Trial court erred by dismissing a complaint where prosecutor, without giving notice, requested a continuance of the preliminary hearing to a date within 10 court days of the defendant’s plea. Smith with charged with possessing heroin. He invoked his right to a preliminary hearing within 10 court days of his not guilty plea pursuant to Penal Code section 859b. The hearing was set for March 6, 2014 and the parties and court agreed that March 10, 2014 was the tenth day. On March 6, the prosecutor made an oral request for a continuance to March 10 under Penal Code section 1050 because her office was having issues with the drug lab and the results were not finished. The court denied the prosecutor’s request and granted a motion to dismiss the complaint for failing to provide notice at least two days prior to the request for the continuance. The People appealed. Held: Reversed. Under section 1050, a party must file a written notice of a request to continue a matter at least two days prior to commencement of the hearing or proceeding involved. (Pen. Code, § 1050, subd. (b).) However, section 1050, subdivision (k) specifically states that the two-day notice rule does not apply when the preliminary hearing is set on a date less than 10 court days from the date of the defendant’s arraignment on the complaint and the prosecution or the defendant moves to continue the preliminary hearing to a date not more than 10 court days from the date of the arraignment. Here, the court “construe[d] the 10-day period referenced in subdivision (k) to run from the date of either arraignment or plea, consistent with the language of section 859b.” Under this construction, Smith’s case falls under subdivision (k). Because Smith did not demonstrate any form of prejudice, it was an abuse of discretion to deny the prosecution’s continuance request and order the charges against him dismissed.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A141407.PDF