Rarely is the neglect of counsel as manifestly inexcusable as the repeated failures of the district attorney in this case. In my view, the continuing failure of prosecutors to correct glaring defects in charging documents in a homicide case after these defects were repeatedly called to their attention constitutes gross negligence.
I.
The majority’s labored attempt to find some justification for deferring to the ruling of the magistrate rather than the conflicting ruling of the superior court reflects, among other things, the majority’s belief that the magistrate addressed the central issue in this case; namely, whether the prosecutorial negligence in question “might have been the act of a reasonably prudent person under the same or similar circumstances” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271]; Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476 [58 Cal.Rptr. 249, 426 P.2d 753]; Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921 [242 P.2d 22]), which the parties agree is the definition of “excusable neglect.” My colleagues’ deference to the magistrate is not only meaningless, because he made no such finding, but improper, because the different finding the magistrate did make was untenable as a matter of law.
The magistrate’s conclusion that the district attorney’s neglect was excusable was based solely on the absence of prejudice to the defendant if the third filing was permitted. Explaining his conclusion that the neglect was excusable, the magistrate stated as follows: “In considering whether or not the neglect in this case is excused, the primary factor I’m looking at is whether or not this defendant is prejudiced by the way this case has been handled.[1] Any defendant is prejudiced by being charged with a crime, being incarcerated, *1160held without bail or a high bail. Now, in this case is the defendant prejudiced by the third filing? What is the effect on this defendant? A review of the record shows that there was no surprise in the Superior Court, in my opinion, based on my review of all the records, and if the third refiling is allowed she will be facing, once more, the charges she already knew about and decided to ignore in Superior Court.” (Italics added.)
After reiterating that the district attorney was “not playing games or vindictive” and therefore not guilty of bad faith,2 the magistrate concluded his explanation of why the negligence was excusable with the following observation: “In my opinion the repeated filings by the People do not amount to a denial of any right of a constitutional magnitude. Specifically, there doesn’t appear to be any due process violation and no due process violation is alleged by the defense. No speedy trial violation is alleged or shown, so in my opinion the previous dismissals are neither vindictive [n]or malicious. In short, the refiling of the charges of which the defendant was already aware and prepared to defend inflicts no prejudice on her.” (Italics added.)
The magistrate’s analysis eviscerates Penal Code section 1387.1.3
Obviously, if denial of a constitutional right or violation of the speedy trial statutes (§§ 686,1381 et seq.) were necessary to make out a violation of section 1387.1, section 1387.1 would be completely unnecessary.
Section 1387.1 would also be meaningless if enforcement of the duty it imposes and the right it confers required a showing that the defendant would otherwise be prejudiced. Our Supreme Court has consistently repudiated the idea that the absence of prejudice can alone constitute a sufficient basis for setting aside an otherwise unexcused default. Thus, in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 [187 Cal.Rptr. 592, 654 P.2d 775], one of the seminal cases defining the concept of excusable neglect, the court rejected the use of prejudice as a dispositive consideration, stating there is “no case which permits the setting aside of a judgment in spite of inexcusable neglect, simply because the other side has not been prejudiced.” (Id., at p. 900, citing generally, In re Marriage of Park (1980) 27 Cal.3d 337, 345 [165 Cal.Rptr. 792, 612 P.2d 882]; Weitz v. Yankosky (1966) 63 Cal.2d 849, 857 [48 Cal.Rptr. 620, 409 P.2d 700]; Benjamin v. Dalmo Mfg. Co. (1948) 31 *1161Cal.2d 523, 531-532 [190 P.2d 593].) The governing principle was neatly summed up recently in Iott v. Franklin (1988) 206 Cal.App.3d 521 [253 Cal.Rptr. 635]: “Whether or not the conduct of respondents’ attorney prejudiced appellant is irrelevant. If the conduct was excusable, prejudice to appellant will not make it inexcusable. But if the conduct was inexcusable, absence of prejudice to appellant will not make it excusable. [Citations.]’’ (Id., at p. 531.)
The majority says that this dissent rests on my “view that the magistrate erroneously failed to reach the question of excusable neglect,” and says this argument is “easily rebutted.” (Maj. opn., ante, p. 1152.) The argument is indeed easily rebutted, but it is not my argument. The majority’s procrustean effort to minimize the magistrate’s improper reliance on prejudice is accomplished not only by distorting the magistrate’s explanation for his ruling, but by mischaracterizing the issue. The question in this case is not, as the majority claims, whether the magistrate “understood the need to find excusable neglect.” (Maj. opn., ante, at p. 1153.) Of course he did. The question in this case is whether the magistrate understood and applied the legal definition of excusable neglect; that is, whether the magistrate actually determined that the undisputed prosecutorial neglect “might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan, supra, 35 Cal.3d 427, 435.) The magistrate’s explanation for his finding that the neglect was excusable reveals his complete ignorance of or indifference to the legal standard and shows that he ruled as he did only because he believed respondent would not be prejudiced if a third filing of the criminal complaint was permitted.
The statement in Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 [211 Cal.Rptr. 416, 695 P.2d 713], seized upon by the majority (“Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party”), is not at all inconsistent with the settled principle that the absence of prejudice cannot excuse conduct otherwise inexcusable. The problem in this case is not that in reaching his decision the magistrate considered the lack of prejudice. The problem is that that is all he considered.
It is, of course, true that the district attorney’s application for relief was addressed to the sound discretion of the trial judge. “That discretion, however, ‘ “is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles.” ’ ” (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 898, quoting Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d at p. 526, italics added.) An exercise of discretion that conflicts with such principles exceeds the authority of the *1162court and is not entitled to the indulgence of an appellate court. Decisions reversing trial court orders granting relief are not uncommon even in cases in which the trial court ruling conforms to the applicable legal principles. (Iott v. Franklin, supra, 206 Cal.App.3d 521, 529; see also Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 339 [227 Cal.Rptr. 78]; Martin v. Cook (1977) 68 Cal.App.3d 799 [137 Cal.Rptr. 434].) Reversal is all the more warranted where, as here, there is no material factual dispute4 and the lower court applies a legally erroneous test.
Superior Court Judge James Moelk, whose familiarity with the relevant evidence was equal to that of the magistrate, recognized the magistrate’s legal error. As he stated, “[t]he Magistrate really did not analyze his findings factually and simply made the statement that he found excusable neglect and then went on to talk about prejudice . . . ,”5 The magistrate’s complete reliance on the lack of prejudice to defendant implies he was unable to find any other excuse for the repeated carelessness of counsel. In any case, the best that can be said of the magistrate’s action is that he ignored the central question whether the district attorney’s errors “might have been the act of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) Superior Court Judge Moelk, on the other hand, made the appropriate inquiry and expressly found that the negligence in question was not objectively reasonable and was therefore inexcusable within the meaning of the statute. It seems to me strange indeed to prefer a factual finding that was never made to one that was.
II.
The majority attempts to finesse the magistrate’s error by wrapping his ruling in something called “the presumption of regularity” and by placing upon respondent the “burden to overcome the regularity presumption by an affirmative showing.” (Maj. opn., ante, at p. 1152.) The majority thus sets up its conclusion that, though respondent “does allude to error by the magistrate,” she has failed to overcome her burden of “overcoming the presumption that the magistrate acted properly.” (Maj. opn., ante, at p. 1152.) This *1163argument, which was never advanced by the People, turns this case on its head.
First of all, the “presumption of regularity” the majority uses to validate the magistrate’s ruling, and which is the cornerstone of its opinion, is wholly unwarranted. The cases the majority rely upon, which relate to the presumption of official duty regularly performed codified in Evidence Code section 664, state that a reviewing court may presume that the trial court followed established law only in the absence of any contrary evidence. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [141 Cal.Rptr. 133, 569 P.2d 727] and cases there cited; People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [224 Cal.Rptr. 208].) There is in this case abundant evidence that the magistrate applied an erroneous legal standard, as well as recognition of this error by the superior court. The idea that such evidence of legal error can be whitewashed and the order of the superior court ignored on the basis of a presumption that a magistrate acted properly is simply astonishing.
It deserves to be noted, in this connection, that in the absence of a statute specifying the magistrate as the fact finder, such as section 995, or making the magistrate’s findings “binding” on the superior court, such as section 1538.5, subdivision (i), a magistrate’s findings as to credibility and the weight of the evidence are not entitled to the special deference of a reviewing court and there is a right to a de novo hearing in the superior court. (People v. McCoy (1983) 147 Cal.App.3d 638 [195 Cal.Rptr. 285].) That is why the standard of review in this case is not, as the majority claims, analogous to the review of a motion to set aside an information under section 995 or to suppress evidence presented on a prior motion before a magistrate under section 1538.5. “Judges of the municipal court acting in the capacity of magistrates do not have the jurisdiction and powers pertaining to their judicial offices.” (In re Geer (1980) 108 Cal.App.3d 1002, 1006 [166 Cal.Rptr. 912], citing People v. Crespi (1896) 115 Cal. 50, 54 [46 P. 863].) Therefore, as stated in People v. McCoy, supra, 147 Cal.App.3d 638, a magistrate’s decision “that there was no such delay as would require dismissal can reach no further than his limited jurisdiction and is not binding on the superior court, which, as the trial court, has jurisdiction over the ultimate questions of guilt and innocence.” (Id., at p. 642.) Appellant’s argument that the magistrate is undeserving of deference because it lacks the jurisdiction of a “trial court” is therefore neither “fatuous” nor “a word game.” (Maj. opn., ante, at p. 1148.)
In any event, unaware of the “presumption of regularity” concocted by the majority, the Attorney General recognizes that the burden of persuasion in this case does not lie with respondent, but that it is the People’s burden to *1164persuade this court “that the superior court erred in granting the motion to dismiss.”
III.
The magistrate’s finding would not be entitled to the deference of a reviewing court even if it was entitled to greater deference than that of the superior court and even if it had been made on a legally correct basis, because it is factually insuppportable.
As respondent points out, every single member of the district attorney’s office connected with this case failed to properly discharge an important responsibility. Deputies Coffer and Highsmith failed to read important documents signed under penalty of perjury; three legal assistants or secretaries failed to correct the charging papers when instructed to do so; Deputies Coffer and Sherrer failed to correct obvious defects in the documents after these defects were called to their attention on two different occasions by two different judges; and Deputy Highsmith failed to read the charging document at the time trial was ready to commence. These are not the mistakes of reasonably prudent persons even if each is considered separately6 and even ignoring the repeated admonitions of the judges who called the defects in the charging documents to the attention of counsel.
The failure to read an important document has been held inexcusable in circumstances considerably more sympathetic than those in this case. In Davis v. Thayer (1980) 113 Cal.App.3d 892 [170 Cal.Rptr. 328], the complaint for restitution and damages alleged that plaintiff was entitled to punitive damages in the sum of $50,000 because defendants had acted with oppression, fraud and malice. When neither defendant appeared, defaults were entered as to each of them. Defendants’ motion to set aside their defaults was denied on the sole ground that the motion exceeded by one day the six-month limit authorized under section 473 of the Code of Civil Procedure. Affirming, the Court of Appeal stated as follows: “If [counsel] failed to read the complaint he was guilty of gross negligence. If he did read it and disregarded its allegations he was guilty of careless and indifferent conduct. In either event relief should be denied.” (113 Cal.App.3d at p. 906.)
*1165Ross v. Ross (1941) 48 Cal.App.2d 72 [119 P.2d 444] is factually similar to the present case in several important respects. In that divorce action the plaintiff wife, whose previous action had been dismissed a few days earlier, filed a claim for temporary alimony and for an allowance of counsel fees and costs; the papers advancing this claim and an order to show cause were bound together with the complaint in a single volume. The defendant never examined the papers but simply took them to the office of his attorney in Modesto. That attorney did not inspect the papers; he simply prepared a motion for a change of venue and forwarded the papers to a firm of attorneys in Los Angeles, with a letter informing them that “copy of the summons and the complaint” was enclosed. (Id., at pp. 74-75.) “On reaching Los Angeles this letter was opened by the secretary of the Los Angeles attorneys, who read the letter but not the enclosed papers. She handed the letter and papers to one of the firm, stating that they contained ‘complaint and motion for change of venue.’ This attorney read the letter but did not discover the order to show cause, and he handed the file to another attorney in the firm and told him the case involved a motion for a change of venue exactly like the one in the previous case and asked him to attend to it. Apparently the second attorney also did not read the papers, for he ‘did not learn that an order to show cause had been ordered and was heard on August 8,1939, until August 10, 1939, when he was informed by attorney for plaintiff.’ ” (Id., at p. 75.)
The trial court denied the defendant’s motion to vacate and the Court of Appeal affirmed, pointing out that “the defendant himself, three attorneys to whom the care of his interests in this action was committed and one legal secretary unanimously failed to read all the papers served on him or even to ascertain what papers were served, although they all had those papers in their hands with ample opportunity, as far as appears, for examination. Such a failure to examine the papers served on defendant undoubtedly constituted a neglect of duty. [Citations.]” (48 Cal.App.2d at pp. 75-76.)
In Ross opposing counsel helped cause the problem by the unusual practice of binding the claim for temporary alimony, fees and costs and the order to show cause together with the complaint under a single cover. The negligence in the present case was not induced by any affirmative act of opposing counsel. More importantly, the negligence in Ross was not repeatedly called to counsels’ attention by any third parties, let alone by judicial officers.
Martin v. Cook, supra, 68 Cal.App.3d 799 also exemplifies the seriousness courts have heretofore attached to the failure of counsel to read important documents. In that case plaintiff’s counsel failed to read a stipulation in which the defendant waived the two-year statute of limitations and, as a *1166result, erroneously assumed the five-year statute had been waived. The court reversed the granting of relief by the trial court even though the plaintiff had been awarded a $100,000 verdict. Similarly, in Penryn Land Co. v. Akahori (1918) 37 Cal.App. 14 [173 P. 612] the neglect of an estate administrator to carefully read the summons served upon him was held inexcusable and insufficient to invoke relief under Code of Civil Procedure section 473.
The cases relied upon by the majority are readily distinguishable. The majority cites Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270 [228 Cal.Rptr. 190, 721 P.2d 71] for the proposition “that [Deputy District Attorney] Highsmith’s overall performance in this case was diligent, which bears on whether his single area of neglect here was excusable.” (Maj. opn., ante, at p. 1151.) Bettencourt turns more on the reasonableness of counsel’s mistake than his diligence in correcting it. The plaintiffs in Bettencourt brought an action for the wrongful death of their son on a city college field trip. Plaintiffs’ counsel, believing the college’s employees worked for the state, filed a claim with the state, and did not discover his mistake until expiration of the statutory period for filing a claim. In concluding that the mistake was objectively reasonable the Supreme Court emphasized that the facts were confusing and the law obscure. “Counsel practiced law in Walnut Creek, which is approximately 75 miles from Sacramento. He has never lived in Sacramento County, nor has he practiced law there. He was not familiar with the Los Rios Community College District or Sacramento City College. Moreover, public higher education in California represents a sometimes confusing blend of state and local control and funding. For example, the Los Rios Community College District, like all community college districts, is overseen by the state Community College Board of Governors, whose members are appointed by the Governor. [Citation.] Accordingly, it would not have been unreasonable for counsel to assume that Sacramento City College was part of the statewide higher education system.” (42 Cal.3d at pp. 276-277.)
Deputy District Attorney Highsmith’s negligence in this case, like that of his colleagues, bears no resemblance whatsoever to the understandable error of counsel in Bettencourt. Highsmith is among the most experienced prosecutors in Solano County, authorized to try the most serious of all felony cases. It would be utterly preposterous to believe he was unaware of the basic requirements of a criminal complaint or information or the duty to read a document filed by his office, and signed under penalty of perjury, purporting to charge a double homicide. Moreover, Highsmith was intimately familiar with the facts of defendant’s case, as he had recently completed prosecution of her alleged crime partner with respect to the same homicides. Furthermore, unlike counsel in Bettencourt, who diligently discovered the *1167mistake himself, Deputy Highsmith and his colleagues did not discover their own errors and even failed to correct them after the errors were called to their attention. Finally, relief was granted in Bettencourt under Government Code section 946.6, which unlike section 1387.1, “is a remedial statute intended ‘to provide relief from technical rules that otherwise provide a trap for the unwary claimant.’ [Citations.] As such, it is construed in favor of relief whenever possible. [Citation.]” (Bettencourt, supra, (42 Cal.3d at p. 275.) No such indulgence attends the application either of section 1387.1 or Code of Civil Procedure section 473.
Elston v. City of Turlock, supra, 38 Cal.3d 227, also relied upon by the majority, is also easily distinguishable. The attorney there failed to answer a request for admissions concerning the ultimate issues of the case, which were therefore deemed admitted. Not only was the error never called to counsel’s attention, as it was in the present case, but the attorney was understandably “unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date . . . .” (Id., at p. 234.) The attorney in Elston did “not allege that he was aware of the request for admissions and nevertheless failed to answer because he forgot or was too busy.” (Ibid.) Counsel’s negligence in the present case is far more egregious. None of the deputy district attorneys who failed to read the charging documents claimed they were unaware of the duty to do so or that, if they had fully read the document, they would not have perceived the defect. Moreover, their “excuses” are precisely those which Elston indicates are unacceptable, that they forgot or were just too busy. As Deputy Highsmith put it, he “shot from the hip alot [szc]” due to his workload.
The test in this case, it bears reiterating, is not whether counsel can explain his or her negligence, because that can usually be done.7 The test is an objective one: whether the neglect, mistake or inadvertence “might have been the act of a reasonably prudent person under the same circumstances.” (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435; Tammen v. County of San Diego, supra, 66 Cal.2d at p. 476; Baratti v. Baratti, supra, 109 Cal.App.2d at p. 921.) To conclude, as do my colleagues, that a reasonably prudent district attorney prosecuting a double homicide need not read the charging document signed under penalty of perjury and correct defects therein, even when the defects were repeatedly called to his or her attention by judicial officers, demeans the professionalism of the district attorneys of this state, condones irresponsibility (Gardner v. Superior Court, supra, 182 Cal.App.3d *1168335, 339), undermines the orderly process of the law (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282 [75 Cal.Rptr. 848]) and thwarts the policy reflected in section 1387.1. This should not be done. “Courts do not relieve litigants from the effects of mere carelessness.” (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d 523, 529.)
IV.
The question whether the neglect of counsel was excusable pertains only to the Madison count (count 1), as the prosecution was never negligent in connection with the Benavidez count (count 2). Although the Benavidez homicide was at all times correctly charged, the prosecutor twice dismissed it for tactical reasons, first because of the absence of an essential witness and subsequently because it was thought necessary in order to preserve the multiple-murder special-circumstance allegation after the superior court dismissed the Madison murder charge. Though defense counsel repeatedly pointed out that excusable neglect could not be used to permit a third filing of the Benavidez count, and the prosecution never disputed this assertion, the magistrate neglected to address the issue—apparently because of his erroneous preoccupation with the question of prejudice. Tlie superior court did not address the issue because its dismissal of the entire information rendered it unnecessary to do so.
Holding that “excusable neglect directly affecting one count may in some circumstances so affect another count that the People’s decision to voluntarily dismiss that other count justifies a third filing of both” (maj. opn., ante, at p. 1155), the majority concludes that dismissal of the defective Madison count so seriously impeded prosecution of the Benavidez count that the voluntary dismissal of the latter count was justifiable and a third refiling permissible. The majority’s reasoning is unsound, will create uncertainty in the law, and does not, in any event, support the result the majority reaches.
1.
The idea that a charge may be refiled a third time even though both prior dismissals were deliberately made for tactical reasons rather than as a result of excusable neglect cannot be reconciled with the plain language of section 1387.1. In the words of the statute, a third refiling of a previously dismissed charge is permissible only where either of the prior dismissals of each dismissed charge “were due solely to excusable neglect.” (§ 1387.1, subd. (a), italics added.) The majority concedes, as it must, that for purposes of section 1387.1, “excusable neglect” must be separately considered as to each of multiple counts sought to be refiled. (See Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1118 [206 Cal.Rptr. 242].)
*1169The majority is unwilling to conclude that section 1387.1 means what it says because such a construction would in this case “leave[] the People no way to save a multiple-murder case when an 1 lth-hour problem arises, as to just 1 count, under the constraints of a no-time-waiver trial.” (Maj. opn., ante, at p. 1157.) According to the majority, “[t]he Legislature could not have intended such rigidity.” {Ibid.) Putting aside for the moment the falsity of the assertion that the People had no way to save the multiple-murder allegations, the majority is saying that the Legislature could not have intended that section 1387.1 might have very adverse consequences for district attorneys. This is inconceivable. A statute declaring that a criminal charge may not be refiled a third time unless one of the prior dismissals was the result of excusable neglect obviously contemplates that the People may in some cases be prevented from charging not just special allegations but violent felony offenses. The risk the majority eliminates is inherent in the preclusion by section 11387.1 of third refilings of violent felony charges. There is no basis in the statute, the legislative history, the case law or in reason for the exception to the clear mandate of section 1387.1 which the majority carves out. Courts cannot create exceptions to rules of general application in the absence of an explicit legislative direction. (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 476 [304 P.2d 7].) “A court may not insert into a statute qualifying provisions not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent. (Bruce v. Gregory (1967) 65 Cal.2d 666, 674 . . . .)” (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d 213, 217 [234 Cal.Rptr. 316]; 2A Sutherland, Statutory Construction (5th ed. 1992) § 47.11, p. 165.)
The majority’s revision of the statute also creates an uncertainty bound to confound the trial courts, because it provides no guidance for identifying the circumstances in which excusable neglect as to one count may “so affect another count” as to permit a third refiling of such other count despite the absence, as to it, of excusable neglect. It is not useful to say that the refiling of the “good count” is justified where the prosecution of that count is “seriously impede[d]” by the dismissal of a “defective count” without providing some guidelines as to what constitutes a “serious impediment.” The problem is exacerbated because in this case, as will be seen, no impediment genuinely exists. Confusion will also result from the majority’s focus on the special allegations that attend felony charges in order to enhance sentence under section 667.5. (Maj. opn., ante, at pp. 1156-1157.) It is irrelevant that section 1387.1 “envisions that a finding of excusable neglect preserves special allegations attending the offense . . . .” (Maj. opn., ante, at p. 1156.) In order to preserve special allegations attending the offense in question there must first be a finding of excusable neglect as to *1170that offense. There was no such finding in this case, nor even a claim of excusable neglect, with, respect to the twice dismissed Benavidez count. What the majority therefore seems to be suggesting is that a twice dismissed count can be refiled a third time without a finding of excusable neglect if that is essential to the proof of a special allegation attending the count as to which there was excusable neglect. There are several logical and legal problems with this reasoning, which has never been advanced by the People nor adopted by any court. Not the least of the problems is the false premise that dismissal of the Benavidez count was essential to the proof of the special allegations.
2.
The majority accepts the People’s contention that the multiple-murder special circumstance would be lost if the prosecution proceeded to try the Benavidez count separately on the ground that “[a] multiple-murder special-circumstance allegation is unique. Unlike any other, it minimally requires two counts of murder in the same proceeding.” (Maj. opn., ante, at p. 1156, italics in original.) This is untrue.
While “special circumstances” warranting death or confinement in state prison for life without possibility of parole may be alleged under subdivision (a)(3) of section 190.2 when “[t]he defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree” (italics added), such “special circumstances” also may also be alleged, under subdivision (a)(2), when “[t]he defendant was previously convicted of murder in the first degree or second degree.” (Italics added.) The case law also establishes that the severance of two previously joined murder charges cannot deprive the People of the right to allege special circumstances and seek imposition of one of the heightened penalties authorized under section 190.2. (People v. Hendricks (1987) 43 Cal.3d 584, 595-596 [238 Cal.Rptr. 66, 737 P.2d 1350]; People v. Johnson (1991) 233 Cal.App.3d 425, 449 [284 Cal.Rptr. 579].) Because separate trials would not impair the ability of the prosecution to prove a multiple-murder special circumstance, dismissal of the Madison count created no impediment, let alone a “serious impediment,” to prosecution of the Benavidez count and there was no prosecutorial need to dismiss that count when the Madison count was dismissed.
The majority admits that separate trials on the two counts “may have been a viable way to proceed” (maj. opn., ante, at p. 1158), making it unnecessary to voluntarily dismiss the Benavidez count. My colleagues claim, however, that this possibility was not something a reasonably competent district attorney could have been expected to realize, finding it “telling that no one *1171apparently thought of it until this appeal.” (Maj. opn., ante, p. 1158.) It is the prosecution, not the defendant, that has this responsibility. Given the clarity of the statutory authorization of multiple-murder special circumstances with respect to homicides that are separately prosecuted (§ 190.2, subd. (a)(2)), which is not hidden in some hard-to-find portion of the Penal Code, it did not require unusual intellect or experience to realize that the Benavidez count could be separately tried without any prejudice whatsoever to the special circumstance allegation. The feeble attempts of the Attorney General to persuade us otherwise are the best measure of the absence of any good reason to voluntarily dismiss the Benavidez count.8
The unfortunate effect of the majority opinion is to excuse inexcusable ignorance; it is a perverse irony that this is accomplished in connection with a statute calculated to hold prosecutors to a high standard of conduct.
I would affirm the judgment of the superior court and grant the petition for habeas corpus.
Respondent’s petition for review by the Supreme Court was denied April 22, 1993. Mosk, J., was of the opinion that the petition should be granted.
*1172Appendix
“The Court: Okay. Is the matter submitted?
“Mr. Highsmith: Yes
“The Court: Okay. For what it’s worth, as far as this hearing, I don’t think it’s worth much but I agree with Judge Harrison’s decision not to allow the amendment at the time of trial. Recess was taken, the D.A. made a conscious decision to dismiss the case, obviously hoping that a municipal court judge would find under 1387 that the dismissal was based on excusable neglect.
“The legislative intent behind the applicable statute, 1387.1, is important it seems to me. As I recall, the People, the prosecution, used to be able to proceed with limitless dismissals, subject to constitutional considerations, and because of occasional fundamental unfairness to defendants, legislation was passed, limiting the number of dismissals in felony cases to two. I’m taking a look at 1387.1, which was passed in 1987, and an exception to that was recognized for violent felonies; murder is a violent felony, and based on that an additional refiling a third time is permitted if either of the previous two dismissals were based solely on excusable neglect.
“Refiling is not permitted if the People’s conduct amounts to bad faith. Now, I don’t see any bad faith in this case. Witkin tells us that error by the People may be excusable neglect. There is clearly neglect by the People by a number of attorneys, experienced attorneys, and by what appears according to the testimony to be a competent staff. I guess the question before me is, shall I excuse this admittedly negligent conduct.
“In considering whether or not the neglect in this case is excused, the primary factor I’m looking at is whether or not this defendant is prejudiced by the way this case has been handled. Any defendant is prejudiced by being charged with a crime, being incarcerated, held without bail or a high bail. Now, in this case is the defendant prejudiced by the third filing? What is the effect on this defendant? A review of the record shows that there was no surprise in the Superior Court, in my opinion, based on my review of all the records, and if the third refiling is allowed she will be facing, once more, the charges she already knew about and decided to ignore in Superior Court. That was her tactical decision. The D.A. finally recognized the charging problem on the day of trial and may a conscious decision to not proceed with one half of the case. Mr. Highsmith articulated the reason, and I have no reason to doubt him that he was seeking a special circumstances allegation. He pointed out that even if the defendant were convicted of two murders if *1173they were a result of two separate proceedings she would not get the punishment they were seeking which is apparently life without the possibility of parole.
“Now, the defendant, who is free from any burden of proof, chose to silently proceed in Superior Court and the D.A. chose to dismiss and refile. In my opinion the D.A.’s office was not playing games or vindictive. He said the first dismissal was a result of not being ready to proceed. They tried to find a witness, they couldn’t find him, they dismissed it. In the second case, apparently, he was available. They say they weren’t ready to proceed on both counts, only one, the murder of Benavidaz [szc], but they chose not to, and I don’t think they were playing games, dropping the ball at that time. There is no evidence, in my opinion, they were vindictive in any way, although there was evidence they were clearly negligent.
“In my opinion the repeated filings by the People do not amount to a denial of any right of a constitutional magnitude. Specifically, there doesn’t appear to be any due process violation and no due process violation is alleged by the defense. No speedy trial violation is alleged or shown, so in my opinion the previous dismissals are neither vindictive or malicious. In short, the refiling of the charges of which the defendant was already aware and prepared to defend inflicts no prejudice on her.
“In my opinion, human error or poor workmanship by the People, which is clearly present, was not intended by the legislature to prohibit a trial on the merits. I think there should be a trial on the merits, right or wrong the second dismissal in this case was a result of excusable neglect within the meaning of Penal Code Section 1387.1. The third complaint will be allowed. Now, shall I confirm the preliminary hearing date?
“Ms. Voss: Yes.
“The Court: Thank you.
“(Whereupon the matter concluded.)”
Relying on the fact that one of the dictionary definitions of “primary” is “first in order of time,” the majority suggests the magistrate eventually addressed the question whether the *1160prosecutors’ negligence might have been objectively reasonable. (Maj. opn., ante, at p. 1153.) The best refutation of this suggestion is the magistrate’s own explanation for his ruling, which is set forth in its entirety in the appendix to this dissent.
Defendant never claimed the district attorney’s negligence reflected bad faith and does not here challenge the finding of no bad faith.
All statutory references are to the Penal Code unless otherwise indicated.
Thus appellate courts have suggested that a trial court ruling that resolves conflicts in the evidence is entitled to greater deference from a reviewing court than a trial court ruling in a case, such as this one, in which there is no conflict in the evidence. (See, e.g., Iott v. Franklin, supra, 206 Cal.App.3d 521, 530.)
Judge Moelk also noted the magistrate’s apparent feeling that defense counsel had a duty to bring the defect in the charging documents to the attention of the district attorney. As Judge Moelk stated, “the defense has no obligation whatsoever to do anything to assist the prosecutor. That is not the defense’s responsibility.” (See Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038 [198 Cal.Rptr. 389] [failure to give opposing counsel notice of default may be unprofessional but is not a duty and provides no ground for relief under Code Civ. Proc. § 473].) In any event, considering the number of judges whose repeated admonitions were consistently ignored, it is hard to imagine the prosecution would have paid any attention to the advice of defense counsel.
The deputy district attorneys in this case are all agents of the District Attorney of Solano County. Section 739 provides that “it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.” This statute suggests that the duty imposed upon the district attorney cannot be divided between and among his deputies and separately evaluated. In the final analysis the district attorney must bear the indivisible responsibility for the acts of his agents.
Thus, for example, in Bellm v. Bellia, supra, 150 Cal.App.3d 1036, the court found it understandable but legally irrelevant that the defendant’s failure to file a timely answer was occasioned by his distraction over the fact that his father was dying of cancer.
The Attorney General claims separate prosecutions would violate state policy “to require joinder of related offenses in a single prosecution.” (Kellett v. Superior Court (1966) 63 Cal.2d 822, 826 [48 Cal.Rptr. 366, 409 P.2d 206], fn. omitted.) This salutary policy clearly would not bar separate trial of the Benavidez count, as dismissal of the Madison count would provide ample “good cause” for severance. (See Kellett, supra, at p. 827.) The other justification the Attorney General offers for the failure to proceed separately is that “under federal law the prosecutor might have been unable to try the Madison count and special circumstance if defendant were first acquitted on the Benavidez count.” Acquittal on the Benavidez count could, of course, also occur if it were tried in the same proceeding as the Madison count, in which case the special circumstance allegation would also fail.