EMERY v. PEOPLE (1980)

Petitioner, charged by information with a violation of Vehicle Code section 23101, subdivision (b), and Penal Code section 484, by writ of prohibition seeks to preclude further prosecution in the respondent court. He contends the court exceeded its jurisdiction by denying his motion to set aside the information (Pen.Code, s 995), on his assertion that he had not been afforded a timely preliminary hearing as required by Penal Code section 859b.¹

The facts upon which his assertion is founded are that on November 21, 1979, complaint No. 48329F was filed charging petitioner with the substantive offenses. On November 28, 1979, having been previously arraigned, he entered a not-guilty plea and a preliminary hearing was set for December 12, 1979, within the time required by Penal Code section 859b. On the latter date, the prosecution, without witnesses, submitted the matter to the magistrate who in turn discharged petitioner pursuant to the provisions of section 871. Petitioner was rearrested, and on December 13, 1979, a new complaint No. 48613F was filed charging the same offenses. Petitioner was arraigned on that complaint as required by section 858, and on December 20, 1979, entered a not-guilty plea, and a preliminary hearing was scheduled for January 4, 1980. That hearing was conducted and defendant was held to answer all charges. On January 17, 1980, an information was filed charging the offenses described in the complaint, and on February 26, 1980, a motion to dismiss (s 995) was argued and denied.

The pivotal issue is whether the language of Penal Code section 859b, that “In no instance shall the preliminary examination be continued beyond 10 court days from ... arraignment or plea whenever the defendant is in custody at the time of ... arraignment or plea and the defendant does not personally waive his right to preliminary examination within ... 10 court days,” applies to the date of original arraignment or plea on complaint No. 48329F or to complaint No. 48613F to which petitioner entered his plea December 20, 1979. We hold the 10-day period commenced December 20, 1979, the date on which petitioner pled to the complaint charging the substantive offenses.

The language of 859b compels that conclusion as it necessarily points to the complaint upon which the hearing is to be held; it does not directly or inferentially refer to a prior complaint filed following an original arrest which, for just cause, was discharged by the magistrate pursuant to section 871.

Petitioner, in support of his contention, relies upon Johnson v. Superior Court (1979) 97 Cal.App.3d 682, 158 Cal.Rptr. 899. His reliance is misplaced. Although factually similar to this proceeding, that court's conclusion is wrong and conflicts with rational analysis of section 859b and section 871.

The Johnson court ignored its own factual context when it stated, “Two appellate courts have held that a defendant who is in custody and who does not waive his rights under Penal Code section 859b is not legally committed within the meaning of Penal Code section 995 when he is denied the right to have his preliminary examination held within the mandatory time limits of Penal Code section 859b. (Irving v. Superior Court, supra, 93 Cal.App.3d 596, 155 Cal.Rptr. 654; Serrato v. Superior Court, supra, 76 Cal.App.3d 459, 142 Cal.Rptr. 882.) ...

“It is undisputed that petitioner has been in custody since his arrest on April 29, 1979 and at no time personally waived his right to a preliminary examination within 10 court days of his arraignment or plea. We conclude that under the circumstances shown here petitioner had not been legally committed by a magistrate and that petitioner was entitled to relief under Penal Code section 995.” (Id., at p. 686, 158 Cal.Rptr. 899.)

Irving v. Superior Court (1979) 93 Cal.App.3d 596, 155 Cal.Rptr. 654, and Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 142 Cal.Rptr. 882, relied upon by the Johnson court, involved but single complaints; the defendants in each case were charged, arraigned, pled, and had preliminary hearings conducted beyond the requirements of 859b. The cases are factually inapposite to either Johnson or to this proceeding.

The fact that Johnson had been arraigned and pled, was discharged pursuant to section 871, recharged, arraigned, pled, and given a preliminary hearing on the subsequent complaint was ignored by the court. To arrive at the Johnson result we would be compelled either to ignore the second complaint or hold that section 871 had been repealed by implication with the adoption of section 859b. We decline to do either.

We disagree with the Johnson conclusion and hold the 10-day period for conducting a preliminary hearing commenced with the arraignment or plea on the second complaint.

The pertinent language in Penal Code section 859b of necessity refers to petitioner's arraignment or plea to the complaint upon which the preliminary hearing is to be held. In this instance this is the December 20, 1979 arraignment upon the second complaint, No. 48613F. The original complaint was no longer of any force following the December 12, 1979 proceeding, the date petitioner was discharged pursuant to section 871; accordingly, the proceedings upon the original complaint are irrelevant to the issue of whether petitioner was afforded a timely preliminary hearing on the second complaint, No. 48613F.

In justifying the glossy treatment accorded the facts in Johnson, petitioner suggests the discharge based upon section 871 was improper as the prosecutor advised the magistrate he did not have witnesses, submitted the matter, whereupon the petitioner was discharged by the magistrate pursuant to section 871 and thereafter rearrested. He argues that such a proceeding does not constitute a “hearing of proof.” That argument must be rejected.

The provisions of section 871 vests authority in the magistrate to discharge a defendant. That section provides, “DEFENDANT, WHEN AND HOW DISCHARGED. If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, by an indorsement on the depositions and statement, signed by him, to the following effect: ‘There being no sufficient cause to believe the within named A.B. guilty of the offense within mentioned, I order him to be discharged.’ ”

We conclude that on December 12, 1979, the magistrate ended judicial proceedings upon the original complaint by discharging petitioner pursuant to Penal Code section 871. We construe the section 871 phrase “after hearing the proofs” to require only that the magistrate hear whatever evidence is adduced by the parties before ordering that a defendant be discharged. If no evidence is presented, the discharge necessarily follows from lack of proof. That the magistrate should have the authority to discharge a defendant when the prosecution presents no evidence is supported both by reason and public policy.

To interpret the phrase “after hearing the proofs” as requiring actual presentation of evidence before a defendant can be validly discharged would encourage the People to resort to a sham preliminary examination, an obvious judicial waste. To require the examination of a witness having no familiarity with the facts would be absurd; it would result in a statutory construction which would require the indulgence of an idle act and result in an illogical conclusion. (Civ.Code, s 3532.) Where legislative intent is clear, penal statutes must be construed reasonably to effectuate that intent. Statutes must not be read literally where to do so would lead to absurd consequences. (Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 264, 146 Cal.Rptr. 396.)

A contrary conclusion would result in absurd consequences. For example, should the magistrate choose not to indulge a sham preliminary hearing, there would be no way of terminating the case unless the magistrate could exercise his authority to discharge the defendant pursuant to Penal Code section 871. This conclusion is compelled by the magistrate's lack of authority to dismiss the case pursuant to Penal Code section 1385. (See People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651.) Similarly, if bona fide witnesses were present and a knowingly ineffective late preliminary hearing was held, resulting in the defendant's being held to answer, it would be a matter of form for the defendant to successfully prosecute a Penal Code section 995 motion in the superior court under Serrato and Irving, supra. In that instance, the 995 dismissal would not foreclose filing a subsequent complaint.

We do not believe the Legislature intended, or that logic reason or public policy requires, such circumventing gamesmanship when the result can be accomplished directly by recognizing that the magistrate has authority to discharge a defendant when evidence is not presented by the prosecution and the matter is submitted at the preliminary hearing.

We conclude that the 10-day period prescribed in section 859b started December 20, 1979, and since the preliminary hearing commenced January 4, it was within the legal time limit. (See Simmons v. Municipal Court (1980) 108 Cal.App.3d 295, 305, 166 Cal.Rptr. 556.) The respondent court correctly denied petitioner's motion to dismiss pursuant to section 995.

The petition for writ of prohibition is denied, and the stay order issued by this court on April 29, 1980, shall remain in effect until this decision is final in this court.

FOOTNOTES

1.  All further statutory references will be to the Penal Code unless otherwise stated.

EVANS, Justice.

REGAN, Acting P. J. and CARR, J., concur.