I join the majority’s holding that since defendant received a preliminary examination within 10 court days of his rearraignment, that hearing complied with the time limits of section 859b; thus the court below correctly denied his motion to dismiss. I disagree, however, with the majority’s assertion that the power of a magistrate to discharge a defendant under section 871 is limited to a case in which the prosecution presents some but inadequate proof of probable cause. I believe that the magistrate’s power under that section should extend also to a case, such as the present one, in which the prosecution presents no proof whatever at the preliminary hearing. Thus I would conclude that the magistrate did not err when he granted defendant’s motion for a section 871 discharge after the prosecution announced its inability to proceed at the first preliminary hearing.
*16That discharge in itself suffices to authorize the prosecution to file a second complaint. Moreover, past cases demonstrate that when a defendant is rearraigned after a section 871 discharge, a new preliminary hearing is timely if held within 10 court days of the rearraignment. Consequently, it is not necessary for us to overrule People v. Peters (1978) 21 Cal.3d 749 [147 Cal.Rptr. 646, 581 P.2d 651] in order to reach the conclusion that defendant received a timely preliminary hearing and thus to sustain the superior court’s ruling denying defendant’s motion to dismiss.
Section 859b requires that “the preliminary hearing shall be held within 10 court days of the date defendant is arraigned.”1 As defendant recognizes, however, under section 859b the failure to hold a preliminary hearing within 10 days of a defendant’s initial arraignment does not forever bar the prosecution from proceeding on the underlying charge against the defendant. In this regard, defendant explicitly acknowledges that if the original proceedings against him had properly been dismissed, the prosecution would have been free to refile the identical burglary charge and, in that event, the 10-day period of section 859b would have begun to run anew upon his rearraignment.
Defendant claims, however, that the time period did not begin to run anew in this case because the original information was never lawfully dismissed. Defendant points out that whereas the current version of section 859b specifically authorizes the magistrate to dismiss an action for failure to provide a timely preliminary hearing, former section 859b contained no such explicit authority. Citing People v. Peters, supra, 21 Cal.3d 749, which held that a magistrate was not authorized to dismiss an action “in the furtherance of justice” under section 1385 as it then read,2 defendant argues that prior to the 1980 statutory revisions a magistrate similarly lacked authority to dismiss an action for failure to comply with the 10-day limit of section 859b.3
*17Defendant relies on Court of Appeal decisions which hold that a rearraignment following an invalid dismissal does not start the 10-day period of section 859b running anew. (Carraway v. Superior Court (1981) 118 Cal.App.3d 150 [172 Cal.Rptr. 453]; Simmons v. Municipal Court (1980) 109 Cal.App.3d 15 [167 Cal.Rptr. 608]; Johnson v. Superior Court (1979) 97 Cal.App.3d 682 [158 Cal.Rptr. 899]; Coleman v. Superior Court (1981) 116 Cal.App.3d 431, 436 [172 Cal.Rptr. 135] (dictum).) Defendant’s contention, however, fails to accord proper significance to the fact that, when the prosecution indicated on February 14 that it was unable to proceed on the initial information, the magistrate entered an order which not only purported to “dismiss” that information but also to “discharge” the defendant. As we shall see, even if the magistrate lacked formal authority to dismiss the information, he did have the authority to discharge the defendant, and numerous cases demonstrate that a rearraignment after such a discharge commences the period of section 859b anew.
Section 871, a provision that has been a part of California preliminary examination procedures for more than a century, explicitly grants a magistrate authority to discharge a defendant when the prosecution fails to present sufficient proof at the preliminary hearing to warrant binding him over for trial.4 Seizing upon statutory language that the magistrate may discharge the defendant “after hearing the proofs,” three Court of Appeal decisions declare that section 871 applies only to cases in which the prosecution presents some, but inadequate, proof, and is inapplicable when as in the present case the prosecutor presents no proof whatsoever. (Coleman v. Superior Court, supra, 116 Cal. App.3d 431, 437; Simmons v. Municipal Court, supra, 109 Cal.App.3d 15, 22; Johnson v. Superior Court, supra, 97 Cal.App.3d 682, 685.)
In my opinion, however, such a restrictive interpretation of section 871 is inconsistent with the purpose of that section. Section 871 serves to protect a defendant against whom the prosecutor presents insufficient *18evidence to warrant holding the defendant for trial. If the prosecutor presents no evidence at all, the prosecution evidence is, a fortiori, insufficient. It would be senseless to hold that in such a case the magistrate cannot discharge the defendant, but that he could do so if the prosecution merely presented a scintilla of inadequate or irrelevant evidence.
Moreover, an expansive interpretation of section 871—permitting the magistrate to discharge a defendant when the prosecution has not presented adequate proof at a timely hearing—finds additional support from the consideration that the alternative view advanced by defendant would lead to an anomalous procedural quagmire. If a magistrate had no power to discharge a defendant when the prosecution refused to proceed within the 10-day limit of section 859b, there would be no means consistent with People v. Peters, supra, by which the magistrate could proceed with the case except by holding an untimely preliminary hearing in violation of section 859b. Furthermore, on the occasion of this untimely hearing the magistrate could not discharge the defendant unless the prosecution obliged him by going through the motions of attempting to prove probable cause, even though it would be clear that any finding of probable cause would be fatally tainted by the untimely nature of the hearing. As the Court of Appeal stated in Guerrero v. Superior Court (5 Civ. No. 5495): “We do not believe that the Legislature could have intended or that logic, reason or public policy requires such circumventing gamesmanship when the result can be accomplished more directly by simply recognizing that the magistrate has authority to discharge a defendant when no proof at all is presented by the prosecution upon the preliminary hearing.”5
The majority opinion escapes this procedural quagmire by overruling People v. Peters and holding that a magistrate has the power to dismiss the complaint when the prosecution fails to comply with the 10-day limit of section 859. That quagmire was created, however, only by the majority’s illogical conclusion that the magistrate cannot discharge the defendant under section 871 despite a total failure of proof by the prosecution. I would reject that conclusion, and hold that section 871 authorizes a magistrate to discharge a defendant whenever the prosecution fails to present sufficient proof, or any proof whatsoever, to justify holding the defendant for trial.
*19Having reached this conclusion with respect to the application of section 871, resolution of the present case becomes clear. When the prosecutor announced on February 14, the date set for preliminary hearing following the first arraignment, that he was unable to proceed, the magistrate properly discharged the defendant under section 871. Numerous cases, both before and subsequent to Peters, indicate that following a section 871 discharge the People can file and prosecute a new complaint. (See People v. Backus (1979) 23 Cal.3d 360, 396 [152 Cal.Rptr. 710, 590 P.2d 837]; People v. Uhlemann (1973) 9 Cal.3d 662, 665-666 [108 Cal.Rptr. 657, 511 P.2d 609]; People v. Granderson (1981) 118 Cal.App.3d 907, 910 [173 Cal.Rptr. 685].)6
As the majority opinion acknowledges, when the People file a new complaint and rearraign the defendant, the 10-day period of section 859b runs anew from the date of rearraignment. That conclusion follows from the common and judicially endorsed practice of filing new charges following a section 871 discharge. Unless the 10-day period of section 859b began anew, the filing of a new information would be pointless; since the 10-day period from the first arraignment has already run, the magistrate would have to discharge the defendant on the new information. The absurd result would be that the prosecution, following a section 871 discharge, could not proceed by information at all, but only by indictment. The cited cases (People v. Backus; People v. Uhlemann; People v. Granderson), however, impose no such limitation on the prosecution’s power, but permit the prosecution after a section 871 discharge to proceed either by new information or by indictment.
The conclusion that the period of section 859b commences anew follows also by analogy to other statutes designed to guarantee a defendant’s right to a speedy trial. The 60-day period within which a defendant must be brought to trial (§ 1382, subd. 2) begins anew with the filing of a new information or indictment. (See Bellizzi v. Superior *20Court (1974) 12 Cal.3d 33, 38 [115 Cal.Rptr. 52, 524 P.2d 148].) The same rule applies to the 90-day period prescribed by section 1381. (People v. Godlewski (1943) 22 Cal.2d 677, 683 [140 P.2d 381].)
In summary, when the prosecutor announced on February 14 that he was unable to proceed, the magistrate properly ordered the discharge of the defendant. Following such a discharge, the prosecution filed a new complaint and rearraigned defendant. Since under settled practice the time limit of section 859b recommenced with the filing of the new complaint, defendant’s preliminary hearing, held within 10 court days of rearraignment, was timely.
Richardson, J., and Newman, J., concurred.
The petition of real party in interest for a rehearing was denied November 5, 1981. Tobriner, J., was of the opinion that the petition should be granted.
The relevant paragraph of section 859b reads as follows: “Both the defendant and the People have the right to a preliminary examination at the earliest possible time, unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” The 1980 revision of section 859b did not amend this language.
Section 1385, prior to the 1980 revisions, provided that “The court may, either of its own motion or upon the application of the prosecuting attorney, and in the furtherance of justice, order an action to be dismissed.” Peters held that a magistrate was not a “court” within the meaning of this section.
At this point the defendant becomes entangled in his own reasoning. At the preliminary hearing on February 29, defendant moved to dismiss the action on the theory that *17the hearing was untimely under section 859b. Since he now claims that the magistrate lacked authority to dismiss the action, he cannot posit error on the magistrate’s denial of that motion. Thus defendant must now argue that the superior court erred in failing to grant his motion under section 995 following the preliminary hearing even though he can point to no error by the magistrate in conducting that hearing.
Section 871, prior to its revision in 1980, read as follows: “If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged.... ”
We granted a hearing in Guerrero v. Superior Court (5 Civ. 5495) because the Court of Appeal opinion in that case conflicted with the Court of Appeal opinion in the instant case. Pending argument, however, Guerrero died and we therefore dismissed the matter as moot.
The majority asserts that extending section 871 to a case in which the prosecutor announces his inability to proceed on the scheduled date for preliminary hearing will destroy the protective purpose of the 10-day limitation in section 859b. Nothing in the statutes, it points out, would prevent the prosecutor from filing charges, announcing an inability to proceed, filing new charges after the defendant is discharged, again announcing an inability to proceed, and so on indefinitely. The fact of the matter is that, until the 1980 legislation took effect, neither section 859b nor 871 protected defendant against multiple refiling of charges. A defendant’s protection from such improper conduct lay in the judicial power to prevent harassment of the defendant by successive refiling of charges. (See People v. Uhlemann, supra, 9 Cal.3d 662, 669; Simmons v. Municipal Court, supra, 109 Cal.App.3d 15, 25.) Defendant makes no claim of harassment in the present case.