Opinion
A100809.
10-7-2003
THE PEOPLE, Plaintiff and Appellant, v. MARCEL BARNES, Defendant and Respondent.
The People appeal the denial of a motion to reinstate a criminal complaint under Penal Code section 871.5.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The appeal concerns the extent of a courts discretion to continue a preliminary hearing following a defendants arraignment. Defendant Marcel Barnes contends that a court has discretion to deny a continuance in such circumstances. Defendant further contends that the magistrate here acted properly in denying a continuance on the grounds that the prosecution failed to show good cause for seeking a continuance.
We agree with defendant that a court has discretion to deny a continuance even though the preliminary hearing still will take place within 10 days of the defendants arraignment. The court, however, must have a valid reason for denying the motion, and we find that where, as here, the continuance will not delay the preliminary hearing beyond the 10-day period, the court may not deny the continuance solely on the grounds that the party seeking it has failed to show good cause.
Background
On May 7, 2002, a complaint was filed against defendant, charging him with the possession or purchase of cocaine base for purposes of sale. (Health & Saf. Code, § 11351.5.) Defendant was arraigned the same day, and during the course of those proceedings, waived his right to have a preliminary hearing within 10 court days. (§ 859b.)
The preliminary hearing originally was scheduled to be held on June 11, 2002, but was continued to July 26. The District Attorney was unable to proceed on that date because a witness was unavailable, and the complaint was dismissed by stipulation of the parties. Defendant was rearraigned on the same day, but this time did not waive his right to have a preliminary hearing within 10 days. The matter was continued to August 7 for the preliminary hearing.
On August 7—eight court days after defendants arraignment—the deputy district attorney requested a one-day continuance, explaining that a police officer had been subpoenaed to appear at the hearing and had checked in that morning, but could not be located. The magistrate allowed the deputy some additional time to find the witness. The deputy reported that he had been unable to find the witness, and again asked that the matter be trailed for one day. The magistrate stated his belief that the motion could be granted only if the prosecution established good cause for seeking it. The magistrate found that the prosecution had not shown good cause, and therefore denied the motion. He then dismissed the case on the grounds that the prosecution was unable to proceed. (§ 1385.) As this was the second termination of the action, it barred the People from pursuing the case against defendant. (1387, subd. (a).)
On August 13, 2002, the People moved in the superior court for an order reinstating the complaint under section 871.5. The court denied the motion on the grounds that dismissal was within the discretion conferred on the magistrate to control the proceedings.
Standard of Review
"On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior courts ruling and directly examine the magistrates ruling to determine if the dismissal of the complaint was erroneous as a matter of law." (People v. Massey (2000) 79 Cal.App.4th 204, 210.)
Discussion
Section 859b confers the right to a preliminary examination at the earliest possible time on both parties to a criminal action. It provides that, ordinarily, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned. The prosecution can obtain a continuance beyond that period only if the defendant agrees to waive time or upon a showing of good cause. If the defendant is in custody, the court is required to dismiss the complaint upon the expiration of the 10-day period unless the defendant waives time or the prosecution establishes good cause for a continuance beyond that period. In all events, the court is required to dismiss the complaint after 60 days have elapsed from the date of the arraignment, unless the defendant waives time. The 60-day limit protects the non-custodial defendants right to a speedy preliminary hearing, and also insures that criminal cases will be moved expeditiously through the courts. (People v. Alvarez (1989) 208 Cal.App.3d 567, 573.)
Here, the prosecution sought a continuance, but even with the continuance, the preliminary hearing would have been held within 10 days of defendants arraignment. Nothing in section 859b required the court to dismiss the complaint for the prosecutions delay, even if defendant had been in custody. Nonetheless, it is true that the prosecution was unable to proceed without its witness. The question, therefore, is whether the magistrate acted properly in denying a one-day continuance so that the prosecution could secure the presence of its witness.
Section 1050 governs continuances in criminal proceedings. In subdivision (e), it establishes the rule that continuances shall be granted only upon a showing of good cause. In subdivision (k), however, it provides: "This section shall not apply when the preliminary examination is set on a date less than 10 court days from the date of the defendants arraignment on the complaint, and the prosecution or the defendant moves to continue the preliminary examination to a date not more than 10 court days from the date of the defendants arraignment on the complaint." Section 1050, therefore, provides no basis for conditioning a continuance on the prosecutions ability to establish good cause. To the contrary, by excepting continuances within the 10-day period from the requirement of establishing good cause, the Legislature has expressed its intent that the court grant a partys request for a continuance without requiring the party to establish good cause.
While People v. Alvarez, supra, 208 Cal.App.3d 567, held that section 1050 required a party to show good cause in order to obtain a continuance (id. at p. 578), the continuance in that case delayed the preliminary hearing for more than 10 days from the date of the defendants arraignment. The court, therefore, was not concerned with subdivision (k).
The conclusion that the prosecution need not establish good cause to obtain a continuance within the 10-day period, however, does not necessitate a finding that a court is required to grant a continuance in all cases when the preliminary examination still will be held within the 10-day period. In determining whether to grant a continuance, the court considers " ` "not only the benefit which the moving party anticipates, but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) There may be cases where a continuance within the 10-day period will unduly affect the parties rights or ability to proceed. A continuance within the 10-day period also might have an adverse effect on the witnesses, or might interfere with the courts ability to manage its own calendar. Nothing in section 1050, or in any other statute or rule, suggests that the Legislature intended to limit the courts discretion in such cases.
Courts have fundamental inherent equity, supervisory and administrative powers, as well as inherent power to control litigation before them, including the power to exercise reasonable control over all proceedings connected with pending litigation in order to insure the orderly administration of justice. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.) Accordingly, the courts inherent power applies if the procedure is not specified by statute or by rules adopted by the Judicial Council. (First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 334; Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 19, disapproved on other grounds in Kowis v. Howard (1992) 3 Cal.4th 888, 896-897.) Having found that no statute or rule removes a courts discretion to deny a motion for continuance within the 10-day period, we further conclude that as a corollary to its inherent powers, a court retains the discretion to deny the motion. Still, the court must have some valid reason for denying the motion, or its denial will be an abuse of discretion. The failure of the prosecution to establish good cause for seeking the continuance is not a valid reason for denying the motion. It follows that the magistrate abused his discretion in denying the continuance, and then in dismissing the complaint for the prosecutions inability to proceed without the continuance.
Disposition
The superior court abused its discretion in denying the Peoples motion to reinstate the complaint. Although the magistrate has the inherent power to control the proceedings, that power does not extend to denying a motion for a continuance on improper grounds. The order denying the motion to reinstate the complaint is reversed. The superior court is directed to return the case to the magistrate with orders to resume the proceedings within 10 days, pursuant to section 871.5, subdivision (e).
We concur: Marchiano, P.J. and Swager, J.