In Re Williams

[981]

Opinion

BARRY-DEAL, J.

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,

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for purposes of section 1387, so that another dismissal bars prosecution for the offense.

Procedural History

On May 19, 1982,

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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 second preliminary hearing was held before a different municipal court judge on December 20, and petitioner was held to answer on both charges. The district attorney filed an information charging both offenses on December 27. Petitioner entered a plea of not guilty and waived time.

On March 1, 1983, petitioner moved to dismiss pursuant to section 995, again arguing insufficiency of the evidence. On March 21, 1983, the court denied the motion as to both counts. The matter proceeded to trial. Petitioner then waived a jury on condition that the charged burglary be stipulated to be in the second degree and that if convicted he would not be sentenced to state prison.