People v. Lind

Filed 10/15/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250350 (Super. Ct. No. 1421891) Plaintiff and Appellant, (Santa Barbara County)

v.

JEFFREY COWEN LIND et al.,

Defendants and Respondents.

Penal Code section 995, subdivision (a)(2)(A) requires the trial court to 1 set aside an information if the defendant is not legally committed by a magistrate. Section 859b requires a preliminary hearing to be held within 60 days of the entry of a not guilty plea unless time has been personally waived by the defendant. Here, we determine that a defendant's motion to disqualify the magistrate for cause tolls the time limit for a preliminary hearing. The People appeal the trial court's order granting Jeffery Cowan Lind's and Dee Thomas Murphy's motion to set aside an information that charges them with conspiracy to commit perjury and perjury. (§§ 182, subd. (a)(1) & 118, subd. (a).) The People contend the motion to disqualify the magistrate suspended the time limit in

1 All further statutory references are to the Penal Code, unless otherwise noted. All references to section 995 are to subdivision (a)(2)(A).

section 859b and that the trial court erred by setting aside the information. Lind and Murphy claim they never waived their constitutional right to a speedy trial and argue that section 859b unequivocally requires the information to be dismissed. We reverse the order granting the motion to set aside the information. FACTS AND PROCEDURAL HISTORY On July 24, 2012, a felony complaint was filed jointly charging Respondents with one count of conspiracy to commit perjury and one count of perjury. It was also alleged that the crimes were committed after Respondents posted bail and were released from custody. (§ 12022.1, subd. (b).) Respondents have been at liberty since posting bail in the instant case. The case was assigned to Judge Dandona. On July 26, 2012, she appointed counsel to represent Respondents and on August 16, 2012, Respondents entered pleas of not guilty. Respondents did not waive their right to a speedy trial on the day they entered their pleas or at any time thereafter. Neither Lind nor Murphy ever asked the court for severance. At the request of Murphy's counsel, a preliminary hearing was calendared for August 30, 2012. On August 27, 2012, Murphy's counsel requested a continuance of the preliminary hearing that, although opposed by the prosecutor, was granted. The preliminary hearing was continued to September 13, 2012. On August 27, 2012, Murphy filed a motion to recuse the prosecutor assigned to the case on the ground that he had an improper ex-parte communication about this case with the judge who supervises the court's criminal division. On August 30, 2012, Murphy's counsel filed a request to disqualify Judge Dandona for cause. (Code Civ. Proc., § 170.1, subd. (a)(6)(iii).) Murphy alleged that a reasonable person might believe Judge Dandona could not be impartial because he named her as a "party" in a document filed in proceedings directly related to the pending perjury charges. On September 10, 2012, Judge Dandona filed her written response to the