Thursday, August 8, 2019
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal declared yesterday that a superior court had no power to order a jury trial stayed while the District Attorney’s Office seeks review of a magistrate’s ruling that a defendant may waive a preliminary hearing over the prosecution’s objection, ordering that a judge decide no later than today if the magistrate erred.
A jury trial had been set for July 25 in Orange Superior Court. The defendant, Rafael Aparicio, did not waive time and—unless the case goes back to Square One with the holding of a preliminary hearing—the last day for bringing him to trial is tomorrow, absent a finding of good cause for delay.
The prosecution sought a writ of mandate or prohibition in the Superior Court challenging Orange Superior Court Judge John S. Adams decision, sitting as a magistrate, to allow a waiver of a preliminary hearing. Orange Superior Court Judge Kimberly Menninger granted an immediate stay.
The docket reflected:
“Further proceedings in the underlying criminal case are hereby ordered stayed pending determination of the merits of the instant petition and further order by this court….After reviewing the parties’ briefs, the Court will set the matter for hearing if deemed appropriate.”
No Authority Cited
Aparicio on July 12 filed a petition for a writ of mandate or prohibition in the Court of Appeal. A “by the Court” opinion, which was not certified for publication, declares:
“We… find merit to petitioner’s claim that respondent court lacked authority to issue the stay in this case, and it is worth noting that neither party, nor respondent court were able to cite any authority which states respondent court has the express or inherent authority to issue a stay under these circumstances.”
The opinion goes on to say:
“Although the People suggest we should infer that respondent court has the inherent power to issue a stay under these circumstances, inferring inherent authority to issue a stay in this case ignores the fact that [Penal Code] section 871.6 expressly provides for a stay upon review of the magistrate’s ruling, but not by the superior court. Section 871.6 states that if the superior court grants a peremptory writ, it is this court, ‘The court of appeal [that] may stay or recall the issuance of the writ and remittitur.’ ”
The opinion observes that comments by Menninger at a hearing indicate she may have prejudged the matter and orders that some other judge act on the People’s writ petition.
The justices noted:
“[I]it is not this court’s intention to determine the merits of the People’s petition challenging the magistrate’s decision to allow petitioner to waive his preliminary hearing. However, Penal Code section 859b states, ‘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....’ (Italics added.)”
The case is Aparicio v. Superior Court, G058000.
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