Here, Favor waived the 60-day deadline in a limited manner. He agreed that the preliminary hearing could occur “within 60 days of March 6.” The hearing, however, did not occur by this date.
Because the preliminary hearing occurred beyond the 60-day deadline as extended by Favor’s waiver, the trial court erred in denying Favor’s motion to dismiss the complaint. Absent a personal waiver, the court “shall dismiss” the charges if the preliminary hearing is set or continued after the 60-day deadline. (§ 859b.) The trial court was obligated to dismiss the charges under this rule.
Limited Waiver
A defendant may personally waive the 60-day rule in a limited manner, extending the deadline to a particular date beyond the original deadline, but not waiving it altogether.
The text of section 859b does not expressly address a limited waiver. If the preliminary hearing does not occur within 60 days of arraignment, section 859b requires dismissal “unless the defendant personally waives his or her right to a preliminary examination within the 60 days.” This language permits a general waiver where the defendant agrees that there is no longer any deadline for his or her preliminary hearing. It does not address a defendant’s waiver of the 60-day deadline in a limited manner, extending the deadline only to a particular date.
It is “well-established” that litigants may waive statutory rights, unless such a waiver is contrary to public policy. (People v. Johnson (2002) 28 Cal.4th 1050, 1055, 123 Cal.Rptr.2d 700, 51 P.3d 913; accord, Civ. Code, § 3513.) This rule has been applied to statutory provisions that include no express discussion of waiver. It has also been applied to allow not only general waivers, but also limited waivers. For example, a defendant may make a limited waiver of the section 1191 statutory deadline for pronouncing a judgment after guilty plea by requesting a continuance of that deadline to a different date, even though there is no waiver provision in section 1191. (People v. Scott (1968) 263 Cal.App.2d 581, 586, 69 Cal.Rptr. 901; see also People v. Manriquez (1922) 188 Cal. 602, 606, 206 P. 63.) A criminal statute’s silence as to the right to waive a deadline does not preclude a defendant from agreeing to a general or limited waiver.
Public policy favors limited waivers
The People’s construction of the statute would required the defendant either refuses to waive the 60-day outer limit for a preliminary hearing, or the defendant waives it entirely, so the preliminary hearing could be continued indefinitely for good cause. In situations where both parties and the court wish to extend the deadline to accomplish some needed purpose, the defendant would have to refuse to waive the deadline to maintain any outer limit on when the preliminary hearing would be held. Trial courts, defendants, and prosecutors would prefer the flexibility to offer the defendant a limited waiver as an option instead. Limited waivers of the statutory preliminary hearing deadlines also preserve defendants’ constitutional right to a speedy trial, and ensure cases continue to move expeditiously through the courts.
No good cause exception for delay beyond 60-day deadline
It also does not matter that clerical errors (minute orders incorrectly recording that Favor waived time until May 26, 2020, instead of to May 5, 2020) may have been a substantial factor in causing Favor’s hearing to be untimely. Even if such clerical errors, particularly combined with the disruptions caused by the pandemic, might constitute good cause for a delay—an issue we need not and do not decide—there is no good cause exception available to justify delay beyond the 60-day deadline (as extended by Favor’s limited waiver) and avoid dismissal.
Disposition
A peremptory writ of mandate issued, directing the Superior Court of San Bernardino County to vacate its May 22, 2020, order denying Favor’s motion to dismiss and enter a new and different order dismissing the amended complaint against him.