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Filing of Amended Complaint Doesn’t Restart 60-Day Period for Preliminary Hearing—C.A.
By a MetNews Staff Writer
The filing of an amended felony complaint does not restart the 60-day period within which a preliminary hearing must take place, Div. Three of the First District Court of Appeal declared yesterday.
It issued its opinion notwithstanding mootness because “the issue presented” as to what Penal Code §859b requires—”is an important one that is capable of repetition yet tends to evade review.”
Justice Carin T. Fujisaki wrote:
“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.”
That section provides, in part:
“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.”
Mandate Sought
Petitioning for a writ of mandate was Carlos Mendoza, who was arraigned on arraignment on Nov. 12, 2024, on charges of second-degree robbery and assault with force likely to cause great bodily injury. He challenged the view of San Francisco Superior Court Judge Alexandra Robert Gordon that an amending of the complaint on Jan. 9, to beef it up, meant that a new 60-day period began to run.
Mendoza’s lawyer asserted his client’s right to a preliminary hearing within 60 days of the Nov. 12 arraignment and, after the defendant was bound over for trial, moved, unsuccessfully for a dismissal.
On Aug. 14, 2025, Div. Three was advised that the charges against Mendoza had ben dismissed inasmuch as they are duplicative of those contained in an indictment. The panel nonetheless issued its tentative opinion on Sept. 2; neither side sought oral argument; the opinion was issued.
Statute Silent
Fujisaki noted:
“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.”
She pointed out that §859b also has a 10-day requirement (which Mendoza waived), but the 10-day period may be exceeded if “good cause” is shown. She wrote:
“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.”
Contravenes Purpose
The justice went on to say:
“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….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 defendant’s right to a speedy preliminary hearing and to promote the expeditious processing of criminal cases through the courts.”
Fujisaki commented:
“[W]e 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 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’…and enter a limited time waiver…or may make a general waiver.”
The case is Mendoza v. Superior Court (People), A173171.
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