People v. Kowalski

• Court: California Court of Appeals
• Writing for the Court: SABRAW; POCHE, Acting P.J., and CHANNELL
• Citation: People v. Kowalski, 242 Cal.Rptr. 32, 196 Cal.App.3d 174 (Cal. App. 1987)
• Decision Date: 16 November 1987
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Richard KOWALSKI, Defendant and Appellant. A034109, A038853.

Page 32

242 Cal.Rptr. 32

196 Cal.App.3d 174

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Richard KOWALSKI, Defendant and Appellant.

A034109, A038853.

Court of Appeal, First District, Division 4, California.

Nov. 16, 1987.

Certified for Partial Publication ^*

Review Denied March 16, 1988.

John R. Kowalski, Paynes Creek, in pro per, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and Rene A. Chacon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

SABRAW, Associate Justice.

[[ ]]....... ^**

II. C. Waiver of Rights to a Speedy Preliminary Hearing

Penal Code section 859b gives a defendant a right to a preliminary hearing within 10 days of arraignment or plea, ³ unless the "defendant personally waives his or her right" or the "prosecution establishes good cause for a continuance." Defendant argues he did not personally waive this right, rather counsel did it over his objection. He concludes he was therefore denied his 859b rights and the complaint should have been dismissed.

The facts behind this issue are particularly helpful to its resolution. Defendant was arraigned on complaint 702871 on June 7, 1985. Because he refused to waive time, the preliminary hearing was set for June 21st. By June 17th two counsel had withdrawn, citing lack of time to prepare. At this point defendant stated he would rather represent himself than waive time.

On June 18th a new complaint (821342) alleging additional charges was filed. Defendant pled not guilty and again refused to waive time. Attorney O'Neill was appointed on a no-time-waiver basis for the new charges. However, defendant continued to ask for counsel for the June 21st hearing. The magistrate attempted to locate counsel and even gave defendant a partial copy of the yellow pages so he too could try. No attorney would agree to take the case. On June 21st the magistrate indicated he was going to find defendant had given up his right to counsel. Instead the prosecutor suggested she would dismiss and then refile the charges in complaint 702871, to see if defendant could get attorney O'Neil to agree to take the whole case.

Defendant was arraigned on the refiled felony complaint on June 24th. He entered his plea of not guilty on June 26th. Attorney O'Neill, instead of agreeing to take the whole case, asked to withdraw as counsel, claiming a personality conflict had developed between him and defendant. The court refused to allow him to withdraw, until attorney Friedman agreed to take the case. He got defendant to agree to waive his 859b rights until June 28th.

On June 28th the two complaints were consolidated. At this time defendant again demanded his right to a preliminary hearing within 10 days. However Attorney Friedman asked for more time to prepare, believing he could not adequately represent defendant within this time period given the complexity of the case. ⁴ Defendant refused to waive time to allow him to do so. After a lengthy discussion the magistrate found that defendant's constitutional right to effective assistance of counsel outweighed his statutory right to a preliminary examination within ten days. The hearing was continued to August 5th.

Defendant subsequently brought a 995 motion to dismiss arguing his rights under section 859b had been violated. The motion was heard on August 2nd and denied. Defendant then sought a writ of prohibition and an order of dismissal in the superior court, and then in the appellate court, all of which were denied. At trial he moved to dismiss on these same grounds, and again the motion was denied.

Was defendant erroneously denied his right to a preliminary hearing within 10 days? We recognize that "[S]ection 859b establishes an absolute right in favor of persons in custody charged with felonies to have the preliminary examination commenced within 10 court days after they have been arraigned upon, or entered a plea of not guilty to, the criminal complaint, whichever occurs later ..." (Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464, 142 Cal.Rptr. 882.) "Section 859b reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing." (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352.) Furthermore, a personal waiver of these rights by the defendant is required or the case must be dismissed. (Irving v. Superior Court (1979) 93 Cal.App.3d 596, 600, 155 Cal.Rptr. 654.)

However, we cannot hold that under the above facts the court erred in extending the date for the preliminary hearing. Defendant refused to proceed without counsel, yet the court had been unable to find an attorney who would take the case without a waiver, thereby assuring the necessary time to prepare the case. Three counsel had already withdrawn. The judge himself stated for the record that the discovery matters which would have to be reviewed before the hearing amounted to over 600 pages. Also, counsel wished to find a handwriting expert and hire an investigator. As stated in People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109, "[T]he trial court was confronted with the difficult problem of procedurally navigating this case to avoid the Scylla of delay and the Charybdis of ineffective and inadequate representation." (Id at p. 148, 115 Cal.Rptr. 109.)

Defendant has the right to effective assistance of counsel at his preliminary hearing, this being a "critical stage" of the proceedings. (Coleman v. Alabama (1970) 399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387.) And counsel must actually be prepared and effective. (People v. Fontana (1982) 139 Cal.App.3d 326, 188 Cal.Rptr. 612.) Defendant also has a right to a speedy trial and section 859b implements this right. (Cf. Sykes v. Superior Court (1973) 9 Cal.3d 83, 88-89, 106 Cal.Rptr. 786, 507 P.2d 90.) If the time period is violated the information must be dismissed. (Landrum v. Superior Court, supra, 30 Cal.3d at p. 6, 177 Cal.Rptr. 325, 634 P.2d 352.) However, defendant's statutory rights are " 'merely supplementary to and a construction of the Constitution. [Citations.]' They do not carry the force of weight of constitutionally mandated imperatives." (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619.) We therefore hold that when a defendant asserts both his right to a preliminary hearing within 10 days and his right to counsel, the constitutional right must prevail.

No court has addressed this precise issue in the context of section 859b. However, we find support for our position in Curry v. Superior Court (1977) 75 Cal.App.3d 221, 141 Cal.Rptr. 884, which managed to avoid the "mandatory" language of section 859b.

In Curry the appellate court was faced with an issue analogous to the one here. Defendant wished to waive his right to counsel. The trial judge was concerned with defendant's competence to make this election and felt a psychiatric examination was necessary. He therefore extended the time for the preliminary hearing beyond the 10 day limit, balancing the need for a knowing and intelligent waiver against defendant's rights under the statute. The appellate court agreed with the trial judge's decision, stating the time necessary to determine defendant's mental capacity was to be excluded in computing the 10 days. The court went on to state "Without the rule we announce herein tolling the 10-day period, the results are potentially ludicrous. As an extreme example, a defendant in custody could wait until the tenth day to make a motion for self-representation, leaving the court without adequate time to conduct a hearing and make a ruling on the Faretta ⁵ motion. To hold that Penal Code section 859b requires discharge of the defendant in such a case would be disastrous in an already overloaded criminal justice system. Penal Code section 859b must therefore be subordinated to the constitutional right of self-representation." (Id. at p. 226, 141 Cal.Rptr. 884.) " The result would be equally ludicrous if defendant could play his right to effective assistance of counsel against his statutory right to a preliminary hearing within 10 days. Furthermore, a more serious violation of defendant's rights would result if defendant had a preliminary hearing within 10 days but failed to have effective representation at that hearing.

Defendant relies on Irving v. Superior Court, supra. However, we find that case to be distinguishable. There the prosecution was not ready to proceed and defense counsel, over his client's objection, agreed to a continuance. The court did not have before it a conflict between defendant's statutory and constitutional rights. (See Serrato v. Superior Court, supra, 76 Cal.App.3d at p. 464, fn. 2, 142 Cal.Rptr. 882 recognizing "the 10-day period of section 859b could be tolled because of a constitutional requirement as was the case in Curry v. Superior Court (1977) 75 Cal.App.3d 221, 225-226 [141 Cal.Rptr. 884].") Also here the prosecution was at all times ready to go ahead with the hearing. ⁶

Further support is found in those cases dealing with this issue in the context of Penal Code section 1382. This section provides that a defendant must be brought to trial within 60 days after the finding of the indictment or the filing of the information, unless he requests a later date, impliedly or expressly gives his consent, or fails to appear. Although these cases do not deal with section 859b which requires a personal waiver, their reasoning seems applicable because they address the situation in which the express consent of the defendant was not given, and thus a balancing of his rights was necessary.

For example, in Townsend v. Superior Court, supra, 15 Cal.3d 774, 126 Cal.Rptr 251, 543 P.2d 619, defendant refused to "waive time" and demanded he be brought to trial within 60 days. However, his counsel requested continuances to adequately prepare and because of calendar conflicts. The Supreme Court held ...