Landrum v. Superior Court

• Citation: 30 Cal.3d 1,177 Cal.Rptr. 325,634 P.2d 352
• Court: United States State Supreme Court (California)
• Decision Date: 08 October 1981
• Parties: , 634 P.2d 352 Walter LANDRUM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 31305.

Page 325

177 Cal.Rptr. 325

30 Cal.3d 1, 634 P.2d 352

Walter LANDRUM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

L.A. 31305.

Supreme Court of California, In Bank.

Oct. 8, 1981.

Rehearing Denied Nov. 5, 1981.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Stephen F. Moeller and Dean R. Gits, Deputy Public Defenders, for petitioner.

Quin Denvir, State Public Defender, Charles M. Bonneau, Deputy State Public Defender, Jeff Brown, Public Defender, Peter G. Keane, Chief Atty., Ernest Gonzalez, Deputy Public Defender, and Ephriam Margolin, San Francisco, as Amici Curiae on behalf of petitioner.

No appearance for respondent.

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., for real party in interest.

BIRD, Chief Justice.

May an individual be legally held to answer on a felony charge after successive complaints charging identical offenses were filed against him and his preliminary examination was not held within the statutory 10 court days of his in-custody arraignment on the first complaint?

I.

On January 28, 1980, petitioner was arrested for a violation of Penal Code section 459 (burglary). ¹ On January 31st, while still in custody, he was arraigned on a felony complaint charging him with burglary and he pleaded not guilty. The public defender was appointed to represent him and a preliminary examination was scheduled for February 14th. Petitioner, unable to post bail, remained in custody.

On February 14th, the date set for the preliminary examination, the prosecutor announced that he was unable to proceed. The magistrate then purported to "dismiss" the complaint and to "discharge" the petitioner. The district attorney immediately filed a new felony complaint charging the same offense as the prior complaint. Petitioner was arrested on the new complaint before being released from custody on the "dismissed" complaint. The next day, February 15th, petitioner was arraigned on the second complaint and pleaded not guilty. A preliminary hearing was set for February 29th.

On February 29th, petitioner moved to dismiss the charges, claiming that the magistrate had no jurisdiction to hold a preliminary examination more than 10 days after his first arraignment and plea. That motion was denied, and the preliminary hearing was held. Petitioner was held to answer on the burglary charge.

After his arraignment in superior court, petitioner moved to set aside the information pursuant to section 995 on the ground that he had not been legally committed by a magistrate. ² He contended that a magistrate could not legally commit a defendant after a preliminary hearing which was held in violation of the 10-court-day time limit of section 859b, ³ and that the time limit was violated in his case when his preliminary hearing was held more than 10 court days after his first arraignment and plea. This motion was denied. Petitioner now seeks a writ of prohibition to prevent further prosecution on the burglary information.

II.

Former section 859b, the statute in effect at the time, ⁴ provided in part that a preliminary examination must be held within 10 court days of a defendant's arraignment or plea, whichever occurred later. "In no instance" was the preliminary examination to be continued more than 10 days after arraignment or plea when the defendant was in custody, unless the defendant personally waived the time limit. (Former § 859b, emphasis added.)

A violation of this time limit rendered the resulting commitment of the defendant illegal. "It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion. (Citations.)" (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941.) ⁵ The language of section 859b is "plain and mandatory" and creates an "absolute right in favor of persons in custody charged with felonies to have the preliminary examination commenced within 10 court days " (Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464-465, 142 Cal.Rptr. 882.) ⁶ If the 10-court-day period was applicable and was violated, the commitment by the magistrate was not legal and an information based on a tardy preliminary examination had to be dismissed on the defendant's motion pursuant to section 995. (Serrato, supra; Irving v. Superior Court (1979) 93 Cal.App.3d 596, 155 Cal.Rptr. 654.)

It is conceded by the prosecution, the real party in interest in this writ proceeding, that the petitioner did not waive his right to a preliminary examination within 10 court days of his in-custody arraignment and plea. Similarly, it is clear that his preliminary examination was held more than 10 court days from his arraignment and plea on the first complaint.

The issue can thus be narrowly stated. May the starting point for calculation of the 10-court-day period be petitioner's first arraignment, or did the magistrate's dismissal of the first complaint render the arraignment on the second complaint the appropriate starting point?

Both parties seek in their arguments to reconcile the statutory scheme for disposition of felony complaints with this court's decision in People v. Peters, supra, 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651. In that case, this court held that a magistrate was not authorized to dismiss a felony complaint pursuant to section 1385. ⁷ Petitioner relies upon Peters to contend that the magistrate had no authority to dismiss the first complaint, and that the purported dismissal was void and left the first arraignment date as the controlling date for the commencement of the 10-court-day period. (Johnson v. Superior Court (1979) 97 Cal.App.3d 682, 158 Cal.Rptr. 899; Carraway v. Superior Court (1981) 118 Cal.App.3d 150, 172 Cal.Rptr. 453.) The prosecution contends that section 871, which authorizes a magistrate to "discharge" a defendant after hearing a preliminary examination in which insufficient evidence is presented, can be read to authorize a dismissal even if no evidence is presented. After this dismissal, the prosecutor claims, a new complaint can be filed and the arraignment on that complaint starts the 10-court-day period running anew.

Consideration of each party's contentions leads to one conclusion that each is untenable and leads to results that cannot have been intended by the Legislature. Petitioner's rationale leads inexorably to an absurd procedure whereby once the 10-court-day limit has been exceeded, there is no procedure by which the magistrate can terminate the action without holding an untimely preliminary examination, from which any holding order would be vulnerable to a defendant's motion to dismiss in superior court. The prosecution's position is premised on a strained reading of section 871, and would negate the policy of section 859b that prolonged pre-preliminary examination incarceration should be prevented. To reach a construction of the several relevant statutes that permits the effectuation of policies outlined in each statute, it is necessary, as amici curiae contend, to re-examine Peters.

Petitioner argues that his arraignment on the first complaint is the correct date for computing whether he was afforded a preliminary examination within the time limits of section 859b. Petitioner's theory is that the magistrate's dismissal of the first action, after the prosecutor was unable to proceed on the tenth court day following arraignment, was not authorized by section 1385 or by section 871. Therefore, it was a nullity.

Petitioner assumes that a valid order of dismissal of one felony complaint is a prerequisite for a subsequent valid arraignment on a second complaint in order to begin a new ten-court-day period. In petitioner's scenario, his first arraignment is the only valid arraignment date from which to measure the 10-court-day period. Since his preliminary examination was held 19 court days after that arraignment, petitioner contends that he was denied a substantial right and is entitled to a dismissal of the information.

While the prosecution's counterattempt to find statutory authorization in section 871 for the magistrate's dismissal of the first complaint is unpersuasive (see discussion, infra), petitioner's chain of reasoning leads to an absurd and unacceptable mode of procedure in the disposition of felony complaints in situations where the 10-court-day limit has been violated. The premise that a magistrate cannot validly dismiss a felony complaint once the 10-court-day limit has been exceeded leads to the conclusion that the only remedy for violation of section 859b is a superior court dismissal. ⁸ If a valid superior court dismissal is a prerequisite for the refiling of a complaint by the prosecution, then an untimely preliminary examination must be held for the purpose of obtaining a holding order, so that an information can be filed in superior court. That information would be vulnerable to a dismissal motion by defendant (Serrato v. Superior Court, supra, 76 Cal.App.3d 459, 142 Cal.Rptr. 882), but with the valid superior court dismissal order, the prosecution could finally recommence. ⁹

This procedure has obviously deleterious consequences. It requires a preliminary examination to be conducted in a situation where it is known that any holding order coming from the examination will be tainted and the information subsequently filed will be subject to dismissal. In short, a useless examination would be held, one that would ultimately have to be repeated if another attempt at prosecution were made. This would result in a waste of prosecutorial and judicial resources, as well as a disservice to witnesses who would be repeatedly called, and most ironically a denial of speedy justice to the incarcerated defendant. (See Carraway v. Superior Court, supra, 118 Cal.App.3d at pp. 152-153, 172 Cal.Rptr. 453.) As...