Opinion
SMITH, J.
The People appeal from a superior court order dismissing a murder prosecution against defendant Sheri Ann Woods. The issue is whether either of two prior dismissals was due to excusable neglect, thus allowing the People a third filing under Penal Code section 1387.1.1 We reverse the order and deny as moot a petition for writ of habeas corpus in which Woods challenges her custody status pending the appeal.
Background
We summarize the evidence before Municipal Court Judge Allan P. Carter, who considered and granted the People’s motion to allow a third criminal complaint to be filed. As we explain in part I of this opinion, it is [1144]*1144Judge Carter’s ruling to which we must defer in our review of Superior Court Judge James F. Moelk’s later, contrary ruling.
First Filing
Woods and codefendant Robert F. Brunner were charged by complaint in February 1991 with the January 21st murders of Vincent Jay Benavidez (count 1) and John Madison (count 2), with firearm-use enhancements (§ 12022.5) and a multiple-murder special circumstance alleged (§ 190.2, subd. (a)(3)). Both defendants were held to answer after a preliminary hearing and charged by information in superior court.
On July 1, the court (Judge Moelk) granted Woods’s motion to sever her trial from Brunner’s. Woods’s counsel was Deputy Public Defender Lorraine Voss. The People were represented by Deputy District Attorney Kathy Coffer, who had stepped in two or three weeks before due to a first deputy’s schedule conflict.
On the first day set for trial, July 8, the People were unable to locate an essential witness and so opted to have the court dismiss and then refile once the witness was found. The witness was found and arrested on a material-witness warrant the next day.
Second Filing
A complaint prepared at Ms. Coffer’s direction was filed in municipal court on July 10. The secretary who prepared it was reliable, in Coffer’s experience, and she was directed to charge the two murders and special circumstance, as before. Unfortunately, a word processing error left the first sentence of count 2 clipped so that language alleging the murder of John Madison was omitted.2 Coffer read the first count, which was complete, but only glanced at the second and did not notice the error. She was relying on the office word processor’s accurate retrieval as well as the secretary’s past accuracy.
The first to notice was Judge Franklin R. Taft at the preliminary hearing on July 24 and 25. He issued holding orders on both counts after calling both [1145]*1145sides’ attention to the defect and in an untranscribed part of the proceeding amending the complaint on its face to correct it.
Coffer ordinarily headed the office’s sexual assault unit, and she was reassigned by her supervisor to other matters just two days after the preliminary hearing. However, she gave written instructions on the reverse side of a transmittal sheet directing the preparation of a two-count information charging the murders of both Benavidez (as count 2 this time) and Madison (count 1), again with the use and multiple-murder allegations. She signed the new information, which was prepared by one of two other secretaries who had “for the most part” done accurate work for her, and it was ultimately filed on July 30. She had read count I, had seen that it was complete and accurate, and had thought she also saw that the second count properly named the victim. In fact, the new information had the Benavidez murder in count 1, as before, and the same defect as before: count 2 failed to include the Madison language. “It was neglect on my part,” she explained below, “I did not catch it, and after I signed it that is the last I had any contact with that case.” She had known since before the preliminary that the case would be reassigned.
The case was assigned on August 11 to Deputy District Attorney James A. Highsmith, and the case was set for trial on September 23. Highsmith had also been assigned the Brunner case, which was set to go to trial on August 17. He spent most of his time in August engaged in the Brunner trial, which ended at the close of August with jury verdicts of first and second degree murder and a multiple-murder special circumstance. (The People opted not to seek the death penalty.) Highsmith met with Voss for discovery on the Woods case during that time. He also responded to her inquiry about penalty by filing, on August 15, a notice of intention not to seek the death penalty.
Highsmith went on vacation between September 9 and 17, leaving a calendar deputy, Gary Sherrer, to appear for him at a readiness conference in the Woods case on September 13. At the hearing, Judge Dwight C. Ely noted that the information appeared to be “fouled up” but confirmed the trial date when Ms. Voss replied: “It’s the same as filed below. They are aware of it, and Mr. Highsmith is on vacation right now.”3
Sherrer wrote a note to Highsmith on a “D.A. form 04” and gave it to a secretary to place in the file. It read in part: “Attn JAH . . . Court sez Ct 2 [1146]*1146does not make sense.” A secretary put the note in the “ ‘Woods and Brunner’ ” file on a table in Highsmith’s office. It was misdirected, however, as a separate file for the Woods case had been kept ever since that case was severed from Brunner’s. Thus Highsmith never got the message. He once used the back of the note as scratch paper when responding to a new trial motion in the Brunner case, but did not discover its significance. Sherrer explained below that he might have personally placed such a note in a conspicuous place for the attorney to find. He did not this time, however, “because of Ms. Voss’ statement at the time . . . to the effect that they knew about it, and it was my impression that they had been talking about that and other things based upon her statement in court.”
Highsmith knew nothing of the defect. He understood that Judge Ely had confirmed the trial date, but he did not read the misfiled note or speak with Sherrer or Voss about a charging defect. Voss, in fact, had asked him about pursuing the death penalty, which made sense only if multiple murders were charged. Highsmith had seen the information but, having just prosecuted the Brunner trial on the same murders originally charged against both defendants jointly, did not check as carefully as he should have. He read count 1 and saw that it was accurate. Then, he testified, “I glanced at Count 2 and in caps I saw, ‘multiple murder,’ I assumed Madison was in there, and it was an incorrect assumption.”
The Woods trial date was moved to September 30 due to illness requiring the hospitalization of defense counsel Voss, and the trial was assigned to Judge William C. Harrison. Voss insisted on no time waiver. That morning, when Judge Harrison read the information aloud in chambers, Highsmith first became aware of the defect. He immediately sought leave to amend, and a hearing on the motion was held that afternoon. Voss opposed amendment, arguing that she had assumed from the defect that only count 1 was being prosecuted and that she was not prepared to proceed on count 2. Judge Harrison found “a little bit of game playing” in Voss’s claim of surprise but reasoned that she had no duty to call the defect to anyone’s attention. He denied leave to amend and, based on Voss’s “no time waiver” stance, denied a request for a continuance to meet the amendment.
Faced with the choice of proceeding on only one count and forfeiting the multiple-murder special circumstance or seeking writ review of the leave-to-amend ruling, Highsmith’s supervisor opted to dismiss once again and refile [1147]*1147under section 1387.1, an option that Judge Harrison had suggested. The case was dismissed, and Woods was immediately rearrested for arraignment the next day.
Third Filing
The evidence above was considered by Judge Carter at an October 11 hearing in municipal court on the People’s motion to file a third (and this time correct) complaint. Attorneys Voss, Highsmith and Sherrer each testified. Judge Carter granted the motion, finding excusable neglect in the second dismissal, no prejudice to Woods and no bad faith by the People. Woods was held to answer after another preliminary hearing, and a correct information was filed on October 28.
On November 12, Woods filed in superior court a “De Novo Motion to Dismiss Under § 1387 P.C." which in essence was a challenge to Judge Carter’s ruling. Judge Moelk heard the matter on December 4. He declined to review the question de novo and took no new evidence. However, based on the transcript of the section 1387.1 hearing and all of the same documents considered by Judge Carter, he held that the findings were not supported by the evidence—that there was “no excusable neglect shown.” He granted the motion and ordered the information dismissed. The People appeal from that order.
Discussion
The parties disagree on the standard of review. We agree with the People that we should defer to the magistrate’s ruling and not defer to the superior court’s contrary ruling. This is because only the magistrate heard the evidence, saw the demeanor of witnesses and was in a position to judge credibility. The superior court sat only as a court of review, examining the magistrate’s ruling for evidentiary support and declining to reweigh or take new evidence. The situation is like review of a motion to set aside an information (§ 995) or to suppress evidence where the superior court considers only that evidence presented on a prior motion before the magistrate (§ 1538.5). In either case this court disregards the superior court ruling and directly examines the magistrate’s. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223 [266 Cal.Rptr. 473] [§ 1538.5]; People v. Shepard (1991) 228 Cal.App.3d 1410, 1414-1416 [279 Cal.Rptr. 551] [§ 995].) We, like the superior court, must draw every legitimate inference in favor of the magistrate’s ruling and cannot substitute our judgment, on the credibility or [1148]*1148weight of the evidence, for that of the magistrate. (People v. Laiwa (1983) 34 Cal.3d 711, 718 [195 Cal.Rptr. 503, 669 P.2d 1278].)
Woods’s arguments to the contrary are not convincing. Her first is fatuous. She opposes deferring to the magistrate as a “trial court” in the matter because a municipal court has no jurisdiction to try a felony (§ 860). This is a word game. Trial of the motion, not the charges, is the issue.
She next argues that she was entitled to a de novo hearing in superior court. For this she relies on cases holding that when a statutory provision bars the prosecution of a crime, the provision is cognizable as a proper basis for setting aside an information before trial, even though not made a ground under section 995. (See, e.g., People v. McGee (1977) 19 Cal.3d 948, 967-968 & fn. 9 [140 Cal.Rptr. 657, 568 P.2d 382] [state’s failure to seek restitution]; see also Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293-294, fn. 4 [124 Cal.Rptr. 204, 540 P.2d 44] [unconstitutional discriminatory prosecution]; Jones v. Superior Court (1970) 3 Cal.3d 734, 738-739 [91 Cal.Rptr. 578, 478 P.2d 10] [pre-arrest delay violating constitutional right to speedy trial].) The argument is beside the point. We do not hold that a superior court may not adjudicate a section 1387.1 issue, only that when the issue is raised first in the municipal court—the obvious forum for a motion to refile—the defendant cannot relitigate the matter de novo in superior court. Nothing in section 1387.1 or policy suggests that the matter should have been fully retried. Woods does not claim she was denied the chance to fully present her case the first time; she in fact offered nothing new the second time.4
Moreover, it is difficult to see what the argument gains Woods here, where the superior court expressly declined to decide the issue de novo. To treat that ruling as if made de novo would be a complete fiction.
II
Section 1387.1, enacted effective January 1988, carves an exception to the general rule of section 1387 that a twice dismissed action cannot be refiled. It applies only to prosecutions of “violent felonies” such as the murders charged here (§ 667.5) and allows a third filing where (1) either of the prior dismissals was “due solely to excusable neglect” and (2) the conduct of the [1149]*1149prosecution did not amount to “bad faith.” “ ‘Excusable neglect’ ” is broadly defined as including, but not limited to, “error on the part of the court, prosecution, law enforcement agency, or witnesses.”5
Judge Carter expressly found that there was no bad faith in this case, Judge Moelk upheld that determination, and the issue appears to be conceded on appeal. The dispute centers on “excusable neglect.”
The only published opinion to consider that term as used in section 1387.1 decided that it has the same established meaning here as it has in other codes, where it has appeared and been construed for years. “ ‘Excusable neglect’ is a legal term of art common in the law. Judicial interpretations guide us in determining whether [a dismissal] was due solely to excusable neglect.” (Tapp v. Superior Court (1989) 216 Cal.App.3d 1030, 1036 [265 Cal.Rptr. 267].) Simply expressed, “[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271], citation omitted.) This case involves a remedial statute and omissions mainly by attorneys. “In deciding whether counsel’s error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent.... In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error. ... In addition, ‘[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails.’ . . (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 [228 Cal.Rptr. 190, 721 P.2d 71], citations omitted.)
The application of section 1387.1 is a discretionary decision for the judge which should be afforded great weight unless a clear abuse of that discretion is demonstrated. We do not exercise “ ‘independent review.’ ” (Tapp v. Superior Court, supra, 216 Cal.App.3d 1030, 1036, fn. 3.) Nor, as [1150]*1150Woods urges, is this a case which poses only a question of how to apply the law to uncontradicted facts. The historical facts are in some ways uncontradicted, but the record is rife with contradictory inferences to be drawn from them. The facts are therefore not “ ‘undisputed.’ ” (People v. Lee (1987) 194 Cal.App.3d 975, 981 [240 Cal.Rptr. 32].)
The first negligent omission leading to the second dismissal was Kathy Coffer’s failure to catch the omission in the second complaint. She did read the complaint but failed to read count 2 carefully enough to notice a word processing error which clipped the murder allegations and victim John Madison’s name from the end of the first sentence. We find ample support for this being excusable neglect. She had orally instructed a trusted, proven secretary in the office to prepare the pleading, and the prior complaint by which both Woods and the codefendant were initially charged, had been correct. Coffer read the first count, found it complete and paid less attention to the second. She relied in part on the accuracy of the computer’s retrieval capabilities. The error was buried in mid-paragraph, after a reference to murder and section 187, and later language stating the multiple-murder and firearm allegations (see fn. 2, ante) suggested completeness. A reasonably prudent person might have made the same mistake in the circumstances.
More troubling is her failure to catch the identical error in the second information. The complaint was brought to her attention by the magistrate at the preliminary hearing, who amended the pleading and held Woods to answer, and Coffer signed a defective information just five days later. However, drawing all inferences in favor of the ruling, we find support for an excusable-neglect finding. Coffer took care this time to give good written directions and used a different secretary. The directions specified that the counts be drafted in reverse order—the formerly defective Madison count first and the other count second. Coffer knew since before the preliminary hearing that she would be taken off the case, and the magistrate could infer that once the reassignment occurred, soon afterward, she began devoting her energy to other cases. By the time the information was prepared and filed days later, she would have been less focused on the case yet would have remembered her instructions to place the defective count first. She testified that she read the first count, saw it was complete, and thought she saw a complete second count as well. The record is not developed on this point, but we may infer that her focus was on the first count, where she directed the secretary to place the Madison allegations. Then, not noticing that the counts were not reversed as she had instructed, she assumed upon reading the complete first count that the problem had been cured. This, of course, implies fault of another sort but explains how the same error could happen twice.
[1151]*1151James Highsmith, the next attorney on the case, also neglected to find the problem. However, as with Coffer, his oversight is understandable in that he could rely on the charges being in order, as they had been before the severance and first dismissal. This is especially true for Highsmith, who tried the severed case of Brunner on identical allegations drafted by the same office on the same computers. The error was buried in language which otherwise looked complete, and he had no reason to suspect error. He had worked with opposing counsel Voss, who hid her knowledge of the defect from him until the morning of trial, even asking for a statement of intent on death penalty as if both counts and the multiple-murder allegations were all in order. He never saw the mislaid note from Sherrer either, although he scribbled on the back of it while working on a motion for new trial in the Brunner case. The note as introduced below at the hearing was crumpled. Highsmith said that when he first discovered the note after the trial judge had disclosed the problem, he wadded it up in anger and threw it against the wall.
Highsmith made prompt efforts to avoid harm once he discovered the defect, including seeking leave to amend and a continuance. The People urge that Judge Harrison’s denial of leave to amend was an abuse of discretion, apparently inviting us to conclude that this was “error on the part of the court” within section 1387.l’s definition of excusable neglect (fn. 5, ante). However, we need not do so to sustain the magistrate’s ruling. It is enough to observe that Highsmith’s overall performance in this case was diligent, which bears on whether his single area of neglect here was excusable. (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d 270, 276.) The dissent makes much of Highsmith’s comment that he sometimes “shot from the hip,” forgetting that Highsmith was referring to codefendant Brunner’s separate trial.
Next, we find support that Sherrer was excusably negligent. He relied on Voss saying in open court that “they” (the prosecution) knew about the defect. He wrote a note and had it placed in the file, apparently unaware that a secretary placed it in the wrong one. Any neglect was excusable.
Woods argues that the magistrate made “a fundamental error of law” by citing lack of prejudice in its oral comments. We see no error. Prejudice has been called irrelevant because, strictly speaking, it cannot make inexcusable conduct excusable (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900 [187 Cal.Rptr. 592, 654 P.2d 775]) or vice versa (Iott v. Franklin (1988) 206 Cal.App.3d 521, 531 [253 Cal.Rptr. 635]). On the other hand, it has been called relevant to the underlying policies promoting substantial justice and favoring trial on the merits. “Reversal is particularly appropriate where relieving the default will not seriously prejudice the [1152]*1152opposing party. [Citations.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 [211 Cal.Rptr. 416, 695 P.2d 713].) “Reversal of an order denying relief is appropriate where the effect of the order is to ‘defeat, rather than to advance the ends of justice.’ [Citation.]” (Id., at p. 236.)
Thus, the magistrate was right to view lack of prejudice as relevant, and we defer to his supported views on the matter: “[Tjhere was no surprise [to Woods], and if the third refiling is allowed she will be facing, once more, the charges she already knew about and decided to ignore in Superior Court”; “the refiling of the charges of which [she] was already aware and prepared to defend inflicts no prejudice on her.”6
Our colleague’s dissent rests on his view that the magistrate erroneously failed to reach the question of excusable neglect. The argument is easily rebutted. Our starting point is the presumption that duty was regularly performed. (Evid. Code, § 664.) In this case, the presumption is that the magistrate knew and properly applied the law. It is an appellant’s burden to overcome the regularity presumption by an affirmative showing. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913, 915 [141 Cal.Rptr. 133, 569 P.2d 727]; People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [224 Cal.Rptr. 208]; People v. Castellano (1983) 140 Cal.App.3d 608, 612 [189 Cal.Rptr. 692].) Woods is not the appellant here but, as respondent, may raise her own points of error in defense of the superior court judgment. In this way she may attempt to show that these additional errors compel an affirmance of the superior court. (People v. Osuna (1986) 187 Cal.App.3d 845, 848, fn. 2 [232 Cal.Rptr. 220]; cf. People v. Braeseke (1979) 25 Cal.3d 691, 698-701 [159 Cal.Rptr. 684, 602 P.2d 384] [People may raise error to support judgment attacked by an appealing defendant], judg. vacated and cause remanded (1980) 446 U.S. 932 [64 L.Ed.2d 784, 100 S.Ct. 2147], reiterated (1980) 28 Cal.3d 86 [168 Cal.Rptr. 603, 618 P.2d 149], cert. den. (1981) 451 U.S. 1021 [69 L.Ed.2d 395, 101 S.Ct. 3015].) The presumption of regularity applies to her claims as well as the People’s. Here, while Woods does allude to error by the magistrate in an apparent effort to defend the superior court judgment, neither she nor our colleague succeeds in overcoming the presumption that the magistrate acted properly.
The magistrate in oral comments first acknowledged that the refiling was “permitted if either of the previous two dismissals were based solely on excusable neglect.” He then said: “There is clearly neglect by the People by a number of attorneys, experienced attorneys, and by what appears [1153]*1153according to the testimony to be a competent staff. I guess the question before me is, shall I excuse this admittedly negligent conduct.” He clearly understood the need to find excusable neglect.
The magistrate then went on to discuss prejudice. He called prejudice “the primary factor.” Our colleague apparently takes “primary” to mean the most important factor (Webster’s Third New Internat. Dict. (1965) p. 1800), and notes that prejudice is not strictly relevant to whether neglect is excusable. However, “primary” also commonly means “first in order of time or development: Initial” (ibid., first listed definition), a logical meaning to give the word in these circumstances, and prejudice was a separately valid factor under the statute. The magistrate next discussed lack of bad faith by the prosecutor, another statutory factor. He closed by saying: “In my opinion, human error or poor workmanship by the People, which is clearly present, was not intended by the Legislature to prohibit a trial on the merits. I think there should be a trial on the merits, right or wrong the second dismissal in this case was a result of excusable neglect within the meaning of Penal Code Section 1387.1. . . (Italics added.)
At most, the record shows some blurring of the ideas of excuse and prejudice, although one can just as easily infer from the magistrate’s initial parsing of the statute’s elements that he afterward used “excusable neglect” as a shorthand phrase for the statute as a whole. The record definitely does not show that the court somehow disregarded whether the People’s neglect was excusable. The presumption of regularity stands unrebutted.
The dissent also finds comfort in several Court of Appeal decisions, most cited by Woods, where somewhat analogous facts have resulted in denials of relief under other statutes. However, no two cases in this area pose identical facts, and no one would dare argue that all “excusable neglect” cases can be neatly placed along a continuum and reconciled in result. Part of the reason lies in the concept of discretion. Quite similar facts might result in one trier of fact granting relief and another denying it, yet each ruling might be upheld. (Ross v. Ross (1941) 48 Cal.App.2d 72, 76 [119 P.2d 444] [“there are cases in which an order either way will be sustained on the ground that no abuse of discretion appears”].) Appellate review thus respects this sometimes divergent exercise of discretion. The abuse-of-discretion standard requires us to uphold a ruling which a reasonable judge might have made, even though we would not have ruled the same and a contrary ruling would also be sustainable. We cannot substitute our own judgment. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [243 Cal.Rptr. 902, 749 P.2d 339]; see 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 275, p. 286; 8 Witkin, supra, Attack on Judgment in Trial Court, §§ 180-183, pp. 582-585.)
[1154]*1154In that light, we note that some cases relied on by our dissenting colleague are decisions upholding a discretionary denial of relief. (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038 [198 Cal.Rptr. 389]; Ross v. Ross, supra, 48 Cal.App.2d 72, 75-76; cf. Davis v. Thayer (1980) 113 Cal.App.3d 892 [170 Cal.Rptr. 328] [denial upheld on ground of inexcusable neglect not reached by trial court].) The others are distinguishable factually.
Finally, we are propelled in this case by the strong policy favoring affirmance of rulings granting relief. “[V]ery slight evidence is required to justify a trial court’s order setting aside a default. [Citation.]” (Shamblin v. Brattain, supra, 44 Cal.3d 474, 478.)
No abuse of discretion appears in the magistrate’s ruling granting relief. Judge Moelk erred in concluding otherwise. His order of dismissal must be reversed.
Ill
The Benavidez count was properly charged in the second complaint and information. Woods contends that it must remain dismissed now because the People chose dismissal as a “tactical” matter to preserve the multiple-murder special circumstance allegation (§ 190.2, subd. (a)(3)), not due to excusable neglect on the Madison count. The People’s options, she urges, were to seek writ review of the ruling denying leave to amend or to proceed on the one count only and, if successful in that trial and in efforts to file the Madison count a third time (§ 1387.1), charge the Benavidez count as a prior-murder-conviction special circumstance (§ 190.2, subd. (a)(2); People v. Hendricks (1987) 43 Cal.3d 584, 595-596 [238 Cal.Rptr. 66, 737 P.2d 1350] [order of commission of the homicides is immaterial]), thereby preserving the greater penalty option.
The People respond that both counts were tied to excusable neglect in the Madison count. The Madison count defect was discovered on the morning of the last day for trial in a no-time-waiver case; the court that afternoon refused to allow an amendment; and Woods thereupon insisted on not waiving time. The People argue that this forced them to dismiss both counts. Otherwise, they risked losing the ability to ever try the Madison count or to gain the special circumstance penalty of life without the possibility of parole (death not being sought). They urge that the prosecutor could not, as a practical matter, simultaneously proceed with trial and seek writ review of the leave-to-amend denial. Further, if a prior-murder-conviction special circumstance in a later trial of the Madison count was one way to preserve greater penalty, there were other obstacles. Because both murders were [1155]*1155committed at the same time and place, a prosecutor could reasonably fear that state-law policy against successive prosecutions of closely related crimes (Kellett v. Superior Court (1966) 63 Cal.2d 822, 824-827 [48 Cal.Rptr. 366, 409 P.2d 206]) would bar separate trials and that an acquittal on the Benavidez count might bar later prosecution of the other under federal-law principles of double jeopardy (Ashe v. Swenson (1970) 397 U.S. 436, 445-446 [25 L.Ed.2d 469, 476, 90 S.Ct. 1189]).
The parties agree that “excusable neglect” under section 1387.1 must be separately considered as to each count sought to be refiled. Whether prosecution is barred under the two-dismissal rule of section 1387 has long been separately considered as to each count of an action. “The section applies to bar the inclusion of counts of an information as well as to bar an entire information. [Citations.]” (Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1114 [206 Cal.Rptr. 242].) The Legislature was presumptively aware of that judicial interpretation (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155-1156 [278 Cal.Rptr. 614, 805 P.2d 873]) when, in 1987, it introduced the exception in section 1387.1. We thus may assume that the same construction was intended as to the exception, a conclusion consistent with the language of the section. It speaks twice of refiling “charges.” (§ 1387.1, subd. (a); fn. 5, ante.) We conclude that separate scrutiny of each twice dismissed count is required in deciding whether its third filing is justified by excusable neglect. (Cf. Tapp v. Superior Court, supra, 216 Cal.App.3d 1030, 1037-1038.)
We also hold that excusable neglect directly affecting one count may in some circumstances so affect another count that the People’s decision to voluntarily dismiss that other count justifies a third filing of both. Woods disputes that general premise, but the law supports it. Subdivision (a) of section 1387.1 asks whether a prior dismissal was “due solely to excusable neglect.” That requires causation between neglect and the dismissal. Where the dismissal involves more than one violent felony, it may be appropriate to ask further whether an entire dismissal, or only part of it, was “due solely to excusable neglect.” (§ 1387.1, subd. (a).) We cannot categorically rule out the possibility that a dismissal of one defective count may so seriously impede the prosecution of a good count that a dismissal and refiling of both is justified.
Turning to our facts, we must reject the asserted concern about double-jeopardy or successive-prosecution bars to prosecuting the Madison count separately. Those concerns were never articulated in testimony or argument below. Highsmith stated that the dismissal decision, made by a supervisor in [1156]*1156his office after mutual discussion, was due to concern that the multiple-murder special circumstance would be lost if the counts were tried separately.7 No other reason was given, and neither court below had occasion to consider other reasons. We reject the People’s argument that Highsmith’s mention of an inability to “ever get the punishment or penalty” (fn. 7, ante) impliedly conveyed concerns beyond the one which he articulated. A court examining excusable neglect has no occasion to consider the objective reasonableness of states of mind not subjectively held. (Cf. Elston v. City of Turlock, supra, 38 Cal.3d 227, 234-235.)
That leaves the multiple-murder concern. On these facts, we conclude that it supported allowing both counts to be refiled. The charged multiple-murder allegation was unavailable in a separate trial (§ 190.2, subd. (a)(3) [the defendant has “in this proceeding been convicted of more than one” first or second degree murder]), and Woods refused to waive time on the last day for trial to begin. This forced the People to either proceed separately with the Benavidez count and forfeit the multiple-murder allegation, or dismiss and try to refile both counts together.
Section 1387.1, subdivision (a), allows the People an additional chance to “refile charges” where a prior dismissal of a violent felony “offense” was due solely to excusable neglect. A multiple-murder special circumstance is not an offense itself but a special allegation attached to the violent felony offense of murder. Still, section 1387.1 allows a refiling of “charges” and has been construed to include special allegations attached to an offense. (See, e.g., Tapp v. Superior Court, supra, 216 Cal.App.3d 1030,1037.) Some offenses become violent felonies only when special allegations are alleged and proved. (§ 667.5, subds. (c)(8) [any felony with great bodily injury or firearm use] and (c)(9) [robbery with personal use of a deadly or dangerous weapon].) Section 1387.1 thus envisions that a finding of excusable neglect preserves special allegations attending the offense even though, as in a case like ours, there was no defect in those allegations.
A multiple-murder special-circumstance allegation is unique. Unlike any other, it minimally requires two counts of murder in the same proceeding. Woods would have us hold that excusable neglect directly affecting the dismissal of only one such count never allows a refiling of the other. [1157]*1157However, this would construe section 1387.1 in a way that leaves the People no way to save a multiple-murder case when an 1 lth-hour problem arises, as to just 1 count, under the constraints of a no-time-waiver trial. It would mark a departure from the usual consequence of finding excusable neglect, which is to resurrect any attendant special allegations. The Legislature could not have intended such rigidity. Section 1387.1 is a remedial tool designed to save serious-felony prosecutions from improvident loss. We construe it as preserving multiple-murder allegations attached to counts dismissed due to excusable neglect, and thus as preserving, in exceptional circumstances, another dismissed murder count essential to the multiple-murder allegation.
We hold that the refiling of both murder counts in this case was justified. The prosecutor had to make a decision on the last day for trial, after the defense refused to waive time, and he correctly saw that to proceed on just one count meant forfeiting the special circumstance allegation. His dismissal of both counts, on these facts, allowed their refiling on a finding of excusable neglect under section 1387.1.
Even if we could accept Woods’s contrary view of the statute’s scope, we would have to uphold the ruling based on excusable neglect or error in the prosecutor’s own construction of it. No case had yet addressed this issue, and a reasonable attorney saddled with the extraordinary facts in this case could have believed, and was impliedly found to have believed, that the statute would allow the refiling of both counts.
Woods proposes two alternate “remedies” short of double dismissal, but neither one is convincing. We do not agree, first, that the People can be held inexcusably negligent as a matter of law for not seeking writ relief against the trial judge’s denial of leave to amend. To do so during trial on the Benavidez count was impractical and posed a tremendous gamble. Success in joining the Madison count in the ongoing proceedings depended not only on obtaining extraordinary relief but, as a practical matter, securing a stay from this court pending the writ application. Competent counsel could reasonably believe that securing pretrial relief from a discretionary ruling, like the leave-to-amend denial here, was a dangerous strategy.
Moreover, the idea that the People must always exhaust alternative remedies of this sort has been rejected. In Tapp v. Superior Court, supra, 216 Cal.App.3d 1030, the People had secured a continuance which the defendant successfully attacked by writ, the Court of Appeal overturning the order because of deficient supporting papers. Nevertheless, the court later held those deficiencies to be excusable neglect under section 1387.1 and rejected the defendant’s claim that the cause for a later dismissal was the People’s [1158]*1158failure to make a renewed continuance motion right after the writ reversal. (216 Cal.App.3d at pp. 1036-1037.) Failure to renew was held excusable: the defense had insisted it was already too late to begin the trial, and the prosecutor, who believed she still had one day left, was unprepared because a necessary witness was unavailable. (Id., at pp. 1033, 1037.) Thus, “[t]he dismissal might have been avoided but it came about solely due to excusable neglect.” (Id., at p. 1037.) Likewise, the People here might have avoided a dismissal of the Benavidez count. However, to proceed with trial while seeking writ relief from the leave-to-amend ruling was reasonably rejected as an impractical and risky alternative. Any neglect was excusable.
We also find excusable any neglect in the prosecutor not opting to go ahead with the Benavidez count and use a prior-murder-conviction special circumstance (§ 190.2, subd. (a)(2)) in any later, separate trial on the Madison count. While that in hindsight may have been a viable way to proceed (People v. Johnson (1991) 233 Cal.App.3d 425, 448-449 [284 Cal.Rptr. 579] [due process was not violated by adding a prior-murder-conviction amendment after a verdict in another case]), it is telling that no one apparently thought of it until this appeal. The judge who found excusable neglect below did not have the benefit of testimony or argument on the issue. We cannot fault the prosecutor for not divining the solution. Any neglect in that regard was excusable.
We uphold the refiling of both counts.
IV
Woods filed a petition for writ of habeas corpus in this court (A055860) soon after the dismissal. She sought a release from custody, noting that no charges existed against her and disputing Judge Moelk’s ruling at the time of dismissal that she would remain in custody pending the People’s promised appeal. She invoked section 1242: “An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed.” After receiving informal opposition, we ordered a show cause hearing in superior court. Judge Moelk heard the matter and denied the petition, holding that custody was legal, at least once the People filed their notice of appeal.
Woods then filed a “supplemental” petition in this court (A056503), relying on the record created in the first writ proceeding and repeating her legal argument. Treating it as a new application, we ordered a show cause hearing in this court and expedited the briefing in both cases so that they could be heard together.
[1159]*1159Having found on the appeal that the dismissal was in error, the habeas corpus petition is moot. Woods’s custody is legal now that we reverse the judgment of dismissal (§ 1242).
Disposition
On the appeal, the order dismissing the information is reversed. On the petition for writ of habeas corpus, the order to show cause is discharged, and the petition is denied as moot.
Benson, J., concurred.