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Name: People v. Toney
Case #: S104995
Court: CA Supreme Court
District CalSup
Opinion Date: 01/22/2004
Summary

When a defendant has brought a successful suppression motion in the superior court, after which the prosecution has dismissed and refiled the action, and it has been subsequently dismissed again pursuant to Penal Code section 871 after a second successful suppression motion brought at the preliminary hearing, can the prosecution move to reinstate the complaint pursuant to Penal Code section 871.5, on the ground that the magistrate erred in granting the second suppression motion? Yes. Moving to reinstate the complaint in this situation is barred by neither the two-dismissal rule of Penal Code section 1387 nor by the provisions of Penal Code section 1538.5, subdivisions (j) and (p), which preclude a third “relitigation” of a suppression motion that has twice been granted (i.e., in the absence of additional evidence that was not reasonably discoverable at the time of the second suppression hearing). Moving to reinstate a twice-dismissed complaint pursuant to Penal Code section 871.5 in this situation constitutes neither another “prosecution for the same offense” within the meaning of Penal Code section 1387, subdivision (a), nor “relitigation” of the suppression motion within the meaning of Penal Code section 1538.5, subdivision (p).