Trial court erred in denying motion to dismiss defendant’s case for failure to hold the preliminary hearing within 10 court days from reinstatement of criminal proceedings, despite an earlier time waiver before proceedings were suspended. While in custody, Davis waived his right to a preliminary hearing within 10 court days and 60 days of entering his plea. On the day of the preliminary hearing, however, the court declared a doubt as to Davis’ mental competence (see Pen. Code, § 1367, et seq.) and criminal proceedings were suspended. Proceedings were reinstated nearly six months later, and the court reset the preliminary hearing for approximately 40 days later. Davis objected, and requested that his hearing be conducted within 10 court days of the reinstatement of criminal proceedings. His request was denied, as was his subsequent motion to dismiss the complaint under Penal Code section 859b. He petitioned the Court of Appeal for a writ of mandate. Held: Peremptory writ of mandate issued directing dismissal of the complaint. Section 859b expressly provides that the preliminary hearing must be held within 10 court days “from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2” when the defendant is in custody, unless the defendant personally waives the right within the 10 court days, or the prosecution shows good cause for the delay. Based on the plain language of section 859b and its legislative history, the preliminary hearing for a defendant in custody must be conducted within 10 days of the reinstatement of criminal proceedings, notwithstanding an earlier waiver of time before proceedings were suspended, unless the defendant personally waives time again within the 10 court days following reinstatement.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A152296.PDF