Dianda

Penal Code section 871.5 specifies that “When an action is dismissed by a magistrate ... the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint. . . -” We are required to determine, what it is that a prosecutor must do to “make a motion.”

Following the dismissal of criminal complaints against defendants Mark Dianda, James Smothers, and Ronald Phoenix, the prosecutor filed separate written motions pursuant to this statute for orders reinstating the complaints. Each motion was filed within 15 days of the respective dismissal, but none was heard until after that period had elapsed. The superior court denied all of the motions on the ground that it had no jurisdiction because the motion was not “before” the court within 15 days of its filing. The court explained its rulings as follows: “[I]f you read the statute the way I read it, the prosecutor may make a motion in Superior Court.... There is a difference between making a motion and noticing a motion. . . . What I am saying is that your motion has to be before me within fifteen days, in front of me. As I understand, within fifteen days before me at which…