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Court of Appeal, Fifth District, California.

Jaime Ruiz GUERRERO, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Civ. 5495.

Decided: June 19, 1980

Walter L. Gorelick, Public Defender, Gerald F. Sevier, Asst. Public Defender, James T. Wilson, Senior Trial Atty., Richard M. Macias and Robert L. Broughton, Deputy Public Defenders, Visalia, for petitioner. No appearance for respondent. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson and Joel Carey, Deputy Attys. Gen., Sacramento, for real party in interest. John K. Van De Kamp, Dist. Atty., Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., Los Angeles, as amicus curiae on behalf of real party in interest.


Petitioner seeks a writ of mandate directing respondent court to grant his motion to set aside a criminal information pending against him.


On September 18, 1979, criminal complaint No. 61332 was filed charging petitioner with the commission of a felony offense. The complaint alleged that on or about September 10, 1979, petitioner unlawfully took property from the person of Rosario Garcia. On September 18, 1979, petitioner was arraigned on the complaint and entered a plea of not guilty to the charge. Petitioner expressly refused to waive the time limits for his preliminary hearing. The matter was set for a preliminary hearing on October 9, 1979, the 15th court day after petitioner's arraignment on September 18, 1979.

On October 9, 1979, action No. 61332 was called for preliminary hearing. The prosecutor stated that he could not establish the corpus delicti of the crime because Mrs. Garcia, the victim, was not present to testify, and submitted the matter for decision.[FN1] [FN2] The magistrate found insufficient evidence to hold petitioner to answer and ordered him discharged pursuant to Penal Code section 870 (sic ).[FN3]

On October 15, 1979, complaint No. 61478 was filed charging petitioner with the same felony offense alleged in complaint No. 61332.

On November 7, 1979, petitioner was arraigned on complaint No. 61478 and entered a plea of not guilty to the charge.

On November 19, 1979, the preliminary hearing in action No. 61478 was commenced; this was the eighth court day after petitioner's arraignment on November 7, 1979. The preliminary hearing was continued until November 26, 1979, for conclusion and for a hearing on petitioner's motion to disclose the identity of a confidential informant.

On November 26, 1979, petitioner was held to answer for the crime charged in complaint No. 61478.

Petitioner was in custody from September 18, 1979, until November 26, 1979; there was a parole hold against him for a substantial portion of this time.

On December 7, 1979, an information was filed alleging that petitioner committed grand theft in violation of Penal Code section 487 by taking property from the person of Rosario Garcia on or about September 10, 1979.

On February 20, 1980, respondent court denied petitioner's motion to set aside the information pursuant to Penal Code section 995.


The determinative issue before us is whether the 10-day period allowed by Penal Code section 859b[FN4] for commencement of the preliminary hearing started to run on September 18, 1979, the date petitioner was arraigned upon the original complaint (No. 61332) or November 7, 1979, the date petitioner was arraigned upon the second complaint (No. 61478). We hold that the 10-day period commenced on November 7, 1979.

The critical language in Penal Code section 859b necessarily refers to the defendant's arraignment or plea to the complaint upon which the preliminary hearing is to be held. In this case this is the November 7 arraignment upon the second complaint, numbered 61478. The original complaint, numbered 61332, was no longer of any force after October 9, 1979, the date petitioner was discharged upon that complaint; accordingly, the proceedings upon that complaint are irrelevant to the issue of whether petitioner was afforded a timely preliminary hearing upon the second complaint, numbered 61478.

Our construction of section 859b is supported by analogy to the law applicable to other statutory time limits designed to guarantee a speedy criminal trial. The 60-day statutory period within which a criminal defendant must be brought to trial (Pen.Code, s 1382, subd. (2)) begins anew with the filing of a new indictment or information. (See Bellizzi v. Superior Court (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 Penal Code section 1381. (People v. Godlewski (1943) 22 Cal.2d 677, 683, 140 P.2d 381.)

In Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464-465, 142 Cal.Rptr. 882, this court held that Penal Code section 859b establishes an absolute right for an in-custody felony defendant to have his preliminary hearing commenced within 10 court days after he has been arraigned or pleads to a criminal complaint, whichever first occurs, and that the 10-day period cannot be extended upon a “mere showing of good cause.” (Id., at p. 465, 142 Cal.Rptr. 882; see also Irving v. Superior Court (1979) 93 Cal.App.3d 596, 155 Cal.Rptr. 654.)

Petitioner argues that he is deprived of the benefit of these decisions if a second complaint may be filed and expeditiously prosecuted after a magistrate has not held him to answer upon the first complaint because the prosecution was not prepared to proceed and/or the 10-day limitation had been violated upon the first complaint. Thus, petitioner's interpretation of Penal Code section 859b would bar the People from refiling a complaint for failure to comply with the time limits of that section. We disagree.

Had sufficient evidence to establish probable cause been presented to bind petitioner over upon the first complaint, petitioner could have successfully brought a 995 motion in the superior court because the preliminary hearing took place more than 10 days after the arraignment. (See Serrato, supra, 76 Cal.App.3d 459, 142 Cal.Rptr. 882.) However, upon such an occurrence the prosecution would not have been barred from filing a second complaint. (See Johnson v. Superior Court (1975) 15 Cal.3d 248, 255, 124 Cal.Rptr. 32, 539 P.2d 792; People v. Uhlemann (1973) 9 Cal.3d 662, 666, 108 Cal.Rptr. 657, 511 P.2d 609.) No sound policy reason appears why the same rule should not apply where a defendant is discharged for failure of the prosecution to present evidence at the preliminary hearing.

Petitioner relies upon Johnson v. Superior Court (1979) 97 Cal.App.3d 682, 158 Cal.Rptr. 899. In Johnson the defendant was arrested on April 27, 1979. At his May 16, 1979, preliminary hearing he was discharged because the prosecution could not proceed due to unavailability of a witness. Defendant was rebooked on the same charge.

On May 31, 1979, the second preliminary hearing was set. Defendant was again discharged because the prosecution witness was in the hospital. Defendant was again rebooked on the same charge. On June 1, 1979, defendant was arraigned for the third time.

On June 13, 1979, the preliminary hearing occurred on the third complaint; defendant was held to answer. June 13th was the eighth court day after June 1, 1979. Therefore, if measured from arraignment upon the third complaint, the preliminary hearing was within the 10 court days allowed by section 859b and therefore timely. Thus, the Johnson court held that the defendant was illegally committed due to a section 859b violation even though the preliminary hearing was timely when measured from arraignment on the third complaint.

In conclusional language the court held that the defendant had not personally waived his right to a preliminary hearing within the 10-day period and that he was therefore illegally committed. Because he was in fact committed within the 10-day period when measured from the date of the third arraignment, by necessary implication the court held that the 10-day period ran from the date of the first arraignment.[FN5] Though it is not entirely clear, the court's conclusion seems to be grounded upon the unstated implication that the magistrate could not order the defendant discharged upon the first complaint without evidence being presented at the first preliminary hearing.[FN6]

We cannot agree with the implied conclusion of the Johnson opinion that the magistrate must in fact hear evidence before exercising his authority to discharge a defendant under Penal Code section 871 nor, as heretofore indicated, that the Penal Code section 859b 10-day clock starts running from the date of the first arraignment or plea.

Penal Code section 871[FN7] vests express authority in the magistrate to discharge a defendant. That section provides:

“Defendant, when and how discharged.

“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, by an indorsement on the depositions and statement, signed by him, to the following effect: ‘There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged.’ ”

In our view, on April 9, 1979, the magistrate ended judicial proceedings upon the original complaint when he discharged petitioner pursuant to Penal Code section 871. We construe the section 871 phrase “after hearing the proofs” to require only that the magistrate hear whatever evidence is adduced by the parties before ordering that a defendant be discharged. If no evidence is presented, the discharge necessarily follows from lack of proof. That the magistrate should have the authority to discharge a defendant when the prosecution presents no evidence is supported both by reason and public policy.

Preliminarily we recognize there are many legitimate reasons why a prosecutor is unable to present evidence within the 10-day limit. For example, the victim of the offense frequently is the sole or at least an essential prosecution witness and he or she may be hospitalized or otherwise disabled from injuries received as a result of the offense and consequently be unable to appear and testify. The key witness may be subpoenaed, and though committed to appear does not in fact show up. Defense counsel may have indicated an intention to waive time but then changed his mind or had his client not agree. Defense counsel may have a conflict of interest and he may be unable to proceed for that or other reasons. In the case at bench, it appears that the reason the prosecutor was unable to present any evidence at the first preliminary hearing was that the key victim-witness, though subpoenaed and though she had indicated she would appear, did not show up. There is no affirmative indication in the record that there was any intentional harassment by the prosecutor in filing the second complaint.

To interpret the phrase “after hearing the proofs” as requiring the actual presentation of evidence before a defendant can be validly discharged would encourage the People to put on a “sham” preliminary examination. To require the prosecutor to put on a witness, even though that witness may have no familiarity whatsoever with the facts would be an absurd charade and would be construing the statute so as to require an idle act and illogical result. (Civ.Code, s 3532.) Clearly, such an interpretation could not have been within the contemplation of the Legislature (see People v. Caudillo (1978) 21 Cal.3d 562, 582, 146 Cal.Rptr. 859, 580 P.2d 274) and would violate a cardinal rule of construction “ . . . that statutes should be given a reasonable interpretation and in accordance with the apparent purpose and intention of the law makers.” (County of Alameda v. Kuchel (1948) 32 Cal.2d 193, 199, 195 P.2d 17, 20.)

This conclusion is made more obvious by the following examples: If the magistrate should choose to not go through the idle act of putting on a sham preliminary hearing with a strawman witness, the magistrate would have no way of terminating a case unless he could do so by exercising his authority to discharge the defendant under Penal Code section 871. This conclusion necessarily follows from his lack of authority to dismiss the case pursuant to Penal Code section 1385. (See People v. Peters, supra, 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651.) An equally idle proceeding would occur if there were bona fide witnesses present and a knowingly late preliminary hearing was nevertheless held, resulting in a defendant's being held to answer. In that instance it would be a matter of form for the defendant to successfully prosecute a Penal Code section 995 motion in the superior court under Serrato and Irving, supra. And, as we have indicated, the 995 dismissal would not foreclose a filing of a second complaint.

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.

We conclude that the 10-day period started on November 7, 1979, the date of arraignment on the second complaint. Since the preliminary hearing commenced on November 19, 1979, within the legal time limit prescribed by section 859b, the respondent court correctly denied petitioner's motion to set aside the information.

The petition for writ of mandate is denied, and the stay order issued by this court on March 26, 1980, shall remain in effect until this decision is final in this court.


1.  A Mr. Martin, who is not otherwise identified in the record, stated that Mrs. Garcia had called his office and confirmed that she had received her subpoena. It would appear that Mr. Martin is associated with the district attorney's office.

2.  Presumably the reason the prosecutor did not move for a dismissal is the holding in People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651; which held that a magistrate does not have the authority to dismiss a complaint.

3.  The correct citation, clearly intended by the magistrate, is Penal Code section 871.

4.  Penal Code section 859b provides in relevant part:“Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and 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. In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days.”

5.  In this regard the court relied upon Serrato, supra, and Irving, supra, neither of which is in point because those cases did not relate to multiple complaints and the issue herein was not discussed.

6.  The court relied upon a concession by the People which is expressed in the opinion as “The People concede that Penal Code section 871 does not authorize a discharge until after proofs have been heard.” (Johnson v. Superior Court, supra, 97 Cal.App.3d at p. 685, 158 Cal.Rptr. at p. 901; fn. omitted.) In this regard the Johnson case is distinguishable from the case at bench.

7.  In this regard we note that People v. Peters, supra, 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651 does not discuss or touch upon the authority of a magistrate to discharge a defendant. It held only that the magistrate was not a court and did not have jurisdiction to dismiss a case under the authority of Penal Code section 1385.

GEO. A. BROWN, Presiding Justice.

FRANSON and ZENOVICH, JJ., concur.