People v. Superior Ct. (Arnold) ( 2021 )

Filed 1/12/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306519
Petitioner, (Los Angeles County
Super. Ct. No. BA455469)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
TATIANA ARNOLD,
Real Party in Interest.
THE PEOPLE, B306520
Petitioner, (Los Angeles County
Super. Ct. No. BA455470)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
RONNIE CASE,
Real Party in Interest.
THE PEOPLE, B306523
Petitioner, (Los Angeles County
Super. Ct. No. BA455469)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
KELLY PARK,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
William C. Ryan and Larry Paul Fidler, Judges. Petitions
denied.
2
Jackie Lacey, District Attorney, John Niedermann and
Matthew Brown, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
James & Associates, Becky S. James, Lisa M. Burnett; The
Kaufman Law Group, Gary Jay Kaufman and Noam Reiffman for
Real Party in Interest Tatiana Arnold.
Spertus, Landes, & Umhofer, James W. Spertus, Samuel A.
Josephs and Lindsey M. Hay for Real Party in Interest Ronnie
Case.
James & Associates, Becky S. James and Lisa M. Burnett
for Real Party in Interest Kelly Park.
_____________________
Real parties in interest Tatiana Arnold, Kelly Park, and
Ronnie Case were arraigned on amended complaints on August 1,
2018 with eight codefendants. The superior court continued the
preliminary hearing numerous times, with Arnold, Park, and
Case, out of custody, agreeing to limited time waivers under
Penal Code1 section 859b. Ultimately, the defendants agreed to
waive time to August 16, 2019 as a “zero of 90” date, thereby
agreeing the preliminary hearing would be held no later than
November 14, 2019. Although Arnold, Park, and Case refused
further time waivers, the court continued the preliminary
hearing past November 14, finding good cause based on time
waivers by their codefendants and a pending motion to disqualify
the district attorney’s office. The court denied the defendants’
1 All further undesignated statutory references are to the
Penal Code.
3
motions to dismiss, but the defendants successfully petitioned the
superior court for a writ of mandate dismissing the complaints.
The People now petition for writs of mandate to compel the
superior court to vacate its order dismissing the amended
complaints. Although it is common in the superior courts for
defendants to enter limited time waivers, agreeing, as here, to
waive time to a new date as a “zero of 60” or “zero of 90” date, the
People contend that under section 859b, if a defendant waives
time beyond the initial 60-day period following arraignment, this
constitutes a general time waiver, and the defendant loses his or
her right to demand the preliminary hearing take place by a date
certain. The People also assert there is a good-cause exception to
the 60-day time limit allowing a continuance of the preliminary
hearing to maintain joinder of the codefendants or to enable the
defendants’ pending motion to disqualify the district attorney’s
office be heard before the preliminary hearing. Neither
contention has merit. We conclude section 859b permits a
defendant to enter a limited waiver of time beyond the initial 60-
day time period by agreeing the preliminary hearing be held by a
date certain. Absent a further time waiver by the defendant, the
court may not continue the preliminary hearing beyond the
agreed-upon date based on a finding of good cause. We deny the
petitions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Arraignments and Time Waivers
In 2015 the grand jury returned multicount felony
indictments against Arnold, Park, Case, and other defendants.
On March 16, 2017 the People voluntarily dismissed the
4
indictments and filed criminal complaints against Arnold and
Park (Super. Ct. No. BA455469) and Case (Super. Ct.
No. BA455470). After multiple amendments, on July 12, 2017
the People filed a third amended complaint against Arnold and
Park and a second amended complaint against Case. Arnold,
Park, and Case have been out of custody since before the filing of
the criminal complaints.
Following the sustaining of demurrers to multiple counts in
both cases, on October 31, 2017 the People refiled the cases under
case Nos. BA462349 (Arnold and Park) and BA455470 (Case).
On the same day, Arnold, Park, and Case agreed to waive time
for the arraignment to be held on February 16, 2018 and for the
preliminary hearing to be held within 90 days of the
arraignment.
On February 1, 2018 codefendant Paul Turley filed a
motion to dismiss on behalf of all joining defendants, alleging the
prosecution viewed legal documents seized from a storage unit in
violation of defendants’ attorney-client privilege. The motion
requested dismissal of all joining defendants or disqualification of
the Los Angeles County District Attorney’s Office under section
1424. Arnold and Park joined in Turley’s motion.2
2 Case appears to have signed on to a separate joinder in
Turley’s motion to dismiss filed by codefendant Leticia Lemus
Alvarez, but Case later claimed he did not join the motion. We
need not resolve whether Case joined the motion to dismiss for
purposes of this proceeding.
5
On February 16, 2018 the superior court arraigned Arnold,
Park, and Case, and each pleaded not guilty to all charges.3 As
part of a scheduling discussion, the prosecutor requested the
court hear the People’s pending motion to consolidate the cases
“prior to [when] the 10 days are up. If the court joins [the cases],
then [it will be] good cause on one case. After [the cases are]
joined, it’s zero of ninety as to everything.” Turley’s attorney
responded, “That’s wrong, Your Honor. It would actually be a
reason to rule against joinder if it actually took away the client’s
speedy trial rights. There is no law that allows joinder to
basically gut the speedy trial statute.” The court responded, “Oh,
but it does . . . . If it’s good cause for one and the case should be
tried together, then it’s good cause . . . for all whether or not they
agree to it . . . .” Turley’s attorney replied, “[T]hat rule does not
apply to [preliminary hearings],” citing Ramos v. Superior Court
(2007) 146 Cal.App.4th 719 (Ramos). The court continued the
hearing to February 20.
The court and counsel had a similar discussion on
February 20, 2018 after Arnold, Park, Case, and other defendants
declined to agree to a time waiver beyond May 17 (90 days from
February 16). Turley’s attorney stated, “We are waiving the 60
days from February 16th such that it expires on May 17th. We’re
not waiving our 60-day right. We’re extending it.” The court
responded, “Well, but that’s the same as waiving it.” But the
court clarified, “You’re only waiving time to a specific date, which
is May the 17th,” which the court noted was the “last day to
3 Judge Larry Paul Fidler handled the arraignment and
subsequent proceedings through denial of Arnold, Case, and
Park’s joint motion to dismiss. Judge William C. Ryan later
ruled on the petitions for writ of mandate.
6
proceed to preliminary hearing without a further waiver.”
Turley’s attorney noted, “And Ramos will apply.” The court
added, “Well, the bottom line is if you don’t get it within the
statutory agreed date, you can’t without their agreement, then
the case is dismissed, that’s what Ramos means. I don’t think we
have to parse words.”
On August 1, 2018 the court granted the People’s motion to
consolidate the cases.4 The same day Arnold, Park, and Case
were arraigned on the consolidated amended complaints5 and
pleaded not guilty. On August 1, 2018, December 7, 2018, and
March 15, 2019 Arnold, Park, and Case agreed to waive time for
the preliminary hearing to be held within 60 days of specified
dates (setting new “zero of 60” dates), ultimately agreeing the
preliminary hearing would be held within 60 days of May 17,
2019.6
4 As relevant here, the court consolidated case No. BA462393
with case No. BA455470 (Case), and case No. BA462349 with
case No. BA455469 (Arnold and Park).
5 The consolidated fourth amended complaint filed against
Arnold and Park alleged conspiracy to commit insurance fraud
(§ 182, subd. (a)(1), 550, subd. (a)(6)), multiple counts of
aggravated mayhem (§ 205), mayhem (§ 203), billing fraud (§ 550,
subd. (a)(5) & (6)), money laundering (§ 186.10, subd. (a)), patient
referral fraud (§ 549; Lab. Code, § 3215), and tax fraud (Rev. &
Tax. Code, §§ 19705, subd. (a), 19706). The consolidated third
amended complaint filed against Case alleged multiple counts of
billing fraud (Pen. Code, § 550, subd. (a)(5) & (6)) and patient
referral fraud (§ 549).
6 On August 1, 2018 and March 15, 2019 the attorneys
waived time on behalf of the defendants, and after an inquiry by
the court, none of the defendants objected to the time waivers.
7
On May 17, 2019 the court again continued the preliminary
hearing and inquired whether the defendants agreed to waive
time for the preliminary hearing to be held within 90 days of
August 16, “[u]nderstanding that they’re waiving and giving up
their right to an earlier preliminary hearing date.” Arnold, Park,
and Case personally agreed to waive time.
On August 16, 2019 the court continued the preliminary
hearing to December 6, 2019 as a “zero of 90” date, such that the
preliminary hearing would take place within 90 days of
December 6. But Arnold, Park, and Case declined to waive time.
The court made a finding of good cause, explaining “the case
should remain joined together and good cause for one is good
cause for anyone who is not waiving.”
B. Arnold, Park, and Case’s Joint Motion To Dismiss
On November 19, 2019 Arnold, Park, and Case filed a joint
motion to dismiss under section 859b, arguing the statute
mandated dismissal because the preliminary hearing was
continued for longer than 60 days from their arraignments
without their personal waiver because they had only agreed to a
continuance to November 14, 2019 (90 days after August 16,
2019). The People filed an opposition, arguing that once a
defendant waives time past the initial 60-day period, he or she
loses the right to demand the preliminary hearing take place
within 60 days.
At the hearing on the motion, Case’s attorney argued the
Court of Appeal in Ramos, supra, 146 Cal.App.4th 719On December 7, 2018 Arnold and Case personally waived time;
Park’s attorney waived time on behalf of Park, who was not
present, pursuant to section 977, subdivision (b).
8
interpreted section 859b to impose a 60-day “outer limit” by
which the People have to commence the preliminary hearing,
with no exception for good cause, and Case agreed to set the limit
at November 14, 2019 by entering a waiver to August 16 as date
“zero of 90.” He added, “[T]he record is clear that every single
time we’ve been in court going through the colloquy with the
court of entering a limited specific waiver that we’ve done so and
especially have done so up to the date of . . . August 16 when we
entered into a zero of 90 waiver.” Arnold and Park joined in
Case’s arguments.
The superior court denied the joint motion to dismiss. The
court found good cause as to Arnold and Park based on their
joinder in the motion to dismiss for violation of the attorney-
client privilege because the preliminary hearing would become a
“nullity” if the court later granted the motion. As to Case, who
argued he did not join the motion to dismiss, the court reasoned
“good cause for one is good cause for all,” and it found once Case
waived time beyond the initial 60-day period, he was subject to
the good cause provisions for a continuance under section 1050.1.
C. Case’s and Arnold and Park’s Petitions for Writs of
Mandate in the Superior Court
On January 14, 2020 Case filed a petition for a writ of
mandate in the superior court, seeking to set aside the court’s
order denying the motion to dismiss under section 859b. On
January 22 Arnold and Park jointly filed a similar petition. The
three defendants again argued section 859b required dismissal
because the preliminary hearing had not been conducted within
60 days of their arraignments and pleas, section 859b did not
provide a good cause exception to the 60-day requirement, and
9
their limited waivers beyond the initial 60 days had expired on
November 14, 2019.
On May 19, 2020 the superior court granted the petitions.
The court found that under Ramos, supra, 146 Cal.App.4th 719,
“section 1050.1’s usual ‘good cause for one is good cause for all’
provisions no longer apply when outside the 60 days even when
one defendant does wish to waive time. This is because after the
60 days, the personal ‘waiver requirement is absolute.’” Relying
on our opinion in Garcia v. Superior Court (2020) 47 Cal.App.5th
631 (Garcia), the superior court concluded Arnold’s, Case’s, and
Park’s time waivers were “limited time waivers to dates certain”
the last of which “ma[de] November 14, 2019, day 90 of 90 for
purposes of the preliminary hearing without a further waiver.”
On July 8, 2020 the People filed three petitions for writs of
mandate directing the superior court to vacate its May 19, 2020
orders granting Arnold’s, Park’s, and Case’s petitions. After
receiving supplemental briefing, on August 26, 2020 we issued
orders to show cause why relief should not be granted. Arnold,
Park, and Case each filed a return, and the People filed a reply as
to each defendant.
DISCUSSION
A. Standard of Review
“We review questions of statutory construction de novo.
Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose.’”
(California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, Akopyan v.
Superior Court (2020) 53 Cal.App.5th 1094, 1098.) “‘We first
10
examine the statutory language, giving it a plain and
commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment.’” (Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 381; accord, California
Building, at p. 1041.) “‘“If the statutory language permits more
than one reasonable interpretation, courts may consider other
aids, such as the statute’s purpose, legislative history, and public
policy.”’” (City of San Jose v. Superior Court (2017) 2 Cal.5th
608, 616-617; accord, People v. Smith (2004) 32 Cal.4th 792, 798
[“‘[T]he court may consider the impact of an interpretation on
public policy, for “[w]here uncertainty exists consideration should
be given to the consequences that will flow from a particular
interpretation.”’”].)7
7 “[S]ection 871.6 specifically authorizes a petition for writ of
mandate/prohibition in the superior court ‘[i]f in a felony case the
magistrate sets the preliminary examination beyond the time
specified in Section 859b, in violation of Section 859b, or
continues the preliminary hearing without good cause and good
cause is required by law for such a continuance.’ The statute also
contemplates that the parties may ‘seek review in a court of
appeal’ after the superior court rules. (§ 871.6.)” (Bullock v.
Superior Court (2020) 51 Cal.App.5th 134, 148-149.) Case
contends writ relief is not appropriate, arguing the People will
not suffer irreparable harm if relief is not granted. However,
“‘our issuance of the order to show cause determined, in effect,
that petitioners’ remedy at law was inadequate [citation], thus
making writ review proper.’” (Akopyan v. Superior Court of Los
Angeles County, supra, 53 Cal.App.5th 1094, 1099, fn. 4; accord,
Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 476-477.)
11
B. Section 859b Required Dismissal of the Amended
Complaints Against Arnold, Park, and Case
1. Section 859b
Section 859b governs the time limits for conducting a
preliminary hearing and the consequences of failure to comply
with those limits. (People v. Standish (2006) 38 Cal.4th 858, 866;
Garcia, supra, 47 Cal.App.5th at p. 648.) The statute is
“‘supplementary to and a construction of the constitutional right
to a speedy trial.’” (Standish, at p. 870; accord, Garcia, at p. 648.)
Section 859b has three primary components. First, “[b]oth the
defendant and the [P]eople 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 [following a mental
competency determination].” (§ 859b.) Second, “whenever the
defendant is in custody for 10 or more court days on the pending
complaint, ‘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’ unless (a) ‘[t]he defendant personally
waives his or her right to preliminary examination within the 10
court days,’ or (b) ‘[t]he prosecution establishes good cause for a
continuance beyond the 10-court-day period.’” (Garcia, at p. 644,
quoting § 859b.) Third, “[t]he magistrate shall dismiss the
complaint if the preliminary examination is set or continued
more than 60 days from the date of the arraignment, plea, or
reinstatement of criminal proceedings [following a mental
12
competency determination], unless the defendant personally
waives his or her right to a preliminary examination within the
60 days.” (§ 859b.) “Accordingly, ‘the magistrate is required to
dismiss the complaint if the court fails to adhere to the
mandatory 10-court-day rule for incarcerated defendants or the
60-day rule for all defendants.’” (Garcia, at p. 645.)
2. Arnold, Park, and Case did not enter general waivers
of their right to a timely preliminary hearing
The People contend section 859b does not require dismissal
because once Arnold, Park, and Case waived their right to a
preliminary hearing within 60 days from the date of their
arraignments on the amended complaints, they had no further
right to demand a preliminary hearing within a new 60-day
period. Arnold, Park, and Case assert they entered only limited
time waivers, which were always conditioned on having a
preliminary hearing by a date certain, ultimately by
November 14, 2019. Defendants have the better argument.
Our opinion in Garcia, supra, 47 Cal.App.5th 631, although
addressing an in-custody defendant’s right to a preliminary
hearing within 10 days, is instructive. There, at his arraignment
and plea on the original complaint, defendant Naason Garcia
agreed to a time waiver of the 10- and 60-day limits under section
859b. (Garcia, at p. 637.) But when Garcia was rearraigned on
an amended complaint, he did not provide a time waiver. (Id. at
p. 638.) The court continued the preliminary hearing beyond the
10-day limit but within the 60-day limit, at which time Garcia
agreed to waive both the 10- and 60-day limits conditioned on the
preliminary hearing being held within 30 days of August 23, 2019
(the “zero of 30” date). (Id. at pp. 638-639.) When the
13
preliminary hearing was continued to a date after September 23,
Garcia moved for dismissal under section 859b. (Garcia, at
pp. 640-641.)
We held Garcia’s arraignment on the amended complaint
was “a new triggering event under section 859b” requiring a
preliminary hearing within 10 court days, absent good cause or a
waiver. (Garcia, supra, 47 Cal.App.5th at p. 648.) The People
argued that although Garcia had not waived time at his
arraignment on the amended complaint, he subsequently waived
the 10-day time limit. (Id. at p. 651.) We rejected this argument,
explaining Garcia’s waiver “was not a general waiver of his right
to a preliminary hearing within the statutory 10-day and 60-day
periods.”8 (Garcia, at p. 651.) Rather, when a defendant “enter[s]
a specific and limited time waiver in which he agree[s] to
continue the preliminary hearing to a date on or before” a date
certain, it “d[oes] not constitute a general waiver of his statutory
right to a timely preliminary hearing.” (Id. at pp. 651-652; see
Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599 [in-
custody defendant’s agreement to preliminary hearing date
outside 10-day period did not waive his right to a timely
preliminary hearing because defendant conditioned his
agreement to a later date on his stated assumption he was not
waiving time, and therefore his waiver “was based upon a
condition which was not met and could therefore not operate as a
valid waiver”].)
8 In Garcia, although more than 10 court days passed
between the defendant’s arraignment on the amended complaint
and entry of his limited time waiver, we “assum[ed], without
deciding, that a defendant may retroactively waive time under
section 859b.” (Garcia, supra, 47 Cal.App.5th at p. 651.)
14
Here, as in Garcia, Arnold, Park, and Case entered specific
and limited time waivers in which they agreed to continue the
preliminary hearing on the condition the hearing occur on or
before a date certain, ultimately, November 14, 2019—90 days
from August 16, 2019.9 We discern no material difference in the
text of section 859b as it pertains to waiver of the 10-court-day
limit addressed in Garcia and the 60-day limit. Section 859b
mandates a preliminary hearing be held within 60 days unless a
defendant “personally waives” his or her right, just as it
mandates a preliminary hearing within 10 court days for an in-
custody defendant unless the defendant “personally waives” his
or her right (or the prosecution shows good cause). “[W]ords or
phrases given a particular meaning in one part of a statute must
be given the same meaning in other parts of the statute . . . .”
(Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; accord, People v.
Santa Ana (2016) 247 Cal.App.4th 1123, 1142 [“‘[I]t is . . .
“generally presumed that when a word is used in a particular
sense in one part of a statute, it is intended to have the same
meaning if it appears in another part of the same statute.”’”].)
We therefore interpret the phrase “personally waives” in section
859b as we did in Garcia to authorize a defendant to enter a
specific and limited waiver of his or her right to a preliminary
hearing within 60 days of the arraignment or plea.
The People contend “the 10-day right is gone once it is
waived,” relying on People v. Alvarez (1989) 208 Cal.App.3d 567,
9 The People do not dispute that under Garcia the
arraignment of Arnold, Park, and Case on the amended
complaints was “a new triggering event under section 859b”
requiring a preliminary hearing within 10 court days absent good
cause or a new waiver. (Garcia, supra, 47 Cal.App.5th at p. 648.)
15
570 (Alvarez) and People v. Love (2005) 132 Cal.App.4th 276, 283
(Love), and therefore the right to a preliminary hearing within 60
days is similarly lost once waived. Alvarez and Love are
distinguishable in that both involved general time waivers. In
Alvarez, the defendant waived his right to commencement of the
preliminary hearing within 10 court days. (Alvarez, at p. 570.)
The magistrate twice continued the hearing to a date within the
60-day period, but the defendant did not enter a further waiver.
(Id. at pp. 570-571.) The Court of Appeal concluded that once the
defendant waived his right to commencement of the preliminary
hearing within 10 court days of his arraignment, that right was
waived for all purposes. (Id. at pp. 572-573.) Thus, the
magistrate had authority to continue the preliminary hearing
beyond the 10-day limit without a new waiver, provided the
matter was not continued beyond the 60-day period without the
defendant’s further personal waiver. (Id. at p. 572.)10
In Love, the court considered whether an out-of-custody
defendant who had waived her right to have a preliminary
hearing within 10 court days and 60 days of her plea was entitled
to a preliminary hearing within 10 court days of her first
10 At oral argument the People argued Alvarez involved a
limited time waiver. It did not. As the Court of Appeal
explained, the defendant “agreed to waive his right to have his
preliminary hearing heard within 10 court days of his
arraignment pursuant to section 859b.” (Alvarez, supra,
208 Cal.App.3d at p. 570; see id. at p. 570, fn. 2 [“[D]efendant has
conceded on more than one occasion that he ‘waived his right’ to a
preliminary examination within 10 court days of his
arraignment.”].) Although the magistrate later continued the
preliminary hearing to a specific date, that was not by agreement
of the defendant. (Id. at p. 571.)
16
appearance in custody after she failed to appear and the court
issued a bench warrant. (Love, supra, 132 Cal.App.4th at
pp. 281-283.) The Court of Appeal concluded she was not,
explaining “[t]he Legislature has never codified a provision
imposing a 10-court-day limit for defendants who, having
previously waived time, find themselves in custody after a failure
to appear. Nor has the Legislature created a provision for the
withdrawal of properly entered waivers.” (Id. at p. 285.) The
Love court contrasted section 859b with section 1382 (the speedy
trial statute), which the court noted specifically addresses both a
defendant’s failure to appear and withdrawal of a time waiver.
(Love, at pp. 285-286.) The court observed the Legislature did not
insert “similar provisions in section 859b.” (Id. at p. 286.) Unlike
in Alvarez and Love, Arnold, Park, and Case never entered a
general waiver of the 60-day time limit following their
arraignment on the amended complaint. And unlike the
defendant in Love, Arnold, Park, and Case did not fail to appear.
The People seek to buttress their argument by contrasting
section 1382’s provisions for a general and limited waiver of the
requirement a defendant be brought to trial within 60 days of
arraignment on an information or indictment (see § 1382, subd.
(a)(2)(A) [general waiver], (B) [limited waiver]) with the
Legislature’s omission in section 859b of any reference to limited
time waivers continuing the preliminary hearing outside the 60-
day period. The People argue the Legislature therefore must
have intended not to allow limited time waivers that would
preserve a defendant’s right to dismissal of a complaint if the
preliminary hearing is continued beyond an agreed-upon date
outside the 60-day period. As the People point out, under section
1382, if a defendant does not provide a general waiver of the 60-
17
day limit, the action must be dismissed if the defendant is not
brought to trial within 60 days of his or her arraignment. (Id.,
subd. (a)(2).) If the defendant enters a general waiver of the 60-
day limit, the court may continue the trial without the sanction of
dismissal unless the defendant personally withdraws the waiver,
at which time the case must proceed to trial within 60 days,
absent good cause shown. (Id., subd. (a)(2)(A).) Alternatively,
the defendant may agree to the setting of the trial date beyond
the 60-day period (a limited waiver), in which circumstance the
case must be brought to trial within 10 days of the specified date
absent good cause shown. (Id., subd. (a)(2)(B).)
The People’s argument ignores the legislative history of
sections 859, subdivision (b), and 1382. Because there is more
than one reasonable interpretation of section 859, subdivision (b),
we consider this history. (City of San Jose v. Superior Court,
supra, 2 Cal.5th at pp. 616-617.) The Legislature amended
section 859b in 1980 to require a preliminary hearing be held
within 60 days of arraignment or plea. (Stats. 1980, ch. 938, § 1.)
Prior to the amendment, section 859b did not provide for any
continuances of the preliminary hearing beyond 10 court days
from the arraignment for an in-custody defendant. (Sen. Com. on
Judiciary, com. on Assem. Bill No. 2383 (1979-1980 Reg. Sess.) as
amended June 26, 1980, p. 2.) Assembly Bill 2383 provided for a
continuance of the preliminary hearing beyond the 10-day period
for good cause, but it also added the requirement the preliminary
hearing be held within 60 days. (Ibid.) As the Senate Judiciary
Committee bill analysis described the amendment, it “provide[d]
that the preliminary examination could not, under any
circumstances, be continued beyond 60 days from date of
arraignment, unless the defendant personally waived time.”
18
(Ibid.)11 The legislative history does not show, as suggested by
the People, any intent to prevent defendants from providing
limited (or conditional) time waivers while preserving their right
to demand dismissal of the action if the condition is not met.
Further, at the time of the amendment to section 859b in
1980, former section 1382 provided only for limited time waivers,
stating, “The court, unless good cause to the contrary is shown,
must order the action to be dismissed in the following cases:
[¶] . . . [¶] 2. When a defendant is not brought to trial in a
superior court within 60 days after the finding of the indictment
or filing of the information . . . ; except that an action shall not be
dismissed under this subdivision if it is set for trial on a date
beyond the 60-day period at the request of the defendant or with
his consent, express or implied, or because of his neglect or
failure to appear and if the defendant is brought to trial on the
date so set for trial or within 10 days thereafter.” (Stats. 1973,
ch. 847, § 1, pp. 1513-1514.) There is no reason to assume the
Legislature intended that section 859b’s 60-day rule would
operate in a manner different from section 1382 by limiting a
11 The principal focus of the 1980 amendment was to amend
the Penal Code to provide that actions may be dismissed in
specified circumstances by a magistrate, not only a “court,” after
the Supreme Court held in People v. Peters (1978) 21 Cal.3d 749 a
magistrate is not a court within the meaning of section 1385,
which allows dismissal of a criminal action in the “furtherance of
justice.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 2383
(1979-1980 Reg. Sess.) as amended June 26, 1980, p. 4.)
19
defendant’s right to dismissal of the complaint only to the first
60-day period.12
Further, the relevant language of former section 1382 in
effect in 1980 was enacted as part of a 1959 amendment that
addressed the Judicial Council’s concern the pre-1959 language
could prevent a defendant from obtaining dismissal of the action
where the defendant had requested or agreed to a continuance of
his or her trial to a date outside the 60-day period. As the
Judicial Council explained, the new language “will clarify the
present rule by . . . establishing that dismissal under Section
1382 may be had even though the defendant has previously
consented to a delay beyond the statutory period.” (Judicial
Council of Cal., 17th Biennial Rep. (1959) p. 32; see Owens v.
Superior Court (1980) 28 Cal.3d 238, 244 [observing the
Legislature adopted the Judicial Council’s proposed language to
amend § 1382 because the pre-1959 language “was unclear as to
whether an accused who obtained a postponement of his trial to a
date past the 60-day limit thereby lost forever his statutory
rights to a speedy trial and a dismissal”].)13 Where a defendant
12 The principal difference between a defendant’s right to
dismissal under sections 859b and 1382 is that in the latter case,
where the defendant provides a limited time waiver to a date
certain, the People have an additional 10-day grace period in
which to bring the case to trial. The 10-day grace period was
added in 1959 at the request of the Judicial Council of California
to “fix[] 10 days as a reasonable time for trial after expiration of
the period consented to by the defendant.” (Judicial Council of
Cal., 17th Biennial Rep., supra, p. 32.)
13 The pre-1959 version of former section 1382 provided, “The
court, unless good cause to the contrary is shown, must order the
20
has consented to a continuance to a date certain outside the 60-
day period, it would make little sense for the Legislature to
protect a defendant’s right to dismissal of an action for failure to
bring the case to trial within 60 days, but not for failure to hold a
preliminary hearing within 60 days, both of which implicate a
defendant’s speedy trial rights. (See § 859b [“Both the defendant
and the people have the right to a preliminary examination at the
earliest possible time . . . .”]; § 1050, subd. (a) [“The welfare of the
people of the State of California requires that all proceedings in
criminal cases shall be set for trial and heard and determined at
the earliest possible time.”].)
The People’s reliance on the general waiver provision in
section 1382 also fails. In 1991 former section 1382 was amended
to allow a defendant to provide a “general waiver of the 60-day
trial requirement,” under which a defendant may give up his or
action to be dismissed in the following cases: [¶] . . . [¶] . . . If a
defendant, whose trial has not been postponed upon his
application, is not brought to trial in a superior court within 60
days after the finding of the indictment, or filing of the
information . . . .” (Stats. 1951, ch. 1674, § 140, p. 3856.) The
reference to a defendant “whose trial has not been postponed
upon his application” was removed by the 1959 amendment and
replaced with the limited waiver language. (Stats. 1959, ch.
1693, § 3, p. 4093.) In proposing the 1959 amendment, the
Judicial Council cited to the Supreme Court’s decision in In re
Lopez (1952) 39 Cal.2d 118, 120, in which the court interpreted
the former language to mean the defendant’s consent to a
continuance outside the 60-day period resulted in his loss of the
right to dismiss the action under section 1382 when the trial was
later continued over his objection, although he preserved his
constitutional right to a speedy trial. (See Judicial Council of
Cal., 17th Biennial Rep., supra, at p. 32.)
21
her right to demand dismissal of the action if not brought to trial
within 60 days, but the provision allows the defendant later to
withdraw the waiver. (Stats. 1991, ch. 655, § 3, p. 3016.4.) The
1991 amendment preserved the limited time waiver (Stats. 1991,
ch. 655, § 3, p. 3017), now found in section 1382, subdivision
(a)(2)(B).14 Contrary to the People’s assertion, the purpose of the
1991 amendment was to provide additional flexibility for courts
and parties by allowing defendants to provide a general time
waiver that affords more time to prepare for trial than the 10-day
grace period applicable after a limited time waiver (that is, a full
60 days from a defendant’s withdrawal of a general time
waiver).15 (See, e.g., Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Sen. Bill No. 651 (1991-1992 Reg. Sess.) as
amended Apr. 8, 1991, p. 2 [“The purpose of this bill is . . . to
clarify and remedy many of difficulties inherent in existing law
pertaining to the time period in which defendants are to be
brought to trial.”]; id. at p. 4 [noting the amendment to § 1382
was sponsored by the Alameda County District Attorney’s Office,
which asserted the pre-amendment statute “has resulted in mass
confusion in the Superior Courts and has severely restricted the
14 As the Senate Judiciary Committee report explains, the
amendment retains the right of a defendant to be brought to trial
within 60 calendar days “but allows the setting of a date beyond
60 days when the defendant requests or expressly/impliedly
consents to such a date.” (Sen. Com. on Judiciary, Analysis on
Sen. Bill No. 651 (1991-1992 Reg. Sess.) as amended Apr. 8, 1991,
p. 3.) The 1991 amendment also changed the 10-day grace period
from 10 calendar days to 10 court days. (Ibid.)
15 Section 1382 was amended several times after 1991, but
those amendments do not affect our analysis or the result.
22
ability of trial courts to adequately supervise their calendars—
many of which are overwhelmed by pending criminal cases”].)
Nothing in this history suggests the Legislature somehow
intended in section 859b to restrict defendants to general time
waivers.
Certainly section 859b does not contain the complex scheme
for time waivers applicable to trials under section 1382, but
neither does it contain former section 1382’s pre-1959 language
that potentially eliminated a defendant’s right to dismissal of the
action once he or she agreed to a time waiver outside the initial
60-day period. Nor does it provide by its terms for a “general
waiver” of a defendant’s right to a preliminary hearing with 60
days. We conclude a reasonable reading of section 859b, in light
of the clear legislative intent behind sections 859b and 1382 to
protect a defendant’s statutory speedy trial rights, is that section
859, subdivision (b), allows both general and limited time
waivers, thereby preserving a defendant’s right to demand the
preliminary hearing take place within 60 days of arraignment or
plea, or an agreed-upon date certain. Where a defendant gives a
limited time waiver conditioned on the preliminary hearing
occurring by a specified date, if the preliminary hearing is
continued beyond that date without the defendant’s consent, the
defendant has not “personally waive[d] his or her right to a
preliminary examination within the 60 days” because the
condition of his or her waiver (holding the preliminary hearing by
a date certain) has not been met. (§ 859b.) Thus, as here, the
complaint must be dismissed.
The purpose of section 859b—to protect defendants from
lengthy delays before a finding of probable cause—supports our
construction of the statute. As the Supreme Court explained in
23
Stroud v. Superior Court (2000) 23 Cal.4th 952, 964-965, “[T]he
rule for prompt commencement of the preliminary examination”
is aimed “at ensuring that one does not languish unnecessarily in
custody, or under the cloud of a criminal complaint, without a
judicial finding of probable cause.” (Accord, Alvarez, supra,
208 Cal.App.3d at p. 573 [“For a defendant not in custody, ‘[the]
60-day limit [of section 859b] acts to protect [his or her] right to a
speedy preliminary examination by insuring . . . that, despite
good cause for postponement beyond 10 days, the matter cannot
be postponed indefinitely.’”].) Under the People’s interpretation,
a defendant would have to demand a preliminary hearing within
the first 60 days following his or her arraignment or lose the
right to hold the prosecution to a preliminary hearing by a date
certain. But there is nothing in section 859b or its legislative
history that suggests the Legislature intended such a draconian
rule that would force a defendant to refuse a time waiver at the
arraignment or forever lose the right to dismissal of the action
even where the preliminary hearing is serially or indefinitely
delayed. The history of the companion provision in section 1382
suggests legislative intent to the contrary. Further, the People’s
reading of section 859b would not serve the efficient
administration of criminal justice because a defendant would
effectively be prevented from agreeing to a limited continuance to
allow his or her attorney to prepare for the preliminary hearing
or to accommodate a reasonable request by the prosecution for a
limited delay. As defense counsel explained at oral argument,
24
defendants would never waive time if their waiver meant they
were forever forfeiting their statutory speedy trial rights.16
3. There is no good cause exception to section 859b’s
requirement a preliminary hearing be held within 60
days of the defendant’s arraignment or plea
Alternatively, the People contend the court was authorized
to continue the preliminary hearing for good cause once Arnold,
Park, and Case entered personal time waivers to maintain the
joinder of their codefendants under section 1050.1.17 We rejected
this argument in Ramos, supra, 146 Cal.App.4th at page 731.
In Ramos, the magistrate granted several continuances of
the preliminary hearing to a date more than 60 days after the
arraignment—over the defendant’s objection—at the request of
her codefendants. (Ramos, supra, 146 Cal.App.4th at p. 724.) We
16 A defendant would retain his or her constitutional right to
a speedy trial, but this right does not provide the same certainty
that section 859b provides to ensure the preliminary hearing is
held by a specified date.
17 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.”
25
concluded the magistrate was not authorized to continue the
preliminary hearing beyond the 60-day limit prescribed by
section 859b, regardless of whether good cause supported the
continuance under section 1050.1, in the absence of a personal
waiver of the 60-day limit. (Ramos, at pp. 731, 735.) We
reasoned, “[N]othing in section 1050.1 . . . signals an intent to
provide a good-cause exception to the strict 60-day rule in section
859b . . . .” (Ramos, at p. 722; accord, Lacayo v. Superior Court
(2020) 56 Cal.App.5th 396, 400 [“the 60-day rule is absolute and
there is no good-cause exception to the rule”]; Del Castillo v.
Superior Court (2019) 38 Cal.App.5th 1117, 1120 [“Although
section 859b includes a good-cause exception to the 10-court-day
rule, there is no exception from the 60-day rule, which indicates
the Legislature did not intend a good-cause exception can apply
to the 60-day rule.”].)
The People acknowledge the holding of Ramos but argue a
magistrate may continue the preliminary hearing of a
nonconsenting defendant under section 1050.1 to maintain
joinder with codefendants if that nonconsenting defendant has
previously entered a waiver of the 60-day rule. There is no
support in the text of section 859b or section 1050.1 for the
People’s position. Rather, as we observed in Ramos, “the plain
language of section 859b’s 60-day rule establishes the right to a
preliminary hearing within 60 days of arraignment is absolute
absent a defendant’s personal waiver.” (Ramos, supra,
146 Cal.App.4th at p. 729.) The People have not presented a
convincing reason for us to reconsider our holding in Ramos, and
we decline to do so.
26
4. The defendants’ disqualification motion did not toll
the 60-day time limit
The People alternatively contend, relying on People v. Lind
(2014) 230 Cal.App.4th 709, the pending defense motion to
dismiss or disqualify the district attorney’s office effectively
prevented the court from conducting the preliminary hearing
given the possibly tainted prosecutor, thus tolling the 60-day
period. The People’s reliance on Lind is misplaced. There, a
defendant filed a motion to disqualify the magistrate, after which
counsel agreed upon a continuance of the preliminary hearing so
the motion could be heard. After the court granted the motion to
disqualify, the defendant moved to set aside the information
because the preliminary hearing was not held within the 60-day
limit of section 859b. (Lind, at p. 712.) The trial court granted
the motion to dismiss, but the Court of Appeal reversed,
explaining “a defendant’s motion to disqualify the magistrate for
cause tolls the time limit for a preliminary hearing.” (Id. at
pp. 711, 714-715; see Code Civ. Proc., § 170.4, subd. (d) [“Except
as provided in this section, a disqualified judge shall have no
power to act in any proceeding after his or her disqualification or
after the filing of a statement of disqualification until the
question of his or her disqualification has been determined.”].)
The court reasoned, “It is absurd to construe section 859b to
mean the 60-day time limit for a preliminary hearing continues
to run when the magistrate is powerless to conduct the hearing
because of a motion filed by the defendant.” (Lind, at p. 715.)
The People cite no authority for the proposition a
defendant’s motion to disqualify the prosecutor’s office under
section 1424 similarly divests the magistrate of jurisdiction to
conduct a preliminary hearing. It does not. Rather, the
27
magistrate has authority to resolve a motion to disqualify the
district attorney for cause. (See § 1424, subd. (a)(1).) Here, the
motion to disqualify the district attorney’s office was filed on
February 1, 2018 and had been pending for over a year when
Arnold, Park, and Case declined further to waive time. Further,
the People had 90 days from the time Arnold, Park, and Case
announced they would no longer waive time in which to obtain a
hearing on the disqualification motion. Whatever the reason for
the protracted adjudication of the defense motion, Arnold, Park,
and Case had a right a timely preliminary hearing regardless of
whether they joined the disqualification motion. They were
denied this right.
DISPOSITION
The petitions are denied.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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