1

Filed 12/29/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

GREGORY DAVIS
, P etitioner
,

v. SUPERIOR COURT OF SOLANO COUNTY
, Respondent;

THE PEOPLE, Real Party in Interest A 152296
( Solano County Super. Ct. No. FCR 325286 )

Petitioner Gregory Davis, while in custody, waived his right to a preliminary hearing within 10 court days and 60 days of entering his plea. On the day scheduled for
his preliminary hearing, the court declared a doubt as to Davis’s mental competence and criminal proceedings were suspended. Nearly six months later, on June 26, 2017, Davis was found compe tent , criminal proceedings were reinstated , and the court re set the preliminary hearing for August 4, 2017

. Davis objected to the setting of the preliminary hearing and requested a hearing within 10 court days of the reinstatement of criminal proceedings
, citing Penal Code section 859b
, which governs the setting of dates for preliminary hearing. When the court denied Davis’s request and his subsequent motion to dismiss the case under section 859b for failure to hold the preliminary hearing within
10 court days from the reinstatement of criminal proceedings
, Davis petitioned this court for a writ of mandate. We conclude that the superior court erred in denying the motion to
dismiss.2 FACTUAL AND PROCEDURAL BACKGROUND On October 24, 2016, Davis was charged with two counts of human trafficking ( Pen. Code, § 236.1 , subd. (c)(1) ) 1 and two counts of pandering ( § 266i , subd. (a)(2)). He entered not guilty pleas at the time of arraignment and did not waive time for preliminary hearing. On November 3 , 2016, he waived his right to a preliminary hearing within 10 court days and within 60 days. On November 10, 2016, he requested to withdraw his time waiver, which the court apparently denied, and the preliminary hearing was set for December 23, 2016. On December 21, 2016, Davis was arraigned on an amended felon y complaint and entered a not guilty plea
, and the December 23 preliminary hearing dat e was confirmed.
But o n December 23, the preliminary hearing did not go forward because criminal proceedings were suspended under section 1368 when the court declared a doubt as to
Davis’s competency to proceed.
About six months later , o n June 26, 2017, criminal proceedings were reinstated
after the court ruled that Davis was competent , and a preliminary hearing was set for August 4, 2017

. Davis did not personally waive time for the preliminary hearing on June
26. At a subsequent court appearance o n July 6 , 2017, Davis objected to setting the preliminary hearing on August 4, arguing that no twithstanding his prior waiver of his right to have a preliminary hearing within 10 court days and 60 day s , made before criminal proceedings were suspended, he was now entitled by section 859 b to a preliminary hearing within the 10 court days from the rein statement of criminal proceedings. Defense counsel represented that Davis “is very much wanting his case to proceed as soon as possible” within the 10 court days from June 26. The court ordered
that the preliminary hearing would be held within 60 days of June 26 (which encompassed the previously scheduled hearing date of August 4), but denied Davis’s

1 All further statutory references are to the Penal Code unless otherwise indicated.3

request for an earlier setting
, because “I don’t think he’s entitled to 10 days because he waived them, and the suspension of criminal proceedings didn’t cha nge that.” On July 14, 2017, Davis moved to dismiss the complaint under section 859b for failure to have his preliminary hearing within 10 court days from the date criminal proceedings were reinstated. The court denied the motion. This timely request for extraordinary writ followed. We issued an alternative writ of mandate ordering the court to set aside and vacate its order of July 14, 2017 denying the motion to dismiss or to show cause why a peremptory writ of mandate should not
issue. T he trial co urt declined to dismiss the case.
DISCUSSION The issue presented in this writ is a question of law that we re view de novo. Does
section 859 b require that a preliminary hearing for a defendant in custody be held within
10 court days after reinstatement of criminal proceedings if the defendant had entered a time waiver before criminal proceedings were suspended?
Section 859b Section 859b governs the setting of preliminary hearings. It provides in pertinent
part: “Both the defe ndant 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 S ection 1050, the preliminary examination shall
be held within 10 c ourt days of the date the defendant is arraigned or pleads, whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2

. [ 2 ]
“When e ver the defend ant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time o f the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with S e ction 1367) of Title 10 of Part 2, and the defendant has remained in

2 This is a reference to mental competency determinations.4

custody for 10 or more court days solely on that complaint, 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.” ( § 859b, e mphasis added.)
“The well

- settled objective of statutory construction is to ascertain and effectuate legislative intent. ( People v. Trevino (2001) 26 Cal.4th 237, 240; People v. Gardeley (1996) 14 Cal.4th 605, 621. ) To determinate that intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. ( Trevino , at p. 241; Trope v. Katz (1995) 11 Cal.4th 274, 280.) When the statutory language is clear, we need go no further. If, howe v er, the language supports more than one reasonable interpretation, we look to a variety of extrinsic aids, including the objects to be achieved, the evils to be remedied, the legislative history, the statutory scheme of which the statute is a part, and contemporaneous administrative construction, as well as questions of public policy. [ Citations. ]” ( In re Derrick B . (2006) 3 9 Cal.4th 535, 539

- 540.)
T he w ords of the statute support Davis’s position. For purposes of our analysis,

t here are two categories of triggering events in this part of section 859b : one is arraignment and plea 3 ; the other is reinstatement of criminal proceedings. Although

3 The relative timing of arraignment and plea (“whichever is later”) is not at issue in the m atter before us, so we group them together for this analysis. We acknowledge that their relative timing can have significance, as in People v. Figueroa (2017) 11 Cal.App.5th 665. There the defendant waived arraignment, and the following month (before he entered a plea) the trial court declared a doubt and suspended criminal proceedings. Seven months later, criminal proceedings were reinstated. Having yet to enter a not guilty plea, he personally waived his 60

- day time limit for preliminary hearing. Mor e than two weeks later, on April 10, 2014, he finally pleaded not guilty, at which time he personally waived the 10

- court

- day time limit. A preliminary hearing was set for April 25, 2014, but that date was vacated and eight continuances followed. When Oc tober 2015 came around and still no preliminary hearing had been conducted, Figueroa moved to dismiss the complaint on the ground that he had never personally waived his right to a preliminary hearing within 60 days of his April 10, 2014, not guilty plea. The5

suspension and reinstatement of criminal proceedings are events that do no t typically
occur in a criminal case
, section 859b explicitly addresses the timing of a preliminary hearing if they do

. Each of these two categories of triggering events entitles a defendant in custody to a preliminary hearing within 10 court days, absent a personal time waiver, and a dismissal of the complaint if the preliminary hearing does not occur

. The words and structure of the statute lead us to conclude that, if criminal pro ceedings are suspended, the relevant personal time waiver is one made after criminal proceedings are reinstated. The statute uses the present tense , not the past tense. The preliminary hearing can be held beyond the 10

- court

- day period after criminal p roceedings are reinstated if the defendant “personally waives his or her right to preliminary examination” or the prosecution “establishes good cause for a continuance.” ( § 859b .) If the Legislature intended to limit mandatory dismissal to defendants who had not waived time prior to the suspension of criminal proceedings
, the statute would have to refer to events that had
occurred in the past: that is, unless the “ defendant personally waived his or her right to preliminary examination

. ” But t his languag e, of course, is not in the statute.
Further
, section 859b, subdivision (a) refers to a specific 10

- court

- day period when the personal time waiver occurs as “ the 10 court days.” (Emphasis added.) The temporal significance of this phrase is apparent when we read the statute for guidance as to the procedure to be followed after reinstatement of court proceedings:

“ Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyo nd 10 cour t days from the time of

. . . reinstatement of criminal proceedings [after a mental competency determination], and the defendant has remained in custody for 1 0 or more court days solely on that complaint,

trial court agreed and dismissed the complaint under section 859b. The Court of Appeal affirmed, writing that any purported 60

- day waiver by Figueroa after criminal proceedings were reinstated was ineffective because he had yet to enter his not guilt y plea; the later not guilty plea was the “triggering event.” ( Id . at p. 670.)6

unless

. . . [¶]

. . . [t]h e defendant pe rsonally waives his or he r right to preliminary
examination within the 10 court days .” (§ 859b, subd. (a)
, emphasis added.) When criminal proceedings have been suspended, the phrase “ [t] he 10 court days” logically can only refer to the 10 days since reinstatement of criminal proceedings. The Attorney General does not grapple with the plain language of the statute. 4 Instead he argues that legislative history supports the view that the provisions of section 859b governing reinstatement of criminal proceedings do not apply where there is a pre

suspension time waiver. T he Attorney General’ s argument is underpinned by his reliance

on People v. Love (2005) 132 Cal.App.4th 276, 285 ( Love ), so we address that case first.
In Love , a n out

- of

- custody defendant waived her right to have a preliminary hearing within 10 court days and 60 days of her plea. She then failed to appear at a setting conference and the court issued a bench warrant for her arrest . Five months after her initial plea, Love appeared in custody, and her preliminary was held 15 days
thereafter. Love argued she was entitled to a dismissal under the statute after she reappeared in custody and her preliminary hearing was not c onducted within 10 court days
, all this despite the fact that she had earlier entered time waivers. The trial court agreed and dismissed the complaint. The Court of Appeal examined section 859b and reversed, writing that “[t]he Legislature has never codi fied a provision imposing a 10

-
court

- day limit for defendants who, having previously waived time, find themselves in custody after a failure to appear. Nor has the Legislature created a provision for the withdrawal of properly entered waivers.” ( Love , su pra , 132 Cal.App.4 th at p. 285. ) In so

4 The Attorney General also contends that the writ should be denied because Davis presented an inadequate record and forfeited his right to a speedy preliminary hearing. We h ave an adequate record to decide the narrow issue before us. We do not need transcripts from the December 7 and December 21, 2016 hearings; Davis does not dispute that he entered personal 10

- and 60

- day time waivers on November 3, 2016
, before criminal proceedings were suspended. Nor do we find that the issue was forfeited; as we have described the undisputed procedural facts, Davis objected to the August 4, 2017 preliminary hearing date, requested a preliminary hearing within 10 court days of June 26, 2017
, while still within the 10

- court

- day period , and did not enter a personal time waiver after criminal proceedings were reinstated.7

holding, the Love court contrasted section 859b with section 1382, the speedy trial statute, which “specifically addresses both circumstances.” ( I bi d

. ) S ection 1382 provides that a defendant must be brought to tria l within 60 days of arraignment or reinstatement of criminal proceedings, allows a defendant to enter a general waiver of the
60

- day requirement, and specifically permits a defendant to withdraw the time waiver, on notice to all parties. ( § 1382, subd. (a)(2)( A ).) Further, section 1382 specifically addresses the contingency where a defendant who “has been ordered to appear in superior court on a felony case set for trial or set for a hearing prior to trial after being held to
answer” fails to appear and a bench warrant issues; that defendant “shall be brought to trial within 60 days after the defendant next appears in the superior court unless a trial date previously had been set which is beyond that 60

- day period.” ( § 1382, subd. (b).) Concluding that the Legisl a ture did not insert “similar provisions in section 859b, ”
the court in Love thus declined defendant’s request to “ ‘ recogniz[e] the requirement of a new personal waiver under 859b for defendant s who come into custody on a bench warrant, having previously waive d time while out o f custody.’ ” ( Love , supra , 132 Cal.App.4th at p. 286. ) This, the Love court held, was for the Legisla ture . ( I bi d .) The Attorney General relies on Love for the proposition that Davis’s claim here
must fail because ther e is no mechanism by which a general time waiver can be
withdrawn. Davis argues that the issue here is not whether a defendant may withdraw a validly entered personal time waiver for preliminary hearing in the abstract , or whether section 859b vitiates a validly entered personal time waiver. The issue is simply whether section 859b requires a prelimina ry hearing to be held within 10 court days after reinstatement of criminal proceedings unless defendant personally waiv es his right to the examination within the 10 court days after criminal proceedings are reinstated

. We agree with Davis’s framing of the issue. Legislative H istory In support of his position, t he Attorney General directs us to the legislative history
of the 1996 amendments to section 859b that added the provisions governing the tim e for8

a preliminary hearing after a mental competency determination

. 5 (Assem. Bill No. 2254 (1995

- 1996 Reg. Sess.)

. ) Existing law did not address the consequences of reinstate ment of criminal proceedings after a mental competency determination. A ssembly B ill No. 2254 proposed to change that. As pertinent here, the Assembly Committee on Public Safety described existing law
, contrasted it with the bill as then proposed , and
und erscored the new concepts : “This bill provides that the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleas [sic], whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated after a determination of the defendant’s mental competence. ” And as to dismissing a complaint if the preliminary hearing is held beyond 10 court days , the analysis went on to state : “This bill provides that whenever the defendant is in custody
, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings after a determination of the defendant’s mental competence and
the defendant h as remained in custody for 10 o r more court days solely on that complaint, unless the defendant waives his or her right to preliminary examination with the 10 court days or the prosecution establishes good caus e for a continuance.” (As sem. Com. on Public Sa f

ety , Rep. on Assem. Bill No. 2254 (1995

- 1996 Reg. Sess.) as introduced, p. 2. ) According to the bill’s author, the “ N eed for the B ill” was to address the problem that arises when a doubt is raised about a defendant’s mental compet ence to stand trial at or near the expiration of the 60

- day period after arraignment, and the defendant is deemed competent to stand trial with only a few days remaining prior to the expiration of the 60 days (a requirement established by § 1382, and not a t issue in this writ). The bill’s author perceived that this situation required the district attorney to keep witnesses under subpoena for the entire period of evaluation, and required the court to find an available
trial court room at the last minute. T he bill w ould “correct these problems by providing a

5 We grant the Attorney General’s unopposed request for judicial notice of three items from the legisl ative history of Assembly Bill No. 2254.9

new 60

- day period to begin running upon a defendant’s return to court upon a finding of
competency. ” ( Sen. Com. on Criminal Procedure, Rep. on Assem. Bill No. 2254 (1995

- 1996 Reg. Sess.), p. 3 .) In act uality, however, the bill did more than address the time for trial. It also addressed the timing for preliminary hearings. As the same Senate Committee report explains , “This bill provides that when the competency of a defendant is evaluated and then pro ceedings 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 wit hin 60 days fro m the date of the reinstatement.” ( Id

. at pp. 3

- 4
, emphasis added.) The legislative history does not change our reading of the statutory language

. After the amendments in 1996, section 859b was no longer silent on the issue of what happen s in the event criminal proceedings are suspended and reinstated. Although the
amendments were apparently motivated by the prosecution’s need for sufficient time to prepare for a preliminary hearing (and trial) after reinstatement of criminal proceedings,
the statute is written to require that the preliminary hearing be set within “ 10 court days ”
from the reinstatement of criminal proceedings with the consequence of dismissal absent the defendant’s personal waiver “wi thin the 10 court days.” (§ 859b , subd. ( a )

. )

The re I s N o C onflict w ith the O

pinion in Love The Attorney General argues that the legislative history shows that section 859b gives prosecutors more time to hold a preliminary hearing, but does not “upset th e default
rule that a valid time waiver, once entered, cannot be undone.” The Attorney General cites a leading treatise as stating that “ [ o ] nce the 60

- day rule is waived, it is waived forever.” ( Cal. Criminal Law: Procedure and Practice ( Cont.Ed.Bar 201 7) Timing of Preliminary Hearing, § 8.16, p. 184 (CEB Treatise) .) But the treatise’s citation is in a practice “note” that addresses the situation described in Love where a defendant comes into custody on a bench warrant after having previously w aived time while out of custody ; this section of the CEB treatise does not purport to address the reinstatement of criminal proceedings.10

Further, the Attorney General raises the specter that granting this writ will create
an “intra district conflict” with Divi sion Three’s opinion in Love. To the contrary, our decision here is in complete harmony with the well

- reasoned opinion in Love . The facts
of Love are not at all like this case. The C ourt of A ppeal in Love was addressing a
situation where the statute was silent on the very issue the court faced, and where the Legislature
, in a related statute , had addressed the speedy trial rights of a defendant who
faile d to appear

. Moreover, any concern that a defendant such as Love (who was appearing in custody after she had failed to appear while o n her own recognizance and absented herself from court process for several months) would be subject to indefinite custody while awaiting trial was mitigated by the fact that while her “circumstances fall
outside the statute [section 859b], she nevertheless retains her state constitutional speedy trial right.” ( Love , supra , 132 Cal.App.4th at p

. 286. ) Here, by contrast , defendant did not fail to appear. The trial court declared a doubt as to his competence, criminal proceed ings were suspended, and then after a hearing reinstated. Section 859b is not silent on this issue, and the Legislature has provided the statutory process that the trial
court was bound to follow. 6

D ISPOSITION Let a peremptory writ of mandate issue directing respondent superior court to set aside and vacate its order of July 14, 2017
, denying defendant’s motion to dismiss case
N o. FCR325286 against him
, pursuant to section 859b
, for failure to hold a preliminary hearing within 10 court days from the date that criminal proceedings were reinstated on June 26, 2017, and to thereafter enter a new order dismissing the complaint. The previously issued stay shall dissolve upon issuance of the remittitur.

6 T he Attorney General contends that we need not be concerned that denying the writ would expose defendant to “irremediable, infinite pre

- preliminary hearing delay,” because defendant still retains his state cons titutional speedy trial right and can challenge post

- accusation delay by showing the prejudice he was suffered as a result of the delay. In light of our conclusion that section 859b mandates dismissal of the complaint in this case, we need not address thi s argument.11 _________________________ Miller, J.

We concur:

_________________________ Kline , P.J.

_________________________ Stewart, J.

A 152296
, Davis v. Superior Court12

Trial Court: Superior Court of Solano County
Trial Judge: Hon. John B. Ellis

Attorneys for Petitioner Lesli Caldwell Solano County Public Defender Wendy Casas

- Raviotta Deputy Public Defender
Attorneys for Real Party in Interest Xavier Becerra Attorney General Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Eric D. Share Supervising Deputy Attorney General Leif M. Dautch Deputy Attorney General

A152296, Davis v. Superior Court