In Re Kowalski

Opinion

BROWN (Gerald), P. J.

Stephen Richard Kowalski petitions for a writ of habeas corpus, asserting he is entitled to be discharged and released from custody, the trial court having granted a motion to set aside his indictment, and ordering the case dismissed. Later, another superior court judge set aside the dismissal, taking the position it was void as being in excess of jurisdiction. The latter judge set a date for Kowalski’s retrial, and fixed bail. We have concluded the order setting aside the dismissal was void and Kowalski is entitled to be discharged.

On May 12, 1971, Kowalski was arraigned on a six-count indictment charging him with lewd and lascivious behavior with minors (Pen. Code, § 288).

On June 14, 1971, Kowalski’s motion to set aside the indictment under Penal Code section 995 was argued and submitted before Judge Low. On June 15, the motion was denied.

Trial began June 18 before Judge Fisher. On July 12, Kowalski moved for a mistrial, which was granted. At that time, Judge Fisher expressed his opinion the indictment was defective and, in substance, invited Kowalski’s counsel to renew the motion under section 995. Counsel then moved for a dismissal and the motion was granted.

On July 14, the parties somehow were before Judge Low again. Kowalski objected to the setting of a new trial date on the ground the court lacked jurisdiction because the case had been dismissed. Judge Low stated it was Judge Fisher who had acted in excess of jurisdiction in granting the

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motion under section 995 and the order of dismissal was void. Judge Low ordered a new trial date, and fixed bail.

Kowalski’s petition for habeas corpus is premised on the grounds Judge Fisher had jurisdiction to grant the motion under Penal Code section 995 and the dismissal order could not be set aside by another judge of the same court. Kowalski also argues an order dismissing a prosecution ends further proceedings in the trial court. For that reason, he argues, the orders made after dismissal purporting to set a new trial date and fixing bail were themselves void. We agree.

“ ‘A superior court is but one tribunal, even if it be composed of numerous departments .... An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . .’”