Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-565911
McGuiness, P.J.
The People appeal from an order denying a motion to reinstate a criminal complaint under Penal Code section 871.5. The People contend the magistrate erred by dismissing the criminal complaint on the ground the prosecutor had no good cause for seeking a two-day continuance of the preliminary hearing. Because we agree that the magistrate had no authority to dismiss the complaint under the circumstances presented here, we shall reverse the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
In a criminal complaint filed on July 24, 2009, the Sonoma County District Attorney charged defendant Kevin Pich Klaut with possession of ecstasy. (Health & Saf. Code, § 11377, subd. (a).) The district attorney also alleged that Klaut had suffered a prior strike (§ 1170.12) as well as a prior conviction for which he had served a prison term. (§ 667.5.)
Klaut was arraigned on the complaint on July 24, 2009, at which time he entered a not guilty plea. As reflected in the court’s minutes, Klaut waived his statutory rights to have a preliminary hearing conducted with 10 court days or within 60 calendar days, at the latest. (See § 859b.) The magistrate set Klaut’s bail at $50,000. There appears to be no dispute that Klaut remained in custody following his arraignment.
At a settlement conference held on August 27, 2009, Klaut purported to withdraw his earlier waiver of the statutory time limits to conduct a preliminary hearing. The court set the preliminary hearing for Wednesday, September 9, 2009, a date that was eight court days after August 27. At a readiness conference held on September 3, 2009, Klaut’s attorney as well as the prosecutor confirmed they would be proceeding with the preliminary hearing as scheduled, with an estimate that the hearing would take “probably half an hour.”
At the outset of the September 9 hearing, the prosecutor informed the court that the lab had not had sufficient time to complete an analysis of the drugs Klaut was alleged to have possessed. The prosecutor stated that “[w]e still have time within the ten days, and the lab report apparently will be finished by the 11th, which they need five days to complete.” The prosecutor sought an oral continuance of the preliminary hearing to Friday, September 11, the 10th court day after Klaut purported to withdraw his time waiver. Klaut’s counsel objected, pointing out that 14 calendar days had passed since the matter was set for preliminary hearing, and stating, “If the lab couldn’t get the results done in 14 days, the People are suggesting they can do it in the next two.”
The magistrate stated that the “time waiver was withdrawn” on August 27, 2009, so that the “only available prelim date[s]” were Wednesday, September 2, and Wednesday, September 9. The magistrate then announced, “So the Court does not at this point find good cause. If [the prosecutor is] not ready to proceed the case will be dismissed.” The magistrate then asked whether the prosecutor intended to refile the complaint. When the prosecutor expressed the People’s intention to refile the complaint that afternoon, the court set the matter for an arraignment the following morning. The court then vacated the preliminary hearing.
Although the record does not explain why these two Wednesday dates were the “only” available court dates on which to conduct the preliminary hearing, the People explain in their briefs that the courtroom to which Klaut’s case was assigned conducts preliminary hearings only on Wednesdays.
A minute order from the next day, September 10, 2009, reflects that the People chose not to refile the complaint “at this time.” Instead, on September 29, 2009, the People filed a motion to reinstate the complaint under section 871.5, arguing among other things that the People should have been afforded the full 10 court days under section 859b to conduct the preliminary hearing. The People contended that transfer of the case to another courtroom that conducted preliminary hearings on Fridays would not have been overly burdensome. The People also argued it was unreasonable to expect the People to proceed on a particular date or face dismissal simply because the courtroom to which Klaut’s case had been assigned chose to conduct preliminary hearings only on Wednesdays.
Following a hearing on October 30, 2009, the court denied the People’s motion to reinstate the complaint. The court concluded: “[The magistrate] found no good cause. And I don’t find that he abused his discretion in making that finding. So the charges remain dismissed at this time.” The People timely appealed the order denying the motion to reinstate.
Discussion
The People claim the magistrate had no authority to dismiss the complaint when the People merely requested a continuance of the preliminary hearing to a date within the statutory ten-court-day period allowed by section 859b. As we explain, because Klaut irrevocably waived his statutory right to have the preliminary hearing conducted within ten court days, the court was not bound to conduct the preliminary hearing within that period following his ineffectual attempt to withdraw his waiver. It is therefore immaterial whether the continuance was to a date within or beyond a ten-court-day period following Klaut’s attempt to withdraw the waiver. Nevertheless, we agree with the People that the absence of good cause for a brief continuance under these circumstances does not, by itself, permit dismissal of the complaint.
1. Standard of review
“On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court’s ruling and directly examine the magistrate’s ruling to determine if the dismissal of the complaint was erroneous as a matter of law. To the extent the magistrate’s decision rests upon factual findings, ‘[w]e, like the superior court, must draw every legitimate inference in favor of the magistrate’s ruling and cannot substitute our judgment, on the credibility or weight of the evidence, for that of the magistrate.’ [Citation.]” (People v. Massey (2000) 79 Cal.App.4th 204, 210.)
2. Statutory framework-sections 859b and 1050
Section 859b governs the time within which a preliminary examination must be held in the case of a defendant charged with a felony. “The statute is ‘supplementary to and a construction of the constitutional right to a speedy trial.’ [Citations.] ‘No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute.’ [Citation.]” (People v. Love (2005) 132 Cal.App.4th 276, 283 (Love).)
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, or within 10 court days of the date criminal proceedings are reinstated [after a mental competency determination].” The statute further provides that, if the defendant is in custody and has spent 10 or more court days in custody solely due to the complaint, the court is required to dismiss the complaint if the preliminary hearing is set or continued beyond the 10-court-day period, unless the defendant waives time or the prosecution establishes good cause for a continuance beyond that period. If a continuance is granted beyond the 10-court-day period based upon a showing of good cause by the prosecution, the defendant must be released from custody on his own recognizance except in specified circumstances. (§ 859b, subd. (b).) The court is further required to dismiss the complaint if the preliminary hearing is set on or continued to a date more than 60 calendar days beyond the arraignment, plea, or reinstatement of criminal proceedings following a competency determination, unless the defendant waives the right to a hearing within that period. (§ 859b.)
Section 859b provides in pertinent part as follows: “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, plea, or reinstatement of criminal proceedings... 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 of a continuance beyond the 10-court-day period.”
Thus, section 859b establishes both a 10-day limit and a 60-day limit for setting a preliminary hearing in a case in which the defendant is charged with a felony. In the case of a defendant who is in custody, the 10-day limit mandates dismissal of the complaint if the deadline is not met and the defendant has spent more than 10 court days in custody, unless the defendant waives the 10-day limit or the prosecutor establishes good cause for a continuance beyond the limit. The 60-day limit sets an outer constraint on the setting of the preliminary hearing and mandates dismissal if the deadline is not met, regardless of the custodial status of the defendant, unless the defendant waives the limit.
In the case of a defendant who is not in custody, a violation of the 10-day limit may justify dismissal only if the defendant was prejudiced by the delay. (People v. Henderson (2004) 115 Cal.App.4th 922, 931 (Henderson).) By contrast, in the case of an in-custody defendant, violation of the 10-day limit requires dismissal without regard to whether the defendant was prejudiced. (Ibid.)
The 60-day limit may be exceeded only upon a waiver by the defendant; the prosecutor has no right to continue the preliminary hearing beyond 60 calendar days, even upon a showing of good cause. (See Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 729 [only exception to 60-day limit is defendant’s personal waiver].)
“Section 859b ‘reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing.’ [Citation.] This statute ‘ “manifests a legislative policy to eliminate the possibility that persons charged with felonies might suffer prolonged incarceration without a judicial determination of probable cause merely because they are unable to post bond in order to gain their freedom.” ’ [Citation.]” (People v. Standish (2006) 38 Cal.4th 858, 870.)
Continuances are governed by section 1050, which in general applies to “any hearing in a criminal proceeding, ” including a preliminary hearing or trial. (See § 1050, subd. (b).) A party seeking to continue a hearing in a criminal matter must file and serve written notice at least two court days before the hearing sought to be continued detailing specific facts showing that a continuance is necessary. (Ibid.) A party may make a motion for a continuance without providing advance written notice but must show good cause for the failure to comply with the notice requirements. (Id., subd. (c).) Further, when a party moves to continue a hearing without complying with the notice requirements, the court must hold a hearing on whether there is good cause for the failure to provide advance notice. (Id., subd. (d).) The court must make a finding as to whether there is good cause to excuse the notice requirements and state its finding on the record. (Ibid.) If a party fails to show good cause for its failure to comply with the two-day advance notice requirement, the court may impose sanctions as set forth in section 1050.5, which in general permits the court to fine counsel for the moving party up to $1,000 or to report the attorney to “an appropriate disciplinary committee.” (§§ 1050, subd. (c), 1050.5, subd. (a).)
Section 1050 provides that continuances may only be granted upon a showing of good cause. (§ 1050, subd. (e).) “Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.” (Ibid.) When considering whether or not good cause for a continuance exists, the court must consider the convenience and prior commitments of all witnesses and parties. (Id., subd. (g).)
Notably, section 1050 by its express terms does not apply “when the preliminary examination is set on a date less than 10 court days from the date of the defendant’s 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 defendant’s arraignment on the complaint.” (§ 1050, subd. (k).) In other words, a party seeking to continue the preliminary hearing to a date within 10 court days of the arraignment need not comply with the good cause requirement or the two-day written notice requirement of section 1050. Further, “[n]othing in sections 1050 and 1050.5 authorizes the trial court to dismiss a case after denying a motion for continuance.” (Henderson, supra, 115 Cal.App.4th at p. 934.)
We observe that this exception applies to only one of the three situations in which the 10-day limit may apply. Under section 859b, the 10-court-day limit runs from the latest of the date of arraignment, the date of the defendant’s plea, or the date criminal proceedings are reinstated after a competency hearing. However, section 1050, subdivision (k) refers only to the circumstance in which the 10-court-days are measured from the date of the arraignment. Thus, if more than 10 court days have passed since the defendant was arraigned, section 1050 applies to any motion for a continuance of the preliminary hearing, even if the 10-day limit applies as measured from the date of the plea or the date criminal proceedings were reinstated following a competency hearing.
3. Because Klaut waived the statutory time limits in section 859b, dismissal was not warranted under that statute.
Both the People and Klaut proceed upon the assumption that, because Klaut purported to withdraw his waiver of the 10-day limit at a hearing on August 27, 2009, the prosecutor had 10 court days within which to conduct the preliminary hearing, absent a further waiver by Klaut or a showing of good cause for a continuance. As we explain, the assumption that the 10-day limit applied is unwarranted.
Once a defendant has waived the 10-day limit, the 60-day limit, or both, there is no provision in section 859b for withdrawal of that waiver. (Love, supra, 132 Cal.App.4th at pp. 285-286; see Cal. Criminal Law: Procedure and Practice (Cont. Ed. Bar 2010) § 19.18, p. 500.) By contrast, the speedy trial statute, section 1382, expressly provides for withdrawal of a time waiver and specifies that a defendant must be brought to trial within 60 days of the date of that withdrawal. (See Love, supra, at p. 285.) Relying on the distinction between the speedy trial statute (§ 1382) and the statute governing preliminary hearings (§ 859b), the court in Love concluded that a defendant who has expressly waived the 10- and 60-day limits of section 859b may not seek a dismissal based on failure to comply with the statutory time limits. Instead, a defendant retains only the protection of the speedy trial right guaranteed by the United States and California Constitutions. (Love, supra, 132 Cal.App.4th at p. 286.) “To assert a speedy trial claim on a state constitutional rather than statutory ground, a defendant must affirmatively demonstrate prejudice, and the court must weigh the prejudicial effect of the delay against any justification. [Citation.]” (Ibid.)
Here, Klaut entered an open-ended time waiver of both the 10-day limit and the 60-day limit, i.e., he waived time and no new date was set for a preliminary hearing. (See Simons, Cal. Preliminary Examinations and 995 Benchbook: Statutes and Notes (ed. 2010) § 1.1.17, p. 1-12.) Because an open-ended waiver is irrevocable and may not be withdrawn, Klaut could not restart the 10-day statutory limit by purporting to withdraw his waiver. Accordingly, the statutory time limits of section 859b were inapplicable and could not serve as the basis for the magistrate to dismiss the complaint. Further, Klaut has made no claim that his constitutional speedy trial rights would have been violated if the magistrate had granted a continuance of two days to conduct the preliminary hearing. As a threshold matter, Klaut cannot demonstrate undue delay in the first instance, much less that he would have been prejudiced by a two-day delay. (Cf. Love, supra, 132 Cal.App.4th at p. 286 & fn. 8 [no undue delay in conducting preliminary hearing 15 court days after defendant was re-arrested].) Therefore, the court had no authority to dismiss the complaint based upon a violation of Klaut’s statutory rights under section 859b, and as a matter of law there were no grounds to dismiss the complaint based upon a violation of Klaut’s constitutional speedy trial rights.
One of the leading preliminary hearing treatises suggests the result might be different in the case of a “limited time waiver, ” in which a defendant waives the 10-day limit but agrees to set the preliminary hearing on a specific date beyond the 10-day limit but within the 60-day limit. (Simons, Cal. Preliminary Examinations and 995 Benchbook: Statutes and Notes, supra, § 1.1.16, p. 1-12.) The treatise suggests the waiver might be irrevocable or, alternatively, that the waiver may be withdrawn, starting a new 10-court-day period from the date of the withdrawal. (Ibid.) The problem with the latter alternative, according to the treatise, is that the statute contains no “specific enabling language” restarting the 10-day limit. (Ibid.) We need not and do not address whether a defendant may withdraw a limited time waiver under section 859b. In this case, Klaut entered an open-ended time waiver that waived the statutory time limits without setting a new date for the preliminary hearing. The holding in Love establishes that such a waiver is irrevocable. (See Simons, Cal. Preliminary Examinations and 995 Benchbook: Statutes and Notes, supra, § 1.1.17, pp. 1-12 to 1-13.)
Klaut relies on Wizar v. Superior Court (1981) 124 Cal.App.3d 190 (Wizar), claiming the case stands for the proposition that section 859b does not confer a right to a continuance within the 10-day limit without a demonstration of good cause under section 1050. Wizar is inapposite for a number of reasons. First, it is irrelevant in light of our conclusion that the 10-day limit was irrevocably waived in this case. Second, language in section 1050 that was enacted after Wizar makes clear that the statute’s requirements do not apply when a party seeks a continuance within 10 court days of the arraignment. (§ 1050, subd. (k); Stats. 1985, ch. 949, § 1, p. 3005.) Third, the case did not address whether a court is authorized to dismiss a complaint but instead concerned whether a defendant was denied a substantial right when his request for a continuance of a preliminary hearing to the last day of the 10-day statutory period was denied. (Wizar, supra, 124 Cal.App.3dat pp. 193-194.) The court in Wizar had no occasion to consider whether a magistrate has authority to dismiss a criminal complaint when the prosecutor seeks to continue a preliminary hearing to a date within the 10-day limit.
Before we leave the topic of section 859b and the 10-day limit, one final word is in order. The thrust of the People’s grievance on appeal is that the magistrate dismissed the complaint simply because the preliminary hearing could not be held within the statutory 10-court-day period unless the matter were transferred to another courtroom. Because we have concluded that the 10-day limit was irrevocably waived by Klaut, the People’s complaint about the refusal to transfer the case to another courtroom is technically moot. The magistrate had no authority to dismiss the case under section 859b, regardless of whether it was the magistrate’s refusal to transfer the case that caused the preliminary hearing to be scheduled more than 10 court days following Klaut’s withdrawal of his time waiver. Nevertheless, we wish to be clear that we do not countenance dismissing a criminal complaint under section 859b simply because the prosecutor is unable to conduct the preliminary hearing on the one day of the week that the assigned magistrate conducts such hearings. If the prosecutor seeks a continuance within the ten-day limit to a day other than the one on which the assigned magistrate normally conducts preliminary hearings, the magistrate can either transfer the matter to another courtroom or schedule the matter on a day not normally reserved for such hearings. Dismissal is not warranted when a delay beyond the 10-court-day period is solely attributable to the magistrate’s unwillingness to hear preliminary hearings on all but one court day of each week.
3. Dismissal was not authorized under section 1050 or any other statute, regardless of whether the prosecutor failed to demonstrate good cause for a two-day continuance.
We proceed to consider whether the magistrate had authority to dismiss the complaint under any statute other than section 859b. We begin with section 1050, which both the People and Klaut assume governed the prosecutor’s request for a two-day continuance. In this case, we agree with the parties’ assumption. By its express terms, section 1050 applies to any hearing in a criminal proceeding, except that it does not apply when a party seeks a continuance to a date no more than 10 court days following the arraignment. (§ 1050, subds. (b), (k).) The exception is inapplicable here because, at the time Klaut purported to withdraw his time waiver, more than 10 court days had already passed since his arraignment.
As explained above, section 1050 includes both a good cause component and a requirement that a moving party provide two-day written notice of a motion for a continuance. The People failed to provide the required two-day written notice or otherwise show good cause for their failure to do so. With respect to the good cause component of section 1050, we observe that our review of a trial court’s denial of a motion for a continuance is governed by the deferential abuse of discretion standard. (People v. D’Arcy (2010) 48 Cal.4th 257, 287.) The People claim the court abused its discretion, arguing that the prosecutor sought the lab results as soon as the matter was set for a preliminary hearing. By contrast, Klaut contends the prosecutor failed to explain why the testing could not have been completed earlier. Under the circumstances, it was not unreasonable for the magistrate to conclude that the prosecutor had not been diligent in securing lab results, particularly when Klaut had been in custody for over a month at the time the prosecutor sought a continuance.
The People contend the evidence had not previously been submitted to the laboratory because Klaut had waived time and the matter was assigned to an Early Case Resolution court. According to the People, it would have been a waste of resources to submit the drugs to the laboratory before attempts to settle the case had failed. Because the prosecutor did not present these factual allegations and arguments to the magistrate, we shall disregard them in assessing whether the magistrate abused his discretion.
We shall assume, without deciding, that the magistrate did not abuse his discretion by concluding that the prosecutor had failed to demonstrate good cause for a continuance. The question remains whether the court had authority to dismiss the criminal complaint as a result of the prosecutor’s noncompliance with the written notice and good cause requirements of section 1050.
The answer lies in the analysis contained in Henderson, supra, 115 Cal.App.4th 922. In Henderson, the appellate court concluded the People had failed to demonstrate good cause for a continuance of a preliminary hearing under section 1050. (Id. at p. 934.) Nevertheless, the court held that neither section 1050 nor 1050.5 provided authority to dismiss the complaint. (Ibid.) “Section 1050 is not mandatory, but ‘directory only and contains no provision for the dismissal of a case when its terms are not complied with.’ ” (Id., fn. omitted.) The remedy for the failure to show good cause for a continuance, according to the court, is to impose sanctions or report the attorney to the appropriate disciplinary committee. (Id. at pp. 935, 939.) In reviewing the legislative history of section 1050, the Henderson court observed that the Legislature did not intend to authorize dismissal as a sanction for failing to show good cause for a continuance, as long as the 60-day statutory limit had not been exceeded. (Id. at p. 935.) Thus, in a case in which the defendant has waived the 10-day limit, a court has no authority under section 1050 to dismiss a criminal complaint if the prosecutor seeks a continuance within the 60-day limit, even if the prosecutor fails to demonstrate good cause for the continuance. (Id. at pp. 934-936.)
The court stated: “We are mindful that this conclusion may place courts in a difficult situation where, after finding no good cause to justify a continuance, they are compelled to deny the continuance under section 1050, but cannot dismiss the case when the prosecutor is not ready to proceed. However, other sanctions are available under section 1050.5 when the prosecutor fails to comply with the procedural requirements of section 1050, subdivision (b).” (Henderson, supra, 115 Cal.App.4th at p. 939.)
Klaut claims the People’s reliance on Henderson is misplaced, pointing out that he revoked his time waiver, unlike the defendant in Henderson who had waived time. For reasons explained above, Klaut’s purported withdrawal of his time waiver was statutorily unauthorized and ineffective. Klaut’s attempt to distinguish Henderson is therefore unavailing.
We are mindful that Klaut was in custody at the time the prosecutor sought a continuance, whereas the defendant in Henderson had been released on bail by the time the prosecutor sought a further continuance of the preliminary hearing. (Henderson, supra, 115 Cal.App.4th at p. 928.) A simple application of the rule in Henderson might suggest that a prosecutor could delay a preliminary hearing for up to 60 days in the case of an in-custody defendant who has waived the 10-day limit, even if the prosecutor has no good cause to continue the preliminary hearing. This result would appear to violate the legislative policy against prolonging a defendant’s incarceration without a showing of probable cause simply because the defendant is unable to post bail. We think this result is unlikely for a number of reasons. First, the prosecutor would be subject to monetary sanctions and could be reported to a disciplinary authority for unjustified attempts to continue the preliminary hearing. (§ 1050.5.) Second, a defendant who has irrevocably waived his statutory rights to a timely preliminary hearing nonetheless retains his constitutional speedy trial rights. In any event, these concerns are not present here. As explained above, a two-day delay did not violate Klaut’s constitutional speedy trial rights. There was little concern that Klaut would languish in custody for an extended period merely because he was unable to post bond.
The court in Henderson went on to discuss other possible statutory grounds to dismiss a complaint after denial of a continuance. It concluded that section 1385, which allows a court to dismiss an action “in furtherance of justice, ” does not permit a court to dismiss a case after a failed request for a continuance within the statutory period for conducting preliminary hearings. (Henderson, supra, 115 Cal.App.4th at p. 936.) It also concluded that section 871, which allows a court to dismiss an action if there is not sufficient cause to believe the defendant has committed a crime, is inapplicable to situations in which the prosecution has yet to offer any proof. (Henderson, supra, 115 Cal.App.4th at p. 941.) Thus, “section 871 does not provide authority for a court to dismiss an action when the prosecution fails to show good cause for a continuance, but is able to present proof of defendant’s guilt at a new preliminary hearing rescheduled within the 60-day statutory period or within any period of time waived thereafter.” (Id. at p. 942.)
We conclude there was no statutory or constitutional basis to dismiss the complaint under the circumstances presented here.
Disposition
The order dismissing the complaint is reversed. The matter is remanded for reinstatement of the complaint and the setting of a preliminary hearing.
We concur: Pollak, J.Jenkins, J.