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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Richard HERNANDEZ, Real Party in Interest.

No. B058317.

Decided: May 31, 1991

Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty., and Martha E. Bellinger, Deputy Dist. Atty., for petitioner. No appearance by respondent. Norma Mitchell, Santa Monica, for real party in interest.

The People of the State of California seek a writ of mandate directing the superior court to vacate its May 6, 1991, order that the municipal court either release real party on his own recognizance or conduct a preliminary examination forthwith.

On April 9, 1991, real party was arraigned on a felony complaint charging him and ten co-defendants with murder in violation of Penal Code section 187, subdivision (a).1  They each pled not guilty and were remanded to custody pending their preliminary examination which was calendared for April 19, 1991.

On that date, however, it was necessary for one of the co-defendant's attorney to request a continuance as he was engaged in jury trial.   All other defendants, except real party, joined in the motion.   Real party not only declined to concur in the continuance, he urged he should be released on his own recognizance pursuant to sections 859b and 1318.   These sections provide, in pertinent part, that preliminary examinations are to be held within 10 days following a defendant's arraignment and continuances are to be granted only for good cause.   Further, should the examination be continued beyond that period then, except under certain circumstances, the defendant should be released without bond.   Citing section 1050.1, the magistrate denied this motion and reset the joint preliminary examinations for June 3, 1991.

When a similar motion was denied on April 23, 1991, the tenth day following real party's arraignment on the felony complaint, he filed a habeas corpus petition in the superior court.   That court issued the order the People here challenge.

On May 14, 1991, we advised respondent we were considering issuing a peremptory writ of mandate in the first instance unless it set aside that order and issued a new and different order denying real party the relief requested.

The People contend, inter alia, that respondent “acted in excess of its jurisdiction contrary to the California Constitution, article I, section 12, which leaves to the court of original jurisdiction the discretion as to whether or not a particular defendant should be granted release on his own recognizance.”

We need not decide this question, however, since we are of the opinion that section 859b itself does not mandate real party's release pending the continued preliminary examination.   It declares that both the defendant and the people have the right to a preliminary examination at “the earliest possible time,” and unless good cause for a continuance is found, this shall occur within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.   It further provides that if the defendant is in custody he shall be released on his own recognizance unless certain conditions exist.   One of those specified is the unexpected engagement of counsel in a jury trial.

Section 1050.1 was added to our Penal Code by Proposition 115, the “Crime Victims Justice Reform Act,” whose stated general purpose was to adopt “comprehensive reforms ․ needed in order to restore balance and fairness to our criminal justice system.”  (Raven v. Deukmejian (1990) 52 Cal.3d 336, 340, 276 Cal.Rptr. 326, 801 P.2d 1077.)   The section provides:

“In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants' cases so as to maintain joinder.   The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.”

Every statute, of course, is to be construed with “reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts.”  (People v. Caudillo (1978) 21 Cal.3d 562, 576, 146 Cal.Rptr. 859, 580 P.2d 274.)

Section 859b obviously reflects our Legislature's intent to allow prolonged incarceration prior to a preliminary examination only in appropriate and specified instances.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 177 Cal.Rptr. 325, 634 P.2d 352.)   Consequently, the drafters of section 1050.1 presumably were aware that engagement of counsel in a jury trial constituted such an instance.   Therefore, we conclude that where, as here, cause for a reasonable continuance without release exists as to one defendant, it exists as to all co-defendants.   Such a result achieves harmony between sections 859b and 1050.1, and promotes Proposition 115's intent to maintain joinder of cases in order to protect and enhance the rights of crime victims.

This is a proper case for issuance of a peremptory writ in the first instance.  (Code Civ.Proc., § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180, 203 Cal.Rptr. 626, 681 P.2d 893.)   The matter having been fully briefed, issuance of an alternative writ would add nothing to the exposition of the issues.

Let a peremptory writ of mandate issue directing respondent to set aside its order of May 6, 1991, directing the municipal court to either release real party or conduct a preliminary examination as soon as possible, and to enter a new and different order denying real party's petition for writ of habeas corpus.



1.   All further statutory references are to the Penal Code unless otherwise noted.

THE COURT *: FN* Before GATES, Acting P.J., and FUKUTO and NOTT, JJ.