IN RE: Betty E. RAIDOR on Habeas Corpus.

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Court of Appeal, Second District, Division 7, California.

IN RE: Betty E. RAIDOR on Habeas Corpus.


Decided: May 24, 1984

Walter R. Urban, Los Angeles, for petitioner Betty E. Raidor. Donald J. Kaplan and Richard Sullivan, Deputy Dist. Attys., Los Angeles, for People of the State of Calif.


Petitioner and six other persons are defendants in a criminal prosecution pending in respondent court.   Petitioner was charged with commission of lewd and lascivious acts upon children under the age of 14 years (Pen.Code, § 288, subd. (a)) 1 in twelve counts of an indictment returned by the Los Angeles County Grand Jury, and is confined at the Los Angeles County Jail.

On April 6, 1984 petitioner was arraigned on the indictment in respondent court, entered a plea of not guilty to all charges and a denial to all special enhancements, and properly requested that a post-indictment preliminary hearing be conducted “without a time waiver.”   Over petitioner's objection, the court did not set the matter for preliminary hearing, stating that it would do so only after all defendants requesting preliminary hearing were arraigned and entered their pleas, at which time a joint preliminary hearing would be held.   Petitioner properly objected to the court's ruling, and the objection was overruled.2  Petitioner was also denied bail.

On April 20, 1984 the remaining defendants were arraigned, the court once again ruled that there would be “one preliminary hearing and one preliminary hearing only,” and stated further that any defendant who did not elect to join in that hearing would forego the opportunity for a post-indictment preliminary hearing.   Petitioner renewed her objection to the court's ruling refusing to set a preliminary hearing within ten days of her arraignment and plea.

On April 24, 1984 petitioner filed a notice of motion and motion “to set aside and dismiss the information filed herein” for failure to conduct a preliminary hearing within the mandatory time limits.   The motion was denied.3  Petitioner thereupon commenced the present proceeding on May 17, 1984 by filing in this court a petition for habeas corpus.   Opposition was thereafter requested by this court and filed by the People on May 22, 1984.   We have also reviewed the superior court file in this matter.

A. Failure to refile indictment as a complaint

In Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 the Supreme Court held that defendants who have been indicted by a grand jury are seriously disadvantaged in contrast to defendants charged by information,4 and hence are constitutionally entitled to a post-indictment preliminary hearing in order to secure for them “ ‘such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution.   These guarantees are expressly or impliedly grounded in both the state and federal Constitutions and must by any test be deemed “fundamental.” ’  (Johnson v. Superior Court (1975) supra.   15 Cal.3d 248, 266 [124 Cal.Rptr. 32, 539 P.2d 792] (conc. opn. by Mosk, J.).)”  (At pp. 592–593, 150 Cal.Rptr. 435, 586 P.2d 916.)

The Hawkins court set out the following procedure to be followed:

“The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury;  indeed, that function is explicitly sanctioned in the California Constitution (art. I, §§ 14, 23) and specifically implemented by the Legislature (Pen.Code, § 888 et seq.).   Until such time as the Legislature may prescribe other appropriate procedures, the remedy most consistent with the state Constitution as a whole and least intrusive on the Legislature's prerogative is simply to permit the indictment process to continue precisely as it has, but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea.   If the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen.Code, § 859 et seq.).”  (Hawkins v. Superior Court, supra, 22 Cal.3d 584, at pp. 593–594, 150 Cal.Rptr. 435, 586 P.2d 916 [italics added;  fn. omitted].)

 Here, defendant's timely request for a Hawkins hearing was denied, and at the time of such request neither the court nor the prosecutor complied with the further Hawkins mandate that when a postindictment preliminary hearing is requested “at the direction of the court the prosecuting attorney shall refile the indictment as a complaint ․”  This was error, as the Hawkins language requiring the prosecutor to refile the indictment as a complaint permits no deviation.5

Before we can proceed to consider the consequences of the foregoing error, and the appropriate remedy therefor, we must first review the applicable statutory procedures set forth in section 859b.

B. Effect of section 859b

Section 859b as most recently amended 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.

Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment or plea and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur:

(a) The defendant personally waives his or her right to preliminary examination within the 10 court days.

(b) The prosecution establishes good cause for a continuance beyond the 10-court day period.

If the preliminary examination is set or continued beyond the 10-court day period, the defendant shall be released pursuant to Section 1318 unless:

(1) The defendant requests the setting of continuance of the preliminary examination beyond the 10-court day period.

(2) The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great.

(3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant.

(4) The illness of counsel.

(5) The unexpected engagement of counsel in a jury trial.

(6) Unforeseen conflicts of interest which require appointment of new counsel.”  (Italics added.)

 On its face section 859b makes reference to “the complaint,” and hence there is a lack of statutory direction with respect to the rights of indicted defendants to release from custody if the preliminary hearing is set beyond the 10-court day period and the indictment is not promptly refiled as a complaint.   Clearly, however, the purpose to be served by the provision in section 859b calling for mandatory release if the preliminary hearing is set beyond the 10-day limit is to ensure that those persons charged with felonies who are unable to post bail are not confined more than 10 days without a judicial determination of probable cause.  (See Blake v. Superior Court (1980) 108 Cal.App.3d 244, 248, 166 Cal.Rptr. 470;  Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 465, 142 Cal.Rptr. 882.)   Here, petitioner entered a plea on April 6, and has remained in custody to this date due to noncompliance by the court and the prosecution with the mandate of Hawkins.   We conclude that in a situation such as the instant one, the only certain method to implement the provisions of section 859b as well as the equal protection requirements established by our Supreme Court in Hawkins is to place petitioner on a footing substantially the same as if the indictment had been promptly refiled as a complaint upon petitioner's request for a preliminary hearing.

Petitioner has remained in custody for a period which far exceeds ten days from the date upon which the indictment should have been refiled as a complaint.6  Furthermore, no showing has been made that any of the six exceptions to the release provisions in section 859b is applicable to petitioner.   Accordingly, petitioner is entitled to immediate release from custody “pursuant to Section 1318.”

 By reason of the flexibility in the law controlling extraordinary relief, we are at liberty to direct the issuance of a writ which appears to be the most appropriate remedy in the circumstances and in the interests of justice.  (See Cal. Const., art. VI, § 10, first par.;   Judicial Council of Cal., Annual Rep. (1967) p. 75;  5 Witkin, Procedure, op. cit. supra, Extraordinary Writs, §§ 5 [p. 3784], 183 [p. 3943].)  We are not limited in this regard by the label on the petition, or by its prayer, provided that the allegations in it support the relief we elect to grant.  (See Owens v. Superior Court (1959) 52 Cal.2d 822, 827 [345 P.2d 921, 78 A.L.R.2d 388];  5 Witkin. loc. cit., §§ 183–184, pp. 3942–3944.)

 The allegations in defendant's petition and our review of the People's response and the superior court file in this matter support the issuance of a writ of mandate which will require respondent court to order (1) the prosecuting attorney promptly to refile the indictment as a complaint, (2) that petitioner be released forthwith from custody pursuant to section 1318.   We direct the issuance of a peremptory writ in the first instance, and dispense with the issuance of an alternative writ, in view of the need for immediate relief in this matter.  (Code Civ.Proc., § 1088.)


Let a peremptory writ of mandate issue commanding respondent court (1) to order the prompt refiling of the indictment of petitioner as a complaint if this has not been done, and (2) to order the immediate release of petitioner from custody pursuant to section 1318 pending the preliminary hearing on such complaint.   Except as so ordered, the petition is denied.   Good cause appearing therefor, this decision shall become final as to this court within five days from the date hereof.  (Cal.Rules of Court, rule 24(c).)



1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   One other defendant, Babette Jane Spitler, was arraigned on April 6, entered a plea of not guilty, and joined in petitioner's objection to continuing the preliminary hearing.

3.   The minute order reads:  “Defendant's motion ‘to set aside and dismiss the information filed herein’ is denied, no information having been filed in this case and no preliminary hearing having been held.”

4.   The court stated in part:  “[C]urrent indictment procedures create what can only be characterized as a prosecutor's Eden:  he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance.   In sharp contrast are information procedures in which the defendant is entitled to an adversarial, judicial hearing that yields numerous protections, including a far more meaningful probable cause determination.   Yet the prosecuting attorney is free in his completely unfettered discretion to choose which defendants will be charged by indictment rather than information and consequently which catalogue of rights, widely disparate though they may be, a defendant will receive.   He may act out of what he believes to be proper law enforcement motives, or he may act whimsically;  no case law or statutory guidelines exist to circumscribe his discretion.”  (At p. 592, 150 Cal.Rptr. 435, 586 P.2d 916.)

5.   As will appear, the belated filing of a complaint does not cure the error and the prejudice caused thereby to petitioner.

6.   The belated filing by the People of a first complaint subsequent to petitioner's request for a preliminary hearing, pursuant to this order or otherwise, will not affect petitioner's right to release pursuant to section 1318.

THE COURT: * FN* Before THOMPSON, Acting P.J., JOHNSON, J., and RYBURN, J. (assigned).