P v. Smith (1st Dist., Div.4) Either Party is Presumptively Entitled to a Continuance of the Preliminary Examination to a Date Within the 10-Day

This is a decision unlikely to find much applause among trial court judges.

Mr. Smith pleaded not guilty to possession of heroin on February 24, 2014, and exercised his right to have a preliminary examination within 10 court days of his plea (so at the latest, March 10).  The preliminary examination was set for March 6, 2014.  On March 6, the state moved the court to continue the preliminary hearing to March 10 because the crime lab hadn't yet tested the alleged heroin.  The magistrate, finding no good cause for a continuance, denied the state's motion and dismissed the case.

The state appealed and the First District reverses, holding the magistrate erred because the notice and good cause requirements of Penal Code section 1050 do not apply within the 10-day statutory period for a speedy preliminary hearing.

The panel analyzes the intersection of PC 1050, the statute governing continuances, and PC 859b, the statute governing the timing of preliminary hearings and the consequences of failing to adhere to these times.  Importantly, 1050(k) states that 1050, which requires a party give notice and demonstrate good cause to receive a continuance, does not apply within the 10-day prelim period of 859b.  The consequence is that either side is presumptively entitled to a continuance within the 10-day period.  No notice required; no good cause required.

The reason for the introductory sentence above is that many mid-sized courts reserve specific days of the week to hold preliminary hearings.  For example, a court may hear motions and hold sentencing hearings on Mondays, conduct jury trials on Tuesdays, Wednesdays, and Thursdays, reserving Fridays for preliminary hearings.  As defendants are arraigned, by necessity, every day, inevitably the 10th day of the preliminary hearing period will not necessarily fall on a Friday.  In the past, a magistrate would hold the parties' feet to the fire on "prelim day", not wanting to have to inconvenience a panel of jurors by making them wait while conducting preliminary examinations brushing up against the 10 day period.

Now, under this new rule, a magistrate cannot deny a continuance within the 10 day period, meaning they must necessarily cede control over more of their calendar to accommodate preliminary hearings within the 10-day period.