Watch the Clock: the 10-day and 60-day Rules for Preliminary Hearings

• Publication year: 2018
• Author: By Mark Hanasono

WATCH THE CLOCK: THE 10-DAY AND 60-DAY RULES FOR PRELIMINARY HEARINGS

By Mark Hanasono^*

I. Introduction

The preliminary hearing can be one of the most critical stages of a felony case. It is the first, and often the only, opportunity to observe the witnesses testify. It allows both the prosecution and the defense to assess the strengths and weaknesses of the case. Above all, it provides the defendant with his proverbial day in court.

Along with these features, the primary purpose of the preliminary hearing is to protect the accused from defending unsupported charges at trial. With this recognition that criminal allegations need to be tested at an early stage of the case, statutory provisions exist to prevent prolonged periods of incarceration for the accused prior to the preliminary hearing. Penal Code section 859b effectively provides a defendant with the right to a speedy preliminary hearing.¹

The objective of this article and self-study test is to review the law governing preliminary hearings. Readers will learn specifically about the mechanics of section 859b, which governs the time periods within which a preliminary hearing must be conducted. This article will also discuss two new cases, Davis v. Superior Court and People v. Figueroa, which examine the time restrictions of section 859b, as triggered by the timing of the events of the arraignment, the plea, and the reinstatement of proceedings after suspension pending a mental competency determination.²

II. Preliminary Hearing Basics

A felony case may begin with the prosecutorial agency either filing a criminal complaint or a grand jury indictment.³ If a complaint is filed, a preliminary hearing is conducted before a magistrate to determine if there is sufficient or probable cause to hold the defendant to answer for trial.⁴ If the magistrate does not find sufficient evidence to support the charge, the complaint is dismissed.⁵ Before the preliminary hearing, or prior to holding the defendant to answer, the magistrate may also reduce a felony charge to a misdemeanor charge when the offense is punishable either as a misdemeanor or felony.⁶ The preliminary hearing shall be completed in one session or the complaint shall be dismissed, unless the magistrate finds good cause to postpone it, or the defendant waives the right.⁷ A defendant may also personally waive his or her right to a preliminary hearing.⁸

The preliminary hearing is an evidentiary hearing. The prosecution must present evidence that the defendant committed a felony.⁹ The evidence necessary to support a holding order is a state of facts that would lead a person of ordinary caution to have a strong suspicion of the defendant's guilt.¹⁰ The magistrate must only decide whether there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.¹¹ The California Supreme Court has stated, "To reject the prosecution evidence, either it must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible."¹² Magistrates can make factual and legal findings at the preliminary hearing. Legal findings are not binding on the prosecution after the preliminary hearing, while factual findings are binding.¹³

Generally, only evidence admissible under the Evidence Code can support a holding order.¹⁴ However, unique to preliminary hearings is the admissibility of hearsay elicited from the sworn testimony of qualified police officers.¹⁵ Amended by Proposition 115, which was the initiative measure approved in 1990, section 872(b) provides that "the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted."¹⁶

A preliminary hearing shall not be used for the purpose of discovery.¹⁷ However, the defense has the right to call witnesses to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or statement of a declarant to which a prosecution witness testified.¹⁸ The defense may present exculpatory hearsay evidence through a qualified officer under section 872(b).¹⁹ The defense may also make motions in conjunction with the preliminary hearing, including a motion to suppress evidence, a motion to exclude the defendant's confession, and a motion to exclude the out-of-court identification of the defendant.

III. Time Limitations: the 10-Court Day and 60-Day Rules

Section 859b provides three components associated with the time restrictions for a preliminary hearing. First, under paragraph 2 of section 859b, the parties have a right to a preliminary hearing "at the earliest possible time"; specifically, within "10 court days of the date on which the defendant is arraigned or pleads, whichever occurs later."²⁰ This paragraph is known as the "presumptive 10-court day rule."²¹ Paragraph 2 seems to provide a directive more than anything else. A complaint should not be dismissed for violating its requirement. Paragraph 2 does not provide for a remedy for a violation of its prescription, unlike the other 2 components of section 859b.

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The second component, under paragraph 3, requires that when the defendant is in custody, "the magistrate shall dismiss the complaint if the preliminary hearing is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings [under section 1367 et seq.]."²² This paragraph establishes the "mandatory 10-court day rule."²³ The time restriction under paragraph 3 is specifically limited to in-custody defendants. If the defendant is out of custody, he or she would not be entitled to a dismissal.²⁴ Moreover, the defendant must have "remained in custody for 10 or more court days solely on that complaint."²⁵ The defendant is therefore not entitled to dismissal of the complaint, if he or she is in custody on other cases.²⁶

There are two exceptions to the remedy of dismissal for a violation of the restriction under paragraph 3. First, the defendant may personally waive his right to a preliminary hearing within the 10 court days. Under this scenario, the preliminary hearing would be continued, and the defendant would remain in custody. Second, the prosecution may establish good cause for a continuance beyond the 10 court day period.²⁷ If the prosecutor does so, the complaint is not to be dismissed, but the defendant is entitled to release.²⁸ The release is limited to the period between the order granting the continuance and the conclusion of the preliminary hearing, if the defendant is held to answer.²⁹

The defendant is not entitled to release in the following situations: (1) the defendant requests the continuance beyond the...