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Name: People v. Konow
Case #: D037680
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/09/2002
Subsequent History: Rev. granted 11/6/02. Depublished.

The defendants were charged with marijuana sale, but the complaint was dismissed by the magistrate following the preliminary hearing pursuant to Penal Code section 1385 based on constitutional grounds. The prosecutor moved to reinstate the complaint in superior court, and the court granted that motion, holding that the dismissal was based on an erroneous interpretation of the law. The case was returned to municipal court and the defendants were held to answer. The magistrate stated that he had no discretion to entertain the 1385 motion under the superior court’s order. The defendants then filed a 995 motion to dismiss the complaint, which was granted, because the superior court judge who heard it ruled that the first superior court judge had no authority to limit the magistrate’s 1385 power. The People appealed, and the appellate court here reversed the order granting the 995 motion. The trial court erred because section 1385 does not confer a substantial right, and because section 995 does not give the trial court the right to review a decision made by a co-equal department of the superior court.