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Name: People v. Toney
Case #: C035564
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/30/2002
Subsequent History: Opinion modified of 1/30/02; Rehg. denied 2/25/02. Rev. granted 4/17/02. Depublished.

Toney was charged with narcotics offenses based on evidence seized during the search of his car following a traffic stop. His first motion to suppress the evidence was granted, and the case was dismissed on the prosecution’s motion, pursuant to Penal Code section 1385. The prosecution refiled the charges, and Toney prevailed in a second suppression hearing. The new complaint was dismissed pursuant to Penal Code section 871, and the People sought to reinstate it pursuant to section 871.5. That motion was denied, and the prosecution appealed. Here, the appellate court affirmed. The prosecution has two remedies where a dismissal follows a suppression of evidence in superior court. They can appeal the dismissal if it was entered on the court’s own motion, or they can file a second complain to relitigate the suppression motion if dismissal was on the prosecution’s motion. They cannot seek a third remedy, reinstatement of a second complaint pursuant to section 871.5, because that remedy is limited to review of an initial complaint. Here, the prosecution lost their first remedy because the first dismissal was entered upon the prosecution’s own motion. As an alternative, they filed a second complaint, which resulted in a dismissal, thereby exhausting their remaining remedy. They were therefore precluded from further review.