People v. Granderson

Opinion

EVANS, J. Defendant, convicted of discharging a firearm at a vehicle (Pen. Code, § 246),1 appeals. He does not challenge the propriety of his conviction under the evidence, but rather contends that as an in-custody defendant, he was denied the right to a preliminary hearing within 10 days of arraignment as required by section 859b.

On March 8, 1979, defendant was charged in complaint No. 3-8375 with certain crimes, including that of which he was ultimately convicted. He was arraigned and entered a not guilty plea on August 15, 1979. The preliminary examination was set for August 29, 1979, the 10th court day following. On the latter date the matter was called and the [909]prosecution, not prepared to proceed, asked for and received a two-day delay until August 31. On that date the prosecution requested and was granted a dismissal. A new complaint was then filed (No. 3-19188) charging the identical offenses. The preliminary hearing was conducted within the time limits required by section 859b, and an information thereafter was filed in the superior court.

Defendant made and argued a motion to set aside the information (§ 995), charging insufficient evidence and that the second filing and ensuing preliminary hearing were improper as the magistrate was not authorized to dismiss the first complaint, which would preclude filing the second complaint. The court agreed in part with the evidentiary challenge and dismissed one count, leaving the charge of which defendant was ultimately convicted. It rejected the challenge under section 859b. We agree.

Section 859b, prior to its amendment in 1980, provided in 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. 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.”2 (Stats. 1977, ch. 1152, § 1.)

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