ORIGINAL PROCEEDING. Petition for writ of mandate. Steven R. Van Sicklen, Judge, and Henry J. Hall, Commissioner. Petition granted. (Super. Ct. No. BA 338353) (Steven R. Van Sicklen, Judge, and Henry J. Hall, Commissioner).
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
Petitioner Vahan Harutyunyan is charged with grand theft, conspiracy to commit grand theft and with multiple counts of money laundering. He is currently incarcerated in the Los Angeles County Jail, with his bail set at $1,987,000. After appearing three times before Commissioner Henry J. Hall on April 7, 9 and 18, 2008, on April 25, 2008, petitioner's counsel informed the court that petitioner would not stipulate to Commissioner Hall. Over petitioner's objections, the preliminary hearing was continued on April 25, 2008, and May 13, 2008, by Commissioner Hall.
On June 12, 2008, petitioner filed a petition for a writ of mandate in this court, claiming that Commissioner Hall lacked the authority to continue the preliminary hearing and that petitioner was entitled to a dismissal because the preliminary hearing had not been conducted within 10 court days after his arraignment. We denied the petition summarily on July 10, 2008. On September 24, 2008, the Supreme Court granted review, directed us to vacate our order denying the petition and required us to issue an order to show cause why the petition should not be granted.
We issued the order to show cause. We conclude, after considering the oral and written arguments of the parties, that, absent a stipulation, Commissioner Hall had no authority to continue the preliminary hearing. Accordingly, we grant the petition and remand with directions to dismiss the complaint.
In a complaint filed on April 3, 2008, petitioner and five co-defendants were charged with Medicare fraud; the complaint set forth one count of conspiracy to commit grand theft, 24 counts of money laundering and one count of grand theft. The complaint contained special enhancement allegations claiming that over $1 million was taken by the defendants. The same day, an arrest warrant was issued in the amount of $1,987,000.
Petitioner appeared with counsel on April 7, 2008, in Department 30 before Commissioner Hall, who continued his arraignment to April 9, 2008. On April 9, 2008, all six defendants, petitioner included, appeared before Commissioner Hall, who, after taking the defendants' waivers, continued the matter as to all the defendants for arraignment and plea to April 15, 2008. The hearings of April 7 and 9, 2008, were in all respects uncontested. The minute order for the hearing of April 9, 2008, indicates that it was stipulated that Commissioner Hall could hear the cause as a temporary judge.
Petitioner was arraigned on April 15, 2008, and entered not guilty pleas to all the charges. On the same day, Commissioner Hall received favorable "own recognizance" (OR) reports about five of the six defendants, petitioner included. After hearing counsel on the matter of OR releases or in the alternative for a reduction of bail, Commissioner Hall indicated that he was not inclined to release any of the defendants OR. He stated that he would take the request for a bail reduction under submission and rule later that afternoon on this request. All the defendants, including petitioner, requested the bail reduction hearing to be calendared for April 18, 2008.
On April 17, 2008, Commissioner Hall entered a three-page order in which he found that the bail of "$1,987,000 or more is the appropriate bail in this matter."
On April 18, 2008, Commissioner Hall stated that the "[m]atter here as 3 of 10 for preliminary hearing. Request is to continue within the period to April 25, 2008, as 8 of 10. We will trail within the time period as to all defendants to April 25, 2008, as 8 of 10." Petitioner's counsel objected to the bail but Commissioner Hall did not change his ruling. According to a declaration by the deputy district attorney, petitioner's counsel told the court clerk prior to this hearing that "in light of the bail ruling he would no longer stipulate to the Commissioner." This was the first that the deputy heard of any objection to Commissioner Hall.
The hearing on April 25, 2008, commenced with Commissioner Hall stating: "I'm going to refer to a case [citing Foosadas v. Superior Court (2005) 130 Cal.App.4th 649 (Foosadas)]. And in that case at page 656, the Court of Appeal noted as follows: [¶] 'Presiding over a motion to continue a hearing or preliminary hearing conferences are subordinate to judicial duties because they do not raise complex facts and legal issues or contested questions of law.' [¶] So I recognize that there are non-stips in this case as to me, and that's fine. However, I do believe under Foosadas that I can preside over the motion to continue this preliminary hearing and/or proceedings to assign it out." The quotation was not entirely accurate.*fn1 Nor, as we discuss below, was the issue in Foosadas the continuance of a preliminary hearing.
Petitioner's counsel replied that four of the six defendants, including petitioner, opposed a continuance, while two defendants requested a continuance. Thus, counsel argued, "the court is going to have to make a factual finding due to cause. That is not a subordinate duty but a factual finding. And that is specifically something that we would have to stipulate to and would respectfully request that the court reconsider its position." Commissioner Hall declined to change his ruling.
After further remarks by other counsel and the court about bail that are not material to the proceedings before us, petitioner's counsel stated that he would file a habeas petition, that he was not "stipulating," and that he would add the violation of the "ten-day speedy prelim rights" to the habeas petition.
The next item on the agenda was the waiver of time by the two defendants who requested a continuance. Commissioner Hall then found that there was good cause to continue the matter to May 13, 2008, stating that this was a "lengthy, complex case." There were many documents to be reviewed and other issues such as the identity of informants and witnesses to be studied. Commissioner Hall stated: "We'll establish good cause as to the remaining defendants [the four defendants, including petitioner, who objected to the continuance]. This is a matter that should not be litigated twice. There would be no grounds that I could see to ...