I concur in the result reached by the majority because of the context and posture in which this appeal was presented. I would point out, however, that in my opinion the People were not justified in filing the new complaint on October 6, 1972, and that a motion to dismiss the complaint on that basis would have been appropriate.
It is a common practice for district attorneys to dismiss criminal complaints and to file new complaints on the same charges. Although this practice has apparently gone unchallenged on the apparent assumption that the district attorney has the unilateral right to dismiss a criminal complaint without prejudice to the filing of a complaint on the same charges, there is no statutory or decisional authority permitting him to do so.
As early as 1874 the Supreme Court, in People v. Indian Peter, 48 Cal. 250, 253, held that the cases in which and the proceedings by which a prosecution may be dismissed are designated in the Penal Code which “must be taken to exclude all other cases, or cases not provided for by its terms.” That case has never been overruled.
Chapter 8 of title 10 of part 2 of the Penal Code (§§ 1381-1387) provides for the dismissal of criminal actions “for want of prosecution or otherwise.” Sections 1381 and 1382 provide for the situations in which a criminal action must be ordered dismissed for lack of prosecution. The only other statute providing for dismissal is section 1385. This section provides: “The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.” (Italics added.)
*1034Section 1386 provides, significantly, as follows: “The entry of a nolle prosequi is abolished, and neither the attorney-general nor the district attorney can discontinue or abandon a prosecution for a public offense, except as provided in the last section [1385].” (Italics added.) Finally, we observe the pertinent provisions of section 1387 which provide: “An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.”1 (Italics added.)
The thrust of Indian Peter is recognized by the author of the article on dismissal of criminal cases in 16 California Jurisprudence, Second Edition, section 63, at page 303, as follows: “Neither the attorney general nor the district attorney can discontinue or abandon a prosecution for the public offense, except by application to the court for a dismissal in furtherance of justice. The entry of a nolle prosequi is abolished.”
In the present case the first action was not dismissed upon application of the district attorney in furtherance of justice but was unilaterally dismissed without an order of court indicating that it was dismissed in furtherance of justice or the reasons therefor. Such a dismissal was ineffectual and of no purport whatsoever. The pending action, therefore, is that based on the first complaint and its present posture, in my opinion, is that which existed at the time the purported new complaint was filed.
I think the conclusion is inescapable that once a criminal action has been filed it cannot be dismissed except as provided in the Penal Code provisions above referred to. I perceive that once a criminal action has been instituted its prosecution is not solely the prerogative of the Attorney General or the district attorney as the representative of the People, but that the defendant who has been charged has an equal interest in the resolution of the action. While it may be a truism that a delay in a criminal prosecution works to the benefit of the defendant, it is equally true that a defendant prefers a speedy determination of his guilt or innocence to the prospect of being subjected to a procedure whereby successive complaints upon the same charge may be filed against him before a determination of guilt or innocence is made.
Appellant’s petition for a hearing by the Supreme Court was denied November 21, 1974. McComb, J., and Mosk, J., were of the opinion that the petition should be granted.
It should be noted that sections 1385, 1386 and 1387 were enacted in 1872 and have, in substance, remained unchanged.