P v. Kocontes (4th Dist., Div.3) No Collateral Estoppel Effect for Magistrate's Dismissal for Want of Territorial Jurisdiction

In 2006, Mr. Kocontes went on a Mediterranean cruise with his friend.  Kocontes reported his friend missing and the Italian authorities found the friend's body off the coast of Italy.  An autopsy was performed in Italy after which the Italians did not charge Kocontes with any crime.

Back in the U.S., a federal grand jury declined to indict Kocontes.  But come 2013, the Orange County district attorney filed murder for hire charges against Kocontes.  Prior to his preliminary hearing, a magistrate dismissed the case for lack of territorial jurisdiction (PC 778a).

The State then obtained a grand jury indictment.  Kocontes moved to dismiss based, among other grounds not relevant here, upon collateral estoppel.  His motion was denied, numerous petitions were filed for writ relief, and the case ends up before a Fourth District panel.

In a 2-1 decision, the panel affirms.  The majority's decision can be condensed as follows; [1] the magistrate's dismissal for want of territorial jurisdiction fell within one of the the grounds for dismissal enumerated within PC 1387, [2] as section 1387 allows for refiling subsequent to a dismissal upon those grounds within 1387, the State could refile the case, [3] since the State had the statutory authority to refile the case the magistrate's dismissal cannot be considered "final", therefore [4] since only final judgments have collateral estoppel effect, the magistrate's dismissal had no such effect.

The dissent writes that there is no way the magistrate's dismissal fell within 1387, since that section applies to, in pertinent part.

An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995.

This appears clear, if the dismissal is pursuant to Chapter 8 of the penal code (sections 1381 to 1388), or sections 859b, 861, 871, or 995, the dismissal does not bar a subsequent refiling, and hence, is not final.  But the dismissal here doesn't appear to have been made under any of these sections, rather it was a non-statutory motion (based upon PC 778a) or a demurrer under section 1008, and sustained 1008 demurrers explicitly are not subject to refiling under 1387.

What makes Justice Thompson's dissent so persuasive is that the majority doesn't even attempt to address it.  Ordinarily when there is a dissent, the majority opinion will address the schism in legal reasoning that resulted in the dissenting justice's disagreement and explain why their reasoning is superior.  Here, rambling on for 24 pages, the majority appears to have purposefully avoided addressing the dissent's two pages of, at least to me, succinct and persuasive analysis.

Further confusing is the majority's language on page 14 which appears to agree that the territorial jurisdiction dismissal was a non-statutory dismissal and that non-statutory dismissals do not fall within PC 1387.  Okay, then the dismissal would not be one for which the State can subsequently refile, hence a final judgment.  Am I missing something?