Dissenting.—The majority holds that the People have no right to appeal—and thereby creates the possibility that the People have no right to challenge at all—a magistrate’s decision at or before a preliminary hearing to reduce a felony wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(5).1 I respectfully disagree.
The result reached by the majority is surprising. As the majority concedes (maj. opn., ante, at p. 833), the People have the right to appeal the very same determination when made at sentencing. (People v. Statum (2002) 28 Cal.4th 682 [122 Cal.Rptr.2d 572, 50 P.3d 355] (Statum)) Therefore, the effect of today’s ruling is merely to bar the People from appealing only when the order is made at an early stage, on a thin or nonexistent record, and hence is more likely to be wrong.
The analysis used by the majority is novel. In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 [60 Cal.Rptr.2d 93, 928 P.2d 1171], we rejected the argument “that a trial court’s exercise of discretion under the authority of section 17(b) should be unreviewable” (People v. Superior Court (Alvarez), supra, at p. 976) and found “no authority immunizing a trial court’s discretionary decisionmaking from some level of review, however *835deferential.” (Id. at p. 977; see also Statum, supra, 28 Cal.4th at p. 687.) Except for cryptic citations to conflicting Court of Appeal decisions as to the availability of writ review in other contexts, the majority has now embraced what we so recently (and emphatically) rejected.
Unfortunately, the consequence of this surprising and novel ruling is no less than an invitation to lawlessness. Consider this: Prior to today’s ruling, a magistrate could dismiss an allegation of a prior serious or violent felony conviction under the three strikes law only by complying strictly with the provisions of section 1385, and the dismissal would be “subject... to review for abuse of discretion.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [53 Cal.Rptr.2d 789, 917 P.2d 628].) Such review ensured that judicial officers could not thwart the three strikes law by dismissing strike allegations “solely ‘to accommodate judicial convenience,’ ” because of “ ‘a personal antipathy for the effect that the three strikes law would have on [a] defendant’ ” (id. at p. 531), or because of other “factors extrinsic to the scheme.” (People v. Williams (1998) 17 Cal.4th 148, 161 [69 Cal.Rptr.2d 917, 948 P.2d 429].) After today’s ruling, however, a magistrate may do just that when the charged felony is a wobbler by instead reducing the felony to a misdemeanor—thereby eliminating the effect of the prior strike allegations— without ever having to state reasons for reducing the felony to a misdemeanor or for dismissing the strike allegations and without fear that this decision will ever be appealed. (Cf. Madison, The Federalist No. 51 (Rossiter ed. 1961) p. 322 [“If angels were to govern men, neither external nor internal controls on government would be necessary”].)
Here, for instance, the information charged defendant with battery with serious bodily injury and aggravated assault and alleged that he had suffered two prior convictions for serious or violent felonies under the three strikes law. The magistrate reduced the felonies to misdemeanors under section 17, subdivision (b)(5). The People appealed, invoking section 1238, subdivision (a)(1) and (8), but the appeal has now been dismissed before any appellate court could consider whether the magistrate erred in reducing the felony to a misdemeanor or in nullifying the effect of the charged strikes.
The majority’s approach is unprecedented, unusual—and dangerous. In People v. Superior Court (Alvarez), supra, 14 Cal.4th at page 977, we cautioned that the discretion to reduce a felony to a misdemeanor under section 17, subdivision (b) was “ ‘to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice’ ” and was therefore not “ ‘a potential without restraint.’ ” Yet the majority, by barring an appeal and offering no views as to the availability of review by writ (cf. Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [197 Cal.Rptr. 843, 673 P.2d 720]; People v. Superior Court *836(Manuel G.) (2002) 104 Cal.App.4th 915, 924-926 [128 Cal.Rptr.2d 794]), has all but eliminated the potential for restraint.
Moreover, the majority offers no plausible reason why the Legislature would have wanted to allow an appeal from an order reducing a felony wobbler to a misdemeanor by a trial court at sentencing but not from the same order by a magistrate at or before the preliminary hearing, when the facts are unknown or undeveloped.2 Indeed, a review of the relevant statutes reveals that the Legislature intended no such thing.
Section 1238, subdivision (a)(1) allows the People to appeal from an order setting aside “all or any portion of the indictment, information, or complaint.” Subdivision (a)(8) allows the People to appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action.” Read together (see Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 811 [11 Cal.Rptr.3d 298, 86 P.3d 354]), these provisions allow the People to appeal from (1) an order or judgment that (2) sets aside, dismisses, or otherwise terminates (3) all or any portion of the indictment, information, complaint, or action. The majority does not dispute that elements (1) and (3) are satisfied here; that is, the majority concedes that the magistrate’s decision is an order relating to at least a portion of the complaint or action. Rather, the majority’s thesis is that the magistrate’s order is not a setting aside, dismissal, or otherwise a termination of any portion of the felony complaint or action because it “did not preclude the People from prosecuting the wobbler offenses charged against defendant.” (Maj. opn., ante, at p. 830.)
This misses the point. The proper test is not whether the People are wholly precluded from prosecuting the defendant but whether any portion of the indictment, information, complaint, or action3 has been set aside, dismissed, or otherwise terminated. The only authority cited in support of the majority’s test is People v. Drake (1977) 19 Cal.3d 749 [139 Cal.Rptr. 720, 566 P.2d *837622] (Drake), in which we held that an order modifying the robbery verdict to the lesser included offense of grand theft was not appealable under section 1238, subdivision (a)(1) because it was “not an order ‘setting aside the indictment, information, or complaint,’ ” nor was it appealable under subdivision (a)(8) because “the order from which the People seek to appeal did not terminate the action at all; following that order the action simply proceeded into the sentencing phase.” (19 Cal.3d at p. 757, fn. omitted.) Drake is unilluminating here, though, inasmuch as the Legislature has since amended subdivision (a)(l)and (8) to allow the People to appeal from an order that affects any portion of the indictment, information, complaint, or action. (Stats. 1998, ch. 208, § 1.)
Moreover, even if Drake applied, it would not compel dismissal of the appeal in this case. In rejecting the People’s reliance on section 1238, subdivision (a)(1), Drake relied entirely on the fact that the defendant “was found guilty under the felony information originally filed in this case.” (Drake, supra, 19 Cal.3d at p. 757.) Here, though, defendant cannot be found guilty under the felony complaint originally filed in this case. Once the magistrate has reduced the felony to a misdemeanor, “the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.” (§ 17, subd. (b)(5), italics added.)
I find our recent decision in Statum more instructive. In Statum, we held that a judgment imposing a county jail term for a wobbler conviction reduces the felony to “a lesser offense.” (Statum, supra, 28 Cal.4th at p. 689.) Similarly, when a magistrate makes the same order at or before the preliminary hearing, the felony portion of the complaint or action is no more. In other words, it is set aside, dismissed, or terminated.
The majority’s rejection of this straightforward application of the statute seems to rest on the assumption that it is not possible to set aside, dismiss, or otherwise terminate less than all of a charged offense. The assumption is erroneous. (People v. McKee (1968) 267 Cal.App.2d 509, 513 [73 Cal.Rptr. 112] [superior court’s order directing the People to file an information charging the lesser included offense of involuntary manslaughter was “tantamount to dismissal of the murder charge” under section 1238]; People v. Miles & Sons Trucking Service, Inc. (1968) 257 Cal.App.2d 697, 700 [65 Cal.Rptr. 465] [“On appeal, the People limit their attack upon the orders setting aside the information to its effect on specific counts or parts thereof’]; cf. Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804—1806 [50 Cal.Rptr.2d 236] [magistrate’s order holding the defendant to answer for a charge of felony assault instead of attempted murder was a “termination” of *838the murder charge under section 1387].)4 The majority’s analysis thus does serious violence to the well-settled understanding of these terms in other contexts.
Accordingly, the only live issue in this case was whether an appeal from the magistrate’s order lies to the Court of Appeal under section 1238 or to the appellate division of the superior court under the similar language in section 1466. In light of the majority’s analysis foreclosing either appeal, that issue is now moot. I therefore urge the Legislature to act promptly to fill the gap so as to permit appellate review of a magistrate’s order and thereby restore the rule of law. (Cf. Statum, supra, 28 Cal.4th at p. 691, citing Stats. 1978, ch. 1359, § 2, p. 4511.) In the meantime, I respectfully dissent.
Chin, J., and Brown, J., concurred.
Appellant’s petition for a rehearing was denied June 22, 2005. Baxter, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted.
All further statutory references are to the Penal Code.
The majority hypothesizes that the Legislature, mindful of the defendant’s speedy-trial rights, might not have wanted to permit an appeal where “the charges are not dismissed or set aside.” (Maj. opn., ante, at p. 833.) Yet subdivision (a)(1) and (8) of Penal Code section 1238 contemplates a pretrial appeal when “any portion” of the action is set aside, dismissed, or terminated—even when the only portion dismissed is a prior conviction allegation. (People v. Burke (1956) 47 Cal.2d 45, 53 [301 P.2d 241].) In other words, the Legislature is plainly willing to tolerate a pretrial appeal that encompasses fewer than all of the charges. Moreover, it seems implausible that the Legislature would have been concerned that a pretrial appeal “would significantly delay the proceedings and impact the defendant’s right to a speedy trial.” (Maj. opn., ante, at p. 833.) “Given the important public interests in appellate review [citation], it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay.” (United States v. Loud Hawk (1986) 474 U.S. 302, 315 [88 L.Ed.2d 640, 106 S.Ct. 648].)
An “action” is defined broadly as the “proceeding by which a party charged with a public offense is accused and brought to trial and punishment.” (§ 683.)
As the majority observes, Statum, supra, 28 Cal.4th at p. 690 held that an order reducing a felony conviction to a misdemeanor “modified” the verdict or finding under section 1238, subdivision (a)(6). But the majority errs in inferring that Statum’s failure to sustain the appeal additionally under subdivision (a)(1) or (8)meant that such an order was not also a dismissal or termination of the felony portion of the action or charging document. (See maj. opn., ante, at p. 831.) No party urged us to sustain the appeal in Statum under subdivision (a)(1) or (8), nor did we even cite either subdivision. Since “ ‘an opinion is not authority for a proposition not therein considered’ ” (maj. opn., ante, at p. 827), Statum offers no support for the majority’s conclusion.