Irving v. Superior Court

California Court of Appeal May 30, 1979 No. Civ. 46388Published

Before: White

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Holding. The court held that a defendant in custody at the time of arraignment has a statutory right to a preliminary examination within 10 court days that cannot be waived by counsel, and that the defendant's agreement to a continuance based on the court's erroneous advice did not constitute a valid personal waiver. Consequently, the trial court erred in denying the defendant's motion to dismiss the charges under Penal Code section 995.

Issues

Whether a defendant in custody at the time of arraignment is entitled to a preliminary examination within 10 court days under Penal Code section 859b.
Whether a defendant's agreement to a continuance based on the court's erroneous advice that time was not being waived constitutes a valid personal waiver.
Whether counsel may waive a defendant's statutory right to a speedy preliminary hearing under Penal Code section 859b over the defendant's protest.

Disposition. remanded

Quotations verified verbatim against the opinion

“Addition of the word “personally” to the waiver provision of the reworded statute (Stats. 1977, ch. 1152, § 1, p. 3698-3699) must be read as eliminating the right of counsel to waive the defendant’s right to speedy proceedings.”

“Petitioner’s agreement to a continuance was induced by erroneous advice by the court that he would not be waiving his rights.”

“We have concluded that petitioner did not waive his right to a preliminary hearing within 10 days of arraignment.”

Opinion

WHITE, P. J.

Petitioner raises the question of whether his prosecution for four counts of burglary should have been dismissed pursuant to Penal Code section 995 because of a violation of Penal Code section 859b. He seeks a writ of prohibition from this court.

Penal Code section 859b, insofar as is pertinent, provides: “Both the defendant and the people have the right to a preliminaiy 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. In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days.” “[A]n accused is not legally committed within the ambit of section 995 if the magistrate denies him the right to have his preliminary

[598]

examination held within the mandatory time limit prescribed by section 859b and can obtain relief under section 995.”

(Serrato

Superior Court

(1978) 76 Cal.App.3d 459, 469-470 [142 Cal.Rptr. 882].)

Petitioner was arraigned on the burglary charges on July 17, 1978, at which time he was in custody. Preliminary hearing was set for July 21, 1978, but continued to August 2, 1978. On August 2, 1978, the final day of the 10-day period, the prosecution was not prepared to proceed because two witnesses from Crescent City were fogged in. Petitioner’s counsel stated opposition to any continuance.

The prosecution suggested that it could put on one witness to start the preliminary hearing that day and obtain a postponement for “good cause” under Penal Code section 861. The court noted that if the case did not proceed it would have to be dismissed and refiled.

Irving v. Superior Court

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WHITE, P. J.

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