IN RE: Efrain Avina SAMANO (1994)

Does Penal Code 1 section 859b mandate that a defendant be released from custody without bail where the preliminary hearing was continued for good cause over his objection at the behest of a jointly charged codefendant?   We hold that under these limited circumstances, when the prosecutor moves for continuance of all jointly charged codefendants' cases pursuant to section 1050.1, the trial court or magistrate can treat the request of one of the jointly charged defendants as a request by all such joined defendants.

The People appeal from an order of the Santa Barbara Superior Court granting Efrain Avina Samano's petition for writ of habeas corpus, by which he sought his release from custody on his own recognizance when his preliminary examination was continued over his objection at the request of the District Attorney.   The People assert the court erred in holding that section 1050.1 was inapplicable to preliminary examinations and that section 859b mandated Samano's release on his own recognizance.

FACTS

The prosecution filed a felony complaint in municipal court against 33 defendants alleging, among other offenses, a criminal conspiracy to distribute narcotics.   Bail was set for each defendant at between $200,000 and $300,000 because many of the defendants were in this country illegally and might abscond.   Two days prior to the date set for the preliminary examination, attorneys for two of the codefendants moved to continue the preliminary hearing for good cause, i.e., the 16,000 pages of documents and 100 audio tapes provided them by way of discovery.   The magistrate continued the preliminary examination of the two defendants from June 28, 1993, to July 14, 1993.

The prosecution moved, pursuant to section 1050.1, for a continuance of the preliminary hearing as to all defendants.²  The magistrate granted the prosecution's request and continued the preliminary examination of all codefendants to July 14, 1993.

Defendant Samano requested he be released from custody on his own recognizance, pursuant to section 859b.³  The magistrate denied his request.   Samano filed a petition for habeas corpus alleging an absolute statutory right to release on his own recognizance.   The superior court granted the writ.   This appeal ensued.

DISCUSSION

1. Mootness

The parties agree that the issue presented is technically moot.   Samano was unable to post the bail fixed in the superior court pending this appeal.   Samano and several codefendants were indicted and joinder reachieved.   Nonetheless, both the People and respondent assert that the issue is likely to recur where some but not all of the defendants properly joined in a complaint obtain a continuance of their preliminary examination and the prosecutor requests continuance as to all the defendants to preserve joinder.

We have discretion to decide issues presented which are of public concern and involve potentially recurring questions.  (Butt v. State of California (1992) 4 Cal.4th 668, 677, fn. 7, 15 Cal.Rptr.2d 480, 842 P.2d 1240;  Money v. Krall (1982) 128 Cal.App.3d 378, 392, 180 Cal.Rptr. 376;  People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290.)   Since resolution of this perceived conflict between sections 859b and 1050.1 could evade appellate review if a defendant released on his or her own recognizance absconds or where, as here, joinder is reestablished by indictment, we choose to adjudicate the issue.

2. Section 859b Must Be Harmonized With Section 1050.1

The trial court here opined that section 1050.1 did not apply to “a situation where the person hasn't even had a ․ preliminary hearing.”   The language of that section undermines the trial court's interpretation.   By its terms, section 1050.1 applies to preliminary examinations and magistrates.   The question is whether section 1050.1 is affected by section 859b.

Section 859b has been held to confer an absolute right to a person in custody charged with a felony to have a preliminary examination within 10 court days of arraignment or plea.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 6, 177 Cal.Rptr. 325, 634 P.2d 352;  Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464, 142 Cal.Rptr. 882.)   If the district attorney shows good cause, an in-custody defendant's preliminary examination can be set beyond the 10–court–day limit, but the defendant must be released from custody on his own recognizance.  (Landrum v. Superior Court, supra, at pp. 5–6, fn. 4, 177 Cal.Rptr. 325, 634 P.2d 352.)  “Section 859b reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing.”   (Id., at p. 12, 177 Cal.Rptr. 325, 634 P.2d 352;  People v. Kowalski (1987) 196 Cal.App.3d 174, 178, 242 Cal.Rptr. 32.)

Even though the language of section 859b is precise (Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599, 155 Cal.Rptr. 654), exceptions have been carved out, some of which are presently reflected in the statute.   For example, section 859b has been interpreted as applying only to persons in custody solely by reason of the charges which are the subject of the preliminary hearing.  (Ng v. Superior Court (1992) 4 Cal.4th 29, 38, 13 Cal.Rptr.2d 856, 840 P.2d 961;  Blake v. Superior Court (1980) 108 Cal.App.3d 244, 247, 166 Cal.Rptr. 470.)

Similarly, when a defendant asserts both his right to a preliminary hearing within 10 days and his right to counsel, the constitutional right must prevail.  (People v. Kowalski, supra, 196 Cal.App.3d 174, 179, 242 Cal.Rptr. 32.)   Additionally, section 859b has been held not to require a new waiver of the 10–court–day period from a defendant every time the preliminary hearing is continued.  (People v. Alvarez (1989) 208 Cal.App.3d 567, 572, 256 Cal.Rptr. 289.)

Thus, examination of both case law and amendments to section 859b reflect that the defendant's right to a preliminary examination within 10 court days after arraignment or plea is tempered by both constitutional principles and those affecting administration of justice.   However, an in-custody defendant has been provided greater protection by mandating dismissal as a remedy for failure to adhere to the statutory period.

Nonetheless, section 859b as presently constituted does not mandate release without bail of an in-custody defendant where a continuance of the preliminary examination is at the defendant's request, where a continuance becomes necessary by some action of the defendant, where the defendant is charged with a capital crime and the presumption of guilt is great, or because of circumstances which may be beyond the defendant's control but which are also no fault of the prosecution, such as illness of counsel or other trial commitment.  (§ 859b, subd. (b).)  The Legislature has acknowledged that some circumstances exist, other than the defendant's own request or actions, which will constitute good cause for the setting of a preliminary examination beyond the 10–court–day limit without mandating release of the defendant on his or her own recognizance.

In construing statutes, we follow the well-known rules:  our objective is to ascertain and effectuate legislative intent and where statutes are in pari materia, we must construe them together as one statute.  (City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468, 14 Cal.Rptr.2d 514, 841 P.2d 1034.)  “[A]ll parts of a statute should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others.”  (Ibid.)  Whenever possible, we reconcile statutes and seek to avoid interpretations requiring neglect of one statute or the other.  (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449.)   We presume that constitutional and legislative provisions were not intended to produce unreasonable results and will adopt a common sense construction over one leading to mischief or absurdity.  (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1424, 4 Cal.Rptr.2d 203;  Bailey v. Superior Court (1977) 19 Cal.3d 970, 977–978, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.)

As part of Proposition 115, adopted by voters and effective June 6, 1990, section 30, subdivision (a), was added to article I of the California Constitution to provide that, “ ‘[t]his Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the people through the initiative process.’ ”  (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284, 24 Cal.Rptr.2d 34.)   This provision reinforces the joinder statutes, sections 954.1, 1098 and 1050.1.

The California Constitution, statutory law, and case law recognize society's interest in joint trials.  “Joint trials play a vital role in the criminal justice system․  Many joint trials—for example, those involving large conspiracies to import and distribute illegal drugs—involve a dozen or more codefendants․  It would impair both the efficiency and the fairness of the criminal justice system to require ․ that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand.   Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability․”  (Richardson v. Marsh (1987) 481 U.S. 200, 209–210, 107 S.Ct. 1702, 1708–09, 95 L.Ed.2d 176.)

Under section 1098, the Legislature has decreed joint trials the rule and separate trials the exception.  (People v. Kelly (1986) 183 Cal.App.3d 1235, 1239, 228 Cal.Rptr. 681.)  Section 859b has been described as “ ‘in pari materia’ ” with section 859, which concerns prompt arraignment.  (Ng v. Superior Court, supra, 4 Cal.4th 29, 38, 13 Cal.Rptr.2d 856, 840 P.2d 961.)   “Custody has been a paramount concern in cases discussing the need for prompt arraignment.”  (Ibid.)  Both sections dovetail with the defendant's and the People's right to speedy trial.  (Cal. Const., art I, §§ 15, 29.)

A defendant's statutory rights are “ ‘ “merely supplementary to and a construction of the Constitution.  [Citations.]”  They do not carry the force or weight of constitutionally mandated imperatives.’ ”  (People v. Kowalski, supra, 196 Cal.App.3d 174, 179, 242 Cal.Rptr. 32, quoting Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619, which discussed the right to speedy trial reflected in § 1382.)   The defendant's right to speedy trial, protected by both the United States Constitution (6th Amend.) and the California Constitution (art. I, § 15), is not without limitation.  (See Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 492–501, 267 Cal.Rptr. 849;  Townsend v. Superior Court, supra, at p. 781, 126 Cal.Rptr. 251, 543 P.2d 619.)  Section 859b implements the defendant's right to a speedy trial.  (People v. Kowalski, supra, 196 Cal.App.3d 174, 179, 242 Cal.Rptr. 32.)   In the context of section 1382 right to speedy trial within 60 days after the filing of the information, Greenberger held that “if the precipitating cause for trial delay is justifiable, such as codefendants' need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant.”  (219 Cal.App.3d 487, 501, 267 Cal.Rptr. 849, fn. omitted.)   The People assert that this reasoning should apply here.

Inherent in the application of section 859b, however, is the understanding that the accused, unable to post bail, is being deprived of liberty before probable cause has been established to hold him to answer.   Thus, strict application of section 859b is necessary where there has been an excessive invasion of a prisoner's pre-preliminary examination freedom even where there might be risk of flight.  (Landrum v. Superior Court, supra, 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352.)

The People argue that both sections 859b and 1050.1 must be read in light of the bail provisions of our constitutions and statutes, the intent of which is to “secure the personal appearance of the accused to answer the charge against him.”  (Ex Parte Duncan (1879) 54 Cal. 75, 77.)   Bail was originally set on respondent at $300,000, first by the magistrate and again by the superior court when appellant filed the notice of appeal herein.   The amount of bail reflects the concern of the courts that respondent might abscond.   According to the People, if section 859b is absolute, then the prosecution must run the distinct risk of having no one around to prosecute if the prosecutor seeks to maintain joinder of several members of a criminal conspiracy when one of them demands and obtains a continuance.   Joinder could only be accomplished as to those defendants who have made bail prior to their preliminary examinations.

The People suggest that such mischief may be avoided and harmony achieved between section 859b, section 1050.1, and the bail provisions, by construing “defendant” in section 859b, subdivision (b)(1), as one or more of several jointly-charged defendants.   Under that subdivision, the court has the discretion whether or not to release from custody on his or her own recognizance a defendant who requests the setting of continuance of the preliminary examination beyond the 10–court–day period.

The common sense approach suggested by the People does not do violence to the legislative intent or a defendant's right to a speedy determination of probable cause.   Subsumed in the exceptions to mandatory release pursuant to section 1318 is that the magistrate or court must make certain findings and weigh certain factors to decide whether the exceptions are applicable.   As the People acknowledge, by providing that properly-joined defendants may remain joined even if the hearing or trial of one of them is delayed until his codefendant is prepared, section 1050.1 qualifies a defendant's statutory speedy-trial rights—including the statutory right of an in-custody defendant to a prompt preliminary examination.  “Qualifies,” however, does not mean “abolishes.”   The hearing or trial must still be held “within a reasonable period of time” or severance may be ordered.  (§ 1050.1.)   Alternatively, the court may release the defendant pursuant to section 1318.

Provisions for joinder long predate Proposition 115 of which section 1050.1 was a part, and the importance of joinder in appropriate cases was simply underscored by the electorate's addition of section 30 to article I of the California Constitution and section 1050.1.   We do not believe that the electorate intended joinder be preserved only for those defendants who have made bail prior to their preliminary hearing, or that the mere assertion of joinder should trigger release without bail of high-risk defendants.

Consequently, we hold that section 859b must be harmonized with section 1050.1 in a multiple-defendant case by considering the request of one or more but not all of several properly-joined defendants for a continuance of his or her preliminary examination the request of all jointly charged defendants.   Whether or not the court grants severance to some of the defendants or releases them on bail or reduces bail should be governed by principles applicable to sections 1050.1, 954, and 1268 et seq.

The order of the court is reversed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   Section 1050.1 provides:  “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants' cases so as to maintain joinder.   The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.”

3.   Section 859b provides, in pertinent 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․”

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.