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By Mark Hanasono
The preliminary hearing can be one of the most critical stages of a felony case. It is the first, and often the only, opportunity to observe the witnesses testify. It allows both the prosecution and the defense to assess the strengths and weaknesses of the case. Above all, it provides the defendant with his proverbial day in court.
Along with these features, the primary purpose of the preliminary hearing is to protect the accused from defending unsupported charges at trial. With this recognition that criminal allegations need to be tested at an early stage of the case, statutory provisions exist to prevent prolonged periods of incarceration for the accused prior to the preliminary hearing. Penal Code section 859b effectively provides a defendant with the right to a speedy preliminary hearing.
The objective of this article and self-study test is to review the law governing preliminary hearings. Readers will learn specifically about the mechanics of section 859b, which governs the time periods within which a preliminary hearing must be conducted. This article will also discuss two new cases, Davis v. Superior Court and People v. Figueroa, which examine the time restrictions of section 859b, as triggered by the timing of the events of the arraignment, the plea, and the reinstatement of proceedings after suspension pending a mental competency determination.
II. Preliminary Hearing Basics
A felony case may begin with the prosecutorial agency either filing a criminal complaint or a grand jury indictment. If a complaint is filed, a preliminary hearing is conducted before a magistrate to determine if there is sufficient or probable cause to hold the defendant to answer for trial. If the magistrate does not find sufficient evidence to support the charge, the complaint is dismissed. Before the preliminary hearing, or prior to holding the defendant to answer, the magistrate may also reduce a felony charge to a misdemeanor charge when the offense is punishable either as a misdemeanor or felony. The preliminary hearing shall be completed in one session or the complaint shall be dismissed, unless the magistrate finds good cause to postpone it, or the defendant waives the right. A defendant may also personally waive his or her right to a preliminary hearing. 
The preliminary hearing is an evidentiary hearing. The prosecution must present evidence that the defendant committed a felony. The evidence necessary to support a holding order is a state of facts that would lead a person of ordinary caution to have a strong suspicion of the defendant’s guilt. The magistrate must only decide whether there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. The California Supreme Court has stated, “To reject the prosecution evidence, either it must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible.” Magistrates can make factual and legal findings at the preliminary hearing. Legal findings are not binding on the prosecution after the preliminary hearing, while factual findings are binding.
Generally, only evidence admissible under the Evidence Code can support a holding order. However, unique to preliminary hearings is the admissibility of hearsay elicited from the sworn testimony of qualified police officers. Amended by Proposition 115, which was the initiative measure approved in 1990, section 872(b) provides that “the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted.”
A preliminary hearing shall not be used for the purpose of discovery. However, the defense has the right to call witnesses to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or statement of a declarant to which a prosecution witness testified. The defense may present exculpatory hearsay evidence through a qualified officer under section 872(b). The defense may also make motions in conjunction with the preliminary hearing, including a motion to suppress evidence, a motion to exclude the defendant’s confession, and a motion to exclude the out-of-court identification of the defendant.
III. Time Limitations: the 10-court day and 60-day Rules
Section 859b provides three components associated with the time restrictions for a preliminary hearing. First, under paragraph 2 of section 859b, the parties have a right to a preliminary hearing “at the earliest possible time”; specifically, within “10 court days of the date on which the defendant is arraigned or pleads, whichever occurs later.” This paragraph is known as the “presumptive 10-court day rule.” Paragraph 2 seems to provide a directive more than anything else. A complaint should not be dismissed for violating its requirement. Paragraph 2 does not provide for a remedy for a violation of its prescription, unlike the other 2 components of section 859b.
The second component, under paragraph 3, requires that when the defendant is in custody, “the magistrate shall dismiss the complaint if the preliminary hearing is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings [under section 1367 et seq.].” This paragraph establishes the “mandatory 10-court day rule.” The time restriction under paragraph 3 is specifically limited to in-custody defendants. If the defendant is out of custody, he or she would not be entitled to a dismissal. Moreover, the defendant must have “remained in custody for 10 or more court days solely on that complaint.” The defendant is therefore not entitled to dismissal of the complaint, if he or she is in custody on other cases.
There are two exceptions to the remedy of dismissal for a violation of the restriction under paragraph 3. First, the defendant may personally waive his right to a preliminary hearing within the 10 court days. Under this scenario, the preliminary hearing would be continued, and the defendant would remain in custody. Second, the prosecution may establish good cause for a continuance beyond the 10 court day period. If the prosecutor does so, the complaint is not to be dismissed, but the defendant is entitled to release. The release is limited to the period between the order granting the continuance and the conclusion of the preliminary hearing, if the defendant is held to answer.
The defendant is not entitled to release in the following situations: (1) the defendant requests the continuance beyond the period, (2) the defendant is charged with a capital offense where the proof is evident and the presumption is great, (3) a necessary witness is unavailable due to the defendant’s actions, (4) the illness of counsel, (5) the unexpected engagement of counsel in a jury trial, and (6) unforeseen conflicts of interest which require appointment of new counsel.
The third component of the time restrictions under 859b falls under the final paragraph, which states that the magistrate shall dismiss the complaint if the preliminary hearing is set or continued “more than 60 days from the arraignment, plea, or reinstatement of criminal proceedings [under section 1367 et seq.].” This paragraph sets forth the “60-day rule.”
The 60-day rule presents several differences from the mandatory 10-court day rule. The 60-day rule utilizes calendar days, rather than court days. The remedy of dismissal applies to either an in-custody or an out of custody defendant. Moreover, the case must be dismissed regardless of whether the defendant is in custody on another case. The only exception to the 60-day rule is if the defendant personally waives his or her right to a preliminary hearing within 60 days. Thus, the 60-day rule prevents postponing the preliminary hearing, even when a magistrate finds good cause for the delay.
IV. Application of the 10-court day and 60-day Rules: Davis v. Superior Court and People v. Figueroa
In Davis v Superior Court, the First District Court of Appeal considered the effect of a waiver of the mandatory 10-court day rule after proceedings were reinstated upon a competency determination, when the waiver was entered prior to the suspension of the proceedings.
Upon entering his not guilty plea, the defendant, Gregory Davis, waived his right to a preliminary hearing within 10 court days and within 60 calendar days of his plea. On a subsequent court date, criminal proceedings were suspended, under section 1368, to determine Davis’ mental competence. Six months later, the court found Davis competent, and reinstated proceedings. On this same date, Davis did not waive any speedy preliminary hearing rights. However, the preliminary hearing was set 39 days later. Prior to the preliminary hearing date, defense counsel argued that the defendant was entitled to a preliminary hearing within 10 court days from the reinstatement of proceedings, even though he had previously waived his rights before proceedings were suspended. The court proceeded as originally ordered, stating, “I don’t think he’s entitled to ten days because he waived them, and the suspension of criminal proceedings didn’t change that.”
The Court of Appeal found that the preliminary hearing was set in violation of the mandatory 10-court day rule. According to the Court of Appeal, the preliminary hearing must be held within 10 court days from the date that proceedings are reinstated, unless the defendant personally waives that right. Under section 859b, the arraignment, the plea, or the reinstatement of proceedings can trigger the right of an in-custody defendant to a preliminary hearing within 10 court days. If proceedings are suspended, “the relevant personal time waiver is one made after criminal proceedings are reinstated.” Any time waiver entered prior to the suspension of proceedings is inconsequential.
The Court of Appeal also reviewed the legislative history of section 859b, as amended to add provisions governing the time for a preliminary hearing after a mental competency determination. The amendment specifically contemplated the implementation of the 10-court day rule when proceedings are reinstated. It was designed to address the problem that would arise when proceedings are reinstated with only a few days remaining prior to the expiration of the speedy trial and speedy preliminary hearing time limitations. Specifically, prosecutors would be required to keep witnesses under subpoena for the entire period of mental competency evaluation, and a courtroom would need to be available at a moment’s notice. The amendment would prevent these problems by requiring that the time periods be re-set. Thus, under Davis, the mandatory 10-court day rule begins again when criminal proceedings are reinstated.
Under similar circumstances, the Sixth District Court of Appeal in People v. Figueroa examined the operation of the 60-day rule. This case involved the defendant, Rafael Villanueva Figueroa, who was charged with two felonies and one misdemeanor. Before the defendant entered a plea, the court suspended criminal proceedings for a mental competency determination. After proceedings were reinstated, the defendant waived the 60-day rule. He had not yet entered a plea, and his arraignment was continued. When the defendant next appeared, he entered a plea and waived the mandatory 10-day rule. However, the court did not take another waiver of the 60-day rule. Multiple continuances followed without any additional waiver by the defendant. The preliminary hearing was set beyond the 60-day period from the reinstatement of proceedings, and beyond the 60-day period following his plea. Finally, the court granted a defense motion to dismiss the case.
Did the defendant’s initial waiver of the 60-day rule remain in effect even after proceedings were reinstated, and after he subsequently entered his plea? Or, was another waiver of the 60-day rule necessary to set the preliminary hearing 60 days after the defendant entered his plea?
The Court of Appeal first considered the plain language of section 859b. Under the final paragraph of section 859b, the 60-day rule is triggered from one of three events: (1) the arraignment, (2) the plea, or (3) reinstatement of criminal proceedings. The Court of Appeal observed that section 859b does not expressly identify which of the three events is used as the point from which to calculate the 60-day period, particularly when the three events occur at different times.
The Court analyzed the language used in the so-called presumptive 10-court day rule, as stated in paragraph 2 of section 859b. Specifically, paragraph 2 states that the preliminary hearing shall be conducted “within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” Although the “whichever occurs later” language is not explicitly stated in final paragraph of section 859b, the Court concluded that the 60-day period is implicitly triggered by whichever event occurs later. The Court confirmed that the speedy trial statute under section 1382 also appears consistent with the later occurring event as controlling.
The functional operation of the plea and the preliminary hearing, according to the Court, further supports the latest of the events as controlling when the 60-day period begins. Specifically, when the arraignment and the plea occur on different days, the entry of the plea must be considered as the condition precedent to holding the preliminary hearing. It sets the requirement of the preliminary hearing into motion. Thus, the plea must be considered the controlling triggering event for the timing of the preliminary hearing.
The Court’s review of the legislative history of section 859b also supported its conclusion. With its first mention of a time requirement for preliminary hearings in 1970, the Legislature appeared less concerned with pre-plea delay than with the delay in setting preliminary hearings. Thus, this focus on the period after the plea would support the later occurring plea as controlling the commencement of 60-day period.
On the facts of Figueroa, even though the defendant had waived the 60-day rule after reinstatement of the proceedings, he did not waive the 60-day rule after the date of his plea. He had not entered a plea until after reinstatement of the proceedings. The prior waiver was thus ineffectual because the 60-day period was subsequently triggered by the defendant’s plea. The defendant’s preliminary hearing should have been held within 60 days of his plea, absent another personal waiver of the 60-day rule.
In the simplest scenario, attorneys are likely accustomed to having a preliminary hearing set 8, 9, or 10 court days after the defendant enters a plea of not guilty at arraignment. The precise day often depends on the practice of the particular jurisdiction. Such dates will allow prosecutors and defense attorneys time to prepare for the preliminary hearing. The one or two days of buffer may assist with locating witnesses or accounting for the unexpected. Courts may also need time to process the case and manage courtroom availability. Section 859b provides the 10th court day after the plea at arraignment as the definitive limit for the date of the preliminary hearing. It may be helpful for courts and practitioners to memorialize the dates for the following events: (1) the arraignment, (2) the plea, (3) the 10th court day, and (4) the 60th day.
Calendaring may get trickier when cases are continued, or when other intervening events such as competency determinations are needed, as demonstrated by Davis and Figueroa. When setting future court dates in these situations, bench officers, prosecutors, and defense attorneys should always be mindful of the mutable 10-court day period and the 60-day period.
Earn 1 hour of MCLE Self-Study Credit for reading this article and answering the self-study questions. Go to http://calawyers.org/CLE-Events and click on Self-Study. The article and corresponding test may also be found under the Self-Study Articles section of the index.
1. Mark Hanasono is a Los Angeles Superior Court Judge. Any opinions expressed in this article do not reflect those of the Los Angeles Superior Court. This article does not constitute legal advice. ↩
2. See Pen. Code sec. 859b. All further statutory references are to the Penal Code, unless otherwise indicated. ↩
3. See Davis v. Superior Court (2017) 18 Cal. App. 5th 1061; People v. Figueroa (2017) 11 Cal. App. 5th 665. ↩
4. See Cal. Const., Art. I, sec. 14. ↩
5. See Pen. Code sec. 872; People v. Slaughter (1984) 35 Cal. 3d 629, 636. ↩
6. See Pen. Code sec. 871. ↩
7. See Pen. Code sec. 17(b)(5). ↩
8. See Pen. Code sec. 861(a).) ↩
9. See Pen. Code sec. 860; People v. Conner (1964) 229 Cal. App. 2d 716, 718-719. ↩
10. See Pen. Code sec. 866(b). ↩
11. See People v. Encerti (1982) 130 Cal. App. 3d 791, 800. ↩
12. See People v. Slaughter (1984) 35 Cal. 3d 629, 637. ↩
13. Cooley v Superior Court (2002) 29 Cal. 4th 228, 257; People v. Bautista (2014) 223 Cal. App. 4th 1096, 1102. ↩
14. See People v. Uhlemann (1973) 9 Cal. 3d 662, 668. ↩
15. See Pinizzoto v. Superior Court (1968) 257 Cal. App. 2d 582, 587. ↩
16. See Pen. Code sec. 872(b). ↩
17. Id.; see Whitman v. Superior Court (1991) 54 Cal. 3d 1063, 1070. ↩
18. See Pen. Code sec. 866(b). ↩
19. See Pen. Code sec. 866(a). ↩
20. See Nienhouse v. Superior Court (1996) 42 Cal. App. 4th 83, 91. ↩
21. Pen. Code sec. 859b, para. 2; see People v. Alvarez (1989) 208 Cal. App. 3d 567, 573. ↩
22. People v. Figueroa (2017) 218 Cal. App. 5th 665, 674. ↩
23. Pen. Code sec. 859b, para. 3.; see Landrum v. Superior Court (1981) 30 Cal. 3d 1, 8. ↩
24. Figueroa, supra, 218 Cal. App. 5th at 674. ↩
25. If the defendant is out of custody, the magistrate may dismiss the complaint only if the defendant demonstrates actual prejudice. (See People v. Luu (1989) 209 Cal. App. 3d 1399, 1405.). ↩
26. Pen. Code sec. 859b, para. 3. ↩
27. See Ng v. Superior Court (1992) 4 Cal. 4th 29, 38. ↩
28. Pen. Code sec. 859b, para. 3, subdiv. (a), (b). ↩
29. See People v. Standish (2006) 38 Cal. 4th 858, 869; Landrum v Superior Court (1981) 30 Cal. 3d 1, 5-6, fn.4. ↩
30. See Standish, supra, 38 Cal. 4th at 883, fn. 8. ↩
31. Pen. Code sec. 859b, para. 3, subdiv. (b), subpara. (1)-(6). ↩
32. Pen. Code sec. 859b. ↩
33. People v. Figueroa (2017) 218 Cal. App. 5th 665, 674. ↩
34. See People v. Mackey (1985) 176 Cal. App. 3d 177, 184. ↩
35. See Davis v. Superior Court (2017) 18 Cal. App. 5th 1061, 1065. ↩
36. Id. at 1064. ↩
37. See id. at 1070. ↩
38. See id. at 1066. ↩
39. Id. at 1066. ↩
40. See id. at 1069 (citing Assem. Bill No. 2254 (1995-1996 Reg. Sess.)). ↩
41. See id. at 1069. ↩
42. See People v. Figueroa (2017) 11 Cal. App. 5th 665, 672. ↩
43. See id. at 674 (citing Pen. Code sec. 859b). ↩
44. See id. at 676-677. ↩
45. See id. at 677. ↩
46. See id. at 681-682; see also People v. Mackey (1985) 176 Cal. App. 3d 177, 183; Ramos v. Superior Court (2007) 146 Cal. App. 4th 719, 731. According to the Court in Figueroa, it would not make practical sense if the two paragraphs of section 859b were not in harmony. If the plea occurred 60 days after the arraignment, the 60-day rule would be triggered before the time under the presumptive 10-court day rule would have even commenced. (See id. at 679-680.). ↩
47. See id. at 679. ↩
48. See id. at 678. ↩
49. See id. at 678-679 (citing Stats. 1970, ch. 1371, sec. 1, p.2537). ↩
50. See id. at 684. ↩
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How to comply with the new State Bar requirement for fingerprinting all attorneys (California Rule Of Court 9.5.1). This rule requires virtually all California attorneys to get re-fingerprinted for purposes of obtaining criminal offender record information, by April 30, 2019. It is the responsibility of each attorney to comply with this new rule and complete the steps listed below. Each attorney must print a prepopulated form from the State Bar website, take that form to a preapproved Live Scan vendor, complete the Live Scan process, and submit proof on the State Bar website. The State Bar procedure is fairly simple and allows attorneys to go to one of hundreds of Live Scan Vendors throughout the state.
You need to obtain a prepopulated Live Scan form issued by the State Bar to submit your fingerprints to the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). To get the form, go to the State Bar website and log into your Attorney Profile. Click on Step 2: Complete corresponding Fingerprinting Rule Compliance Documents. From here you can print your form, prepopulated with your specific State Bar information.
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