In Re Torres

Opinion

PUGLIA, P. J.

Petition for writ of habeas corpus in which review is sought of a superior court order under Penal Code section 871.5 reinstating a felony complaint which had been dismissed by the magistrate. We will hold that Penal Code section 871.5 provides for review of the challenged order by a statutory motion to dismiss the information (Pen. Code, § 995; all further statutory references are to sections of the Penal

[828]

Code). Since habeas corpus does not lie, the instant petition will be dismissed.

Petitioner was charged in a felony complaint filed in the Sacramento Municipal Court with multiple violations of section 273a, subdivision (1). A preliminary examination was held after which the magistrate ruled the evidence insufficient to hold defendant to answer, discharged her and dismissed the complaint. (§ 871.)

The People filed a motion in superior court under section 871.5 to compel reinstatement of the complaint. After hearing, the superior court ordered the complaint reinstated, expressing uncertainty as to whether the magistrate had employed the proper standard of proof in dismissing the complaint and discharging petitioner: “... it is not clear to the Court whether or not [the magistrate] used probable cause in his dismissing it, in which event that would be within his purview or if he applied reasonable doubt, in which event, as a matter of law, he would be wrong.”

The court remanded the matter for clarification of the standard of proof relied upon by the magistrate. On remand, the magistrate, without taking further evidence, ordered that petitioner be held to answer in the superior court.

An information was filed charging multiple violations of section 273a, subdivision (1), and petitioner was arraigned thereon. In this application for writ of habeas corpus, petitioner challenges the superior court’s order of reinstatement under section 871.5. Petitioner has not moved the superior court to set aside the information under section 995, claiming that relief pursuant to that section is inappropriate and unavailable. The instant petition alleges that “Petitioner has no plain, speedy and adequate remedy in the ordinary course of law in that no remedy has been provided for pretrial review of the Superior Court orders vacating the Magistrate’s order of discharge under the unique circumstances of this case ... A motion pursuant to . .. § 995 does not reach the jurisdiction of the Superior Court in remanding this case