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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Andrew Maynard WILLIAMS, Defendant and Respondent.


Decided: October 21, 1986

John K. Van de Kamp, Atty. Gen., Ronald A. Bass, John R. Vance, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Malcolm A. Smith, Berkeley, for defendant and respondent.

While a federal prisoner in Springfield, Missouri, defendant Andrew Maynard Williams (Williams ) had pending against him in Alameda County, California, four charges of grand theft.   He made demand on the district attorney of Alameda County, November 2, 1984, that he be tried on that county's charges within 180 days, as provided by Penal Code section 1389 (section 1389).

Section 1389 provides that the prisoner's case “shall [ordinarily] be brought to trial within one hundred eighty days after he shall have cause[d] to be delivered to the prosecuting officer and the appropriate court [his written request for trial]․”

We state the uncontroverted and material facts of the case.

On Williams' first California court appearance January 11, 1985 before a magistrate, he was not represented by counsel and the case was continued to January 15, 1985 “to get your attorney.”

On January 15, 1985, Williams appeared with a court-appointed attorney, who announced, “I would like to make a special appearance.”   But the attorney then asked that the case be continued “as I look at the mountain of discovery to be obtained.”   He also requested, and obtained, the magistrate's order that Williams be permitted “to wear his own personal clothes” for court appearances.   He then stated that there was “no time problem,” that Williams was “willing to waive his time,” and that “we will waive formal arraignment.”   (Our emphasis.)   As a consequence Williams was not formally arraigned.   The case was then continued, as requested by the attorney, to January 23, 1985.

On January 23, 1985, Williams appeared before the magistrate with the same court-appointed attorney who stated that he “just made a special appearance,” but that “there are two matters I would like to bring up today.”   One such matter was the magistrate's aid in obtaining discovery;  the other was a request for aid in fixing his county paid fee, and “putting this case over to another time without entering a plea or having me make a general appearance.”   The matter as requested, was continued, this time to January 28, 1985.

On January 28, 1985, the same attorney announced that he was “making another special appearance with Mr. Williams.”   He then explained that he was having some difficulty with the “Court Appointed Program” over his fee.   The case was again continued, apparently at the attorney's request, to February 4, 1985.   On that day it was again continued to February 11, 1985 “to see if [the attorney] is going to be representing Mr. Williams or not.”

The next appearance of Williams before the magistrate was not February 11, 1985, but was instead on March 18, 1985.   On that date, another attorney was representing Williams.

It will be noted that more than 60 days had elapsed between Williams' first appearance with counsel in the magistrate's court, and his representation by the second attorney who admittedly made a “general” appearance.

Thereupon, the second attorney moved the magistrate for a dismissal of the pending charges for the People's failure to comply with Penal Code sections 859, 859a and 859b.

The several Penal Code sections (q.v.) are lengthy, and will not be quoted here.  Sections 859 and 859a call for the prompt arraignment before a magistrate of one charged with a felony.  Section 859b, among other things provides, perhaps ambiguously, that “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” (3d par.), and, “[t]he 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” (last par.;   our emphasis).

Williams' motion was based “on the grounds that Mr. Williams was never properly arraigned in this matter and there were excessive delays in the early stages of this and that there appears that there was never a proper ․ arraignment of Mr. Williams.”  (Our emphasis.)

Concluding that Williams' first attorney, having made only a special appearance, had no authority to do so when he stated, “we will waive formal arraignment,” and that Williams was “willing to waive his time,” the magistrate granted the motion to dismiss the pending charges, with prejudice.   But the magistrate stayed the dismissal while the People sought review of the order;  he thereby rendered inapplicable Penal Code section 1389.8, requiring California “to return the prisoner to the sending state upon completion of the proceedings.”

Thereupon the People moved the superior court, under Penal Code section 871.5, to reinstate the complaint which the magistrate had dismissed.   Contemporaneously, Williams petitioned the superior court for a writ of habeas corpus seeking to set aside the stay order, and thus his return forthwith to the federal prison in Missouri.   The proceedings were consolidated by the superior court for hearing and determination.

The superior court denied the People's motion to reinstate the complaint, and granted Williams' petition for a writ of habeas corpus.   The People have appealed from both rulings.

Williams makes two contentions.   First, he insists that he was denied a prompt arraignment before the magistrate as mandated by Penal Code sections 859 and 859a.   And secondly, he argues that he was denied the timely preliminary examination required by Penal Code section 859b.

Penal Code sections 859, 859a and 859b are manifestly implemental of the state and federal constitutional rights of a criminally charged defendant in custody to a speedy trial of the charges.   They are in pari materia;  as noted, sections 859 and 859a require a prompt arraignment before the magistrate, and section 859b mandates an early preliminary examination.  “ ‘[They manifest] a legislative policy to eliminate the possibility that persons charged with felonies might suffer prolonged incarceration without a judicial determination of probable cause merely because they are unable to post bond in order to gain their freedom.’ ”  (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.)

But the statutes apply “only to those defendants in custody by reason of the pending charges.”  (Blake v. Superior Court, supra, 108 Cal.App.3d at p. 249, 166 Cal.Rptr. 470;  our emphasis.)   Where, as here, the accused is in custody by reason of a prior conviction and sentence, he is not “in custody” within the meaning of Penal Code section 859b.  “[T]he phrase ‘whenever the defendant is in custody’ as used in section 859b must be applied only to those defendants in custodial confinement solely [our emphasis] attributable to the charges which are the subject of the preliminary hearing.”  (Id. at p. 248, 166 Cal.Rptr. 470.)

We are unpersuaded that the rule announced by Blake v. Superior Court applies only to the timeliness of a preliminary examination under Penal Code section 859b.   The three code sections relate to the same subject matter, and Blake v. Superior Court's rationale for section 859b is equally applicable to all.

It is “the well-established rule that enactments with the same general purpose must be construed together to achieve a uniform and consistent legislative purpose, even though they may have been enacted at different times.”   (Klarfeld v. Berg (1981) 29 Cal.3d 893, 901, 176 Cal.Rptr. 539, 633 P.2d 204.)  “ ‘ “Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things.   In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law.” ’ ”  (Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590, 116 Cal.Rptr. 376, 526 P.2d 528.)  “A statute must be construed in light of the legislative purpose and design.  ․ In enforcing command of a statute, both the policy expressed in its terms and object implicit in its history and background should be recognized․  Consideration may also be given to other statutes in pari materia.”  (People v. Navarro (1972) 7 Cal.3d 248, 273, 102 Cal.Rptr. 137, 497 P.2d 481.)   And:  “It is a well-established principle of statutory construction that statutes dealing with the same subject matter must be construed together in the light of each other so as to harmonize them if possible.”  (People v. Derby (1960) 177 Cal.App.2d 626, 629–630, 2 Cal.Rptr. 401;  and see People v. Compelleebee (1979) 99 Cal.App.3d 296, 300, 160 Cal.Rptr. 233.)

From the foregoing it appears that the magistrate and the superior court erred in their respective rulings.   We so hold.

We need not, and do not, pass upon the validity of Williams' first attorney's claimed “special ” appearance, accompanied by a demand for discovery and proper courtroom dress for his client, his waiver of formal “arraignment” and his statement of Williams' willingness “to waive his time.”   The point is not raised on the appeal.*

The orders from which the People have appealed are, and each is, reversed.


FOOTNOTE.   “If [the defendant] appears and asks for any relief ․ which itself would be a regular proceeding in the case, it is a general appearance regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special.”  (Judson v. Superior Court (1942) 21 Cal.2d 11, 13, 129 P.2d 361, overruled on other grounds in Goodwine v. Superior Court (1965) 63 Cal.2d 481, 484–485, 47 Cal.Rptr. 201, 407 P.2d 1;  Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216, 222, 138 Cal.Rptr. 628.)

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.