Filed 4/11/16 P. v. Andert CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES MICHAEL ANDERT,

Defendant and Appellant.

 H041834

 (Monterey County

 Super. Ct. No. SS140860A)

I. INTRODUCTION

After a preliminary examination on August 15, 2014, defendant James Michael 

Andert was held to answer for first degree burglary (Pen. Code, § 459)

1

and his 

arraignment date was set for 21 days later on September 5, 2014. At the arraignment 

hearing, the prosecution filed the information. That same day, defendant filed a motion 

to dismiss based on the prosecution’s failure to file the information within 15 days of 

defendant being held to answer. (§§ 739, 1382, subd. (a)(1).) The court denied the 

motion. After a court trial, defendant was convicted of second degree burglary and 

sentenced to 16 months in jail.

On appeal, defendant contends that the trial court erred in denying his motion to 

dismiss the action.

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

For reasons that we will explain, we will reverse the judgment and remand the 

matter with directions to grant defendant’s motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint, the Preliminary Examination, and the Information

On April 8, 2014, defendant was charged by complaint with first degree burglary 

(§ 459). Prior to the filing of this complaint, defendant had been charged in another case 

(No. SS140723A) with first degree burglary for the same incident. The earlier complaint 

was ultimately dismissed following a preliminary examination, where the court found 

that there was not sufficient cause to believe defendant guilty. (See § 871.)

On August 15, 2014, at the close of the preliminary examination in the second 

case against defendant arising out of the same incident (No. SS140860A), defendant was 

held to answer for first degree burglary. The court then addressed the scheduling of the 

arraignment with defendant and his trial counsel as follows:

“THE COURT: . . . You’re therefore held to answer to stand trial, with a 

Superior Court arraignment date – Mr. Butler [defense counsel], do you care?

“[DEFENSE COUNSEL]: I’m wondering if we could come back the first week of 

September for setting and arraignment?

“THE COURT: How about the 10th of September?

“[DEFENSE COUNSEL]: We could get – could we do that a little sooner, if 

possible?

“THE COURT: The 5th?

“[DEFENSE COUNSEL]: That would be fine.

“THE COURT: The 5th at 8:30.”

On September 5, 2014, at the arraignment hearing, the prosecution filed an 

information charging defendant with first degree burglary (§ 459). The burglary 

allegedly took place on or about March 25, 2014, when defendant entered an inhabited 
3

vessel with the intent to commit larceny. Defendant waived arraignment on the 

information and entered a plea of not guilty.

B. Defendant’s Motion to Dismiss

On September 5, 2014, the same day that the arraignment hearing was held, 

defendant filed a motion to dismiss. He contended that at the arraignment hearing earlier 

that day, the trial court “indicated . . . that the People had yet to file an information.” 

According to defendant, the prosecutor “had nothing to indicate that an information had 

been filed,” but the court subsequently “accepted the information to be filed in court.” 

In his motion, defendant argued that the information should be dismissed because the 

prosecution did not file it within 15 days after he was held to answer, as required by 

statute.

The prosecution filed written opposition to defendant’s motion. The prosecution 

contended that defense counsel “chose the date for the arraignment upon multiple 

opportunities for input,” and that “as to that date, there is an implied waiver of the strict 

15 day filing requirement” for the information. The prosecution contended that in 

People v. Murray (1967) 247 Cal.App.2d 730 (Murray), a waiver was found where 

“defense counsel [had] picked the date that was beyond 15 days from the date of the 

holding order.”

In a written reply, defendant contended that the acceptance of an arraignment date 

beyond 15 days of being held to answer did not constitute a waiver of the filing of the 

information within 15 days.

A hearing was held on defendant’s motion to dismiss. The prosecution clarified 

that it was not asserting good cause for the delay in filing, but rather that there had been a 

waiver by defendant. Defendant argued that the hearing date for the arraignment “was 

not a date [defense counsel] had requested. It was a date the Court had indicated.” The 

trial court ultimately denied defendant’s motion to dismiss. Referring to the interaction 

between the court and defense counsel in setting the arraignment date, the court stated: 
4

“Under the circumstances, and these circumstances only, with the nuances and the 

specificity and the language that was used, the questions that were asked, and the 

responses that were made, the Court does find that the case of People versus Murray is 

controlling.”

C. The Court Trial and Sentencing

Defendant waived his right to a jury trial. The evidence admitted at the court trial 

established that defendant had taken items without permission from a docked boat on or 

about March 25, 2014. The court found defendant guilty of second degree burglary after 

stating it was “not going to find this a residential burg[lary].” The court subsequently 

sentenced defendant to 16 months in county jail.

III. DISCUSSION

Defendant contends that the trial court erred by denying his motion to dismiss

under section 1382 because the information was not filed within 15 days of being held to 

answer (§ 739). He argues that his trial counsel’s “acquiescence” to a later arraignment 

date cannot be construed as a waiver of the 15-day filing requirement. Defendant further 

contends that the court’s error in denying the motion to dismiss was prejudicial because 

the prosecution would have been barred from refiling the burglary charge a third time.

The Attorney General contends that defendant impliedly waived the 15-day 

deadline for filing the information by requesting an arraignment date beyond the 15-day 

timeframe.

A. Failure to File an Information Within 15 Days

“After the preliminary examination, the magistrate will order the defendant ‘held 

to answer’ on the charge or charges stated in the complaint if ‘it appears from the 

examination that a public offense has been committed, and there is sufficient cause to 

believe that the defendant is guilty . . . .’ [Citation.]” (People v. Martinez (2000) 22 

Cal.4th 750, 758 (Martinez).) Significantly, “[w]hen a defendant has been examined and 

committed, . . . it shall be the duty of the district attorney . . . to file in the superior 
5

court . . . within 15 days after the commitment, an information against the defendant . . . .” 

(§ 739, italics added; see also Cal. Rules of Court, rule 4.110(1).) Section 1382 provides 

that if “an information is not filed against that person within 15 days,” then “[t]he court, 

unless good cause to the contrary is shown, shall order the action to be dismissed.” 

(§ 1382, subd. (a)(1).)

In this case, there is no dispute that the information was filed more than 15 days 

after defendant was held to answer. Neither the prosecutor below nor the Attorney 

General in this court argues that there was good cause for the delay in filing. (See 

§ 1382, subd. (a).) Rather, the issue is whether defendant waived the 15-day deadline 

based on his trial counsel’s agreement to have the arraignment set outside the 15-day 

timeframe. In the court below, the prosecutor argued that a waiver had occurred based on 

Murray, and the trial court determined that Murray was “controlling.”

In Murray, the information was filed 16 days after the defendant was held to 

answer. (Murray, supra, 247 Cal.App.2d at p. 732.) The defendant contended on appeal 

that the trial court erred in not dismissing the case. The appellate court concluded that 

defendant had waived his right to an earlier filing under section 1382 because “this late

filing date was specifically requested by defendant’s counsel for his convenience, and . . .

defendant personally agreed to the date.” (Murray, supra, at p. 732.) The appellate court 

further determined that the defendant had forfeited his claim by failing to raise it below. 

(Id. at p. 733.)

In this case, neither defendant nor his trial counsel requested a late filing date. 

Trial counsel and the court discussed only the scheduling of the date for arraignment, not 

the date for filing the information.

In Ciaccio v. Superior Court (1984) 156 Cal.App.3d 130 (Ciaccio), the appellate 

court addressed the relationship between the scheduling of the arraignment and a latefiled information. The trial court in that case had determined that defense counsel’s 
6

“mute acquiescence in the arraignment date chosen by the magistrate constituted a waiver 

of [the defendants’] speedy trial rights.” (Id. at p. 132.)

The appellate court in Ciaccio found no basis for a waiver. The appellate court 

explained that “[t]here is no statutory time for superior court arraignment. [Citation.] 

Section 976 only mandates a defendant be arraigned after the accusatory pleading is filed. 

[Citation.]” (Ciaccio, supra, 156 Cal.App.3d at p. 133, italics added.) “Consequently, 

the magistrate could have selected any arraignment date beyond 15 days of the order 

holding [the defendants] to answer.” (Ibid.)

The appellate court further explained that an objection by trial counsel to the 

arraignment date would have been useless. The appellate court stated: “[E]ven if 

counsel had objected and the magistrate had advanced the date of arraignment, those acts 

would not have assured the preservation of [the defendants’] statutory speedy trial rights. 

The district attorney is alone authorized to file an information on behalf of the People 

[citations], and is the sole authority capable of determining when it will be filed. A 

criminal defendant has no effective means whatsoever of assuring the information is filed 

within the statutory period. Nothing about the magistrate’s order could have alerted 

counsel the People would not comply with their wholly unrelated section 739 obligation. 

Further, no objection on counsel’s part could have influenced the People’s section 739 

‘time to file’ discretion.” (Ciaccio, supra, 156 Cal.App.3d at p. 133.) The appellate 

court accordingly “refuse[d] to impose on counsel a duty to object to an arraignment date 

scheduled more than 15 days beyond the date of the commitment order,” and concluded 

that under section 1382, dismissal of the information was required. (Ciaccio, supra, at 

p. 133.)

Based on Ciaccio and the record in this case, we determine that defendant’s 

motion to dismiss the information should have been granted. At the conclusion of the 

preliminary examination, the court and defendant’s trial counsel discussed the scheduling 

of the arraignment. There was no mention of the filing date for the information. Thus, 
7

regardless of whether defendant’s trial counsel objected, requested, or acquiesced to the 

scheduling of an arraignment date that was more than 15 days after defendant was held to 

answer, “[n]othing about” the scheduling discussion between the court and defendant’s 

trial counsel “could have alerted counsel the People would not comply with their wholly 

unrelated section 739 obligation” to file the information within 15 days. (Ciaccio, supra, 

156 Cal.App.3d at p. 133.) We therefore determine that trial counsel’s conduct in this 

case did not amount to an implied waiver of defendant’s right to have the information 

filed within 15 days of being held to answer.

Relying on People v. McGhee (1987) 193 Cal.App.3d 1333 (McGhee), the 

Attorney General contends that a defendant who “induces the court to set an arraignment 

date beyond the 15-day period . . . impliedly waives his right to a timely filed 

information.” We are not persuaded by the Attorney General’s reliance on McGhee. As 

the Attorney General observes, the appellate court in McGhee concluded that the 

defendant had waived his right to have the information filed within 15 days because, 

among other facts, the defendant waited 14 months to bring the motion to dismiss on the 

first day of trial. (Id. at p. 1344.) In the interim, motions had been filed based upon the 

indictment being used as an accusatory pleading, including two motions by the defendant 

directly addressing the substance of the indictment. (Ibid.)

In contrast, in the instant case, the record does not reflect that defendant treated the 

information as a properly filed or a timely-filed accusatory pleading. Rather, defendant 

filed a motion to dismiss the same day the information was filed.

We are also not persuaded by the Attorney General’s arguments that “[t]here is no 

meaningful distinction between a request for an arraignment date beyond 15 days, . . . 

and a request for a filing date beyond 15 days.” There is a significant legal distinction 

between the information filing date and the arraignment date. Whereas section 739 

requires the prosecution to file the information within 15 days after the defendant is held 

to answer, “[t]here is no statutory time for superior court arraignment.” (Ciaccio, supra, 
8

156 Cal.App.3d at p. 133.) Indeed, “there is no statutory or constitutional requirement 

that the defendant be present in court and arraigned at the same time as an information is 

filed.” (People v. Hale (1957) 156 Cal.App.2d 478, 479-480 (Hale).) In Hale, the 

appellate court concluded that a defendant is not required to be present on the date the 

information is filed and need not be arraigned at that time, and that the trial court erred in 

dismissing the information based on this ground. (Id. at pp. 479-480.)

In sum, we determine that defendant in this case did not waive his right to have the 

information filed within 15 days of being held to answer, based on his trial counsel’s 

discussion with the court about the scheduling of an arraignment hearing outside that 

timeframe.

B. Prejudice

We also determine that defendant has shown prejudice by the trial court’s failure 

to grant the motion to dismiss.

Prior to the April 8, 2014 filing of the complaint in this case, in which defendant 

was charged with first degree burglary, the prosecution approximately two weeks earlier 

on March 26, 2014, filed a complaint in another case (No. SS140723A), which also 

charged defendant with first degree burglary. The single burglary count in this earlier 

March complaint contained allegations identical to the burglary count in the later April 

complaint, including regarding when the offense occurred, the type of property 

burglarized, and the name of the victim. Based on the facts elicited at the preliminary 

examination for the earlier burglary case, it appears the same incident formed the basis 

for the later burglary case. At the close of the April 4, 2014 preliminary examination in 

the earlier case, the court found that there was not sufficient cause to believe defendant 

guilty and defendant was ordered to be discharged. (See § 871.)

A defendant raising the claim of abridgement of his or her rights under 

section 1382 on appeal “must prove not only unjustified delay in bringing his case to trial 
9

but also prejudice flowing from that delay.” (People v. Johnson (1980) 26 Cal.3d 557, 

574; see also Martinez, supra, 22 Cal.4th at p. 755.)

“Section 1387 generally provides a ‘two dismissal’ rule barring further 

prosecution of a felony if the action against the defendant has twice been previously 

terminated according to the provisions of that statute. [Citation.]” (Berardi v. Superior 

Court (2008) 160 Cal.App.4th 210, 218 (Berardi).) With certain exceptions, 

section 1387, subdivision (a) provides: “An order terminating an action pursuant to this 

chapter [which includes section 1382], or Section 859b, 861, 871, or 995, is a bar to any 

other prosecution for the same offense if it is a felony . . . and the action has been 

previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995 . . . .” 

Thus, “ ‘[w]here there are successive dismissals on any of these [statutory] grounds [set 

forth in section 1387], or combinations of them, the order terminating the second action 

operates to bar any third or subsequent prosecution on the same charge unless one of the 

statutory exceptions applies. [Citation.]’ [Citation.]” (Berardi, supra, at p. 218, italics 

omitted.)

The prior case against defendant, No. SS140723A, was previously terminated 

pursuant to section 871 at the conclusion of the preliminary examination, after the court 

found that there was not sufficient cause to believe defendant guilty. The instant case, 

No. SS140860A, involves the same burglary offense as the prior case. As we have 

explained, the court should have granted defendant’s motion to dismiss the instant case 

pursuant to section 1382 based on the prosecution’s failure to file the information within 

15 days under section 739. Because these successive dismissals are based on a 

combination of the statutory grounds set forth in section 1387, subdivision (a) – that is, 

first a dismissal under section 871 and then an erroneous failure to dismiss under 

section 1382 – and because the record does not reflect (nor has the Attorney General 

argued) that a statutory exception applies (see § 1387, subds. (a)(1)-(4), (b), (c)), no third 

prosecution may be brought against defendant on the same burglary charge. (§ 1387, 
10

subd. (a); Berardi, supra, 160 Cal.App.4th at p. 218.) Under the circumstances, the trial 

court’s erroneous failure to dismiss the action against defendant under section 1382 was 

prejudicial. Accordingly, we will order that the action against defendant be dismissed.

IV. DISPOSITION

The judgment is reversed. The matter is remanded to the trial court with 

directions to vacate the order denying defendant’s motion to dismiss pursuant to Penal 

Code section 1382, subdivision (a)(1), and to enter a new order granting the motion and 

dismissing the action against defendant.
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.