Lacayo v. Superior Court

Filed 10/23/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KAREEM LACAYO, Petitioner, v. A160793 THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN (City & County of San Francisco FRANCISCO, Super. Ct. No. 232741) Respondent; THE PEOPLE, Real Party in Interest.

Petitioner Kareem Lacayo (Lacayo) seeks a writ directing the trial court to set aside an information based on the court’s failure to hold his preliminary hearing within 60 days of his arraignment as required by law. The People concede, and we agree, the court erred. We therefore issue a peremptory writ of mandate directing the court to set aside the information. FACTUAL AND PROCEDURAL BACKGROUND On February 24, 2020, Lacayo was arraigned on a complaint charging him with possession of a firearm by a felon and other related felonies. He waived his right under Penal Code section 859b1 to a preliminary hearing within 10 court days of his arraignment (the 10-court-day rule) but did not

1 All further, undesignated statutory references are to the Penal Code.

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waive his right under the same statute to a preliminary hearing within 60 days of his arraignment (the 60-day rule). On April 24, after the Governor proclaimed a state of emergency due to the COVID-19 pandemic, the parties appeared in court and announced they were ready to proceed with the preliminary hearing. The trial court acknowledged it was “the 60th day” after arraignment but continued the preliminary hearing to April 28, citing “the unexpected and unprecedented global pandemic” and the lack of prejudice to Lacayo, who had bailed out of custody. Defense counsel objected to the continuance, but the court stated there was “not only good cause” to continue the hearing “but more importantly exceptional, extraordinary circumstances” “given the global pandemic crisis we’re in.” At the April 28 preliminary hearing, Lacayo moved to dismiss the case on the ground the trial court violated the 60-day rule. The court denied the motion, stating the lack of prejudice to Lacayo and “extraordinary circumstances” justified the extension. The court proceeded with the preliminary hearing and held Lacayo to answer. The People filed an information on May 5. On June 18, Lacayo moved to set aside the information under section 995 based on the trial court’s violation of the 60-day rule. The People filed a “non-opposition” in which it conceded the 60-day-rule “requires dismissal of the [i]nformation,” but asked the court to dismiss the case without prejudice and to make a good cause finding for purposes of section 1387 subdivision (c)(1), which provides that a dismissal order does not bar the People from re-filing charges if “good cause is shown why the preliminary examination was not held within 60 days from [arraignment].”