Stanford Law School - Robert Crown Law Library

Filed 6/5/06






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Appellant,

S129755

v.

Ct.App. 2/3 B166344

JARED JACOB STANDISH,

Los Angeles County

Defendant and Respondent.

Super. Ct. No. MA025716



Two principal issues are presented in this case. The first is whether

defendant was entitled to be released from custody on his own recognizance (OR),

subject to reasonable conditions, when his preliminary examination was continued

for good cause beyond the 10-day period specified in Penal Code section 859b.1

The second question needs to be reached only if we answer the first

question in the affirmative. That question is whether the failure to grant defendant

OR release pending his preliminary examination constituted a violation of a

substantial right entitling him to have the information set aside pursuant to section

995.


1

Subsequent statutory references are to the Penal Code unless otherwise

indicated.

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For the reasons explained below, we conclude defendant was entitled to OR

release when the preliminary examination was continued for good cause, but that

the court’s failure to grant him OR release pending the preliminary examination

did not amount to denial of a substantial right at the preliminary examination

within the meaning of section 995, in the absence of evidence that the error

reasonably might have affected the outcome of that hearing.

I

Testimony introduced at the preliminary examination indicated that, on an

occasion during the first week of April 2002, defendant held his two-year-old

daughter over a second-floor balcony railing, while neighbors urged him to bring

the child to safety. On April 5, 2002, defendant killed his wife’s cat. His daughter

witnessed some of the events constituting the assault on the cat. A neighbor,

Annette Madison, who had witnessed the child-dangling incident, found the

headless body of the cat on her balcony. Madison telephoned the police, and

defendant was arrested. The Court of Appeal surmised from an incomplete record

that a complaint was filed charging defendant with criminal offenses arising from

the two incidents.

After a short time in custody, defendant was released on bail. Upon his

return home, he saw Madison as she approached her apartment, and stated,

“Whoa, aren’t you scared?” Defendant then attacked his wife, hitting her in the

face with his fist. Madison again telephoned for police assistance. Defendant

accused Madison of having placed him under a spell, adding that she had broken

up his family and that he planned to cut her throat. He accompanied the threat

with a gesture, drawing his finger across his throat. Defendant was arrested, and

apparently in mid-April a complaint was filed charging new criminal offenses, and

the two cases were consolidated.

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Defendant was placed in custody at the time of his second arrest in April

2002. He remained in custody but proceedings on the mid-April complaint were

suspended for an evaluation of his mental competency pursuant to section 1368.

In late November or early December 2002, he was found competent to stand trial,

whereupon criminal proceedings resumed. The complaint was dismissed because

the prosecution was unable to proceed without Madison, who was unavailable as a

witness. The prosecutor refiled the complaint on December 11, 2002, charging

defendant with two felony offenses: cruelty to an animal (§ 597, subd. (a)), and

making a criminal threat (§ 422). The complaint also charged a misdemeanor,

willful cruelty to a child. (§ 273a, subd. (b).) It is the refiled complaint that is the

subject of the present appeal.

On December 24, 2002, the prosecutor moved for a continuance of the

preliminary examination. The motion was made on the ninth of the 10 court days

within which a preliminary examination must be held if a defendant is in custody.

(§ 859b.) The prosecutor reported that, despite having been subpoenaed, Madison

was out of the state on vacation and would not be available as a witness until

“after the holidays.”

Defense counsel objected to the continuance, asking in the alternative that

defendant “be released OR if the court grants a continuance.” Defense counsel

referred to various circumstances in support of his request for OR release,

including defendant’s having been in custody without a probable cause

determination since the previous April — approximately eight months — and his

currently taking medication “that addresse[d] the issues he had before.” The

magistrate declined to grant OR release, however, stating “[r]ight now I’m not

inclined to release him on his own recognizance. I might have considered that, I

suppose, if this is really a medical issue and I had some sort of competent medical

testimony. But the file is replete with incidents that obviously cause great

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concern.” The magistrate granted a continuance until January 7, 2003, but also set

the case for hearing on January 3 in the event Madison should be available then,

and also for review of the amount of bail.

On December 31, 2002, another hearing occurred before a different judge.

At this hearing, defense counsel moved for dismissal or at least for defendant’s

release on OR pursuant to section 859b. The magistrate denied the request for OR

release, refusing to overturn the order of another judge. (See In re Alberto (2002)

102 Cal.App.4th 421, 426-428.) The magistrate stated he would rule on the

motion to dismiss on the date set for the preliminary examination.

On January 7, 2003, the date of the preliminary examination before the

original magistrate, defense counsel moved for dismissal pursuant to section 859b,

arguing that the prosecution had failed to show good cause for the continuance,

because the preliminary examination could have proceeded with the testimony of

the arresting officer. Defendant also moved for OR release under the authority of

section 859b, stating “his preliminary hearing could have and should have

occurred under Proposition 115 within the time period and there should not have

been a good cause finding to go outside the period.” The prosecutor responded

that the officer who could have testified was not available for the December 24,

2002 hearing.

The magistrate denied the motion for dismissal, stating there had been good

cause for the continuance and adding: “I would be at a loss to understand[] how I

can grant the motion anyway because I’m the one that found good cause on

December 24 to continue today’s date.” At the conclusion of the preliminary

examination, the prosecution added a fourth count, felony child abuse (§ 273a,

subd. (a)), and a fifth count, spousal battery, a misdemeanor. (§ 243, subd. (e)(1).)

The magistrate held defendant to answer. Defense counsel renewed his motion for

dismissal or OR release pursuant to section 859b. The prosecutor responded: “I

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believe 859b was something that needed to be addressed prior to preliminary when

the court found good cause. That was an argument that was made at that time. It

was subsequently made . . . . However that particular code section was not cited to

this court on December 24. It went back to Judge Ogden on January 3rd. [¶] Judge

Ogden refused to re-hear something this court made a finding on . . . .” The

magistrate, evidently agreeing, set bail at $175,000.

An information was filed on January 21, 2003, charging defendant with

cruelty to an animal (§ 597, subd. (a)), cruelty to a child (§ 273a, subd. (b)),

making criminal threats (§ 422), child abuse (§ 273a, subd. (a)), and battery upon a

spouse or cohabitant. (§ 243, subd. (e)(1).) The information also alleged as

enhancements that defendant personally used a deadly weapon when committing

the offense of cruelty to an animal (§ 12022, subd. (b)(1)), and that the criminal

threats and spousal battery occurred while defendant was released from custody on

bail. (§ 12022.1.)

On February 27, 2003, defendant moved to set aside the information

pursuant to section 995. He contended it was “questionable” whether good cause

justified the December 24, 2002 continuance of the preliminary examination, and

that he had not been legally committed, because he was held in illegal custody in

violation of section 859b. He urged that section 859b required that he be released

on the date the continuance was granted. The prosecution countered that

defendant had waived his claim by failing to refer to section 859b on

December 24, that defense counsel had agreed to the continuance, and that

defendant acted improperly in setting the matter for hearing before another judge

on December 31 and “did not take all necessary steps to preserve [] the alleged

error made on December 24, 2002.” The prosecution’s points and authorities

apparently conceded that the magistrate would have been required to grant a timely

motion for OR release: “The People concede that had the 859b OR release issue

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been raised prior to the preliminary hearing and after the continuance was granted

consistent with Penal Code Section 1318, the defendant would have been eligible

for release and would have been released at that time pending preliminary exam.”

On March 13, 2003, the superior court granted defendant’s motion to set

aside the three counts in the information that were based on the December 11,

2002, complaint, concluding that “there was a denial of the defendant’s rights

under 859b; that the defendant should have been released on his own

recognizance, and that based upon that denial, the 995 motion should be granted.”

At a further hearing held on March 18, 2003, the court set aside the

remaining two counts that had been added at the conclusion of the preliminary

examination.

The People appealed from the judgment of dismissal, and the Court of

Appeal affirmed the judgment rendered by the trial court. We granted the

People’s petition for review.

II

A

The present case requires this court to interpret section 859b, which

governs the time within which a preliminary examination must be held. The

statute provides that with reference to in-custody defendants, the complaint must

be dismissed if the preliminary examination is not held within 10 days of

arraignment, except that the hearing may be continued with the consent of the

defendant or if the prosecution establishes good cause for a continuance. If the

defendant is in custody,2 however, the statute requires that upon continuance of


2

It is understood that the OR-release provision applies when the defendant is

in custody for reasons solely attributable to the charges to be adjudicated at the

(footnote continued on next page)

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the hearing, the defendant “shall” be released on his or her own recognizance, with

specified exceptions where (1) continuance of the preliminary examination beyond

the 10-day period is requested by the defendant; (2) the case involves capital

charges where the “proof is evident and the presumption great”; (3) a necessary

witness is unavailable due to the actions of the defendant; (4) counsel is ill;

(5) counsel is required unexpectedly to appear in a jury trial; or (6) unforeseen

conflicts of interest require appointment of new counsel.3


(footnote continued from previous page)

preliminary examination. (See Blake v. Superior Court (1980) 108 Cal.App.3d
244, 248.

3

Section 859b provides in pertinent part: “Both the defendant and the

people have the right to a preliminary examination at the earliest possible time,
and unless both waive that right or good cause for a continuance is found . . . , the
preliminary examination shall be held within 10 court days of the date the
defendant is arraigned or pleads, whichever occurs later, or within 10 court days of
the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing
with section 1367) of Title 10 of Part 2.


“Whenever the defendant is in custody, the magistrate shall dismiss the

complaint if the preliminary examination is set or continued beyond 10 court days
from the time of the arraignment, plea, or reinstatement of criminal proceedings
. . . , and the defendant has remained in custody for 10 or more court days solely
on that complaint, unless either of the following occur: [¶] (a) The defendant
personally waives his or her right to preliminary examination within the 10 court
days. [¶] (b) The prosecution establishes good cause for a continuance beyond the
10-court-day period.


“For purposes of this subdivision, ‘good cause’ includes, but is not limited

to [specified circumstances]. Any continuance under this paragraph shall be
limited to a maximum of three additional court days.


“If the preliminary examination is set or continued beyond the 10-court-

day-period, the defendant shall be released pursuant to Section 1318 unless: [¶]
(1) The defendant requests the setting of continuance of the preliminary
examination beyond the 10-court-day period. [¶] (2) The defendant is charged
with a capital offense in a cause where the proof is evident and the presumption
great. [¶] (3) A witness necessary for the preliminary examination is unavailable
due to the actions of the defendant. [¶] (4) The illness of counsel. [¶] (5) The

(footnote continued on next page)

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The history of the enactment assists us in analyzing the questions before us.

At one time, section 859b simply called for a preliminary examination to be set

after the initial arraignment on the charges. Case law required only that the

accused, whether in custody or at liberty, be afforded a preliminary examination

without “unreasonable delay.” (People v. Du Bose (1970) 10 Cal.App.3d 544,

550.)

Evidently not satisfied with this vague standard, the Legislature amended

the statute in 1970, adding a provision granting accused persons in custody the

right to a preliminary examination within 10 days of arraignment or plea. (Stats.

1970, ch. 1371, § 1, p. 2537.) Reasoning that the statute employed mandatory

terms, and that the statute expressed a plain policy to protect the liberty of persons

who are unable to post bail, an appellate court held that the statute created an

absolute right to a preliminary examination within the specified period for in-

custody defendants who do not waive the right, and that “in the absence of a

waiver this right cannot be impinged upon by the magistrate, even on a showing of

good cause.” (Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464

[interpreting the 1970 version of the statute].) Although the statute did not contain

any enforcement mechanism, the court held that failure to conduct the preliminary

examination within the mandated period constituted a deprivation of a substantial

right requiring dismissal. (Id. at pp. 468-470.)


(footnote continued from previous page)

unexpected engagement of counsel in a jury trial. [¶] (6) Unforeseen conflicts of
interest which require appointment of new counsel.


“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.”

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Effective in 1978, section 859b was amended to provide that both the

prosecution and the defendant have a right to a speedy preliminary examination,

adding language stating that a preliminary examination could be continued for

good cause beyond the 10-day period — but only if the accused was not in

custody. (Stats. 1977, ch. 1152, § 1, p. 3698.) The Legislature made clear its

intent to establish an absolute rule devoid of exceptions, adding the following

language to the statute: “In no instance shall the preliminary examination be

continued beyond 10 court days from such arraignment or plea whenever the

defendant is in custody at the time of such arraignment or plea and the defendant

does not personally waive his right to preliminary examination within such 10

court days.” (Id., pp. 3698-3699, italics added.)

In 1980, the Legislature again amended the statute, authorizing a

preliminary examination to be continued beyond the 10-day period for all

defendants, including persons in custody, upon a showing of good cause, but

expressly requiring dismissal if the preliminary examination was continued

beyond the 10-day period without a waiver and without good cause when the

defendant is in custody. (Stats. 1980, ch. 938, § 1, p. 2965.)

Also in 1980, section 859b was amended to add a version of the language

that is of principal concern in the present case. That amendment provided that if a

preliminary examination for an in-custody defendant is delayed beyond the 10-day

period for good cause, the defendant “shall” be released on his or her own

recognizance (subject to conditions as prescribed by section 1318), except for

defendants charged with capital crimes “where the proof is evident and the

presumption great.” (Stats. 1980, ch. 938, § 1, p. 2965.) Thus, although under the

former law the prosecution would have suffered a dismissal (with the resulting

release of the defendant without conditions) if a continuance were needed, whether

the delay was justified by good cause or not, the new provision accommodated the

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prosecution’s needs in part, by substituting OR release for dismissal when the

prosecution establishes good cause for the delay.4

B

The People contend that the language of section 859b leaves the magistrate

with discretion to deny OR release on public safety grounds to a defendant who is

in custody but whose preliminary examination is continued beyond the 10-day

period for good cause. According to the People, the magistrate retains such

discretion whether or not the defendant’s case comes within the exceptions

enumerated by the statute. As we explain, neither the language nor the purpose of

the statute supports such an interpretation.

We interpret statutes with the object of ascertaining and effectuating the

Legislature’s intent. (People v. Smith (2004) 32 Cal.4th 792, 797.) “In

determining such intent, we begin with the language of the statute itself.

[Citation.] That is, we look first to the words the Legislature used, giving them

their usual and ordinary meaning.” (People v. Superior Court (Zamudio) (2000)

23 Cal.4th 183, 192.)

In the present case, the meaning of the statute appears unambiguous. If an

in-custody defendant’s preliminary examination is delayed for more than 10 court

days without a waiver or good cause, the complaint must be dismissed, but if the

prosecutor shows good cause for postponement, no dismissal is required — but a

defendant who is in custody must be released on OR, as long as he or she agrees to

be bound by reasonable conditions and to appear at future hearings as provided in

4

In 1981, the Legislature added further exceptions to the rule requiring OR

release, as noted in footnote 3, ante. (Stats. 1981, ch. 854, § 1, pp. 3276-3277.)
Subsequent amendments did not affect the OR-release provision of section 859b.
(Stats. 1987, ch. 461, § 1, pp. 1699-1700; Stats. 1989, ch. 897, § 26.5, pp. 3066-
3067; Stats. 1996, ch. 122, § 1, pp. 462-463.)

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section 1318. Indeed, case law and secondary authorities treat as commonplace

the rule that OR release is required after the prosecutor secures a continuance for

good cause pursuant to section 859b. (See Landrum v. Superior Court (1981) 30

Cal.3d 1, 5-6, fn. 4; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial

Proceedings, § 130, p. 332; 1 Levenson, Cal. Criminal Procedure (1999) ch. 10,

§ 10.02(B), p. 10-8.) It is evident that the Legislature examined its previous policy

requiring dismissal in all cases of delay when the accused is in custody, and in part

accommodated the prosecution’s needs by providing the lesser remedy of OR

release whenever there is good cause for a continuance — presumably in light of

the prosecution’s ability to refile a complaint dismissed by the court or itself

dismiss and refile the complaint if OR release is ordered.

Ordinarily, the term “shall” is interpreted as mandatory and not permissive.

Indeed, “the presumption [is] that the word ‘shall’ in a statute is ordinarily deemed

mandatory and ‘may’ permissive.” (California Correctional Peace Officers Assn.

v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1143.) There is no reason to

believe that the OR-release provision contained in section 859b is merely

permissive despite the Legislature’s use of the term “shall.” In every other portion

of section 859b, the Legislature has used the term in its mandatory sense, a

circumstance undisputed by the People.5 Terms ordinarily possess a consistent

meaning throughout a statute. (Grafton Partners v. Superior Court (2005) 36

5

A related statute employs the same apparently mandatory language.

Section 861 requires a preliminary examination to be held in a single session,
unless there is good cause for proceeding otherwise. Postponement for good cause
cannot be for more than 10 days, unless the defendant waives his or her rights
under the statute or the prosecution establishes good cause for a further
postponement. “If the magistrate postpones the preliminary examination beyond
the 10-court-day period, and the defendant is in custody, the defendant shall be
released pursuant to subdivision (b) of Section 859b.” (§ 861, subd. (a)(2).)

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Cal.4th 944, 960.) The People have not suggested any reason to suppose the

Legislature intended that the term “shall” in the portion of the statute presently

under review means anything different from what that term signifies throughout

the remaining portions of the statute.

The evident purpose of section 859b supports the view that its provisions

are mandatory, rather than permissive. This enactment is one of a number of

statutes “that are supplementary to and a construction of the constitutional right to

a speedy trial.” (People v. Luu (1989) 209 Cal.App.3d 1399, 1404.) Section 859b

“reflects a clear legislative intention to prevent prolonged incarceration prior to a

preliminary hearing.” (Landrum v. Superior Court, supra, 30 Cal.3d at p. 12.)

This statute “ ‘manifests a legislative policy to eliminate the possibility that

persons charged with felonies might suffer prolonged incarceration without a

judicial determination of probable cause merely because they are unable to post

bond in order to gain their freedom.’ ” (Blake v. Superior Court, supra, 108

Cal.App.3d 244, 248, italics added.) In many cases, that legislative policy would

not be served under the People’s interpretation of the statute.

The People contend that the language of section 859b leaves the magistrate

with authority to deny OR release to in-custody defendants for reasons other than

the exceptions to the OR-release provision specified in the statute itself. But the

presence of express exceptions ordinarily implies that additional exceptions are

not contemplated. “[W]here exceptions to a general rule are specified by statute,

other exceptions are not to be implied or presumed” unless a contrary legislative

intent is evident. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195.) In the

present case, we are unable to perceive any indication of legislative intent to

deviate from that rule of statutory construction.

The People stress that public safety is an interest that should be considered

in any decision to release an accused person on OR and that such a concern must

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be the basis for the exercise of judicial discretion in any OR decision. But the

enactment of statutory exceptions to the OR-release provisions of section 859b

demonstrates that the Legislature already has considered the public safety interests

that might outweigh the interest of an incarcerated defendant in being set at liberty

when the preliminary examination is delayed. It has concluded that when good

cause for a continuance is lacking, dismissal is required without regard to public

safety concerns. As for the lesser remedy of OR release when the prosecution has

demonstrated good cause for continuance, the Legislature has identified those

instances in which the incarcerated defendant’s interest must give way, for

example when there is a capital charge or the defendant has acted to render a

witness unavailable. The Legislature has struck a balance between the

incarcerated accused person’s interest in liberty and the public interest in security.

The People evidently wish that a different balance had been struck to cover

additional situations, but that did not occur. The Legislature, of course, is free to

revise the statute as it wishes within constitutional limits, but the current language

of the statute does not support the People’s position.

The People claim that section 859b’s reference to section 1318 affords

magistrates full discretion to deny OR release. The latter statute requires persons

who are released on OR to sign a release agreement promising to appear at future

proceedings and to obey all reasonable conditions ― including conditions that

serve public safety. (See In re York (1995) 9 Cal.4th 1133, 1145.)6 The People

6

Section 1318 provides: “(a) The defendant shall not be released from

custody under an own recognizance until the defendant files with the clerk of the
court . . . a signed release agreement which includes: [¶] (1) The defendant’s
promise to appear at all times and places, as ordered by the court or magistrate
. . . . [¶] (2) The defendant’s promise to obey all reasonable conditions imposed by
the court or magistrate. [¶] (3) The defendant’s promise not to depart this state
without leave of the court. [¶] (4) Agreement by the defendant to waive extradition

(footnote continued on next page)

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suggest that, because the OR-release provision of section 859b refers to section

1318, which calls for the magistrate’s exercise of discretion in setting reasonable

conditions of OR release, the magistrate also must retain discretion to deny OR

release altogether to persons whom the magistrate views as a public safety risk.

Contrary to the People’s argument, however, section 1318 does not govern

a magistrate’s exercise of discretion whether to grant OR release. The

magistrate’s discretion whether or not to grant OR release is governed by other

provisions ― provisions to which the Legislature could have referred in section

859b had it intended that OR release pursuant to section 859b be discretionary.

(Compare §§ 1269c [governing applications for increase or decrease in bail and

for OR release]; 1270 [setting out the general circumstances in which defendants

may be granted OR release]; 1270.1 [requiring a hearing before scheduled bail

may be increased or decreased or OR release granted to defendants charged with

specific violent felonies, and specifying factors to be considered by the court]; see

also §§ 273.75 and 273.84 [governing OR release in specified domestic violence

and spousal abuse cases], 1319 [requiring a hearing prior to OR release in violent

felony cases, prescribing circumstances to be considered by the court in such

cases, and prohibiting OR release for any person charged with a violent felony

who previously failed to appear], 1319.5 [requiring a hearing prior to OR release

for parolees, probationers, and persons who previously failed to appear].)

Rather, section 1318 prescribes the terms of the defendant’s OR release

agreement, including his or her required promise to obey all reasonable conditions


(footnote continued from previous page)

. . . . [¶] (5) The acknowledgment of the defendant that he or she has been
informed of the consequences and penalties applicable to violation of the
conditions of release.”

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imposed by the court. Section 1318 does not govern the court’s authority to grant

or deny OR release.

In addition, as the Court of Appeal explained, the People’s argument, if

accepted, would render portions of section 859b a nullity. There would have been

no need, for example, for the Legislature to add a specific public safety exception

for capital defendants ― let alone a qualification that the latter exception be

limited to capital offenses in which the proof is evident and the presumption

great ― if the reference to section 1318 conferred upon the magistrate full

authority to deny OR release despite the magistrate’s having granted the

prosecution a continuance of a preliminary examination beyond the 10-day period.

The People cite In re Samano (1995) 31 Cal.App.4th 984 in support of their

claim that section 859b does not require OR release in every instance in which an

in-custody defendant’s preliminary examination is continued for good cause

beyond the 10-day period at the prosecutor’s request. In that case, however, the

request for a continuance came from the defense and not from the prosecution.

Two codefendants moved for continuance of the preliminary examination and

waived the statutory period, while the other codefendants objected and did not

waive time. The reviewing court held that failure to hold the preliminary

examination within the statutory period did not compel OR release for the

objecting codefendants.

The court acknowledged the general rule that section 859b mandates OR

release when the prosecutor secures a continuance for good cause (In re Samano,

supra, 31 Cal.App.4th at p. 990), but pointed out that the prosecutor had not

requested the continuance. The court emphasized that “[s]ection 859b,

subdivision (b) is premised on the People as the initiator of the continuance.” (Id.,

at p. 989, italics added.) The court reasoned that a codefendant’s request for a

continuance “should not inure to the detriment of the People with the nonmoving

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codefendants as unintended third party beneficiaries. The People were ready for

the preliminary hearing and wanted to go forward . . . .” (Ibid.) The court also

noted that another statute specifies that if the preliminary examination of one

defendant is continued for good cause, proceedings for all codefendants may be

continued so as to maintain joinder, a strong state interest. (See § 1050.1.)

Balancing the interests of the codefendants in not being held in custody for a

prolonged period without any determination of probable cause against the state’s

interest in joint trials, the court concluded that when it is not the prosecutor but a

codefendant who requests the continuance, the request should be attributed to all

codefendants.

The decision in In re Samano is distinguishable from the present case, in

which it was the prosecution that requested the continuance. That decision does

not support the People’s claim that courts retain general discretion to deny OR

release when a defendant is in custody and the prosecutor secures a continuance of

the preliminary examination for good cause, nor does the decision support the

People’s claim that courts have engrafted exceptions onto section 859b for

instances in which the prosecutor secures a continuance. Two additional cases are

distinguishable on a similar basis, in that the delay in the preliminary examination

was attributable to the defense and, indeed, served the defendant’s constitutional

interests. (People v. Kowalski (1987) 196 Cal.App.3d 174 [defense counsel’s

request for additional time was treated as a defense time waiver although the

defendant personally objected, because the request served the defendant’s

constitutional right to be represented by competent counsel]; Curry v. Superior

Court (1977) 75 Cal.App.3d 221, 226 [§ 859b is subordinated to the defendant’s

constitutional right of self-representation and the preliminary examination

properly was delayed—over the defendant’s objection—because additional time

was needed to assess his mental capacity to represent himself].) By contrast, in

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the present case it was the prosecutor who sought the continuance, and obviously

no constitutional right of defendant was served by denying him OR release.

The prosecutor’s request for a continuance illustrates the very reason

section 859b was enacted, that is, to ensure that the prosecution cannot cause

delay that results in the prolonged incarceration of a charged individual without a

determination of probable cause. The People have not offered any theory under

which the request for a continuance could be attributed to defendant in the present

case. Nor do the People explain as a general matter how the statute would

continue to operate under their interpretation. If section 859b provides that the

court should grant OR release only to persons who otherwise would be eligible for

OR release under other statutes, section 859b’s OR-release provision never would

apply, because the accused person already would be out of custody on OR.

Reading the People’s proposed public safety exception into the statute would

operate to render its OR provision a dead letter, or at least render superfluous the

specific exceptions set out in the statute.

C

The People next contend that provisions of the California Constitution

require that a magistrate retain discretion to deny OR release notwithstanding

section 859b. The People rely principally upon article I, section 28, subdivision

(e) as proposed by Proposition 8 on the June 1982 primary election ballot, entitled

the Victims’ Bill of Rights. Under that provision, according to the People,

defendant was not entitled to OR release, because he was charged with a serious

felony and posed a threat to public safety.

Proposition 8 proposed to repeal article I, section 12 of the California

Constitution, which governs bail and OR release and which provided, prior to the

June 1982 election: “A person shall be released on bail by sufficient sureties,

except for capital crimes when the facts are evident or the presumption great.

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Excessive bail may not be required. [¶] A person may be released on his or her

own recognizance in the court’s discretion.” (Italics added.) The language

concerning OR was added to the Constitution as part of a constitutional revision

adopted by the voters at the November 5, 1974, General Election. Prior to that

time, the bail provisions of the Constitution were contained in article I, section 6,

but no mention was made of OR release. There was, however, a “ ‘well-

established practice of releasing persons accused of crimes on their own

recognizance’ ” in appropriate circumstances as an alternative to requiring the

posting of bail ― an alternative continued and recognized by the OR provisions

that were added in 1974. (Dant v. Superior Court (1998) 61 Cal.App.4th 380,

385, quoting Cal. Const. Revision Com., Proposed Revision (1971) p. 19.)

As noted, Proposition 8 proposed to repeal article I, section 12 and

substitute article I, section 28, subdivision (e). The proposed subdivision was

entitled “Public Safety Bail” and provided in pertinent part: “A person may be

released on bail by sufficient sureties, except for capital crimes when the facts are

evident or the presumption great. Excessive bail may not be required. In setting,

reducing or denying bail, the judge or magistrate shall take into consideration the

protection of the public, the seriousness of the offense charged, the previous

criminal record of the defendant, and the probability of his or her appearing at the

trial or hearing of the case. Public safety shall be the primary consideration. [¶] A

person may be released on his or her own recognizance in the court’s discretion,

subject to the same factors considered in setting bail. However, no person

charged with the commission of any serious felony shall be released on his or her

own recognizance.” (Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 8,

p. 33, italics added.)

In relying on the bail and OR provisions of Proposition 8, the People fail

adequately to take account of a series of opinions, including one by this court, that

18

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have concluded that the relevant provision of Proposition 8 never became

effective, because a competing initiative measure on the same ballot (Proposition

4) garnered more votes than Proposition 8. (In re York, supra, 9 Cal.4th at p.

1140, fn. 4; see also Dant v. Superior Court, supra, 61 Cal.App.4th at pp. 384-

385, fn. 6; People v. Cortez (1992) 6 Cal.App.4th 1202, 1211; People v. Barrow

(1991) 233 Cal.App.3d 721, 723.)

Proposition 4 added language to article I, section 12 that is relevant to the

subject of release on bail.7 New language permitted courts setting bail to consider

factors other than the probability that the defendant would appear at trial. In

particular, the measure authorized courts to consider the seriousness of the offense

and the previous criminal record of the accused, and the proponents of the measure

made it clear they intended that public safety should be a consideration in bail

decisions. (Ballot Pamp., Primary Elec. (June 8, 1982) argument in favor of

Prop. 4, p. 18.) Proposition 4, however, did not amend the preexisting provision

of article I, section 12 of the state Constitution related to OR release. Specifically,

7

Proposition 4 submitted the following text of article I, section 12 to the

voters for approval: “A person shall be released on bail by sufficient sureties,
except for: [¶] (a) Capital crimes when the facts are evident or the presumption
great; [¶] (b) Felony offenses involving acts of violence on another person when
the facts are evident or the presumption great and the court finds based upon clear
and convincing evidence that there is a substantial likelihood the person’s release
would result in great bodily harm to others; or [¶] (c) Felony offenses when the
facts are evident or the presumption great and the court finds based on clear and
convincing evidence that the person has threatened another with great bodily harm
and that there is a substantial likelihood that the person would carry out the threat
if released. [¶] Excessive bail may not be required. In fixing the amount of bail,
the court shall take into consideration the seriousness of the offense charged, the
previous criminal record of the defendant, and the probability of his or her
appearing at the trial or hearing of the case. [¶] A person may be released on his or
her own recognizance in the court’s discretion.” (Ballot Pamp., Primary Elec.
(June 8, 1982) text of Prop. 4, p. 17.)

19

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Proposition 4 did not amend the language providing that “[a] person may be

released on his or her own recognizance in the court’s discretion.” (Cal. Const.,

art. I, § 12; Dant v. Superior Court, supra, 61 Cal.App.4th at pp. 384-385, fn. 6;

Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 4, p. 17.)

In In re York, supra, 9 Cal.4th 1133, the defendant claimed that the

magistrate violated section 1318 by placing conditions upon his OR release that

were not concerned with guaranteeing his presence at the hearing. We began our

discussion as follows: “Article I, section 12, of the California Constitution

establishes a person’s right to obtain release on bail from pretrial custody,

identifies certain categories of crime in which such bail is unavailable, prohibits

the imposition of excessive bail as to other crimes, sets forth the factors a court

shall take into consideration in fixing the amount of the required bail, and

recognizes that a person ‘may be released on his or her own recognizance in the

court’s discretion.’ Penal Code section 1318 sets forth a variety of requirements

that an OR release agreement must satisfy.” (In Re York, at pp. 1139-1140, fn.

omitted.) Having identified the constitutional source of the right to bail and to

consideration for OR release, we explained in a footnote that the source of the bail

provisions of article I, section 12 was Proposition 4. “The provisions set forth in

article I, section 12, of the California Constitution were contained in Proposition 4,

enacted by the voters at the June 1982 Primary Election. Proposition 4 received

more votes than did Proposition 8, an omnibus initiative that, in the same election,

added (among other provisions) article I, section 28, subdivision (e), to the

California Constitution, providing in pertinent part: ‘A person may be released on

his or her own recognizance in the court’s discretion, subject to the same factors

considered in setting bail.’ . . . [¶] Because Proposition 4 received more votes than

did Proposition 8, the bail and OR release provisions contained in Proposition 4

20

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are deemed to prevail over those set forth in Proposition 8. [Citations.]” (In re

York, supra, 9 Cal.4th at p. 1140, fn. 4, italics added, original italics omitted.)

The source of the California Constitution’s bail provisions was significant

in the statutory analysis we conducted in In re York. Had the provisions of

Proposition 8’s article I, section 28, subdivision (e) taken effect, they quickly

would have disposed of York’s claim that the sole legitimate purpose of imposing

conditions for OR release was to ensure the defendant’s presence at the hearing,

because the language proposed by Proposition 8 specified that considerations other

than ensuring a defendant’s presence at the proceeding could be considered in the

context of a decision to grant an OR release, just as other considerations were

relevant in setting bail. Having determined instead that it was the language of

Proposition 4 that prevailed, however, we proceeded to analyze the ambiguities in

section 1318 without regard to the directives that would have been controlling

under Proposition 8.

Undaunted, the People contend that in In re York, supra, 9 Cal.4th 1133, we

were not called upon to consider whether Propositions 4 and 8 might be

harmonized and both be given effect, and that we did not consider the applicability

of our earlier decision in Yoshisato v. Superior Court (1992) 2 Cal.4th 978. That

decision drew a distinction between the situation of two competing or alternative

initiative measures, only one of which could prevail, and that of two measures

presented to the voters as complementary or supplementary. In the latter situation,

the two measures may be compared section by section, giving effect to both so

long as there is no direct conflict. (Id. at pp. 987-988, 991-992.) The People insist

that Propositions 4 and 8 were complementary, not competing. Contending there

is no conflict between each proposition’s bail and OR provisions, the People urge

that the provisions of each proposition can be given effect.

21

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Although in In re York we did not analyze at any length the point presently

raised, we did cite Yoshisato in support of our conclusion that the provisions of

Proposition 4 prevailed over those of Proposition 8. (In re York, supra, 9 Cal.4th

at p. 1140, fn. 4.) It is apparent we believed Propositions 4 and 8 contained

competing measures respecting bail and OR release that could not both be given

effect, and we held that because Proposition 4 had received more votes, that

proposition must be given effect over the competing measure. Moreover, our

current review of the ballot pamphlet for the 1982 primary election, at which both

Propositions 4 and 8 were proposed, demonstrates that the measures were not

presented to the voters as complementary. On the contrary, opponents of

Proposition 8 (including a member of the Legislature that had voted unanimously

in favor of placing Proposition 4 on the ballot) warned that the former measure

would enact radical changes that would restrict individual liberty and harm “true

efforts to fight crime,” adding: “CONSIDER THESE EFFECTS OF

PROPOSITION 8: [¶] Takes away everyone’s right to bail. (Compare

Proposition 4, which targets only violent felons.)” (Ballot Pamp., Primary Elec.

(June 8, 1982) rebuttal to argument in favor of Prop. 8, p. 34.)

The Legislature, as the proponent of Proposition 4, was concerned with

improving public safety by imposing a measured restriction on the right of violent

felons to bail, but the proposition left preexisting OR provisions intact. (The

ballot materials did not discuss the subject of OR release at all.) Proponents of

Proposition 8 would have eliminated the general right to bail, substituting a

provision granting courts greater discretion to deny bail, and placing restrictions

on access to bail different from those proposed by the Legislature in Proposition 4.

Proposition 8 explicitly would have imposed these restrictions on OR release, as

well.

22

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A section-by-section comparison of Propositions 4 and 8 demonstrates the

direct conflict between the two measures. Proposition 8 would have repealed

California Constitution article I, section 12 (Ballot Pamp., Primary Elec. (June 8,

1982) text of Prop. 8, p. 33), while Proposition 4 amended that provision. (Ballot

Pamp., Primary Elec. (June 8, 1982) text of Prop. 4, p. 17.) Proposition 8 would

have rescinded the court’s discretion to grant OR release for any serious felony

(Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, p. 33), while

Proposition 4 left the court’s preexisting discretion intact without any restriction.

(Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 4, p. 17.) Proposition 4

stated that all accused persons “shall” be admitted to bail, subject to certain

limitations (ibid.), while Proposition 8 would have rendered bail discretionary in

all cases and would have extended the restrictions it imposed upon bail to OR

release. (Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, p. 33.) In

view of these circumstances, we adhere to the view that the amendments to article

I, section 12 proposed by Proposition 4 took effect, and that the provisions of

article I, section 28, subdivision (e) proposed by Proposition 8 did not take effect.

The People contend that even if, as we have concluded, article I, section 12,

rather than article I, section 28, subdivision (e), represents the governing

constitutional OR provision, section 859b still would be unconstitutional if it were

interpreted to restrict the discretion of the magistrate to deny OR release on the

basis of public safety concerns. Because article I, section 12 provides in relevant

part that “[a] person may be released on his or her own recognizance in the court’s

discretion,” the People argue that any statutory provision purporting to provide for

OR release without affording the court discretion to deny such release on public

safety grounds violates this provision as well as the separation-of-powers doctrine,

by improperly interfering with the court’s constitutionally granted discretion. In

essence, the People contend that section 859b, if it is interpreted as mandatory

23

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rather than permissive, would be inconsistent with California Constitution article I,

section 12 and would violate the principle of separation of powers, because “[i]f

section 859b requires the release of every accused OR, without exception,

whenever the prosecution obtains a continuance for good cause, there is no

discretion left, and the constitutional authority under article [I], section 12, to grant

OR releases ‘in the court’s discretion’ will have been removed by operation of

statute.”

The People’s argument in this regard misapprehends the subject and scope

of the bail and OR provisions of article I, section 12. Those provisions establish

the circumstances under which an accused person possesses a constitutional right

to be released on bail pending trial, and authorize a court, as an alternative to

requiring the posting of bail, to permit an accused to be released on his or her own

recognizance in the court’s discretion. These constitutional provisions do not

purport to address the circumstances under which, once a prosecution has begun,

the court may order the criminal proceeding dismissed (with the resultant release

of the defendant from custody) or order other remedies for delay in prosecution —

such as the OR release of an in-custody accused.

Section 859b — in providing for the OR release of an in-custody accused

as an alternative to dismissal when the prosecution for good cause obtains a

continuance of the preliminary examination beyond the statutorily prescribed 10-

day period — addresses a circumstance that does not fall within the purview of

California Constitution article I, section 12. As the People must acknowledge,

article I, section 12 never has been interpreted to preclude the Legislature from

prescribing dismissal of a proceeding — with the resultant release of the defendant

without condition — when the prosecution is unable to proceed with the

preliminary examination within 10 days. For similar reasons, article I, section 12

does not preclude the Legislature from adopting a lesser remedy or sanction when

24

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a defendant is not afforded a preliminary examination within the time specified by

statute but the prosecution has established good cause for a continuance.

Even in those situations to which article I, section 12’s OR provision is

directed, namely, when a defendant is placed on OR as an alternative to being

released on bail, article I, section 12 cannot properly be interpreted to mean that a

court invariably retains discretion to release a defendant OR and to preclude the

Legislature from, for example, establishing specific crimes for which OR release

is not permitted. The People’s argument that the terms of article I, section 12

should be interpreted to establish that a court has a constitutionally enshrined

authority to exercise discretion whether to grant OR release in all situations would

invalidate any statutory provision that limits the crimes as to which OR release

may be ordered, yet the People cannot point to any authority that supports a

conclusion that such statutes would be unconstitutional. Indeed, the People

themselves rely upon section 1319 in support of the view that the nature of

defendant’s crime prohibited his release on OR. Furthermore, other statutes that

merely channel the court’s discretion to grant or deny OR release also might be

implicated under the People’s theory. (See, e.g., §§ 1270, 1270.1.)

The separation-of-powers doctrine recognizes the significant

interrelationship and mutual dependency among the three branches of government.

Although courts should “maintain vigorously all the inherent and implied powers

necessary to properly and effectively function as a separate department in the

scheme of our state government,” the Legislature retains certain authority to

legislate even with respect to inherent powers of the court, because “the three

departments of our government are . . . in many respects mutually dependent. Of

necessity the judicial department as well as the executive must in most matters

yield to the power of statutory enactments. [Citations.] The power of the

legislature to regulate criminal and civil proceedings and appeals is undisputed.”

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(Brydonjack v. State Bar (1929) 208 Cal. 439, 442-443; see also Obrien v. Jones

(2000) 23 Cal.4th 40, 48 [the separation-of-powers doctrine “does not command ‘a

hermetic sealing off of the three branches of Government’ ”]; Millholen v. Riley

(1930) 211 Cal. 29, 34 [“the [L]egislature may at all times aid the courts and may

even regulate their operation so long as their efficiency is not thereby impaired”].)

Indeed, the separation-of-powers doctrine “permits actions of one branch that may

significantly affect those of another branch.” (In re Rosenkrantz (2002) 29 Cal.4th

616, 662, italics added.)

Various aspects of inherent judicial power may be affected by legislative

enactment, including measures limiting the power of contempt (In re McKinney

(1968) 70 Cal.2d 8, 11-12), provisions for peremptory disqualification of a judge

upon a party’s filing of an affidavit of prejudice pursuant to Code of Civil

Procedure section 170.6 (Solberg v. Superior Court (1977) 19 Cal.3d 182, 191;

Johnson v. Superior Court (1958) 50 Cal.2d 693, 695-696), and the exercise of

legislative power over the appointment of certain members of the State Bar Court.

(Obrien v. Jones, supra, 23 Cal.4th at pp. 48-49.)

Even when the stake was such a core judicial function as controlling

whether a court would be in session or remain closed, we concluded that

reasonable legislation permitting counties to direct the superior court to remain

closed on certain furlough days did not cross the boundary established by the

separation-of-powers doctrine. (Superior Court v. County of Mendocino (1996) 13

Cal.4th 45.) In recognizing the power of the legislative branch to specify furlough

days on which the court would remain closed, we recognized, of course, that there

are limits upon the actions each branch may take with respect to the others. “The

judiciary, in reviewing statutes enacted by the Legislature, may not undertake to

evaluate the wisdom of the policies embodied in such legislation; absent a

constitutional prohibition, the choice among competing policy considerations in

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enacting laws is a legislative function. [Citation.] The executive branch, in

expending public funds, may not disregard legislatively prescribed directives and

limits pertaining to the use of such funds. [Citation.] And the Legislature may not

undertake to readjudicate controversies that have been litigated in the courts and

resolved by final judicial judgment. [Citations.]” (Superior Court v. County of

Mendocino, supra, 13 Cal.4th at p. 53.)

Notwithstanding these limitations, we reiterated that even with respect to

inherent judicial powers, “the Legislature generally may adopt reasonable

regulations affecting a court’s inherent powers or functions, so long as the

legislation does not ‘defeat’ or ‘materially impair’ a court’s exercise of its

constitutional power or the fulfillment of its constitutional function.” (Superior

Court v. County of Mendocino, supra, 13 Cal.4th at pp. 58-59.) Emphasizing that

the superior court was levying a facial attack on the constitutionality of the

furlough statute, we held it would not be reasonable to conclude that under all

circumstances, the furlough days contemplated by the statute would defeat or

materially impair the court’s fulfillment of its constitutional duties. (Id. at p. 60.)

Accordingly, we do not accept the view that California Constitution article

I, section 12 confers judicial discretion that must remain free from legislative

interference. We do not believe that a constitutional grant of general authority to

the courts necessarily constitutes a restriction on the power of the Legislature to

place reasonable limits upon a court’s exercise of discretion in certain instances —

any more than a court’s inherent power over its times of operation would bar the

Legislature from establishing a limited restriction on that power of the court. Nor

do we believe it would defeat or materially impair the courts’ exercise of judicial

power to permit the Legislature to direct courts to grant or deny OR release under

specified circumstances.

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Next, the People draw our attention to the circumstance that defendant

could have been denied bail pursuant to article I, section 12 because of public

safety concerns related to the charged crimes. (In fact, the court did set bail for

defendant.) The People claim it would be “unreasonable” to conclude that even

though he could have been denied bail, defendant nonetheless was entitled to OR

release when the magistrate continued the preliminary hearing for good cause.

Again, although article I, section 12 governs the right to bail and acknowledges

the court’s authority to release persons on OR, we do not believe that article I,

section 12 addresses the circumstances under which a complaint may be dismissed

or the defendant released from custody as an adjunct to the defendant’s right to

speedy trial. A defendant’s eligibility for bail, like his or her eligibility for OR

release under provisions other than section 859b, is not at issue under section

859b. The People do not deny that under specified circumstances, section 859b

would require an even greater sanction than OR release — dismissal of the

complaint. The defendant’s ineligibility for bail would have no impact upon the

court’s obligation to dismiss a complaint under section 859b; neither would

ineligibility for bail have anything to do with the sanction of OR release pursuant

to that statute.

In conclusion, we are mindful of the circumstance that section 859b might

require OR release of (or dismissal of charges against) dangerous persons, but,

having concluded that neither the terms of article I, section 12 nor the separation-

of-powers doctrine renders section 859b’s OR provision unconstitutional on its

face, this court’s role is limited to interpreting the language the Legislature has

chosen to employ. We believe it is for the Legislature, not this court, to consider

whether the Legislature adequately has balanced public safety concerns against the

interest of accused persons in avoiding custody for a prolonged period prior to any

determination that there is probable cause to believe the accused committed the

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charged offense. Thus, the Legislature is free to consider whether additional

exceptions should be created, both as to dismissal and OR release, to

accommodate other public safety concerns or circumstances such as the illness of

the magistrate or the unavailability of an interpreter. Rather extreme hypotheticals

were posed at oral argument, such as the defendant who announces an intention

not to appear for trial or to commit further crimes of violence. Again, the

Legislature may elect to create exceptions for such circumstances. In addition,

although we certainly do not mean to minimize public safety as a valid concern,

we point out that when the prosecution is unable to proceed within the statutory

period, it has the option of dismissing the complaint and refiling immediately

(§ 1387; see also § 1387.1 [permitting an additional dismissal and refiling for

violent felonies]), thereby avoiding any gap in maintaining the defendant in

custody. And of course, explicit threats of violence could subject a defendant to

rearrest and further prosecution. (§ 422.)

III

The second issue presented in this case is whether the superior court must

set aside an information pursuant to section 995 when a magistrate refuses (in

violation of section 859b) to grant OR release to an in-custody defendant. As we

shall explain, we conclude that the superior court may not set aside the

information on the basis of such an error in the absence of a determination that the

error reasonably might have affected the outcome of the preliminary examination.

Section 995 provides that an information shall be set aside upon the

defendant’s motion if the defendant was committed without probable cause or if

“before the filing [of the information] the defendant had not been legally

committed by a magistrate.” (§ 995, subd. (a)(2)(A).)

As we have explained, the term “legally committed” pertains to the

preliminary examination and the order holding the defendant to answer. “ ‘An

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information, of course, will not be set aside merely because there has been some

irregularity or minor error in procedure in the preliminary examination. [Citation.]

But where it appears that, during the course of the preliminary examination, the

defendant has been denied a substantial right, the commitment is unlawful within

the meaning of section 995, and it must be set aside upon timely motion.

[Citations.]’ ” (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874.)

Although some errors such as denial of the right to counsel by their nature

constitute a denial of a substantial right, the present case does not fall into that

category. We have explained, in the context of a magistrate’s error in failing to

exercise his or her inherent authority to dismiss pursuant to section 1385, that

generally a denial of substantial rights occurs only if the error “reasonably might

have affected the outcome.” (People v. Konow (2004) 32 Cal.4th 995, 1024-1025;

see also Jennings v. Superior Court, supra, 66 Cal.2d at p. 875; Moon v. Superior

Court (2005) 134 Cal.App.4th 1521, 1534; People v. Pennington (1991) 228

Cal.App.3d 959, 964-965 [because defense counsel’s potential conflict of interest

could not have affected the preliminary examination, it did not constitute a denial

of a substantial right].) By this language, we do not mean that the defendant must

demonstrate that it is reasonably probable he or she would not have been held to

answer in the absence of the error. Rather, the defendant’s substantial rights are

violated when the error is not minor but “reasonably might have affected the

outcome” in the particular case. (People v. Konow, supra, 32 Cal.4th at p. 1024,

italics added.)

We believe that a failure to grant OR release pending the preliminary

examination in violation of section 859b constitutes an error subject to the general

test for prejudice because, unlike the absence of counsel, for example, the error is

not inherently prejudicial. The error does not implicate a core right at the

preliminary examination itself. In addition, the error is not one for which the

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pertinent statute itself calls for dismissal — unlike a delay in the preliminary

examination beyond the 10-day period without good cause or for more than 60

days without a time waiver (§ 859b), or when the preliminary examination

improperly is not conducted in a single session. (§ 861.) In enacting and

amending section 859b, the Legislature elected not to require dismissal when there

is good cause for a continuance, and it would be anomalous to require that the

charges be set aside at the section 995 hearing when the preliminary examination

was continued for good cause.

We certainly agree with defendant that, as a general proposition, liberty

constitutes a fundamental right, but the specific right to liberty contemplated by

section 859b’s OR provision applies to the necessarily limited period between the

order granting a continuance and the preliminary examination and ordinarily does

not have any effect on the fairness or outcome of the proceedings at the

preliminary examination. Indeed, even when a court orders OR release pursuant

to section 859b, the defendant may remain in custody if the prosecutor chooses to

dismiss and refile the complaint. (§ 1387.) We note also that a defendant’s OR

status may be revoked after he or she is held to answer — the finding of probable

cause constitutes a changed circumstance that may warrant reconsideration of

custody status. (See In re Annis (2005) 127 Cal.App.4th 1190, 1199-1200; see

also 4 Witkin & Epstein, Cal. Criminal Law, supra, Pretrial Proceedings, §§ 84-

86, pp. 283-285; 2 Erwin et al., Cal. Criminal Defense Practice (1981)

§ 41.16(8)(c), p. 41-65.)8


8

The issue of custody also is subject to reconsideration for cause once the

information has been filed. (§ 1289.)

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If the prosecutor can avoid OR release by dismissing and refiling the

complaint, and a defendant who properly was released on OR after the prosecution

secured a continuance for good cause can be remanded at the time of the probable

cause determination, it would be out of proportion to the potential for impact upon

the fairness of the preliminary examination to hold that a failure to grant OR

release pending the preliminary examination necessarily gives the defendant a

remedy that extends beyond the probable cause determination ― a remedy that

could be draconian from the perspective of the prosecution.

According to defendant, the goal served by the right to have a preliminary

examination conducted within 10 days is the same goal served by the right to OR

release when the prosecution secures a continuance of the preliminary examination

for good cause. In both instances, he claims, the Legislature intended to prevent

prolonged incarceration prior to a probable cause determination for accused

persons who lack resources to post bond. We believe that although the same

general goal is at stake, the Legislature itself contemplated different remedies for

the denial of each of these two rights, as can be seen from the text of section 859b

itself. Specifically, that statute provides that delay beyond the 10-day period

without good cause should result in dismissal, while delay with good cause does

not require dismissal. If we were to hold that a defendant who was denied OR

release in violation of section 859b automatically would be entitled to have the

charges set aside pursuant to section 995, we would be supplying a dismissal

remedy that the Legislature chose to omit. In sum, we do not believe that, when a

continuance for good cause has been granted, error in determining custody status

necessarily implicates a substantial right pursuant to section 995.

In other contexts, we have noted that OR release is comparable to bail; in

fact, it is “ ‘simply an alternative to bail.’ ” (People v. Jimenez (1993) 19

Cal.App.4th 1175, 1178.) We have not discovered any authority suggesting that

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the remedy, when excessive bail has been set prior to the preliminary examination,

is an order setting aside the information. Rather, it is settled that defendants may

correct error in the setting of bail by seeking a writ of habeas corpus or other

extraordinary writ ordering reconsideration of custody status or release. (Ibid.; see

also Ex Parte Newbern (1961) 55 Cal.2d 500, 503; In re McSherry (2003) 112

Cal.App.4th 856, 859-860 [noting that the court can “grant relief without an

evidentiary hearing if the return admits allegations in the petition that, if true,

justify relief”]; In re Alberto, supra, 102 Cal.App.4th 421, 431.) The same

procedures are available when a court fails to grant OR release pursuant to section

859b. (See In re York, supra, 9 Cal.4th at p. 1139 [petitioners employed a petition

for writ of habeas corpus to challenge conditions of OR release]; In re Annis,

supra, 127 Cal.App.4th at p. 1192 [the defendant’s habeas corpus petition

challenged revocation of release on OR].)

Defendant objects that in Landrum v. Superior Court, supra, 30 Cal.3d 1,

we held that violation of an in-custody defendant’s right to have a preliminary

examination conducted within 10 days of the arraignment as provided by former

section 859b constituted a violation of a substantial right within the meaning of

section 995. (Landrum v. Superior Court, supra, 30 Cal.3d at pp. 5-6, 11-12.)

That case is distinguishable. At the time of our decision, the defendant had an

absolute right to a preliminary examination within 10 days, without regard to any

claim of good cause for continuance, and case law held that violation of this

absolute right required dismissal. (As previously noted, the statute subsequently

was amended to specify the circumstances in which a violation of the 10-day rule

required dismissal and when, by contrast, the remedy would be OR release.) Our

holding in Landrum does not extend beyond the situation in which the defendant

has an absolute right to have a preliminary examination conducted within 10 days,

that is, when good cause for a continuance does not exist.

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Defendant next points to our decision in People v. Pompa-Ortiz (1980) 27

Cal.3d 519. In that case, we held that, unlike the situation of pretrial review

pursuant to section 995, posttrial review of error occurring at the preliminary

examination requires a showing of prejudice. (People v. Pompa-Ortiz, at p. 529.)

In the course of our discussion of the appropriate standard of review on appeal, we

commented that “[t]he right to relief without any showing of prejudice will be

limited to pretrial challenges of irregularities. At that time, by application for

extraordinary writ, the matter can be expeditiously returned to the magistrate for

proceedings free of the charged defects. We follow this approach in other

contexts. In People v. Wilson (1963) 60 Cal.2d 139, for example, we held that

denial of defendant’s right to trial within a prescribed statutory time period was

not reversible error on appeal in the absence of a showing of prejudice. If the

issue is raised before trial, however, prejudice is presumed and the information is

dismissed.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)

Defendant reads too much into our decision in People v. Pompa-Ortiz.

That case did not establish that any and all irregularities that precede or bear some

relationship to the preliminary examination require that the information be set

aside pursuant to section 995; later decisions such as People v. Konow, supra, 32

Cal.4th 995, have made this clear. Under defendant’s interpretation, he would be

entitled to dismissal of the information even if, following improper denial of his

request for OR release, he had been able to post bail immediately and thus had not

been in custody while awaiting the preliminary examination. Our decision in

Pompa-Ortiz does not require such an unreasonable result.

We acknowledge that the Wilson decision cited in People v. Pompa-Ortiz,

supra, 27 Cal.3d 519, and other cases noted by defendant have declared that, prior

to trial, an incarcerated defendant may prevail on a motion to dismiss premised

upon a violation of his or her speedy trial rights ― specifically, a violation of

34

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section 1382 ― without any showing of prejudice. These cases are

distinguishable from the present case, however, because they were based in large

part on the circumstance that the relevant statute required dismissal as the proper

remedy when, without a showing of good cause, the defendant had not been

brought to trial within the statutory period. (See Serna v. Superior Court (1985)

40 Cal.3d 239, 263; People v. Wilson, supra, 60 Cal.2d at p. 151.)

Defendant also relies upon dictum in another decision of this court, Stroud

v. Superior Court (2000) 23 Cal.4th 952. In that case we examined the

requirement in section 861 that a preliminary examination be held within a single

session. The statute requires the magistrate to dismiss the complaint if the

preliminary examination is not held in a single session unless good cause has been

shown. We concluded that under the particular facts of the case, the magistrate

had good cause to interrupt the preliminary examination for a day in order to

attend to his administrative duties. (Stroud, at p. 957.)

Because the magistrate had not abused his discretion, we did not decide the

more general question whether a violation of section 861’s single-session rule

constitutes a denial of a substantial right requiring that the charges be set aside

pursuant to section 995. In a footnote, we observed, without deciding, that if a

violation of section 861 occurred, the magistrate himself or herself would be

required to dismiss the complaint under the terms of the statute. We surmised that

if the magistrate refused to dismiss, “the defendant’s subsequent commitment was

not legal, and he was thus deprived of a substantial right for which pretrial relief is

available under section 995, even if he suffered no prejudice beyond the

interruption or delay itself.” (Stroud v. Superior Court, supra, 23 Cal.4th at

p. 963, fn. 4 [but noting possible support for a contrary conclusion in People v.

Guevara (1982) 132 Cal.App.3d 193, 201-202].)

35

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This court’s dictum in Stroud is distinguishable. Like the current

provisions of section 859b that govern failure to conduct a preliminary

examination for an in-custody defendant within 10 days without good cause and

failure to hold the preliminary examination within an outer boundary of 60 days,

section 861 itself requires dismissal as a sanction. As we have observed above,

such a sanction is absent from the portion of section 859b governing continuance

of a preliminary examination for good cause.

Defendant objects that without the remedy of setting aside the charges

pursuant to section 995, the OR-release provision of section 859b would be

unenforceable, leaving accused persons in custody pending delayed probable

cause determinations. Defendant claims that other remedies are unlikely to afford

relief in a timely manner, that is, before the defendant’s custody status is

reconsidered at the preliminary examination.

We believe these concerns are misplaced. This is not a situation in which

the opposing party has the power to frustrate the defendant’s right to OR release or

in which the court may abuse its discretion. The statute requires the court to

release the defendant on OR when the prosecution establishes good cause for a

continuance, and now that we have clarified that the statute imposes a mandatory

duty upon courts to release defendants on OR in the absence of a showing that any

of the exceptions to section 859b apply, we do not anticipate that courts

nonetheless will defy our holding and refuse to release defendants.

Further, if a court should err in this regard by denying OR release, an

adequate remedy exists. The defendant may seek release by filing a petition for

writ of habeas corpus or other extraordinary writ just as a defendant may challenge

the amount set as bail. Habeas corpus proceedings can be quickly resolved, and

the defendant may be released pending a decision. (People v. Romero (1994) 8

Cal.4th 728.) As we have observed: “If the claim asserted in the petition has

36

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apparent merit and there is some urgency because the petition, for example,

alleges entitlement to release on bail or challenges the validity of a contempt

order, the court may require the custodian or real party in interest to submit the

return to the writ or order to show cause as little as 24 hours after being served

with the petition. [Citation.] Pending the outcome of the habeas corpus

proceeding, the court may order that the petitioner be temporarily released from

custody. [Citations.] Once the return is received, the court may grant relief

without an evidentiary hearing if there are no material contested issues of fact.”

(Id. at p. 744, italics added.) It is unlikely there will be any disputed issues of fact

if the magistrate has refused to follow section 859b’s OR-release provision, so an

evidentiary hearing should be unnecessary in most cases and the court should be

able to decide the matter with a minimum of delay.

Defendant contends it is unnecessary for this court to reach the issues we

have discussed, because the prosecutor assertedly failed to establish good cause to

continue the preliminary examination and defendant therefore was entitled to a

dismissal pursuant to the provision of section 859b applicable to continuances

ordered without good cause. According to the People, defendant has forfeited the

claim that good cause for the continuance did not exist. The Court of Appeal

declined to reach the issue of good cause or to decide whether defendant had

forfeited the claim, because it affirmed the trial court’s judgment on other grounds.

Because we reverse the judgment rendered by the Court of Appeal, that court on

remand may consider the question of whether good cause existed to continue the

preliminary examination.9


9

Like the Court of Appeal, we decline to reach the People’s various

forfeiture claims, because those claims were not timely raised in the appellate

(footnote continued on next page)

37

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IV

For the foregoing reasons, the judgment of the Court of Appeal is reversed

and the matter is remanded to that court for further proceedings consistent with

this opinion.

GEORGE, C. J.

WE CONCUR:

KENNARD, J.
MORENO, J.
CORRIGAN, J.




(footnote continued from previous page)

court. In addition, the People failed to raise the claims in their petition for review
in this court. (See Cal. Rules of Court, rule 29(b)(1).)

38

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CONCURRING AND DISSENTING OPINION BY CHIN, J.




I concur only with the judgment. I agree that the superior court erred in

granting defendant’s motion to set aside the information pursuant to Penal Code

section 995,1 but disagree that the magistrate erred in denying defendant release

on his own recognizance (OR). Under the California Constitution, defendant had

no right to be released on OR pending his preliminary examination, and the

magistrate acted reasonably within the bounds of his discretion in denying

defendant OR release for public safety reasons. (Cal. Const., art. I, § 12 (hereafter

article I, section 12).) Because defendant was not denied any right—let alone a

substantial right—at the preliminary hearing within the meaning of section 995, I

would reverse the contrary judgment of the Court of Appeal.

The conflict between article I, section 12 and section 859b.

Article I, section 12 of the California Constitution states, in pertinent part,

that “A person may be released on his or her own recognizance in the court's

discretion.”2 (Italics added.) It follows logically from this provision that, as a


1

Except as otherwise noted, all further statutory references are to the Penal

Code.

2

Article I, section 12 states, in full: “A person shall be released on bail by

sufficient sureties, except for:


“(a) Capital crimes when the facts are evident or the presumption great;

(footnote continued on next page)

1

---

matter of constitutional prerogative, a trial court may grant, or not grant, OR

release in its sound discretion. Article I, section 12 directs a court or magistrate, in

granting or denying OR release or in imposing OR conditions, to weigh

considerations relating to public safety that extend beyond those intended to

ensure subsequent court appearances. (In re York (1995) 9 Cal.4th 1133, 1143-

1144 & fn. 7, 1150 (York.)

In contrast, section 859b provides that, if the defendant is in custody and

the preliminary examination is set or continued beyond the 10-court-day period for

good cause, “the defendant shall be released pursuant to Section 1318” (italics

added) unless certain exceptions are met.3 Only one of the six exceptions

(footnote continued from previous page)

“(b) Felony offenses involving acts of violence on another person, or felony

sexual assault offenses on another person, when the facts are evident or the
presumption great and the court finds based upon clear and convincing evidence
that there is a substantial likelihood the person's release would result in great
bodily harm to others; or


“(c) Felony offenses when the facts are evident or the presumption great

and the court finds based on clear and convincing evidence that the person has
threatened another with great bodily harm and that there is a substantial likelihood
that the person would carry out the threat if released.


“Excessive bail may not be required. In fixing the amount of bail, the court

shall take into consideration the seriousness of the offense charged, the previous
criminal record of the defendant, and the probability of his or her appearing at the
trial or hearing of the case.


“A person may be released on his or her own recognizance in the court's

discretion.”

3

Under section 859b, the defendant need not be released on OR if:

“(1) The defendant requests the setting of continuance of the preliminary

examination beyond the 10-court-day period.


“(2) The defendant is charged with a capital offense in a cause where the

proof is evident and the presumption great.

(footnote continued on next page)

2

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arguably is concerned with public safety.4 Based on the language of section 859b,

the majority holds that a court has no discretion to deny OR release in the absence

of the specified exceptions, most of which are unrelated to public safety. Thus,

section 859b, as construed by the majority, conflicts with the plain words of article

I, section 12.

It is fundamental that a constitutional provision prevails over a conflicting

statutory provision. (Hart v. Jordan (1939) 14 Cal.2d 288, 292; Howard Jarvis

Taxpayers Assn. v. City of Roseville (2003) 106 Cal.App.4th 1178, 1188.) As

explained below, both the language and the history of the OR provision in article I,

section 12 establish that: (1) OR release is not a matter of right but a matter of

sound court discretion and (2) public safety is a relevant factor which a court

should consider in deciding OR release.

The relevant language is “[a] person may be released on his or her own

recognizance in the court's discretion.” (Art. I, § 12, italics added.) As the

majority acknowledges in another context, the word “may” is ordinarily deemed

(footnote continued from previous page)

“(3) A witness necessary for the preliminary examination is unavailable due

to the actions of the defendant.


“(4) The illness of counsel.

“(5) The unexpected engagement of counsel in a jury trial.

“(6) Unforeseen conflicts of interest which require appointment of new

counsel.”

4

The majority asserts that the Legislature accounted for public safety

interests in section 859b by authorizing the denial of OR release when there is a
capital charge or the defendant has acted to render a witness unavailable. (Maj. opn.,
ante, at p. 13.) However, the witness provision applies even if the defendant
caused the unavailability by nonviolent or nonthreatening means. Thus, the
witness provision appears more concerned with preventing defendants from
benefiting from their wrongdoings.

3

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permissive. (Maj. opn., ante, at p. 11.) Here, interpreting the word “may” as

permissive is consistent with the language “in the court’s discretion.” This

language, providing only for discretionary consideration of an application for OR

release, leaves no room for recognizing a statutory right to OR release. (Van Atta

v. Scott (1980) 27 Cal.3d 424, 452 (Van Atta) [creation of right to OR release

would contravene OR provision in article I, section 12].)

The history of article I, section 12 provides further support. That provision

was enacted by ballot Proposition 7, adopted by the voters in the November 5,

1974, General Election following a recommendation by the California

Constitutional Revision Commission. (Van Atta, supra, 27 Cal.3d at p. 453; Dant

v. Superior Court (1998) 61 Cal.App.4th 380, 384 (Dant).) Proposition 7

provided: “A person shall be released on bail by sufficient sureties, except for

capital crimes when the facts are evident or the presumption great. Excessive bail

may not be required.” [¶] A person may be released on his or her own

recognizance in the court’s discretion.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1974),

text of Prop. 7, p. 71; Van Atta, supra, 27 Cal.3d at p. 452, fn. 33.) The analysis

by the Legislative Analyst explained that: “Instead of being released on bail prior

to trial, the accused person may be released on his or her own recognizance at the

discretion of the court.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1974), analysis of

Prop. 7 by Legis. Analyst, p. 26, italics added.)

Previously, in 1971, the California Constitution Revision Commission had

recommended amending various provisions of the California Constitution. At that

time, the bail provisions of the Constitution were contained in article I, section 6,

but no mention was made of OR release in the Constitution. (Dant, supra, 61

Cal.App.4th at p. 385.) The commission proposed an OR clause, which

recognized the “well-established practice of releasing persons accused of crimes

4

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on their own recognizance.” (Proposed Rev. of Cal. Const., pt. 5, Cal. Const. Rev.

Com. (1971) p. 19.)

The revision commission noted that the proposed OR provision would

explicitly incorporate current OR practices that already existed in the law. The

commission stated: “The ‘Own Recognizance’ system presents a desired

alternative to the bail system, which frequently works an injustice on those who

cannot afford to post a bail bond. An individual who may be released on his own

recognizance is better able to defend himself and to avoid incarceration until

proved guilty. It is important to note that while release on bail is a matter of

right, release on personal recognizance is entirely at the court’s discretion and is

not a matter of right. The Commission recommendation will bring constitutional

language more in line with actual practices in the release of criminal defendants

and more consistent with contemporary concepts of social equity and fundamental

justice for all persons, regardless of their economic status.” (Proposed Rev. of

Cal. Const., pt. 5, Cal. Const. Rev. Com. (1971) p. 19, italics added; see also

(Ballot Pamp., Gen. Elec. (Nov. 5, 1974), analysis of Prop. 7 by Legis. Analyst, p.

26.)

When article I, section 12 was proposed and enacted, then Penal Code

section 1318 stated, in pertinent part: “Upon good cause being shown, any court or

magistrate who could release a defendant from custody upon his giving bail may

release such defendant on his own recognizance if it appears to such court or

magistrate that such defendant will surrender himself to custody as agreed, by

following the provisions of this article.” (Pen. Code, former § 1318, added by

Stats. 1959, ch. 1340, § 1, p. 3612 and repealed by Stats. 1979, ch. 873, § 11,

5

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operative Jan. 1, 1981.)5 Also, consistent with Proposition 7, then section 1318.2

provided: “The powers granted to a court or magistrate by this article are purely

discretionary and permissive. This article does not give any defendant the right to

be released on his own recognizance.” (Pen. Code, former § 1318.2, added by

Stats. 1959, ch. 1340, § 1, p. 3612 and repealed Stats 1979 ch. 873, § 11, operative

Jan. 1, 1981.)

As shown in its history, article I, section 12 (as originally enacted)

expressly provided a right to bail, while OR release was only a discretionary

alternative to release on bail as consistent with then sections 1318 and 1318.2.

(See Van Atta, supra, 27 Cal.3d at pp. 452-453; In re Smiley (1967) 66 Cal.2d 606,

613 [OR procedure is “simply an alternative to bail in appropriate cases”].)

In 1979, the Legislature reorganized the bail statutes and provided the

procedural framework for OR releases. (Stats. 1979, ch. 873; Dant, supra, 61 Cal.

App.4th at p. 385.) As part of the reorganization, it added newly enacted sections

1318 and 1270. (Stats. 1979, ch. 873, §§ 4, 12, pp. 3039, 3042-3043.) The OR

provision in former section 1318 was moved to section 1270. Section 1270,

subdivision (a) read, in pertinent part, “Any person, who has been arrested for or

charged with an offense other than a capital offense may be released on his or her

own recognizance by a court or magistrate who could release a defendant from

custody upon the defendant giving bail . . . .”6 (Stats. 1979, ch. 873, § 4, p. 3039,

italics added.) The 1979 statutory scheme regarding OR release remained

consistent with article I, section 12.


5

In 1973, the Legislature amended section 1318 to include within its

provision, “a defendant arrested upon an out-of-county warrant.” (Stats. 1973, ch.
620, § 2, p. 1144.)

6

The same language is contained in the current section 1270.

6

---

In 1982, the voters were presented with a ballot measure proposing an

amendment of article I, section 12 to allow courts to deny release on bail in the

interest of public safety. (Ballot Pamp., Primary Elec. (June. 8, 1982), Prop. 4, pp.

16-17.) The Attorney General’s official summary described the measure as adding

provisions to the Constitution “prohibiting release of persons on bail when [a]

court makes specified findings.” (Ballot Pamp., Primary Elec. (June 8, 1982),

Prop. 4, Official Title and Summary prepared by Atty. General, p. 16.) It

explained, “Release on felony offenses is prohibited where: (1) Acts of violence

on another person are involved and court finds substantial likelihood the person’s

release would result in great bodily harm to others. (2) The person has threatened

another with great bodily harm and court finds substantial likelihood the person

would carry out the threat.” (Ibid.) Similarly, the Legislative Analyst explained

the proposal “would broaden the circumstances under which the courts may deny

bail,” specifically, in felony cases under the above two sets of circumstances.

(Ballot Pamp., Primary Elec. (June 8, 1982), analysis of Prop. 4 by Legis. Analyst,

p. 16.)

Supporters of Proposition 4 touted the measure as a “significant

breakthrough on behalf of public safety,” allowing “judges to deny release on bail

to a defendant who is accused of committing any felony, be it violent or

nonviolent, in clear cases where the court finds based on clear and convincing

evidence that the defendant has threatened another with great bodily harm and that

there is a substantial likelihood that the person would carry out the threat if

released.” (Ballot Pamp., Primary Elec. (June 8, 1982), Prop. 4, argument in favor

of Prop. 4, p. 18.) After explaining to the electorate that “[p]resent law does not

allow judges in making bail decisions to consider public safety,” Proposition 4

supporters stressed the measure would “provide the judges with a necessary legal

tool to protect the public from repeat violent offenders.” (Ibid.)

7

---

Significantly, Proposition 4 retained article I, section 12’s provision

regarding discretionary OR release originally enacted by the voters in 1974.

(Ballot Pamp., Primary Elec. (June 8, 1982), text of Prop. 4, p. 17.) In passing

Proposition 4 on June 8, 1982, why would the voters approve of placing express

public safety limitations on the constitutional bail provision but not the OR release

provision?7 Because the prior constitutional bail provision gave a defendant an

absolute right to bail in noncapital cases and gave no discretion to the court to

deny bail, even where public safety was at stake. In contrast, the constitutional

OR provision already recognized the court’s discretion to deny OR release,

whether or not based on public safety considerations. In short, there was no

comparable need to place limitations on the granting of OR release.

From the history of article I, section 12, I infer the following: (1) although

pretrial bail continues to be a matter of right, the voters considered public safety a

paramount factor in determining whether that right even exists and (2) the voters

also wanted judges, in granting OR release as a discretionary alternative to bail, to

consider the same public safety interests. (See York, supra, 9 Cal.4th at p. 1143-

1144 & fn. 7 [article I, section 12’s OR provision incorporates public safety

concerns of bail provision].) To state these principles another way: “Any person

who has been arrested for, or charged with, an offense other than a capital offense

may be released on his or her own recognizance by a court or magistrate who

could release a defendant from custody upon the defendant giving bail . . . .”

(§ 1270, italics added.)


7

In 1994, the voters passed Proposition 189 which amended article I, section

12 by inserting “ ‘or felony sexual assault offenses on another person.’ ”
(Historical Notes, 1A West’s Ann. Const. (2002 ed.) foll. art. I, § 12, p. 89.)

8

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Here, in denying defendant OR release, the magistrate noted that “the file is

replete with incidents that obviously cause great concern.” Those “incidents”

included serious allegations: that defendant had dangled his two-year-old daughter

over the balcony railing of his second-story apartment; that he had hit his wife in

the face with his fist; that he had threatened to cut a neighbor’s throat; and that he

had choked and decapitated the family cat. Moreover, defendant was charged with

serious felonies and there had been some question about his mental competence.

The magistrate exercised his discretion by denying OR release for public safety

reasons.

The majority does not dispute that the magistrate exercised his discretion

reasonably. Rather, it finds that he had no discretion to deny OR release because

none of section 859b’s exceptions existed. How does the majority arrive at that

finding despite the conflict between section 859b and article I, section 12?

Without any citation to authority, it asserts that article I, section 12 simply does

not apply to OR release when used as a lesser remedy in place of dismissal “when

the prosecution for good cause obtains a continuance of the preliminary

examination beyond the statutorily prescribed 10-day period.” (Maj. opn., ante, at

p. 24; id. at p. 28.) It reasons: “[A]rticle I, section 12 never has been interpreted to

preclude the Legislature from prescribing dismissal of a proceeding — with the

resultant release of the defendant without condition — when the prosecution is

unable to proceed with the preliminary examination within 10 days. For similar

reasons, article I, section 12 does not preclude the Legislature from adopting a

lesser remedy or sanction when a defendant is not afforded a preliminary

examination within the time specified by statute but the prosecution has

established good cause for a continuance.” (Maj. opn., ante, at p. 24; id. at p. 28.)

This argument is a “red herring,” i.e., an attempt to divert attention from the

real question. (Oxford English Dictionary, <http://dictionary.oed.com> [as of

9

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June 5, 2006].) Article I, section 12 never has been interpreted to preclude the

Legislature from prescribing dismissal of a proceeding, because that constitutional

provision has nothing to do with court dismissals. Even if the Legislature can

require the greater sanction of dismissal, it does not necessarily follow that it can

adopt any remedy or sanction short of dismissal without regard to conflicting

constitutional provisions.

Article I, section 12 addresses bail and OR releases at the pretrial stage

without any specified exceptions relating to particular stages of the pretrial

proceedings. (York, supra, 9 Cal.4th at pp. 1139-1140.) In order to construe the

OR provision as the majority does, it would be necessary to insert additional

language to that provision to the effect that: “A person may be released on his or

her own recognizance in the court’s discretion, except: absent certain limited

circumstances, a person must be released on his or her own recognizance without

regard to public safety where there is a delay in prosecution even for good cause.”

“To insert [such] words into this section of the Constitution would give to it an

added meaning not to be found in the definite language of the section as adopted

by the people. ‘Courts are no more at liberty to add provisions to what is declared

[in the Constitution] in definite language, than they are to disregard existing

express provisions [of the Constitution].’ [Citations.]” (Ross v. City of Long

Beach (1944) 24 Cal.2d 258, 260.)

There is another reason why the majority’s assertion of the inapplicability

of article I, section 12 should be rejected. Section 1318 codifies the court’s

authority to place reasonable conditions on a criminal defendant who is released

on OR. (York, supra, 9 Cal.4th at p. 1144.) Article I, section 12 is the source of

that authority, as well as the authority to grant or deny OR release. (York, at p.

1143, fn. 7.) Significantly, section 859b expressly incorporates section 1318.

Thus, it would be anomalous to conclude that article I, section 12 applies to a

10

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section 859b situation regarding the imposition of OR conditions, but does not

apply regarding the discretionary authority to deny OR release.

The majority further argues that, “[e]ven in those situations to which article

I, section 12’s OR provision is directed, namely, when a defendant is placed on

OR as an alternative to being released on bail, article I, section 12 cannot properly

be interpreted to mean that a court invariably retains discretion to release a

defendant on OR and to preclude the Legislature from, for example, establishing

specific crimes for which OR release is not permitted. (Maj. opn., ante, at p. 25,

second italics added.) Again, the majority presents a red herring by proffering

hypotheticals that do not apply here. Section 859b does not establish specific

crimes for which OR release is not permitted. Rather, it abolishes any exercise of

discretion by forbidding a court or magistrate from denying OR release in the

interest of public safety, the very same interests that the voters were concerned

with in enacting Proposition 4. Thus, the majority’s decision today means that,

absent the limited exceptions in section 859b, courts must grant OR release to a

noncapital defendant who is charged with violent or serious felonies, has failed to

appear in court in the past, has threatened others with violence, and has committed

past acts of violence.

The majority invokes general separation of powers principles as support for

its claim that the Legislature may reasonably limit a court’s discretion with respect

to its inherent powers. (Maj. opn., ante, at pp. 25-27.) However, here, we have a

specific constitutional provision granting express discretionary authority to the

courts. Nevertheless, I do not dispute that the Legislature has the authority to

implement the standards and procedures set forth in article I, section 12 by

establishing reasonable guidelines and restrictions under which courts will

exercise their discretion. In other words, the Legislature can reasonably define

11

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what factors contribute to an abuse of discretion and forbid the unreasonable

exercise of discretion.

But I believe that, unlike section 859b, sections 1319, 1270, and 1270.1

merely codify the very same public safety interests that are contained in article I,

section 12 and designate those interests and other factors (including flight risk and

the defendant’s failure to appear in the past) that a court should consider in its

reasonable exercise of discretion. Thus, sections 1319, 1270, and 1270.1 are

consistent with article I, section 12. In contrast, section 859b (in taking away all

court discretion absent exceptional circumstances) “materially impairs” the trial

court’s exercise of its express constitutional power. (Le Francois v. Goel (2005)

35 Cal.4th 1094, 1103; see also maj. opn., ante, at p. 36 [“[t]he statute requires the

court to release the defendant on OR when the prosecution establishes good cause

for a continuance, and now that we have clarified that the statute imposes a

mandatory duty upon courts to release defendants on OR in the absence of a

showing that any of the exceptions to section 859b apply, we do not anticipate that

courts nonetheless will defy our holding and refuse to release defendants”].)

A defendant who is unable to post reasonable bail has no constitutional

right to be free from confinement on OR before trial. (York, supra, 9 Cal.4th at p.

1149.) Nevertheless, a defendant’s statutory right to a timely preliminary hearing

and the seriousness of keeping a defendant in custody before a determination of

probable cause are important considerations. However, courts should have the

discretion to make OR decisions on a case-by-case basis, weighing and balancing

those considerations and the hardship on the defendant with other factors such as

the length of the continuance and custody before the preliminary hearing, the

potential danger to other persons if the defendant is released, the seriousness of the

charged offense, the previous criminal record of the defendant, and the probability

that the defendant will appear for subsequent court proceedings if released. If

12

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courts have the broad discretion to weigh considerations relating to the public

safety in imposing OR conditions (York, supra, 9 Cal.4th at pp. 1144-1145), so too

should it have that same broad discretion in determining OR release.

I therefore conclude that section 859b on its face conflicts with article I,

section 12 because: (1) it establishes pretrial OR release as a matter of right absent

exceptional circumstances, most of which are unrelated to public safety and (2) it

removes a court’s discretion in considering public safety as a relevant factor in

deciding OR release. Consequently, I urge the Legislature to amend section 859b

in a manner that is consistent with the state constitution.

CHIN,

J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.

13

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Standish
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 123 Cal.App.4th 799
Rehearing Granted

__________________________________________________________________________________

Opinion No. S129755
Date Filed: June 5, 2006
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Thomas R. White

__________________________________________________________________________________

Attorneys for Appellant:

Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Brent D. Riggs, Patrick D.
Moran and Shirley S. N. Sun, Deputy District Attorneys, for Plaintiff and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Michael P. Judge, Public Defender, Robert M. Wilder and John Hamilton Scott, Deputy Public Defenders,
for Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Shirley S. N. Sun
Deputy District Attorney
320 West Temple, Suite 540
Los Angeles, CA 90012-3213
(213) 974-5921

John Hamilton Scott
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3050

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Opinion Information

Date:	Docket Number:
Mon, 06/05/2006	S129755

Disposition
Jun 5 2006	Opinion: Reversed

Dockets
Dec 7 2004	Petition for review filed   by Los Angeles District Attorney as counsel for appellant
Dec 7 2004	Record requested
Dec 8 2004	Received Court of Appeal record   one doghouse
Dec 21 2004	Answer to petition for review filed   by Public Defender for respondent
Feb 2 2005	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Mar 4 2005	Request for extension of time filed   by appellant The People, asking to 3-25-05 to file opening brief on the merits
Mar 9 2005	Extension of time granted   To March 25, 2005 to file appellant's opening brief on the merits.
Mar 25 2005	Opening brief on the merits filed   appellant The People.
Apr 22 2005	Request for extension of time filed   by Depputy Public Defender for respondent asking to May 23, 2005 to file answer brief on the merits
May 3 2005	Extension of time granted   To May 23, 2005 to file respondent's answer brief on the merits.
May 23 2005	Answer brief on the merits filed   respondent Jared Jacob Standish
Jun 13 2005	Request for extension of time filed   by apellant The People to file reply brief/merits, requesting to July 5, 2005
Jun 17 2005	Extension of time granted   To July 5, 2005 to file appellant's reply brief on the merits.
Jul 6 2005	Received:   application to file late Reply Brief. [L.A. DA.]
Jul 12 2005	Reply brief filed (case fully briefed)   with permission. Appellant (The People) by counsel.
Feb 8 2006	Case ordered on calendar   March 7, 2006, at 1:30 p.m., in San Francisco
Feb 17 2006	Filed letter from:   Deputy Public Defender John Hamilton Scott, on behalf of respondent Standish "... it is stipulated that the Honorable Ming W. Chin, J., may participate in the above-referenced matter even though he will not be present at oral argument."
Feb 21 2006	Filed letter from:   Lael Rubin, Head Deputy District Attorney, on behalf of appellant The People "Appellant, the People of the State of California, hereby stipulates that the Honorable Ming W. Chin, J., may participate in [the case] even though he will not be present at oral argument."
Mar 7 2006	Cause argued and submitted
Jun 5 2006	Opinion filed: Judgment reversed   and remanded to the Court of Appeal for further proceedings. Majority Opinion by George, C.J. ----------------joined by Kennard, Moreno, Corrigan, JJ. Concurring and Dissenting Opinion by Chin, J.------------------joined by Baxter, Werdegar, JJ.
Jun 20 2006	Rehearing petition filed   by the County Public Defender for respondent Jared Jacob Standish John Hamilton Scott, Deputy Public Defender
Jun 26 2006	Time extended to consider modification or rehearing   to 9-1-06
Jun 28 2006	Answer to rehearing petition filed   Los Angeles District Attorney, appellant Shirley S.N. Sun, Deputy District Attorney
Aug 23 2006	Rehearing denied   Opinion modified. Werdegar, J., is of the opinion the petition should be granted. Corrigan, J., was absent and did not participate.
Aug 23 2006	Opinion modified - no change in judgment
Aug 24 2006	Remittitur issued (criminal case)

Briefs
Mar 25 2005	Opening brief on the merits filed
May 23 2005	Answer brief on the merits filed
Jul 12 2005	Reply brief filed (case fully briefed)

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