Covid-19 and speedy preliminary hearing rights
On March 4, 2020, the California Governor Newsom declared a state of emergency due to the Covid-19 pandemic. On March 13, 2020, the Contra Costa County Superior Court issued a statement that courts would be closed for the following two weeks. An order was then requested by the court from the Chief Justice, who issued an emergency order under Government Code section 68115, that at least until April 1, 2020, the days of court closure would in effect be public holidays for purposes of statutory deadlines under the Penal Code, Code of Civil Procedure, and the Welfare and Institutions Code. An advisory note was also issued by the Chief Justice. The note indicated that the Governor’s closure order did not apply to courts as the courts are considered “an essential service.” In that light, the advisory note indicated that the court should “prioritize arraignments and preliminary hearings for in-custody defendants ….” Bullock v. Superior Court of Contra Costa Cty. (2020) 51 Cal. App. 5th 134, 264 Cal. Rptr. 3d 699, 705.
Dyjuan Bullock was charged by complaint with human trafficking and pimping. His in-custody arraignment took place on March 4, 2020, and he did not waive the statutory time period in which the preliminary hearing was required to go forward under Penal Code section 859b. The preliminary hearing was initially set within that time period, and then continued to March 25, 2020. On that date, it was continued again, due to the pandemic. On March 30, 2020, the defendant filed a motion to dismiss the case as his preliminary hearing did not occur within the statutory time period. That same day, the Chief Justice issued another emergency order again extending time periods for criminal cases.
The motion to dismiss was heard and denied on April 2, 2020 and the defendant filed a petition for writ of mandate in the Superior Court five days later. Prior to the writ being decided, the defendant’s preliminary hearing was conducted. He was held to answer for the charges, and the prosecution filed an Information against the defendant. The Superior Court then denied the writ petition, and the defendant filed a petition for writ of mandate in the Court of Appeal challenging that denial.
The Court of Appeal held that the trial court had abused its discretion in continuing the preliminary hearing past March 25, 2020. The court first noted the Chief Justice’s order that deemed the days of closure public holidays did not extend the time for the defendant’s preliminary hearing. The reason for this is that the order did not apply to Penal Code section 859b. The court also noted that the only reasons stated by the court for continuing the hearing from March 25, 2020 to April 9, 2020, were “the unprecedented pandemic conditions that California was facing directly impacted the court’s operations.” Bullock v. Superior Court of Contra Costa Cty. (2020) 51 Cal. App. 5th 134, 264 Cal. Rptr. 3d 699, 712. But this reason did not constitute the required particularized showing as to why the defendant’s preliminary hearing could not have been held by March 25, 2020. Indeed, the court had again begun conducting preliminary hearings on March 30, 2020. What had changed in five days? The court wrote:
“In order to show good cause to continue Petitioner’s preliminary hearing past March 25, 2020, some showing was required of a nexus between the conditions created by the pandemic and the purported need to delay the hearing. This could include a particularized showing based on a balancing of the due process interests protected by timely preliminary hearings and the unresolvable specific risks posed generally by such hearings or by any specific hearing.” Bullock v. Superior Court of Contra Costa Cty. (2020) 51 Cal. App. 5th 134, 264 Cal. Rptr. 3d 699, 714. The trial court did not make the requisite findings to justify continuing the defendant’s preliminary hearing past March 25, 2020.
Prior to the court’s opinion, the defendant had pleaded no contest to one count of pimping, resolving his case and rendering the petition moot. The court held as follows:
“Although the magistrate should have granted dismissal, and the Superior Court should have granted Petitioner’s writ petition seeking dismissal, the petition in this court is dismissed based on the negotiated disposition and plea resolving the charges against Petitioner.” Bullock v. Superior Court of Contra Costa Cty. (2020) 51 Cal. App. 5th 134, 264 Cal. Rptr. 3d 699, 717.