A magistrate’s dismissal is important, but a prosecutor may ask the superior court under Penal Code § 871.5 to reinstate a qualifying complaint or count. If you receive that motion, check what was dismissed, the ground in the magistrate’s order, what the prosecutor says was a legal error, and your next notice or custody order. Reinstatement is not automatic; the superior court decides this motion on the magistrate’s record.
What can the motion seek?
Section 871.5(a) lists the dismissal grounds to which it applies, including a dismissal under § 871 after a preliminary examination. It can also reach a dismissed portion of a case that cannot be charged by information under § 739. Compare the original complaint, transcript and written ruling with the motion: does it seek the whole complaint or only a count, and which listed dismissal provision does it invoke? A general statement that a case was “dismissed” does not answer whether this particular statute applies. (§ 871.5(a))
The statute gives the prosecutor 15 days after the dismissal to make the motion. That is not a universal deadline for you to file an opposition. Subdivision (b) requires notice to the defendant and magistrate and states the motion’s “only ground”: the magistrate erroneously dismissed the action or portion “as a matter of law.” These are short excerpts of § 871.5(b), not the full section. The superior court decides on the record of what occurred before the magistrate, not a new trial on guilt. Ask counsel to identify the claimed legal error and the particular testimony, exhibit or ruling on which it depends. (§ 871.5(c))
Get the motion and hearing record together
Preserve the complaint and each amended version, the dismissal and minute orders, the prosecutor’s motion and proof of notice, the preliminary-hearing transcript and exhibits, and any release, bail or custody order. Under § 871.5(d), the prosecutor may request a transcript within 10 days after dismissal; the clerk must deliver a transcript copy to each defendant on demand without cost. This transcript-request period is different from the prosecutor’s 15-day motion period. Ask counsel which record the superior court will have and when any response or hearing is set by the actual court papers.
The prosecution’s choice matters. If it litigates the § 871.5 motion to a decision, subdivision (c) prohibits refiling the dismissed action or portion. That consequence does not mean every dismissal immediately and permanently bars a new case; the separate California two-dismissal and refiling guide addresses another question. The California Supreme Court held in People v. Hyatt (2026) that § 871.5 was not categorically the prosecutor’s only review route: a direct appeal of the felony-complaint dismissal was available in that case. The actual filing and dismissal posture therefore matter; do not assume a motion or a direct appeal is available in every case.
If the superior court grants or denies it
If the court orders proceedings resumed, § 871.5(e) sets a period for the magistrate to resume proceedings and, when ordered, issue a commitment. Subdivision (a) permits the motion to request reinstatement of custodial status under the prior terms; it does not itself tell you whether a particular person must return to custody. Read the new order and speak with counsel about any appearance or release condition.
If the superior court denies a § 871.5 motion, subdivision (f) points to a prosecution appeal under § 1238(a)(9). If it grants reinstatement, the section describes a later defendant review route under §§ 995 and 999a, conditioned on being held to answer under § 872; subdivision (g) also addresses a defendant’s waiver of resumed proceedings and consent to an information. Those are procedural choices for the actual record, not a reason to disregard the current motion or notice. (§ 871.5(f)–(g))
The Law Offices of David S. Chesley can review the dismissed count, prosecutor’s filing and hearing record with you. Contact the firm or call (800) 755-5174 before making decisions about a pending hearing.