Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Date: 06-25-2020
Case Style:
Case Number: A160153
Judge: Simmons, Acting P.J.
Court: California Court of Appeals First Appellate District, Division Five on appeal from the Superior Court, County of Contra Costa
Plaintiff's Attorney: Diana Alicia Garrido and Jermel Elaine Thomas
Defendant's Attorney: Jeremy Seymour
Description: On March 13, 2020, as the COVID-19 pandemic took hold in California,
respondent Superior Court of Contra Costa County (Superior Court)
announced it would be closed to the public between March 16 and April 1 and
ceased conducting most, but not all, proceedings. Petitioner Dyjuan Bullock
(Petitioner) contends his custodial preliminary hearing should have occurred
during the March closure period under Penal Code section 859b.1
We hold, among other things, that this writ petition challenging the
failure to provide a timely preliminary hearing is properly brought under
section 871.6. Substantively, we conclude that good cause to delay the
hearing was not established: the Superior Court’s finding that “the
1 All undesignated statutory references are to the Penal Code. We use
the terms “preliminary hearing” and “preliminary examination”
interchangeably. Section 859b is discussed in detail in Part I.B., post.
2
unprecedented [COVID-19] pandemic conditions that California was facing
directly impacted the court[] operations” is insufficient. In the absence of a
particularized showing of a nexus between the pandemic and the Superior
Court’s purported inability to conduct Petitioner’s preliminary hearing in a
timely fashion, the Superior Court abused its discretion in finding no
violation of section 859b.2 Nonetheless, because Petitioner recently pled no
contest to one of the charges against him pursuant to a negotiated
disposition, we dismiss his petition for writ of mandate.3
2 On June 9, 2020, Division Four of this District denied a petition for
writ of mandate filed by a defendant claiming violation of his statutory
speedy trial rights under section 1382. (Stanley v. Superior Court (June 9,
2020, A160151) ___ Cal.App.5th ___ [2020 Cal.App.Lexis 506] (Stanley).)
Division Four concluded the COVID-19 pandemic provided good cause to
continue the defendant’s trial. As explained later in this decision (Part IV.C.,
post), in the context of this case, preliminary hearings present different
considerations in the good cause analysis.
3 On June 15, 2020, Petitioner pled guilty to one felony count of
pimping in violation of Penal Code section 266h, subdivision (a).
Nevertheless, Petitioner urges this court to address the issues raised in his
petition. While the People have corresponded with the court about the plea,
the People have not requested summary dismissal of the petition as moot.
Because the important issues in the present case are “likely to recur but
evade review,” we exercise our discretion to decide the petition on the merits.
(Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 723, fn. 2 (Ramos); see
also Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [“We have
discretion to decide otherwise moot cases presenting important issues that
are capable of repetition yet tend to evade review.”]; Alfredo A. v. Superior
Court (1994) 6 Cal.4th 1212, 1219 [“ ‘ “[p]retrial detention is by nature
temporary, and it is most unlikely that any given individual could have his
constitutional claim decided on appeal before he is either released or
convicted” ’ ”]; In re Walters (1975) 15 Cal.3d 738, 744 [“Where questions of
general public concern are involved, particularly in the area of the
supervision of the administration of criminal justice, we may reject mootness
as a bar to a decision on the merits.”].)
3
BACKGROUND
On March 3, 2020, Petitioner was charged by complaint in the
underlying criminal action (docket no. 04-199189-2) with one count of human
trafficking (§ 236.1, subd. (b)) and two counts of pimping (§ 266h, subd. (a)).
Arraignment on the complaint occurred on March 4. Petitioner pled not
guilty to all charges, and he did not waive section 859b’s 10-court-day
timeframe for a preliminary hearing. The preliminary hearing was
scheduled for March 16. March 18 was the tenth court day following the
arraignment and plea.
On March 4, 2020, pursuant to Government Code section 8625,
California Governor Gavin Newsom declared a state of emergency due to the
global COVID-19 outbreak.4 On March 10, the Board of Supervisors of
Contra Costa County declared a state of emergency.5 On March 11, the
World Health Organization declared COVID-19 a pandemic.6
On March 13, 2020, the Superior Court’s Public Information Office
announced that, due to “the unique and continuing public safety challenge
presented by the coronavirus (COVID-19) and the numerous public health
orders suggesting or requiring that public gatherings be limited,” the
4
notice of the various official acts referenced in this decision. (Evid. Code, §
452, subd. (c).)
5
(as of June 23, 2020).
6
June 23, 2020).
4
Superior Court would be “closed at all locations for approximately two
weeks,” from March 16 until April 1. The release continued, “The Court
appreciates the careful balance that must be maintained between the timely
administration of justice and the protection of public health and safety. At
the Court’s request and as permitted under Government Code section 68115,
the Chief Justice . . . has issued an emergency order providing that, at least
until April 1, 2020, the court closure will have the effect of being a public
holiday as far as statutory or other timelines are concerned.” The release
specified that in-custody arraignments would be handled in Martinez but “all
courthouses are closed to the public” (except counsel at arraignments) and
any hearings scheduled during the closure period “will be reset to a later
date.” The release closed with the statement, “Importantly, this closure is
not in response to a specific notice of exposure at any Court facility or to any
Court staff. Instead, it is in an abundance of caution to help limit the spread
of the virus and the potential for future exposure.”
The referred-to order from the Chief Justice of California, Tani G.
Cantil-Sakauye, acting in her capacity as Chairperson of the Judicial
Council, was also issued on March 13, 2020, “[u]pon the request of [Superior
Court] Presiding Judge Barry Baskin.” The order provided the Superior
Court a number of accommodations due to “the COVID-19 pandemic.”
Among many other things, the order “declare[d]” that March 16 through April
1 “be deemed holidays for purposes of computing time” under specific sections
of the Code of Civil Procedure, the Penal Code, and the Welfare and
Institutions Code. Significantly, section 859b was not among the listed
provisions. (This order is discussed further in Part IV.A., post.) As to that
statute, the order extended “the time period provided in section 859b of the
Penal Code for the holding of a preliminary examination from 10 court days
5
to not more than 15 court days, applicable only to cases in which the
statutory deadline otherwise would expire from March 16, 2020, to April 1,
2020, inclusive (Gov. Code, § 68115(a)(9)).”
On March 16, 2020, the Superior Court issued an order implementing
the Chief Justice’s order, using essentially identical operative language. The
order also declared, “The single department the Court now maintains to
handle urgent issues such as in-custody arraignments shall also handle any
felony or misdemeanor cases in which sentencing must occur during the
period of closure.”
Also on March 16, 2020, the Health Officer of the County of Contra
Costa issued a “shelter-in-place” order.7 On March 19, Governor Newsom
issued Executive Order N-33-20, directing all Californians to stay at home,
with no end date.8 Courts are essential government functions, and court staff
are exempt from the county and state orders.
The preliminary hearing in Petitioner’s case did not take place on
March 16, 2020 or by March 18, which was ten court days after Petitioner’s
arraignment and plea.
On March 20, 2020, the Chief Justice sent an “advisory” to the state’s
superior courts “to provide guidance on ways that might mitigate some of the
health risks to judicial officers, court staff, and court users” during the
7
8
2020).
6
COVID-19 pandemic.9 The advisory noted that the Governor’s shelter in
place order was “not meant to close our courts” because the courts are
“considered as an essential service.” The Chief Justice continued, “I
recognize, however, that this new adjustment to health guidelines and
direction likely may require further temporary adjustment or suspension of
certain court operations, keeping in mind, as we all are, that we are
balancing constitutional rights of due process with the safety and health of
all court users and employees.” The Chief Justice “strongly encourage[d]”
superior courts to consider specified measures that could “be taken
immediately to protect constitutional and due process rights of court users.”
Among the recommended measures was to “[p]rioritize arraignments and
preliminary hearings for in-custody defendants, and the issuance of
restraining orders.” (Emphasis added.)
The preliminary hearing in Petitioner’s case did not take place by
March 25, which was fifteen court days after Petitioner’s arraignment and
plea. On March 30, Petitioner filed a motion to dismiss the complaint under
section 859b, or in the alternative, if the court found good cause for the
continuance, to release him on his own recognizance (docket no. 5-200531-2).
Also on March 30, 2020, the Chief Justice issued a statewide emergency
order that, among many other things, authorized superior courts to “[e]xtend
the time period provided in section 859b of the Penal Code for the holding of a
preliminary examination and the defendant’s right to release from 10 court
days to not more than 30 court days.”10 On the same date, the Chief Justice
9
10 Although Government Code section 68115 limits extensions of the
section 859b time period “to not more than 15 court days,” the Chief Justice’s
7
issued a second Contra Costa-specific order authorizing the Superior Court
to, among many other things, “[e]xtend the time period provided in section
859b of the Penal Code for the holding of a preliminary examination from 10
court days to not more than 15 court days, applicable only to cases in which
the statutory deadline otherwise would expire from April 1, 2020, to April 28,
2020,” pursuant to Government Code section 68115, subd. (a)(9). On April 1,
the Superior Court issued an order implementing the Contra Costa-specific
order, and on April 2 the Superior Court issued an order implementing the
statewide order. It appears that, in effect, the April 2 order superseded the
April 1 order as relates to section 859b by extending the time period to 30
court days.
On April 2, 2020, Petitioner’s motion to dismiss or release was heard by
Judge David E. Goldstein, acting in the capacity of a magistrate. The
magistrate denied Petitioner’s motion, reasoning that the Chief Justice’s
March 30 statewide emergency order extending time for preliminary hearings
to 30 court days was retroactive. Petitioner’s preliminary hearing was set for
April 9. The parties agree the Superior Court had resumed conducting
preliminary hearings on March 30. According to the magistrate, as of the
April 2 hearing, the Superior Court was conducting preliminary hearings on
a daily basis.
March 30, 2020 order observed that “Governor Newsom, also responding to
the crisis, on March 27, 2020, issued Executive Order N-38-20, which among
other things, suspends Government Code section 68115 and any other
provision of law to the extent that those laws impose or imply a limitation on
my authority to authorize via emergency order or statewide rule, any court to
take any action I deem necessary to maintain the safe and orderly operation
of the courts.” The validity of the 30-day extension in the March 30 order is
not at issue in the present proceeding.
8
On April 7, 2020, Petitioner filed a petition for writ of mandate in the
Superior Court challenging the magistrate’s denial of his motion for dismissal
or release on his own recognizance.11 On April 9, the Superior Court ordered
the People, the real party in interest, to show cause why the relief should not
be granted. On that same date, the Superior Court conducted a preliminary
examination in Petitioner’s case and held Petitioner to answer on the charges
in the complaint. The Superior Court approved Petitioner’s release with
electronic monitoring, but Petitioner did not qualify for the monitoring
program and remained in custody. On April 13, the People filed a felony
information (docket no. 5-200547-8).
On April 28, 2020, the Honorable Anita L. Santos issued a decision
denying the petition for writ of mandate. Judge Santos agreed with
Petitioner that the Chief Justice’s March 30 statewide emergency order and
the corresponding implementation order were prospective and inapplicable to
Petitioner’s case. Nevertheless, Judge Santos concluded that section 859b’s
remedies were not available to Petitioner because a preliminary hearing had
already taken place and, also, there had been good cause to continue
Petitioner’s preliminary hearing. On the latter issue, Judge Santos found
“the unprecedented pandemic conditions that California was facing directly
impacted the court’s operations creating such good cause.”
On May 14, 2020, Petitioner filed the present petition for writ of
mandate, challenging the Superior Court’s denial of his mandate petition
based on section 859b. We notified the parties that we might direct issuance
11 Because we hold there was no good cause to continue the preliminary
examination beyond 15 court days after the arraignment and plea, we need
not and do not consider whether Petitioner would have been entitled to
release on his own recognizance under section 859b (and under what
conditions) if there had been good cause.
9
of a peremptory writ in the first instance, and we requested and received an
opposition from the People and a reply from Petitioner.
DISCUSSION
I. The Preliminary Examination and Section 859b
A. The Preliminary Examination
Article I, section 14 of the California Constitution authorizes
prosecution of a felony by information “after examination and commitment by
a magistrate.” Under that provision, before an information is filed there
must be a preliminary examination of the case and an order holding the
defendant to answer. (People v. Casillas (2001) 92 Cal.App.4th 171, 179.)
The function of the preliminary examination is “to determine whether
probable cause exists to believe that the defendant has committed a felony
and should be held for trial.” (Correa v. Superior Court (2002) 27 Cal.4th
444, 452 (Correa); see also § 866, subd. (b).) Prior to passage of Proposition
115 in June 1990, California courts had an “expansive concept of the
preliminary hearing as a discovery and trial preparation device, allowing
counsel the opportunity to ‘fashion’ their impeachment tools for use in
cross-examination at trial, to preserve testimony favorable to the defense,
and to provide the defense ‘with valuable information about the case against
the accused, enhancing its ability to evaluate the desirability of entering a
plea or to prepare for trial.’ ” (Whitman v. Superior Court (1991) 54 Cal.3d
1063, 1067, 1081; see also Correa, at p. 451.)
Consistent with a more limited function of the preliminary hearing,
Proposition 115 amended the California Constitution to allow the admission
of hearsay at preliminary hearings, “as prescribed by the Legislature or by
the people through the initiative process.” (Cal. Const., art. I, § 30, subd. (b);
Correa, supra, 27 Cal.4th at p. 451.) The measure also added section 872,
10
subdivision (b), stating that “the finding of probable cause may be based in
whole or in part upon the sworn testimony of a [qualified] law enforcement
officer . . . relating the statements of declarants made out of court offered for
the truth of the matter asserted.” (§ 872, subd. (b).) The intent of Proposition
115 was “to relieve crime victims and witnesses of the obligation to testify at
the preliminary hearing . . . . [T]he testifying officer who is relating an outof-court statement must have ‘sufficient knowledge of the crime or the
circumstances under which the out-of-court statement was made so as to
meaningfully assist the magistrate in assessing the reliability of the
statement.’ ” (Correa, at p. 452.) Section 866 also permits a defendant to
present witness testimony at preliminary hearings, where the testimony
“would be reasonably likely to establish an affirmative defense, negate an
element of a crime charged, or impeach the testimony of a prosecution
witness or the statement of a declarant testified to by a prosecution witness.”
Although Proposition 115 limited the scope of the preliminary hearing,
it continues to be true that “ ‘[t]he preliminary examination is not merely a
pretrial hearing.’ [Citation.] ‘Rather, it is a proceeding designed to weed out
groundless or unsupported charges of grave offenses and to relieve the
accused of the degradation and expense of a criminal trial.’ [Citations.] To
fulfill this function, the defendant is permitted at the preliminary hearing, if
he chooses, to dispute the charges, confront witnesses, challenge the
prosecution’s evidence, and present evidence in his defense. [Citation.]
These procedural guarantees serve to implement the defendant’s due process
right to a pretrial determination of probable cause.” (People v. Superior
Court (Mendella) (1983) 33 Cal.3d 754, 759; accord People v. Rogers (2016)
245 Cal.App.4th 1353, 1361.) “Preliminary hearings thus serve to protect
both the liberty interest of the accused and the judicial system’s and society’s
11
interest in fairness and the expeditious dismissal of groundless or
unsupported charges, thereby avoiding a waste of scarce public resources.”
(Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1087.) The
preliminary examination “operate[s] as a judicial check on the exercise of
prosecutorial discretion” (Mendella, at p. 759; accord Rogers, at p. 1361–1362)
and facilitates fairness in plea bargaining and the setting of bail (People v.
McGowan (2015) 242 Cal.App.4th 377, 389).12
B. Section 859b
“Section 859b provides that a criminal defendant has a right to a
preliminary hearing within 10 court days of the arraignment or plea, unless
the parties waive this right or the court finds good cause to continue the
preliminary hearing under section 1050.” (People v. Clark (2016) 63 Cal.4th
522, 551 (Clark).) Under section 859b, when a defendant is in custody only
on that felony complaint and the preliminary hearing is set or continued
beyond the 10-court-day timeframe, “the magistrate shall dismiss the
complaint” unless the defendant waives the requirement or the prosecution
shows good cause for a continuance.
“Section 859b governs the timing of a defendant’s preliminary hearing
and establishes the statutory right, of both the People and the defendant, to a
preliminary hearing at the earliest possible time.” (Ramos, supra, 146
Cal.App.4th at pp. 727–728.) “Generally, section 859b has three
12 We recognize that a defendant held in custody has had the benefit of
an early judicial determination of probable cause, either prior to the issuance
of a warrant or following arrest pursuant to Gerstein v. Pugh (1975) 420 U.S.
103 and County of Riverside v. McLaughlin (1991) 500 U.S. 44. (See
Riverside, at p. 56 [states must, following warrantless arrests, provide
“judicial determinations of probable cause within 48 hours of arrest” in order
to comply with the Fourth Amendment].) But that determination may be
made in a “nonadversary proceeding on hearsay and written testimony.”
(Gerstein, at p. 120.)
12
components—or . . . ‘three rights associated with the timing of a preliminary
examination.’ First, the defendant and the People have a right to a
preliminary examination ‘at the earliest possible time,’ with the presumptive
outside period (absent waiver or good cause for continuance) being ‘10 court
days of the date the defendant is arraigned or pleads, whichever occurs later.’
[Citations.] . . . Second, when the defendant is in custody and the
preliminary hearing is set or continued beyond 10 court days after the
arraignment, plea, or reinstatement of criminal proceedings under section
1367 et seq., ‘the magistrate shall dismiss the complaint’ unless the
defendant personally waives the 10-court-day requirement, or the People
show good cause for a continuance beyond that period. [Citations.] . . . Third,
as an outside time limit, regardless of whether the defendant is in custody,
‘[t]he magistrate shall dismiss the complaint if the preliminary examination
is set or continued more than 60 days from the date of the arraignment, plea,
or reinstatement of criminal proceedings,’ absent defendant’s personal waiver
of this 60-day period.” (People v. Figueroa (2017) 11 Cal.App.5th 665, 674,
italics omitted; see also Ramos, at p. 728.)13
13 Section 859b provides, “At the time the defendant appears before the
magistrate for arraignment, if the public offense is a felony to which the
defendant has not pleaded guilty in accordance with Section 859a, the
magistrate, immediately upon the appearance of counsel, or if none appears,
after waiting a reasonable time therefor as provided in Section 859, shall set
a time for the examination of the case and shall allow not less than two days,
excluding Sundays and holidays, for the district attorney and the defendant
to prepare for the examination . . . . [¶] 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, or within 10 court days of the date criminal
proceedings are reinstated . . . . [¶] Whenever the defendant is in custody,
the magistrate shall dismiss the complaint if the preliminary examination is
13
Section 859b also provides for release of a defendant on his own
recognizance under section 1318, subject to exceptions, “[i]f the preliminary
examination is set or continued [for good cause] beyond the 10-court-day
period.”
The 10-court-day rule in section 859b “ ‘manifest[s] a legislative policy
to eliminate the possibility that persons charged with felonies might suffer
prolonged incarceration without a judicial determination of probable cause
merely because they are unable to post bond in order to gain their freedom.’ ”
(Landrum v. Superior Court (1981) 30 Cal.3d 1, 11–12; accord People v.
set or continued beyond 10 court days from the time of the arraignment, plea,
or reinstatement of criminal proceedings . . ., and the defendant has
remained in custody for 10 or more court days solely on that complaint,
unless either of the following occur: [¶] (a) The defendant personally waives
his or her right to preliminary examination within the 10 court days. [¶] (b)
The prosecution establishes good cause for a continuance beyond the 10-
court-day period. [¶] For purposes of this subdivision, ‘good cause’ includes,
but is not limited to, those cases involving allegations that a violation of one
or more of the sections specified in subdivision (a) of Section 11165.1 or in
Section 11165.6 has occurred and the prosecuting attorney assigned to the
case has another trial, preliminary hearing, or motion to suppress in progress
in that court or another court. Any continuance under this paragraph shall
be limited to a maximum of three additional court days. [¶] If the
preliminary examination is set or continued beyond the 10-court-day period,
the defendant shall be released pursuant to Section 1318 unless: [¶] (1) The
defendant requests the setting of continuance of the preliminary examination
beyond the 10-court-day period. [¶] (2) The defendant is charged with a
capital offense in a cause where the proof is evident and the presumption
great. [¶] (3) A witness necessary for the preliminary examination is
unavailable due to the actions of the defendant. [¶] (4) The illness of
counsel. [¶] (5) The unexpected engagement of counsel in a jury trial. [¶]
(6) Unforeseen conflicts of interest which require appointment of new
counsel. [¶] The magistrate shall dismiss the complaint if the preliminary
examination is set or continued more than 60 days from the date of the
arraignment, plea, or reinstatement of criminal proceedings . . ., unless the
defendant personally waives his or her right to a preliminary examination
within the 60 days.”
14
Standish (2006) 38 Cal.4th 858, 870 (Standish); Garcia v. Superior Court
(2020) 47 Cal.App.5th 631, 648 (Garcia).) “The language of section 859b is
‘plain and mandatory’ and creates an ‘absolute right in favor of persons in
custody charged with felonies to have the preliminary examination
commenced within 10 court days . . . .’ ” (Landrum, at p. 6; accord Garcia, at
p. 645.) “Accordingly, ‘the magistrate is required to dismiss the complaint if
the court fails to adhere to the mandatory 10-court-day rule for incarcerated
defendants or the 60-day rule for all defendants.’ ” (Garcia, at p. 645.)
II. Writ Relief is Appropriate
The People contend writ relief is inappropriate because section 995 is
“the appropriate procedure for deciding whether to dismiss.” Section 995,
subdivision (a), provides that an information shall be set aside on a
defendant’s motion if “before the filing thereof the defendant had not been
legally committed by a magistrate” or if “the defendant had been committed
without reasonable or probable cause.”
Petitioner could have sought dismissal via a section 995 motion to
dismiss. The court of appeal in Ramos, supra, 146 Cal.App.4th at page 737,
observed that “a defendant often challenges an alleged violation of section
859b after the preliminary hearing has been held by filing a motion to
dismiss the information under section 995.” However, in Ramos, as in the
present case, the defendant moved for dismissal under section 859b, sought
writ relief from denial of the motion in the superior court, and then sought
appellate review, without bringing a section 995 motion. (Ramos, at pp. 724–
726; see also Garcia, supra, 47 Cal.App.5th at pp. 636–637, 642–643 [writ
petition challenging denial of motion to dismiss under section 859b].)
Moreover, section 871.6 specifically authorizes a petition for writ of
mandate/prohibition in the superior court “[i]f in a felony case the magistrate
15
sets the preliminary examination beyond the time specified in Section 859b,
in violation of Section 859b, or continues the preliminary hearing without
good cause and good cause is required by law for such a continuance.” The
statute also contemplates that the parties may “seek review in a court of
appeal” after the superior court rules. (§ 871.6.)
In the present case, Petitioner properly filed a petition for writ of
mandate in the Superior Court and then in this court, seeking dismissal of
the complaint.
III. Dismissal is the Appropriate Remedy for a Violation of Section 859b
Even if the Preliminary Examination Subsequently Occurs
The preliminary hearing in Petitioner’s case took place on April 9,
2020, and the People contend that dismissal is not required under section
859b where the preliminary examination has occurred.
A similar argument was rejected by the court of appeal in Ramos,
supra, 146 Cal.App.4th 719. The court there addressed the 60-day limit in
section 859b. The defendant’s preliminary hearing was continued outside the
60-day period at the request of co-defendants and without the defendant’s
waiver of the 60-day limit. (Ramos, at p. 722.) As relevant in the present
case, Ramos held that, “[a]lthough [the defendant’s] preliminary hearing took
place during the pendency of this writ proceeding and she was held to answer
. . ., nothing in section 859b precludes imposition of its dismissal sanction
once a preliminary hearing has already been conducted.” (Ramos, at pp. 736–
737.)
The Superior Court concluded the reasoning of Ramos is inapplicable
because this case involves the 10-court-day limit (extended to 15 court days
by the Chief Justice), which is subject to a good cause exception, while the
16
60-day limit is not. But Ramos’ reasoning is not confined to the mandatory
dismissal provision. Instead, Ramos broadly concluded that nothing in the
language of section 859b suggested conducting the preliminary hearing would
render the dismissal sanction inapplicable.
The People contend the 10-court-day and 60-day rules in section 859b
are different in this respect, arguing “The purpose of the sixty-day rule is to
prevent delay, mandating dismissal regardless of custodial status or cause for
the delay,” while “[t]he ten-court day rule is designed to prevent the People
from requesting a continuance that causes unnecessary custodial delay before
[a] probable cause determination, by requiring release of the defendant from
custody until the preliminary hearing.” But the purpose of both rules is to
assure a speedy preliminary hearing, and both rules mandate dismissal as
sanction for breach. While the 10-court-day rule includes a good cause
exception, that does not mean a violation of the rule (i.e., a continuance
without good cause) is less serious than a violation of the 60-day rule and,
thus, justifies only a lesser sanction. This is especially true given that the
10-court-day rule applies to defendants in custody in particular need of a
prompt judicial determination of probable cause. In any event, nothing in the
language of section 859b supports the People’s position, given that both rules
provide that “the magistrate shall dismiss the complaint” in the specified
circumstances.
In sum, if there was no good cause to continue Petitioner’s preliminary
examination past March 25, 2020, dismissal of the complaint is required due
to violation of the 10-court-day (extended to 15-court-day) rule in section
859b.
17
IV. The Superior Court Abused Its Discretion in Finding Good Cause
As noted previously, a preliminary hearing for a custodial defendant
may be extended beyond the ten court days in section 859b (extended to 15
court days under Government Code section 68115) if the trial court finds good
cause to continue under section 1050. (§ 859b.) “Under section 1050, a ‘trial
court has broad discretion to determine whether good cause exists,’ and we
review its decision on the motion for abuse of discretion.” (Clark, supra, 63
Cal.4th at p. 551.) “In making its good-cause determination, a trial court
must consider all of the relevant circumstances of the particular case,
‘applying principles of common sense to the totality of [the] circumstances. . .
.’ ” (People v. Sutton (2010) 48 Cal.4th 533, 546.)
A. Additional Background
There is no dispute that Petitioner remained in custody solely on the
underlying complaint for more than the extended 15-court-day period without
receiving a preliminary hearing. Accordingly, section 859b requires dismissal
unless the People established good cause for a continuance.
We observe that the People made no request for a continuance of the
preliminary examination beyond March 18, 2020 (10 court days following the
arraignment and plea) or March 25 (15 court days following the arraignment
and plea), as contemplated by section 1050, subdivision (b). The preliminary
hearing was scheduled for March 16, and the People do not dispute
Petitioner’s allegation that the hearing did not take place because “the
courthouse where petitioner’s preliminary hearing was scheduled to take
place was closed. A single department remained open to handle only urgent
issues such as in-custody arraignments or cases in which sentencing must
occur during the court closure period.”
18
In his writ briefing below, Petitioner argued “The failure to hold
preliminary hearings . . . was apparently based on [the Superior Court’s]
mistaken belief that Government Code section 68115 deemed the court
closure dates ‘holidays’ for the purpose of calculating time to hold a
preliminary hearing pursuant to section 859b.” In support of that assertion,
Petitioner submitted a declaration from a deputy public defender who
averred that, following the March 16 closure, several judges of the Superior
Court calculated the tenth court day after arraignment by “excluding the
court closure dates as holidays over defense objection.” For example, at a
March 16 hearing in a different criminal matter,14 the judge stated in
response to defense counsel’s objection to setting a preliminary hearing on
April 13 that “[t]he dates between now and April 1 are deemed to be court
holidays . . ., so I think we properly calculated the date.” That was consistent
with the language in the Superior Court’s March 13 closure order stating,
“the court closure will have the effect of being a public holiday as far as
statutory or other timelines are concerned.” The People do not dispute that
was the Superior Court’s understanding.
The Superior Court was clearly mistaken in believing the Chief
Justice’s March 13, 2020 order authorized it to treat the days of the closure
period as court holidays for purposes of section 859b. Mirroring Government
Code section 68115, subdivisions (a)(4) and (a)(5), the order “declare[d]” that
March 16 through April 1 “be deemed holidays for purposes of computing the
time” under specific sections of the Code of Civil Procedure, the Penal Code,
and the Welfare and Institutions Code, but section 859b was not among the
14 Petitioner submitted below the reporter’s transcript for the March 16,
2020 arraignment in People v. Robert Kennedy Ferguson (Super Ct. Contra
Costa, 2020, No. 2-330443-3).
19
listed provisions.15 The language of the Superior Court’s March 16
implementation order mirrored the language in the March 13 order, and also
did not contain any language providing the days of the closure period would
be treated as court holidays for purposes of section 859b. In relation to
section 859b, both the Chief Justice’s March 13 order and the Superior
Court’s March 16 order extended the time for holding preliminary hearings
“from 10 court days to not more than 15 court days” in cases where “the
statutory deadline would otherwise expire from” March 16 to April 1, under
the authority of Government Code section 68115, subdivision (a)(9).
Government Code section 68115, subdivision (a), states that, “When
war, an act of terrorism, public unrest or calamity, epidemic, natural
disaster, or other substantial risk to the health and welfare of court
personnel or the public, or the danger thereof, . . . or a condition that leads to
a state of emergency being proclaimed by the President of the United States
or by the Governor pursuant to Section 8625, threatens the orderly operation
of a superior court location or locations within a county or renders presence
in, or access to, an affected court facility or facilities unsafe, the presiding
judge may request and the Chairperson of the Judicial Council may,
notwithstanding any other law, by order authorize the court to do one or
more of the following: [¶] . . . [¶] (9) Extend the time period provided in
15 In relevant part, the Chief Justice’s March 13, 2020 order
“[d]eclare[d] that from March 16, 2020, to April 1, 2020, inclusive, be deemed
holidays for purposes of computing the time for filing papers with the court
under Code of Civil Procedure sections 12 and 12a (Gov. Code, § 68115(a)(4))”
and “[d]eclare[d] that from March 16, 2020, to April 1, 2020, inclusive, be
deemed holidays for purposes of computing time under Penal Code section
825 and Welfare and Institutions Code sections 313, 315, 334, 631, 632, 637,
and 657 (Gov. Code, § 68115(a)(5)).”
20
Section 859b of the Penal Code for the holding of a preliminary examination
from 10 court days to not more than 15 court days.” (Emphasis added.)
The good cause issue was first addressed in response to Petitioner’s
April 7, 2020 petition for writ of mandate in the Superior Court.16 Judge
Santos found there was good cause to continue the preliminary hearing from
March 18, 2020 (10 court days after the arraignment and plea) to March 25
(15 court days after the arraignment and plea), based on Government Code
section 68115, subdivision (a)(9), the Chief Justice’s March 13 order, and the
Superior Court’s March 16 order. Petitioner does not dispute this conclusion.
The judge then found there was good cause to continue the preliminary
hearing from March 25 to April 9 because “the unprecedented pandemic
conditions that California was facing directly impacted the court’s
operations.”17 The Superior Court referenced the indisputably widespread
disruption and chaos caused by the COVID-19 pandemic, causing the
Governor to declare a state of emergency and the issuance of statewide and
Contra Costa shelter-in-place orders. Addressing Petitioner’s argument that
the court had available courtrooms and judges between March 25 and April 2
but simply chose not to conduct preliminary hearings, the court stated,
“petitioner does not dispute that we are in the midst of a major public health
emergency where persons all over the globe are being advised by their
16 Judge Goldstein did not address the good cause issue; instead, he
concluded there was no violation of that statute in light of the Chief Justice’s
March 30 order. Judge Santos disagreed the 30-day extension in the March
30 order was retroactive, and the People do not defend the magistrate’s
reasoning in the present proceeding. We believe Judge Santos’ ruling on this
matter was sound and need not further address the issue.
17 Judge Santos agreed the Superior Court had erred in treating its
court closure days as holidays for purposes of calculating the statutory
deadline for Petitioner’s preliminary hearing.
21
governments to stay home and avoid contact with other persons who might
transmit to or receive from them a deadly disease.” On this issue, Judge
Santos’ order concluded “the impact of the pandemic on the Contra Costa
Superior Court operations and the challenges faced by the court raised a
myriad of problems that arose under these unique circumstances and
provided good cause for continuing petitioner’s preliminary hearing beyond
the 15th court day of March 25, 2020, to April 9, 2020.” The order
acknowledged the finding of good cause to continue the preliminary hearing
beyond the 15th court day was “notwithstanding the express terms of the
March 13 statewide emergency order and the Superior Court of Contra
Costa’s initial interpretation of that order” providing an extension under
Government Code section 68115.
B. Analysis
The Superior Court abused its discretion because its finding was not
based on any particularized showing of good cause and appears inconsistent
with certain contemporaneous steps taken by the court.
Government Code section 68115, subdivision (a)(9) provides for an
extension of time to conduct in-custody preliminary examinations from 10 to
15 court days due to an epidemic. When the Legislature reevaluated
Government Code section 68115 in the 2017–2018 session, it sought to
“ensure that it adequately empowers the Judiciary to respond to emergency
conditions to ensure justice is best preserved while still protecting the
fundamental right to due process of law.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, Rep. on Sen. Bill No. 1208 [2017-2018 Reg. Sess.] August 1, 2018,
p. 6.) The Chief Justice’s five-day extension of the section 859b time limit in
her March 13, 2020 order is brief and reflects the importance of providing a
defendant in custody on a felony complaint a prompt judicial determination of
22
probable cause. Further, the Chief Justice’s March 20 advisory “strongly
encourage[d]” superior courts to consider measures that could “be taken
immediately to protect constitutional and due process rights of court users,”
including “[p]rioritiz[ing] arraignments and preliminary hearings for incustody defendants.”
The Chief Justice’s 5-court-day extension on March 13, 2020 does not
mean a superior court could not, on a particularized showing of good cause,
continue a preliminary examination beyond the extended period in
Government Code section 68115, subdivision (a)(9) and the emergency orders
issued by the Chief Justice. But in the present case, the Superior Court had
no evidence before it that Petitioner’s preliminary examination could not be
conducted by March 25. To the contrary, according to the Superior Court’s
March 16 order, the court was maintaining a department open “to handle
urgent issues such as in-custody arraignments” as well as “any felony or
misdemeanor cases in which sentencing must occur during the period of
closure.” The Superior Court re-commenced conducting preliminary hearings
on March 30, just five days after the March 25 deadline for Petitioner’s
hearing under section 859b (as extended by Government Code section 68115,
subdivision (a)(9)). There is no indication in the record of what, if anything,
changed between March 25 and March 30 that made safe preliminary
examinations feasible. The People point to nothing suggesting the risks
presented by the pandemic changed in that five-day period.
In order to show good cause to continue Petitioner’s preliminary
hearing past March 25, 2020, some showing was required of a nexus between
the conditions created by the pandemic and the purported need to delay the
hearing. This could include a particularized showing based on a balancing of
the due process interests protected by timely preliminary hearings and the
23
unresolvable specific risks posed generally by such hearings or by any specific
hearing. But there is no basis in the record for such a finding, and the Chief
Justice’s March 20 advisory weighed against a continuance. Further, there is
no basis in the record to conclude the Superior Court was otherwise unable to
provide courtrooms to conduct in-custody preliminary examinations during
the March closure period, as it did for other matters. The decision not to
allocate available resources is not good cause for failure to comply with
Petitioner’s statutory rights. (See People v. Engram (2010) 50 Cal.4th 1131,
1138 [stating, in the speedy trial context, “when the lack of a judge or
courtroom available to timely bring a criminal defendant to trial is fairly and
reasonably attributable to the fault or neglect of the state, that circumstance
does not constitute good cause to delay the defendant’s trial”].)
C. The Tucker, Venable, and Stanley Decisions
In support of its finding of good cause, the Superior Court cited People
v. Tucker (2011) 196 Cal.App.4th 1313 (Tucker) and In re Venable (1927) 86
Cal.App. 585 (Venable), which are the same cases relied upon by the People
in this writ proceeding.
Tucker, supra, 196 Cal.App.4th 1313, is superficially similar, because
the case arose in the context of the 2009 H1N1 pandemic. (Tucker, at pp.
1315–1316.) The People focus on Tucker’s broad assertion, “Public health
concerns trump the right to a speedy trial.” (Tucker, at p. 1314.) But that
case merely held that “[g]ood cause for the delay of trial exists when an
incarcerated criminal defendant is under quarantine to prevent the spread of
infectious disease. A contrary holding would require trial court personnel,
jurors, and witnesses to be exposed to debilitating and perhaps lifethreatening illness.” (Ibid.) The holding was based on a particularized
showing that delay of the defendant’s trial was required because he “was in
24
custody at a correctional facility that was under quarantine because a
prisoner had contracted the H1N1 flu virus.” (Tucker, at p. 1315.) In the
present case, the Superior Court was conducting other hearings during the
closure period and it re-commenced conducting preliminary examinations on
March 30 with no apparent improvement in the pandemic conditions. No
showing comparable to that made in Tucker was made in the present case.
In Venable, supra, 86 Cal.App. 585, the Court of Appeal denied habeas
corpus relief to a prisoner whose trial for unlawful possession of intoxicating
liquor was delayed because “an epidemic of infantile paralysis was prevalent
in the town wherein the sessions of the . . . court were held and . . . for that
reason no juries were called during that period.” (Id. at p. 587.) The court
held that the epidemic constituted good cause for continuing the trial and,
where the trial was continued 8 days, there was no “unreasonable delay in
bringing the case to trial after the cessation of the epidemic.” (Id. at pp.
587–588.) In Venable, the record showed it was infeasible to bring the
defendant to trial because no jury trials were taking place due to the
epidemic of infantile paralysis. In contrast, in the present case other
hearings were taking place and the Chief Justice expressly encouraged
superior courts to prioritize conducting custodial preliminary examinations.
Following the Superior Court’s ruling on the petition for writ of
mandate, on June 9, 2020, Division Four of this District denied a petition for
writ of mandate filed by a defendant claiming violation of his statutory
speedy trial rights. (Stanley, supra, ___ Cal.App.5th ___ [2020 Cal.App.Lexis
506].) At issue in that proceeding were March 23 and April 29 orders by the
Chief Justice continuing all jury trials for a total of 90 days and extending by
a total of 90 days the time period in section 1382 for holding trial. Division
Four cited Venable and Tucker in stating, “Health quarantines to prevent the
25
spread of infectious diseases have long been recognized as good cause for
continuing a trial date.” Specifically, the Stanley decision held “the severity
of the COVID-19 pandemic and the impact it has had within this state”
constituted good cause for the 90-day continuances and extensions of time. In
reaching that conclusion, Division Four highlighted language from the Chief
Justice’s April 29 order explaining, “courts are clearly places of high risk
during this pandemic because they require gatherings of judicial officers,
court staff, litigants, attorneys, witnesses, defendants, law enforcement, and
juries—well in excess of the numbers allowed for gathering under current
executive and health orders.”18
Tellingly, the very next paragraph of the April 29, 2020 order referenced
the Chief Justice’s March 20 advisory to, as stated in the April order, “protect
constitutional and due process rights” by “prioritizing . . . preliminary
hearings for in-custody defendants.” Then, the April 29 order referenced the
Chief Justice’s March 23 order “requiring superior courts to suspend jury
trials for 60 days, unless they were able to conduct such a trial at an earlier
date, upon a finding of good cause shown or through the use of remote
technology, when appropriate . . . .”
Thus, the April 29, 2020 order relied upon by Division Four in finding
good cause to continue the defendant’s trial for 90 days itself shows that the
Chief Justice’s orders have treated trials and custodial preliminary hearings
differently: the former were continued for 90 days, while the latter were
called out as an immediate priority. This distinction reflects the reality that
preliminary hearings and trials involve different considerations relevant to
18
26
the determination of good cause in the context of a pandemic, making Tucker,
Venable, and Stanley distinguishable from the present case. First, there is a
greater need during a pandemic to postpone trials, which present a higher
risk of spreading infection because they involve more witnesses and large
numbers of potential jurors.19 Given the relaxed rules on hearsay, as well as
limitations on cross-examination and the presentation of defense witnesses,
preliminary hearings are relatively abbreviated proceedings compared to
trials. And, second, delaying an in-custody defendant’s right to a judicial
determination of probable cause following a live hearing risks detaining the
defendant for a prolonged period on a groundless complaint. Delaying that
same defendant’s post-examination trial does not present that risk.
(Mendella, supra, 33 Cal.3d at p. 759.) Therefore, the present case presents
markedly different considerations than Stanley; circumstances in a pandemic
that constitute good cause to continue a trial may not constitute good cause to
continue a preliminary hearing for a defendant in custody.
D. The People’s Additional Contentions
The People appear to contend dismissal is not appropriate because they
did not seek a continuance, asserting “[t]he ten-court day rule is designed to
prevent the People from requesting a continuance that causes unnecessary
custodial delay before [a] probable cause determination.” (See Standish,
supra, 38 Cal.4th at p. 873 [“the very reason section 859b was enacted; that
is, to ensure that the prosecution cannot cause delay that results in the
19 Indeed, the Chief Justice’s March 23, 2020 order stated, after
describing the restrictions due to the pandemic, “These restrictions have also
made it nearly impossible for courts to assemble juries.”
(
Justice-Chair%20of%20the%20Judicial%20Council%203-23-2020.pdf> (as of
June 23, 2020).)
27
prolonged incarceration of a charged individual without a determination of
probable cause.”]; In re Samano (1995) 31 Cal.App.4th 984, 989 [“Section
859b, subdivision (b) is premised on the People as the initiator of the
continuance.”].) However, the circumstance that the Legislature may have
contemplated that the prosecution would typically be the source of delay does
not mean the time limits for a preliminary hearing for a defendant in custody
have no application where the purported need for a continuance does not
come from the prosecution. (Ramos, supra, 146 Cal.App.4th at p. 734
[“Nothing in section 859b’s 60–day rule suggests its sanctions are to apply
only when the prosecutor has initiated the continuance of the preliminary
hearing (as opposed, for example, to a continuance on the court’s own
motion).”].)
The People also contend their position finds support in section 1387,
which addresses when dismissal of a criminal action is a bar to future
prosecution on the same offense. Section 1387 “sets forth what is sometimes
referred to as the ‘two-dismissal rule’: Two dismissals of a felony action bars
further prosecution, except in certain specified circumstances.” (Miller v.
Superior Court (2002) 101 Cal.App.4th 728, 739.) The People argue, “section
1387[, subdivision] (c)(1) also suggests that dismissal is only appropriate for
sixty-day violations with good cause and not [ten-day] violations.” The
portion of section 1387 the People reference provides, “if the previous
termination was pursuant to [s]ection 859b, 861, 871, or 995, the subsequent
order terminating an action is not a bar to prosecution if: [¶] (1) Good cause
is shown why the preliminary examination was not held within 60 days from
the date of arraignment or plea.” (§ 1387, subd. (c)(1).) “[S]ection 1387 limits
the impact of the [section 859b] mandatory dismissal by providing a
28
good-cause finding prevents a section 859b dismissal from operating as a bar
to further prosecution.” (Ramos, supra, 146 Cal.App.4th at p. 732.) The
People fail to explain how section 1387 supports a conclusion that dismissal
is improper under the 10-day provision, despite the express language
providing for dismissal.
E. Conclusion
We are well aware of the widespread confusion and uncertainty in the
early days of the pandemic, and we are sympathetic to the difficult choices
faced by the Superior Court in deciding how to proceed during the month of
March 2020. However, the record contains no particularized evidence
supporting the decision to deny Petitioner his right to a speedy preliminary
hearing, especially in light of the role such proceedings play in protecting incustody defendants. In fact, the record suggests that the court began
providing such hearings soon after the date Petitioner’s hearing should have
occurred, without any basis to conclude the relevant circumstances had
changed.
When pandemics or other emergencies disrupt court operations,
decisions about which proceedings to delay and which proceedings to conduct
must be based on a careful balancing of the actual risks presented and the
specific rights at stake. The Chief Justice’s March 20, 2020 advisory
emphasized precisely this point. Because the record does not support a
finding that there was a nexus between the pandemic and the Superior
Court’s purported inability to conduct preliminary hearings during the
second half of March, the Superior Court abused its discretion in rejecting an
in-custody defendant’s demand for a prompt preliminary examination.
Outcome: Although the magistrate should have granted dismissal, and the Superior Court should have granted Petitioner’s writ petition seeking dismissal, the petition in this court is dismissed based on the negotiated disposition and plea resolving the charges against Petitioner.
Plaintiff's Experts:
Defendant's Experts:
Comments: