Kruse

Penal Code section 861 gives the accused a right to a continuous preliminary hearing. It states: “The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it. . . .” (§ 861, subd. (a).)

Petitioner, Gabriel Michael Kruse, is being prosecuted for several alleged felonies. His preliminary hearing began and was continued pursuant to the parties’ agreement. Petitioner waived his right to a continuous hearing, but only to the date on which it was agreed the preliminary hearing would be reconvened. On the agreed-upon date, however, the deputy district attorney prosecuting the case was ill and, for unrelated reasons, petitioner was not transported to the court. Although another deputy district attorney filed an affidavit concerning the prosecutor’s illness, no affidavit was filed concerning why petitioner was not transported to the court. The replacement prosecutor could have proceeded with the preliminary hearing if petitioner had been there. However, because of the transportation problems, several more days passed before the preliminary hearing was reconvened. After…