Favor v. Superior Court of San Bernardino Cnty.

• Decision Date: 13 January 2021
• Docket Number: E075340
• Court: California Court of Appeals Court of Appeals
• Parties: Isaac FAVOR, Petitioner, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The People, Real Party in Interest.

59 Cal.App.5th 984

273 Cal.Rptr.3d 824

Isaac FAVOR, Petitioner,

v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent;The People, Real Party in Interest.

E075340

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

Filed January 13, 2021

G. Christopher Gardner, Public Defender, and Stephan J. Willms, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Jason Anderson, District Attorney, and Eric M. Ferguson, Deputy District Attorney, for Real Party in Interest.

OPINION

RAPHAEL J.

The right to a preliminary hearing within 60 days of arraignment "is absolute absent a defendant's personal waiver." ( Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 729, 53 Cal.Rptr.3d 189.) Petitioner Isaac Favor agreed to a limited waiver of this right, consenting to a new deadline that was 76 days after arraignment. The preliminary hearing was not held by that date, so Favor moved for mandatory dismissal under Penal Code section 859b.¹ The People argue that there can be no limited waiver of the 60-day deadline, so Favor's waiver was a general one that allowed the preliminary hearing to be set later than he authorized, even without a further waiver. We reject that argument and join Garcia v. Superior Court (2020) 47 Cal.App.5th 631, 651-652, 261 Cal.Rptr.3d 161 in enforcing a limited waiver of the 60-day preliminary hearing deadline. We therefore grant Favor's writ petition and order the trial court to grant his motion to dismiss.

I. FACTS

On February 19, 2020, Favor was arraigned in custody and pled not guilty to a single charge of manufacturing, selling, or possessing a short-barreled shotgun, in violation of section 33210. The court set his preliminary hearing for March 2, 2020.

Instead, however, on February 25, 2020, the parties agreed that Favor would be released from custody while the parties awaited a pretrial release report, and that he would appear on March 6 for the court to determine whether to return him to custody after considering that report. Favor waived the right to have his preliminary hearing by March 4, and agreed that it could be held within 60 days of March 6:

COURT: Mr. Favor, do you understand you currently have a right to have your preliminary hearing no later than March 4th?

DEFENDANT: Yes, sir.

COURT: Do you wish to waive and give up that right and agree that your hearing will be timely if held within 60 days of March 6? Is that okay?

DEFENDANT: Yes, sir.

Sixty days after March 6 was May 5, 2020. The minute order for the hearing reflected a deadline that was one day more restrictive, recording that Favor had waived the time for the preliminary hearing until May 4. When the parties appeared for the March 6 hearing, the trial court used May 4 as the deadline, telling the parties, "[t]he time waiver is to May 4th." The May 4 date again was provided on the March 6 minute order. The People did not object to the limited waiver during this time period.

The preliminary hearing, however, did not occur by either May 4 or May 5 and instead was held on May 26, 2020. Neither the court nor any party attempted to set a preliminary hearing before then. A clerical error apparently contributed to this result. A minute order created after a March 11, 2020, hearing contained the misstatement that Favor had waived time for the preliminary hearing until May 26. That error was repeated in a subsequent minute order.

On May 18, 2020, Favor filed a written motion to dismiss, arguing that the time for his preliminary hearing, as extended by his limited waiver, had expired. The parties appeared on that day for the first time since March. Lacking transcripts of the earlier proceedings, the People noted that a minute order stated that the last day for the preliminary hearing was May 26. At later hearings, however, having reviewed the transcripts, the People acknowledged that there had been no time waiver to May 26.

In a written opposition filed on May 19, 2020, the People argued that when a defendant waives the right to have a preliminary hearing within 60 days of arraignment, there is no longer any deadline under which the case is subject to mandatory dismissal absent waiver.

On May 22, 2020, the court denied Favor's motion to dismiss, finding good cause for a continuance beyond May 4, 2020. At the May 26 preliminary hearing, Favor requested that the court find that his time waiver was to only May 4, 2020, and the court did so. Favor then filed the instant writ petition, asking us to order that the court grant his motion to dismiss because his preliminary hearing was held beyond the date authorized by his limited waiver of the 60-day deadline.²

II. DISCUSSION

A defendant arrested and arraigned on a felony complaint is entitled to a preliminary hearing. The purpose of the hearing "is to determine whether there is probable cause to conclude that the defendant has committed the offense charged." ( Galindo v. Superior Court (2010) 50 Cal.4th 1, 8, 112 Cal.Rptr.3d 673, 235 P.3d 1.)

The defendant has "the right to a preliminary examination at the earliest possible time." ( § 859b.) This right is supplementary to, and a construction of, the constitutional right to a speedy trial. ( People v. Standish (2006) 38 Cal.4th 858, 870, 43 Cal.Rptr.3d 785, 135 P.3d 32.)

To effectuate the right to a speedy preliminary hearing, section 859b contains two deadlines.

First, the preliminary hearing "shall be held within 10 court days" of the arraignment. ( § 859b.) If the defendant is in custody, the charges must be dismissed if the hearing does not occur within that time, unless an exception applies. (Ibid. ) The 10-day deadline has two exceptions. The defendant may "personally waive[ ]" his right to an examination within 10 court days. (Ibid. ) Alternatively, the prosecution may "establish[ ] good cause" for a continuance beyond that period. (Ibid. )

The second section 859b deadline is an outer limit of 60 days from the date of arraignment to hold the preliminary hearing. If the hearing "is set or continued more than 60 days from the date of the arraignment," the charges shall be dismissed. ( § 859b.) As to this deadline, there is only one exception: the defendant may "personally waive[ ]" his or her right to a preliminary examination within the 60 days. (Ibid. ) In contrast to the 10-day deadline, the 60-day limit contains no good cause exception.³ The 60-day limit protects the right to a speedy preliminary hearing by ensuring that, even with good cause, the hearing may not be continued indefinitely. ( People v. Figueroa (2017) 11 Cal.App.5th 665, 675, 218 Cal.Rptr.3d 104.) It also ensures that criminal cases are moved expeditiously through the courts. ( Ibid. )

Here, Favor waived the 60-day deadline in a limited manner. He agreed that the preliminary hearing could occur "within 60 days of March 6." That is, he agreed that the hearing would occur by May 5, 2020, seventy-six days from his February 19, 2020, arraignment. The hearing, however, did not occur by this date.

Because the preliminary hearing occurred beyond the 60-day deadline as extended by Favor's waiver, the trial court erred in denying Favor's motion to dismiss the complaint. Absent a personal waiver, the court "shall dismiss" the charges if the preliminary hearing is set or continued after the 60-day deadline. ( § 859b.) The trial court was obligated to dismiss the charges under this rule.

In this proceeding, the People argue that there can be no limited waiver of the 60-day rule. In the People's view, once a defendant has waived the 60-day rule, that deadline is not operative in any respect. We reject this argument. In our view, a defendant may personally waive the 60-day rule in a limited manner, extending the deadline to a particular date beyond the original deadline, but not waiving it altogether.

The text of section 859b does not expressly address a limited waiver. If the preliminary hearing does not occur within 60 days of arraignment, section 859b requires dismissal "unless the defendant personally waives his or her right to a preliminary examination within the 60 days." This language certainly permits a general waiver, whereby the defendant agrees that there is no longer any deadline for his or her preliminary hearing. It does not expressly address a defendant's waiver of the 60-day deadline in a limited manner, extending the deadline only to a particular date.

The People argue that, because there is no express authorization for a limited waiver in section 859b, the defendant's only options are a general waiver or no waiver at all, and that a purportedly limited waiver has the same effect as a general waiver. This argument ignores that section 859b is not the only source of a defendant's ability to waive statutory rights.

A defendant's ability to effect a limited waiver of statutory rights is embedded elsewhere in the law, so the lack of express authorization for a limited waiver in section 859b is immaterial. In both civil and criminal cases, it is "well-established" that litigants may waive statutory rights, unless such a waiver is contrary to public policy. ( People v. Johnson (2002) 28 Cal.4th 1050, 1055, 123 Cal.Rptr.2d 700, 51 P.3d 913 ; accord, Civ. Code, § 3513.) This rule has been applied to statutory provisions that include no express discussion of waiver. Moreover, it has been applied to allow not only general waivers, but also limited waivers. For example, a defendant may make a limited waiver of the section 1191 statutory deadline for pronouncing a judgment after guilty plea by requesting a continuance of that deadline to a different date, even though there is no waiver provision in section 1191. ( People v. Scott (1968) 263 Cal.App.2d 581, 586, 69 Cal.Rptr. 901 ; see also People v. Manriquez (1922) 188 Cal. 602, 606, 206 P. 63.) Thus, a criminal statute's silence as to the right to waive a deadline does not preclude a defendant from agreeing to a general or limited waiver.

Similarly, if instead of silence, a statute expressly allows for a general...