What is the legal test for consent to renew a criminal charge under section 17(b)(5) of the Criminal Code?

When the court is asked to dismiss a prosecution after having fixed the offense as a misdemeanor under section 17(b)(5), the court may reconsider that determination and consent to a new felony prosecution by an appropriate finding or declaration in the minute order which declares its reasons for dismissal. (See People v. Orin, supra, 13 [47 Cal.App.3d 319] Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193.) Here the municipal judge distinctly withheld consent to the district attorney's attempt to restore the offense to a felony level. A transcript of the oral proceedings at the time of dismissal contains a colloquy set forth in the margin. ⁵

The judge's courtroom statement to petitioner requires interpretation. No reasonable interpretation may be drawn other than this--that the municipal judge viewed his decision under section 17(b)(5) as a deliberate judicial act; that the judge was thoroughly conscious of his constitutional prerogatives as an 'independent arbiter' exercising a judicial function immune from prosecutorial interference (Esteybar v. Municipal Court,supra, 5 Cal.3d at p. 527, 95 Cal.Rptr. 524, 485 P.2d 1140); that the judge opposed any ex parte attempt of the district attorney to renew a felony prosecution after the offense had been judicially classed as a misdemeanor; being unrepresented in the superior court, the judge sought to utilize the defendant's court-appointed counsel as a conduit for transmitting the judge's opposition to the superior court.