People v. Toney

Opinion

KENNARD, J.

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…