Carraway v. Superior Court

• Decision Date: 18 March 1981
• Citation: 172 Cal.Rptr. 453,118 Cal.App.3d 150
• Court: California Court of Appeals Court of Appeals
• Parties: Ronald K. CARRAWAY, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the CITY AND COUNTY OF SAN FRANCISCO, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 50951.

Page 453

172 Cal.Rptr. 453

118 Cal.App.3d 150

Ronald K. CARRAWAY, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the CITY AND COUNTY OF SAN FRANCISCO, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 50951.

Court of Appeal, First District, Division 2, California.

March 18, 1981.

Jeff Brown, Public Defender, City and County of San Francisco, Peter G. Keane, Chief Atty., James F. Pagano, Deputy Public Defender, San Francisco, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein and Clifford K. Thompson, Jr., Deputy Atty. Gen., San Francisco, for real party in interest.

ROUSE, Acting Presiding Justice.

Petitioner, charged by information with two counts of violation of section 246 of the Penal Code (malicious discharge of a firearm), ¹ seeks a writ of prohibition to prevent respondent superior court from proceeding with his trial. He contends that respondent court exceeded its jurisdiction in denying his motion to set aside the information. Petitioner argues that his commitment was unlawful within the meaning of section 995 in that the magistrate denied him the right to have his preliminary examination held within the mandatory time limit prescribed by section 859b.

Petitioner contends that, in refusing to follow controlling precedent, respondent court has exceeded its jurisdiction. ² We agree.

Section 859b, as amended in 1977, provides that "In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days." (Emphasis added.) The provision was designed to prevent a person in custody charged with a felony from being incarcerated for a prolonged period of time without a judicial determination of probable cause. (Seratto v. Superior Court (1978) 76 Cal.App.3d 459, 465, 142 Cal.Rptr. 882.)

The system worked until 1978. On the widespread assumption that a magistrate was a "court" within the meaning of section 1385, magistrates dismissed an action, pursuant to section 1385, when defendants were denied their right to a preliminary examination within 10 court days. Prosecutors could then refile the charge. On July 31, 1978, however, a bare majority of the California Supreme Court decided that magistrates were not courts within the meaning of section 1385 and thus had no jurisdiction to order the dismissal of a felony complaint. (People v. Peters (1978) 21 Cal.3d 749, 753, 147 Cal.Rptr. 646, 581 P.2d 651.)

The ruling in Peters created problems which have subsequently beset prosecutors, defendants and the courts. Deprived of authority to dismiss a felony complaint, magistrates could no longer redress violations of section 859b. Prosecutors and defendants were required to engage in "sham" preliminary hearings, for it was not until the defendant had been held to answer to a superior court which had the power to dismiss a felony complaint that defendants could obtain relief. Defendants unable to post bail suffered from the prolonged incarceration which section 859b was designed to prevent. Although the Legislature promptly sent a bill (Sen. Bill No. 1476, 1977-1978 Reg.Sess.) overturning Peters to the Governor, the Governor just as promptly vetoed that bill (People v. Tanner (1979) 24 Cal.3d 514, 549, fn. 7, 156 Cal.Rptr. 450, 596 P.2d 328 (conc. opn. of Newman, J.); Sen. Final History (1977-1978 Reg.Sess.) p. 811; see Note (1979) 67 Cal.L.Rev. 782, 785).

Magistrates responded to the dilemma into which they had been placed by the Peters ruling by adopting the practice of "discharging" the action when preliminary examinations could not be held within the time limits of section 859b. Under this practice, defendants were promptly rebooked, rearraigned, and their preliminary examinations reset for a later date.

In Johnson v. Superior Court (1979) 97 Cal.App.3d 682, 158 Cal.Rptr. 899, this court held that a defendant who had been held to answer to the superior court after his rights under section 859b had been violated by the foregoing practice had not been legally committed and was entitled to relief under section 995. Our holding in Johnson was confirmed in Simmons v. Municipal Court (1980) 109 Cal.App.3d 15, 167 Cal.Rptr. 608. Simmons agreed with the "clear implication" of Johnson that the 10-day requirement of section 859b related back to the first arraignment. (P. 22, 167 Cal.Rptr. 6018.) Simmons also held that a habeas corpus petition to the superior court was an appropriate remedy to obviate an unnecessary preliminary hearing in order to gain access to the superior court. (P. 25, 167 Cal.Rptr. 608.)

The instant case differs from Johnson in that petitioner was not in custody at the time he was arraigned on the second complaint. However, the mandatory right clearly attached in this case because petitioner was in custody "at the time of such (first) arraignment or plea and the defendant (did) not personally waive his right to preliminary examination within such 10 court days," within the meaning of section 859b. Thus, the fact that petitioner waived his right to a preliminary hearing within 10 days after his second arraignment does not cure the violation of section 859b, which right attached while he was in custody at the time of his first arraignment. (See Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599, 155 Cal.Rptr. 654.)

This court's attempt to fashion interim relief for a problem which, since Peters, required legislative resolution was at best imperfect (Simmons v. Municipal Court, supra, 109 Cal.App.3d 15, 25-27, 167 Cal.Rptr. 608; Johnson v. Superior Court, supra, 97 Cal.App.3d 682, 685, 158 Cal.Rptr. 899). ³

Although the Legislature acted in September 1980 to restore to magistrates the power to dismiss complaints (Stats.1980, ch. 938, § 1, p. 3191), that amendment to section 859b did not become effective until January 1, 1981. People v. Peters, supra, 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651, and its progeny (Simmons v. Municipal Court and Johnson v. Superior Court, both supra ), stated the law prevailing at the time of petitioner's motion; thus, respondent court clearly exceeded its jurisdiction in choosing to follow Guerrero v. Superior Court (S.F. 24197) (see fn. 2, ante ), a case in which a petition for hearing had been granted and which had been dismissed as moot, in preference to Johnson and Simmons, cases which were final and in which petitions for hearing had been denied. ⁴

Let a preemptory writ of prohibition...