IN RE: Babette Jane SPITLER (1984)

OPINION AND ORDER

Petitioners are codefendants in two complaints pending in municipal court.   On May 23, 1984, petitioner Spitler (Spitler) filed a petition for writ of habeas corpus alleging she was unlawfully denied bail.   She filed a supplemental petition for writ of habeas corpus on May 31, 1984 seeking immediate release pursuant to section 1318 of the Penal Code on grounds that she was confined in violation of section 859b (section 859b) of the Penal Code and the holding of the Supreme Court in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (Hawkins ).

Petitioner Raidor (Raidor) filed a petition for writ of habeas corpus on June 5, 1984 containing allegations virtually identical with those in Spitler's petition.   We have consolidated the petitions for decision as they are on all fours with respect to the legal issues presented.

PROCEDURAL HISTORY

We begin this opinion with a recitation of events creating a judicial Gordian knot which this court must now attempt to disentangle.

Petitioners and five other persons were charged in an indictment returned by the Los Angeles Grand Jury on March 22, 1984 with commission of lewd and lascivious acts upon children under the age of 14 years.¹  (Pen.Code, § 288, subd. (a).)  At a hearing held in Los Angeles Superior Court on April 6, 1984, five of the defendants waived their right to have their arraignment and plea take place on that date, and agreed to have the matters put over until April 20, 1984.   Raidor requested immediate arraignment and entry of plea.   She was arraigned, entered a plea of not guilty to all charges against her in the indictment and a denial to all special enhancements, and requested a post-indictment preliminary hearing be conducted “without a time waiver.”

Over Raidor's objection, the court did not set the matter for preliminary hearing, stating that it would do so only after all defendants requesting preliminary hearing were arraigned and entered their pleas, at which time a joint preliminary hearing would be held.   Raidor's objection to the court's ruling was overruled.   Spitler also demanded immediate arraignment and plea, joined in Raidor's objection to a continuance of the preliminary hearing until April 20, was arraigned, and entered a plea of not guilty to all counts charged against her.²

On April 20, 1984, the remaining five defendants were arraigned in superior court and entered pleas of not guilty.   The court once again ruled that there would be “one preliminary hearing [for all of the defendants] and one preliminary hearing only,” and stated further that any defendant who did not elect to join in that hearing would forego the opportunity for a post-indictment preliminary hearing.   Petitioners' renewed objections to the court's ruling refusing to set a preliminary hearing within ten days of their arraignment and plea were overruled, and the court ordered all defendants who requested a post-indictment preliminary hearing to appear on June 18, 1984 for that purpose.³

On April 24, 1984, Raidor filed a notice of motion and motion “to set aside and dismiss the information filed herein” for failure to conduct a preliminary hearing within the mandatory time limits.   The motion was denied,⁴ and on May 17, 1984, Raidor filed a petition for writ of habeas corpus in this court alleging unlawful confinement.   Opposition was requested and filed by the People on May 22, 1984.

On May 24, 1984, this court issued an opinion and order (the May 24 opinion) directing the issuance of a peremptory writ of mandate commanding the superior court, pursuant to Hawkins and section 859b, to order the prompt refiling of the indictment of Raidor as a complaint if it had not yet been done, and to order Raidor's immediate release from custody pursuant to section 1318 of the Penal Code pending the preliminary hearing on such complaint.

On May 23, 1984, unbeknownst to this court at the time of our May 24 opinion, the People filed a criminal complaint, no. A753005, arising out of the same subject matter as the indictment and charging the same seven defendants (the May 23 complaint).

The May 23 complaint, although charging the defendants with criminal acts which were the subject of the indictment, charged them with violating section 288, subdivision (b) (and not subdivision (a)) of the Penal Code,⁵ and added a number of counts as to petitioners.⁶

On May 24, 1984 petitioners appeared before a magistrate who ordered them held pursuant to no bail on the May 23 complaint.   Arraignment and plea on the complaint were continued until June 6, 1984.

On May 29, 1984, we issued an order modifying our May 24 opinion and denying the People's request for a rehearing on Raidor's petition for habeas corpus.   In view of the superior court's failure to comply with the terms of our May 24 opinion, on May 30, 1984, we issued a peremptory writ directing such compliance.⁷

On the same date (May 30) the superior court ordered the prompt refiling of the indictment of Raidor as a complaint in municipal court, and the immediate release of Raidor from custody.   The minute order entered on that date includes the sentences, “Defendant is ordered released this case only,” and “DEFENDANT RELEASED.”   Hence, despite the order of the superior court purporting to comply with our peremptory writ, petitioner Raidor remained confined pursuant to the denial of bail on the May 23 complaint.

Also on May 30, 1984, the People filed a second complaint against all seven codefendants (the May 30 complaint), containing charges against them identical with those in the indictment.   Entry of pleas on the May 30 complaint was continued until June 6, 1984.

On June 1, 1984, we issued an order, pursuant to section 923 of the Code of Civil Procedure, for Spitler's immediate own-recognizance release from confinement pending determination of the merits of her May 23, 1984 petition for habeas corpus as supplemented on May 31, 1984.   Also on June 1, the municipal court set bail for Raidor at $750,000, and for Spitler at $400,000 on the May 23 complaint.

On June 4, 1984, Spitler was released from custody pursuant to our June 1 order.

On June 5, 1984, Raidor filed a second petition for writ of habeas corpus seeking her immediate own-recognizance release from confinement, on grounds that she was in the same procedural posture as Spitler.   On June 5, we ordered Raidor's immediate release on the same grounds as our order for Spitler's release.

DISCUSSION

A. Failure to Refile Indictment As a Complaint

In Hawkins v. Superior Court, supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, the Supreme Court held that defendants who have been indicted by a grand jury are seriously disadvantaged in contrast to defendants charged by information,⁸ and hence are constitutionally entitled to a post-indictment preliminary hearing in order to secure for them “ ‘such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution.   These guarantees are expressly or impliedly grounded in both the state and federal Constitutions and must by any test be deemed “fundamental.” ’  (Johnson v. Superior Court (1975) 15 Cal.3d 248, 266 [124 Cal.Rptr. 32, 539 P.2d 792] (conc. opn. by Mosk, J.).)”  (At pp. 592–593, 150 Cal.Rptr. 435, 586 P.2d 916.)

The Hawkins court set out the following procedure to be followed:

“The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury;  indeed, that function is explicitly sanctioned in the California Constitution (art. I, §§ 14, 23) and specifically implemented by the Legislature (Pen.Code, § 859 et seq.).   Until such time as the Legislature may prescribe other appropriate procedures, the remedy most consistent with the state Constitution as a whole and least intrusive on the Legislature's prerogative is simply to permit the indictment process to continue precisely as it has, but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea.   If the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen.Code, § 859 et seq.).”   (Hawkins v. Superior Court, supra, 22 Cal.3d 584, at pp. 593–594, 150 Cal.Rptr. 435, 586 P.2d 916 [italics added;  fn. omitted].)

 Here, petitioners' timely request for a post-indictment preliminary hearing was denied, and at the time of such request neither the court nor the prosecutor complied with the further Hawkins mandate that when a defendant requests a post-indictment preliminary hearing, “at the direction of the court the prosecuting attorney shall refile the indictment as a complaint․”  (Id., at 594, 150 Cal.Rptr. 435, 586 P.2d 916.)   This was error.   We read the Hawkins language requiring the prosecutor to refile the indictment as a complaint as a mandate permitting no deviation upon a defendant's timely request for a preliminary hearing.

We proceed to review the applicable provisions of section 859b in order to consider the consequences of the foregoing error.

B. Section 859b

Section 859b as most recently amended provides, in relevant part:

“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.

“Whenever the defendant is in custody, 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 and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur:

“(a) The defendant personally waives his or her right to preliminary examination within the 10 court days.

“(b) The prosecution establishes good cause for a continuance beyond the 10-court day period.

“If the preliminary examination is set or continued beyond the 10-court day period, the defendant shall be released pursuant to Section 1318 unless:

“(1) The defendant requests the setting of continuance of the preliminary examination beyond the 10-court day period.

“(2) The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great.

“(3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant.

“(4) The illness of counsel.

“(5) The unexpected engagement of counsel in a jury trial.

“(6) Unforeseen conflicts of interest which require appointment of new counsel.”  (Italics added.)

 On its face section 859b makes reference to “the complaint,” and hence there is a lack of statutory direction with respect to the rights of indicted defendants to release from custody if the preliminary hearing is set beyond the 10-court day period and the indictment is not promptly refiled as a complaint.   Clearly, however, the purpose to be served by the provision in section 859b calling for mandatory release if the preliminary hearing is set beyond the 10-day limit is to ensure that those persons charged with felonies who are unable to post bail are not confined more than 10 days without a judicial determination of probable cause.  (See 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.)   Here, petitioners entered their pleas on April 6, and remained in custody thereafter due to noncompliance by the court and the prosecution with the mandate of Hawkins.   We conclude that in a situation such as the instant one, the only method to implement the provisions of section 859b as well as the equal protection requirements established by our Supreme Court in Hawkins is to place petitioners on a footing substantially the same as if the indictment had been promptly refiled as a complaint upon petitioners' request for a preliminary hearing.

 As a result of the court's failure to order the prosecution to refile the indictment as a complaint, both petitioners herein were held in custody for periods far exceeding ten days from the date upon which the indictment should have been so refiled.⁹  Consequently, they were not placed in the posture of a defendant charged in a complaint as required by the equal protection requirements set out in Hawkins.

C. Effect of the May 23 Complaint

In our May 24 opinion, as modified, we stated at footnote 6, “The belated filing by the People of a first complaint subsequent to petitioner's request for a preliminary hearing, pursuant to this order or otherwise, will not affect petitioner's right to release pursuant to section 1318 [of the Penal Code].”  Under the holding of the Supreme Court in Hawkins, the People's failure to refile the indictment as a complaint upon petitioners' demand for a preliminary hearing deprived them of equal protection of the laws guaranteed by article I, section 7, of the California Constitution.   The direct impact in the instant case was a violation of the petitioners' right to release from custody, pursuant to section 859b, once ten court days had run from a reasonable time to file the complaint after their plea was entered on April 6.   Clearly, the prompt refiling of the indictment as a complaint would not have affected petitioners' right to release pursuant to section 859b.   The People assert, however, that the May 23 complaint, filed under a case number different from that of the indictment, containing new charges against petitioners, and charging them with violating section 288, subdivision (b), rather than subdivision (a), of the Penal Code, initiates a new 10-day period under section 859b.¹⁰  We disagree.

 As mentioned earlier, the charges in the May 23 complaint were transactionally related to the charges in the indictment.   Despite the added counts, the charges in the May 23 complaint relate to the same basic set of events giving rise to the indictment, that is, the defendants' alleged sexual misconduct against a number of children in one institution.   And, the misconduct alleged in the indictment and in the May 23 complaint is very similar, although petitioners are charged under different code subdivisions.   To hold that the prosecution's election to switch code sections upon refiling of an indictment as a complaint (or to withhold some charges from the indictment and reserve them to be filed in a later complaint) could negate a defendant's otherwise immediate right to release, would grant the People the unfettered means to defeat the provisions of section 859b and the Supreme Court's mandate in Hawkins as to indicted defendants.¹¹

We conclude, therefore, (1) that the May 23 complaint is the “Hawkins complaint” even though it is not an exact facsimile of the indictment, and (2) that the differences between that complaint and the indictment do not affect petitioners' right to release pursuant to section 859b.

 Even construing the May 23 complaint as a true superseding complaint, it would not justify the present incarceration of petitioners.   Had the trial court followed the mandate of Hawkins and section 859b, an indictment would have been filed as a complaint within a reasonable time after April 6 and ten court days later the court would have ordered petitioners released on their own recognizance.   Furthermore, had the charges embodied in the May 23 complaint been filed against petitioners at that point petitioners conceivably could have been retained in continuous custody for another ten court days.   (Cf. Landrum v. Superior Court (1981) 30 Cal.3d 1, 177 Cal.Rptr. 325, 634 P.2d 352.)   Thus had the trial court and the people complied with Hawkins and section 859b, petitioners could have been held in custody without a preliminary hearing for a maximum of approximately 20 court days under all the charges filed in this case.   However, petitioners in fact remained in custody for over twice as long as that.

 On the other hand, had the People indeed waited until May 23 to file a second complaint, petitioners already would have been at liberty on their own recognizance for over a month before they were reincarcerated under this new accusatory pleading.   Only the trial court's failure to honor petitioner's rights made it possible to even argue these petitioners could be retained in continuous custody for over two months on a single indictment and this subsequent “superseding complaint.”   The trial court's failure to order timely filing of the post-indictment complaint and to timely release petitioners pending a preliminary hearing cannot be allowed to justify a longer deprivation of liberty than would have been permitted had the court complied with petitioners' constitutional and statutory rights.   That would require petitioners to suffer twice for the violation of their legal rights.   Moreover, it would encourage noncompliance with Hawkins and section 859b.   Accordingly, petitioners are entitled to release at this point whether the May 23 complaint is treated as a belatedly filed Hawkins complaint or a belatedly filed superseding complaint on which the people seek to predicate the continued denial of petitioners' liberty.

D. Effect of the May 30 Complaint

As noted earlier, on May 30, 1984, after we issued a peremptory writ in Raidor's petition for habeas corpus pursuant to our May 24 opinion, the superior court ordered the indictment refiled as a complaint and petitioner Raidor released from custody pursuant to section 1318 of the Penal Code for “this case only.”   The People immediately filed the May 30 complaint in municipal court under number A 750900 (the same number of the indictment).   The People contend that this complaint, and not the May 23 complaint, is the “Hawkins complaint,” and that petitioners' waiver of time for entry of plea on the May 30 complaint until June 6, 1984, must defeat their right to release pursuant to section 859b.   In view of our holding that the first transactionally related complaint following petitioners' request for a preliminary hearing, here the May 23 complaint, is the complaint mandated by Hawkins, we reject the People's contention, noting only that the filing of the May 30 complaint was at best a futile act, and at worst an exacerbation of an already tortuous procedural posture.¹²

E. Article I, Section 12 and Article I, Section 28(e) of the California Constitution

The People contend that an order by this court granting petitioners' release on their own recognizance violates Article I, Section 12 (section 12) and Article I, Section 28(e) (section 28(e)) of the California Constitution.

Section 12, as amended by passage by the voters of Proposition 4 on June 8, 1982, provides:

“A person shall be released on bail by sufficient sureties, except for:

“(a) Capital crimes when the facts are evident or the presumption great;

“(b) Felony offenses involving acts of violence on another person when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others;  or

“(c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

“Excessive bail may not be required.   In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.

“A person may be released on his or her own recognizance in the court's discretion.”  (Italics added.)

Article I, Section 28(e), added by the passage of Proposition 8, also on June 8, 1982, provides in relevant part:

“Public Safety Bail.   A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great.   Excessive bail may not be required.   In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.   Public safety shall be the primary consideration.

“A person may be released on his or her own recognizance in the court's discretion, subject to the same factors considered in setting bail.   However, no person charged with the commission of any serious felony shall be released on his or her own recognizance.”  (Italics added.)

Although both Proposition 4 and Proposition 8 received affirmative votes in the June 1982 general election, to the extent of any inconsistency between them the former controls.  (Cal. Const. Art. II, § 10(b), Art. XVIII, § 4;  see also In re Nordin (1983) 143 Cal.App.3d 538, 192 Cal.Rptr. 38, assuming the applicability of section 12.)

 Proposition 4 (section 12) and Proposition 8 (section 28(e)) are clearly inconsistent with respect to own-recognizance release.   This is not a situation where section 12 deals with one topic and section 28(e) with another.   Both of these relevant provisions concern a single topic—a defendant's release on own recognizance.   Moreover, they deal with this single topic inconsistently.   Viewed from the perspective of the courts, section 12 confers on the court discretion except for capital crimes to release any defendant on her own recognizance no matter what the charge is.   In sharp contrast, section 28(e) removes that discretion as to persons charged with “serious felonies.”   Similarly, viewed from the perspective of the defendant, section 12 allows a defendant charged with a serious felony to be released on her own recognizance if a court deems she qualifies.  Section 28(e) would deny that same defendant own recognizance release even if a court had determined that such release was appropriate.   It is difficult to imagine a more apparent conflict between two enactments.   Since the discretion of section 12 controls, any limitation on discretion contained in section 28(e) must be disregarded.   Thus, courts retain under section 12 the power to release people charged with “serious felonies” on their own recognizance.

In view of the foregoing, we discuss only the People's contention with respect to section 12.

 The People argue that release of petitioners by this court pursuant to section 859b is nevertheless subject to section 12 because Constitutional enactments override legislative enactments, and that such release violates section 12 if the People are denied an opportunity to prove, pursuant to clause (b) of section 12, that the facts relating to the charged offenses are evident and that “there is a substantial likelihood that [petitioners'] release would result in great bodily harm to others.”   Again, we disagree with the People's contention.

Section 859b reflects a legislative determination that a defendant is entitled to a speedy preliminary examination.   Hence, when the preliminary examination is set beyond 10 days from the date of arraignment or plea on a felony complaint and a defendant is in custody on such complaint during that period, absent a waiver by the defendant the complaint must be dismissed or the defendant must be released on her own recognizance pursuant to Penal Code section 1318.

Section 12 does not apply to own-recognizance release under section 859b.   Instead, section 12 sets forth the factors to be considered by a court at a hearing in making its decision whether to release a defendant.   Therefore there is no conflict between the provisions in section 12 with respect to a court's determination at a hearing whether to release a defendant, and the mandatory release provisions of section 859b when a preliminary examination has been set beyond 10 days following a defendant's arraignment or plea.

In combination, section 12, section 859b, the Equal Protection clause, and related provisions strike a careful balance between protection of the public and preservation of the rights of the accused.   Still, like all such accommodations of competing interests, this one assumes the courts and parties comply with the terms of the compromise.   When, as here, certain provisions are selectively ignored while others are enforced, the balance is disturbed and injustice results.   It is critical the errors uncovered through this petition be remedied before they infect this entire important prosecution.

To give even belated and partial effect to petitioners' constitutional and statutory rights and also to insure future compliance with the Hawkins mandate, it is necessary, in view of the unusual facts of this case, to construe the first complaint filed after the demand for a post-indictment preliminary hearing as the “Hawkins complaint” regardless of whether it modifies the charges in the indictment or adds new charges.¹³  For the same reasons, it is necessary to commence the 10-day 859b period as of the time that complaint should have been filed under Hawkins, that is, within a reasonable time after petitioners' plea to the indictment and accompanying request for a speedy preliminary hearing.   Accordingly, petitioners are entitled to continued release on their own recognizance pursuant to constitutional equal protection and section 859b pending the preliminary hearing on the May 23 complaint.

DISPOSITION

 By reason of the flexibility in the law controlling extraordinary relief, we are at liberty to direct the issuance of a writ which appears to be the most appropriate remedy in the circumstances and in the interests of justice.  (See Cal. Const., art. VI, § 10, first par.;   Judicial Council of Cal., Annual Rep. (1967) p. 75;  5 Witkin, Cal.Proc. (2d ed. 1971) Extraordinary Writs, §§ 5 [p. 3784], 183 [p. 3943].)  We are not limited in this regard by the label on the petition, or by its prayer, provided that the allegations in it support the relief we elect to grant.  (See Owens v. Superior Court (1959) 52 Cal.2d 822, 827 [345 P.2d 921, 78 A.L.R.2d 388];  5 Witkin, Procedure, op. cit., supra, Extraordinary Writs, §§ 183–184, pp. 3942–3944.)

 The allegations in petitioners' petitions and our review of the People's opposition thereto, as well as pertinent portions of the superior court and municipal court files in this matter, support the issuance of a writ of mandate with respect to the consolidated petitions herein which will require the municipal court to order that the temporary release of petitioners from custody pursuant to section 1318 of the Penal Code ordered earlier remain in effect pending the preliminary hearing on the May 23 complaint.   We direct the issuance of a peremptory writ in the first instance, and dispense with the issuance of an alternative writ, in view of the need for immediate relief in this matter.  (Code Civ.Proc., § 1088.)

Let a peremptory writ of mandate issue commanding the municipal court to order that petitioners herein remain free on their own recognizance pursuant to our orders of June 1, 1984 (No. B005452) and June 5, 1984 (No. B005638) pending each petitioner's preliminary hearing on the complaint in case no. A753005.   Except as so ordered, the petitions are denied.

FOOTNOTES

FOOTNOTE.  

1.   Spitler was charged with 6 counts and Raidor with 12 counts in the 115-count indictment.

2.   Also on April 6, the court revoked the existing bail for petitioners and three of the other defendants, citing article I, section 12 of the California Constitution.

3.   Two of the defendants did not request a post-indictment preliminary hearing and were ordered to appear in superior court on May 17, 1984, for pretrial conference and trial setting.

4.   The minute order reads:  “Defendant's motion ‘to set aside and dismiss the information filed herein’ is denied, no information having been filed in this case and no preliminary hearing having been held.”

5.   Penal Code section 288 provides in relevant part:  [¶ ] “(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.  [¶ ] (b) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or threat of great bodily harm, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six or eight years.”

6.   Raidor was charged in 12 counts in the indictment and in 20 counts in the May 23 complaint.   Spitler was charged in 6 counts in the indictment and in 22 counts in the May 23 complaint.

7.   The peremptory writ directed the superior court to comply forthwith “with the directions of the [May 24 opinion] as modified which has now become final, and which provides that you order the prompt refiling of the indictment of petitioner as a complaint if this has not been done, and further that you order the immediate release of petitioner from custody pursuant to section 1318 pending the preliminary hearing on such complaint.”

8.   The court stated in part:  “[C]urrent indictment procedures create what can only be characterized as a prosecutor's Eden:  he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance.   In sharp contrast are information procedures in which the defendant is entitled to an adversarial, judicial hearing that yields numerous protections, including a far more meaningful probable cause determination.   Yet the prosecuting attorney is free in his completely unfettered discretion to choose which defendants will be charged by indictment rather than information and consequently which catalogue of rights, widely disparate though they may be, a defendant will receive.   He may act out of what he believes to be proper law enforcement motives, or he may act whimsically;  no case law or statutory guidelines exist to circumscribe his discretion.”  (At p. 592, 150 Cal.Rptr. 435, 586 P.2d 916.)

9.   Petitioners demanded a preliminary hearing on April 6, 1984.   Spitler and Raidor were released, respectively, on June 4 and 6 pursuant to orders of this court.   Hence, both petitioners were confined for approximately 30 court days in excess of the 10-day court period provided in section 859b.

10.   The People proceed to note that on May 24, 1984, petitioners waived time for arraignment on the May 23 complaint until June 6, 1984, and argue that such waiver postpones the 10-day period.   As will appear, discussion of that contention is unnecessary in view of our conclusion that the filing of the May 23 complaint does not affect petitioners' right to release.

11.   In this connection, we note the following language used by the Supreme Court in Hawkins:“The prosecuting attorney is typically in complete control of the total process in the grand jury room:  he calls the witnesses, interprets the evidence, states and applies the law, and advises the grand jury on whether a crime has been committed.  [Citations.]  The grand jury is independent only in the sense that it is not formally attached to the prosecutor's office;  though legally free to vote as they please, grand jurors virtually always assent to the recommendations of the prosecuting attorney, a fact borne out by available statistical and survey data.  [Citations.]”

12.   For example, Penal Code section 1387 provides in part:  “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds that substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at or prior to the time of termination of the action or that the termination of the action was the result of the direct intimidation of a material witness, as shown by a preponderance of the evidence.”

13.   Indeed, the People seem to accept this interpretation.   A Declaration by Deputy District Attorney Lael R. Rubin dated June 11, 1984, filed in support of the People's petition for rehearing of this matter, contains the following language:  “[O]n May 17, 1984 in the Superior Court, counsel for Betty Evans Raidor requested that the court direct the District Attorney to file a post-indictment complaint․  [I]n response to the Court's inquiry, the People stated that it is our intention to file a complaint.   The People also stated that additional charges would be filed.   The People further stated that the preparation of such a complaint was taking longer than had been anticipated because it was our intention that the complaint accurately reflect the charges against each defendant.   The People further stated that we did not wish to interfere with any due process claims of the defendants․  [A]t no time prior to May 17, 1984 did the Superior Court direct the District Attorney to file the indictment as a complaint.”

THE COURT * : FN* THOMPSON, Acting P.J., JOHNSON, J., RYBURN, J.  (Assigned)