RINDAK v. STATE

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Court of Appeal, First District, Division 4, California.

Gary RINDAK, Defendant and Petitioner, v. The SUPERIOR COURT OF SAN FRANCISCO, Plaintiff and Respondent; STATE of California, Real Party in Interest.

Civ. 53153.

Decided: December 04, 1981

Geoffrey Rotwein, Ruffin & Rotwein, San Francisco, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for real parties in interest.

Petitioner Gary Rindak entered pleas of not guilty to all charges contained in an indictment. Moments later he sought and was denied a preliminary hearing. The sole question presented is whether a request for a post-indictment preliminary hearing is timely when made seconds after entry of pleas of not guilty. It is.

The only analysis necessary is a reading of Hawkins v. Superior Court (1978) 22 Cal.3d 584, 594, 150 Cal.Rptr. 435, 586 P.2d 916. There, the California Supreme Court held that a person accused by indictment has a right “to demand a postindictment preliminary hearing prior to or at the time of entering a plea.” (Emphasis added.) Unless redundancy is to be presumed, “prior to ... entering a plea” means something other than “at the time of entering a plea.”

Petitioner's motion made moments after-rather than moments before-his not guilty pleas was obviously not made “before” he entered his plea. But the motion was made “at the time” of entry of plea. In fact, it could not have been made earlier without being made before the entry of plea unless petitioner has the ability to speak in two voices simultaneously. Accordingly, we find that petitioner's motion was made-within the meaning of Hawkins -“at the time of entering a plea” and was therefore timely.

For similar reasons, that is, the same explicit language of the Hawkins decision, entry of a plea of not guilty cannot in any sense be construed as a waiver of the right to a preliminary hearing.

Let a peremptory writ of mandate issue to the San Francisco Superior Court commanding it to afford petitioner a preliminary hearing on the indictment in accordance with Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916.

POCHE, Associate Justice.

RATTIGAN, Acting P. J., and COOK,* J., concur.