OPINION

SCOTLAND, P. J.

— Having evaded a pursuing deputy sheriff in South Lake Tahoe by crossing the border into Nevada, defendant Christopher Stephen Bellacosa evaded prosecution in California when the El Dorado County Superior Court dismissed a complaint charging him with felony driving under the influence of alcohol (DUI) and eluding a peace officer while driving with willful and wanton disregard for the safety of persons and property. The court ruled that because defendant was convicted in Nevada for DUI and attempting to elude Nevada officers who took up the chase after he crossed the border, his prosecution in California is barred by Penal Code section 656, which states the fact that a defendant has been acquitted or convicted in federal court, or in a court of another state or territory of the United States, "based upon the act or omission in respect to which he or she is on trial" in California, the prior acquittal or conviction is a "sufficient defense" to the crime charged in California. (Further section references are to the Penal Code unless otherwise specified.)

The People appeal from the dismissal of the complaint and from the denial of their motion to reinstate the complaint. (§ 1238, subd. (a)(9).) We shall direct the trial court to have the complaint reinstated.

As we will explain in the published part of our opinion, in considering whether a California prosecution is barred by a prior conviction or acquittal in another jurisdiction, courts look solely to the physical acts necessary for conviction in each jurisdiction. If proof of the same physical act or acts is required in each jurisdiction, then the California prosecution is barred. However, if the offenses require proof of different physical acts, then the California prosecution is not barred even though some elements of the offenses may overlap.

Here, the physical acts defendant committed in California are not the same physical acts he committed in Nevada. His California crimes were complete, and came to an end, when he entered Nevada. His actions in California were neither necessary nor sufficient to prove his Nevada offenses, and his actions in Nevada were neither necessary nor sufficient to prove his California offenses. (3) Even though defendant engaged in a continuous course of conduct during which he first violated laws of California and then violated laws of Nevada, California's Supreme Court has rejected a course-of-conduct rule for the application of section 656.

In the unpublished part of the opinion, we conclude that the dismissal of the complaint was subject to a motion to reinstate the complaint. (§ 871.5.)

FACTS AND PROCEDURAL BACKGROUND

For purposes of defendant's motion to dismiss the complaint, the parties stipulated to the following facts: In El Dorado County, California, a sheriff's deputy saw defendant's vehicle being driven with its lights off after dark. Defendant switched on the lights after the deputy turned his patrol car around and followed the vehicle. After observing defendant swerve back and forth between lanes and into the bike lane, the deputy activated the emergency lights and air horn of his patrol car. When defendant failed to stop, the deputy turned on his siren. Defendant increased his speed, made numerous lane changes, and illegally passed traffic at speeds up to 75 miles per hour. After running a red light, he drove across the border into Nevada, where officers of that state took up the pursuit. Driving at speeds up to 80 miles per hour, defendant eventually lost control of his vehicle, struck a guardrail, and was apprehended. Defendant, who had "physical symptoms consistent with intoxication," told Nevada authorities that he "wasn't going to stop for any cop who was just pulling him over for driving without headlights."

Defendant, who had a prior DUI conviction, was charged in El Dorado County with felony DUI and evading a peace officer while driving with willful and wanton disregard for the safety of persons and property. The complaint also alleged that defendant had a prior conviction for a serious felony within the meaning of California's three strikes law and had served two prior prison terms. He also was charged in the State of Nevada with various driving offenses during the pursuit across state lines. Prior to arraignment on the California charges, defendant pled no contest in Nevada to misdemeanor charges of DUI and attempting to evade a police officer.

At his arraignment in the El Dorado County Superior Court, defendant entered a plea of once in jeopardy. At his preliminary hearing, he sought dismissal of the California prosecution on the ground that the charges are barred by sections 656 and 793 because of his convictions for the driving offenses in Nevada. Ruling that the California charges are precluded by section 656, the magistrate dismissed the complaint. The superior court denied the People's motion for reinstatement of the complaint.

DISCUSSION I

Defendant pled once in jeopardy and moved to dismiss the complaint, citing sections 656 and 793. It appears the parties agreed to a prompt resolution of the issue by having a magistrate rule on it at the time of the preliminary hearing. The magistrate dismissed the complaint, citing section 656. The People then moved in the superior court for reinstatement of the complaint pursuant to section 871.5, which states in part: "(a) When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate." The motion was denied on the ground that sections 656 and 793 are not listed in section 871.5, subdivision (a). On appeal, the People assert that dismissal of the complaint was subject to review in the superior court on a motion to reinstate the complaint. Thus, according to the People, the appeal is proper as an appeal from the order denying the motion to reinstate the complaint. (§ 1238, subd. (a)(9).) Defendant counters that the superior court correctly ruled dismissal of the complaint was not subject to a motion to reinstate and thus, inferentially, the People have no right to appellate review of the issue. We agree with the People. Sections 656 and 793, as well as Vehicle Code section 41400, establish an affirmative defense (see part II, post) that can be raised by a plea (§§ 1016, subd. 4, 1017, subd. 3; see People v. Memro (1995) 11 Cal.4th 786, 821) and submitted to the trier of fact. ( People v. Frank (1933) 134 Cal.App. 211, 214.) If, however, undisputed evidence establishes that the defense is or is not valid as a matter of law, the issue can be resolved as a question of law by the court. ( People v. Bechtel (1953) 41 Cal.2d 441, 445; People v. Greer (1947) 30 Cal.2d 589, 596, overruled on another ground in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6.) Section 866 provides the appropriate procedure for raising the issue before a magistrate. It states in pertinent part that at the preliminary hearing, a defendant may present evidence that, "if believed, would be reasonably likely to establish an affirmative defense. . . ." If the magistrate finds that the defense has been established as a matter of law, it should enter an order pursuant to section 871 dismissing the complaint and discharging the defendant. This is, in substance, what happened here. Defendant did not file a motion to dismiss. He raised the issue by oral plea, and it was scheduled to be heard at the time of the preliminary hearing. The parties stipulated to the applicable facts, and the magistrate concluded the defense was valid as a matter of law. Consequently, the magistrate dismissed the complaint and discharged the defendant. In substance, this was an order pursuant to section 871, which may be reviewed in the superior court by motion for reinstatement under section 871.5. It appears the magistrate believed it was acting pursuant to section 1385. In his points and authorities, defendant asked that the complaint be dismissed pursuant to section 1385, and the magistrate's minute order states the complaint was dismissed and defendant discharged "[o]n motion of the Court." A dismissal under section 1385 may be reviewed on motion for reinstatement pursuant to section 871.5. Accordingly, whether we give effect to the substance of what occurred (§§ 866, 871), or the procedure sought by defendant and apparently used by the magistrate (§ 1385), the order of dismissal was subject to a motion for reinstatement under section 871.5. The authorities upon which defendant relies are inapposite. In People v. Hanley (1992) 4 Cal.App.4th 340, the accused was charged with DUI which, due to three prior convictions, was a felony. ( Id. at p. 342.) He successfully moved to strike one of the prior convictions on the ground it was constitutionally invalid. ( Ibid.) Vehicle Code section 41403 provided the authority and established the procedures for moving to strike a prior conviction as constitutionally invalid. The Court of Appeal concluded the magistrate struck the prior conviction pursuant to Vehicle Code section 41403, and since that section was not listed in section 871.5, the prosecution could not move for reinstatement. ( Id. at pp. 344, 347, overruled on another ground in People v. Williams (2005) 35 Cal.4th 817, 824.) In People v. Williams, supra, 35 Cal.4th 817 (hereafter Williams), a felony complaint was filed charging the accused with two offenses known as "wobblers," i.e., crimes that can be punished as either felonies or misdemeanors. ( Id. at p. 820.) Pursuant to section 17, subdivision (b), they are treated as felonies unless certain enumerated events occurs. One such event is when, prior to entering an order holding the defendant to answer felony charges, the magistrate determines that the offense is a misdemeanor. (§ 17, subd. (b)(5).) In Williams, the magistrate made such a determination. The Supreme Court, noting that section 17, subdivision (b)(5), provides express statutory authority for the magistrate's action and is not listed in section 871.5 as an action upon which reinstatement may be sought, concluded that the magistrate's action was not subject to a motion to reinstate the complaint. ( 35 Cal.4th 828-829.) In contrast to Williams is the decision in People v. Superior Court ( Feinstein) (1994) 29 Cal.App.4th 323. There, the accused was charged with straight felonies, not wobblers. ( Id. at p. 326.) After a preliminary hearing, the magistrate found insufficient probable cause to hold the accused for felony offenses and ordered that the charges be tried as misdemeanors in the municipal court. ( Id. at p. 327.) The Court of Appeal noted that neither section 17, subdivision (b)(5), nor any other provision of law, gives a magistrate the authority to reduce a straight felony to a misdemeanor. Accordingly, the magistrate's action was, in effect, a dismissal of the felony charges under section 871 and was subject to a motion to reinstate pursuant to section 871.5. ( People v. Superior Court ( Feinstein), supra, 29 Cal.App.4th 331-332.) In Williams, supra, 35 Cal.4th at pages 828 and 829, the Supreme Court discussed the decision in People v. Superior Court ( Feinstein), supra, and did not disapprove it; instead, the court distinguished it because, in Williams, the magistrate had express statutory authority to determine the offenses were misdemeanors. Sections 656 and 793 and Vehicle Code section 41400 do not provide express statutory authority for dismissal of an action and do not provide a procedure for such dismissal. They simply establish an affirmative defense of former conviction or acquittal. If the affirmative defense is established, then the defendant is entitled to prevail; but he does so under ordinary criminal procedures. When the issue is resolved as a matter of law by a magistrate, the procedure is dismissal of the complaint pursuant to section 871, subject to review by the superior court on a motion to reinstate pursuant to section 871.5. Ordinarily, when the superior court has not considered the merits of a motion and we conclude that it should have done so, we would remand for further proceedings in the superior court. However, the parties have presented the issue as a pure question of law on stipulated facts, and they have briefed the issue on appeal. Thus, the failure to consider the issue now would serve no purpose other than to exacerbate the burdens of litigation. (See Sokol v. Public Utilities Commission (1966) 65 Cal.2d 247, 257.) Therefore, we proceed to consider the issue.

II

The double jeopardy clause of the Fifth Amendment to the United States Constitution does not preclude multiple convictions in different sovereign jurisdictions for the same criminal act. ( Heath v. Alabama (1985) 474 U.S. 82, 93 [ 88 L.Ed.2d 387, 397, 106 S.Ct. 433].) However, a state can provide greater double jeopardy protection than is afforded by the federal Constitution. ( People v. Comingore (1977) 20 Cal.3d 142, 145 [ 141 Cal.Rptr. 542, 570 P.2d 723] (hereafter Comingore).) California has done so by statute.

Section 656 states: "Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense."

Section 793 states: "When an act charged as a public offense is within the jurisdiction of the United States, or of another state or territory of the United States, as well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar to the prosecution or indictment in this state."

Parallel to section 656, Vehicle Code section 41400 states: "Whenever any person is charged with a violation of this code, it is a sufficient defense to such charge if it appears that in a criminal prosecution in another state or by the Federal Government, founded upon the act or omission in respect to which he is on trial, he has been convicted or acquitted."

These three statutes use similar terms, and none is intended to provide greater protection than the other two. ( Comingore, supra, 20 Cal.3d at p. 148.)

Decisional authorities demonstrate that in considering whether a California prosecution is barred by a prior conviction or acquittal in another jurisdiction, courts look solely to the physical acts that are necessary for conviction in each jurisdiction. If proof of the same physical act or acts is required in each jurisdiction, then the California prosecution is barred. If, however, the offenses require proof of different physical acts, then the California prosecution is not barred even though some of the elements of the offenses may overlap.

For example, People v. Candelaria (1956) 139 Cal.App.2d 432 [ 294 P.2d 120] (hereafter Candelaria I) considered the crime of Manuel Candelaria, who robbed a bank teller. Because the bank's funds were federally insured, the crime was federal bank robbery as well as robbery under California law. He was convicted of federal bank robbery and then was convicted of robbery in a California court. ( Id. at pp. 433-434.) The Court of Appeal concluded the state conviction was barred by section 656 because "[a]ll the acts constituting the state offense were included in the federal offense and were necessary to constitute the federal offense." ( Candelaria I, at p. 440.) The additional element in the federal proceeding, i.e., that the funds belonged to a national bank and were federally insured, pertained to the jurisdiction of the federal court and not to any activity on the part of Candelaria. ( Ibid.) On remand, he was convicted in state court of burglary for his entry into the bank with the intent to steal. ( People v. Candelaria (1957) 153 Cal.App.2d 879 [ 315 P.2d 386] (hereafter Candelaria II).) The Court of Appeal affirmed, concluding the defense of prior conviction or acquittal is not met simply because multiple crimes arose "from the same series of acts." ( Id. at p. 884.)

Candelaria II held "[t]he `act' spoken of in [section 656] must be `the same act.' The burglary act complained of in [the state] case, that is, the entering of the building with the intent to commit a theft, is not the same act complained of in the federal court, namely, that he pointed a gun at the teller and by force and fear compelled her to deliver over to him certain monies." ( Candelaria II, supra, 153 Cal.App.2d at p. 884.)

In People v. Belcher (1974) 11 Cal.3d 91 [ 113 Cal.Rptr. 1, 520 P.2d 385] (hereafter Belcher), a federal narcotics agent and an undercover agent of the Oakland Police Department believed they had arrangements for a narcotics purchase but instead were robbed at gunpoint by Vercil Belcher and a cohort. In federal court, Belcher was charged and acquitted of assault on a federal officer. He then was convicted in state court of assault with a deadly weapon and two counts of robbery. Our state Supreme Court held the assault conviction could not stand because it was based on the same act, "the same assault upon the same person," at issue in the federal prosecution. ( Id. at pp. 99-100.) The fact that the victim was a federal officer was a jurisdictional issue and was not an additional act on Belcher's part. ( Ibid.) The robbery convictions were proper, however, because they involved additional acts, the taking of personal property, not necessary for proof of the federal assault charge. ( Id. at pp. 100-101.)

Belcher made it "clear" that the course-of-conduct rule, judicially applied to an "act or omission" within the meaning of section 654, does not apply to section 656. ( Belcher, supra, 11 Cal.3d at pp. 97-98 fn. 6.) The Supreme Court emphasized that the Candelaria decisions "demonstrate the meaning to be given to the terms `act or omission' as they are used in section 656." ( Belcher, supra, 11 Cal.3d at p. 99.) A defendant may not be convicted in this state after a prior acquittal or conviction in another jurisdiction "if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution," but may be convicted where the offense "is not the same act [because it] involves an element not present in the prior prosecution." ( Ibid.)

In Comingore, supra, 20 Cal.3d 142, Gregory Comingore took a car in California without the owner's permission and drove it to Oregon. He was charged in Oregon with the unauthorized use of a vehicle and pled guilty to the crime. He was later charged in California with "grand theft auto and unlawful driving or taking of a vehicle." ( Id. at p. 144.) On appeal, the People conceded the California charges were based on the same physical conduct as the Oregon charge, but argued the California charges included an additional element, i.e., the intent to permanently or temporarily deprive the owner of the car. ( Id. at p. 146.) The Supreme Court held that intent is an element of a crime or public offense, but not of an act. ( Id. at p. 148.) Thus, the California prosecution was barred by section 656. ( 20 Cal.3d at pp. 144, 148-149.)

Comingore makes it plain that the application of sections 656, 793, and Vehicle Code section 41400 depends on a comparison of the physical acts charged, and not the mental intent with which the acts are performed. ( Comingore, supra, 20 Cal.3d at pp. 146-148.)

In People v. Brown (1988) 204 Cal.App.3d 1444 [ 251 Cal.Rptr. 889] (hereafter Brown), five individuals conspired in Nevada to burglarize a California jewelry store. They were convicted in federal court of conspiring to transport stolen property in interstate commerce; then they were convicted in state court of burglary. ( Id. at pp. 1446-1447.) The burglary convictions were affirmed because there was abundant evidence of physical acts committed in California to support the burglary charges and no suggestion that the trial court relied on the Nevada conspiracy agreement in convicting them of burglary. ( Id. at p. 1451.)

Brown noted "[i]t is settled that the `act' referred to in section 656 means the physical act or conduct of the defendant for which he is prosecuted." ( Brown, supra, 204 Cal.App.3d at p. 1448.) A prior conviction or acquittal in another jurisdiction will preclude a California prosecution and conviction "only where the acts necessary to prove the serial offenses are the same." ( Id. at p. 1450.)

In People v. Friedman (2003) 111 Cal.App.4th 824 [4 Cal.Rptr.3d 273] (hereafter Friedman), the four defendants were involved in multistate crimes, including robbery, extortion, kidnapping, and drug dealing. As part of the criminal enterprise, two California victims were kidnapped for extortion and were later murdered. The defendants were charged in federal court with numerous offenses, including a violation of the federal "Travel Act," which prohibits travel in interstate or foreign commerce or the use of the mails or the facilities of interstate or foreign commerce with the intent to commit a crime of violence to further an unlawful activity if the defendant thereafter performs or attempts to perform such an act. ( 18 U.S.C. § 1952.) Following convictions in federal court for the Travel Act violation, they were charged in California with kidnapping for ransom and murder. ( 111 Cal.App.4th at pp. 826-830.) The Court of Appeal held that the federal convictions did not bar the California charges. The federal offense required interstate travel, which was not required to prove the California offenses. The California crimes required that the kidnapping and murder be completed, which was not necessary for proof of the federal offense. ( Id. at pp. 836-837.) Friedman thus emphasized that section 656 did not apply because the state and federal charges required different physical acts. ( Friedman, supra, 111 Cal.App.4th at p. 837.)

We reiterate that all of the decisions summarized above hold that if the offense charged in another jurisdiction requires proof of physical acts different from the physical acts that constitute the offense charged in California, then the California prosecution is not barred by section 656 even though some of the elements of the offenses overlap.

Here, it is evident the physical acts defendant committed in California are not the same physical acts he committed in Nevada. In California, he drove while under the influence of alcohol and in a dangerous manner while evading a pursuing California peace officer. His California crimes were complete, and came to an end, when he entered Nevada. In Nevada, he drove while intoxicated and tried to elude pursuing Nevada peace officers. Those offenses did not begin until he left California, thus terminating his conduct in California. Defendant's actions in California would be neither necessary nor sufficient to prove his Nevada offenses. His actions in Nevada would be neither necessary nor sufficient to prove his California offenses.

This is demonstrated by the criminal complaints filed against defendant. The Nevada complaint to which he entered his pleas of no contest charged defendant with conduct "all of which occurred in Tahoe Township, County of Douglas, State of Nevada." The California complaint charged him with conduct "in the County of El Dorado."

It is true that defendant engaged in a continuous course of conduct during which he violated laws of both California and Nevada. But he did not violate the laws of both states simultaneously, and he did not do so by the same physical conduct. California's Supreme Court has rejected a course-of-conduct rule for application of the prior conviction or acquittal defense. ( Belcher, supra, 11 Cal.3d at pp. 97-98 fn. 6.)

We recognize that Comingore, supra, 20 Cal.3d 142, appears to provide some support for defendant's argument. There, the Supreme Court concluded that a California prosecution for "grand theft auto" and unlawful driving or taking a car was precluded by a prior Oregon conviction for unauthorized use of a vehicle. However, the ratio decidendi of the decision was that in determining whether a prior conviction or acquittal bars a California prosecution, courts disregard state of mind elements of the offenses and look to the physical acts at issue. ( Id. at p. 148.) In Comingore, the People conceded the California charges were based upon the same physical conduct as the Oregon offense, and the court accepted the concession without discussion. ( Id. at p. 146.) "It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court." ( People v. Harris (1989) 47 Cal.3d 1047, 1071 [ 255 Cal.Rptr. 352, 767 P.2d 619]; see also People v. Superior Court ( Marks) (1991) 1 Cal.4th 56, 65-66 [ 2 Cal.Rptr.2d 389, 820 P.2d 613].) In view of the prosecution's concession in that case, we do not consider Comingore as support for defendant's argument that his Nevada offenses and California offenses were based upon the same physical conduct.

There is an additional reason for rejecting defendant's affirmative defense with respect to the charge of eluding a peace officer.

In Nevada, he was charged with attempting to elude a peace officer as a misdemeanor, a crime that is committed by "the driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a peace officer in a readily identifiable vehicle of any police department or regulatory agency, when given a signal to bring his vehicle to a stop." (Nev. Rev. Stat. § 484.348(1).) Defendant was not charged with attempting to elude a peace officer as a felony, which would include operating the motor vehicle in a manner which endangers or is likely to endanger other persons or property. (Nev. Rev. Stat. § 484.348(3)(b).)

In California, he was charged with eluding a peace officer as a felony, a crime that requires driving with willful and wanton disregard for the safety of persons and property, which may be shown through proof of three or more violations that are assigned a traffic violation point count under Vehicle Code section 12810. (Veh. Code, § 2800.2, subd. (b).) The stipulated facts demonstrate that the prosecution in California will seek to prove that, in addition to driving under the influence of alcohol, defendant sped, made illegal lane changes, illegally passed traffic in the center turn lane, and ran a red light. These acts were performed entirely in California. They were not charged in Nevada and were in fact irrelevant to the Nevada charge. The physical acts that are at issue in California, but were not at issue in Nevada, preclude application of the prior conviction or acquittal defense.

For all the reasons stated above, defendant's convictions in Nevada for his conduct in Nevada do not preclude his prosecution in California for his conduct in California.

DISPOSITION

Sims, J., and Nicholson, J., concurred.

Respondent's petition for review by the Supreme Court was denied May 9, 2007, S150884.