
    [No. F007764.
    Fifth Dist.
    Nov. 8, 1986.]
    NYRAH ANN BRAZELL, Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
    
      Counsel
    Gerald F. Sevier, Public Defender, Neal Pereira, Assistant Public Defender, and David M. Liebowitz, Deputy Public Defender, for Petitioner.
    No appearance for Respondent.
    John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, James T. McNally and Thomas Y. Shigemoto, Deputy Attorneys General, for Real Party in Interest.
   Opinion

THE COURT.

Petitioner seeks a writ of mandate directing the trial court to grant her motion to dismiss the murder charges pending against her.

Facts

On November 4, 1985, petitioner was arraigned on an amended complaint alleging multiple violations of both the Penal Code and the Vehicle Code arising out of a traffic collision. In two counts of that complaint petitioner was charged with murder pursuant to Penal Code section 187 based upon the deaths of Monty Conley and Joe Landin which occurred as a result of the collision.

Following a preliminary examination, petitioner was held to answer on all charges.

On January 6, 1986, petitioner was arraigned on an information which included the murder charges.

On April 22,1986, the superior court granted petitioner’s motion pursuant to Penal Code section 995 to dismiss the information. A copy of the superior court’s ruling is attached to this opinion as exhibit 1.

On April 25, 1986, petitioner was arraigned on a new complaint which alleged the dismissed counts.

On July 22, 1986, following a second preliminary hearing the magistrate ruled as follows: “I’m not going to hold her to answer on [the murder charges] on my comments. She will be ordered to appear in the Superior Court to answer to the rest of the charges.”

On August 6, 1986, petitioner was arraigned in respondent court on an information which realleged the murder charges.

On September 11, 1986, petitioner filed a motion to dismiss the murder charges pursuant to Penal Code section 1387. Respondent court denied that motion by an order filed on September 23,1986, and an amendment rendered on October 3, 1986.

Discussion

Penal Code section 1387 provides in pertinent part as follows: “An order terminating an action pursuant to . . . Section . . .871,. . . is a bar to any other prosecution for the same offense if it is a felony . . . and the action has been previously terminated pursuant to . . . Section . . . 995 ....

“However, if the previous termination was pursuant to Section . . . 995, the subsequent order terminating an action is not a bar to prosecution if:
“(b) The motion pursuant to Section 995 was granted because of any of the following reasons:
“(3) Ineffective assistance of counsel.”

Section 1387 “. . . applies to bar the inclusion of counts of an information as well as to bar an entire information.” (Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1114 [206 Cal.Rptr. 242].)

The first termination of the murder charges against petitioner occurred on April 22, 1986, when the superior court granted petitioner’s motion pursuant to Penal Code section 995.

This court rejects real party’s contention that the April 22, 1986, termination was based upon “ineffective assistance of counsel” so as to come within the exception contained in Penal Code section 1387, subdivision (b)(3) which is quoted above. It is apparent from the terms of that ruling that it was based solely upon the magistrate’s error in failing to grant petitioner’s motion for a continuance; that ruling expressly stated that “there was nothing in the record ... to indicate any lack of good faith or absence of due diligence by defense counsel. ” Although respondent court determined in passing upon petitioner’s section 1387 motion that the April 22, 1986, ruling came within the exception in subdivision (b)(3), respondent court characterized the performance of petitioner’s counsel at the first preliminary examination as “. . . the (forced) in-effectiveness of counsel.” On October 3, 1986, respondent court clarified its ruling as follows: “Secondarily, the record should reflect specifically that the court finds that the only reason that counsel was incompetent [at the first preliminary hearing] was due to the erroneous action of the magistrate below.”

The exception contained in Penal Code section 1387 provides that the granting of a section 995 motion will not count toward barring a prosecution if it was based upon the “ineffective assistance of counsel.”

The phrase “ineffective assistance of counsel” has been used by the courts in the context of incompetence of trial counsel or situations where counsel has acted against the interests of his client. (E.g., Strictland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692, 104 S.Ct. 2052]; People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144].) That phrase has thus acquired a particular meaning by judicial decision which the Legislature is presumed to know when it enacted the exception in Penal Code section 1387, subdivision (b)(3). (Stafford v. Realty BondService Corp. (1952) 39 Cal.2d 797, 805 [249 P.2d 241].) It is “. . . well established that where the legislature uses terms already judicially construed, ‘the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts. ’ ” (City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 620 [82 P.2d 362].) Therefore, the incorporation of the phrase “ineffective assistance of counsel” in Penal Code section 1387 indicates a legislative intent that the exception only applies where an error is committed by counsel. (Stafford v. Realty Bond Service Corp., supra; City of Long Beach v. Marshall, supra.)

While the phrase “denial of effective counsel” has been applied to errors committed by a court which prevents counsel from adequately serving the client’s interests (e.g., In re Ali (1964) 230 Cal.App.2d 585, 591 [41 Cal.Rptr. 108]), the absence of such language in Penal Code section 1387 indicates that the Legislature did not intend the exception to have such a broad application. Moreover, such a construction must be rejected because this court is required to resolve any “. . . reasonable doubt concerning the meaning of a penal statute ... in favor of the defendant.” (Carlos v. Superior Court (1983) 35 Cal.3d 131, 145-146 [197 Cal.Rptr. 79, 672 P.2d 862].)

This court concludes that the exception contained in subdivision (b)(3) is inapplicable where the prior dismissal was predicated upon an error committed solely by a court. (Cf. Carlos v. Superior Court, supra, 35 Cal.3d 131, 145-146.)

The second termination occurred on July 22, 1986, when the magistrate at the second preliminary hearing declined to hold petitioner to answer on the murder charges even though the magistrate did not “. . . reduce his or her decision of dismissal to writing.” (In re Williams (1985) 164 Cal.App.3d 979, 983 [211 Cal.Rptr. 32].)

“. . . [A] failure or refusal to hold [to answer], even without a formal order of dismissal, constitutes a termination of the action within the meaning of section 1387.” (In re Williams, supra, at p. 983.)

The fact that on July 22, 1986, the magistrate also held petitioner to answer upon the other charges does not affect our conclusion that the murder counts were dismissed. (Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [184 Cal.Rptr. 622, 648 P.2d 589].)

This court concludes that the trial court abused its discretion in denying petitioner’s motion to dismiss the murder charges pursuant to Penal Code section 1387.

Let a peremptory writ of mandate issue directing the trial court to vacate its orders of September 23, 1986, and October 3, 1986, denying petitioner’s motion to dismiss counts I and II of the information alleging violations of Penal Code section 187, and to enter a new order granting said motion only insofar as it seeks a dismissal of said murder charges.

The order filed on October 30, 1986, staying any trial upon the murder charges shall remain in effect only until this opinion is final in all courts of this state, the Supreme Court grants a hearing herein or respondent court complies with the directions in this opinion, whichever shall first occur; thereafter said stay is dissolved.

A petition for a rehearing was denied December 3, 1986, and petitioner’s application for review by the Supreme Court was denied December 16, 1986. 
      
      Before Brown (G. A.), P. J., Best, J., and Azevedo, J.
      
     
      
      Assigned by the Chairperson of the Judicial Council.
     