As cited by the majority, Court of Appeal decisions related to the question before us are about evenly divided.
The Supreme Court in People v. Belleci (1979) 24 Cal.3d 879 [157 Cal.Rptr. 503, 598 P.2d 473], was concerned only with a later sentencing hearing within the same criminal prosecution. Arguably its reasoning applies to a later, separate prosecution against the same defendant after a refiling. Arguably also, however, its reasoning is not to be extended to such other prosecutions, a result consistent with the somewhat earlier cases of People v. Gephart (1979) 93 Cal.App.3d 989 [156 Cal.Rptr. 489] and People v. Williams (1979) 89 Cal.App.3d 1026 [152 Cal.Rptr. 892].
I consider my colleagues’ dual-county distinction concerning Gephart to be artificial in relation to the fundamental principle involved. Further, to the extent one can puzzle out legislative intent in reconciling Penal Code sections 1538.5, subdivision (d), and 1387, I think the plain meaning of the latter authorizes a second prosecution. Any other interpretation renders meaningless its “bar to any other prosecution” after an “action has been previously terminated pursuant to this chapter . . . .”
A statutory scheme giving the prosecution a “second shot” under such circumstances may superficially appear unfair or unnecessary. Its rationale, however, is well described in Gephart’s analysis of an accused’s “seven opportunities” and the People’s “several opportunities.” (People v. Gephart, supra, 93 Cal.App.3d 989, 995-996.)
I would grant the petition.
Petitioner’s application for a hearing by the Supreme Court was denied November 25, 1983. Richardson, J., was of the opinion that the application should be granted.