The prosecution may appeal a dismissal when jeopardy has not attached and there has been an abuse of discretion.[499]  It may also appeal when the trial court erroneously suppressed evidence.[500]

 

            The order granting the dismissal will be reviewed under a not-so-deferential "abuse of discretion" standard.  If the judge dismisses a case for an improper reason, the prosecution's remedy is to seek reversal of the dismissal order by writ of mandate or prohibition in the higher court.[501]

 

            If the trial court fails to state any reasons for the dismissal in its minutes, but was aware of the proper standard to be exercised in deciding whether to dismiss under Penal Code § 1385, a failure to state reasons for dismissal does not require a new hearing, but rather a remand to allow the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes, or to exercise its discretion to reconsider its ruling if it wishes.[502]

                 The prosecution may review a dismissal by writ of mandate if there is no danger of a trial or retrial.[503]  Mandate will not lie when there is a possibility of further trial or retrial, or when the dismissal will not bar the subsequent refiling of the action.[504]

[499] People v. Beasley (1970) 5 Cal.App.3d 617, 635, 85 Cal.Rptr. 501. 

[500] Penal Code § 1238(a)(7); see People v. Galosco (1978) 85 Cal.App.3d 456, 456-463, 149 Cal.Rptr. 407; People v. Dewberry (1974) 40 Cal.App.3d 175, 182-185, 114 Cal.Rptr. 815. 

[501] People v. Superior Court (Gelardi) (1978) 84 Cal.App.3d 692, 698-699, 149 Cal.Rptr. 30.

[502] People v. Bonnetta (2009) 46 Cal.4th 143, 153, 92 Cal.Rptr.3d 370; People v. Borousk (1972) 24 Cal.App.3d 147, 163, 100 Cal.Rptr. 867.

[503] People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, 672, 102 Cal.Rptr. 925 (dismissal after guilty verdict); see People v. Superior Court (Brodie) (1975) 48 Cal.App.3d 195, 200, 121 Cal.Rptr. 732 (judge struck special circumstances allegation solely because of misinterpretation of statute); People v. Superior Court (King) (1967) 249 Cal.App.2d 714, 718, 57 Cal.Rptr. 892 (dismissal granted because court believed evidence of guilt, although conflicting, did not justify prosecution and dismissed after verdict of guilty). 

[504] People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501 [446 P.2d 138]; People v. Superior Court (Mowry) (1971) 20 Cal.App.3d 684, 687, 97 Cal.Rptr. 886; see Fick v. Board of Medical Examiners (1973) 31 Cal.App.3d 247, 251, 107 Cal.Rptr. 260.

Other

VEHICLES " MOTION TO RECONSIDER
People v. Nesbitt (Cal. App. 2d Dist. Dec. 22, 2010) 191 Cal.App.4th 227, 120 Cal.Rptr.3d 59, 2010 WL 5175190 (trial court had inherent nonstatutory power to reconsider interim order dismissing two counts charged against defendant because the order was an interim order, rather than a final judgment).