Ingram

I concur in the judgment.

The only matter noticed, scheduled or otherwise before the magistrate at 10 a.m. on October 4, 1984, was the motion of the prosecutor for a continuance of the preliminary hearing which was scheduled to (and did) begin four hours later.

At this 10 a.m. hearing the prosecutor explained the reason a continuance was requested: the complaining witness was making arrangements for the funeral of her brother-in-law. Finding such a circumstance not good cause the magistrate then spoke as follows: “. . . the motion for a continuance is denied. And Mr. Ingram [the defendant], this case is ordered dismissed.”

Immediately the prosecutor asked if the case “could trail” until the 2 p.m. hearing, indicating that he would proceed without the witness. The *1165 magistrate agreed to call the case at 2 p.m. but then indicated that if the prosecutor was not then ready “I’ll dismiss the case at 2 o’clock.”

In my view no dismissal occurred at or as a result of the 10 o’clock continuance hearing. What was before the court at that time was only whether the prosecutor’s motion to continue the preliminary hearing scheduled for later in the day should be granted or denied.…

In September 1984 respondent, Horace Aaron Ingram, was charged with violating section 10851 of the Vehicle Code (auto theft). In October 1984, subsequent to the dismissal of the first complaint at the preliminary hearing, another complaint was. filed charging respondent with the same crime. It is the dismissal of this second complaint entered by the superior court on November 19, 1984, that we review on appeal.

The preliminary hearing on the second complaint was set for 2 p.m. on October 4, 1984. At 10 a.m. on that day the court heard a noticed motion *1163 by the district attorney for continuance of the preliminary hearing. The court denied the motion for failure to show good cause and dismissed the case. Whereupon the district attorney immediately requested that the court proceed with the preliminary hearing at 2 p.m. as scheduled. Without ever rescinding the verbal dismissal, the court granted the district attorney’s request and ordered respondent to appear again at 2 p.m. No order of dismissal was ever entered in the minutes of the court’s proceedings.

At the outset of the preliminary hearing defense counsel argued that the case should not proceed because it had…