People v. Figueroa

setting of a preliminary hearing within 60 days of the entry of his plea. After a long history of continuances, defendant moved to dismiss the complaint, arguing that his right under section 859b to have a preliminary examination set within 60 days of his plea had been abridged. The court granted the motion on October 21, 2015.

The People appeal the dismissal order, arguing that defendant had expressly waived his rights under section 859b by waiving the purported right to the setting of the preliminary hearing within 60 days of reinstatement of the criminal proceedings. We conclude that any purported waiver by defendant was ineffective because the 60-day period required under section 859b had not commenced at the time it was made. Because defendant had not entered a plea prior to suspension of criminal proceedings, the 60-day period for setting the preliminary hearing was not triggered by the subsequent reinstatement of proceedings; defendant’s later not guilty plea was the triggering event. The absence of defendant’s express personal waiver after he pleaded not guilty and the passage of more than 60 days compelled dismissal of the complaint. We will therefore affirm.

FACTS

The parties concur that the facts underlying the criminal proceedings herein are not relevant to the issues on appeal.

PROCEDURAL BACKGROUND

On July 23, 2013, the Santa Clara County District Attorney filed a complaint, alleging that defendant committed two felonies, possession of a billy (§ 22210; count 1) and bringing or sending a deadly weapon into jail (§ 4574, subd. (a); count 2), and one misdemeanor, using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3). The district attorney also alleged that counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).

On August 14, 2013—after defendant’s waiver of arraignment and prior to his entering a plea—the court declared a doubt as to defendant’s mental competency pursuant to section 1368 and suspended criminal proceedings. There were 10 intervening hearings in which defendant appeared while proceedings were suspended. On the 10th such hearing, on March 12, 2014, the court, after receiving the reports of two mental health professionals, found defendant competent and reinstated criminal proceedings. The court scheduled a further hearing for March 24, 2014.

preliminary examination for June 10, 2015. The matter was twice continued further. On the second occasion, the case was continued to October 14, 2015, for a hearing on defendant’s anticipated motion to dismiss pursuant to section 859b.

After the filing of briefs in support of, and in opposition to, defendant’s motion to dismiss, the court heard argument on the motion on October 14, 2015. On October 21, 2015, the court announced its decision to grant the motion to dismiss. It filed a thorough, well-reasoned order on the same date.

DISCUSSION

Dismissal of the Complaint Was Required Under Section 859b

A. Introduction

The crux of this case is whether defendant gave an effective personal waiver of his right to a timely preliminary examination. Defendant contends that under section 859b, he was entitled to have a preliminary examination on or before June 9, 2012—60 days after he entered a not guilty plea. The only exception precluding dismissal would have been if he had personally waived that right, which he contends he did not. The People argue that defendant did personally waive his rights under section 859b by waiving the purported right under the statute to have the preliminary examination on or before May 12, 2014—60 days after the court reinstated criminal proceedings. The People point to the record from the hearing on March 24, 2014, as reflecting defendant’s clear personal waiver.

The heart of this controversy is therefore the meaning and application of the language in the statute—what we will call the 60-day rule—that requires the magistrate’s dismissal of the complaint if the preliminary examination is set or continued to a date “more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings.” (§ 859b.) The statute does not expressly identify which of the three events is to be used as the benchmark for calculating the 60-day period. Is it the earliest-occurring event that triggers the 60-day period? Alternatively, is it the latest-occurring event that results in the commencement of the 60-day period for the preliminary examination? And, in the less common instance in which the court declares a doubt as to the criminal defendant’s competence and suspends the proceedings, either before or after the defendant has been

the preliminary examination is set or continued more than 60 days from the date of the arraignment or plea.” (Stats. 1980, ch. 938, § 1, p. 2965.) And in the latest amendment to section 859b in 1996, the revision included the reinstatement of criminal proceedings under section 1370 as a third event (in addition to arraignment or plea) that would potentially trigger the periods under each of the three section 859b rules. (Stats. 1996, ch. 122, § 1, p. 462.)

D. Interpretation of Statute’s Language

1. Two Triggering Events: Arraignment or Plea

As we have discussed, ante, section 859b existed in various forms for a number of years before the latest amendment in 1996 included reinstatement of criminal proceedings as one of the triggering events for the 60-day rule. (See Stats. 1996, ch. 122, § 1, p. 462.) We will therefore address initially the meaning and application of the statute by considering only two of the three events (arraignment and plea) that potentially trigger the 60-day rule. We will then consider the statute insofar as it includes the third potential triggering event, reinstatement of criminal proceedings.

We note the familiar rules of statutory interpretation that guide our analysis. “ ‘Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.]’ ” (Curle v. Superior Court (2001) 24 Cal.4th 1057 , 1063 [ 103 Cal.Rptr.2d 751 , 16 P.3d 166 ].) In ascertaining this intent, ”[w]e begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory frame work as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history. [Citation.]” (People v. Cole (2006) 38 Cal.4th 964 , 975 [ 44 Cal.Rptr.3d 261 , 135 P.3d 669 ] (Cole); see also People v. Murphy (2001) 25 Cal.4th 136 , 142 [ 105 Cal.Rptr.2d 387 , 19 P.3d 1129 ].)

The Legislature employed language in the disjunctive to identify the three events that potentially trigger the 60-day deadline under section 859b for the preliminary exantination. That portion of the statute does not specify

how the 60-day deadline is determined if the three events occur at different times. But elsewhere in section 859b, both the defendant and the People are granted the right to have “a prelintinary examination at the earliest possible time,” which, absent both parties’ waiver or good cause for a continuance, shall be “within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” (§ 859b, italics added.) This language demonstrates the Legislature’s recognition that the arraignment and plea are two separate events that may, or may not, occur on the same date. “[T]he entry of the plea is a separate act, not a part of the arraignment, although it may (or may not) follow at the same session of court.” (Chartuck v. Municipal Court (1975) 50 Cal.App.3d 931 , 937 [ 123 Cal.Rptr. 816 ] (Chartuck)-, see § 1003 [plea is to be entered “at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose”].) Further, because the statute refers first to the events of arraignment or plea by specifying that it is the later of the two events triggering the time under the presumptive 10-court-day rule, it is reasonable to infer a similar provision in section 859b’s description of the 60-day rule. In so interpreting the statute, we fulfill our duty to “harmonize the various parts of [section 859b] by considering them in the context of the statutory frame work as a whole.” (Cole, supra, 38 Cal.4th at p. 975.)

In addition to the statutory language itself supporting the 60-day period being triggered by the later of the arraignment or plea, that conclusion makes practical sense in the context of the three relevant events of the criminal proceeding: the arraignment, plea, and prelintinary exantination. A criminal defendant must be arraigned “without unnecessary delay” and, in general, within 48 hours (excluding Sundays and holidays) of his or her arrest. (§ 825, subd. (a)(1).) The arraignment “is the defendant’s first court appearance. [Citations.]” (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2016) §6.1, p. 126.) Although the court at the arraignment must afford the defendant the opportunity to enter a plea (see § 988), the entry of a plea may be postponed. (See §§ 990 [where the defendant at arraignment so requires, he or she “must be allowed a reasonable time to answer”], 1003 [demurrer or plea must be taken at “arraignment or at such other time as may be allowed to the defendant for that purpose”].) And as noted by the trial court here, as a practical matter, the defendant’s entry of a plea is often deferred for a significant period of time after arraignment, while the defendant, among other things, consults counsel, obtains discovery, and explores with the prosecution a potential resolution of the case. (See Levenson, Cal. Criminal Procedure (The Rutter Group 2015) ¶ 13.1, p. 13-3 [typically, the defendant’s plea “will occur weeks or even months after the initial appearance, and the defendant will have had time to consult with counsel and to reflect on what plea to

hearings for incarcerated defendants who contested the charges by pleading not guilty. As our high court explained: “The fact that the 10-court-day deadline applies only to persons in custody at the time of their arraignment or plea, whichever is later, has been held to ‘manifesto 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.’ [Citation.]” (Landrum, supra, 30 Cal.3d at pp. 11-12.)

And a reading of section 859b as providing for the later-occurring event of arraignment or plea as triggering the 60-day period for setting the preliminary hearing is consistent with policies found in other statutes implementing a defendant’s speedy trial rights. (See In re Samano (1995) 31 Cal.App.4th 984 , 989 [ 37 Cal.Rptr.2d 491 ]: “[W]e do not read section 859b in isolation.”) For instance, “[b]efore 1988, section 1382 provided in pertinent part: ‘The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: [¶] . . . [¶] 3. [W]hen a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he is arraigned if he is in custody at the time of arraignment, or in all other cases, within 45 days after his arraignment . . . .’ ” (People v. Baca (1989) 211 Cal.App.3d 675 , 677 [ 259 Cal.Rptr. 566 ].) The statute was amended in 1987, through enactment of Assembly Bill No. 2282 (1987-1988 Reg. Sess.), to provide that the 30-day and 45-day periods for bringing the case to trial for incarcerated and out-of-custody defendants, respectively, would run from the date of the defendant’s arraignment or plea, “whichever occurs later.” (Stats. 1987, ch. 577, § 1, p. 1889, italics added.) This change was accomplished “to prevent a defendant from using portions of the speedy trial period while the case remained in a preplea posture. The bill [Assembly Bill No. 2282 (1987-1988 Reg. Sess.)] removed all doubt as to when the running of the speedy trial period commenced and allowed the trial court to grant a continuance for entry of plea without shortening the speedy trial period. Further, such a continuance could be granted without extracting a time waiver from the accused.” (Baca, at p. 678, fn. omitted.) Section 859b’s language implementing the 60-day rule ensuring a defendant’s right to a speedy prelintinary examination—read in light of the 1987 amendment to section 1382 governing a defendant’s speedy trial rights—should be construed as requiring a preliminary hearing within 60 days of the later of the defendant’s arraignment or plea.

Moreover, construing the 60-day period under section 859b as being triggered by the later-occurring event of arraignment or plea makes logical and practical sense. Considering section 859b as a whole, it would be unreasonable for the later-occurring arraignment or plea to constitute the triggering event under the presumptive 10-court-day rule, while having a different method of determining the triggering event under the 60-day rule.

next consider the impact of the third triggering event specified in section 859b—reinstatement of criminal proceedings—upon our analysis of the trial court’s determination that dismissal of the complaint was required under the statute.

2. Third Triggering Event: Reinstatement of Proceedings

Under section 1368, “ ‘if at any time during the pendency of a criminal case a doubt arises as to [the defendant’s] mental competency, all criminal proceedings must be suspended until a hearing has been conducted to determine whether the defendant is presently mentally competent.’ [Citation.] Indeed, once a doubt has arisen as to the competence of the defendant to stand trial, the trial court has no jurisdiction to proceed with the case against the defendant without first determining his competence in a section 1368 hearing, and the matter cannot be waived by defendant or his counsel. [Citations.]” (People v. Hale (1988) 44 Cal.3d 531 , 540-541 [ 244 Cal.Rptr. 114 , 749 P.2d 769 ], italics omitted.) If, after suspension of proceedings, the court finds the defendant “mentally competent, the criminal process shall resume.” (§ 1370, subd. (a)(1)(A); see also Booth v. Superior Court (1997) 57 Cal.App.4th 91 , 100 [ 66 Cal.Rptr.2d 758 ] (Booth))

As noted, in 1996, the Legislature amended section 859b to provide that the reinstatement of criminal proceedings under section 1370 was a third event—besides arraignment or plea—that could potentially trigger the periods under each of the three section 859b rules. (Stats. 1996, ch. 122, § 1, p. 462.) The 1996 amendment’s first reference to reinstatement of proceedings appears in the second paragraph, adding a third triggering event relative to the presumptive 10-court-day rule by providing that “. . . 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 elate criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2.” (Stats. 1996, ch. 122, § 1, p. 462, italics added to denote new material.) The two subsequent references in the 1996 amendment to reinstatement of proceedings—including the one concerning the 60-day rule at issue here—must be viewed in this context as also introducing a third triggering event. But what is unclear and is critical to this case is the interplay between the two triggering events, arraignment or plea, whichever occurs later, and reinstatement when the criminal proceedings are suspended (as occurred here) prior to the preliminary examination.

The concurrent amendment in 1996 of section 1382 is illuminating. (In re Samano, supra, 31 Cal.App.4th at p. 989 [proper to read § 859b in context of other statutes].) In the same bill that proposed revisions to section 859b (Assem. Bill No. 2254 (1995-1996 Reg. Sess.)), the Legislature amended

section 1382 to similarly include the reinstatement of criminal proceedings as an additional event—along with the previously specified events of the finding of the indictment and the filing of the information—that could trigger the defendant’s statutory right to a speedy trial within 60 days. (Stats. 1996, ch. 122, § 2, p. 463 [amending § 1382, subd. (a)(2) to provide that absent good cause, court shall dismiss action if case is “not brought to trial in a superior court within 60 days after the finding of the indictment, filing of the information, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2”].) The author of Assembly Bill No. 2254 explained the necessity of the proposed amendment to section 1382 as follows: “Penal Code section 1382 requires that a defendant accused of a felony be brought to trial within 60 days of his/her arraignment. A problem arises when a doubt is raised about a defendant’s mental competence to stand trial at or near the expiration of the 60-day period. At that point he/she is referred out for mental evaluation. This process can last weeks or even months. In the event a defendant is deemed competent to stand trial, the case is returned to court. Defendants will then argue that the prosecution only has the few days remaining prior to the expiration of the original 60 day period to bring the case to trial. This requires the district attorney to keep witnesses under subpoena for the entire period of evaluation and forces the court to find an available court room at the last minute. This bill will correct these problems by providing a new 60-day period to begin running upon a defendant’s return to court upon a finding of competency.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 2254 (1995-1996 Reg. Sess.) as introduced Feb. 14, 1996, p. 3, italics added.) At the time of the proposed amendment to section 1382, it was further explained that “[w]hen a court must examine a defendant for mental competence, existing law provides that no proceedings shall occur during that time but does not provide for a waiver or extension of the speedy trial time limits when a defendant is declared to be competent and the criminal proceedings are reinstated. Thus, if the competency of the defendant is questioned well into the 60-day time limit, when proceedings are reinstated the trial must be set within the original 60 days if the defendant does not waive his/her right. [¶] . . . [¶] This bill provides that when the competency of a defendant is evaluated and then proceedings are reinstated, the original timelines begin again. Thus, when criminal proceedings are reinstated after a competency hearing, the preliminary hearing must be within 10 court days (if it has not already occurred) and the trial must be brought within 60 days from the date of the reinstatement.” (Sen. Com. on Crim. Proc., Assem. Bill No. 2254 (1995-1996 Reg. Sess.) June 11, 1996, pp. 4-5, italics added.)

The evident purpose of Assembly Bill No. 2254 (1995-1996 Reg. Sess.) in amending sections 859b and 1382 was to address the practical difficulties faced when the timelines under the respective statutes had commenced but

“when the court erroneously informed him that he would not be waiving time” in giving such consent].)

There may be some temptation to treat defendant’s agreement to relinquish his supposed right to a prelintinary examination by May 12, 2014, as a prospective waiver of his actual right to such hearing within 60 days of his subsequently entered plea. And the subsequent references by defendant’s counsel to her client’s prior time waiver might be used to bolster this inclination. But such a conclusion would be erroneous. Section 859b compels dismissal of the complaint if the prelintinary exantination is set or continued more than 60 days after the triggering event—in this case, entry of defendant’s plea—“unless the defendant personally waives [that] right.” (§ 859b.) The right had not yet accrued, because defendant had not yet pleaded not guilty. As such, he “occupie[d] a vastly different position” as “one who is considering waiving his . . . constitutional rights and admitting guilt pursuant to a preindictment plea offer,” as compared with one “who has pleaded not guilty and will have a preliminary hearing.” (Bridgeforth, supra, 214 Cal.App.4th at p. 1086.) Between the time of defendant’s purported waiver and his not guilty plea, his outlook toward the case, including his view concerning the tinting of the prelintinary hearing, may have changed. The fact that, based upon the circumstances here, it may be a reasonable supposition that he would have waived that right is no substitute for the statute’s personal waiver requirement. (Standish, supra, 38 Cal.4th at pp. 869-870 [language concerning dismissal where preliminary hearing is set or continued more than 10 court days after arraignment or plea for incarcerated defendants is mandatory]; Ramos, supra, 146 Cal.App.4th at p. 729 [“right to . . . preliminary hearing within 60 days ... is absolute absent a defendant’s personal waiver”].) Any contention that defendant impliedly waived his rights under section 859b must therefore be rejected.

DISPOSITION

The order dismissing the complaint is affirmed.

Premo, J., and Elia, J., concurred.