Section 871.5 Of Chapter 7. Examination Of The Case, And Discharge Of The Defendant, Or Holding Him To Answer From California Penal Code >> Title 3. >> Part 2. >> Chapter 7.
871.5
. (a) When an action is dismissed by a magistrate pursuant to
Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of
this code or Section 41403 of the Vehicle Code, or a portion thereof
is dismissed pursuant to those same sections which may not be charged
by information under Section 739, the prosecutor may make a motion
in the superior court within 15 days to compel the magistrate to
reinstate the complaint or a portion thereof and to reinstate the
custodial status of the defendant under the same terms and conditions
as when the defendant last appeared before the magistrate.
(b) Notice of the motion shall be made to the defendant and the
magistrate. The only ground for the motion shall be that, as a matter
of law, the magistrate erroneously dismissed the action or a portion
thereof.
(c) The superior court shall hear and determine the motion on the
basis of the record of the proceedings before the magistrate. If the
motion is litigated to decision by the prosecutor, the prosecution is
prohibited from refiling the dismissed action, or portion thereof.
(d) Within 10 days after the magistrate has dismissed the action
or a portion thereof, the prosecuting attorney may file a written
request for a transcript of the proceedings with the clerk of the
magistrate. The reporter shall immediately transcribe his or her
shorthand notes pursuant to Section 869 and file with the clerk of
the superior court an original plus one copy, and as many copies as
there are defendants (other than a fictitious defendant). The
reporter shall be entitled to compensation in accordance with Section
869. The clerk of the superior court shall deliver a copy of the
transcript to the prosecuting attorney immediately upon its receipt
and shall deliver a copy of the transcript to each defendant (other
than a fictitious defendant) upon his or her demand without cost.
(e) When a court has ordered the resumption of proceedings before
the magistrate, the magistrate shall resume the proceedings and when
so ordered, issue an order of commitment for the reinstated offense
or offenses within 10 days after the superior court has entered an
order to that effect or within 10 days after the remittitur is filed
in the superior court. Upon receipt of the remittitur, the superior
court shall forward a copy to the magistrate.
(f) Pursuant to paragraph (9) of subdivision (a) of Section 1238
the people may take an appeal from the denial of the motion by the
superior court to reinstate the complaint or a portion thereof. If
the motion to reinstate the complaint is granted, the defendant may
seek review thereof only pursuant to Sections 995 and 999a. That
review may only be sought in the event the defendant is held to
answer pursuant to Section 872.
(g) Nothing contained herein shall preclude a magistrate, upon the
resumption of proceedings, from considering a motion made pursuant
to Section 1318.
If the superior court grants the motion for reinstatement and
orders the magistrate to issue an order of commitment, the defendant,
in lieu of resumed proceedings before the magistrate, may elect to
waive his or her right to be committed by a magistrate, and consent
to the filing of an amended or initial information containing the
reinstated charge or charges. After arraignment thereon, he or she
may adopt as a motion pursuant to Section 995, the record and
proceedings of the motion taken pursuant to this section and the
order issued pursuant thereto, and may seek review of the order in
the manner prescribed in Section 999a.