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People v. Figueroa

California Court of Appeals, Sixth District

May 9, 2017

THE PEOPLE, Plaintiff and Appellant,
v.
RAFAEL VILLANUEVA FIGUEROA, Defendant and Respondent.

         Santa Clara County Superior Court No. C1361770 Honorable Daniel Nishigaya Trial Judge

          Attorney for Defendant and Respondent Rafael Villanueva Figueroa: Laurie Wilmore under appointment by the Court of Appeal for Respondent

          Attorneys for Plaintiff and Appellant The People: Kamala D. Harris Attorney General Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Laurence K. Sullivan Supervising Deputy Attorney General Bridget Billeter Deputy Attorney General

          RUSHING, P.J.

         A criminal defendant and the People have the right to have a preliminary examination (or, preliminary hearing) set “at the earliest possible time.” (Pen. Code, § 859b.)[1] And as part of the statutory scheme ensuring a defendant's constitutional right to a speedy trial, “[t]he magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings [after a doubt is declared as to the defendant's competence], “unless the defendant personally waives [that] right.” (Ibid.)

         Here, defendant Rafael Villanueva Figueroa was charged in July 2013 with two felonies (with gang enhancements) and one misdemeanor, and he waived arraignment. The next month, and before he entered a plea, the court declared a doubt as to defendant's competence to stand trial and suspended criminal proceedings pursuant to section 1368. Seven months later, in March 2014, the proceedings were reinstated. Shortly afterward, defendant was advised by the court-erroneously, as we will hold-that he was entitled to have a preliminary hearing within 60 days of reinstatement of the proceedings, and defendant personally waived that purported right. In a hearing the next month, he pleaded not guilty, but he did not waive -nor was he asked to waive-the setting of a preliminary hearing within 60 days of the entry of his plea. After a long history of continuances, defendant moved to dismiss the complaint, arguing that his right under section 859b to have a preliminary examination set within 60 days of his plea had been abridged. The court granted the motion on October 21, 2015.

         The People appeal the dismissal order, arguing that defendant had expressly waived his rights under section 859b by waiving the purported right to the setting of the preliminary hearing within 60 days of reinstatement of the criminal proceedings. We conclude that any purported waiver by defendant was ineffective because the 60-day period required under section 859b had not commenced at the time it was made. Because defendant had not entered a plea prior to suspension of criminal proceedings, the 60-day period for setting the preliminary hearing was not triggered by the subsequent reinstatement of proceedings; defendant's later not guilty plea was the triggering event. The absence of defendant's express personal waiver after he pleaded not guilty and the passage of more than 60 days compelled dismissal of the complaint. We will therefore affirm.

         FACTS

         The parties concur that the facts underlying the criminal proceedings herein are not relevant to the issues on appeal.

         PROCEDURAL BACKGROUND

         On July 23, 2013, the Santa Clara County District Attorney filed a complaint, alleging that defendant committed two felonies, possession of a billy (§ 22210; count 1) and bringing or sending a deadly weapon into jail (§ 4574, subd. (a); count 2), and one misdemeanor, using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3). The District Attorney also alleged that counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).

         On August 14, 2013-after defendant's waiver of arraignment and prior to his entering a plea-the court declared a doubt as to defendant's mental competency pursuant to section 1368 and suspended criminal proceedings. There were 10 intervening hearings in which defendant appeared while proceedings were suspended. On the 10th such hearing, on March 12, 2014, the court, after receiving the reports of two mental health professionals, found defendant competent and reinstated criminal proceedings. The court scheduled a further hearing for March 24, 2014.

         Defendant, who had been out of custody on bail since September 13, 2013, appeared with counsel at the March 24, 2014 hearing. Defense counsel requested a two-week continuance to facilitate discussions with the District Attorney's office. The court stated its understanding that there needed to be a preliminary examination scheduled by April 12, 2014, “unless there's a new 60[-]day time waiver.”[2" name="ftn.FN2" id= "ftn.FN2">2] Defense counsel stated that her client was prepared to waive time. The court and defendant then had the following exchange: “[The Court:] Mr. Villanueva-Figueroa, on your felony case that is now back after criminal proceedings were reinstated you have a right to have a preliminary hearing begin within 60 days after the date that the criminal proceedings were reinstated. [¶] Do you understand that you have that right? [¶ Defendant:] Yes. [¶ The Court:] Will you give up that right today? [¶ Defendant:] Yes. [¶ The Court:] All right. Thank you. So there is a 60[-]day time waiver.” The court then scheduled a further hearing for April 10, 2014.

         On April 10, 2014, defense counsel stated that her client would be pleading not guilty and that “[t]ime is waived. Have the matter set for [a] preliminary hearing.” In the following exchange, the court then obtained defendant's personal waiver of the 10-court-day requirement for commencement of a preliminary hearing: “[The Court:] On that case we'll enter pleas of not guilty today. The allegations will be denied. [¶] Sir, you have the right to have your preliminary hearing begin within ten court days of the date that we entered a not guilty plea on your behalf. [¶] Do you understand that? [¶ Defendant:] Yes. [¶ The Court:] Do you give up that right? [¶ Defendant:] Yes. [¶ The Court:] So the ten[-]day rule is waived.” The court then scheduled a preliminary hearing for April 30, 2014.

         At defense counsel's request, on April 25, 2014, the court vacated the preliminary hearing. Eight continuances of the proceedings followed.[3] At a further hearing on March 13, 2015, in which defendant and his counsel were present, the court stated its understanding, confirmed by defense counsel, that pleas had previously been entered. The court then inquired, “Time is waived?” Defense counsel responded: “Time is waived. Thank you.” No direct inquiry of defendant was made at this proceeding.[4] The court set a preliminary examination for June 10, 2015. The matter was twice continued further. On the second occasion, the case was continued to October 14, 2015, for a hearing on defendant's anticipated motion to dismiss pursuant to section 859b.

         After the filing of briefs in support of, and in opposition to, defendant's motion to dismiss, the court heard argument on the motion on October 14, 2015. On October 21, 2015, the court announced its decision to grant the motion to dismiss. It filed a thorough, well-reasoned order on the same date.

         DISCUSSION

         I. Dismissal of the Complaint Was Required Under Section 859b

         A. Introduction

         The crux of this case is whether defendant gave an effective personal waiver of his right to a timely preliminary examination. Defendant contends that under section 859b, he was entitled to have a preliminary examination on or before June 9, 2012-60 days after he entered a not guilty plea. The only exception precluding dismissal would have been if he had personally waived that right, which he contends he did not. The People argue that defendant did personally waive his rights under section 859b by waiving the purported right under the statute to have the preliminary examination on or before May 12, 2014-60 days ...


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