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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant, v. William Joseph WILLIAMS, Jr., and Ronald Giner, Defendants and Respondents.

Cr. 41924.

Decided: February 16, 1983

John K. Van De Kamp, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Div., and Roderick W. Leonard, Deputy Dist. Atty., for plaintiff and appellant. Michael F. Hamud and Linda M. Wilde-Hamud, Montebello, for defendant and respondent Giner. Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, William Klump and Chloris deBrauwere, Deputy Public Defenders, for defendant and respondent Williams.

This appeal is from an order of dismissal of a criminal action upon a Penal Code section 995 motion.   The thrust of the motion, and the sole ground cited by the trial court for its ruling, is that a dismissal was required under Penal Code section 859b (failure to conduct the preliminary hearing within 60 days of arraignment or plea, whichever is later).   It is unnecessary to set forth a statement of fact as it relates to the events which gave rise to the criminal charges.   It is necessary to set forth the time schedule of court procedures from arraignment to dismissal.

April 1, 1980, was appropriately the date of filing the complaint.

April 3, case called and set over, both defendants remaining out of custody.

April 9, counsel appointed.   Case continued for arraignment and plea.

April 24, case continued at defendants' request to May 13.

May 13, continued as to Williams on People's request.   Bench warrant ordered and held until May 29 as to Giner.   Giner appeared, warrant vacated and cause continued to May 29.   Defendants remained released.

May 29, continued to July 8 on stipulation.

July 8, not guilty pleas entered.   Continued to August 20 for discovery.   Defendants excused from hearings.   Defendants on O/R ordered to appear at date of preliminary hearing settings.

August 28, discovery ordered and preliminary hearing set for September 17.

September 17, defendant Giner's motion for investigator granted;  cause continued to October 1.

October 1, cause trailed to October 2.

October 2, cause trailed to October 3.

October 3, cause continued to October 22 for compliance with discovery order and for preliminary hearing.

October 22, continued to November 20 for compliance and preliminary hearing.

November 20, cause continued for compliance and preliminary hearing to December 18 on defendants' motions.

December 18, cause continued for compliance and preliminary hearing to January 7, 1981, on defendants' motions.

January 7, 1981, protective order vacated via mandamus writ and compliance found.   Cause continued to January 14 for preliminary hearing setting.

January 14, cause continued to January 28 for completion of discovery and preliminary hearing setting.   Defendants waive time.

January 28, on defendants' motions cause continued to February 19.   Time waived.

February 19, continued by stipulation to March 5 for compliance and preliminary hearing setting.

March 5, hearing held on compliance.   Cause continued to April 20 for preliminary hearing.   Defendants waive time.

April 20, cause trailed to April 21 for preliminary hearing.   Oral motion under Code of Civil Procedure section 170.6 made by People.

April 21, motion under Code of Civil Procedure section 170.6 denied as untimely.   Motion to dismiss for failure to commence preliminary hearing on April 20 made under Penal Code section 859b denied.   Cause transferred to the presiding justice for further assignment.   Over defendants' objection, cause trailed to April 22 for preliminary hearing.

April 22, 1981, preliminary hearing commenced.

As shown in detail above, the preliminary hearing did not commence within 60 days from the pleas.   In fact, a year and 19 days had passed to the last date set for the preliminary hearing with the consent and waivers of defendants (and 21 days to actual commencement of the preliminary hearing).   Does this fact mandate the dismissal?   No.

Penal Code section 859b provides in pertinent part:

“At the time the defendant appears before the magistrate for arraignment, if the public offense is a felony to which the defendant has not pleaded guilty in accordance with Section 859a, the magistrate, immediately upon the appearance of counsel, or if none appears, after waiting a reasonable time therefor as provided in Section 859, shall set a time for the examination of the case and shall allow not less than two days, excluding Sundays and holidays, for the district attorney and the defendant to prepare for the examination.   The magistrate shall also issue subpoenas, duly subscribed, for witnesses within the state, required either by the prosecution or the defense.

“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.


“The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment or plea, unless the defendant personally waives his or her right to a preliminary examination within the 60 days.”

It appears that no California case has heretofore dealt with the apparent mandatory language of Penal Code section 859b.   However, cases have analyzed a similar issue raised respecting right to speedy trial as required by Penal Code section 1382.1  The controlling case in construing the effect of section 1382 is Owens v. Superior Court (1980) 28 Cal.3d 238, 168 Cal.Rptr. 466, 617 P.2d 1098.   In that case the cause had been continued, with defendant's waiver, past the 60-day period hence the 10-day grace period provided for in the section commenced to run from the date set for trial at the time defendant last entered his waiver.   The People failed to commence the trial within that 10-day period and the court ordered “․ that ․ the superior court ․ do what it was clearly bound to do in the absence of a showing of good cause—dismiss the information.  [Citation.]”  (Id., at p. 253, 168 Cal.Rptr. 466, 617 P.2d 1098.)

In the court's analysis, however, the case of In re Lopez (1952) 39 Cal.2d 118, 245 P.2d 1 was discussed.   In that case, decided seven years before the amendment to Penal Code section 1382 (1959) which provided for the grace period of 10 days, it was held that an accused who consented to a trial date beyond the 60-day time limit thereby waived any statutory right he had to a dismissal on that date.   It also recognized that such consent “ ‘does not amount to a waiver of his constitutional right to a speedy trial nor of the requirement that further delay must be justified on grounds of reasonableness and good cause.’ ”  (Owens v. Superior Court, supra, 28 Cal.3d at p. 244, 168 Cal.Rptr. 466, 617 P.2d 1098, quoting from In re Lopez, supra, 39 Cal.2d at p. 120, 245 P.2d 1;  italics omitted.)   We note that provision for the “good cause” for delay existed in the section from its inception in 1872.

The Owens court discussed the “gamesmanship” which was terminated by the grace period provision:

“For example, if the prosecutor or the court wanted to increase the period beyond 60 days for a speedy trial, they would ask that a trial date be set very early so that the accused is forced either to risk going to trial unprepared or to waive the protections of section 1382 by requesting a postponement.   In addition, such gamesmanship may encourage defense counsel to respond in kind.   If defense counsel think that a later trial date is actually in the interest of the court or the prosecution as well, they may feel constrained to protect their clients' rights by feigning acceptance of the early date in the hopes of shifting the onus of requesting the delay to other shoulders.   This type of manipulation of procedural rules for adversarial advantage should be avoided in our legal system.   And a rule which would encourage this sort of dissembling and brinksmanship should not be promulgated by this court.”  (Owens v. Superior Court, supra, 28 Cal.3d at p. 247, 168 Cal.Rptr. 466, 617 P.2d 1098.)

But no such amendment was made to Penal Code section 859b though similar language relative to a 60-day limit existed.   And, since the legislative history (as discussed in Owens ) recognized the holding of In re Lopez, supra, 39 Cal.2d 118, 245 P.2d 1, we must conclude that the Legislature was quite satisfied with that construction of its similar provisions in other sections than Penal Code section 1382.   It was willing to accept that there was an abandonment or a continuing waiver of any statutory right that a defendant had for a dismissal once he had waived time for hearing past the 60-day limitation.   By such waiver past the 60-day period, his sole right to dismissal was founded on his constitutional right of speedy legal process.   We therefore conclude that, in the instant case, defendants waived their statutory right to a dismissal.   On the other hand, the People argue that they are entitled to a 10-day grace period, commencing with the last day to which the preliminary hearing had been set with defendants' acquiescence, within which to commence said hearing.   There is no such provision in Penal Code section 859b.   A constitutional right to speedy judicial proceeding, as distinguished from a statutory right, requires a showing of detriment to the defendant.   Here, there is no such showing.  (Cf. Sykes v. Superior Court (1973) 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 507 P.2d 90.)

Defendants argue that the delay beyond April 20 was caused by a sham filing of a disqualification affidavit under Code of Civil Procedure section 170.6.   The judge determined the motion to be untimely but then he effectively disqualified himself by transferring the case to the master calendar division for reassignment.   The court was, perhaps, in error in not ruling on the motion on the 20th when the oral motion was made.   However, the prosecution cannot be faulted for that, regardless of their basic intent.   Had the motion been then denied, the record indicates a necessary witness was then present and the preliminary hearing could have started.   We conclude that the failure to commence the preliminary hearing was on the shoulders of the court and not the prosecution;  there was good cause established when the court caused the delay;  there was no prejudice shown by the delay;  defendants were not entitled to a mandatory dismissal under the code.2

The order of dismissal is reversed and the cause remanded for further proceedings in accord with the views expressed above.


1.   Section 1382 provides in pertinent part as follows:“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:“1. When a person has been held to answer for a public offense and an information is not filed against him within 15 days thereafter.“2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after such mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which in effect grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney, or within 90 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney in any case where the district attorney chooses to resubmit the case for a preliminary examination after an appeal or the issuance of a writ reversing a judgment of conviction upon a plea of guilty prior to a preliminary hearing in a municipal or justice court;  except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.   Whenever a case is set for trial beyond the 60-day period at the request of the defendant, and the defendant fails to appear on the date set for trial and a bench warrant is issued, the defendant shall be brought to trial within 60 days after the defendant next appears in the superior court.   Whenever a case is set for trial beyond the 60-day period at the request of the defendant, the court may not grant a motion of the defendant to vacate the date set for trial and to set an earlier trial date unless all parties are properly noticed and the court finds good cause for granting such motion.”

2.   Other issues raised by defendants are not considered because the court erroneously ordered the dismissal on the single ground of statutory right.

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.