Opinion

Judges of the Municipal Court for the Central Judicial District of Marin County (hereafter sometimes Municipal Court), or some of them, have developed and sometimes engaged in a practice, in respect of persons awaiting trial for misdemeanor offenses, which is perhaps best exemplified by the following selected portions of the court’s minute orders.

“Pursuant to pre-trial conference Court ordered case to be continued 6 months . . . over the objection by the People. . . . Case continued ... for . . . possible dismissal.”

“People feel the defendant should be on probation and the People are prepared to go to jury trial. Court ordered case continued to 2/14/77 [five months later] at 2:00 P.M. for possible dismissal if no further violation by the defendant.”

“Court indicates that pursuant to the pre-trial conference discussions he will continue this case for one year for possible dismissal if defendant . . . is not involved in any other illegal acts. Case continued to 1/11/78 at 1:30 p.m. for possible dismissal. . . Mr. Courteau [the prosecutor] states . . . that the People are not a part of the disposition indicated and disagreed with the same at the pre-trial conference and feel it an abuse of the court’s discretion; . . .”

“Matter having been discussed in chambers by court and counsel, court states he is prepared to continue the case six months for dismissal on condition the defendant does not contact the victim, . . . and conduct himself in a law-abiding fashion throughout the probationary period. Time waived. People state they would like the record to reflect their objection to this disposition. Case continued to 2/23/77 at 1:30 p.m. for possible dismissal.”

Robert Michael Gelardi, the real party in interest of this appeal, was charged in the Municipal Court with the misdemeanor violation of Penal Code section 417, to wit, brandishing a weapon. Following its above described practice and over the People’s objection, the court continued the case six months for “possible dismissal.” Thereafter, before dismissal and within the six-month period, the People sought to nullify the court’s “illegal action” by petition to the superior court “for a Writ of Prohibition and/or Mandate . . . .”

The superior court ordered the writ application denied, apparently on the theory that the People’s only remedy lay in an appeal, under Penal Code section 1466, subdivision 1(a), from the contemplated order of dismissal, when and if entered. The People have appealed from the order denying the extraordinary writ.

It is of significance, as will hereafter appear, (1) that the order of “continuance for dismissal” was made before the court had entered upon a trial of the charge against Gelardi, and (2) that such an order of continuance is not an appealable order. (See Pen. Code, § 1466, subd. 1.)

As he did in the superior court, Gelardi here contends, relying on People v. Superior Court (Howard), 69 Cal.2d 491 [ 72 Cal.Rptr. 330 , 446 P.2d 138 ], that the writ of prohibition or mandate was not legally available to the People for review of the Municipal Court’s order.

In People v. Superior Court (Howard), supra, a jury had found Howard guilty of robbery. Thereafter the trial court, finding the evidence, of guilt to be of little weight, dismissed the information in the “interests of justice” as was, at least arguably, permitted by Penal Code section 1385. The People sought from the high court a writ of mandate compelling the trial court to vacate its order of dismissal. The application was denied, and the court’s reasons therefor may be summarized in this manner:

It is worthy of emphasis here that People v. Superior Court (Howard), supra, 69 Cal.2d 491 , forbade proceedings by the People for extraordinary writs only where “there is a danger of further trial or retrial.” In the case at bench there had been neither trial nor jeopardy, nor would invalidation of the Municipal Court’s order result in “further trial or retrial.”

People v. Superior Court (Edmonds), 4 Cal.3d 605, 609 [ 94 Cal.Rptr. 250 , 483 P.2d 1202 ], thereafter held in a case where there was no danger of “further trial or retrial,” that “mandate [on request of the People] would be appropriate under the principles set forth in People v. Superior Court [Howard),. . .”

We find further elaboration of the rule of People v. Superior Court (Howard) in decisions of the Court of Appeal.

People v. Superior Court (Lozano), 69 Cal.App.3d 57, 62 [ 137 Cal.Rptr. 767 ]. “Moreover, in our view People v. Superior Court (Howard) (1968) 69 Cal.2d 491 . . . does not foreclose to the People review by writ in all cases in which there was no remedy by appeal. . . . [Since] in the instant case the order was made before there was any trial and therefore jeopardy had not attached,” an extraordinary writ was properly granted.

People v. Superior Court (Brodie), 48 Cal.App.3d 195 [ 121 Cal.Rptr. 732 ]. Here the reviewing court, on motion of the People and before trial, granted a writ of mandate requiring the superior court to set aside a pretrial order striking “an allegation of special circumstance” from an information charging murder. The court said (pp. 200-201): “When a trial judge strikes out such an allegation solely because of a misinterpretation of the statute, its order is in excess of its jurisdiction. (See Howard, supra, 69 Cal.2d at p. 500 .) In the case at bench, considering the gravity of the charge, the importance of the issue and the absence of any showing of prejudice by the delay involved in the review procedure, a weighing of the factors referred to in the Howard opinion does not preclude review by this mandate proceeding.”

People v. Superior Court (Montano), 26 Cal.App.3d 668, 670, 671 [ 102 Cal.Rptr. 925 ]. The court granted mandate compelling the superior court to set aside a pretrial order of dismissal which order, it concluded, would “ ‘stultify the statutory scheme ....”’ Finding the case “unlike Howard,” and the dismissal to be “beyond the court’s [statutory] power,” it stated that “[s]ince there is no danger of [further] trial or retrial, the writ of mandate may properly issue to correct an abuse of discretion . . . .”

People v. Superior Court (Biggs), 19 Cal.App.3d 522 [ 97 Cal.Rptr. 118 ]. The People’s application for prohibition to set aside an erroneous dismissal was denied, but only because the dismissal was ordered by the superior court after commencement of trial of the action. The court said (p. 535): “[A]s we view People v. Superior Court (Howard), supra, the absence of a statutory prosecution appeal expresses a legislative policy against exposing the accused to a possible retrial, even though the policy transmutes an erroneous trial court ruling into an erroneous dismissal. This court is without power to issue the writ of prohibition because the writ would expose the accused to a possible retrial.”

People v. Thompson, 10 Cal.App.3d 129 [ 88 Cal.Rptr. 753 ]. Finding no danger of “a further trial or retrial” the appellate court, after a thorough analysis of People v. Superior Court (Howard), supra, 69 Cal.2d 491 “let a peremptory writ of mandate issue directing the [superior court] to annul its order . . . which set aside the guilty plea” without statutory sanction. (P. 138.)

Notable also are the several judicial comments that extraordinary writs will more readily be granted on the People’s request where, as here: there is no prosecutorial “harassment” of the accused (see People v. Thompson, supra, 10 Cal.App.3d 129, 137 ); the issue does not “involve any question of guilt or innocence” (People v. Superior Court (Lozano), supra, 69 Cal.App.3d 57, 62 ); and the case is of “significant public interest” (People v. Superior Court (Lozano), supra, p. 62; People v. Superior Court (Montano), supra, p. 670).

It will be observed from the foregoing that mandate or prohibition may be allowed, before trial of an accused and on the People’s application, to rectify such “excess of jurisdiction” of the trial court “because of a misinterpretation of the statute” (People v. Superior Court (Brodie), supra, 48 Cal.App.3d 195, 200-201 ), or “failure to follow a decision by the Court of Appeal directly in point” (People v. Superior Court (Lozano), supra, 69 Cal.App.3d 57, 61 ), or a ruling prohibited, or unauthorized, by statute (People v. Superior Court (Montano), supra, 26 Cal.App.3d 668, 671 ; People v. Superior Court (Biggs), supra, 19 Cal.App.3d 522, 534-535 ), or an “abuse of discretion” in vacating a guilty plea (People v. Thompson, supra, 10 Cal.App.3d 129, 137 ).

Patently, the here discussed practice of the Municipal Court is designed to effectuate a sort of nonstatutory diversion, probation, or rehabilitation procedure prior to the accused’s conviction of crime, by holding out to him the promise of dismissal under Penal Code section 1385 upon his future good behavior. On this subject the state’s Legislature and reviewing courts have spoken.

People v. Orin, 13 Cal.3d 937, 946-947 [ 120 Cal.Rptr. 65 , 533 P.2d 193 ], states:

In the same vein People v. McAlonan, 22 Cal.App.3d 982, 986-987 [ 99 Cal.Rptr. 733 ], tells us:

And expressly and immediately bearing upon the continuances with which we are concerned, Penal Code section 1050 asserts:

Another legislative consideration is noted. The high court in In re Lane, 58 Cal.2d 99, 102 [ 22 Cal.Rptr. 857 , 372 P.2d 897 ], stated: “Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.” In this state the Legislature has formulated statutory schemes for diversion (see Pen. Code, § 1000 et seq.), probation, and rehabilitation of the criminally inclined or involved. Although In re Lane applies to “local legislation,” its rationale would seem to apply reasonably and equally to trial courts; they should not substitute their own rehabilitation concepts for those of the Legislature.

In adopting and following the judicial practice at issue, we conclude that the Municipal Court has made rulings prohibited, or unauthorized, by statute (see People v. Superior Court (Montano), supra, 26 Cal.App.3d 668, 671 ; People v. Superior Court (Biggs), supra, 19 Cal.App.3d 522, 534-535 ; People v. Thompson, supra, 10 Cal.App.3d 129, 137 ), and has failed “to follow a decision by [the Supreme Court and by] the Court of Appeal directly in point” (see People v. Superior Court (Lozano), supra, 69 Cal.App.3d 57, 61 ). The practice was thus in excess of the Municipal Court’s jurisdiction. The superior court should have permitted, and ruled favorably upon, the People’s application for an extraordinary writ.

We observe nothing in the Penal Code’s newly enacted (eff. Sept. 13, 1977) chapter 2.7, sections 1001-1001.11, entitled “Diversion,” which authorizes the above described “continuance,” “dismissal,” and “rehabil itation” procedures. Further, those statutes were not in effect at the time of the criticized orders.

The judgment is reversed, and the superior court will issue an appropriate peremptory writ as requested by the People.

Racanelli, P. J., and Devine, J., concurred.

Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.