A limited waiver of the 60-day deadline for a preliminary hearing must be enforced
Favor v. Superior Court of San Bernardino County (Cal. Ct. App., Jan. 13, 2021, No. E075340) 2021 WL 118005
Summary: The right to a preliminary hearing within 60 days of arraignment “is absolute absent a defendant’s personal waiver.” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 729, 53 Cal.Rptr.3d 189.)
Here, Favor agreed to a limited waiver of this right and consented to a new deadline that was 76 days after arraignment. The preliminary hearing was not held by that date, so Favor moved for mandatory dismissal under Penal Code section 859b. The People argue that there can be no limited waiver of the 60-day deadline, so Favor’s waiver was a general one that allowed the preliminary hearing to be set later than he authorized, even without a further waiver.
The Court of Appeal agreed with Garcia v. Superior Court (2020) 47 Cal.App.5th 631, 651-652, 261 Cal.Rptr.3d 161 in enforcing a limited waiver of the 60-day preliminary hearing deadline. The Court granted Favor’s writ petition and ordered the trial court to grant his motion to dismiss.
On February 19, 2020, Favor was arraigned in custody and pled not guilty to a violation of section 33210. The court set his preliminary hearing for March 2, 2020.
On February 25, 2020, the parties agreed that Favor would be released from custody while the parties awaited a pretrial release report, and that he would appear on March 6 for the court to determine whether to return him to custody after considering that report. Favor waived the right to have his preliminary hearing by March 4, and agreed that it could be held within 60 days of March 6.
Sixty days after March 6 was May 5, 2020. The minute order for the hearing stated that Favor had waived the time for the preliminary hearing until May 4. When the parties appeared for the March 6 hearing, the trial court used May 4 as the deadline, telling the parties, “[t]he time waiver is to May 4th.” The May 4 date again was provided on the March 6 minute order. The People did not object to the limited waiver during this time period.
The preliminary hearing was held on May 26, 2020. Neither the court nor any party attempted to set a preliminary hearing before then. A clerical error apparently contributed to this result. A minute order created after a March 11, 2020, hearing contained the misstatement that Favor had waived time for the preliminary hearing until May 26. That error was repeated in a subsequent minute order.
On May 18, 2020, Favor filed a written motion to dismiss, arguing that the time for his preliminary hearing, as extended by his limited waiver, had expired. The parties appeared on that day for the first time since March.
The People argued that when a defendant waives the right to have a preliminary hearing within 60 days of arraignment, there is no longer any deadline under which the case is subject to mandatory dismissal absent waiver.
On May 22, 2020, the court denied Favor’s motion to dismiss, finding good cause for a continuance beyond May 4, 2020. At the May 26 preliminary hearing, Favor requested that the court find that his time waiver was to only May 4, 2020, and the court did so. Favor then filed a petition, asking the Court of Appeal to order that the trial court grant his motion to dismiss because his preliminary hearing was held beyond the date authorized by his limited waiver of the 60-day deadline.
Right to a preliminary hearing
A defendant arrested and arraigned on a felony complaint is entitled to a preliminary hearing. The purpose of the hearing “is to determine whether there is probable cause to conclude that the defendant has committed the offense charged.” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8, 112 Cal.Rptr.3d 673, 235 P.3d 1.)
The defendant has “the right to a preliminary examination at the earliest possible time.” (§ 859b.) ection 859b contains two deadlines:
- The preliminary hearing “shall be held within 10 court days” of the arraignment. (§ 859b.) If the defendant is in custody, the charges must be dismissed if the hearing does not occur within that time, unless an exception applies. (Ibid.) The 10-day deadline has two exceptions. The defendant may “personally waive[ ]” his right to an examination within 10 court days. (Ibid.) Alternatively, the prosecution may “establish[ ] good cause” for a continuance beyond that period. (Ibid.)
- Section 859b provides a deadline of 60 days from the date of arraignment to hold the preliminary hearing. If the hearing “is set or continued more than 60 days from the date of the arraignment,” the charges shall be dismissed. (§ 859b.) The only one exception: the defendant may “personally waive[ ]” his or her right to a preliminary examination within the 60 days. (Ibid.) In contrast to the 10-day deadline, the 60-day limit contains no good cause exception. The 60-day limit protects the right to a speedy preliminary hearing by ensuring that, even with good cause, the hearing may not be continued indefinitely. (People v. Figueroa (2017) 11 Cal.App.5th 665, 675, 218 Cal.Rptr.3d 104.) It also ensures that criminal cases are moved expeditiously through the courts. (Ibid.)
Here, Favor waived the 60-day deadline in a limited manner. He agreed that the preliminary hearing could occur “within 60 days of March 6.” The hearing, however, did not occur by this date.
Because the preliminary hearing occurred beyond the 60-day deadline as extended by Favor’s waiver, the trial court erred in denying Favor’s motion to dismiss the complaint. Absent a personal waiver, the court “shall dismiss” the charges if the preliminary hearing is set or continued after the 60-day deadline. (§ 859b.) The trial court was obligated to dismiss the charges under this rule.
A defendant may personally waive the 60-day rule in a limited manner, extending the deadline to a particular date beyond the original deadline, but not waiving it altogether.
The text of section 859b does not expressly address a limited waiver. If the preliminary hearing does not occur within 60 days of arraignment, section 859b requires dismissal “unless the defendant personally waives his or her right to a preliminary examination within the 60 days.” This language permits a general waiver where the defendant agrees that there is no longer any deadline for his or her preliminary hearing. It does not address a defendant’s waiver of the 60-day deadline in a limited manner, extending the deadline only to a particular date.
It is “well-established” that litigants may waive statutory rights, unless such a waiver is contrary to public policy. (People v. Johnson (2002) 28 Cal.4th 1050, 1055, 123 Cal.Rptr.2d 700, 51 P.3d 913; accord, Civ. Code, § 3513.) This rule has been applied to statutory provisions that include no express discussion of waiver. It has also been applied to allow not only general waivers, but also limited waivers. For example, a defendant may make a limited waiver of the section 1191 statutory deadline for pronouncing a judgment after guilty plea by requesting a continuance of that deadline to a different date, even though there is no waiver provision in section 1191. (People v. Scott (1968) 263 Cal.App.2d 581, 586, 69 Cal.Rptr. 901; see also People v. Manriquez (1922) 188 Cal. 602, 606, 206 P. 63.) A criminal statute’s silence as to the right to waive a deadline does not preclude a defendant from agreeing to a general or limited waiver.
Public policy favors limited waivers
The People’s construction of the statute would required the defendant either refuses to waive the 60-day outer limit for a preliminary hearing, or the defendant waives it entirely, so the preliminary hearing could be continued indefinitely for good cause. In situations where both parties and the court wish to extend the deadline to accomplish some needed purpose, the defendant would have to refuse to waive the deadline to maintain any outer limit on when the preliminary hearing would be held. Trial courts, defendants, and prosecutors would prefer the flexibility to offer the defendant a limited waiver as an option instead. Limited waivers of the statutory preliminary hearing deadlines also preserve defendants’ constitutional right to a speedy trial, and ensure cases continue to move expeditiously through the courts.
No good cause exception for delay beyond 60-day deadline
It also does not matter that clerical errors (minute orders incorrectly recording that Favor waived time until May 26, 2020, instead of to May 5, 2020) may have been a substantial factor in causing Favor’s hearing to be untimely. Even if such clerical errors, particularly combined with the disruptions caused by the pandemic, might constitute good cause for a delay—an issue we need not and do not decide—there is no good cause exception available to justify delay beyond the 60-day deadline (as extended by Favor’s limited waiver) and avoid dismissal.
A peremptory writ of mandate issued, directing the Superior Court of San Bernardino County to vacate its May 22, 2020, order denying Favor’s motion to dismiss and enter a new and different order dismissing the amended complaint against him.