Opinion
D074058
06-11-2018
In re COURTNEY BROWN on Habeas Corpus.
Office of the Alternate Public Defender, Megan Marcotte, Chief Deputy Alternate Public Defender, Vickie Fernandes and Amber Kirchenschlager, Deputy Alternate Public Defenders, for Petitioner and Defendant. Summer Stephan, District Attorney, Mark A. Amador and Vanessa C. Gerard, Deputy District Attorneys, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. CD276481) ORIGINAL PROCEEDINGS in habeas corpus. Polly Shamoon and Eugenia Eyherabide, Judges. Relief granted. Office of the Alternate Public Defender, Megan Marcotte, Chief Deputy Alternate Public Defender, Vickie Fernandes and Amber Kirchenschlager, Deputy Alternate Public Defenders, for Petitioner and Defendant. Summer Stephan, District Attorney, Mark A. Amador and Vanessa C. Gerard, Deputy District Attorneys, for Plaintiff and Respondent.
Penal Code section 859b provides in-custody felony defendants with a statutory right to a preliminary hearing within 10 days of their arraignment. Interpreting this statute in People v. Standish (2006) 38 Cal.4th 858 (Standish), the Supreme Court explained that while the People may obtain a continuance extending this 10-day period on a showing of good cause, except in narrow specified circumstances a defendant who objects to such a continuance is entitled to release from custody on his or her own recognizance (OR) during the period of the continuance. In this case, it is undisputed that the People requested a continuance of defendant Courtney Brown's preliminary hearing beyond the 10-day period over Brown's objection to coincide with another codefendant's already-continued preliminary hearing date.
All further statutory references are to the Penal Code.
Relying on In re Samano (1995) 31 Cal.App.4th 984 (Samano), the People assert that the codefendant "joined" in the prosecutor's continuance request, and that this qualifies as an exception to the Standish general rule requiring OR release. But the on-the-record statements by counsel in this case fail to support the People's factual assertion that the codefendant ever joined in the prosecutor's request for a continuance. Moreover, even were we to accept at face value a prosecutor's declaration regarding what was said during an off-the-record chambers conference as a means of disputing the otherwise clear trial court record, that declaration fails to establish a "joint" request. What we have, at most, is a prosecution request for a continuance that was agreed to, but not joined in, by a codefendant two weeks before Brown was arraigned. This case is governed by Standish, and Brown is entitled to relief under section 859b.
We therefore grant Brown's request for habeas corpus relief, directing the superior court to order Brown's release on his OR on whatever terms and conditions it may determine are reasonable and appropriate.
FACTUAL AND PROCEDURAL BACKGROUND
This criminal proceeding involves three members of the same family charged as codefendants: Avis Denise Brown, Avis's daughter Marissa Michele Brown, and Avis's son Courtney Brown. In April 2018, the San Diego County District Attorney filed a felony complaint alleging two counts of assault with a firearm (§ 245, subd. (a)(2))—one count against Marissa only and one count against Avis and Courtney—one count of discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a)), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1).)
Due to the same last name, we will refer to Avis, Marissa, and Courtney by their first names. We intend no disrespect.
Marissa was arraigned first, on April 13, 2018. At a subsequent readiness conference on April 24, the parties discussed the scheduling of the preliminary hearing. Marissa's counsel stated that "[s]he's agreeing to waive time. It's actually the People's request to continue and we're unopposed." The prosecutor represented that "[w]e're requesting the continuance for the purpose of retrieving the two codefendants [Avis and Courtney] from Nevada through the extradition process so we can put everybody's dates together." The court accepted the People's request, with Marissa's time waiver, and set the preliminary hearing for June 13, 2018.
Avis and Courtney were arrested in Las Vegas and returned to San Diego in early May. On May 8, at his arraignment, Courtney pleaded not guilty and requested "due course dates." Courtney's counsel did not agree to waive time to "match up" the hearing dates with Marissa. A preliminary hearing in due course was set for May 21.
At a subsequent readiness conference on May 17, the prosecution asked that the preliminary hearing for Courtney and Avis be continued until June 13, 2018, so that it could be held at the same time as Marissa's preliminary hearing. Avis agreed to waive time for that purpose. Courtney, however, objected to the continuance and asked that the preliminary hearing be held within the statutory time. The court nonetheless found good cause to continue the hearing until June 13.
Apparently the prosecutor never considered advancing Marissa's preliminary hearing date to match the due course date for Courtney and Avis.
Following the grant of the continuance, Courtney's counsel did not formally ask for release on his own recognizance pursuant to section 859b, although she did request a bail review hearing, which was conducted four days later. At that hearing, defense counsel represented that Courtney could not afford the bail set at $225,000, rendering it the "functional equivalent to [Courtney] of no bail." The court declined to release Courtney and indicated that bail "will remain as set."
The next day, Courtney filed a petition for writ of mandate in the superior court pursuant to section 871.6 seeking to compel the court to release him on OR pursuant to section 859b. The court denied the writ petition on May 24. In its denial order, the court found (1) good cause existed to continue Courtney's preliminary hearing pursuant to section 1050.1, and (2) the continuance of one codefendant's preliminary hearing for good cause permits the continuance of all codefendants' preliminary hearings to "maintain joinder, a strong state interest." The court recognized that even if good cause exists for a continuance, the objecting defendant is entitled to OR release unless one of six statutory exceptions under section 859b applies. But it concluded that one of those exceptions applied here because one of Courtney's codefendants expressly waived time. The court stated that "[s]ince one of his co-defendants had previously waived time, that time waiver also applies to Petitioner. [Citation.] As such, Petitioner is not entitled to an OR release."
The writ petition was considered by Judge Eugenia Eyherabide, who did not preside at the earlier arraignments and readiness conferences concerning the timing of the preliminary hearings.
Courtney then filed his petition for writ of habeas corpus in this court. He concedes that good cause exists for the continuance of his preliminary hearing, but contends that Marissa's time waiver, provided outside his presence two weeks before his arraignment, does not mean that he loses his statutory right to release on his own recognizance. He maintains that section 859b creates a mandatory duty for the trial court to release him, warranting immediate relief.
Following the issuance of an order to show cause, the district attorney filed a return on behalf of the People. In the return, the People concede the relevant facts presented in the writ petition. In particular, they admit (1) "the [s]uperior [c]ourt continued petitioner's preliminary hearing beyond the 10-court-days from the date of his arraignment at the request of the [d]istrict [a]ttorney's [o]ffice"; (2) "petitioner objected to the continuance"; and (3) the continuance of codefendant Marissa's preliminary hearing "was verbally requested by the [d]istrict [a]ttorney's [o]ffice, and that Marissa Brown entered a personal waiver."
The return, however, makes additional factual allegations and asks this court to consider new evidence in the form of a declaration of the deputy district attorney present at Marissa's readiness conference. In that declaration, the deputy declares that before the hearing at which she requested a continuance, she attended an in-chambers, off-the-record discussion with the judge and Marissa's assigned deputy public defender. She contends that in chambers, she and Marissa's counsel jointly agreed with the judge "that it would be to the benefit of all parties to continue the preliminary hearing. . . ." She then explains that "[a]fter the in-chambers discussion, in the interest of efficiency, I requested the continuance of the readiness conference and preliminary hearing on the record to the agreed-upon dates. Marissa Brown entered a time waiver. I did not indicate on the record that the request for the continuance was being jointly-made, despite it being so. I did not anticipate the distinction, that the request for a continuance was jointly-made as opposed to made solely by the People, would have subsequent legal relevance." After this court issued the order to show cause, the deputy asked Marissa's counsel to prepare a declaration supporting her recollection of the facts, but he declined to do so. She declares, however, that "[h]e agreed it would be appropriate to characterize the selection of the date as a joint request."
Neither party addresses the obvious hearsay issue with this statement attributed to the deputy public defender.
The People contend that this declaration establishes that the request for continuance was not a prosecution request, but rather a "joint" request. Because Marissa allegedly joined in the request, the People contend Courtney is not entitled to release.
DISCUSSION
Under section 859b, a defendant is generally entitled to a preliminary examination within 10 court days of his or her arraignment unless (1) both the defendant and the People waive that right or (2) good cause for a continuance is found. Here, there is no apparent dispute that good cause existed for the continuance of Courtney's preliminary hearing. It is also not disputed that Courtney himself objected and did not waive his right to a due course preliminary examination.
Even if the court finds "good cause" for continuance of the hearing, however, section 859b also mandates that an in-custody defendant "shall be released" on his own recognizance pursuant to section 1318 unless one of six statutory exceptions applies. Of these six exceptions, only one even arguably applies here: Under the first exception, the defendant is not entitled to release if "[t]he defendant requests the setting [or] continuance of the preliminary hearing beyond the 10-court-day period." (§ 859b.)
In Samano, supra, 31 Cal.App.4th 984, the court applied this exception to the situation where one codefendant requests a continuance for good cause and another jointly-charged codefendant objects to the continuance. Samano involved a felony complaint filed against 33 defendants. (Id. at p. 988.) Two of the codefendants moved for a continuance on the basis that the discovery was too voluminous to adequately prepare for a preliminary hearing within 10 days. (Ibid.) After the court granted a continuance of the preliminary hearing for all of the defendants, it denied the requests of two defendants asking to be released on their own recognizance pursuant to section 859b. (Samano, at p. 988.) Those codefendants then filed petitions for writs of habeas corpus in the superior court; the petitions were granted and the two codefendants were ordered released on their own recognizance. (Ibid.) Despite subsequent events that resulted in a moot appeal, the appellate court considered whether the trial court erred in ordering the immediate release pursuant to section 859b. (Samano, at pp. 988-989.)
To harmonize the constitutional provisions, statutes, and case law creating an interest in favor of joint trials with the language of section 859b creating a right to a timely preliminary hearing, the Court of Appeal construed the word "defendant" in the exceptions to section 859b to mean all jointly-charged defendants. (Samano, supra, 31 Cal.App.4th at pp. 992-993.) The court reasoned that if section 859b was "absolute," the prosecution would "run the risk of having fewer than all of the defendants to prosecute at the preliminary hearing [because some defendants abscond after being released on their own recognizance] if they seek to maintain joinder of several members of a criminal conspiracy when one of them demands and obtains a continuance." (Samano, at p. 992.) The court deemed this risk to be "not acceptable and the overall administration of justice would suffer if release were required to maintain joinder." (Ibid.) Construing "defendant" in section 859b's exception to mean all jointly-charged defendants allowed the court to avoid this risk. As the court concluded, "[t]he request of one properly joined defendant for a continuance of the preliminary examination with good cause shall be deemed a request of all jointly charged defendants." (Samano, at p. 993.)
As the Supreme Court acknowledged in Standish, supra, 38 Cal.4th 858, Samano exemplifies a small set of cases where "the delay in the preliminary examination was attributable to the defense and, indeed, served the defendant's constitutional interests." (Id. at p. 873.) In Standish, however, the court was confronted with a distinguishable situation where the prosecution requested the continuance of the preliminary hearing. Standish recognized the Samano decision, but found it "distinguishable from the present case, in which it was the prosecution that requested the continuance." (Standish, supra, 38 Cal.4th at p. 873.) The court concluded that where the prosecutor seeks the continuance, section 859b creates a mandatory duty to release the defendant on his own recognizance. (Ibid.)
Here, Courtney asserts that, on the record, the prosecution requested both the continuance of his preliminary hearing and the continuance of his codefendant Marissa's preliminary hearing. On this basis, he contends that Standish controls and Samano does not apply. Strictly speaking, the People do not disagree with this factual premise, "admit[ting that] the continuance was verbally requested by the [d]istrict [a]ttorney's [o]ffice, and that Marissa Brown entered a personal waiver." They ask, however, that this court consider and accept the deputy district attorney's declaration concerning the in- chambers, off-the-record discussion that allegedly preceded the on-the-record verbal request for a continuance. On this basis they assert that the request to continue was actually a joint request by both the People and defense counsel. The People argue that if we accept this version of events, the joint request for a continuance of Marissa's preliminary examination is substantially the same as the defense request in Samano, and thereby negates any right to OR release for Courtney.
The People's return provides no authority indicating that a reviewing court may, or should, consider evidence of an off-the-record discussion among counsel that conflicts with on-the-record statements by the attorneys. And we have found no cases directly addressing the argument now presented by the district attorney. But unlike an appeal, an appellate court may consider new evidence concerning matters outside the record when considering a petition for writ of habeas corpus, including declarations. (See, e.g., People v. Duvall (1995) 9 Cal.4th 464, 476 ["the return should also, 'where appropriate, . . . provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.' "].) Facts set forth in the return that are not disputed in the traverse are deemed true. (Id. at p. 477.)
Of course, whether we may consider this evidence is a different question from whether or how we should consider it. Regardless, even if we were to consider the evidence submitted in support of the return and analyze its implications, this case is not the functional equivalent of Samano. In Samano, it was two codefendants who "insisted upon a continuance" despite the fact that "[t]he People were ready for the preliminary hearing and wanted to go forward." (Samano, supra, 31 Cal.App.4th at p. 989.) The codefendants' request for a continuance was made by formal motion, at a time when all codefendants had appeared and were in custody, on the basis that the continuance was necessary to adequately prepare for the preliminary hearing. (Id. at p. 988.)
Here, the deputy's declaration seeks to characterize the unreported chambers discussion as a "joint" request. But the facts as described in the declaration do not ultimately support that characterization. Marissa's defense counsel merely agreed with the judge and prosecutor "that it would be to the benefit of all parties to continue the preliminary hearing." The only request that defense counsel allegedly "joined" was the "selection of the date" after the court and parties agreed to a continuance.
Thus, even if we were to accept the People's contention that Samano applies not merely to a codefendant's continuance request but extends as well to a prosecution request joined in by a codefendant, the argument fails in its factual premise. Treating as true the deputy district attorney's declaration, there was never a "joint request" for a continuance in this case. At most Marissa's counsel (1) agreed with the prosecutor that a continuance was a good idea, and (2) joined with the prosecutor in requesting June 13 as an acceptable date if the preliminary hearing was continued. Agreeing with the prosecutor's reasoning in seeking a continuance does not transform a prosecution request into a joint request by the prosecutor and defendant for purposes of section 859b.
The People additionally contend that the court had inherent authority to continue Courtney's preliminary hearing without granting his own recognizance release. They rely on the assertion that the court was faced with a dilemma created by Courtney when he decided to abscond to Nevada, creating the necessity for a continuance to ensure a joint preliminary hearing. In essence, the People are asking this court to create new exceptions to those expressly listed in section 859b for situations in which the People can establish a legitimate public interest that outweighs the incarcerated defendant's interest in being set at liberty when the preliminary hearing is delayed. As the Supreme Court recognized in Standish, however, the Legislature already considered this question and provided an exhaustive list of the situations in which the defendant's liberty interest is outweighed by other interests. In the words of the Standish court, "[t]he People evidently wish that a different balance had been struck to cover additional situations, but that did not occur. The Legislature, of course, is free to revise the statute as it wishes within constitutional limits, but the current language of the statute does not support the People's position." (Standish, supra, 38 Cal.4th at p. 871.) Where the Supreme Court has declined to add judicially created exceptions to the Legislature's express list in section 859b, we are without authority to reach a different conclusion.
At oral argument, for the first time and without any reference to specific sections or language, the People suggested that constitutional amendments included in the passage of Marsy's Law by the voters in 2008 somehow affect the viability of Standish. (See Cal. Const., art. I, § 28; see generally In re Vicks (2013) 56 Cal.4th 274, 281.) We decline to consider this unbriefed and undeveloped contention. --------
DISPOSITION
The superior court's order of May 24, 2018, denying petitioner's petition for writ of mandate is vacated. The court is directed to release petitioner on his own recognizance after conducting a hearing to determine the appropriate conditions, if any, to that release pursuant to section 1318. The opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.