Court order barring further prosecution of charges after second dismissal was proper because the trial court previously stated that dismissal of the first indictment would qualify as a dismissal for purposes of Penal Code section 1387. The prosecution appealed the trial court’s order barring it from proceeding against defendant on charges of murder and shooting into an inhabited dwelling. The order issued pursuant to section 1387, which bars further prosecution in circumstances where felony charges have been twice dismissed for reasons set forth in the statute. The prosecution claimed the court’s dismissal of the first indictment did not qualify as a 1387 dismissal and/or that it constituted “excusable neglect” under section 1387.1. Held: Affirmed. The dismissal of the first indictment was based on defendant’s Penal Code section 995 motion, which is a qualifying termination under section 1387. While this motion was pending, the prosecution obtained a second indictment after presenting new evidence. When the 995 motion was heard, the prosecution claimed the motion was moot due to the superceding indictment. In granting dismissal, the court expressly stated that the order should be treated as a 1387 termination. This order was not appealed by the prosecution. A second 995 motion was filed as to the superceding indictment; it was granted as to the murder and shooting into an occupied dwelling counts. When the prosecution refiled the charges, defendant’s motion to dismiss was granted. The trial court’s likely concern when it granted the first section 995 motion was that the prosecution obtained the superceding indictment while defendant’s section 995 motion was pending in an attempt to circumvent the two-dismissal rule of section 1387. This was a reasonable concern. The trial court’s intention was clear and it did not err in ruling that the first dismissal would qualify as a termination under section 1387.

The dismissal of the first indictment was not “excusable neglect” under section 1387.1. Section 1387.1 provides that where an offense is a violent felony and the charges have been twice dismissed, the prosecution may have another opportunity to refile where either of the dismissals was due to excusable neglect. Here, there was no error in the court’s ruling so there was no basis to conclude it was the result of excusable neglect. In any event, the prosecution failed to appeal the order under Penal Code section 1238, subdivision (a)(1), so no relief is available. Further, excusable neglect under 1387.1 is limited to errors that are essentially clerical in nature.