People v. Standish
Filed 6/5/06
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Respondent. ) Super. Ct. No. MA025716
__________________________________ )
Story continue from part I …………..
Contrary to the People's argument, however, section 1318 does not govern a magistrate's exercise of discretion whether to grant OR release. The magistrate's discretion whether or not to grant OR release is governed by other provisions ― provisions to which the Legislature could have referred in section 859b had it intended that OR release pursuant to section 859b be discretionary. (Compare §§ 1269c [governing applications for increase or decrease in bail and for OR release]; 1270 [setting out the general circumstances in which defendants may be granted OR release]; 1270.1 [requiring a hearing before scheduled bail may be increased or decreased or OR release granted to defendants charged with specific violent felonies, and specifying factors to be considered by the court]; see also §§ 273.75 and 273.84 [governing OR release in specified domestic violence and spousal abuse cases], 1319 [requiring a hearing prior to OR release in violent felony cases, prescribing circumstances to be considered by the court in such cases, and prohibiting OR release for any person charged with a violent felony who previously failed to appear], 1319.5 [requiring a hearing prior to OR release for parolees, probationers, and persons who previously failed to appear].)
Rather, section 1318 prescribes the terms of the defendant's OR release agreement, including his or her required promise to obey all reasonable conditions imposed by the court. Section 1318 does not govern the court's authority to grant or deny OR release.
In addition, as the Court of Appeal explained, the People's argument, if accepted, would render portions of section 859b a nullity. There would have been no need, for example, for the Legislature to add a specific public safety exception for capital defendants ― let alone a qualification that the latter exception be limited to capital offenses in which the proof is evident and the presumption great ― if the reference to section 1318 conferred upon the magistrate full authority to deny OR release despite the magistrate's having granted the prosecution a continuance of a preliminary examination beyond the 10-day period.
The People cite In re Samano (1995) 31 Cal.App.4th 984 in support of their claim that section 859b does not require OR release in every instance in which an in-custody defendant's preliminary examination is continued for good cause beyond the 10-day period at the prosecutor's request. In that case, however, the request for a continuance came from the defense and not from the prosecution. Two codefendants moved for continuance of the preliminary examination and waived the statutory period, while the other codefendants objected and did not waive time. The reviewing court held that failure to hold the preliminary examination within the statutory period did not compel OR release for the objecting codefendants.
The court acknowledged the general rule that section 859b mandates OR release when the prosecutor secures a continuance for good cause (In re Samano, supra, 31 Cal.App.4th at p. 990), but pointed out that the prosecutor had not requested the continuance. The court emphasized that â€
