Stanford Law School - Robert Crown Law Library

Filed 1/22/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S104995
v.
) Ct.App.
3
C035564
ROOSEVELT LORENZO TONEY,
San Joaquin County
Defendant and Respondent.
Super. Ct. No. SF078107A

At issue here is the interplay between certain subdivisions of two Penal
Code statutes, sections 1538.5 and 871.5.1
Section 1538.5 sets out the procedures for defense motions to suppress
evidence in criminal cases. Its subdivision (p) generally prohibits the prosecution
from refiling dismissed charges if the defendant’s suppression motion “has been
granted twice.”
Section 871.5 pertains to actions dismissed at a preliminary hearing by a
magistrate.2 Section 871.5’s subdivision (a) gives the prosecution the option of

1
Further statutory references are to the Penal Code.
2
The “magistrate,” who in a felony case presides at the preliminary hearing
to decide whether the evidence is sufficient to hold a defendant to answer
(§§ 859b, 861), is a judicial officer with “power to issue a warrant for the arrest of
a person charged with a public offense” (§ 807). Judges of the Supreme Court, the
Courts of Appeal and the superior court are magistrates. (§ 808.) “[W]hen sitting
as magistrates,” judges of these courts “have the jurisdiction and powers conferred
by law upon magistrates, and not those which pertain to their respective judicial
offices.” (People v. Crespi (1896) 115 Cal. 50, 54.)
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asking the superior court “to compel the magistrate to reinstate” the dismissed
complaint.
In this felony drug offense case, the superior court granted defendant’s
motion to suppress evidence and dismissed the case, No. SC063235A, on the
prosecution’s motion. (§ 1385, subd. (a).) Thereafter, based on the same charges,
the prosecution filed a second complaint, No. SF078107A. At the preliminary
hearing, the magistrate granted defendant’s suppression motion and dismissed the
case for insufficient evidence. (§ 871.) The prosecution then sought to have the
superior court “compel the magistrate to reinstate the complaint” under section
871.5, subdivision (a). The court denied the motion, citing subdivision (p) of
section 1538.5, which prohibits the refiling of dismissed charges if the defendant’s
suppression motion “has been granted twice.” The Court of Appeal affirmed. We
reverse.
I
As noted at the outset, we here consider the interplay between certain
subdivisions of two statutes, sections 1538.5 and 871.5.
Section 1538.5, subdivision (a)(1) describes the procedures governing a
defense motion to suppress “any tangible or intangible thing obtained as a result of
a search or seizure” in a criminal case.
Subdivision (j) of section 1538.5 pertains to suppression motions in felony
cases brought before a magistrate at a preliminary hearing. Pertinent here is that
part of subdivision (j) allowing the prosecution certain remedies after the
magistrate grants a suppression motion and does not hold the defendant to answer:
“[T]he people may file a new complaint or seek an indictment after the
preliminary hearing, and the ruling at the prior hearing [on the suppression
motion] shall not be binding in any subsequent proceeding, except as limited by
subdivision (p). In the alternative, the people may move to reinstate the complaint
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. . . pursuant to Section 871.5.” (Italics added.) We now turn to section 1538.5,
subdivision (p) and section 871.5.
Subdivision (p) of section 1538.5 states in relevant part: “If a defendant’s
motion to return property or suppress evidence in a felony matter has been granted
twice, the people may not file a new complaint or seek an indictment in order to
relitigate the motion . . . as otherwise provided by subdivision (j), unless the
people discover additional evidence relating to the motion that was not reasonably
discoverable at the time of the second suppression hearing.” (Italics added.)
Section 871.5 provides in subdivision (a): “When an action is dismissed by
a magistrate [under various statutes including section 871] the prosecutor may
make a motion in the superior court within 15 days to compel the magistrate to
reinstate the complaint . . . .” And it states in subdivision (c): “The superior court
shall hear and determine the motion on the basis of the record of the proceedings
before the magistrate.” (§ 871.5, subd. (c).)
We must determine whether, as construed by the Court of Appeal, these
provisions precluded the superior court from compelling reinstatement of a
complaint under section 871.5, subdivision (a) after the magistrate at the
preliminary hearing had granted defendant’s second suppression motion and
dismissed a second complaint for insufficient evidence.
In construing any statute, “[w]ell-established rules of statutory construction
require us to ascertain the intent of the enacting legislative body so that we may
adopt the construction that best effectuates the purpose of the law.” (Hassan v.
Mercy American River Hospital (2003) 31 Cal.4th 709, 715.) We begin by
examining the words themselves “because the statutory language is generally the
most reliable indicator of legislative intent.” (Ibid.; People v. Jefferson (1999) 21
Cal.4th 86, 94.) “The words of the statute should be given their ordinary and usual
meaning and should be construed in their statutory context.” (Hassan, supra, at p.
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715; see also People v. Robles (2000) 23 Cal.4th 1106, 1111.) If the statutory
language is unambiguous, “we presume the Legislature meant what it said, and the
plain meaning of the statute governs.” (People v. Robles, supra, at p. 1111;
People v. Castenada (2000) 23 Cal.4th 743, 747.) With these rules in mind, we
now discuss in greater detail subdivisions (j) and (p) of section 1538.5, as well as
section 871.5.
II
When the magistrate at a preliminary hearing grants a defense motion to
suppress evidence, declines to hold the defendant to answer for the charged
offenses, and consequently dismisses the complaint, subdivision (j) of section
1538.5 gives the prosecution three options: It may (1) “file a new complaint”;
(2) “seek an indictment after the preliminary hearing”; or (3) “move to reinstate
the complaint . . . pursuant to Section 871.5.” (Ibid.)
With respect to the first two options (filing a new complaint or seeking an
indictment after the preliminary hearing), subdivision (j) of section 1538.5
conditions the availability of each upon a limitation set out in subdivision (p) of
section 1538.5. Subdivision (p) of that same statute prohibits the prosecution from
filing a new complaint or seeking an indictment if the defendant’s suppression
motion has already been “granted twice,” unless the prosecution has discovered
“additional evidence relating to the [suppression] motion that was not reasonably
discoverable at the time of the second suppression hearing.” (§ 1538.5, subd. (p).)
The third option the prosecution has after the magistrate at the preliminary
hearing has granted a defendant’s suppression motion and dismissed the case is to
file a motion “to reinstate the complaint . . . pursuant to Section 871.5.” (§ 1538.5,
subd. (j).) Notably, this third option does not have the limitation expressly
applicable to the first two options under subdivision (p) of section 1538.5. As
mentioned earlier, that subdivision, absent new evidence, in plain and unequivocal
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language expressly prohibits the People from filing a new complaint or seeking an
indictment after the preliminary hearing if the defendant’s suppression motion
“has been granted twice.” But the Legislature did not make the prosecution’s third
option subject to the limitation contained in subdivision (p).
To summarize: When a magistrate at the preliminary hearing grants a
defendant’s second motion to suppress evidence and then dismisses the case for
insufficient evidence, subdivision (p) of section 1538.5 prohibits the prosecution
from filing a new complaint unless the prosecution has discovered new evidence
pertaining to the suppression motion. But nothing in that subdivision prohibits the
superior court from granting the prosecution’s motion under section 871.5,
subdivision (a) “to compel the magistrate to reinstate the complaint,” even if the
defendant has twice been successful in having the evidence suppressed. (See
§ 1538.5, subd. (p).)
The Court of Appeal here acknowledged that subdivision (a) of section
871.5 “facially permits the review of any complaint dismissed pursuant to section
871.” But the court concluded that to reinstate a complaint under section 871.5
would violate section 1538.5’s subdivision (p), which precludes the prosecution
from filing a new complaint after a defendant’s suppression motion “has been
granted twice” unless the prosecution discovers new evidence relevant to the
suppression motion. To allow reinstatement of the complaint under section 871.5
would, according to the Court of Appeal, give the prosecution a third chance to
litigate a defendant’s twice-granted suppression motion. Not so.
In determining whether to compel reinstatement of a complaint dismissed
after the granting of a defendant’s suppression motion by the magistrate at a
preliminary hearing, the superior court reviews the legal soundness of the
magistrate’s ruling on the suppression motion (People v. Matelski (2000) 82
Cal.App.4th 837, 844-846; Vlick v. Superior Court (1982) 128 Cal.App.3d 992,
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998-999) based on “the record of the proceedings before the magistrate” (§ 871.5,
subd. (c)). Thus, contrary to the Court of Appeal’s reasoning, a motion brought by
the prosecution under section 871.5 is not a relitigation of the defendant’s
suppression motion. Instead, it is simply a means to have the superior court
determine the legal propriety of the magistrate’s dismissal of the complaint after
granting the defendant’s motion to suppress evidence.
Defendant contends that reinstatement of the complaint in this case would
violate the two-dismissal rule of section 1387, subdivision (a). We disagree. That
subdivision provides in relevant part: “An order terminating an action pursuant to
this chapter, or Section . . . 871 . . . is a bar to any other prosecution for the same
offense if it is a felony . . . and the action has been previously terminated pursuant
to this chapter, or Section . . . 871 . . . .” (Ibid.) These requirements, defendant
asserts, are met here. Defendant notes that the superior court’s dismissal of the
original complaint charging him with the June 12, 1998 felony drug offenses (No.
SC063235A) qualifies the action as having “previously been terminated pursuant
to this chapter,” because the dismissal was under section 1385, subdivision (a), a
provision appearing in the same “chapter” as section 1387. (Pen. Code, tit. 10,
ch. 8.) Defendant further observes that the dismissal of the June 12, 1998 drug
offenses in this case (No. SF078107A) qualifies as a second dismissal under
section 1387 because the magistrate “terminat[ed] the action pursuant to . . .
Section . . . 871.” Defendant then argues that after these two dismissals (the first
by the superior court and the second by the magistrate upon the prosecution’s
refiling of the dismissed charges), reinstatement of the complaint in case No.
SF078107A would be barred by section 1387, subdivision (a) as another
“prosecution for the same offense.” As we explain below, defendant is wrong in
characterizing reinstatement of a complaint under section 871.5 as another
prosecution for the same offense.
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In Ramos v. Superior Court (1982) 32 Cal.3d 26 (Ramos), this court
discussed the relationship between section 1387’s two-dismissal rule and section
871.5’s provision for reinstatement of a complaint. Ramos was a capital murder
case in which the magistrate at the preliminary hearing dismissed both the murder
charge and the financial-gain special-circumstance allegation for insufficient
evidence. Thereafter, the prosecution alleged the same charges in a second
complaint. A different magistrate held the defendant to answer on the murder
charge but dismissed the special circumstance allegation. After this second
dismissal of the special circumstance allegation, the prosecution filed an
information in superior court charging the defendant with murder and alleging the
same special circumstance, but doing so “without seeking reinstatement of the
dismissed special circumstance allegation under section 871.5.” (Ramos, supra, at
p. 29.) The superior court denied the defendant’s motion to strike the special
circumstance allegation. We then granted the defendant’s petition for writ of
prohibition. We concluded that after a second dismissal of the special
circumstance allegation, further proceedings on that allegation were barred by
section 1387, subdivision (a) as an “ ‘other prosecution for the same offense.’ ”
(Ramos, supra, at p. 36.)
Pertinent here is the comment in Ramos that this court’s “interpretation of
section 1387 [did] not leave the People without means to challenge a second order
of a magistrate dismissing all or a portion of a complaint.” (Ramos, supra, 32
Cal.3d at p. 36.) We observed that the Legislature in 1980 “added a new Penal
Code provision—section 871.5—which provides the People with a specially
designed procedure for challenging a magistrate’s dismissal order.” (Ibid.) The
prosecution in Ramos had not followed that procedure, however. Instead, the
prosecution “attempted simply to ignore the second dismissal [of the special
circumstance allegation] by proceeding directly” to superior court and filing an
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information alleging the same special circumstance that had already been
dismissed twice. (Ramos, supra, at pp. 36-37.) Ramos thus reflects this court’s
view that section 1387’s two-dismissal rule will not bar reinstatement of a
complaint under section 871.5.3
DISPOSITION
Because the Court of Appeal erred in upholding the superior court’s denial
of the prosecution’s section 871.5 motion to reinstate the complaint in case
No. SF078107A., the matter is reversed and remanded for proceedings consistent
with this opinion.
KENNARD,
J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

3
We do not address another contention by defendant regarding the
prosecution’s appeal of the superior court’s dismissal of the original complaint,
No. SC063235A. Defendant argues that by appealing the merits of the superior
court’s ruling on defendant’s initial suppression motion, the prosecution is bound
by the decision rendered in that appeal. (§ 1538.5, subd. (j).) But as defendant
concedes, he failed to raise that issue in the Court of Appeal in this case. Thus, it
is not properly before us. (See Jimenez v. Superior Court (2002) 29 Cal.4th 473,
481.)
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Toney
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 95 Cal.App.4th 941
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S104995
Date Filed: January 22, 2004
__________________________________________________________________________________

Court:

Superior
County: San Joaquin
Judge: Bernard J. Garber

__________________________________________________________________________________

Attorneys for Appellant:

John D. Phillips, District Attorney, Kevin A. Hicks and David Wellenbrock, Deputy District Attorneys, for
Plaintiff and Appellant.

Dennis L. Stout, District Attorney (San Bernardino), Grover D. Merritt and Mark A. Vos, Deputy District
Attorneys, for California District Attorneys’ Association as Amicus Curiae on behalf of Plaintiff and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

William J. Arzbaecher III, under appointment by the Supreme Court, and Erlinda G. Castro, under
appointment by the Court of Appeal, for Defendant and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

David Wellenbrock
Deputy District Attorney
222 E. Weber Avenue, Room 202
Stockton, CA 95202
(209) 468-2400

William J. Arzbaecher III
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

10

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Opinion Information

Date:	Docket Number:
Thu, 01/22/2004	S104995

Disposition
Jan 22 2004	Opinion: Reversed

Dockets
Mar 7 2002	Petition for review filed   In Sacramento by counsel for appellant {The People}.
Mar 11 2002	Record requested
Mar 13 2002	Received Court of Appeal record   one doghouse
Apr 2 2002	Request for depublication (petition for review pending)   By the Attorney General.
Apr 17 2002	Petition for Review Granted (criminal case)   Votes: George C.J., Kennard, Baxter, Chin & Moreno JJ.
May 8 2002	Counsel appointment order filed   Upon request of respondent for appointment of counsel, the Central California Appellate Program is hereby appointed to represent respondent on his appeal now pending in this court. Respondent's brief on the merits shall be served and filed on or before thirty days from the date appellant's Opening Brief on the Merits is filed.
Jun 20 2002	Received:   Appellant's untimely Opening Brief on the Merits.
Jun 26 2002	Application for relief from default filed   By counsel for appellant {The people}.
Jun 26 2002	Opening brief on the merits filed   Appellant {The People}. / Filed with permission.
Jul 2 2002	Request for extension of time filed   In Sacramento by counsel for Respondent {Roosevelt Toney} requesting until August 26, 2002 to file respondent's answer brief on the merits.
Jul 9 2002	Extension of time granted   To August 26, 2002 to file respondent's answer brief on the merits.
Aug 23 2002	Request for extension of time filed   Respondent asking to Septmeber 25, 2002 to file Respondent's Answer Brief on the Merits.
Aug 29 2002	Extension of time granted   To September 25, 2002 to file Respondent's Answer Brief on the Merits.
Sep 26 2002	Received:   In Sacramento Respondent's Answer Brief on the Merits. 1 day late. ( Answer Brief and Request for Judicial Notice under same cover.}.
Oct 1 2002	Answer brief on the merits filed   and Request for Judicial Notice by counsel for Respondent {Roosevelt Toney}. (Filed under same cover)
Oct 3 2002	Received:   In Sacramento Respondent's Errata to Answer Brief on the Merits.
Oct 3 2002	Received:   In Sacramento Respondent's Amendement to Request for Judicial Notice.
Oct 15 2002	Request for extension of time filed   Appellant {The People} requesting 30 day extension ( November 20, 2002) to file Appellant's Reply Brief on the Merits.
Oct 17 2002	Extension of time granted   To November 20, 2002 to file Appellant's Reply Brief on the Merits.
Nov 18 2002	Reply brief filed (case fully briefed)   in Sacramento by counsel for appellant People
Dec 18 2002	Received application to file Amicus Curiae Brief   with separate brief>>Calif. District Attorneys' Assn [in support of aplt People]
Dec 27 2002	Permission to file amicus curiae brief granted   California District Attorney's Association in support of Appellant (The People). Answer due within twenty days.
Dec 27 2002	Amicus Curiae Brief filed by:   The California District Attorney's Association in support of Appellant (The People). Answer is due within twenty days.
Mar 28 2003	Filed:   Letter from David Wellenbrock re unavailability for oral argument 4/24-5/8 and 6/1-6/21.
Oct 1 2003	Case ordered on calendar   Wednesday, November 5, 2003 @ 1:30PM (Sacramento)
Oct 21 2003	Request for judicial notice granted   Respondent's request for judicial notice filed on October 1, 2002, and the amended request for judicial notice filed on October 3, 2002.
Nov 5 2003	Cause argued and submitted
Jan 22 2004	Opinion filed: Judgment reversed   and remanded for proceedings consistent with this opinion. Majority Opinion by Kennard, J., ------- Joined by George, CJ., Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Feb 24 2004	Remittitur issued (criminal case)
Mar 3 2004	Received:   Receipt for remittitur from 3 DCA.
May 24 2006	Compensation awarded counsel   Atty Arzbaecher - Central Calfornia Appellate Program

Briefs
Jun 26 2002	Opening brief on the merits filed
Oct 1 2002	Answer brief on the merits filed
Nov 18 2002	Reply brief filed (case fully briefed)
Dec 27 2002	Amicus Curiae Brief filed by:

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