People v. Love

• Decision Date: 29 August 2005
• Docket Number: No. A105802.,A105802.
• Citation: People v. Love, 34 Cal.Rptr.3d 6, 132 Cal.App.4th 276 (Cal. App. 2005)
• Parties: The PEOPLE, Plaintiff and Appellant, v. Latasha Renee LOVE, Defendant and Respondent.
• Court: California Court of Appeals

34 Cal.Rptr.3d 6

132 Cal.App.4th 276

The PEOPLE, Plaintiff and Appellant, v. Latasha Renee LOVE, Defendant and Respondent.

No. A105802.

Court of Appeal, First District, Division Three.

August 29, 2005.

Robert Kochly, District Attorney, Doug MacMaster, Deputy District Attorney, for Appellant.

David C. Coleman III, Public Defender, Jordan Schreiber, Deputy Public Defender, for Respondent.

CORRIGAN, J.

Defendant, while out of custody, waived her right to have a preliminary hearing within 10 and 60 days of her plea. She failed to appear for a setting conference and was arrested on a bench warrant. Her preliminary hearing occurred 15 court days after her reappearance in custody. The magistrate dismissed the complaint, finding the preliminary hearing untimely. He interpreted Penal Code section 859b¹ to require that a preliminary hearing be held within 10 court days of a defendant's appearance in custody. Because the statute contains no such requirement, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Initial Dates

Defendant was charged with receiving stolen property and a warrant was issued for her arrest. She was arraigned on June 19, 2003,² released on her own recognizance and referred to the public defender. On July 3, she appeared with counsel, entered a plea of not guilty and waived her right to have a preliminary hearing within 10 court days. On August 7, defendant appeared as directed, waived her right to have a hearing within 60 days, and was ordered to return on September 26. Defendant failed to appear on that date and a bench warrant was issued for her arrest on October 1.

December 2, 2003

On December 2, five months after her initial plea, defendant appeared in custody and her attorney requested a preliminary hearing "as soon as possible." The clerk asked, "Is she going to continue waiving ten and sixty?" Counsel replied, "Yeah.... I think once waived, it's been waived, but at this point since she's in custody, I'd ask for whatever earliest date you can give me." Defendant's hearing was set for December 15.

December 15, 2003

On December 15, defendant appeared in custody for her preliminary hearing represented by a different public defender. No courtroom was available. When the court indicated the matter would be continued, the following colloquy ensued:

"[Defense Counsel]: ... The status of the case, as I understand it, is time not waived.

"The Clerk: The minutes of 12/2 say time for prelim, 10 and 60, waived, continued.

"[¶] ... [¶]

"The Clerk: I also show that on August 7, 2003, time—10 and 60 were waived.

"[Defense Counsel]: That's true, although at that time she was out of custody. On December 2 [defendant] appeared in custody.... [¶] ... [T]he question is just whether the time waiver that was entered on August 7 remains valid once she's brought in on a warrant on December 2.

"The Court: Well, actually, I have a note that on December 2 the waiver's continued.

"[¶] ... [¶]

"[Defense Counsel]: ... It's my belief, Your Honor, that once the preliminary hearing that had been set when [defendant] was out of custody was vacated due to her failure to appear and she was brought before this court in custody for the setting of preliminary hearing dates, she would have had to waive time expressly and personally on that date, December 2, in order for there to be considered to be a time waiver. And since I don't believe she did that, it's my belief that she's entitled to a preliminary hearing within ten court days of December 2."

The prosecutor, who had not been present on December 2, stated, "If the minutes say the 10 and 60 have been waived, I'm pretty comfortable with that." The court then scheduled the preliminary hearing for December 23. Defense counsel stated, "Your Honor, just so the record's clear, I'm not at this time waiving time for [defendant], and I'm objecting to this preliminary hearing being set outside of ten days from December 2 based on my belief that there was not a time waiver."

December 23, 2003

Defendant appeared for the preliminary hearing on December 23, 15 court days after her appearance in custody. Defense counsel renewed his argument that defendant's matter should have proceeded on a no-time waiver basis as of December 2. The magistrate concluded that defendant did not personally waive time on December 2. Because the 10-day time period had expired, he dismissed the complaint.

The prosecutor requested that the superior court reinstate the felony complaint pursuant to section 871.5. The superior court judge denied the motion, concluding that "the provisions of 859b were triggered [on December 2] because of [defendant's] in-custody status." The court stated, "[T]he critical language of the section provides that whenever the defendant is in custody, the magistrate shall dismiss or set the matter within ten court days from that time. [¶] What is critical here is that the defendant was in custody on December 2nd, 2003. Her custodial status triggered the requirements for her to personally waive under 859b...." The People appeal from that ruling.

DISCUSSION

On an appeal from such a ruling "we disregard the superior courts ruling and directly examine the magistrates ruling to determine if the dismissal of the complaint was erroneous as a matter of law." (People v. Massey (2000) 79 Cal.App.4th 204, 210, 93 Cal.Rptr.2d 890.)

Interpretation of the Statute

Section 859b governs the timely conduct of preliminary hearings. The statute is "supplementary to and a construction of the constitutional right to a speedy trial." (People v. Luu (1989) 209 Cal.App.3d 1399, 1404, 258 Cal.Rptr. 10; In re Samano (1995) 31 Cal.App.4th 984, 990, 37 Cal.Rptr.2d 491 [Section 859b "dovetail[s] with the defendants and the Peoples right to speedy trial"]; People v. Kowalski (1987) 196 Cal.App.3d 174, 179, 242 Cal.Rptr. 32 [Section 859b implements a defendants speedy trial right].) "No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute." (People v. Martinez (2000) 22 Cal.4th 750, 766, 94 Cal.Rptr.2d 381, 996 P.2d 32 (Martinez), italics omitted.)

Section 859b provides, in pertinent part: "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 criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2."³

If the defendant is in custody, the court is required to dismiss the complaint upon the expiration of this 10-day period unless the defendant waives time or the prosecution establishes good cause for a continuance beyond that period.⁴ If the People are unable to proceed within the 10-day period, but show good cause for a continuance, the in-custody defendants preliminary examination may be set beyond the 10-court-day limit. However, if a continuance is granted, and absent specified exceptions, the defendant must be released from custody on his own recognizance.⁵ The court is further required to dismiss the complaint after 60 days unless the defendant waives the right to a hearing within that period. (§ 859b.)

Statutory construction is a question of law which we decide independently. (People ex. rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956.) Our role in construing any statute is to ascertain the Legislatures intent and effectuate the purpose of the law. Generally, we accomplish this task by giving the statutory words their usual, ordinary meanings. (People v. Canty (2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "`If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on [its] face ... or from its legislative history.'" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.)

The plain and mandatory language of section 859b leaves no room for doubt as to the legislative intention. When an in-custody defendant has not waived the 10-court-day limit and good cause for a continuance is not established, the statute requires a dismissal "if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings [after a mental competency determination.]" (§ 859b, emphasis added.) Here, defendant waived the 10-court-day limit at the time of her plea and was released on her own recognizance. After also waiving the 60-day limit, she then failed to keep her promise to appear, remaining at large until arrested on a bench warrant. When she appeared in custody five months after her entry of plea, the 10 and 60-day periods set out in the statute had long since elapsed.

Nevertheless, defendant argues that denying her a speedy preliminary hearing within 10 court days "is squarely at odds with Section 859bs purpose to ensure defendants do not languish in custody while awaiting a preliminary hearing." Defendant relies on Landrum v. Superior Court (1981) 30 Cal.3d 1, 177 Cal.Rptr. 325, 634 P.2d 352 (Landrum) in which the Supreme Court, considering an earlier version of the statute, stated, "Section 859b reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing." (Id. at p. 12, 177 Cal.Rptr. 325, 634 P.2d 352.) The preceding paragraph of Landrum, however, clarifies the context of the courts statement: "The history of the statute illustrates the strong legislative purpose which underlies it. Prior to 1970, there was no statutory time limit. A preliminary examination merely had to be held without...