Filed 3/17/16
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Appellant,
                                                     A141407
v.
LOUIS CLARK SMITH,                                   (Sonoma County
                                                     Super. Ct. No. SCR-640203)
        Defendant and Respondent.


        The People appeal from an order dismissing heroin possession charges against
Louis Clark Smith. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 1238,
subds. (a)(1) & (a)(8).)1 At a combined preliminary hearing and motion to suppress, the
prosecutor moved for a continuance. The court found no good cause for a continuance,
denied the prosecution’s motion, and granted a motion to dismiss the complaint. The
People appeal, arguing it was error to deny a continuance and order dismissal. We agree,
and will reverse.
                                       BACKGROUND
        By felony complaint, the Sonoma County District Attorney charged Smith with
possession of heroin. (Health & Saf. Code, § 11350, subd. (a)). Smith was arraigned
September 18, 2013, and some months later, after failing to meet the conditions of
diversion, entered a plea of not guilty February 24, 2014, invoking his right to a
preliminary hearing “at the earliest possible time” (§ 859b). To comply with section
859b, which specifies that a “preliminary examination shall be held within ten court days
of the date the defendant is arraigned or pleads,” the hearing was set for March 6, 2014,

        1
            Statutory references are to the Penal Code unless otherwise specified.


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with an acknowledgment that March 10, 2014, was the tenth day for purposes of section
859b.
        When the case was called on the morning of March 6, the trial court and counsel
for the defense indicated readiness to proceed, but the prosecutor, who had given no prior
notice of any need for a continuance, made an oral request to continue the hearing under
section 1050 because her office was “having issues with the drug lab this week” and the
drug lab testing and results were not finished. Specifically, the prosecutor requested a
continuance to “the tenth day,” Monday, March 10, 2014, “in hopes that the test results
will be available by then.”
        The court inquired of the prosecutor when she learned that the lab results were not
going to be ready for the hearing. She responded she had been assured as of the previous
day the results would be ready in time for the hearing, but she found out that morning—
March 6—the drugs were not even at the lab yet. She advised the court the drugs would
be at the lab “today[,] and they will, hopefully, be done by Monday.” She explained the
reason for the delay was “the person from the Santa Rosa Police Department [who] was
supposed to take [the drugs to the lab] decided to schedule today to be the day to take
them there instead of the day we asked them to.” The defense made no attempt to make
any showing it would be prejudiced if the continuance were granted.
        After considering the prosecutor’s explanation, the court declined to find good
cause for a continuance. The record is somewhat obscure as to what happened next, but
the parties are now in agreement about the disposition—the court denied the People’s
section 1050 motion, and granted a motion to dismiss the complaint.2 A timely appeal by
the People followed.
                                      DISCUSSION
        We review the trial court’s denial of a continuance motion for abuse of discretion.
(People v. Henderson (2004) 115 Cal.App.4th 922, 934 (Henderson).) The dismissal of

        2
        The record is silent as to who moved to dismiss the complaint. We assume
defense counsel did, presumably based on the fact that the prosecutor could not move
forward with the preliminary hearing as scheduled.

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charges under section 1385 is also reviewed for abuse of discretion. (People v. Pedroza
(2014) 231 Cal.App.4th 635, 650.) For the reasons explained below, we conclude that
the trial court misapplied sections 1050 and 859b, and thus that its denial of the
prosecutor’s request for a continuance and its dismissal of the complaint each constituted
an abuse of discretion, warranting reversal. (See Prigmore v. City of Redding (2012) 211
Cal.App.4th 1322, 1334 [“It is an abuse of discretion for a trial court to misinterpret or
misapply the law”].)
       Section 1050 governs motions for continuance of trial and other specified
proceedings in criminal cases. Generally, either party must file a written notice of a
request to continue a matter covered by section 1050 at least two court days prior to
commencement of the hearing or proceeding involved. (§ 1050, subd. (b).) In some
circumstances, a party may make a motion for a continuance without complying with the
two-day notice requirement, but must show good cause for non-compliance. (§ 1050,
subds. (c), (d).) If the moving party is unable to show good cause for failing to give
proper notice, the motion shall not be granted (§ 1050, subd. (d)) and the court is
empowered to impose sanctions pursuant to section 1050.5 (§ 1050, subd. (c)). If, on the
other hand, the court finds that failure to follow the subdivision (b) notice requirements is
supported by good cause, the court must proceed to hear the motion and may grant the
continuance but only upon a further showing of good cause for the continuance itself.
(§ 1050, subds. (e), (f).) Subdivision (l) of section 1050 indicates section 1050 is
“directory only and does not mandate dismissal of an action by its terms.”
       Subdivision (k) of section 1050 provides that “section [1050] shall not apply when
the preliminary examination is set on a date less than 10 court days from the date of the
defendant’s arraignment on the complaint, and the prosecutor or the defendant moves to
continue the preliminary examination to a date not more than 10 court days from the date
of the defendant’s arraignment on the complaint.” (§ 1050, subd. (k), italics added.) A
related statute, section 859b, establishes speedy preliminary hearing rights and reads 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


                                              3
for a continuance is found as provided for in Section 1050, 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 . . . .” Additionally, “[w]henever 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 . . .” unless the defendant personally waives his right to have a preliminary
hearing within 10 court days or the prosecutor establishes good cause for a continuance
beyond the 10-day period. (§ 859b.)
        Before turning to the core question presented here, we note preliminarily that this
case involves a hearing set on a date more than five months after Smith’s arraignment,
and that, by its terms, the 10-day period described in 1050, subdivision (k), runs from the
date of “the defendant’s arraignment.” Although the language of subdivision (k) does not
track precisely the wording of section 859b, which speaks of “the date the defendant is
arraigned or pleads” (§ 859b, italics added), we read section 1050, subdivision (k), in
pari materia with section 859b. (See People v. Tran (2015) 61 Cal.4th 1160, 1168
[statutes that relate to the same thing or have the same purpose or object are considered to
be in pari materia and similar phrases appearing in each “ ‘ “should be given like
meanings” ’ ”].) We therefore construe the 10-day period referenced in subdivision (k) to
run from the date of either arraignment or plea, consistent with the language of section
859b.
        When sections 859b and 1050 are read together, it is plain that section 1050 does
not apply to a request to continue a preliminary hearing if the continuance request and the
requested future date fall within the statutory 10-day time limit. Our analysis pivots on
the exact posture of this case at the time of the denial of the prosecutor’s continuance
request. Smith, who was in custody at the time of the March 6 preliminary hearing, had
not waived his right to have a hearing within 10 court days of the entry of his plea. (See
§ 859b.) The prosecutor’s request on the morning set for hearing was simply to continue
the case to the last, or tenth, day of March 10, and not beyond that date. With this


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procedural posture in mind, it is clear that subdivision (k) exempts the case from section
1050. And because the prosecution’s continuance request did no violence to the
defendant’s speedy hearing rights, section 859b did not mandate dismissal. In the
absence of statutory authority mandating dismissal, the question becomes whether the
trial court was permitted to dismiss the charges against Smith in the circumstances
presented here. The answer is no.
        As we read section 1050, subdivision (k) in light of section 859b, either party is
presumptively entitled to a continuance, without having to provide notice or make a good
cause showing under section 1050, so long as the request and the requested date fall
within the 10-day statutory deadline set by section 859b. The notice and good cause
requirements of section 1050 are inapplicable in those circumstances. Giving the parties
the benefit of presumptive entitlement to calendar relief within this narrow 10-day
window of time makes good practical sense because it recognizes that witness
calendaring difficulties, lab problems or myriad other case preparation issues can occur,
and may present unmanageable readiness problems—for either side—within such a short-
fuse period. Accordingly, it was error to deny prosecution’s continuance request for
failure to make a good cause showing. The dismissal for lack of readiness, which was the
inevitable consequence of erroneously denying the continuance, was perforce error as
well.
        The People cite a number of cases involving unauthorized dismissal of charges
based on prosecutorial lack of readiness to proceed in various other procedural settings
(see People v. Ferguson (1990) 218 Cal.App.3d 1173 [prosecutor sought continuance of
trial to date within 10-day statutory grace period where defendant waived 60-day
statutory time limit]; Henderson, supra, 115 Cal.App.4th 922 [prosecutor requested
continuance of preliminary hearing to date within 60-day statutory period]; People v.
Ferrer (2010) 184 Cal.App.4th 873 (Ferrer ) [prosecutor requested continuance of
motion to suppress hearing to date within 60-day statutory period]), but we do not find
any of these cases to be controlling. Factually, none of the procedural circumstances in
them matches what we have here, and legally, none of the continuance requests at issue


                                              5
in those cases was exempt from section 1050 pursuant to subdivision (k), as was the
request in this case.
       While Ferguson, Ferrer, and Henderson are not controlling, they are nonetheless
instructive. Henderson best illustrates why, since procedurally it bears the closest
resemblance to our case. There, the prosecutor sought to continue a preliminary hearing
date without adhering to the notice requirements of section 1050. (Henderson, supra,
115 Cal.App.4th at pp. 928–929.) Henderson, who was out on bail, had waived his right
to a preliminary hearing within 10 court days, but had evidently not waived his right to
have the hearing within 60 calendar days as specified in section 859b. (Id. at pp. 929,
940.) On the date set for the hearing, the prosecutor moved to continue the hearing to a
new date within the 60-day time period. (Id. at p. 928.) In making the motion, the
prosecutor “informed the court that she was unable to contact or locate the victim. . . . [¶]
Upon further inquiry by the court, the prosecutor admitted that, while the district
attorney’s office had mailed the victim a subpoena prior to the . . . hearing, [she] had
failed to make any additional efforts to secure the victim’s presence. Without its
witnesses, the prosecution was unprepared to proceed.” (Ibid.) In these circumstances,
the court denied the continuance motion for lack of good cause, and dismissed the case
for lack of readiness to proceed. (Id. at p. 929.) The appellate court reversed, holding it
was error to deny the prosecutor’s continuance request, and it was error, in turn, to
dismiss the charges against Henderson. (Id. at pp. 942–943.)
       The Henderson court treated the dismissal in that case as an unauthorized sanction
under section 1050 because dismissal was an unavoidable and direct consequence of the
denial of the continuance. (Henderson, supra, 115 Cal.App.4th at pp. 935–936.) The
court concluded that section 1385, which allows a trial court to dismiss an action “in
furtherance of justice,” did not provide authority for dismissal of the action either. (115
Cal.App.4th at p. 936.) Comparing section 1382, the statute designating “speedy trial”
time-limits, with the “speedy preliminary hearing” strictures of section 859b, the court
noted that “both sections 1382 and 859b establish statutory limits to safeguard a
defendant’s constitutional right to a speedy trial.” (Id. at p. 939.) Just as the statutory


                                              6
limits in section 1382 establish a presumptively reasonable time period for speedy trial
purposes, the court explained, so too do the statutory periods in section 859b “indicate a
legislative policy that such periods constitute a reasonable time.” (Ibid.) Thus, the court
“conclude[d] that the trial court has no authority to dismiss an action, even when the
People have failed to show good cause for a continuance under section 1050, so long as
the requested date for the preliminary hearing is within the statutory time limit
established in section 859b.” (Ibid.)
       The same reasoning applies here, even though section 1050 in terms does not.
Indeed, there was even less justification for dismissal here than there was in Henderson,
since whatever shortcoming the court found in the prosecution’s continuance motion in
this case did not rise to the level of a statutory violation. Although Henderson was a
section 859b 10-day waiver case and thus implicated a different statutory time period—
60 days from arraignment or plea, instead of 10 days from arraignment or plea—that
court’s rationale still fits this case by analogy. Section 859b establishes a presumption
that continuances requested within the 10-day statutory speedy preliminary hearing time-
period are reasonable, and, in the absence of any showing of prejudice from the defense,
such motions should be granted without any requirement of advance notice or any
showing of good cause. We recognize that a defendant has a right to a speedy
preliminary hearing, but the prosecutor too has a strong interest at stake—“ ‘ “the fair
prosecution of crimes properly alleged” ’ ” (People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 531)—and thus, as the Henderson court explained, a “ ‘ “ ‘ “dismissal
which arbitrarily cuts those rights without a showing of detriment to the defendant is an
abuse of discretion.” ’ ” ’ ” (Henderson, supra, 115 Cal.App.4th at p. 938, italics
omitted.)3

       3
         Smith argues that this rationale, articulated in both Henderson and Ferrer, is
ultimately rooted in People v. Orin (1975) 13 Cal.3d 937 (Orin), the lodestar California
Supreme Court case construing section 1385. According to Smith, the reticence
expressed in Orin toward section 1385 dismissals for lack of readiness applies only
where the trial court would be dismissing charges supported by probable cause. Arguing
that there was no indication in Henderson or Ferrer that the dismissed charges in those

                                             7
        We “recognize that our decision restricts the options available to the trial court in
responding to a motion for continuance that is not properly noticed and is unsupported by
good cause.” (Ferrer, supra, 184 Cal.App.4th at p. 885.) But regardless of which side
fails to meet the court’s expectations for diligent attention to the calendar, the prosecution
or the defense, “other sanctions, including fines and the filing of reports with appropriate
disciplinary committees, are available . . . .” (Ibid.) Although thinly supported, eleventh
hour continuance requests can be administratively disruptive, when the prosecution is the
offending party “ ‘dismissal “is not appropriate, and lesser sanctions must be utilized by
the trial court, unless the effect of the prosecution's conduct is such that it deprives the
defendant of the right to a fair trial. [Citation.]” ’ (Henderson, [supra, 115 Cal.App.4th
at] p. 940, fn. omitted.) And, of course, the trial court may exercise its discretion in
selecting the length of a continuance; it need not necessarily accede to the [moving
party’s] preferred date.” (Ferrer, supra, at pp. 885–886.)4


cases were supported by probable cause (in fact, the hearing at issue in Ferrer occurred
after a holding order issued), he contends that both cases were wrongly decided. We
think he reads too much into Orin. The language from Orin that he emphasizes (see
Orin, supra, 13 Cal.3d at pp. 946–947 [“appellate courts have shown considerable
opposition to the granting of dismissals under section 1385 in instances where the People
are thereby prevented from prosecuting defendants for offenses of which there is
probable cause to believe they are guilty as charged”], italics added) appears to be
dictum. No subsequent case in the 40-year body of precedent applying Orin relies upon
that passage as a ground for its holding. In any event, we have no occasion to address the
scope of a trial court’s power to dismiss charges under section 1385 on a record where
the court properly and correctly finds that the prosecution has failed to support a request
for a continuance. Here, the prosecution was entitled to the continuance it requested.
       4
         The court in Ferrer mentioned monetary sanctions authorized by section 1050.5,
a form of lesser sanctions which would not be available in the setting we have here, given
the inapplicability of section 1050. (Ferrer, supra, 184 Cal.App.4th at p. 885.) But rules
governing when and how continuance requests are to be made and what is necessary to
support them may be promulgated by local rule or courtroom rule (People v. Ward (2009)
173 Cal.App.4th 1518, 1528 [“As this court has observed, trial courts have the inherent
power, derived from the state Constitution, to control the proceedings before them.
[Citations.] The courts may adopt their own rules of procedure so long as those rules are
not inconsistent with due process, statutes, or statewide rules of court.”]), and any such

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                         CONCLUSION AND DISPOSITION
       The issue presented here is a narrow one and so is our ruling. Because Smith did
not and could not complain that his right to a speedy preliminary hearing under section
859b had been violated or demonstrate any other form of prejudice, it was an abuse of
discretion to deny the prosecution’s continuance request and order the charges against
him dismissed. We therefore reverse the denial of the People’s motion for continuance
and the dismissal of the complaint. Upon remand, the 10-day period established by
section 859b shall run from the date of issuance of the remittitur.



                                                  _________________________
                                                  Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




rules may be enforced, where appropriate, by imposing monetary sanctions under Code
of Civil Procedure section 177.5, which applies in civil as well as criminal proceedings.
(Id. at pp. 1527–1528; People v. Tabb (1991) 228 Cal.App.3d 1300, 1305–1310; People
v. Muhammad (2003) 108 Cal.App.4th 313, 323–324.)



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People v. Smith (A141407)

Trial Court:                           Sonoma County Superior Court


Trial Judge:                           Hon. Knoel Owen


Counsel for Plaintiff and Appellant:   Jill R. Ravitch
                                       District Attorney, County of Sonoma

                                       William S. Mount
                                       Deputy District Attorney


Counsel for Defendant and Respondent: Jonathan Soglin, Executive Director
                                      L. Richard Braucher, Staff Attorney
                                      First District Appellate Project




                                         10
