In re Kocontes

*1232 Lonnie Loren Kocontes filed a petition for writ of habeas corpus in the California Supreme Court. In his habeas corpus petition, Kocontes argues the trial court, Judge Gregg L. Prickett, erred by overruling his demurrer and denying his motion to dismiss the indictment because collateral estoppel prevented him from reconsidering Judge William Lee Evans's ruling granting his previous motion to dismiss. The Supreme Court ordered the Orange County Sheriff's Department to show cause before this court "why the relief prayed for should not be granted." As we explain below, Kocontes's contentions have no merit, and we deny his petition for writ of habeas corpus.

FACTS

Substantive Facts

We provide only a brief discussion of the facts because of the limited nature of our review. In May 2006, Kocontes and his long-time partner, Micki Kanesaki, went on a Mediterranean cruise; they had a balcony room. Early one morning, Kocontes reported Kanesaki missing. Kocontes disembarked the ship, stayed in Italy for one evening, and returned to the United States. That day, the Italian Coast Guard recovered Kanesaki's body off the Italian coast. An Italian chief medical examiner conducted the…

I respectfully dissent. Judge Evans granted Kocontes's motion to dismiss in case No. 13CF0463 "for lack of territorial jurisdiction." As I will explain, a dismissal for lack of territorial jurisdiction is not a dismissal in the furtherance of justice within the meaning of Penal Code section 1385 (all *1249 further statutory references are to this code), and it is not subject to the "two-dismissal" rule of section 1387.

"A dismissal for lack of territorial jurisdiction is qualitatively different from those situations in which dismissals in the furtherance of justice [under section 1385 ] have been approved. In the former situation, the court is not empowered to hear the case; in the latter it chooses to dismiss the case because other factors outweigh its authority to act." ( Casey v. Superior Court (1989) 207 Cal.App.3d 837 , 844, 255 Cal.Rptr. 81 ( Casey ).)

The conclusion that a dismissal for lack of territorial jurisdiction is not a dismissal under section 1385 is supported by the fact a number of methods exist to challenge a court's power to hear a case. If a court acts in excess of its territorial jurisdiction, a defendant may seek relief through extraordinary measures such…