A magistrate’s Penal Code section 871 dismissal of murder charges based on a legal conclusion did not divest the district attorney of the discretion to recharge them in the information under section 739. In December 2019, defendant was charged with two counts of murder and driving under the influence. The magistrate declined to hold him on the two murder counts due to a lack of probable cause under section 871. Two weeks later, under section 739, the district attorney filed an information recharging the same two murder counts. The court granted defendant’s 995 motion to dismiss the murder counts. The district attorney then filed a complaint charging defendant with the two counts of murder, and other charges. Defendant moved to dismiss the murder counts under section 1387 (the two-dismissal rule). The trial court found section 1387 did not apply, but granted the motion to dismiss the murder charges reasoning that the prosecutor was not permitted to recharge the murder counts under section 739 because the previous magistrate had made factual findings that defendant did not have the requisite state of mind for the murder charges. Defendant pleaded to the remaining charges. The People appealed. Held: Reversed. If a magistrate holds the defendant to answer a charged offense, the prosecutor, under section 739, can file an information charging defendant with the initial charges and any offense “shown by the evidence taken before the magistrate to have been committed.” However, the district attorney is precluded from recharging dismissed counts where factual findings made by the magistrate are fatal to the allegation that the offense was committed. Here, the magistrate declined to hold defendant to answer to the murder counts, finding he did not have the requisite state of mind under People v. Watson (1981) 30 Cal.3d 290. This was a legal and not a factual conclusion as to the sufficiency of otherwise undisputed evidence presented at the preliminary hearing. As such, the prosecutor was authorized to recharge the murder counts under section 739.

A dismissal under section 871 and a subsequent dismissal under section 995 in the same action constitutes one termination for purposes of the “two-dismissal rule” under section 1387. The two-dismissal rule of section 1387 “bars further prosecution of a felony if the action against the defendant has been twice previously terminated.” However, when the superior court grants a defendant’s section 995 motion to dismiss counts recharged under section 739 despite a magistrate’s previous dismissal of the charges under section 871, section 1387(c)(3) treats the magistrate’s dismissal and the superior court’s dismissal as a single termination. The superior court’s later review of the magistrate’s findings under section 995 is not a separate proceeding: both the magistrate’s dismissal under section 871 and the superior court’s subsequent dismissal under section 995 are successive examinations of the same preliminary hearing in the same action. Therefore, here, the superior court’s dismissal under section 995 of two counts of murder, recharged by information after the magistrate dismissed the counts under section 871 in the same action, was not a bar to further prosecution under the two-dismissal rule.