Filed 10/15/14

                           CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                       DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B250350
                                                           (Super. Ct. No. 1421891)
     Plaintiff and Appellant,                               (Santa Barbara County)

v.

JEFFREY COWEN LIND et al.,

     Defendants and Respondents.




                 Penal Code section 995, subdivision (a)(2)(A) requires the trial court to
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set aside an information if the defendant is not legally committed by a magistrate.
Section 859b requires a preliminary hearing to be held within 60 days of the entry of a
not guilty plea unless time has been personally waived by the defendant. Here, we
determine that a defendant's motion to disqualify the magistrate for cause tolls the time
limit for a preliminary hearing.
                 The People appeal the trial court's order granting Jeffery Cowan Lind's
and Dee Thomas Murphy's motion to set aside an information that charges them with
conspiracy to commit perjury and perjury. (§§ 182, subd. (a)(1) & 118, subd. (a).)
The People contend the motion to disqualify the magistrate suspended the time limit in

1
  All further statutory references are to the Penal Code, unless otherwise noted. All
references to section 995 are to subdivision (a)(2)(A).
section 859b and that the trial court erred by setting aside the information. Lind and
Murphy claim they never waived their constitutional right to a speedy trial and argue
that section 859b unequivocally requires the information to be dismissed. We reverse
the order granting the motion to set aside the information.
                         FACTS AND PROCEDURAL HISTORY
              On July 24, 2012, a felony complaint was filed jointly charging
Respondents with one count of conspiracy to commit perjury and one count of perjury.
It was also alleged that the crimes were committed after Respondents posted bail and
were released from custody. (§ 12022.1, subd. (b).) Respondents have been at liberty
since posting bail in the instant case.
              The case was assigned to Judge Dandona. On July 26, 2012, she
appointed counsel to represent Respondents and on August 16, 2012, Respondents
entered pleas of not guilty. Respondents did not waive their right to a speedy trial on
the day they entered their pleas or at any time thereafter. Neither Lind nor Murphy
ever asked the court for severance.
              At the request of Murphy's counsel, a preliminary hearing was
calendared for August 30, 2012. On August 27, 2012, Murphy's counsel requested a
continuance of the preliminary hearing that, although opposed by the prosecutor, was
granted. The preliminary hearing was continued to September 13, 2012.
              On August 27, 2012, Murphy filed a motion to recuse the prosecutor
assigned to the case on the ground that he had an improper ex-parte communication
about this case with the judge who supervises the court's criminal division. On
August 30, 2012, Murphy's counsel filed a request to disqualify Judge Dandona for
cause. (Code Civ. Proc., § 170.1, subd. (a)(6)(iii).) Murphy alleged that a reasonable
person might believe Judge Dandona could not be impartial because he named her as a
"party" in a document filed in proceedings directly related to the pending perjury
charges. On September 10, 2012, Judge Dandona filed her written response to the



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challenge for cause, asserting she could impartially manage the case against
Respondents.
               Judge Jeffrey Bennett of the Ventura County Superior Court was
appointed to determine the request for disqualification which he granted. The ruling
was served on October 9, 2012 and on October 11, 2012 the matter was reassigned to
Judge George Eskin – 42 days after Murphy filed his motion to disqualify Judge
Dandona. Judge Eskin set the preliminary hearing and the motion to recuse the
prosecutor for hearing on October 25, 2012.
               On October 25, 2012, Murphy's counsel requested a continuance of the
preliminary hearing and his motion to recuse the prosecutor to give him time to file a
reply to the response filed by the Attorney General to the recusal motion. The dialog
between the court and counsel about this request for a continuance included a
discussion of the timeliness of the preliminary hearing. The prosecutor indicated that
he believed Murphy's statement of disqualification for cause of Judge Dandona "stayed
the proceedings" and said a continuance to November 7, 2012, was acceptable. The
court then acceded to the request of both sides and continued the motion and the
preliminary hearing to November 7, 2012.
               On November 7, 2012, the court denied the motion to recuse and denied
the Respondents' oral motion to set aside the information based upon a violation of
section 859b. After considering the oral and documentary evidence, Judge Eskin held
Respondents to answer to the information.
               On February 6, 2013, pursuant to section 995, Murphy moved to set
aside the information based upon the prosecutor's failure to have a preliminary hearing
within 60 days. The People opposed the motion on the ground that the delay could "be
attributed in its entirety [to] the defendants'" motions to disqualify the trial judge and
to recuse the prosecutor and to their various requests for a continuance. Citing People
v. Kowalski (1987) 196 Cal.App.3d 174 and Curry v. Superior Court (1977) 75
Cal.App.3d 221, the People argued "there is an exception to the absolute time period"


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for defendants who challenge the assigned judge for cause and thus "prevent the
hearing of the preliminary hearing."
               On June 6, 2013, the trial court granted Respondents' section 995
motion and dismissed the information. The court noted that neither statutory nor
decisional law tolls or suspends the statute that states a preliminary hearing must be
held within 60 days after the defendant enters a plea. The court also refused to
impute to Respondents delays caused by their counsels' various requests for a
continuance.
                                       DISCUSSION
                       The Right to a Timely Preliminary Hearing
               Section 859b states: "Both the defendant and the [P]eople 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 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 . . . . [¶] 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, . . . 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, those
cases involving allegations that a violation of one or more of the sections specified in
subdivision (a) of Section 11165.1 or in Section 11165.6 has occurred and the
prosecuting attorney assigned to the case has another trial, preliminary hearing, or
motion to suppress in progress in that court or another court. 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,


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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 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 pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2, unless the defendant personally
waives his or her right to a preliminary examination within the 60 days." (Italics
added.)
                               Exceptions to Section 859b
              "We interpret statutes with the object of ascertaining and effectuating
the Legislature's intent. [Citation.] '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.' [Citation.]" (People
v. Standish (2006) 38 Cal.4th 858, 869.) "'"If the words of the statue are clear, the
court should not add to or alter them to accomplish a purpose that does not appear on
[its] face . . . ."' [Citation]" (People v. Mackey (1985) 176 Cal.App.3d 177, 184.)
              In In re Samano (1995) 31 Cal.App.4th 984, we noted exceptions that
temper the "absolute" rule requiring a defendant to be released if the preliminary
examination is set or continued beyond 10 court days from the time of the arraignment
or plea. (Id., at p. 990.) The exceptions are based upon "constitutional principles and
principles affecting the administration of justice." (Ibid.) Some appear in the statute
and decisional law creates others. (Ibid.; Ng v. Superior Court (1992) 4 Cal.4th 29, 38
[the 10-day rule applies only to persons in custody solely by reason of the charges that


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are the subject of the preliminary hearing]; People v. Kowalski, supra, 196 Cal.App.3d
at p. 179 [where a defendant asserts both his right to a preliminary hearing within 10
court days and his right to effective counsel, the constitutional right prevails]; Curry v.
Superior Court, supra, 75 Cal.App.3d at p. 226 [when a defendant's mental
competence to be self-represented and the need to resolve the issue within the 10-day
court rule are in conflict, the right of self-representation prevails].)
              Although the 60-day rule is also stated as an absolute, the clearly stated
legislative purpose of section 859b is not served if the 60-day mandate is construed in
a manner that permits a defendant to divest the court of jurisdiction to hold a
preliminary hearing and at the same time complain that his or her preliminary hearing
was not held "at the earliest possible time."
              After Murphy filed his motion to disqualify Judge Dandona pursuant
to Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), she had no
power to act in this case until the question of her disqualification was determined.
(Id., § 170.4, subd. (d).) "[T]he filing of a sufficient statement has the effect of
temporarily suspending the challenged judge's jurisdiction in order to permit him to
file his answer to such statement and to have the matter of his disqualification
thereupon determined by another judge. The said judge may after the hearing thereof
determine that the challenged judge is not disqualified, in which event the latter's
jurisdiction is reinstated. . . . . In the present case Judge Callaghan was ousted of
jurisdiction temporarily when the statement was filed, and lost jurisdiction
permanently when he did not file an answer to the statement within the mandatory
five-day limit. [Citations.] Accordingly, Judge Callaghan being so disqualified, he
totally lacked power to hear and determine the instant cause, and therefore the superior
court had no jurisdiction to act while said judge sat therein. [Citation.]" (Oak Grove
School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678,
706.)
              Code of Civil Procedure section 583.450, subdivision (a) mandates that


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"[i]n computing the time within which an action must be brought to trial . . ., there
shall be excluded the time during which . . . [t]he jurisdiction of the court to try the
action was suspended." Although the Code of Civil Procedure does not specifically
apply to criminal proceedings, its common sense principles do. It is absurd to construe
section 859b to mean the 60-day time limit for a preliminary hearing continues to run
when the magistrate is powerless to conduct the hearing because of a motion filed by
the defendant.
              A defendant's constitutional right to a speedy preliminary hearing is not
infringed by the suspension of the 60-day rule for the time it takes to resolve that
defendant's challenge to the impartiality of the judge assigned to his or her case. The
efficient administration of criminal justice is not served by the construction urged by
Respondents because it would empower defendants to delay filing a disqualification
motion until shortly before the 60-day period is scheduled to expire. If the remaining
time were insufficient to permit the magistrate to answer and to have the matter heard
by another judge, the magistrate would be forced to consent to disqualification or
allow the case to be dismissed.
              People v. Mackey, supra, 176 Cal.App.3d 177 does not require a
different outcome. There, the People argued that the 60-day period was suspended
during the period of the defendant's waiver of the 10-day limit. The court rejected
the contention, noting "section 859b makes no mention of suspension of the running
of the 60-day period. In clear, unambiguous language the final paragraph of section
859b . . . states that the complaint shall be dismissed if the preliminary examination is
set more than 60 days from the arraignment or plea . . . ." (Id., at p. 183.) But Mackey
does not address and is not authority for the proposition that a motion filed by the
defendant that temporarily divests the court of jurisdiction to hold a preliminary
hearing does not temporarily suspend the 60-day limit.
                          Severance on the Court's Own Motion
              Lind claims that he did not join in Murphy's motion to disqualify Judge


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Dandona and contends he was entitled to have his preliminary hearing within 60 days
whether Murphy was or not. Lind argues the trial court, on its own motion, should
have severed his preliminary hearing to preserve his statutory right to a preliminary
hearing within 60 days. We disagree.
              First, Lind's counsel announced at the hearing on Murphy's motion to
recuse the prosecutor that "we're joining [Murphy's] disqualification motion of your
honor" and then agreed to a continuance of the recusal motion and the preliminary
hearing. Second, Lind never asked the court to sever the charges and proceed with a
preliminary hearing as to him alone.
              "Section 954 governs joinder and severance, providing in pertinent part:
"An accusatory pleading may charge . . . two or more different offenses of the same
class of crimes or offenses, under separate counts . . . provided, that the court in which
a case is triable, in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the accusatory
pleading be tried separately . . . ." Lind's "failure to move to sever the counts at trial
forfeited any claim that the trial court abused its discretion in denying severance."
(People v. Rogers (2006) 39 Cal.4th 826, 850-851; see People v. Maury (2003) 30
Cal.4th 342, 392; People v. Hawkins (1995) 10 Cal.4th 920, 939-940.) "[T]he trial
court had no statutory duty to order severance on its own motion. (Rogers, supra, at p.
851.)
              People v. Ramos (2007) 146 Cal.App.4th 719, addresses the question of
whether a waiver by two of three defendants to continue a preliminary hearing beyond
the 60-day limit of section 859b permits an order denying a timely preliminary hearing
for the third defendant who refuses to waive time. As in Mackey, Ramos does not
address the effect of a motion by a codefendant that suspends the trial court's ability to
act. Here, Lind forfeited his claim that the trial court had a duty to sever his
preliminary hearing by not objecting to the suspension of proceedings against him and
by not asking the trial court to sever the pending charges and to assign the matter for a


                                             8
preliminary hearing before another magistrate.


                                     CONCLUSION
               The judgment of dismissal is reversed and remanded for further
proceedings.
               CERTIFIED FOR PUBLICATION.




                                           BURKE, J.*


We concur:



               YEGAN, Acting P. J.



               PERREN, J.




       * (Judge of the Superior Court of San Luis Obispo County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)

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                             Clifford Anderson III, Judge
                               George C. Eskin, Judge
                                 Jean Dandona, Judge

                       Superior Court County of Santa Barbara
                        ______________________________


             Joyce E. Dudley, District Attorney of Santa Barbara, Brian J. Cota,
Deputy District Attorney for Plaintiff and Appellant.
             Raimundo Montes De Oca, Public Defender, J. Jeff Chambliss, Chief
Trial Deputy for Defendant and Respondent Jeffrey Cowen Lind.
             Dwyer + Kim LLP, Jin H. Kim for Defendant and Respondent Dee
Thomas Murphy.
