COVID-19 is Not an Excuse: Courts Must Hold Preliminary Hearings Within 60 Days of Arraignment
The question before the court in Lacayo v. Superior Court was whether there were such “extraordinary circumstances” presented by the COVID-19 global pandemic to justify “good cause” for continuance of the defendant’s preliminary hearing beyond the 60-Day Rule.
On February 24, 2020, Defendant Kareem Lacayo (“Lacayo”) was arraigned on charges for possession of a firearm by a felon, and other felony charges. Lacayo waived his right under Penal Code section 859b to a preliminary hearing within 10 court days. but did not waive his right to have the hearing within 60 court days.
On April 24, after the Governor had proclaimed a state of emergency due to the COVID-19 pandemic, the parties appeared and announced they were “ready” to proceed for the hearing. The trial court recognized that it was “the 60th day,” but continued the preliminary hearing to April 28, citing “extraordinary circumstances” of the pandemic and a lack of prejudice to Lacayo, who was out on bail. Lacayo objected, citing the 60-Day Rule. At the April 28 hearing, Lacayo moved to dismiss the charges due to the continuance violating Lacayo’s right under the 60-Day Rule. The court denied the motion, citing the extraordinary and “unprecedented” circumstances of the pandemic.
The People then filed an information (i.e., written statement of accusations) on the aforementioned charges. Lacayo filed a motion to have the information set aside, again citing the court’s violation of the 60-Day Rule. The trial court denied Lacayo’s motion, adding specific facts to support its position that the circumstances of the pandemic constituted “good cause” for the continuance of Lacayo’s hearing. Lacayo then petitioned the Court of Appeal seeking relief, which the Court granted.
Court’s Discussion of Section 859b
Under § 859b, a defendant who pleads not guilty upon being arraigned on a felony charge has the right to a preliminary hearing within 10 court days, unless the right is waived or there is “good cause” for continuance. When a defendant waives their right under the 10-Day Rule, they are subsequently entitled to a preliminary hearing within 60 court days of arraignment. Unlike the 10-Day Rule, there is “no exception from the 60-Day Rule,” indicating that “the Legislature did not intend a good-cause exception” for the 60-Day Rule. Castillo v. Superior Court (2019). The 60-Day Rule “‘is absolute and requires dismissal of a felony complaint against a nonconsenting defendant whose preliminary hearing is set or continued more than 60 days from arraignment.’” (Id., quoting Ramos v. Superior Court (2007)).
Regarding the 60-Day Rule, the Court concluded:
- the COVID-19 pandemic did not amount to “good cause” because there is no “good cause” exception for the 60-Day Rule;
- no emergency order issued by the State has changed § 859b; and
- absent a waiver, courts must dismiss the case if a preliminary hearing is not held within 60 days after arraignment.
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