Amador Water Agency 71 Cal. In addition, penal statutes are generally construed most favorable to the defendant. The same principles of statutory interpretation also apply to voter initiatives. Neely Cal. Section b 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.
A continuance may be granted if both the defendant and the People waive the court-day period or good cause is found pursuant to section If the preliminary he aring is continued beyond the court-day period, the defendant must be released unless one of six specified conditions is present.
The final paragraph of the section creates an outside limit on when the preliminary hearing may be held, the day rule at issue in this case, and establishes the consequence of dismissal when the hearing is set or continued beyond the day period: Superior Court Zamudio 23 Cal. Moreover, inclusion of the defendant's personal waiver as the only express exception to the day rule suggests the Legislature did not contemplate additional exceptions.
Standish, supra, 38 Cal. Thus, the plain language of section b's day rule establishes the right to a preliminary hearing within 60 days of arraignment is absolute absent a defendant's personal waiver. Mackey Cal. The ordinary import of this language is that, excepting only his own waiver, a defendant has a right to a preliminary hearing within 60 consecutive calendar days from entry of plea or arraignment, whichever is later"]. In interpreting a related provision in section b, the Supreme Court has recently emphasized the mandatory nature of the statute. In Standish, supra, 38 Cal.
As the Court explained, "The evident purpose of section b supports the view that its provisions are mandatory, rather than permissive. This enactment is one of a number of statutes that are supplementary to and a construction of the constitutional right to a speedy trial. Mandatory enforcement of the day rule implements the goals of the Legislature and furthers the statutory purpose.
Accordingly, on its face section b's day rule is absolute and requires dismissal of a felony complaint against a non-consenting defendant whose preliminary hearing is set or continued more than 60 days from arraignment. Attempting to avoid the mandatory language of section b, the People rely on section Arias 13 Cal. The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.
Based on section The People's argument suffers from several flaws. As an initial matter, the day rule in section b, absent a defendant's personal waiver of the right to a preliminary hearing within 60 days of arraignment, is absolute. Whether or not good cause exists to continue the hearing, absent a personal waiver, the day limit is a bar to extending the hearing date.
SearchWorks Catalog
In this regard, the day provision of section b is unlike that section's initial court-day period in which the preliminary hearing is to be held, which may be extended based on a showing of good cause. Indeed, the fact the Legislature included a good-cause exception to the court-day rule in section b yet omitted any such exception from the day rule is a strong indication of its intent that a good-cause exception not apply to the day rule.
Gardeley 14 Cal. Further evidencing the absence of a good-cause exception to the day rule is section , which specifies when the dismissal of a previously terminated action operates as a bar to further prosecution for the same offense the two-dismissal rule. Pursuant to section , "if the previous termination was pursuant to Section b, , , or , the subsequent order terminating an action is not a bar to prosecution if: Section , subdivision c 1 , thus necessarily recognizes that a felony complaint will be dismissed pursuant to section b if the preliminary hearing is not held within 60 days of the arraignment even though good cause existed for setting the preliminary hearing beyond the day limit.
Recognizing both the mandatory nature of section b's day rule and its potential harshness, section limits the impact of the mandatory dismissal by providing a good-cause finding prevents a section b dismissal from operating as a bar to further prosecution. In sum, the good cause found to continue the preliminary hearing as to Efrain Ramos and later as to Gomez, as well could not be used under the authority of section To import a good-cause exception into the absolute day rule in section b, absent the express direction of the Legislature or the voters by initiative , would constitute an impermissible rewriting of the statute.
Knowles, supra, 35 Cal. Valdez, supra, Cal. The People's reliance on In re Samano 31 Cal. On the People's motion under section Two other defendants who had not moved to continue the preliminary hearing then requested release from custody on their own recognizance under section b's provision that, "[i]f the preliminary examination is set or continued beyond the court-day period, the defendant shall be released" unless one of six specified conditions is met.
Although the magistrate denied the requests, on the defendants' petitions for writs of habeas corpus, the superior court granted the writs and ordered the defendants' release on written promises to appear. In a divided opinion Division Six of this court reversed, finding "section b must be harmonized with section The request of one properly joined defendant for a continuance of the preliminary examination with good cause shall be deemed a request of all jointly charged defendants.
According to the court, the magistrate has the discretion, but not the duty, to release from custody a defendant who did not request the continuance. The court emphasized that the release provisions in section b were premised on the People as the initiator of the continuance and "[t]hat codefendants insisted upon a continuance should not inure to the detriment of the People with the nonmoving codefendants as unintended third party beneficiaries.
Account Options
Although we, like Ramos, question the result reached by the Samano majority, which appears to have created an unauthorized exception to section b's mandatory release provision, we need not decide the propriety of the decision because Samano did not consider and, therefore, is not authority for the proposition section b's absolute day time limit can be extended absent the personal waiver of a defendant based on a codefendants request for a continuance of the preliminary hearing. Appeals Bd 19 Cal. An opinion is not authority for propositions not considered"]; Kinsman v.
The Samano majority found a request of one properly joined codefendant to continue the preliminary hearing beyond the initial court-day period operated as a request of all jointly charged defendants. Samano, supra, 31 Cal. But, here, the court-day rule, which contains a goodcause exception, is not at issue. The day rule, as discussed, contains no goodcause exception.
Samano cannot reasonably be interpreted to suggest a defendant who has continuously objected to continuances of the preliminary hearing can be deemed to have personally waived the day rule simply because a codefendant has done so: Any such holding would effectively read the personal waiver requirement out of the statute and eviscerate the day rule.
Moreover, the focus of the Samano majority on the fact the prosecutor in that case had not requested the continuance of the preliminary hearing and its statement the release provision of section b was premised on the People as the initiator of the continuance is not persuasive in this case. See generally Standish, supra, 38 Cal. Nothing in section b's 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.
In any event, there was no suggestion in. Samano the defendants requesting release on their own recognizance objected to the continuance of the preliminary hearing. In this case, in contrast, Ramos repeatedly objected to a continuance of the preliminary hearing and sought to enforce her rights under the day rule. In addition, although the prosecutor did not initiate any of the continuances, it did object to Ramos's motion to sever her case from those of her codefendants. Fenton, supra, 20 Cal. Here, Ramos's preliminary hearing was held more than four months after the end of section b's day period.
While we are mindful of the benefits a single trial of properly joined defendants can produce, those benefits should not trump a defendant's speedy trial rights, guaranteed by the California Constitution and effectuated by the absolute language of section b. For similar reasons, the People's reliance on the second sentence of section Here, severance of Ramos's case was required not because her codefendants were unprepared but because her own absolute right to a preliminary hearing within 60 days of arraignment would be violated by a further continuance of the preliminary hearing date.
Or phrased somewhat differently, as to Ramos the further extension was necessarily more than "a reasonable period of time" in light of her right to insist on a preliminary hearing within the 60 days mandated by section b. Moreover, to interpret the second sentence of section Hinks 58 Cal.
California preliminary examinations and benchbook statues and notes, Mark Simons' songbook
Kowalski Cal. Superior Court 15 Cal. Superior Court 75 Cal. Thus, both Kowalski and Curry used the defendant's invocation of a constitutional right to effectively find a waiver of statutory rights under section b. Neither case stands for the proposition statutory provisions enacted after section b may be used to create additional, implied exceptions to section b's day rule.
And, indeed, in this case, in contrast to both Kowalski and Curry, Ramos did not invoke any constitutional right that conflicted with her statutory rights under section b. Although Ramos's preliminary hearing took place during the pendency of this writ proceeding and she was held to answer to an accessory-after-the-fact charge, nothing in section b precludes imposition of its dismissal sanction once a preliminary hearing has already been conducted: Indeed, a defendant often challenges an alleged violation of section b after the preliminary hearing has been held by filing a motion to dismiss the information under section Luu Cal.
Moreover, as the Supreme Court has recognized, because section b itself provides for dismissal of the complaint as the remedy for a violation of the day rule, no prejudice analysis need be performed to invoke its sanction. Superior Court 30 Cal. Superior Court 76 Cal. Accordingly, a defendant whose right to a preliminary hearing within 60 days of arraignment is violated is entitled to dismissal of the felony complaint against him or her. Henderson Cal.
Although the superior court should have granted Ramos's writ petition and entered an order dismissing the April 12, amended felony complaint against her in case No. LA, Ramos's petition in this court is dismissed as moot based on her personal waiver of section b's day rule. Thereafter, the trial court conducted Ramos's preliminary hearing and held her to answer on one count under section 32 as an accessory after the fact to a murder. Through counsel Ramos notified us of this development and urged the fact the preliminary hearing had been held did not moot her writ petition.
However, shortly before the scheduled date for oral argument appellate counsel for Ramos, who remained in custody pending trial, requested permission to withdraw the pending petition because her new trial counsel had determined "it is not in petitioner's continuing interest to seek an order which would have the effect of terminating the present proceedings.
- Mourning Becomes Cassandra.
- Wicca Queen:Mother Earth;
- Persephone the Phony: Book 2 (Goddess Girls)?
- California Preliminary Examinations, Benchbook - Mark B. Simons - Google Книги.
You may send this item to up to five recipients. The name field is required. Please enter your name. The E-mail message field is required. Please enter the message. Please verify that you are not a robot. Would you also like to submit a review for this item? You already recently rated this item. Your rating has been recorded.
Write a review Rate this item: Preview this item Preview this item. California preliminary examinations and benchbook: Mark B Simons Publisher: Subjects Preliminary examinations Criminal procedure -- California. Preliminary examinations Criminal procedure California. More like this Similar Items.
California preliminary examinations and 995 benchbook : statutes and notes
Allow this favorite library to be seen by others Keep this favorite library private. Find a copy in the library Finding libraries that hold this item Mark B Simons Find more information about: Reviews User-contributed reviews Add a review and share your thoughts with other readers. Add a review and share your thoughts with other readers. Similar Items Related Subjects: Linked Data More info about Linked Data. Home About Help Search.