118 Cal. App. 3d 907 | Cal. Ct. App. | 1981
Opinion
Defendant, convicted of discharging a firearm at a vehicle (Pen. Code, § 246),
On March 8, 1979, defendant was charged in complaint No. 3-8375 with certain crimes, including that of which he was ultimately convicted. He was arraigned and entered a not guilty plea on August 15, 1979. The preliminary examination was set for August 29, 1979, the 10th court day following. On the latter date the matter was called and the
Defendant made and argued a motion to set aside the information (§ 995), charging insufficient evidence and that the second filing and ensuing preliminary hearing were improper as the magistrate was not authorized to dismiss the first complaint, which would preclude filing the second complaint. The court agreed in part with the evidentiary challenge and dismissed one count, leaving the charge of which defendant was ultimately convicted. It rejected the challenge under section 859b. We agree.
Section 859b, prior to its amendment in 1980, provided in part, “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. In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days.”
The judgment is affirmed.
Puglia, P. J., and Reynoso, J., concurred.
All code references are to the Penal Code.
The Legislature, obviously aware of the confusion created by the decision in People v. Peters (1978) 21 Cal.3d 749 [147 Cal.Rptr. 646, 581 P.2d 651], the provisions of section 859b and the decisions in Serrato v. Superior Court (1978) 76 Cal.App.3d 459 [142 Cal.Rptr. 882], Irving v. Superior Court (1979) 93 Cal.App.3d 596 [155 Cal. Rptr. 654], and Johnson v. Superior Court (1979) 97 Cal.App.3d 682 [158 Cal.Rptr. 899], took steps legislatively to correct procedural faults perceived by the courts, by enacting an amendment to section 859b. As amended, section 859b provides in part, “Whenever the defendant is in custody at the time of the arraignment or plea, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment or plea, 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, if the preliminary examination is set or continued beyond the 10-court day period, the defendant shall be released pursuant to Section 1318 unless the defendant is charged with a capital offense ....
“The magistrate shall dismiss the complaint if the preliminary examination is set or*910 continued more than 60 days from the date of the arraignment or plea, unless the defendant personally waives his or her right to a preliminary examination within the 60 days.”