Toney

At issue here is the interplay between certain subdivisions of two Penal Code statutes, sections 1538.5 and 871.5.

Section 1538.5 sets out the procedures for defense motions to suppress evidence in criminal cases. Its subdivision (p) generally prohibits the prosecution from refiling dismissed charges if the defendant’s suppression motion “has been granted twice.”

Section 871.5 pertains to actions dismissed at a preliminary hearing by a magistrate. Section 871.5’s subdivision (a) gives the prosecution the option of asking the superior court “to compel the magistrate to reinstate” the dismissed complaint.

In this felony drug offense case, the superior court granted defendant’s motion to suppress evidence and dismissed the case, No. SC063235A, on the prosecution’s motion. (§ 1385, subd. (a).) Thereafter, based on the same charges, the prosecution filed a second complaint, No. SF078107A. At the preliminary hearing, the magistrate granted defendant’s suppression motion and dismissed the case for insufficient evidence. (§ 871.) The prosecution then sought to have the superior court “compel the magistrate to reinstate the complaint” under section 871.5, subdivision (a). The…