RAMOS v. SUPERIORCOURTOFLOS  ANGELESCOUNTY

Filed 1/10/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

            ORIGINAL PROCEEDING.  Petition for a writ of mandate.  David S. Wesley, Judge.  Petition dismissed.

            Michael P. Judge, Public Defender, Michael Many and John Hamilton Scott, Deputy Public Defenders, for Petitioner.

            No appearance for Respondent.

            Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Patrick D. Moran and Shirley S. N. Sun, Deputy District Attorneys, for Real Party in Interest.

_______________

            Penal Code section 859b[1] requires the magistrate to dismiss a felony complaint if a defendant's preliminary hearing is not held within 60 days of the date of the arraignment, plea or reinstatement of criminal proceedings unless the defendant personally waives his or her right to a preliminary hearing within the 60 days.  Section 1050.1, which applies  in cases in which two or more defendants are jointly charged, requires the trial court or magistrate, when good cause is shown by one defendant to continue his or her arraignment, preliminary hearing or trial, to use the continuance, upon motion of the prosecuting attorney, to constitute good cause to continue the remaining defendants' cases so as to maintain joinder.

            Does good cause, attributed from one jointly charged codefendant to another pursuant to section 1050.1, permit the magistrate to set or continue the preliminary hearing for both defendants beyond the 60 days prescribed by section 859b in the absence of a personal waiver of the 60-day rule by both defendants?  Because the language in section 859b is mandatory and nothing in section 1050.1, enacted as part of Proposition 115 in 1990, signals an intent to provide a good-cause exception to the strict 60-day rule in section 859b, the answer is no.  To hold otherwise would constitute a rewriting of the statutes, a task for the Legislature (or the voters) not for the courts.  Accordingly, because Maria Ramos's preliminary hearing was continued at the request of her codefendants to a date more than 60 days after her arraignment, although Ramos had not waived section 859b's 60-day requirement, the superior court should have granted her writ petition and dismissed the amended felony complaint against her.  Nonetheless, because Ramos has now personally waived her right to a preliminary hearing within the 60-day period specified in section 859b, her petition for writ of mandate is dismissed as moot.[2]

PROCEDURAL BACKGROUND

            1.  The Complaint and Arraignment

            On February 21, 2006 a felony complaint was filed against Ramos alleging she and Dolares Gomez had participated as accessories after the fact (§ 32) in the murder of Anselmo Sanchez Reyes.  The same complaint charged Efrain Macias Ramos with Reyes's murder (§ 187) and specially alleged he had personally used a deadly and dangerous weapon, a knife, in committing the offense (§ 12022, subd. (b)(1)).

            At Ramos's arraignment on February 21, 2006 the public defender was appointed to represent her; and Ramos pleaded not guilty to the accessory-after-the-fact charge.  Ramos's preliminary hearing, together with that of codefendants Efrain Ramos and Gomez, was scheduled for March 3, 2006.

2.  Ramos's Initial Consent to Continue the Preliminary Hearing and Later Opposition to an Additional Continuance; the Amended Complaint

            On March 3, 2006 the preliminary hearing for all three defendants was continued, with Ramos's consent, to April 6, 2006.  On April 6, 2006 Efrain Ramos requested an additional four-week continuance of the preliminary hearing on the ground he had just received discovery, in particular tapes and toxicology reports, he needed to review.  Ramos opposed any further continuance and, in the alternative, moved to sever her case from that of her codefendants.  (Gomez joined in Ramos's objection.)  Ramos argued that, if the preliminary hearing were set or continued more than 60 days after her arraignment, dismissal of the complaint against her was required absent her personal waiver of section 859b's 60-day rule.  The magistrate (Hon. Jessica Silvers) granted the continuance over Ramos's objection; denied Ramos's motion to sever; and scheduled the preliminary hearing for all three defendants for May 3, 2006.  The magistrate reasoned that under section 1050.1 the good cause found for the continuance as to Efrain Ramos could be used to continue the preliminary hearing as to Ramos (and Gomez) more than 60 days after arraignment.

            On April 12, 2006 the felony complaint was amended to additionally charge Ramos and Gomez with Reyes's murder and to specially allege they had used a deadly or dangerous weapon, a knife, in committing the offense.  Ramos pleaded not guilty to the murder charge and denied the special allegation on May 3, 2006.[3]

            3.  The Denial of Ramos's Motion to Dismiss

            On April 25, 2006, the first day beyond the 60-day period specified in section 859b,[4] Ramos moved to dismiss the amended felony complaint against her because her preliminary hearing had not been held within 60 days of the date of her February 21, 2006 arraignment.  The superior court (Hon. Susan Speer) denied the motion on the same day. 

4.  The Subsequent Continuances of the Preliminary Hearing and Ramos's Objections; Ramos's Writ Petition in the Superior Court

            On May 3, 2006, the scheduled date for the twice-continued preliminary hearing, both Gomez and Efrain Ramos requested a further continuance of the preliminary hearing:  Gomez on the ground she had just obtained new appointed counsel, and Efrain Ramos based on his recent receipt in discovery of additional tapes that needed to be transcribed.  Over Ramos's objection, the magistrate (Hon. Jessica Silvers) continued the hearing to June 7, 2006.  The magistrate also once again declined to sever Ramos's case from that of her codefendants.

            On May 24, 2006 Ramos filed in the superior court a petition for writ of prohibition, seeking an order barring any further proceedings against her on the amended felony complaint and directing the magistrate to dismiss that complaint under section 859b on the ground her preliminary hearing had not taken place within 60 days of the date of her arraignment.[5]  According to Ramos, because she had declined to waive her right to a preliminary hearing within 60 days of her arraignment, the magistrate was required to dismiss the complaint against her once the hearing was not held within the statutorily mandated time; and there was no exception to the 60-day rule based on a finding of good cause.

            On June 7, 2006 both Efrain Ramos and Gomez requested yet another continuance of the preliminary hearing on the grounds further review of discovery was required and Gomez's counsel was engaged in trial.  Ramos again objected.  The court found good cause to continue the hearing to June 28, 2006.

            On July 7, 2006 the superior court (Hon. David Wesley) entered an order denying Ramos's petition for a writ of prohibition.  According to the court, â€