Simmons

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein and Clifford K. Thompson, Jr., Deputy Attorneys General, for Real Party in Interest and Respondent.

Ephram Margolin as Amicus Curiae.

OPINION

NEWSOM, J.

Before us are consolidated petitions which we are treating as writs of habeas corpus, on behalf of five similarly situated petitioners. The nature of the proceedings and the number of petitioners requires an explication of the procedural background.

Doris Simmons, Tina Freeman and Vernon Dennis are codefendants charged with multiple felonies. All were arrested November 26, 1979, and arraigned while in custody on November 29, 1979. Preliminary hearing was set for December 13, 1979, upon which date, Dennis' attorney not being present, and the People not wishing to separate the cases, the court gave Dennis the choice of waiving time and agreeing to a preliminary hearing on December 19, 1979, or refusing to so waive, in which case he would be discharged and rebooked and have a preliminary hearing on December 19, 1979. When Dennis and his two codefendants refused to waive…

Before us are consolidated petitions which we are treating as writs of habeas corpus, on behalf of five similarly situated petitioners. The nature of the proceedings and the number of petitioners requires an explication of the procedural background.

Factual and Procedural Background

Doris Simmons, Tina Freeman and Vernon Dennis are codefendants charged with multiple felonies. All were arrested November 26, 1979, and arraigned while in custody on November 29, 1979. Preliminary *18 hearing was set for December 13, 1979, upon which date, Dennis’ attorney not being present, and the People not wishing to separate the cases, the court gave Dennis the choice of waiving time and agreeing to a preliminary hearing on December 19, 1979, or refusing to so waive, in which case he would be discharged and rebooked and have a preliminary hearing on December 19, 1979. When Dennis and his two codefendants refused to waive time, the court discharged the defendants, ordered them rearrested and arraigned, and set December 19, 1979, as the date for preliminary hearing.

At her arraignment December 14, 1979, Ms. Simmons, objecting to the reset preliminary date as violative of Penal Code…

Both the parties’ and amici petitions for rehearing point to an aspect of our decision which, they argue, creates the very procedural morass and “judicial limbo” against which we repined in our decision, and which to the greatest extent possible we attempted in our decision to avoid.

What, they ask, shall be done with the defendant whose preliminary hearing is set over to a time more than 10 days after arraignment, who is then released on bail or O.R., but who does not seek the habeas corpus relief to which our decision commends (or consigns) him? The prohibition of Penal Code section 859b has been triggered, and the 10-day deadline set by the Legislature has begun to run, while, since People v. Peters (1978) 21 Cal.3d 749 [ 147 Cal.Rptr. 646 , 581 P.2d 651 ], no magistrate may dismiss the charge at a belated preliminary examination.

Our decision, however, while it requires the addition of what the People and amici regard as a superfluous procedural step—the “sham” preliminary of which the court in Guerrero * spoke—does of course permit ultimate resolution of the proceedings. Thus, if the defendant *27 brought to an untimely preliminary examination is held to answer after…