In Re Williams

We hold that a magistrate's refusal or failure to hold a defendant to answer on one count of a complaint constitutes a dismissal of that count, pursuant to Penal Code section 871, for purposes of section 1387, so that another dismissal bars prosecution for the offense.

Procedural History

On May 19, 1982, a preliminary hearing was held in Santa Clara Municipal Court before Judge Edward B. Pearce II. At the conclusion of the hearing, the court held petitioner to answer for receiving stolen property, but regarding a charge of burglary, the court said, “There will be no holding as to Count 1.”

On June 1, the district attorney, pursuant to section 739, filed an information charging petitioner with both offenses&emdash;burglary and receiving stolen property. On July 26, defense counsel moved to dismiss the information pursuant to section 995, arguing insufficiency of the evidence. On August 9, the superior court granted the motion on the burglary count and denied it on the charge of receiving stolen property.

On August 16, the superior court dismissed the case on motion of the district attorney, who noted that the People would refile both charges in the municipal court.

A…