Lacayo v. Superior Court

Filed 10/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
KAREEM LACAYO,
Petitioner,
v. A160793
THE SUPERIOR COURT OF THE
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO, Super. Ct. No. 232741)
Respondent;
THE PEOPLE,
Real Party in Interest.
Petitioner Kareem Lacayo (Lacayo) seeks a writ directing the trial
court to set aside an information based on the court’s failure to hold his
preliminary hearing within 60 days of his arraignment as required by law.
The People concede, and we agree, the court erred. We therefore issue a
peremptory writ of mandate directing the court to set aside the information.
FACTUAL AND PROCEDURAL BACKGROUND
On February 24, 2020, Lacayo was arraigned on a complaint charging
him with possession of a firearm by a felon and other related felonies. He
waived his right under Penal Code section 859b1 to a preliminary hearing
within 10 court days of his arraignment (the 10-court-day rule) but did not
1 All further, undesignated statutory references are to the Penal Code.
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waive his right under the same statute to a preliminary hearing within 60
days of his arraignment (the 60-day rule).
On April 24, after the Governor proclaimed a state of emergency due to
the COVID-19 pandemic, the parties appeared in court and announced they
were ready to proceed with the preliminary hearing. The trial court
acknowledged it was “the 60th day” after arraignment but continued the
preliminary hearing to April 28, citing “the unexpected and unprecedented
global pandemic” and the lack of prejudice to Lacayo, who had bailed out of
custody. Defense counsel objected to the continuance, but the court stated
there was “not only good cause” to continue the hearing “but more
importantly exceptional, extraordinary circumstances” “given the global
pandemic crisis we’re in.”
At the April 28 preliminary hearing, Lacayo moved to dismiss the case
on the ground the trial court violated the 60-day rule. The court denied the
motion, stating the lack of prejudice to Lacayo and “extraordinary
circumstances” justified the extension. The court proceeded with the
preliminary hearing and held Lacayo to answer. The People filed an
information on May 5.
On June 18, Lacayo moved to set aside the information under
section 995 based on the trial court’s violation of the 60-day rule. The People
filed a “non-opposition” in which it conceded the 60-day-rule “requires
dismissal of the [i]nformation,” but asked the court to dismiss the case
without prejudice and to make a good cause finding for purposes of section
1387 subdivision (c)(1), which provides that a dismissal order does not bar
the People from re-filing charges if “good cause is shown why the preliminary
examination was not held within 60 days from [arraignment].”
2
On August 5, the trial court denied Lacayo’s motion to set aside the
information, stating there was good cause to extend the 60-day deadline. In
doing so, the court added specific facts to establish good cause by explaining
in great detail how the dangers posed by COVID-19 and the ensuing
countermeasures severely disrupted court operations.2
Lacayo filed a petition for a peremptory writ of prohibition or other
relief in our court, challenging the trial court’s order denying his motion to
set aside the information. We requested an informal opposition and reply,
and issued notice under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36
Cal. 3d 171, 180 (Palma) that we may issue a peremptory writ in the first
instance.
DISCUSSION
“The 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 . . . unless the
defendant personally waives his or her right to a preliminary examination
within the 60 days.” (§ 859b.) “ ‘[O]n its face section 859b’s 60-day rule is
absolute and requires dismissal of a felony complaint against a nonconsenting
defendant whose preliminary hearing is set or continued more than 60 days
from arraignment.’ ” (Del Castillo v. Superior Court (2019) 38 Cal. App. 5th
2 Because the court declined to dismiss the case, it did not decide
whether any dismissal would be with or without prejudice under section 1387
subdivision (c)(1). The court noted at the hearing that the prosecution could
always re-file charges at least once, and expressed agreement with defense
counsel’s statement it was “premature to address the issue,” which “would be
more properly addressed” in the event there was a re-filing and “a second
dismissal and an attempt to [re-file] again.” The parties do not discuss in any
papers submitted to our court whether any dismissal should be with or
without prejudice under section 1387 subdivision (c)(1).
3
1117, 1120, italics added, quoting Ramos v. Superior Court (2007)
146 Cal. App. 4th 719, 730.) There is no good-cause exception to the 60-day
rule: “Although section 859b includes a good-cause exception to the 10-court-
day rule, there is no exception from the 60-day rule, which indicates the
Legislature did not intend a good-cause exception can apply to the 60-day
rule. [Citation.]” (Del Castillo v. Superior Court, supra, 38 Cal.App.5th at
p. 1120.)
Since a state of emergency was declared in March, the Governor and
the Chief Justice of California have issued a series of statewide emergency
orders extending certain court deadlines in response to the COVID-19
pandemic. (Bullock v. Superior Court (2020) 51 Cal. App. 5th 134, 141, 142
(Bullock).) The People concede the emergency orders did not extend or
address the 60-day rule. Further, although the Court of Appeal in Bullock
held in the context of the pandemic that the time to hold a preliminary
hearing may be extended where a “particularized showing” of good cause is
made, the Bullock court addressed only the 10-court-day rule—to which the
good-cause exception applies—not the 60-day rule, for which there is no good-
cause exception. (Id. at p. 141.) In other words, the Legislature has already
settled California law in favor of a strict bright-line 60-day rule (Stats. 1981,
c. 854, pp. 3276-3277, § 1), and neither the emergency orders nor subsequent
case law supports the position the trial court took in this case—that a
particularized good cause showing could justify extending the preliminary
hearing beyond 60 days. We conclude that because the 60-day rule is
absolute and there is no good cause exception to the rule, the court should not
have continued the preliminary hearing beyond April 24 without a personal
waiver from Lacayo, and thereafter erred in denying his motion to set aside
the information.
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DISPOSITION
The accelerated Palma procedure (Palma, supra, 36 Cal. 3d 171) is
appropriate here because “petitioner’s entitlement to relief is so obvious that
no purpose could reasonably be served by plenary consideration of the
issue . . . .” (Ng v. Superior Court (1992) 4 Cal. 4th 29, 35.) Let a peremptory
writ of mandate issue directing respondent superior court to vacate its
August 5, 2020 order denying petitioner’s section 995 motion, and to issue a
new order granting the motion and setting aside the information. Our
decision is immediately final as to this court. (Cal. Rules of Court,
rule 8.490(b)(2)(A).)
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_________________________
Petrou, J.
We concur:
_________________________
Siggins, P.J.
_________________________
Fujisaki, J.
A160793/Lacayo v. Superior Court of City and County of San Francisco
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Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Brendan Conroy
Counsel: Manohar Raju, Public Defender, Matt Gonzalez, Chief
Attorney, Dorothy Bischoff and William Helvestine, Deputy
Public Defenders, for Petitioner.
Chesa Boudin, District Attorney, Allison MacBeth and
Natalie Fuchs, Assistant District Attorneys, for Real Party
in Interest.
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