Here, by initially denying the section 995 motion, the court found that at least “some evidence” supported the magistrate’s order holding defendant to answer. The court noted that Loepke had a photocopy of defendant’s driver’s license and later identified her in a lineup. The court observed that Loepke was in defendant’s presence when she signed the purchase agreement in alleged victim 1’s name. Defense counsel conceded that the evidence that Loepeke was in defendant’s presence was not subject to exclusion on the grounds of multiple hearsay. Thus, “some evidence” supported the charge against defendant with respect to victim 1.

The court also noted that alleged victim 2 directly informed the detective that he had not applied for credit with Chaparral. Defendant contended that evidence constituted inadmissible hearsay. The court disagreed, finding that alleged victim 2 could tell the detective he never applied for credit which would properly come into evidence as single layer hearsay through section 872, subdivision (b): “He’s telling a deputy, I never applied.” Thus, “some evidence” also supported holding defendant to answer for the count 2 offense.

Nevertheless, despite finding that the evidence supported the magistrate’s order holding defendant to answer on both charges, the court believed the conduct underlying the charges amounted to only misdemeanor offenses. Thus, the court purported to reduce the charges to misdemeanors pursuant to section 17, subdivision (b). However, the People correctly pointed out that the court lacked authority, at that point in time, to reduce the charges pursuant to section 17, subdivision (b). The court then stated: “Then I’m going to grant it. It’s one or the other. It’s—this is not felony conduct. It’s not. So if that’s your argument, the Court will grant the [section] 995 [motion].”

The court had no authority to grant the section 995 motion because it believed the alleged conduct amounted to a misdemeanor rather than a felony. (Jackson v. Superior Court (1980) 110 Cal.App.3d 174, 176-177.) Instead, the court’s ruling appears to be one of “judicial pique” which cannot support its order granting defendant’s section 995 motion. (People v. Henderson, supra, 115 Cal.App.4th at p. 939.) This is particularly so where the court had already found sufficient evidence to support the magistrate’s order holding defendant to answer on both charges. The court’s belief that the conduct warranted only misdemeanor charges could not supply the basis for effectively dismissing the information in its entirety.

As the People point out, in Jackson v. Superior Court, supra, 110 Cal.App.3d 174, the People charged the defendant with the felony wobbler offense of theft from a person. (Id. at p. 176.) At the preliminary hearing, the defendant sought to have his offense reduced to a misdemeanor pursuant to the court’s authority under section 17, subdivision (b)(5). (Ibid.) The magistrate refused to exercise his discretion to reduce the offense unless the defendant entered a guilty plea. (Id. at pp. 176-177.) The court held “that the magistrate may not condition the exercise of his judicial discretion to reduce the offense to a misdemeanor upon the entry of a plea of guilty by the defendant [citation].” (Ibid., fn. omitted.) The court additionally held “that a defendant’s right to an independent determination of whether he should be held to answer on a felony or a misdemeanor cannot be given meaningful effect unless the defendant may raise the magistrate’s failure to exercise his judicial discretion through a pretrial motion to dismiss [citation].” (Id. at p. 177.)

Similarly, in People v. Manning (1982) 133 Cal.App.3d 159, the defendant appealed the denial of his section 995 motion on the basis that the People had added felony wobbler counts to the information which were not included in the complaint and were thus not subject to a section 17, subdivision (b)(5) motion to reduce the counts to misdemeanors at the preliminary hearing. (People v. Manning, supra, at pp. 164-165.) The court noted that while Jackson had held that “[s]ince there should be a method other than by writ to challenge a misapplication of Penal Code section 17, subdivision (b)(5), a Penal Code section 995 motion to set aside the charge provides a quick and efficient remedy,” that holding only applied in cases where the magistrate refused to exercise his discretion pursuant to section 17. (People v. Manning, supra, at pp. 165-166.)

Here, unlike in both Jackson and Manning, the magistrate did not refuse to exercise his discretion. The magistrate explicitly noted: “This is a close call for a [section] 17[, subdivision] (b) in the Court’s mind.” Nonetheless, the magistrate expressly exercised his discretion by declining to reduce the felony charges to misdemeanors pursuant to section 17, subdivision (b): “[T]he Court is going to deny the [section] 17[, subdivision] (b) even though it’s a close call.” Thus, the court had no authority to reduce the offenses to misdemeanors or grant the section 995 motion based solely on its opinion that the offenses should be charged as misdemeanors.

B. Section 1385

Defendant contends any error in the court’s ruling is harmless because the court had the authority to dismiss the entire case pursuant to section 1385. We disagree.

Pursuant to section 1385, subdivision (a): “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.” Section 1385’s requirement that the court state its reasons for dismissing a charge is mandatory and the court’s failure to states its reason cannot be deemed harmless. (People v. Bonnetta (2009) 46 Cal.4th 143, 151-152 [remanding matter to trial court for statement of reasons].) If a court intends to dismiss a matter, the People must be given notice of such an intent. (People v. Gonzales (1965) 235 Cal.App.2d Supp. 887, 889.)

Here, the court never mentioned that it was dismissing the action pursuant to section 1385. The court never provided the People the opportunity to argue that dismissal of the matter was not “in furtherance of justice.” Furthermore, the court did not state any reasons for dismissing the matter “in furtherance of justice.” Thus, the court’s error in granting defendant’s section 995 motion cannot be deemed harmless due to the court’s section 1385 authority.

C. Evidentiary Objections

Finally, defendant contends that even if the court erred in granting his motion on the grounds stated, any finding by the court that some admissible evidence supported the magistrate’s ruling was error. Defendant maintains that the only evidence supporting the magistrate’s order holding defendant to answer was erroneously admitted over defendant’s hearsay and lack of foundation objections.

“Proposition 115 does not authorize the use of double or multiple hearsay statements and such testimony is admissible only if it qualifies under some other exception to the hearsay rule. [Citations.]” (Tu v. Superior Court (1992) 5 Cal.App.4th 1617, 1622.) Where a magistrate’s finding of probable cause was based on improper and unauthorized multiple hearsay, a superior court should grant a defendant’s motion to set aside the information under section 995. (Tu v. Superior Court, supra, at p. 1624; accord, People v. Daily (1996) 49 Cal.App.4th 543, 549 [a superior court judge may review “hearsay and other evidentiary questions presented by a magistrate’s determination to hold the accused to answer.”]; accord, People v. Hawkins (2012) 211 Cal.App.4th 194, 204 [erroneous admission of hearsay evidence at preliminary hearing may be raised in a § 995 motion]; see People v. Sullivan (1963) 214 Cal.App.2d 404, 409-410 [“A full-scale review of the evidentiary rulings of the magistrate is not provided by section 995. ‘. . . The only qualification to this principle is that a defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence.’”]; see People v. Backus (1979) 23 Cal.3d 360, 387 [“An indictment based solely on hearsay or otherwise incompetent evidence is unauthorized and must be set aside on motion under Penal Code section 995.”].)

“‘The elements of the crime [of identity theft] . . . may be summarized as follows: (1) that the person willfully obtain personal identifying information belonging to someone else; (2) that the person use that information for any unlawful purpose; and (3) that the person who uses the personal identifying information do so without the consent of the person whose personal identifying information is being used.’ [Citation.]” (People v. Lee (2017) 11 Cal.App.5th 344, 355-356; CALCRIM No. 2040.)

As to count 1, the detective testified that Chaparral’s sales manager informed him that they received an online credit application from defendant. Loepke told the detective they believed the application was fraudulent. Alleged victim 1 testified that she had received a letter from Chaparral informing her that she had been denied a loan for which she had not applied. Although testimony regarding the contents of the letter would normally be hearsay, in this instance it was properly admitted not for the truth of the matter asserted therein, but for the nonhearsay purpose to show why alleged victim 1 went to Chaparral. (People v. Zavala (2013) 216 Cal.App.4th 242, 249-250 [testimony regarding contents of call records properly admitted to explain the detective’s subsequent actions].)

Lopeke told the detective that defendant came into Chaparral and signed a purchase agreement for a motorcycle. Loepke told the detective another woman was with defendant when she signed the purchase agreement; that woman signed alleged victim 1’s name on the purchase agreement. Loepke told the detective that the other woman brought in a piece of mail with alleged victim 1’s name on it which she attempted to use as identification. Loepeke gave the detective the purchase agreement. These items of evidence all consist of one layer of hearsay and were properly admitted pursuant to Proposition 115. (§ 872, subd. (b).)

The rational inference of alleged victim 1 and the detective’s testimonies is that the original application contained alleged victim 1’s name as either the primary borrower or a cosignor. Thereafter, due to a suspicion of fraud, Chaparral required defendant to personally come into the establishment to prove alleged victim 1’s identity. Defendant came into the establishment with another woman who attempted to pass as alleged victim 1, the woman provided personal identifying information containing alleged victim 1’s name in order to obtain the loan, and the woman signed the purchase agreement with alleged victim 1’s name.

Alleged victim 1 testified she saw defendant’s signature on paperwork at Chaparral after she received a letter from a credit department informing her she had been denied a loan at Chaparral. Alleged victim 1 testified she had not purchased a motorcycle from Chaparral in December 2016, she did not cosign a loan for defendant, and never gave defendant permission to use her name. Thus, the properly admitted evidence that defendant had signed a purchase agreement containing alleged victim 1’s name without her permission was sufficient evidence to support the magistrate’s order holding defendant to answer for the count 1 offense of identity theft.

With respect to count 2, the detective testified that the sales manager informed him that the original application had been modified to contain the name of alleged victim 2. The magistrate implicitly overruled defendant’s objection that the testimony contained double hearsay when he sustained defense counsel’s objection only on the grounds of narrative.

“Where ‘“the very fact in controversy is whether certain things were said or done and not . . . whether these things were true or false, . . . in these cases the words or acts are admissible not as hearsay[,] but as original evidence.”’ [Citation.] For example, documents containing operative facts, such as the words forming an agreement, are not hearsay. [Citations.] The operative facts rule also applies in an action for fraud. [Citations.]” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316 [documents offered as direct evidence of fraudulent statements properly admitted as nonhearsay].) “‘If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence.’ [Citation.] Often, such evidence is referred to as ‘“operative facts.’” [Citations.] As originally articulated, the operative fact doctrine was as follows: ‘“There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence.” [Citations.] In these situations, the words themselves, written or oral, are “operative facts,” and an issue in the case is whether they were uttered or written. [Citation.]’ [Citation.]” (People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069; see also People v. Henry (1948) 86 Cal.App.2d 785, 789; People v. Rosson (1962) 202 Cal.App.2d 480, 486.) Thus, that the original application had been modified to contain alleged victim 2’s name was an operative fact which was properly admitted as nonhearsay evidence.

Alleged victim 2 informed the detective he had been contacted by personnel from Chaparral whom he told he had never applied for credit. Defense counsel objected on the grounds that the statement was nonresponsive and double hearsay. The magistrate sustained the objection “as to statements by [alleged victim 2] for the purposes of—for the truth of the matter asserted; however it would be admitted only for the purposes of showing subsequent course of conduct and the investigation conducted by” the detective. The People then asked the detective whether alleged victim 2 told the detective whether he had ever made a purchase from Chaparral. The detective responded that alleged victim 2 said he never had. The detective testified that alleged victim 2 told the detective he neither knew alleged victim 1 nor did he ever give her his information.

At the hearing on the section 995 motion, defense counsel contended alleged victim 2’s statement to the detective “that he never applied for credit with” Chaparral, consisted of “multiple layers of hearsay.” However, the court stated: “But the witness can tell [the detective] through Prop[osition] 115, I never applied for credit. If I told the deputy right now, I never applied for credit, he could testify to that on the stand. He could.” Defense counsel replied: “The statement is him speaking with someone at Chaparral Motor Sports; right? So that’s that second layer of hearsay.” The court responded: “I see your point in that he said he told Chaparral Motors that he had never applied, but the Court extrapolated that not as hearsay that he never applied. I don’t care what he told somebody. He’s telling a [detective], I never applied. I got a call. I never applied. I told these people that.” Thus, alleged victim 2’s statement that he had been contacted by personnel from Chaparral whom he told he had never applied for credit would be properly admitted as single layer hearsay under Proposition 115. Therefore, sufficient evidence also supported the magistrate’s order holding defendant to answer for identity theft in count 2.

III. DISPOSITION

The judgment granting the section 995 motion is reversed and the matter is remanded for further proceedings.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS