People v. Henderson

• Decision Date: 13 February 2004
• Docket Number: No. E033737.,E033737.
• Citation: 9 Cal.Rptr.3d 655,115 Cal.App.4th 922
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. James Edward HENDERSON, Defendant and Respondent.

9 Cal.Rptr.3d 655

115 Cal.App.4th 922

The PEOPLE, Plaintiff and Appellant, v. James Edward HENDERSON, Defendant and Respondent.

No. E033737.

Court of Appeal, Fourth District, Division 2.

February 13, 2004.

Rehearing Denied March 15, 2004.

Review Denied May 19, 2004.^*

Grover Trask, District Attorney, and Raquel A. Marquez, Deputy District Attorney, for Plaintiff and Appellant.

Michele A. Douglass, Long Beach, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

GAUT, J.

1. Introduction

The People appeal from a judgment dismissing a criminal complaint against defendant James Henderson, who was charged with first degree burglary and assault with a deadly firearm. The People claim that, on the date scheduled for the preliminary hearing, the magistrate had no authority to dismiss the complaint because the prosecutor failed to show good cause for a continuance as required under Penal Code section 1050.¹ The People specifically argue that, although a trial court has the authority to dismiss an action under certain circumstances, including those specified in sections 1385 and 871, the court lacks the authority to dismiss an action under any statute, even when the prosecutor fails to satisfy the requirements for a continuance under section 1050, so long as the requested date falls within the statutory period required for a preliminary hearing under section 859b.

In adopting the rationale applied in the cases involving the speedy trial statute, we conclude that a dismissal of a complaint for noncompliance with the requirements for a continuance within the time limits set forth in the preliminary hearing statute would not be in the furtherance of justice. The magistrate had no authority to dismiss the complaint under the circumstances in this case. We reverse the judgment.

2. Factual and Procedural History

On October 1, 2001, the Riverside County District Attorney filed a felony complaint charging defendant with a first degree burglary² and an assault with a deadly weapon.³ The complaint served as an arrest warrant, which was executed on the following day.

During his arraignment on October 29, 2002, defendant pled not guilty and the matter was set for a preliminary hearing on November 12, 2002. On that date, defendant's attorney declared a conflict and the court appointed new counsel. After defendant waived time, the court rescheduled the hearing for December 18, 2002. On defendant's request, the court continued the case two additional times. Defendant was out on bail by the December 18, 2002 hearing.

On the date of the rescheduled hearing on February 6, 2003, the prosecutor informed the court that the victim and one of the two officers who were scheduled to provide testimony during the hearing were not present. The missing officer would have been able to identify defendant. The prosecutor explained that her files reflected that a subpoena was mailed to the victim, but there was nothing to indicate that the victim actually received the subpoena. The prosecutor also explained that while she had intended to present the officers' testimony under Proposition 115, she was advised to proceed with the preliminary hearing with the victim's testimony. The prosecutor requested that the court trail the matter until the afternoon. The court granted the request.

In the afternoon, the prosecutor informed the court that she was unable to contact or locate the victim. The prosecutor therefore asked to continue the matter in light of the fact that defendant already had waived time plus 14 days.

Upon further inquiry by the court, the prosecutor admitted that, while the district attorney's office had mailed the victim a subpoena prior to the February 6, 2002 hearing, the prosecutor had failed to make any additional efforts to secure the victim's presence. Without its witnesses, the prosecution was unprepared to proceed. Defendant's attorney, however, announced ready.

The court then discussed its duty and practice in regards to addressing a request for a continuance. The court explained that, when counsel do not agree to a continuance, the court must determine whether the party seeking the continuance has shown good cause as required under section 1050. Based on the circumstances, the court found that the prosecutor had failed to show good cause. The court denied the prosecutor's request for a continuance. Because the prosecutor was not ready to proceed, the court dismissed the case.

The People moved to reinstate the complaint under section 871.5. The court returned the case to the previous judge to clarify its dismissal order. The magistrate judge explained that he relied on the authority in section 1050 and the reasoning in People v. Alvarez.⁴ After considering the magistrate judge's clarification and the People's argument, the court denied the motion to reinstate the complaint.

The People appeal from the court's order dismissing the case and the subsequent order denying the motion to reinstate the complaint.

3. Discussion

The People claim that the magistrate judge had no authority under section 1050 or any other law to dismiss the complaint based on the prosecutor's failure to demonstrate good cause to continue the preliminary hearing when the request was made within the 60-day period specified in section 859b.

Section 859b provides, in part:

"At the time the defendant appears before the magistrate for arraignment, if the public offense is a felony to which the defendant has not pleaded guilty in accordance with section 859a, the magistrate, immediately upon the appearance of counsel, or if none appears, after waiting a reasonable time therefor as provided in Section 859, shall set a time for the examination of the case and shall allow not less than ten days....

"Both the defendant and the people 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 of criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2.

"Whenever the defendant is in custody, 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 ..., and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur:

"(a) The defendant personally waives his or her right to preliminary examination within the 10 court days.

"(b) The prosecution establishes good cause for a continuance beyond the 10-court-day period. [¶] ... [¶]

"The 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 ..., unless the defendant personally waives his or her right to a preliminary examination within the 60 days."⁵

In reviewing this and other statutory provisions, we are mindful of the rules governing statutory interpretation. The most important canon of statutory construction is that each statute must be interpreted to give effect to the Legislature's intent.⁶ When the language of the statute is clear and unambiguous, the words should be given their plain and ordinary meaning.⁷ Furthermore, every statute must be construed within its statutory scheme to give effect to each provision and to harmonize the entire statutory scheme.⁸

Under section 859b, a defendant who is charged with a felony and is in custody has an absolute right to a preliminary examination within 10 court days after the arraignment or one of the other enumerated circumstances.⁹ If the court fails to conduct the preliminary examination within the 10-day period, the in-custody defendant is entitled to a dismissal.¹⁰ While the same 10-day requirement applies to an out-of-custody defendant, the mandatory dismissal rule does not.¹¹ If the court fails to conduct the preliminary examination within the 10-day period for an out-of-custody defendant, the defendant may obtain dismissal only upon a showing that actual prejudice resulted from the delay.¹²

As stated in the statute, the exceptions to the 10-day requirement include a personal waiver by the defendant or a showing of good cause for a continuance by the prosecution.¹³ The language of the statute makes clear that only one of these conditions is required. Thus, if the defendant waives the 10-day requirement, then the prosecution has no obligation to demonstrate good cause for a continuance within the 10-day period.

Once the defendant waives the 10-day period, no additional waiver is required so long as the court schedules the preliminary hearing within 60 calendar days. In Alvarez, this court made the following observations: "After a defendant, who is not in custody, initially has waived his or her right to a preliminary hearing within 10 court days of his or her arraignment or plea, the only remaining requirement of section 859b to preclude dismissal is that the preliminary hearing be set within 60 days from the date of the of the arraignment or plea. If the preliminary hearing is not set within the 60-day period, the magistrate is required pursuant to section 859b to dismiss the complaint, `unless the defendant personally waives his or her right to a preliminary hearing within the 60 days.'"¹⁴ As with a violation of the initial 10-day requirement, a violation of the alternative 60-day requirement gives the court "no choice other than to dismiss."¹⁵

Within the 60-day period, section 859b does not require any additional waivers. If a continuance is requested within this time frame, the court is not required to obtain another waiver to avoid a...