In Re Samano

In consolidated cases, the People appeal from the orders of the Santa Barbara Superior Court granting Efrain Avina Samano’s and Juan Jose Castro-Gaxiola’s petitions for writs of habeas corpus. 1 They sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued. 2 The People contend that the superior court erred in ruling that section 1050.1 was inapplicable to preliminary hearings and that section 859b mandated their release on respondents’ own recognizance. 3 As we shall explain, the People’s contention is meritorious.

*988 Proceedings Below

The prosecution filed a felony complaint in municipal court against 33 defendants alleging, among other offenses, a large scale criminal conspiracy to distribute narcotics. Bail was set for each defendant at between $200,000 and $300,000 because many of the defendants were in the United States of America illegally and might abscond. 4 Two days before the preliminary hearing, attorneys for two other codefendants moved for a continuance. The discovery provided was too voluminous to adequately prepare for preliminary hearing in the allotted time. The prosecutor…

I dissent.

Respondents and amici curiae do not view Penal Code section 859b in isolation. 1 Neither do I. Inherent in the application of section 859b is the understanding that the accused, unable to post bail, are being deprived of liberty before probable cause has been established to hold them to answer. Thus, strict application of section 859b is necessary where there has been an excessive invasion of a prisoner’s pre-preliminary examination freedom, even where there might be risk of flight. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12 [ 177 Cal.Rptr. 325 , 634 P.2d 352 ].) As the majority opinion *994 acknowledges, “Section 859b reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing.” (Ibid.; People v. Kowalski (1987) 196 Cal.App.3d 174, 178 [ 242 Cal.Rptr. 32 ].)

The majority opinion states that the People should not be penalized by the risk of having defendants abscond where the continuance is not at the People’s behest, but that of a codefendant. What the People and the majority opinion ignore is that the preliminary examination was not continued at these defendants’ request. The majority opinion states that to read…

In consolidated cases, the People appeal from the orders of the Santa Barbara Superior Court granting Efrain Avina Samano's and Juan Jose Castro-Gaxiola's petitions for writs of habeas corpus. [1] They sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued. [2] The People contend that the superior court erred in ruling that section 1050.1 was inapplicable to preliminary hearings and that section 859b mandated their release on respondents' own recognizance. [3] As we shall explain, the People's contention is meritorious.

The prosecution filed a felony complaint in municipal court against 33 defendants alleging, among other offenses, a large scale criminal conspiracy to distribute narcotics. Bail was set for each defendant at between $200,000 and $300,000 because many of the defendants were in the United States of America illegally and might abscond. [4] Two days before the preliminary hearing, attorneys for two other codefendants moved for a continuance. The discovery provided was too voluminous to adequately prepare for preliminary hearing in the allotted time. The prosecutor had…