Kowalski

II. Analysis *

C. Waiver of Rights to a Speedy Preliminary Hearing

Penal Code section 859b gives a defendant a right to a preliminary hearing within 10 days of arraignment or plea, unless the “defendant personally waives his or her right” or the “prosecution establishes good cause for a continuance.” Defendant argues he did not personally waive this right, rather counsel did it over his objection. He concludes he was therefore denied his 859b rights and the complaint should have been dismissed.

The facts behind this issue are particularly helpful to its resolution. Defendant was arraigned on complaint No. 702871 on June 7, 1985. Because he refused to waive time, the preliminary hearing was set for June 21st. By June 17th two counsel had withdrawn, citing lack of time to prepare. At this point defendant stated he would rather represent himself than waive time.

On June 18th a new complaint (No. 821342) alleging additional charges was filed. Defendant pled not guilty and again refused to waive time. Attorney O’Neil was appointed on a no-time-waiver basis for the new charges. However, defendant continued to ask for counsel for the June 21st hearing. The magistrate…