People v. Standish

• Decision Date: 05 June 2006
• Docket Number: No. S129755.,S129755.
• Citation: 135 P.3d 32,38 Cal.4th 858,43 Cal.Rptr.3d 785
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Jared Jacob STANDISH, Defendant and Respondent.

43 Cal.Rptr.3d 785

38 Cal.4th 858

135 P.3d 32

The PEOPLE, Plaintiff and Appellant, v. Jared Jacob STANDISH, Defendant and Respondent.

No. S129755.

Supreme Court of California.

June 5, 2006.

Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Brent D. Riggs, Patrick D. Moran and Shirley S.N. Sun, Deputy District Attorneys, for Plaintiff and Appellant.

Michael P. Judge, Public Defender, Robert M. Wilder and John Hamilton Scott, Deputy Public Defenders, for Defendant and Respondent.

GEORGE, C.J.

Two principal issues are presented in this case. The first is whether defendant was entitled to be released from custody on his own recognizance (OR), subject to reasonable conditions, when his preliminary examination was continued for good cause beyond the 10-day period specified in Penal Code section 859b.¹

The second question needs to be reached only if we answer the first question in the affirmative. That question is whether the failure to grant defendant OR release pending his preliminary examination constituted a violation of a substantial right entitling him to have the information set aside pursuant to section 995.

For the reasons explained below, we conclude defendant was entitled to OR release when the preliminary examination was continued for good cause, but that the court's failure to grant him OR release pending the preliminary examination did not amount to denial of a substantial right at the preliminary examination within the meaning of section 995, in the absence of evidence that the error reasonably might have affected the outcome of that hearing.

I

Testimony introduced at the preliminary examination indicated that, on an occasion during the first week of April 2002, defendant held his two-year-old daughter over a second-floor balcony railing, while neighbors urged him to bring the child to safety. On April 5, 2002, defendant killed his wife's cat. His daughter witnessed some of the events constituting the assault on the cat. A neighbor, Annette Madison, who had witnessed the child-dangling incident, found the headless body of the cat on her balcony. Madison telephoned the police, and defendant was arrested. The Court of Appeal surmised from an incomplete record that a complaint was filed charging defendant with criminal offenses arising from the two incidents.

After a short time in custody, defendant was released on bail. Upon his return home, he saw Madison as she approached her apartment, and stated, "Whoa, aren't you scared?" Defendant then attacked his wife, hitting her in the face with his fist. Madison again telephoned for police assistance. Defendant accused Madison of having placed him under a spell, adding that she had broken up his family and that he planned to cut her throat. He accompanied the threat with a gesture, drawing his finger across his throat. Defendant was arrested, and apparently in mid-April a complaint was filed charging new criminal offenses, and the two cases were consolidated.

Defendant was placed in custody at the time of his second arrest in April 2002. He remained in custody but proceedings on the mid-April complaint were suspended for an evaluation of his mental competency pursuant to section 1368. In late November or early December 2002, he was found competent to stand trial, whereupon criminal proceedings resumed. The complaint was dismissed because the prosecution was unable to proceed without Madison, who was unavailable as a witness. The prosecutor refiled the complaint on December 11, 2002, charging defendant with two felony offenses: cruelty to an animal (§ 597, subd. (a)), and making a criminal threat (§ 422). The complaint also charged a misdemeanor, willful cruelty to a child. (§ 273a, subd. (b).) It is the refiled complaint that is the subject of the present appeal.

On December 24, 2002, the prosecutor moved for a continuance of the preliminary examination. The motion was made on the ninth of the 10 court days within which a preliminary examination must be held if a defendant is in custody. (§ 859b.) The prosecutor reported that, despite having been subpoenaed, Madison was out of the state on vacation and would not be available as a witness until "after the holidays."

Defense counsel objected to the continuance, asking in the alternative that defendant "be released OR if the court grants a continuance." Defense counsel referred to various circumstances in support of his request for OR release, including defendant's having been in custody without a probable cause determination since the previous April—approximately eight months—and his currently taking medication "that addresse[d] the issues he had before." The magistrate declined to grant OR release, however, stating "[r]ight now I'm not inclined to release him on his own recognizance. I might have considered that, I suppose, if this is really a medical issue and I had some sort of competent medical testimony. But the file is replete with incidents that obviously cause great concern." The magistrate granted a continuance until January 7, 2003, but also set the case for hearing on January 3 in the event Madison should be available then, and also for review of the amount of bail.

On December 31, 2002, another hearing occurred before a different judge. At this hearing, defense counsel moved for dismissal or at least for defendant's release on OR pursuant to section 859b. The magistrate denied the request for OR release, refusing to overturn the order of another judge. (See In re Alberto (2002) 102 Cal.App.4th 421, 426-428, 125 Cal. Rptr.2d 526.) The magistrate stated he would rule on the motion to dismiss on the date set for the preliminary examination.

On January 7, 2003, the date of the preliminary examination before the original magistrate, defense counsel moved for dismissal pursuant to section 859b, arguing that the prosecution had failed to show good cause for the continuance, because the preliminary examination could have proceeded with the testimony of the arresting officer. Defendant also moved for OR release under the authority of section 859b, stating "his preliminary hearing could have and should have occurred under Proposition 115 within the time period and there should not have been a good cause finding to go outside the period." The prosecutor responded that the officer who could have testified was not available for the December 24, 2002 hearing.

The magistrate denied the motion for dismissal, stating there had been good cause for the continuance and adding: "I would be at a loss to understand[] how I can grant the motion anyway because I'm the one that found good cause on December 24 to continue today's date." At the conclusion of the preliminary examination, the prosecution added a fourth count, felony child abuse (§ 273a, subd. (a)), and a fifth count, spousal battery, a misdemeanor. (§ 243, subd. (e)(1).) The magistrate held defendant to answer. Defense counsel renewed his motion for dismissal or OR release pursuant to section 859b. The prosecutor responded: "I believe 859b was something that needed to be addressed prior to preliminary when the court found good cause. That was an argument that was made at that time. It was subsequently made.... However that particular code section was not cited to this court on December 24. It went back to Judge Ogden on January 3rd. [¶] Judge Ogden refused to re-hear something this court made a finding on...." The magistrate, evidently agreeing, set bail at $175,000.

An information was filed on January 21, 2003, charging defendant with cruelty to an animal (§ 597, subd. (a)), cruelty to a child (§ 273a, subd. (b)), making criminal threats (§ 422), child abuse (§ 273a, subd. (a)), and battery upon a spouse or cohabitant. (§ 243, subd. (e)(1).) The information also alleged as enhancements that defendant personally used a deadly weapon when committing the offense of cruelty to an animal (§ 12022, subd. (b)(1)), and that the criminal threats and spousal battery occurred while defendant was released from custody on bail. (§ 12022.1.)

On February 27, 2003, defendant moved to set aside the information pursuant to section 995. He contended it was "questionable" whether good cause justified the December 24, 2002 continuance of the preliminary examination, and that he had not been legally committed, because he was held in illegal custody in violation of section 859b. He urged that section 859b required that he be released on the date the continuance was granted. The prosecution countered that defendant had waived his claim by failing to refer to section 859b on December 24, that defense counsel had agreed to the continuance, and that defendant acted improperly in setting the matter for hearing before another judge on December 31 and "did not take all necessary steps to preserve [] the alleged error made on December 24, 2002." The prosecution's points and authorities apparently conceded that the magistrate would have been required to grant a timely motion for OR release: "The People concede that had the 859b OR release issue been raised prior to the preliminary hearing and after the continuance was granted consistent with Penal Code Section 1318, the defendant would have been eligible for release and would have been released at that time pending preliminary exam."

On March 13, 2003, the superior court granted defendant's motion to set aside the three counts in the information that were based on the December 11, 2002, complaint, concluding that "there was a denial of the defendant's rights under 859b; that the defendant should have been released on his own recognizance, and that based upon that denial, the 995 motion should be granted."

At a further hearing held on March 18, 2003, the court set aside the remaining two counts that had been added at the conclusion of the preliminary examination.

The People appealed from the judgment of dismissal, and the Court of Appeal affirmed the judgment rendered by the trial court. We ...