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Name: People v. Lind et al.
Case #: B250350
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/15/2014

A defendant’s motion to disqualify the magistrate for cause tolls the time limit for a preliminary hearing. Lind and Murphy were charged with conspiracy to commit perjury and perjury. They pled not guilty. Because they did not waive their right to a speedy trial, they were entitled to a preliminary hearing within 60 days. (Pen. Code, § 859b.) Before the preliminary hearing, Murphy filed a request to disqualify the judge (Code Civ. Proc., § 170.1, subd. (a)(6)(iii)), which was granted. The preliminary hearing was eventually held, but not within the 60-day time limit. The trial court granted Lind and Murphy’s motion to dismiss the information on this basis. The People appealed, arguing that the motion to disqualify the magistrate suspended the time limit in section 859b. Held: Reversed. Section 859b requires a preliminary hearing to be held within 60 days of the entry of a not guilty plea unless time has been personally waived by the defendant. Although the 60-day rule is stated as an absolute, the court here concluded that it is suspended for the time it takes to resolve a defendant’s challenge to the impartiality of the judge assigned to his or her case. When a motion to disqualify a judge is filed, the challenged judge’s jurisdiction over the case is temporarily suspended and the matter of the disqualification is determined by another judge. It would be absurd to construe section 859b to mean the 60-day time limit for a preliminary hearing continues to run when the magistrate is powerless to conduct the hearing because of the disqualification motion filed by the defendant. If this were the rule, criminal defendants could time the filing of a disqualification motion so that a magistrate would be forced to choose between consenting to disqualification or allowing the case to be dismissed.