STROUD v. SUPERIOR COURT (1999)

Petitioners Todd Russell Stroud and Tyrone Franklin Swain were jointly charged by information filed in respondent Los Angeles Superior Court by real party in interest, the People of the State of California, represented by the District Attorney of Los Angeles County, with one count of murder and a special circumstances allegation (Pen.Code, §§ 187, 190.2, subd. (a)(17)),¹ three counts of robbery (§ 211) and felonious assault (§ 245, subd. (a)(1)), and supplemental allegations of firearm use and prior conviction and prison term sentence enhancements.

Stroud and Swain applied to this court for writs of prohibition to restrain all further proceedings and to vacate a denial of their motions made pursuant to section 995, subdivision (a)(2)(A) to set aside the information.   They contend the magistrate denied them the right to a continuous preliminary hearing codified in section 861, subdivision (a).   We issued an order to show cause and ordered the trial stayed pending disposition of this proceeding.²

FACTUAL & PROCEDURAL BACKGROUND

The information charging petitioners Stroud and Swain was filed following a preliminary hearing conducted from July 22, 1998, through August 5, 1998.   The proceedings were substantially continuous except for a postponement to accommodate the magistrate's prior commitment to attend a “drug oversight community meeting [on Friday, July 31, 1998] in San Francisco[, California].”  The magistrate stated on the record that the meeting was “part of the Judicial Council” and was scheduled months before the preliminary hearing commenced.

On Wednesday, July 22, 1998,³ the first day of the preliminary hearing, the magistrate informed counsel that the prosecutor had indicated that she requested a one-day interruption of the hearing so that she could attend a meeting.   In response, Stroud's counsel, Daniel G. Davis, informed the court that his client was insisting on a single continuous preliminary hearing as follows:

“[A]s his [Stroud's] attorney, having talked to him about rights at a preliminary hearing and given that it's a special circumstance case, I'm going to take very narrow precautions with due apology to anyone who is inconvenienced, and that would be it's not his intention nor should it be inferred that he's waiving his rights hereafter to a speedy continuous preliminary hearing.   There are exceptions I've explained to him and should a better record be made, they may apply, but it is with apology and due respect to the court and counsel, I have explained at length his rights in that regard.   He's of the position now, having waived and wondered what “waiver” meant in the past, he's not inclined to waive or stipulate to anything in this case.”

The next day, Thursday, July 23, the prosecutor represented to the court that she and each of the petitioners' counsel had agreed to recess that morning at 10:30 a.m. so that she could attend an out-of-town meeting and that the preliminary hearing would resume again on Friday and then recess at 12:00 p.m. so that petitioners' counsel could review the prosecutor's notes of witness interviews.⁴

Based on the agreement to truncate the preliminary proceedings for Thursday and Friday, the magistrate declared that “I'm going to seek a waiver of a continuous prelim basically all the way until Monday, so that that would resolve that issue so there won't be any scheduling problems.”   The magistrate then elicited waivers from each of the petitioners:  “What I'm about to say applies to each of you.   Each of you is entitled to have what is known as a continuous preliminary hearing, and that is under Penal Code section 861, and I did some research last night, and it basically means that you're entitled to have a preliminary hearing without interruption, that I devote most of my resources to the preliminary hearing, and the only thing I'm allowed to do is calendar matters and which, I still believe, drug court would qualify and progress reports, but anyway, that doesn't matter.   That is what you're entitled to, a singular continuous prelim where that is what we do each day.   Based on what's now been said on the record, we're going to interrupt this continuous prelim and take a break today and take a break tomorrow afternoonand that would mean that we would not be doing your preliminary hearing continuously because I will be doing other work, and we would not be doing it continuously.”  (Italics added.)

The court addressed each petitioner separately and inquired if he understood what had been agreed to and what the court had said and if each petitioner waived his right to forego a continuous preliminary hearing in accordance with the agreement of counsel.   Each answered in the affirmative.

The proceedings continued on Thursday until 10:36 a.m. and then resumed again on Friday at 9:16 a.m., recessing at 11:30 a.m.

On Monday, July 27, the preliminary hearing resumed at 10:40 a.m. At the afternoon session, the magistrate stated:  “I don't know if I should reveal this.   Do you know that we're not going to be in session on Friday.”   He continued:  “․ and it won't violate anybody's rights because I will be in San Francisco attending a meeting of the Judicial Council.   So I won't be here;  and if I'm not here, I won't be doing other work.”   At that time neither of petitioners' counsel voiced any objection.

On Wednesday, July 29, the magistrate again informed the parties that he intended to adjourn early the next day so that he could attend to his “drug court” calendar.   Counsel for Stroud responded:  “We're not going to waive the continuous session.”

Later that same day, counsel and the court engaged in discussion about the availability of witnesses.   It appearing that one of the witnesses could not possibly be present, counsel for Stroud commented:  “It would [have been] possible [for him to have been present] if we were in session Thursday and Friday.   That is my estimate.”   The magistrate responded:  “Well, with all due respect, Mr. Davis, there is a lot of things that would have been possible.   This case came in for a day-and-a-half estimate.   We've been doing it five days.”   Stroud's counsel (Davis) retorted:  “I never gave it that estimate.”   In the same colloquy regarding the scheduling of witnesses, the following exchange took place:

“Mr. Davis:  We have tomorrow and Friday.

“The Court:  Friday we're dark.   I'm not here.

“Mr. Davis:  Well, I'll object to that.

“The Court:  That's fine.

“Mr. Davis:  I say that in a friendly way, but we could be through with the prelim.

“The Court:  That's too bad.   I won't be here on Friday.   I have judicial business with the Judicial Council, and as far as I know, I'm not violating anybody's rights by not working on Friday.

“Mr. Davis:  I would object to that under the single-session rule unless you want to release my client until we come back.

“The Court:  The single-session rule requires, when I'm in session, that I devote all-substantially most of my time to his case.   I won't be in session on Friday.

“Mr. Davis:  But he'll be in the hoosegow.

“The Court:  That's true.”

On Thursday, July 30, the magistrate opened the session with the following statement:  “․ I want to put on the record before I resume the prelim, I just want to indicate Mr. Davis objected to my going on Friday.   I just wanted to put on the record;  on Friday I'm going to a drug oversight community meeting in San Francisco.   It was scheduled months ago.   It is part of the Judicial Council.   And when this case came into my court on Wednesday last week, it was indicated on the filing that it was a day-and-a-half prelim.   Even accounting for all the various times that we've been taking off, we have devoted at least five full days to this case, which by my calculation means nine o'clock to about quarter to 5:00 and it may even have been more than that.   And that is, I said, taking into account breaks and various times that we've taken off.   So it has exceeded the estimate by about three and a half times;  and when I took the case, that is what I was told.   In any event, it is my reading of the code section that there is no violation of a continuous preliminary hearing if I'm not in session.   But I wanted to put on the record that I'm not going to have some kind of vacation.   I'm involved in judicial work on Friday, and I must be there, and I'm one of 12 members of the state that are considering this particular meeting agenda.”

Davis replied:  “․ [W]e object to that.   We feel it's violative of the one-session rule, and I just need to make it clear that we neither consent nor waive the rights which that rule provides to my client, particularly one being in custody.”

Later that afternoon, the court recessed the preliminary hearing to handle the court's previously-scheduled “drug court” calendar, interrupting Davis's cross-examination.   The magistrate observed the courtroom was “quite filled” with people who were appearing for his drug court calendar.   Davis again objected:  “I understand, Your Honor, and simply reiterate that my client doesn't waive or consent to this interruption under the continuous or one session rule.”   The magistrate stated that the objection was noted for the record.   The magistrate then recessed the preliminary hearing until 4:00 p.m. when Davis resumed and completed his cross-examination of the last witness of the day.   The court adjourned at 4:35 p.m. to the following Monday.

On Monday, August 3, counsel for Stroud moved for dismissal on the ground that the court had violated “the one-session rule of Penal Code section 861.” ⁵  At this juncture, counsel for Swain joined in the motion to dismiss.   The magistrate denied both motions.⁶  Thereafter, the proceeding continued through the next two days and concluded on Wednesday, August 5. The magistrate held both petitioners to answer and an information was filed in superior court.

On November 19, petitioners presented and argued to the superior court their section 995 motions to set aside the information on the ground that they were denied a continuous preliminary hearing pursuant to section 861, subdivision (a).   That court characterized the issue as a question of whether “a substantial majority of the court's time [was devoted] to the preliminary hearing.   And, if not, were the defendants denied some substantial right.”   The court reasoned that the preliminary hearing took 6-1/2 days, consuming 33 hours and 15 minutes of court time for an average of 4 hours and 13 minutes per day, compelling the conclusion that the magistrate devoted a majority of its time to the preliminary examination.⁷  The court articulated its denial in the following terms:  “When I look at the entire record of this case, the five lengthy volumes of transcripts totalling more than 1320 pages, I find that the magistrate devoted a substantial majority of the court's time to the preliminary hearing.   And I do believe that the defendants were not deprived of a substantial right by the single day recess that was taken by the magistrate.”

These petitions followed.

DISCUSSION

A. CASE LAW INTERPRETATION OF SECTION 861

Section 861 provides in relevant part:  “(a) The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it.   The postponement shall not be for more than 10 court days, unless ․ the following occur:  [¶] (1) The defendant personally waives his or her right to a continuous preliminary examination ․ [¶] (c) Nothing in this section shall preclude the magistrate from interrupting the preliminary examination to conduct brief court matters so long as a substantial majority of the court's time is devoted to the preliminary examination.”

Our consideration of the application of section 861 necessarily commences with the frequently cited opinion of People v. Bucher (1959) 175 Cal.App.2d 343, 346 P.2d 202.   There, the defendant was arrested, charged with a felony, and placed in custody.   Later, a preliminary examination commenced and four witnesses testified for the People.   The magistrate concluded that their testimony was insufficient to hold the defendant to answer.   The prosecutor informed the court that a material witness was missing because of an inability to serve a subpoena.   The magistrate inquired if the prosecutor could produce the witness the next day.   On being so advised, the magistrate, over the objection of the defendant, ordered the matter continued to the next day and remanded the defendant to custody.

On the following day, the prosecutor produced two more witnesses.   The defendant was held to answer and an information was filed charging him with three counts of grand theft.   The defendant moved to set aside the information on the ground he had been illegally committed as a result of the magistrate's continuing his preliminary examination from the afternoon to the next morning when there was no showing of good cause by affidavit.   The superior court granted the motion.   The Court of Appeal affirmed.  “The procedures prescribed by the Legislature for the conduct of the preliminary examination are designed to protect the rights of the accused and to see to it that no one is detained in custody indefinitely or capriciously in order that a case may be developed in the future, or circumstances arise that will justify a trial.   The interests of society do not demand, and the rights of the individual forbid, such an invasion of personal liberty.   The question is whether the continuance granted in the instant case is such a violation of defendant's basic rights that he was ‘not legally committed by a magistrate,’ or whether it was a technical error or irregularity not going to the merits.”   (People v. Bucher, supra, 175 Cal.App.2d at p. 346, 346 P.2d 202.)

The Bucher court emphasized that “[a] motion under 995 of the Penal Code may be granted when the defendant has ‘not been legally committed by a magistrate.’   There was, therefore, discretion and power on the part of the superior court to find under the facts of this case that there was a violation of that section [§ 861] which affected the legality of Bucher's commitment.”  (Id. at p. 347, 346 P.2d 202.)   No reported decisions since Bucher has deviated from its central holding, but some involve distinguishing facts and legislative refinement.

In People v. Castagnola (1972) 28 Cal.App.3d 882, 105 Cal.Rptr. 62, on the afternoon of the second day of the preliminary hearing a witness testified that she had refreshed her memory by reading a 16-page statement prepared by the defendant.   The prosecutor stated that he should be permitted to read the defendant's statement.   The defendant objected.   The court requested briefing on the evidentiary issue and continued the preliminary hearing to the next morning for that purpose.   The defendant then objected to the continuance as a violation of section 861.   The defendant filed a motion to set aside the information on the ground that preliminary hearing had been continued over the defendant's objection.   The motion was granted and the People appealed.

The Castagnola court observed that “the principal purpose of the preliminary examination is to determine whether an offense triable in the superior court has been committed, and whether there is sufficient cause to believe that the defendant is guilty of having committed it.   The procedures prescribed in the Penal Code for the conduct of the examination, however, are designed to assure that the rights of the accused are protected.   In particular, they are intended to secure the accused's right to personal liberty by precluding the possibility that he will be detained in custody indefinitely or capriciously in order that a case may be developed or that circumstances may arise which will justify a trial.  (People v. Bucher [, supra,] 175 Cal.App.2d 343, 346, 346 P.2d 202.)”  (28 Cal.App.3d at p. 886, 105 Cal.Rptr. 62.)

The Court of Appeal then turned to the question of what was meant by the provision of section 861 requiring that the “․ preliminary examination shall be completed at one session ... unless the magistrate, for good cause shown by affidavit, postpones it.”   Quoting from In re Karpf (1970) 10 Cal.App.3d 355, 365, 88 Cal.Rptr. 895, the court explained that “session” means “an actual sitting continued by adjournments in ordinary course from day to day, or over Sundays and holidays, but not interrupted by adjournment to a distant day.  [Citation.]  ․ Thus the reviewing court [in Karpf ] observed that postponement is different from a temporary cessation or interruption in proceedings compelled by the needs of the human body for periodic visits to the bathroom, or for rest, food, and sleep, or to observe a legal holiday ․ but, rather, carries with it the idea of deferring the doing of something or the taking effect of something until a future or later time.”  (28 Cal.App.3d at p. 887, 105 Cal.Rptr. 62, internal quotation marks omitted.)   In this way, the court distinguished “interruption” from “postponement.”

Based on that analysis, the Castagnola court held that the adjournment of the preliminary examination from noon to 8:30 a.m. of the next day to allow the attorneys time to research and prepare points and authorities in order to assist the magistrate to make an informed ruling did not violate the single session rule.   The court treated the recess as a mere adjournment to permit counsel to research points of law to obviate potential error.  “To argue that such adjournments are not part of the same sitting does violence to our accepted concepts of trial procedure.”  (Id. at p. 888, 105 Cal.Rptr. 62.)   The court also observed that the defendant was not prejudiced by the adjournment.  “To the contrary, it inured to his benefit since the magistrate resolved the evidentiary issue in his favor.   Moreover, unlike Bucher [, supra, 175 Cal.App.2d 343, 346 P.2d 202], defendant was not in custody at the time of the preliminary examination.”  (Id. at p. 888, 105 Cal.Rptr. 62.)   Accordingly, the order setting aside the information was reversed.

In People v. Guevara (1982) 132 Cal.App.3d 193, 183 Cal.Rptr. 18, the appellate court reviewed an order granting the defendant's section 995 motion based on the superior court's finding that the preliminary hearing had been interrupted without the defendant's consent or waiver of the right to a continuous preliminary hearing.   The superior court focused on the fact that at the conclusion of the first day of the preliminary hearing, it was continued until 3:00 p.m. of the next day.   The reason for the delay until the afternoon of the second day was to allow the court to resume a jury trial “ which [was] already in progress.”  (Id. at p. 196, 183 Cal.Rptr. 18.)   At the time of the preliminary examination, section 861 provided in pertinent part:  “The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it.”   As pointed out by the appellate court, the section was amended in 1981 to provide that:  “ ‘Nothing in this ․ shall preclude the magistrate from interrupting the preliminary examination to conduct brief court matters so long as a substantial majority of the court's time is devoted to the preliminary examination.’ ”  (Id. at p. 198, 183 Cal.Rptr. 18.)

The Guevara court concluded that the 1981 amendment embraced the holding of In re Karpf, supra, 10 Cal.App.3d 355, 365, 88 Cal.Rptr. 895, that the term “session” in section 861 “ ‘ “․ indicate[s] an actual sitting continued by adjournments in the ordinary course from day to day, or over Sundays and holidays, but not interrupted by adjournments to a distant day.” ’ ”  (People v. Guevara, supra, 132 Cal.App.3d at p. 199, 183 Cal.Rptr. 18.)   The Guevara court explained that the purpose of the 1981 amendment was to clarify the legislative intent recognizing the practical necessity of being able to interrupt preliminary hearings “ ‘to conduct brief court matters so long as the substantial majority of the court's time is devoted to the preliminary examination.’ ”  (Id. at p. 201, 183 Cal.Rptr. 18, italics added.)   The court felt it was noteworthy that the defendant was free on bail.  “When the defendant is in custody, any prolongation of the examination by a recess beyond the beginning of the succeeding court day necessarily deprives the defendant of his liberty.   But a defendant who is free on bail or on his own recognizance has a much lesser stake in the length of recesses.”  (Id. at pp. 201-202, 183 Cal.Rptr. 18.)

 Section 861, as interpreted by Bucher, Castagnola, and Guevara, requires that when a preliminary examination commences it must be continued from court day to court day, but may be interrupted during those daily sessions so that the magistrate may attend to brief court matters, but may not otherwise be continued in the absence of the defendant's consent except when a postponement is necessary for good cause as shown by affidavit.   Here the preliminary examination was continuously conducted every court day except Friday, July 31, when the magistrate attended a meeting in San Francisco.

No reported case concerning the application of section 861 involves a delay of one complete court day over the objection of the defendant.   All section 861 cases involve continuances of less than one court day.   (People v. Bucher, supra, 175 Cal.App.2d 343, 346 P.2d 202 [preliminary hearing commenced on Thursday afternoon, resumed following Friday morning];  In re Karpf, supra, 10 Cal.App.3d 355, 88 Cal.Rptr. 895, [preliminary hearing commenced on Tuesday and adjourned to the following Wednesday];  People v. Castagnola, supra, 28 Cal.App.3d 882, 105 Cal.Rptr. 62 [preliminary hearing commenced Tuesday and continued to and concluded on Wednesday];  People v. Guevara, supra, 132 Cal.App.3d 193, 183 Cal.Rptr. 18 [preliminary hearing commenced Tuesday, resumed on Wednesday, and concluded on Thursday].)

B. PETITIONERS DID NOT WAIVE THEIR RIGHT TO OBJECT BY CONSENTING TO OTHER CONTINUANCES

 The District Attorney contends that the petitioners' consent to early adjournments for the sessions held on July 23 and 24 constituted a waiver of any right to object to any other extensions of the preliminary hearing.   The fundamental problem with this proposition is the explicit limitation of the consent given by the petitioners.   The magistrate informed each of the petitioners in the context of eliciting their waivers:  “Based on what's now been said on the record, we're going to interrupt this continuous prelim and take a break today and take a break tomorrow afternoon and that would mean that we would not be doing your preliminary hearing continuously because I will be doing other work, and we would not be doing it continuously.”   It is perfectly clear that the petitioners agreed to interrupt the preliminary hearing only for the times and dates specified.   It is equally clear that the magistrate did not believe that the petitioners had consented to an unlimited waiver.   It is specious for the District Attorney to argue that the carefully stated and extracted consent for the extension of the preliminary hearing for specific times and dates is open-ended, particularly when the prosecutor handling the preliminary hearing never made that argument.  (See Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599, 155 Cal.Rptr. 654.)

The District Attorney argues that People v. Alvarez (1989) 208 Cal.App.3d 567, 256 Cal.Rptr. 289 stands for the proposition that once petitioners waive any time for the continuance of the preliminary hearing, no other waiver is required and the hearing may be continued without their concurrence.   That is not the holding of Alvarez.   It is limited to a statutory construction of section 859b.   There the defendant agreed to waive his right to have his preliminary hearing commenced within 10 days of his arraignment.   Thereafter, the magistrate extended the time to commence the preliminary hearing a second time, but without obtaining a new waiver from the defendant.   The defendant moved to set aside the information on the ground that the second continuance was scheduled without his consent.   The superior court granted the motion and the appellate court reversed.  “After a defendant, who is not in custody, initially has waived his or her right to a preliminary hearing within 10 court days of his or her arraignment or plea, the only remaining requirement of section 859b to preclude dismissal is that the preliminary hearing be set within 60 days from the date of the arraignment or plea.   If the preliminary hearing is not set within the 60-day period, the magistrate is required pursuant to section 859b to dismiss the complaint, ‘unless the defendant personally waives his or her right to a preliminary hearing within the 60 days.’ ”  (208 Cal.App.3d at p. 572, 256 Cal.Rptr. 289.)   Section 859b addresses the right of a defendant to have a preliminary hearing commence within 10 days of arraignment and, if the 10-day limit is waived, there is an outside 60-day limitation for the commencement of the preliminary hearing.   The failure to commence within the 60-day limit results in dismissal unless the defendant specifically waives that right as well.

Section 861 pertains to the conduct of the preliminary hearing after it has commenced and disallows interruption and postponements except as specifically provided.   The interpretation of section 859b in People v. Alvarez, supra, 208 Cal.App.3d 567, 256 Cal.Rptr. 289, is simply inapplicable to the present matter.   The time limit for the commencement of the hearing is substantially different from the time limits for the conduct of the hearing after it has commenced.   The one continuous session rule does not make any sense except in the context of a preliminary hearing which has begun.

C. THE MAGISTRATE VIOLATED THE REQUIREMENT OF A CONTINUOUS SESSION

 The District Attorney proffered the contention that the one continuous session rule of section 861 was not violated here because the magistrate was not present and the courtroom was dark on Friday, July 31.   Based on that premise, the District Attorney argued that the court was not in “session” and therefore the one continuous session rule cannot apply in the absence of a “session.”   This formulation is simply a misapplication of the law defining the term “session” as used in section 861:  “ ‘an actual sitting continued by adjournments in ordinary course from day to day, or over Sundays and holidays, but not interrupted by adjournment to a distant day[ ]’ (United States v. Dietrich (C.C.1904) 126 F. 659, 660)” but subject to interruptions to conduct brief court matters and postponements for good cause.  (In re Karpf, supra, 10 Cal.App.3d 355, 365, 88 Cal.Rptr. 895.)   Common sense compels the rejection of the proposition that the magistrate's voluntary absence from the courtroom necessarily eliminates the court's capacity to provide the petitioners' right to a one continuous preliminary hearing on the premise that without a court in “session” there can be no “continuous session.”   The fallacy of that proposition is so apparent that during oral argument the District Attorney accepted this court's invitation to abandon that contention.

D. GOOD CAUSE DOES NOT EXIST TO SUPPORT THE MAGISTRATE'S DECISION NOT TO CONDUCT THE HEARING ON FRIDAY, JULY 31

 When the magistrate recessed over the objection of petitioners on Thursday, July 30, to Monday, August 3, it was not simply an interruption in order to attend to a “brief court matter.”   The magistrate's action was a postponement of the preliminary examination.⁸  To postpone the preliminary hearing requires good cause shown by affidavit.   Here there was no affidavit filed by anyone.   The postponement was based on the reasons stated by the magistrate on the record.   It is not especially essential to our determination here that the magistrate failed to file an affidavit because only he was empowered to rule on a request to postpone the preliminary hearing.   Given the lengthy recitations by the court and counsel concerning the magistrate's adamant determination that there would be no proceeding on July 31 and the strong objections of Stroud's counsel, it is difficult to imagine what an affidavit would have added.   Though it may have been desirable, absence of an affidavit is not dispositive.

 The crucial issue is whether the magistrate's declared commitment to attend a drug oversight community meeting in San Francisco with 11 other members of a Judicial Council Task Force overrides the petitioners' right to a continuous preliminary hearing.

Although there are no reported decisions articulating what constitutes “good cause” as applied to section 861, decisions involving the right to a speedy trial codified in section 1382 do provide guidance.   In People v. Johnson (1980) 26 Cal.3d 557, 570, 162 Cal.Rptr. 431, 606 P.2d 738, the Supreme Court observed:  “What constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court.   In reviewing trial courts' exercise of that discretion, the appellate courts have evolved certain general principles.   The courts agree, for example, that delay caused by the conduct of the defendant constitutes good cause to deny his motion to dismiss.   Delay for defendant's benefit also constitutes good cause.   Finally, delay arising from unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses constitutes good cause to avoid dismissal.   Delay attributable to the fault of the prosecution, on the other hand, does not constitute good cause.   Neither does delay caused by improper court administration.”  (Citations and fns. omitted.)   To the same effect is People v. Santamaria (1991) 229 Cal.App.3d 269, 277, 280 Cal.Rptr. 43.  “Although most cases exploring what constitutes good cause involve continuances requested by a party, the good cause requirement is equally applicable to a midtrial continuance or delay occasioned by the trial court itself.   Just as the court cannot grant a party's motion to continue without a showing of good cause, it cannot order a continuance on its own motion without good cause.”  (Ibid.)

The District Attorney relies on cases where judicially declared extensions of time were held to be good cause, but none of them is applicable to the facts of the present matter.  (People v. Gopal (1985) 171 Cal.App.3d 524, 546, 217 Cal.Rptr. 487 [good cause shown where trial placed conflicting demands upon trial judge due to his role as presiding judge of multi-judge court with a criminal justice crisis];  People v. Ruiz (1988) 44 Cal.3d 589, 617, 244 Cal.Rptr. 200, 749 P.2d 854 [good cause shown where trial court devoted three and one-half days to criminal trial where judge had separate administrative duties of managing law and motion calendar during the remaining one and one-half days each week].)

There are other cases, however, where the basis for a judicially declared extension are more akin to what occurred here.   In People v. Katzman (1968) 258 Cal.App.2d 777, 66 Cal.Rptr. 319, trial was commenced and proceeded for two days and then recessed to be resumed approximately two weeks later.   A significant part of the continuance was due to the trial judge's plan to attend a judges' conference from March 22 to April 4. The appellate court held that it was error for the trial judge to continue the trial over the defendant's objection.  “Here the ground for the continuance was the judge's appointment to attend a conference.   The court's schedule, however, is an insufficient excuse for delay.   No judge has an inherent right to try any particular case nor to refuse to transfer cases out of his department.   It was therefore error for the court here to grant a continuance;  it should instead have transferred the case to another department in which trial could be commenced without interruption.”  (Id. at p. 789, 66 Cal.Rptr. 319, citations omitted, overruled on other grounds in Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 779, 780, fn. 11, 200 Cal.Rptr. 916, 677 P.2d 1206.)

In Lewis v. Superior Court (1981) 122 Cal.App.3d 494, 176 Cal.Rptr. 80, the defendants were not brought to trial within the 60-day limitation of section 1382 and moved for dismissal.   The trial court denied the motion because there were not enough judges available because 5 to 7 judges from the 37-judge court were attending a program at the California Center for Judicial Education and Research sponsored by the Judicial Council.   In finding there was no “good cause” for failing to bring the matter to trial, the Court of Appeal concluded “that the trial court erred in favoring [the benefits of continuing education for judges] by denying the rights of these defendants to be tried within the time limits specified by Penal Code section 1382.”   (Id. at p. 498, 176 Cal.Rptr. 80.)

If attendance at a judicial conference or a program at the California Center for Judicial Education and Research sponsored by the Judicial Council is not “good cause” to continue a trial beyond the statutory limits, then the magistrate's postponement of the preliminary examination here is likewise error.   When the magistrate closed his courtroom for one full day to attend a drug oversight community meeting in San Francisco, he deprived the petitioners of a continuous single session preliminary examination contrary to section 861 in the same way as the defendants were denied their speedy trial rights in Katzman and Lewis.   The postponement of the petitioners' preliminary hearing was wholly without good cause.

The District Attorney attempts to avoid this conclusion by noting that the preliminary examination far exceeded the magistrate's understanding of the estimated time for the conduct of the hearing.   In other words, if the magistrate had known that the preliminary examination would extend beyond July 30, he would have declined to commence it in anticipation that it would be assigned to another court.   There are several answers to this argument.   First, the record does not support this claim.   The record only contains the following statement from the magistrate made after an objection was posed to his intended absence:  “This case came in for a day-and-a-half estimate,” and the response of Stroud's counsel:  “I never gave it that estimate.”   Second, a defendant's right to a continuous preliminary hearing is not dependent on its being completed within any time frame estimated by anyone and, even if it does exceed any such estimate, there is no provision for postponing it except for good cause.   Finally, the record reveals that the magistrate devoted a great deal of time to his drug court calendar, interruptions which were entirely appropriate, but those interruptions, nonetheless, substantially protracted the hearing.

It is apparent that the magistrate assumed that he had a paramount obligation to attend the July 31 meeting in San Francisco that took precedence over his duty to afford the petitioners a continuous hearing.   We informed counsel for the parties that we had reviewed the July 15, 1998, order of the Chief Justice of California and the Chair of the Judicial Council appointing the magistrate, Judge Stephen Marcus, to the Drug Court Task Force and the March 10, 1999, report summary from the Administrative Office of the Courts on the “ Oversight Committee for the California Drug Court Project.”   We inquired if there were objections to our taking judicial notice of those documents pursuant to Evidence Code sections 452, subdivisions (c) and (d) and 459, subdivision (b) to establish that the magistrate, in fact, attended a meeting of the Judicial Council Drug Court Task Force on July 31, 1998.   We also inquired if the magistrate's attendance at the meeting was mandatory as a matter of law (e.g., required by statute or rule of court).   There were no objections to the judicial notice of the documents and only the District Attorney responded that the attendance of the magistrate was mandatory, relying on California Constitution, article VI, section 6, which provides in part, “[Judges] shall cooperate with the council and hold court as assigned.”   This is hardly authority for the proposition that attendance at a Judicial Council oversight committee or task force meetings is mandatory.   The mandate to “cooperate” is simply not authority for the magistrate to disregard section 861 or any other mandatory statute pertaining to the conduct of criminal proceedings.

California Rules of Court, Judicial Administration Rules, rules 6.30 through 6.70, govern the establishment of Judicial Council advisory committees and task forces.   The only reference to meetings is rule 6.33:  “Each advisory committee shall meet as often as its chair deems necessary, within available resources.   Meetings may be in person or by teleconference.   One of the meetings is an orientation meeting to plan the committee's work for the coming year.”   Counsel for the parties have not referred us to any statute or rule that mandates attendance for any Judicial Council oversight committee or task force.   Furthermore, our own independent efforts to resolve that inquiry revealed that there is no such law.   Therefore, there was no good cause shown to postpone the preliminary hearing.

E. THE SUPERIOR COURT USED AN INCORRECT ANALYSIS IN DENYING THE SECTION 995 MOTIONS

The superior court's determination of the section 995 motions challenging the information on the ground that the petitioners had not been legally committed by the magistrate was based on a faulty analysis.   The court apparently believed that so long as the record shows that a substantial majority of the court's time is devoted to the preliminary hearing, no right is impinged.   No doubt the court was relying on that part of People v. Guevara, supra, 132 Cal.App.3d 193, 201, 183 Cal.Rptr. 18, which held that preliminary examinations can be interrupted “ ‘to conduct brief court matters so long as the substantial majority of the court's time is devoted to the preliminary examination.’ ”   For that reason the focus of the court's analysis in ruling on the section 995 motion was a comparison of the time the magistrate gave to “conduct brief court matters” and the time actually consumed in conducting the preliminary examination.   As to the postponement of the preliminary examination on all of Friday, July 31, the court simply concluded that the “ defendants were not prejudiced.”   The court's failure to address whether the postponement was for good cause in accord with the terms of section 861 is an omission that renders its ruling on the motion erroneous.

 We have concluded that the postponement of the preliminary examination on Friday, July 31, was without good cause so that petitioners were denied the substantial right to a continuous preliminary hearing.  “It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.”  (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941.)

 “The California Supreme Court has declared that a preliminary examination must be held basically in accordance with the commitment procedures established by ․ Penal Code (§§ 859-883), and that if a magistrate disregards a substantial right therein guaranteed to a defendant, the resulting commitment is unlawful;  an affirmative showing of prejudice is not required where the right is absolute or mandatory in nature.  [Citations.]”  (Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 467, 142 Cal.Rptr. 882, italics added.)   The right set forth in section 861 to a continuous preliminary hearing is such a right.  “[V]iolation is not a mere technicality, but a substantial error and grounds for a motion to dismiss under P.C. 995.  [Citation.]”  (1 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Proceedings Before Trial, § 1981, p. 2339.)   Petitioners were therefore entitled to have the superior court set aside the information as being grounded in an unlawful commitment.   No more need be shown.

F. PETITIONER SWAIN HAS PRESERVED HIS RIGHT TO CONTEND SECTION 861 HAS BEEN VIOLATED

 Although Swain's counsel did not object when the magistrate stated he would not conduct the preliminary hearing on July 31, she later joined in cocounsel's motion to dismiss.   As we now explain, this was sufficient to preserve Swain's right first to move to set aside the information on the basis section 861 was violated and then to file the present petition.   In fact, the District Attorney does not contend to the contrary.

 As a general proposition, a party is required to make a timely objection in order to bring the alleged error to the court's attention and to give the court an opportunity to correct the error.  (See, e.g., People v. Wilson (1963) 60 Cal.2d 139, 147, 32 Cal.Rptr. 44, 383 P.2d 452 [requirement of objection if trial is set beyond date required by § 1382].)

In this matter, counsel for Stroud objected on two different occasions during the proceedings conducted on Wednesday, July 29.   Each objection urged that the magistrate's decision not to conduct the hearing on Friday, July 31, violated section 861.   Each time the magistrate overruled the objection.   At the beginning of proceedings held on Thursday, July 30, the magistrate reiterated both his decision and his recognition that Stroud's counsel objected to the decision.   Twice during that day's proceedings, Stroud's attorney unsuccessfully renewed his objection.

On Monday, August 3, Stroud's attorney moved to dismiss based upon the violation of section 861.   Swain's attorney joined in the motion.   She explained:  “I realize that I didn't make the objection on Thursday nor have I made the objection until today's date, but in light of the fact that Mr. Davis [counsel for Stroud] made the objection continually and it didn't seem to persuade the court, I doubt that my joining in on the objection at that time would have changed the court's mind.”   The magistrate then denied both motions to dismiss.

One leading treatise has noted:  “There is little law on when an objection is required at the preliminary hearing in order for defense counsel to be able to raise an issue by Pen C § 995 motion.   To be safe, counsel usually should object at the preliminary hearing․  [¶] It is obvious that the Pen C § 995 judge will not set aside an information based on a motion not made at the preliminary hearing․   It is unclear, however, whether an objection must have been made at the time when it is claimed the defendant was deprived of a ‘substantial right.’ ”  (Cal.Criminal Law Procedure & Practice (Cont.Ed.Bar 4th ed.   1998) Motion to Set Aside Information or Quash Indictment, § 23.24, p. 583, italics added.)

In this matter, Swain's section 995 motion urged he had been committed in deprivation of a substantial right:  the right to a continuous preliminary hearing codified in section 861.   In the course of the preliminary hearing, his codefendant's attorney made four explicit but fruitless objections to the magistrate's decision.   When counsel made those objections, the magistrate was required to evaluate the merit(s) of the objection and either to satisfy himself that his proposed action did not violate section 861 or to decide not to leave for the meeting.   At several points, the magistrate rejected the claim advanced by Stroud's attorney.   Counsel for Swain had no reason to expect the magistrate would respond differently to an objection made by her.  (See Reid v. Superior Court (1983) 140 Cal.App.3d 624, 630-631, 189 Cal.Rptr. 644.)   Likewise, we have no reason to expect the magistrate would have ruled differently had Swain's attorney made the same objection.   Stroud's attorney cogently argued the point;  the magistrate simply saw it differently.   After the magistrate did not conduct the preliminary hearing on July 31, each defense attorney made a timely motion to dismiss, thereby preserving each petitioner's right to move to set aside the information based upon the violation of section 861.   The section 995 motions were made and denied, giving rise to this writ proceeding.   In light of the particular factual matrix of this case, no more was required in order to permit Swain to pursue his claim either in the superior court or in this court.

DISPOSITION

Let a writ of prohibition issue restraining the superior court from conducting any proceedings, including trial, against petitioners based upon information number BA115847 other than to set aside and dismiss the information as prayed for in petitioners' section 995 motions.   The order to show cause is dissolved.   The stay order to remain in effect until this decision becomes final.

FOOTNOTES

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

2.   Both Stroud and Swain filed independent petitions challenging the denial of their respective motions to set aside the information.   Their petitions have been consolidated for consideration and disposition.

3.   All future date references are to 1998.

4.   The prosecutor specifically informed the court:  “And I think all counsel are agreeing on stopping at 10:30 today, if that pleases the court, and stopping at 12:00, noon, tomorrow;  and then going on until it's done, starting Monday.”   Stroud's counsel confirmed the understanding:  “The understanding in waivers and representation by all counsel represented in good faith was that we would stop at 10:30, and we would resume Friday morning, at whatever hour you (the magistrate) appoint, to stop at 12:00, and in the interim, we would be able to review these notes and be more thoroughly prepared.”

5.   “Mr. Davis:  Just as a matter of record, I respectfully move to dismiss charges [against] my client [Stroud] on the grounds that we've established and you essentially consider[ed], and that is that by our absence from proceedings for a portion Thursday and for the entirety of Friday, it's in violation of the one-session rule of Penal Code section 861.”

6.   In denying the motion, the magistrate stated that he had spent more than five hours conducting the preliminary hearing on Thursday.   In addition he said he went to the Judicial Council on Friday and “I believe I was not in session, and therefore, the rule was not violated.”

7.   The court's computation is wrong. 33 hours = 1980 minutes + 15 minutes = 1995 total minutes -:6.5 days = 306.92 minutes per day = 5.115 hours per day.

8.   The petitioners claim that their right to a continuous preliminary hearing was also violated when, during the afternoon of July 30, the court temporarily recessed their hearing for one and a half hours in order to attend to previously scheduled drug court matters before it returned to the preliminary hearings to permit defense counsel (Davis) to conclude cross-examination of a People's witness.   That one and a half hour interruption was not a violation of section 861.   It was simply a brief interruption to permit the magistrate to properly attend to other court matters.

CHARLES S. VOGEL, P.J.

EPSTEIN, J., and CURRY, J., concur.