SIMMONS v. MUNICIPAL COURT FOR CITY AND COUNTY OF SAN FRANCISCO (1980)

Both the parties and amici petitions for rehearing point to an aspect of our decision which, they argue, creates the very procedural morass and “judicial limbo” against which we repined in our decision, and which to the greatest extent possible we attempted in our decision to avoid.

What, they ask, shall be done with the defendant whose preliminary hearing is set over to a time more than 10 days after arraignment, who is then released on bail or O.R., but who does not seek the habeas corpus relief to which our decision commends (or consigns) him? The prohibition of Penal Code section 859b has been triggered, and the 10-day deadline set by the Legislature has begun to run, while, since People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651, no magistrate may dismiss the charge at a belated preliminary examination.

Our decision, however, while it requires the addition of what the People and amici regard as a superfluous procedural step the “sham” preliminary of which the court in Guerrero^* spoke does of course permit ultimate resolution of the proceedings. Thus, if the defendant brought to an untimely preliminary examination is held to answer after dismissal, and then moves to dismiss under Penal Code section 995, the People may refile the charges against him without hindrance in the absence of clear proof of mere purpose of harassment; while, if he declines to seek dismissal, he is “precluded from afterwards taking the objections mentioned in section 995.” (Pen. Code, s 996.)

We readily concede that our conclusion is less satisfactory to the People than that fashioned by the court in Guerrero v. Superior Court, supra, 107 Cal.App.3d 186, 165 Cal.Rptr. 539. We are constrained to it, however, by our conviction that the interpretation given the phrase “after hearing the proofs” in Penal Code section 871 by the court in Guerrero, supra, is neither correct nor consistent with the legislative intent underlying enactment of Penal Code section 859b.

With the sudden advent of Peters, a legislative void has been created. We do not conceive it to be the function of an inferior appellate court to attempt to fill it.

Petitions for rehearing are denied.

FOOTNOTES

FOOTNOTE.  Guerrero v. Superior Court (1980) 107 Cal.App.3d 186, 165 Cal.Rptr. 539.

BY THE COURT: