to divert those judges to criminal cases was an arbitrary
decision.
Moreover, the Hawthorne courts are conducting civil trials at an elementary
school. The People continue to argue that such space could be used for criminal trials,
but they have not addressed the concerns of this court regarding provisions for adequate
security. Moreover, there is nothing in this record that supports there were any available
courtrooms in downtown Riverside where one of the Hawthorne judges could conduct a
trial.
Further, the trial court here did not need to inquire about all matters occurring in
all other courtrooms, i.e., family, probate, etc. We believe that the trial court clearly may
exercise its discretion in implementing section 1050 by considering the various
departments and the types of cases heard in those departments. Asking the calendar
judge to review each case in every department would be an insurmountable task and is
not mandated by either section 1050 or the Supreme Court. Section 1050 only requires
that the trial court‟s decision regarding the precedence of a criminal matter over any type
of civil case is not arbitrary.

-- 12 of 19 --

13
We note that there were six cases before the trial court on this particular day. At
no time did the People prioritize these cases based on the seriousness of each case. Even
had a courtroom been available, the record is devoid of any evidence as to which case the
trial court should have sent out for trial. Moreover, this is not like the situation in People
v. Cole (2008) 165 Cal.App.4th Supp. 1, where the seriousness of the case required that a
courtroom be found no matter what the circumstances. (Id. at p. 16.) As stated, ante, the
victim, who was clearly wronged by defendant‟s actions, was most concerned with being
reimbursed for his losses due to defendant‟s vandalism. This was not a case warranting
disrupting any courtroom to ensure it was heard.
Further support for the above conclusion that the court did not abuse its discretion
in dismissing the instance case is found in the published superior appellate court cases of
Cole, supra, 165 Cal.App.4th Supp. 1, and Flores, supra, 173 Cal.App.4th Supp. 9,
which, although not binding on us, are nevertheless persuasive in their reasoning.
In Cole, the trial court found that there were no available courtrooms to try two
misdemeanor cases. It noted that this type of situation was not an emergency but a
“continuing problem of constantly rising caseloads.” (Cole, supra, 165 Cal.App.4th
Supp. at p. Supp. 6, fn. omitted.) All of the civil courtrooms were hearing criminal
trials.8 The trial court interpreted section 1050, subdivision (a) to exclude family law,
probate, juvenile, traffic or small claims matters, and in any event, the important work
8 It appears at the time there were no judges hearing cases at Hawthorne
Elementary School.

-- 13 of 19 --

14
done by these departments “would be completely eliminated” if criminal trials took
precedence over those matters. Such elimination would be “detrimental to the citizens of
the community.” (Cole, at p. Supp. 8.) The case was dismissed pursuant to section 1382
because there were no available courtrooms. (Cole, at p. Supp. 9.)
The Cole court concluded a precise definition of “civil matters and proceedings,”
as used in section 1050, subdivision (a), was “unnecessary based on the discretionary
nature of section 1050, subdivision (a), which gives the trial court discretion to allocate
its resources in a manner consistent with the ends of justice.” (Cole, supra, 165
Cal.App.4th Supp. at p. Supp. 14.) Thus, the court found that “civil matters or
proceedings” had not been defined in section 1050 and did not believe such definition
was necessary. (Cole, at pp. Supp. 13-14.) It then held that section 1050 was merely
directory and not mandatory. (Cole, at p. Supp. 14.) It concluded that “whether a
particular criminal case takes precedence over civil matters is within the court‟s
discretion.” (Id. at p. Supp. 15.)
The Cole court found that the trial court had not abused its discretion in dismissing
the cases: “We conclude that the trial court was entitled to exercise, and did exercise, its
discretion in a manner consistent with the policy and objectives of section 1050,
subdivision (a). It considered all relevant circumstances, including the welfare of the
citizens of the State of California. It indicated that separate from its legal interpretation
of the term „civil,‟ its decision was based on its finding that traditional civil courtrooms
were already exclusively devoted to criminal trials, that the work done by the family,

-- 14 of 19 --

15
probate, traffic, small claims and juvenile courts was of great importance to the
community, and that depriving the community of these remaining judicial services would
be highly detrimental to its citizens. Because the policy of criminal case precedence
expressed in section 1050, subdivision (a), is based on the welfare of the citizens of the
State of California, this is a valid and relevant consideration in determining whether a
particular criminal case should receive precedence.” (Cole, supra, 165 Cal.App.4th at p.
Supp. 16.)9
After the decision in Cole, in Flores, the trial court called the case and stated that
all courtrooms in the entire county were unavailable and that most of the civil courtrooms
were engaged in criminal trials. (Flores, supra, 173 Cal.App.4th at p. Supp. 13.) The
court then referred to the Hawthorne civil judges that had been appointed to conduct civil
cases only. It also stated that security was inadequate at the facility to ensure the safety
of the jurors and court staff. (Ibid.) It refused to transfer the judges to a secure
courtroom because it would be interrupting civil trials. (Id. at p. Supp. 16.) It also
rejected that it would assign any cases to family law or juvenile courts, as they had huge
caseloads and were protecting children and spouses. (Id. at pp. Supp. 13-14.) The case
was dismissed. (Id. at p. Supp. 16.)
9 This court declined to exercise its discretion to transfer Cole for further
consideration, leaving the opinion certified for publication. Further, the California
Supreme Court denied their writ of review and request for depublication.

-- 15 of 19 --

16
On appeal to the appellate department of the superior court, the court first
expanded on Cole and concluded that “„civil matters and proceedings‟ in section 1050,
subdivision (a), is broad indeed, and means any civil action or special proceeding of a
civil nature which is not clearly a criminal action,” but that a “precise definition” is not
necessary. (Flores, supra, 173 Cal.App.4th at p. Supp. 20, fn. omitted.) The Flores court
then reiterated that section 1050, subdivision (a) was not absolute and only required
granting precedence in a criminal case if to do so is just. (Flores, at p. Supp. 22.) It
agreed with Cole that family, probate, and juvenile departments should not make way for
criminal matters. (Flores, at p. Supp. 22.)
The Flores court then recognized that after Cole,the Hawthorne Elementary
School judges were hearing civil cases and that the district attorney was arguing those
courtrooms should be used to conduct criminal trials. It concluded that the denial of
access to courts implicates due process and that civil litigants are entitled to meaningful
access to the court system. (Flores, supra, 173 Cal.App.4th at pp. Supp. 23-24.) The
court recognized that all traditional civil courtrooms in Riverside County were already
being used for criminal trials. It then held, It then held, “We therefore disagree with the
District Attorney‟s position that even further precedence must be granted to criminal
matters. Conducting criminal trials at Hawthorne, temporarily assigning the judges
currently assigned to Hawthorne to secure courtrooms at other facilities, or forcing family
and probate departments to conduct criminal trials, would simply not be „consistent with

-- 16 of 19 --

17
the ends of justice,‟ and is therefore not mandated by section 1050, subdivision (a).” (Id.
at p. Supp. 24.)10
The reasoning in Flores and Cole is sound. The People in the instant appeal have
provided nothing new to this court that would change such reasoning. The policy to
expedite criminal cases in conformance with the ends of justice makes it a reasonable
determination on the part of the trial court to refuse to disturb those courts hearing civil
matters to hear a criminal case. Making an absolute rule that criminal cases should take
precedence over these types of cases would not serve the “ends of justice.‟” (Flores,
supra, 173 Cal.App.4th at p. Supp. 24.), We conclude that the trial court here did not err
or abuse its discretion by finding that there were no available courtrooms to try this last-
day case.
3. Refusal to grant continuance due to court congestion
The People additionally argue on appeal that they were unable to establish good
cause for a continuance because the trial court committed legal error (which constituted
an exceptional circumstance) by refusing to use civil courtrooms to try the instant case
and that court congestion was cause for a continuance.
In Cole, the appellate court rejected the People‟s argument that the trial court
abused its discretion by refusing to continue the trial beyond the statutory limit of section
10 On April 13, 2009, we denied the People‟s request to transfer Flores to this
court, leaving the case certified for publication. The People‟s writ of mandate/prohibition
filed in the California Supreme Court has been denied.

-- 17 of 19 --

18
1382. The Cole court found “chronic court congestion and overcrowding do not
constitute good cause for a continuance under section 1382.” (Cole, supra, 165
Cal.App.4th at p. Supp. 17; see also Rhinehart v. Municipal Court, supra, 35 Cal.3d at p.
782 [“absent exceptional circumstances, a trial court‟s congested calendar does not
constitute good cause to avoid a dismissal under section 1382”].)
In Flores, the court rejected the People‟s argument that the trial court‟s
mismanagement by placing the Hawthorne courts off limits was grounds for “good
cause” for the continuance. It found, “The situation in Riverside Superior Court of
insufficient courtrooms and judges to try all criminal matters before the statutory
deadlines is in no way novel or limited to this case -- it has been the norm for some time
now. [Citation.] Because we have already concluded the trial court did not abuse its
discretion by not utilizing available noncriminal resources to try Flores‟s case, we find no
court mismanagement whatsoever.” (Flores, supra, 173 Cal.App.4th at pp. Supp. 24-25.)
The Flores court concluded, “Lack of resources, not court mismanagement or
congestion caused by an exceptional or emergency situation, lay behind the delay in
Flores‟s trial. Under this state of affairs, granting a continuance would have been an
abuse of discretion.” (Flores, supra, 173 Cal.App.4th at p. Supp. 25.)
The findings in Flores and Cole are correct, and we see no reason to hold
otherwise. Here, the trial court did not discuss whether there was a good cause for a
continuance. The People did not argue the reasons that good cause existed, and therefore,
we cannot even address whether exceptional circumstances warranted a continuance.

-- 18 of 19 --

19
Further, we have already found that the trial court did not abuse its discretion by refusing
to use civil courtrooms for the intstant case. As such, we find there was no good cause to
continue the case.
We conclude the trial court did not abuse its discretion by dismissing this case.
Section 1382 bars the refiling of this case as a misdemeanor. (Avila v. Municipal Court
(1983) 148 Cal.App.3d 807, 812 [“[o]nce a misdemeanor has been dismissed pursuant to
section 1382, it cannot be filed again”].) Further, even if there was some argument that
the People could refile the case as a felony, this appeal forecloses any refiling of the
charges under the directives of section 1238, subdivision (b).
VI
DISPOSITION
We affirm the dismissal of this case.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
GAUT
J.
KING
J.

-- 19 of 19 --