# Mendoza v. Superior Court

> California Court of Appeal · September 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11138349

## Case

- **Court:** California Court of Appeal
- **Decided:** September 15, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 9/15/25
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CARLOS MENDOZA,
Petitioner,
A173171
v.
THE SUPERIOR COURT OF THE (San Francisco City & County
CITY AND COUNTY OF SAN Super. Ct. No. 24020828)
FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.

Section 859b of the Penal Code 1 governs a defendant’s so-called “speedy
preliminary hearing” rights and mandates dismissal of a felony complaint if
the preliminary examination is set or continued more than 60 days from the
date of an arraignment or plea, whichever is later, unless the defendant
personally waives such time limit. Here, Carlos Mendoza petitions for writ of
mandate or prohibition seeking dismissal of an information against him
because his preliminary hearing occurred more than 60 days from the date of
his arraignment and plea to the original complaint, even though the hearing
occurred within 10 court days from the date of his arraignment and plea to
an amended complaint.

1 All further undesignated statutory references are to the Penal Code.

1
Although Mendoza’s petition is now moot, we exercise our discretion to
address the unresolved legal question whether an arraignment or plea on an
amended complaint restarts the statutory 60-day period for holding a
preliminary hearing. Considering the language and purpose of section 859b
and its place in the overall statutory scheme governing the amendment,
dismissal, and refiling of complaints, as well as case law emphasizing the
absolute nature of the 60-day limit, we conclude that where, as here, a
defendant does not personally waive the limit when being arraigned or
entering a plea on an original complaint, an arraignment or plea that is
necessitated by an amended complaint does not restart a new 60-day period
for purposes of section 859b.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arraignment and Plea on the Original Complaint
On November 8, 2024, the People filed a felony complaint charging
Mendoza with second degree robbery (§ 211, count 1) and assault with force
likely to cause great bodily injury (§ 245, subd. (a)(4), count 2). The People
further alleged great bodily injury enhancements (§ 12022.7, subd. (a)) as to
both counts and circumstances in aggravation.
At his arraignment on November 12, 2024, Mendoza pled not guilty to
the charges. Mendoza—who was not in custody—waived his section 859b
right to a preliminary hearing within 10 court days, but he did not waive his
section 859b right to a preliminary hearing within 60 days.
B. Arraignment and Plea on the Amended Complaint
The following events all took place in 2025. Just before the end of the
60-day period, the People filed a motion on January 9 to amend the complaint
based on recent discovery. Specifically, the People sought to add allegations
that counts 1 and 2 were committed for the benefit of, at the direction of, and

2
in association with a criminal street gang to promote, further, and assist
criminal conduct by gang members (§ 186.22, subd. (b)(1)), and also to add a
third count for participation in a criminal street gang (§ 186.22, subd. (a),
count 3).
The trial court asked if the defense had concerns about including the
new allegations as part of the preliminary hearing. Defense counsel
indicated the new allegations were “not insignificant,” as they added a decade
or so of exposure for defendant. Counsel also needed to review 500 new pages
of discovery that the People had just produced on or around January 7.
Counsel then expressed concern that he was not “qualified” under local bar
association protocols to represent defendants charged with serious felonies.
The trial court initially indicated it was not inclined to allow the
amendment because the preliminary hearing was set for the “59th day.” But
based on Garcia v. Superior Court (2020) 47 Cal.App.5th 631 (Garcia), the
court ultimately agreed with the People that the statutory time periods under
section 859b would restart upon an arraignment on an amended complaint
making new substantive allegations. Defense counsel stated for the record
that Mendoza would not waive time and requested a preliminary hearing
within the 60-day period. After the court permitted filing of the amended
complaint, Mendoza waived formal arraignment and pled not guilty to the
charges. The court then recalculated the section 859b time limits, informing
Mendoza of his right to a preliminary hearing within 10 court days and 60
calendar days of his amended pleading. The court set the preliminary
hearing for January 23.
On January 10, the trial court granted defense counsel’s request to
continue representing Mendoza and appointed another attorney in a
“supervisorial role.” When counsel orally moved for a preliminary hearing on

3
that day or dismissal of the amended complaint pursuant to the statutory 60-
day limit, the court deferred consideration of the issue.
Thereafter the defense filed a motion to dismiss, which was heard and
denied by the trial court on January 23. In sum, the court concluded the
section 859b time limits restart when an amended pleading includes material
amendments, so long as the amendments are not prompted by gamesmanship
or an improper purpose. Here, the court was satisfied that the People did not
act improperly in amending the complaint. The defense then requested a
one-day continuance of the preliminary hearing, which the court granted.
C. The Preliminary Hearing and Motions to Dismiss
The preliminary hearing took place on January 24. At the start of the
hearing, the trial court denied Mendoza’s reassertion of his motion to dismiss.
After hearing the preliminary hearing evidence, the court held Mendoza to
answer. The People filed the information on February 10. On February 18,
the court arraigned Mendoza on the information, and Mendoza pled not
guilty to all counts and denied all the allegations. Mendoza thereafter filed a
motion to dismiss pursuant to section 995, in which he again sought
dismissal based on the violation of section 859b’s 60-day limit. The court
denied the motion to dismiss.
D. The Instant Writ Petition
Mendoza filed this petition for writ of mandate or prohibition seeking
an order directing the trial court to dismiss the matter for violation of the 60-
day limit. After ordering and considering the People’s informal opposition to
the writ petition, we issued an order to show cause why the requested relief
should not be granted. The People filed a return to the order to show cause,
and Mendoza deemed his reply to the informal opposition as his reply.

4
DISCUSSION
The People have informed us that the case underlying this writ
proceeding (case no. 24020828) was dismissed on August 14, 2025, as the
charges in the information were duplicative of the charges in an indictment
filed under another case number (case no. 25016077). Such dismissal renders
this petition moot, as there is no other remedy we can provide. (See
Landrum v. Superior Court of Los Angeles County (1981) 30 Cal.3d 1, 6
(Landrum) [violation of the right to a timely preliminary hearing under
section 859b requires dismissal pursuant to section 995].) That said, the
issue presented—whether an arraignment and/or plea to an amended
complaint can restart the 60-day time limit—is an important one that is
capable of repetition yet tends to evade review. As such, we exercise our
discretion to decide it. (In re Webb (2019) 7 Cal.5th 270, 273–274.)
The issue here is one of statutory construction, which we review de
novo. (Garcia, supra, 47 Cal.App.5th 631.) “ ‘ “Our role in construing a
statute is to ascertain the intent of the Legislature so as to effectuate the
purpose of the law. [Citation.] Because the statutory language is generally
the most reliable indicator of that intent, we look first at the words
themselves, giving them their usual and ordinary meaning. [Citation.] We
do not, however, consider the statutory language in isolation, but rather
examine the entire substance of the statute in order to determine the scope
and purpose of the provision, construing its words in context and
harmonizing its various parts. [Citation.]” [Citation.]’ [Citations.] ‘ “If the
statutory language is unambiguous, then its plain meaning controls.” ’
[Citation.] If, however, the language supports more than one reasonable
construction, ‘we look to other indicia of legislative intent, bearing in mind
the admonition that “[t]he meaning of a statute may not be determined from

5
a single word or sentence” [citation] and that apparent “ambiguities often
may be resolved by examining the context in which the language appears and
adopting the construction which best serves to harmonize the statute
internally and with related statutes” [citation].’ [Citation.] ‘Essential is
whether our interpretation, as well as the consequences flowing therefrom,
advances the Legislature’s intended purpose.’ ” (Garcia, at pp. 643–644,
italics added.)
A. Overview of Section 859b
We begin with an overview of section 859b, which governs the time for
preliminary hearings and a defendant’s speedy hearing rights. The statute is
divided into four paragraphs.
The first paragraph of section 859b provides, in relevant part: “At the
time the defendant appears before the magistrate for arraignment, if the
public offense is a felony to which the defendant has not pleaded guilty in
accordance with Section 859a, the magistrate, immediately upon the
appearance of counsel, or if none appears, after waiting a reasonable time
therefor as provided in Section 859, shall set a time for the examination of
the case and shall allow not less than two days, excluding Sundays and
holidays, for the district attorney and the defendant to prepare for the
examination.” The provision calling for the magistrate to allow not less than
two days for the parties’ preparation has been said to be “directory” such that
“a failure of compliance does not oust the magistrate of fundamental
jurisdiction over the cause or the parties.” (People v. Castaneda (1987) 190
Cal.App.3d 961, 966–967.)
The second paragraph continues: “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

6
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 pursuant to Chapter 6 (commencing with
Section 1367) of Title 10 of Part 2.”
With regard to defendants who are in custody, section 859b’s third
paragraph provides that “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 (1) the defendant personally waives the
right to a preliminary examination within 10 days, or (2) the People establish
good cause for a continuance beyond the 10-day period. “If the preliminary
examination is set or continued beyond the 10-court-day period, the
defendant shall be released pursuant to Section 1318” 2 unless an enumerated
statutory exception applies. (§ 859b, subd. (b).)
Though the 10-court-day rule set out in the second paragraph of
section 859b is seemingly mandatory, dismissal is not necessarily required
when a preliminary hearing is not held within that time frame. “A contrary
result would render nonsensical the requirements of paragraph three that a
failure to provide a hearing within 10 court days leads to a dismissal only
under certain stated conditions.” (1 Simons, Cal. Preliminary Examinations
and 995 Benchbook (2025 Edition) § 1.1.2 (Matthew Bender, Rev. Ed.)
(Simons).) That said, the third paragraph does require dismissal if the
defendant has remained in custody for the 10-court-day period solely on the
complaint and has not personally waived time and there is no good cause for

2 Section 1318 requires a defendant to file a signed release agreement
before being released on his or her own recognizance.

7
the delay. (People v. Standish (2006) 38 Cal.4th 858, 869 (Standish).) But, if
good cause is shown for postponement beyond the 10-court-day period, “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 section 1318.” (Ibid.)
Finally, and of principal concern in the present case, is the last
paragraph of section 859b, which provides: “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.” As with the 10-court-day
period, the 60-day period is triggered by an arraignment or plea,“ ‘whichever
is later.’ ” (People v. Figueroa (2017) 11 Cal.App.5th 665, 681, italics
omitted.)
The California Supreme Court has described section 859b as “one of a
number of statutes ‘that are supplementary to and a construction of the
constitutional right to a speedy trial.’ ” (Standish, supra, 38 Cal.4th at
p. 870.) As the high court explains, the right to a speedy trial is guaranteed
by the Due Process Clause of the Fourteenth Amendment and serves as “ ‘an
important safeguard to prevent undue and oppressive incarceration prior to
trial, to minimize anxiety and concern accompanying public accusation and to
limit the possibilities that long delay will impair the ability of an accused to
defend himself.’ ” (People v. Williams (2013) 58 Cal.4th 197, 232.)
B. Section 859b’s 60-Day Limit
Whether the 60-day limit of section 859b restarts when there is an
arraignment or plea on an amended complaint has been an unresolved issue
for some time. (People v. Clark (2016) 63 Cal.4th 522, 552 [declining to

8
address the “apparently still-undecided issue of California law” as to whether
a not guilty plea to an amended complaint resets the 60-day period under
section 859b]; Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 724, fn. 3
(Ramos) [leaving for another day the question “whether an arraignment on
an amended felony complaint starts a new 60-day period under
section 859b”].)
We start our analysis by reviewing the language of section 859b. It has
long been settled that “the plain language of section 859b’s 60-day rule
establishes the right to a preliminary hearing within 60 days of arraignment
[or plea] is absolute absent a defendant’s personal waiver.” (Ramos, supra,
146 Cal.App.4th at p. 729, italics added; see People v. Superior Court (Arnold)
(2021) 59 Cal.App.5th 923, 940; Lacayo v. Superior Court (2020) 56
Cal.App.5th 396, 400 (Lacayo); Del Castillo v. Superior Court (2019) 38
Cal.App.5th 1117, 1120 (Del Castillo); Garcia, supra, 47 Cal.App.5th at
p. 645; People v. Mackey (1985) 176 Cal.App.3d 177, 183–184 (Mackey),
superseded by statute on other grounds; accord Standish, supra, 38 Cal.4th
at p. 886 [60 days is the “outer boundary” of the time to hold a preliminary
hearing].)
In recognizing the absolute nature of this right, courts have highlighted
the structure of the statute. Specifically, “[a]lthough section 859b includes a
good-cause exception to the 10-court-day rule, there is no exception from the
60-day rule.” (Del Castillo, supra, 38 Cal.App.5th at p. 1120.) We agree this
is a critical difference, and one that plainly “indicates the Legislature did not
intend a good-cause exception can apply to the 60-day rule.” (Ibid.; see
Lacayo, supra, 56 Cal.App.5th at p. 400 [“the 60-day rule is absolute and
there is no good-cause exception to the rule”].)

9
Section 859b clearly contemplates that an arraignment or a plea on a
complaint triggers the right to a preliminary hearing within 60 days, but the
statute is silent as to whether an arraignment or a plea on an amended
complaint triggers a restarting of the 60-day period. Given this ambiguity,
we look to the historical development of section 859b for clues as to the
Legislature’s intent. (Hughes v. Board of Architectural Examiners (1998) 17
Cal.4th 763, 780.)
“Prior to 1970, there was no statutory time limit. A preliminary
examination merely had to be held without unreasonable delay. [Citation.]
In 1970, the Legislature added a specific time limit, providing that a
defendant who was in custody at the time of his arraignment or plea had a
right to a preliminary examination within 10 court days of such arraignment
or plea. [Citation.] The time limit was further strengthened in 1977, when
the Legislature rewrote the statute to specify that the district attorney, as
well as the defendant, had a right to a speedy preliminary examination. The
10-court-day rule could be violated ‘in no instance’ where it was applicable.”
(Landrum, supra, 30 Cal.3d at p. 12.) As case law explained: “The 10-court-
day rule in section 859b ‘ “manifest[s] 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.” ’ ”
(Bullock v. Superior Court (2020) 51 Cal.App.5th 134, 148.)
In 1980, the Legislature revisited section 859b. Among other things,
“the section was amended to allow postponement beyond 10 days if the
[People] established good cause for a continuance beyond the 10-day period.”
(Mackey, supra, 176 Cal.App.3d at p. 183.) As an apparent counterbalance to
that amendment, the Legislature adopted a 60-day limit to ensure that

10
“despite good cause for postponement beyond 10 days, the matter cannot be
postponed indefinitely.” (Mackey, at p. 184; Legis. Counsel’s Dig., Assem. Bill
No. 2383 (1979–1980 Reg. Sess.) Stats. 1980, ch. 938.) By virtue of its
enactment, the 60-day limit “[e]nsures that criminal cases are expeditiously
moved through the courts.” (Mackey, at p. 184.)
The Legislature’s decision to omit a good cause exception to the 60-day
rule, coupled with its focus on the expeditious processing of criminal cases
through the courts, lead us to conclude that the 60-day period was enacted as
a compulsory outer limit for holding a preliminary hearing after an
arraignment or a plea whenever a defendant has not made the statutorily
required personal waiver. That is, absent a personal waiver, when good
cause to exceed the 10-court-day limit has been established, a preliminary
hearing must still be held within 60 days of the arraignment or plea even if
an amended complaint is subsequently filed before expiration of the 60 days.
In countering this construction, the People contend section 859b, by its
terms, identifies only three events that trigger its time limits: arraignment,
plea, and reinstatement of criminal proceedings. In the People’s view, a new
60-day period begins to run when an arraignment or plea is necessitated by
an amended complaint. We are not persuaded. Construing section 859b as
permitting the restarting of the 60-day period for arraignments and pleas on
amended complaints, even if limited to complaints containing material
amendments, effectively creates a good cause exception to the 60-day limit
where one was not legislatively authorized. (See People v. Turner (2023) 97
Cal.App.5th 568, 575 (Turner).) Such a construction—which may result in
monthslong delay if even just one amended complaint is brought—appears
directly at odds with the underlying purpose of the statute to protect a

11
defendant’s right to a speedy preliminary hearing and to promote the
expeditious processing of criminal cases through the courts.
Not only does our construction of section 859b better serve the
Legislature’s purpose in enacting the 60-day limit, but it more readily
harmonizes with other related statutes than the People’s construction. (State
Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955 (State
Dept. of Public Health).) For instance, section 1009, which generally concerns
amendments to accusatory pleadings, provides: “An indictment, accusation
or information may be amended by the district attorney, and an amended
complaint may be filed by the prosecuting attorney, without leave of court at
any time before the defendant pleads or a demurrer to the original pleading
is sustained. The court in which an action is pending may order or permit an
amendment of an indictment, accusation or information, or the filing of an
amended complaint, for any defect or insufficiency, at any stage of the
proceedings, or if the defect in an indictment or information be one that
cannot be remedied by amendment, may order the case submitted to the
same or another grand jury, or a new information to be filed. The defendant
shall be required to plead to such amendment or amended pleading forthwith,
or, at the time fixed for pleading, if the defendant has not yet pleaded and the
trial or other proceeding shall continue as if the pleading had been originally
filed as amended, unless the substantial rights of the defendant would be
prejudiced thereby, in which event a reasonable postponement, not longer
than the ends of justice require, may be granted.” (Italics added.)
In cases where an amended complaint is filed and a defendant pleads
either immediately or at the time fixed for pleading, then under our
construction of section 859b the “other proceeding” (i.e., a preliminary
hearing) will—as section 1009 contemplates—continue to occur as if the

12
defendant’s amended pleading had been “originally filed as amended,”
without resetting the 60-day clock, and thereby remain subject to 60-day rule.
But that would not be the case under the People’s construction. Because the
People’s construction literally reads that clause out of the statute, it should
be avoided. (State Dept. of Public Health, supra, 60 Cal.4th at p. 955.)
In attempting to downplay this implication of their construction, the
People contend section 1009 solely concerns amendments to complaints and
does not address the time limits in section 859b. We are not convinced.
Though section 1009 addresses amendments to complaints, we
reiterate that the statute explicitly requires defendants to “plead to such
amendment or amended pleading forthwith, or, at the time fixed for pleading,
. . . and the trial or other proceeding shall continue as if the pleading had been
originally filed as amended.” (Italics added.) Indeed, “whenever an
accusatory pleading is amended, the defendant should be arraigned on the
amended pleading and asked to enter a plea to that new pleading.” (Garcia,
supra, 47 Cal.App.5th at p. 647, and cases cited.) But arraignment and entry
of a plea to an amended complaint are exactly what—in the People’s view—
trigger the restarting of the 60-day period in section 859b. So while
section 1009 does not mention the time limits in section 859b, the statute
nonetheless indicates that a preliminary hearing should proceed as if the
defendant’s pleading had been originally filed as amended. 3

3 With regard to section 1009, the People also assert: “One can imagine a
counterfactual scenario, in which a defendant waives time for arraignment,
does not enter a plea to a First Amended Felony Complaint, waives any claim
that the amendment prejudices his substantial rights (and therefore does not
request a reasonable postponement). In that scenario, section 1009 . . . would
allow the People to introduce sufficient evidence to support the amended
charges and allegations (i.e., for the preliminary hearing to proceed on the
First Amended Felony Complaint ‘as if the pleading had been originally filed
as Amended’), while the defendant could maintain his original statutory last

13
The People also contend that Garcia, supra, 47 Cal.App.5th 631,
supports their position that an arraignment and plea on an amended
complaint triggers the restarting of section 859b time limits. In Garcia, an
in-custody defendant was charged with various crimes, mainly sexual
offenses. He was arraigned and pled not guilty to the charges in the original
complaint and waived his section 859b right to a preliminary examination
within 10 court days. (Garcia, at pp. 636–637.) The People subsequently
filed an amended complaint adding three new counts of possession of child
pornography. (Id. at p. 638.) At the arraignment on the amended complaint,
the defendant pled not guilty but did not waive time, though he later agreed
to a limited time waiver so that the preliminary hearing would be on August
23, 2019. (Ibid.) Thereafter, however, the preliminary hearing was
continued to September 26, 2019. (Id. at p. 641.) On September 25, the
defendant moved to dismiss, alleging a violation of section 859b’s 10-court-
day limit. (Garcia, at p. 641.) After the court denied the motion to dismiss,
the defendant sought writ relief. (Id. at pp. 642–643.)
The Court of Appeal in Garcia framed the issue as follows: “Does an in-
custody defendant’s arraignment and plea on an amended complaint trigger a
new 10-day period for holding a preliminary hearing under section 859b, thus
mandating dismissal of the amended complaint unless the defendant
personally waives that new 10-day time limit or the prosecution shows good
cause for a continuance?” (Garcia, supra, 47 Cal.App.5th at p. 646.) The
court concluded, “based on the plain language of section 859b, the legislative

days for preliminary hearing. [Citation.] But, of course, that is not what
occurred here; [Mendoza] was arraigned and entered pleas to the First
Amended Felony Complaint, placing the analysis squarely under the plain
text section 859b.”
It is unclear what point the People are trying to make. Because this
hypothetical situation is not before us, we need not address this.

14
purpose of the statute, and relevant case law,” that the arraignment and plea
on the amended complaint was a “triggering event” under section 859b, such
that the preliminary hearing had to be held within 10 court days of that
arraignment and plea unless the defendant personally waived the time limit
or the People established good cause for a continuance. (Garcia, at p. 646.)
The People emphasize the Garcia court’s holding that the arraignment
and plea is the “triggering event” under section 859b. But the facts in Garcia
were markedly different from those here because the defendant had waived
time under section 859b when pleading to the original complaint. That the
holding in Garcia was driven by the fact of the defendant’s initial waiver is
evidenced by the court’s discussion of the relevant purposes of the statute—
i.e., to supplement the constitutional right to a speedy trial and “ ‘prevent
prolonged incarceration prior to a preliminary hearing.’ ” More specifically,
the court reasoned that “if an arraignment under section 859b means only an
arraignment on the original complaint, then a defendant could enter a
personal time waiver at that first arraignment with bail having been set, and
later be placed on a no-bail hold as a result of a second arraignment on an
amended complaint that added more serious charges. The defendant would
then be subject to prolonged incarceration with no statutory mechanism for
asserting his or her right to a timely preliminary hearing.” (Garcia, supra, 47
Cal.App.5th at p. 648, italics added.)
Although Garcia at times framed its decision as one of statutory
interpretation, we view its analysis as essentially turning on principles of due
process and fundamental fairness. Garcia addressed the situation where a
defendant had waived his statutory speedy hearing rights in reliance on the
People’s original pleading, and the decision concluded such rights must be
restored after the People substantially changed the nature of the criminal

15
action. The situation bears some similarity to that of a defendant who enters
into a plea agreement with the People that is later rightfully rescinded, such
that the defendant must be returned to the status quo ante. (Cf. People v.
Scheller (2006) 136 Cal.App.4th 1143, 1152; People v. Superior Court (Garcia)
(1982) 131 Cal.App.3d 256, 257.)
Thus, we take no issue with Garcia’s ultimate conclusion that, in cases
where a defendant initially waives the time limits in section 859b, and the
People thereafter file an amended complaint, the statutory time periods are
reset and the defendant is entitled to demand that the preliminary hearing
occur within 10 court days from the arraignment or plea on the amended
complaint. As explained, principles of due process and fundamental fairness
demand as much. But we respectfully decline to adopt Garcia’s analysis to
the extent it can be read as concluding, as a matter of statutory construction,
that despite a defendant’s assertion of the right to a speedy preliminary
hearing, an arraignment or plea that is necessitated by an amended
complaint is a triggering event under section 859b that categorically restarts
a new 60-day period for holding the hearing. Indeed, such a construction is
at odds with the language, structure, and legislative history of the statute, as
well as case law describing the right to a preliminary hearing within 60 days
of arraignment or plea as absolute.
The People argue that limiting Garcia’s application to defendants who
initially waived time would produce absurd results, namely, that it would
result in “multiple sets [of] statutory deadlines: a set of deadlines for charges
included on the initial charging instrument and a second set of deadlines for
charges added by the amended charging instrument.” Not so. The
interpretation we adopt today simply means that in cases where a defendant

16
did not waive section 859b’s 60-day limit, the 60-day period for all charges
would be calculated from the arraignment or plea on the original complaint.
The People also assert, though only in passing, that their construction
could be limited to situations where the arraignment or plea is to an
amended complaint that adds a “substantive” charge. But this gloss on their
proposed interpretation finds no support in the language of section 859b and
is unaccompanied by a developed argument defining (or even attempting to
define) what constitutes a substantive charge. Nor is there any explanation
of whether such a limitation serves policy interests that outweigh the policy
objectives underlying a defendant’s right to a speedy hearing. At least based
on this record and the briefing before us, we are unpersuaded that the
undefined concept of a substantive charge provides an adequate bulwark for
the right to a speedy preliminary hearing. (Cf. Simons, supra, § 1.1.13.)
Finally, we note our construction of section 859b aligns with other
related statutes in safeguarding the right to a speedy trial and prompt
judicial processing of criminal cases. Section 1387, which serves to “prevent[]
the evasion of speedy trial rights through the repeated dismissal and refiling
of the same charges” (People v. Aguilar-Jimenez (2023) 95 Cal.App.5th 561,
567) sets out the “ ‘two-dismissal’ rule.” (Berardi v. Superior Court (2008)
160 Cal.App.4th 210, 218.) Under that rule, the People generally have one
opportunity to refile felony charges following dismissal under various
statutes, including section 859b: “An order terminating an action pursuant
to . . . Section 859b . . . is a bar to any other prosecution for the same offense
if it is a felony or if it is a misdemeanor charged together with a felony and
the action has been previously terminated pursuant to . . . Section 859b.”
(§ 1387, subd. (a); see Barron v. Superior Court (2023) 90 Cal.App.5th 628,
635.)

17
Not only are the People given a second chance to refile charges if a
felony action is dismissed pursuant to section 859b, but the two-dismissal
rule is tempered by a number of exceptions. (People v. Superior Court
(Martinez) (1993) 19 Cal.App.4th 738, 743–744.) For instance, there is no bar
to further prosecution where, subsequent to the dismissal, a judge or
magistrate finds “[t]hat substantial new evidence has been discovered by the
prosecution that would not have been known through the exercise of due
diligence at, or prior to, the time of termination of the action.” (§ 1387,
subd. (a)(1).) Moreover, “[a]n order terminating an action is not a bar to
prosecution if a complaint is dismissed before the commencement of a
preliminary hearing in favor of an indictment filed pursuant to Section 944
and the indictment is based upon the same subject matter as charged in the
dismissed complaint, information, or indictment. [¶] However, if the previous
termination was pursuant to Section 859b . . . , the subsequent order
terminating an action is not a bar to prosecution if: [¶] (1) Good cause is
shown why the preliminary examination was not held within 60 days from
the date of arraignment or plea.” (§ 1387, subd. (c)(1).) 4

4 Section 1387, subdivision (c)(1), cannot reasonably be understood as a
good cause exception to section 859b’s requirement of a dismissal when the
60-day limit is violated. Though section 1387, subdivision (c)(1), was adopted
in 1981 (Stats. 1981, ch. 854, § 4), subsequent case law viewed such exception
to the two-dismissal rule as distinct from the mandatory dismissal provisions
of section 859b. As one court explained under analogous circumstances, even
though a trial court “has no discretion to do anything but dismiss the case if
the 60-day deadline has not been met, regardless of why it was not met,” the
circumstance “that the first dismissal was compelled by section 859b does not
mean that it did not result from excusable neglect” for purposes of section
1387.1. (Turner, supra, at pp. 575–576; see Standish, supra, 38 Cal.4th at
pp. 881–882, 886 [“when the prosecution is unable to proceed within the
statutory period, it has the option of seeking to dismiss the complaint and
refiling immediately” pursuant to sections 1387 and 1387.1]; but see Mackey,
supra, 176 Cal.App.3d at p. 183 [viewing section 1387, subdivision (a), as

18
Beyond section 1387, section 1387.1 provides another exception to the
two-dismissal rule in cases involving violent felonies: “(a) Where an offense is
a violent felony, as defined in Section 667.5 and the prosecution has had two
prior dismissals, as defined in Section 1387, the [P]eople shall be permitted
one additional opportunity to refile charges where either of the prior
dismissals under Section 1387 were due solely to excusable neglect. In no
case shall the additional refiling of charges provided under this section be
permitted where the conduct of the prosecution amounted to bad faith.
[¶] (b) As used in this section, ‘excusable neglect’ includes, but is not limited
to, error on the part of the court, prosecution, law enforcement agency, or
witnesses.”
When sections 1387 and 1387.1 are considered together with
section 859b, it is evident that the Legislature has carefully crafted a scheme
that guards against the use of dismissals and refiling to frustrate a
defendant’s right to a speedy preliminary hearing while ensuring that justice
may be done by not unduly penalizing the People for certain circumstances
that lead to a dismissal under section 859b. In declining to read section 859b
in a manner that allows the People to avoid a dismissal altogether by filing
amended complaints that operate to restart the 60-day period, we believe our
construction best preserves the balance of this scheme.
In closing, we observe a rule requiring dismissals for violations of the
60-day limit in cases like the one here should not be problematic. The People
can and should be prepared to put on evidence establishing probable cause
for all the allegations in the amended complaint at a preliminary hearing

indicating a preliminary hearing “may be extended beyond the 60-day period
only for good cause.”].) Consequently, even though a complaint must be
dismissed where good cause might otherwise support a delay beyond 60 days,
it appears such a dismissal “does not count as one of the two dismissals”
under section 1387. (Simons, supra, § 1.1.11.)

19
within the original 60-day period. And if the defense is unprepared or unable
to proceed with the preliminary hearing by the 60th day, the defendant may
request a “reasonable postponement” (§ 1009) and enter a limited time
waiver (see Favor v. Superior Court (2021) 59 Cal.App.5th 984, 990) or may
make a general waiver.
DISPOSITION
The petition for writ of mandate or prohibition is dismissed as moot.

_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Petrou, J.

20
Trial Court: San Francisco City & County Superior Court

Trial Judge: Hon. Alexandra Robert Gordon

Counsel: Law Offices of Silas KC Geneson, Silas Geneson, for
Petitioner

No appearance, for Respondent

Brooke Jenkins, District Attorney, Nicholas J. Hunt,
Assistant District Attorney, Robert M. Perkins, III,
Assistant District Attorney for Real Party in Interest.

Mendoza v. Superior Court (A173171)

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11138349. Public record. Not legal advice.