Thursday, December 18, 2025
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C.A. Says Defendant Must Actually Be Released for Preliminary Hearing Clock to Be Extended
Opinion Says Fact That Judge Ordered Defendant Released Is Not Sufficient to Trigger Longer Timeline for Preliminary Hearings Where Sheriff’s Department Waited Three Days to Act on Decree
By a MetNews Staff Writer
Div. Five of this district’s Court of Appeal has held that felony assault charges against an in-custody defendant must be dismissed where the prosecutors failed to conduct a preliminary hearing within 10 court days of his arraignment, declaring that the timeline may not be extended to that applicable to other suspects by virtue of a judge’s release order on which the jailers did not act until the statutory period had expired.
At issue is Penal Code §859b, which provides that a criminal complaint “shall [be] dismiss[ed]” if “the preliminary examination is set or continued beyond 10 court days from the time of arraignment” and “the defendant has remained in custody” during that time “solely on” those charges.
The only exceptions to the rule apply if the defendant personally waives his right to have a preliminary hearing within 10 court days or if the prosecutor establishes good cause for a continuance.
Declaring that the defendant remained in custody for “at least 11 full court days” without a preliminary hearing, the court said that neither of the statutory exemptions applies to give safe harbor to the complaint even if the delay was out of the prosecutors’ hands.
Presiding Justice Brian M. Hoffstadt authored Tuesday’s opinion, joined in by Justices Lamar Baker and Dorothy C. Kim, saying:
“The question presented here is: Does section 859b still mandate dismissal of a complaint when a trial court continues a preliminary hearing beyond the 10-court-day period without finding good cause to do so, but nevertheless orders that the defendant be released on the tenth day—but the defendant is not actually released for another three days? We conclude that the answer is ‘yes,’ and accordingly reverse the trial court’s order declining to dismiss the criminal complaint.”
Cyberattack on Court
Asserting his rights under §859b was Armando Benavides, who was arraigned and remanded into custody on the charges on July 9, 2024. His preliminary hearing was set for July 22, 2024, as “day 9 out of 10,” but, due to an unprecedented cyberattack on all Los Angeles Superior Court systems, that day was declared a “court holiday.”
On the following day, the Los Angeles County Sheriff’s Department failed to transport Benavides to court for a preliminary hearing at which he was entitled to be present. Attorneys with the Los Angeles County District Attorney’s Office asked that the case be continued due to the defendant’s absence; his attorney requested that the case be dismissed.
On July 23, 2024, Los Angeles Superior Court Judge Efrain M. Aceves ordered the defendant released on his own recognizance and ruled that the decree extended the timeline for the preliminary hearing to 60 days.
Although the court transmitted the release order to the Sheriff’s Department that same day, Benavides was not actually let go until July 26, 2024, nearly three days later.
After a renewed request to dismiss the complaint was denied, Benavides filed a petition for a writ of mandate in the superior court. In October of last year, Los Angeles Superior Court Judge William C. Ryan denied the request, reasoning that the release order issued on the 10th day in custody cured any possible speedy trial violation.
After Div. Five denied a petition for a writ of prohibition in April, the California Supreme Court granted review and transferred the matter back with directions to vacate the denial and issue an order to show cause by way of a June 25 order.
Tuesday’s decision follows the issuance of the order to show cause and grants the defendant’s petition.
Implements Constitutional Right
Hoffstadt noted that “Section 859b implements the constitutional right of criminal defendants and the prosecution to a speedy trial” and opined:
“Defendant ‘remained in custody for 10 or more court days [from the time of arraignment] solely on that complaint’ because he was taken into custody on July 9, 2024, and not actually released until July 26, 2024, which encompasses at least 11 full court days (July 10, July 11, July 12, July 15, July 16, July 17, July 18, July 19, July 23, July 24, and July 25). Defendant did not personally waive the 10-court-day deadline. And the trial court declined to find good cause. Under the terms of section 859b, dismissal is required….”
Addressing the prosecutors’ assertion that the release order on Benavides’ 10th day in custody gutted any speedy trial violation, he said:
“Regardless of the order…, defendant remained in custody until the 13th court day. Section 859b…turns on whether the defendant actually ‘remained in custody,’ and here he did. The People urge that the delay in carrying out of the trial court’s order lay at the feet of the Sheriff’s Department, and thus should not be counted against them. This ignores that, as a general matter, ‘[t]he risk of delay caused by those charged with official action rests with the People, not the defendant.’…A contrary rule would fly in the face of the express purpose of section 859b, which is ‘to prevent prolonged incarceration’ in this window before preliminary examination.”
Declining the prosecutors’ invitation to find “good cause” for the continuance for the first time on appeal, the justice wrote in a footnote:
“The cyberattack in this case, and its ensuing effects on court operations, may well have constituted ‘good cause’—but the error here is that prosecution never sought to establish that good cause [in the trial court].”
The case is Benavides v. Superior Court (People), 2025 S.O.S. 3743.
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