People v. Draper

In People v. Draper (1996) 42 Cal. App. 4th 1627, the magistrate considered whether to reduce certain "wobbler" felonies to misdemeanors and, instead, dismissed them. ( Id. at p. 1629.) The court granted the section 871.5 motion and reinstated two "wobbler" counts and directed that one of those counts be reinstated as a felony. (Draper, at p. 1630.) On remand, the magistrate refused to consider whether to reduce the felony charge to a misdemeanor based upon the court's order after the section 871.5 hearing. (Draper, at pp. 1630-1631.) After arraignment, the superior court granted defendant's section 995 motion, contending the court that held the section 871.5 hearing erred by taking away the magistrate's discretion to reduce the felony to a misdemeanor. On appeal, the court held the section 995 motion should not have been granted because the magistrate had already considered whether to reduce the felonies to misdemeanors prior to dismissing the charges. "By arguing that, after the remand of the case by the superior court pursuant to section 871.5, the magistrate is entitled to yet another 'exercise of discretion' under section 17, subdivision (b)(5), respondent is essentially asking for a second bite out of the apple. Such a second bite is not even permitted much less mandated by the Penal Code sections involved." ( Draper, supra, 42 Cal. App. 4th at p. 1632.)