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Name: People v. Love
Case #: A105802
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 08/29/2005

The time limit for a preliminary hearing does not apply to a defendant who waived the time limit and then failed to appear. The defendant, while out of custody, waived her right to have a preliminary hearing within ten and sixty days of her plea. She then failed to appear for a setting conference and was arrested on a bench warrant. Her preliminary hearing occurred fifteen days after her return to custody. The magistrate dismissed the complaint, finding the preliminary hearing untimely under Penal Code section 859b. The Court of Appeal reversed. While it is true that a court must dismiss a complaint if a defendant is in custody and the preliminary hearing is set or continued beyond ten days after arraignment, that time limit is not renewed after a defendant who, having previously waived time, winds up back in custody after a failure to appear. Section 859b in this way differs from the speedy trial statute. Because defendant’s initial waiver remained in effect, the court erred in dismissing the complaint.