Expert Advice

By Glen T. Jonas
     
      Criminal Procedure
      Get Out of Jail, Free
      Your client is held in custody on $1 million bail, and the court refuses to reduce the bail or release him on his own recognizance. Can you secure his release without anyone posting bail on his behalf?
      Peruse California Penal Code section 859b and People v. Standish (38 Cal. 4th 858 (2006)) and you will find that the answer is "yes"--under certain circumstances.
      Pursuant to section 859b, a defendant in custody who is charged with a felony is entitled to a preliminary hearing within ten court days. The purpose of that statutory provision is to eliminate prolonged incarceration without a judicial determination of probable cause merely because the defendant is unable to post bond to gain freedom.
      A court can continue the preliminary hearing past the ten-day period either with a time waiver from the defendant or based on a good cause need presented by either the prosecution or a codefendant.
      The ten-day requirement--and the fact that it can be continued over the objection of a defendant--is widely known. But what surprises many judges, prosecutors, and defense attorneys is that though a court is not required to dismiss the case, it must release the defendant on his or her own recognizance--that is, O.R.--regardless of the crime or bail amount, with only limited exceptions. For example, a defendant charged with attempted murder must be released O.R. if the preliminary hearing is continued past the ten-day period without his or her consent.
      The only exceptions are when a defendant is charged with a capital offense, a necessary witness cannot be examined because of the defendant's actions, counsel is ill or unexpectedly engaged in a jury trial, or unforeseen conflicts of interest require appointment of new counsel.
      However, the mandatory O.R. release is triggered only if the prosecution requests the continuance, as opposed to a codefendant. (In re Samano, 31 Cal. App. 4th 984 (1995).) The reason for this rule is that good cause for a continuance for one defendant is good cause for all defendants, including those who object. Therefore, a codefendant's request for a continuance "should not inure to the detriment of the People with the nonmoving co-defendants as unintended beneficiaries." (31 Cal. App. 4th at 990.) Otherwise, a defendant could scheme to secure the release of his or her codefendants by obtaining a continuance over the "objection" of the others.
      What if the court grants a prosecution continuance over the defendant's objection and refuses to release the defendant? The trial court and the court of appeal in Standish both ruled that the defendant's statutory right to O.R. release pending a preliminary hearing set after the ten-day deadline is a substantial right. They held that violating that right renders the ensuing incarceration illegal and entitles the defendant to dismissal of the information through a motion pursuant to California Penal Code section 995.
      However, the California Supreme Court in the Standish case recently reversed that ruling. It held instead that failure to release the defendant does not violate a substantial right, because the Legislature did not dictate the remedy of dismissal in section 859b. In addition, although the defendant would be released O.R., he or she could be reincarcerated after the preliminary hearing, because the finding of probable cause is a changed circumstance warranting reconsideration of the custody status. Thus, it held, dismissal is too strong a remedy for the violation.
      Professing great faith in the trial courts, the California Supreme Court in Standish noted that it does "not anticipate that courts nonetheless will defy our holding and refuse to release the defendants." (38 Cal. 4th at 887.) But if they do, the defendant's only remedy is to seek an emergency writ of habeas corpus and apply for immediate release while the petition is pending.
      To block the release of the defendant, the prosecution may simply dismiss and refile the case; the defendant will then remain in custody as the process starts over. When a felony has been dismissed twice, the second dismissal bars future prosecution on the charges, unless the basis for the dismissal falls within a limited class of exceptions.
      Therefore, when confronted with a need to continue a preliminary hearing, the prosecution must decide whether it is better to risk a defendant's release--or preserve its two bites at the apple.
     
      Glen T. Jonas (crimattrny@aol.com), a partner at Jonas & Driscoll LLP in Los Angeles, practices in the area of criminal defense.
     

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