Metropolitan News-Enterprise


Wednesday, June 13, 2018


Page 3


Court of Appeal Says Man Was Entitled to O.R. Release May 21

Fourth District’s Div. One Orders Defendant Freed Pending Preliminary Hearing, Which Is Today; Trial Court Finds It Has No Jurisdiction Over the Matter


By a MetNews Staff Writer


The Fourth District Court of Appeal has granted a petition for a writ of habeas corpus to a man who, it found, should have been freed from jail on his own recognizance during the period from May 21 until his preliminary hearing—which is scheduled for today.

The habeas corpus petition was filed May 30. Div. One expedited the matter but did not deal with it on a emergency basis.

In Monday’s unpublished opinion by Justice William S. Dato, the panel did not order the immediate release of the petitioner, Courtney Brown, charged with assault with a firearm and related offenses. Rather, it directed that the San Diego Superior Court determine what conditions, if any, to impose.

Such a hearing was held yesterday. However, Judge Michael T. Smyth, who presides over the criminal master calendar, declined to order Brown’s release, rendering the Court of Appeal’s efforts nugatory.

His lawyer, Deputy Alternate Public Defender Amber Kirchenschlager, said yesterday she “was able to get the case added on calendar this afternoon,” but Smyth ruled that because the Court of Appeal “did not issue a remittitur, he did not have the jurisdiction to act.”

Assent Lacking

Dato recited that a criminal defendant who is in custody must have a preliminary hearing within 10 days of arraignment and, if the prosecution is granted a continuance in which the defendant does not join, there is generally a right of the defendant, under Penal Code §859b, to a release on his or her own recognizance (“O.R.”) during the period of the continuance. Brown did not assent to the continuance of his May 21 preliminary hearing to today.

San Diego Superior Court Judge Polly Shamoon on May 17 found good cause for a continuance—so that Brown’s preliminary hearing could be held in tandem with that of the co-defendants, his mother and sister—and spurned the request for an OR release of Brown. At a bail review hearing on May 21, at which §859b was not cited, the judge declared that bail, in the amount of $225,000, which the defendant was unable to raise, “will remain as set.”

A petition for a writ of mandate was filed the following day, calling for an O.R. release pursuant to §859b. Judge Eugenia Eyherabide two days later denied the motion, holding that the mother’s waiver of a prompt preliminary hearing was binding on her co-defendant son.

No Joint Request

Treating Brown’s interests as discrete from those of his mother, Dato pointed out that “there was never a ‘joint request’ for a continuance in this case,” and a prosecutor’s declaration as to the gist of an in-chambers discussion was insufficient to overcome the fact that Brown did not personally assent on the record to the continuance.

The disposition is:

“The superior court’s order of May 24, 2018, denying petitioner’s petition for writ of mandate is vacated. The court is directed to release petitioner on his own recognizance after conducting a hearing to determine the appropriate conditions, if any, to that release….The opinion is made final immediately as to this court.”

Oral argument was held before Div. One on Friday and the cause was submitted Monday.

The case is In re Brown, D074058.


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