THE PEOPLE, Plaintiff and Appellant, v. LOUIS CLARK SMITH, Defendant and Respondent.
No. A141407
First Dist., Div. Four.
Mar. 17, 2016.
869
Jill R. Ravitch, District Attorney, and William S. Mount, Deputy District Attorney, for Plaintiff and Appellant.
L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
STREETER, J.—The People appeal from an order dismissing heroin possession charges against Louis Clark Smith. (
BACKGROUND
By felony complaint, the Sonoma County District Attorney charged Smith with possession of heroin. (
The court inquired of the prosecutor when she learned that the lab results were not going to be ready for the hearing. She responded she had been assured as of the previous day the results would be ready in time for the hearing, but she found out that morning—March 6—the drugs were not even at the lab yet. She advised the court the drugs would be at the lab “today[,] and they will, hopefully, be done by Monday.” She explained the reason for the delay was “the person from the Santa Rosa Police Department [who] was supposed to take [the drugs to the lab] decided to schedule today to be the day to take them there instead of the day we asked them to.” The defense made no attempt to make any showing it would be prejudiced if the continuance were granted.
After considering the prosecutor‘s explanation, the court declined to find good cause for a continuance. The record is somewhat obscure as to what happened next, but the parties are now in agreement about the disposition—the court denied the People‘s section 1050 motion, and granted a motion to dismiss the complaint.2 A timely appeal by the People followed.
DISCUSSION
We review the trial court‘s denial of a continuance motion for abuse of discretion. (People v. Henderson (2004) 115 Cal.App.4th 922, 934 [9 Cal.Rptr.3d 655] (Henderson).) The dismissal of charges under section 1385 is also reviewed for abuse of discretion. (People v. Pedroza (2014) 231 Cal.App.4th 635, 650 [180 Cal.Rptr.3d 65].) For the reasons explained below, we conclude that the trial court misapplied sections 1050 and 859b, and thus that its denial of the prosecutor‘s request for a continuance and its dismissal of the complaint each constituted an abuse of discretion, warranting reversal. (See Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1334 [150 Cal.Rptr.3d 647] [“It is an abuse of discretion for a trial court to misinterpret or misapply the law.“].)
Subdivision (k) of section 1050 provides that “section [1050] shall not apply when the preliminary examination is set on a date less than 10 court days from the date of the defendant‘s arraignment on the complaint, and the prosecution or the defendant moves to continue the preliminary examination to a date not more than 10 court days from the date of the defendant‘s arraignment on the complaint.” (
Before turning to the core question presented here, we note preliminarily that this case involves a hearing set on a date more than five months after Smith‘s arraignment, and that, by its terms, the 10-day period described in 1050, subdivision (k), runs from the date of “the defendant‘s arraignment.” Although the language of subdivision (k) does not track precisely the wording of section 859b, which speaks of ”the date the defendant is arraigned or pleads” (
When sections 859b and 1050 are read together, it is plain that section 1050 does not apply to a request to continue a preliminary hearing if the continuance request and the requested future date fall within the statutory 10-day time limit. Our analysis pivots on the exact posture of this case at the time of the denial of the prosecutor‘s continuance request. Smith, who was in custody at the time of the March 6 preliminary hearing, had not waived his right to have a hearing within 10 court days of the entry of his plea. (See
As we read section 1050, subdivision (k) in light of section 859b, either party is presumptively entitled to a continuance, without having to provide notice or make a good cause showing under section 1050, so long as the request and the requested date fall within the 10-day statutory deadline set by section 859b. The notice and good cause requirements of section 1050 are inapplicable in those circumstances. Giving the parties the benefit of presumptive entitlement to calendar relief within this narrow 10-day window of time makes good practical sense because it recognizes that witness calendaring difficulties, lab problems or myriad other case preparation issues can occur, and may present unmanageable readiness problems—for either side—within such a short-fuse period. Accordingly, it was error to deny the prosecution‘s continuance request for failure to make a good cause showing. The dismissal for lack of readiness, which was the inevitable consequence of erroneously denying the continuance, was perforce error as well.
The People cite a number of cases involving unauthorized dismissal of charges based on prosecutorial lack of readiness to proceed in various other procedural settings (see People v. Ferguson (1990) 218 Cal.App.3d 1173 [267 Cal.Rptr. 528] [prosecutor sought continuance of trial to date within 10-day statutory grace period where defendant waived 60-day statutory time limit];
While Ferguson, Ferrer, and Henderson are not controlling, they are nonetheless instructive. Henderson best illustrates why, since procedurally it bears the closest resemblance to our case. There, the prosecutor sought to continue a preliminary hearing date without adhering to the notice requirements of section 1050. (Henderson, supra, 115 Cal.App.4th at pp. 928-929.) Henderson, who was out on bail, had waived his right to a preliminary hearing within 10 court days, but had evidently not waived his right to have the hearing within 60 calendar days as specified in section 859b. (Henderson, at pp. 929, 940.) On the date set for the hearing, the prosecutor moved to continue the hearing to a new date within the 60-day time period. (Id. at p. 928.) In making the motion, the prosecutor “informed the court that she was unable to contact or locate the victim.... [[] Upon further inquiry by the court, the prosecutor admitted that, while the district attorney‘s office had mailed the victim a subpoena prior to the hearing, [she] had failed to make any additional efforts to secure the victim‘s presence. Without its witnesses, the prosecution was unprepared to proceed.” (Ibid.) In these circumstances, the court denied the continuance motion for lack of good cause, and dismissed the case for lack of readiness to proceed. (Id. at p. 929.) The appellate court reversed, holding it was error to deny the prosecutor‘s continuance request, and it was error, in turn, to dismiss the charges against Henderson. (Id. at pp. 942-943.)
The Henderson court treated the dismissal in that case as an unauthorized sanction under section 1050 because dismissal was an unavoidable and direct consequence of the denial of the continuance. (Henderson, supra, 115 Cal.App.4th at pp. 935-936Id. at p. 936.) Comparing section 1382, the statute designating “speedy trial” time limits, with the “speedy preliminary hearing” strictures of section 859b, the court noted that “both sections 1382 and 859b establish statutory limits to safeguard a defendant‘s constitutional right to a speedy trial.” (Henderson, at p. 939.) Just as the statutory limits in section 1382 establish a presumptively reasonable time period for speedy trial purposes, the court explained, so too do the statutory periods in section 859b “indicate a legislative policy that
The same reasoning applies here, even though section 1050 in terms does not. Indeed, there was even less justification for dismissal here than there was in Henderson, since whatever shortcoming the court found in the prosecution‘s continuance motion in this case did not rise to the level of a statutory violation. Although Henderson was a section 859b 10-day waiver case and thus implicated a different statutory time period—60 days from arraignment or plea, instead of 10 days from arraignment or plea—that court‘s rationale still fits this case by analogy. Section 859b establishes a presumption that continuances requested within the 10-day statutory speedy preliminary hearing time period are reasonable, and, in the absence of any showing of prejudice from the defense, such motions should be granted without any requirement of advance notice or any showing of good cause. We recognize that a defendant has a right to a speedy preliminary hearing, but the prosecutor too has a strong interest at stake—“‘the fair prosecution of crimes properly alleged‘” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 [53 Cal.Rptr.3d 789, 917 P.2d 628])—and thus, as the Henderson court explained, a “‘dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.‘” (Henderson, supra, 115 Cal.App.4th at p. 938, italics omitted.)3
We “recognize that our decision restricts the options available to the trial court in responding to a motion for continuance that is not properly
CONCLUSION AND DISPOSITION
The issue presented here is a narrow one and so is our ruling. Because Smith did not and could not complain that his right to a speedy preliminary hearing under section 859b had been violated or demonstrate any other form of prejudice, it was an abuse of discretion to deny the prosecution‘s continuance request and order the charges against him dismissed. We therefore reverse the denial of the People‘s motion for continuance and the dismissal of the complaint. Upon remand, the 10-day period established by section 859b shall run from the date of issuance of the remittitur.
Ruvolo, P. J., and Reardon, J., concurred.
A petition for a rehearing was denied April 5, 2016, and respondent‘s petition for review by the Supreme Court was denied June 22, 2016, S234120. Corrigan, J., did not participate therein.