People v. Soth CA2/7

Filed 9/28/22 P. v. Soth CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B314549

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. NA116954)
v.

RY SOTH,

Defendant and Respondent.

APPEAL from an order of the Superior Court of
Los Angeles County, Debra A. Cole, Judge. Reversed and
remanded with directions.
George Gascon, District Attorney of Los Angeles County,
Tracy Whitney and Kenneth Von Helmolt, Deputy District
Attorneys, for Plaintiff and Appellant.
Ellen M. Matsumoto, under appointment by the Court of
Appeal, for Defendant and Respondent.

__________________________
 The People appeal the superior court’s order dismissing the
criminal complaint against Ry Soth. The court denied the
People’s motion to continue the preliminary hearing for three
days to obtain testimony from one of the police officers who
arrested Soth. The court found the People had not demonstrated
good cause for the continuance and granted Soth’s motion to
dismiss.
The People argue the court erred when it required them to
demonstrate good cause to continue the preliminary hearing
because Soth was not in custody at the time of the arraignment
and had given a general, unqualified waiver of his rights under
Penal Code section 859b1 to a preliminary hearing within 10
court days and 60 calendar days after the arraignment. The
People additionally assert the court erred in finding they failed to
show good cause for the continuance and in dismissing the
complaint.
Although Soth did not give an unqualified waiver under
section 859b, and the court did not abuse its discretion in
determining the People lacked good cause for the continuance,
because Soth was out of custody and the People sought to
continue the preliminary hearing to a date within 60 calendar
days of the arraignment, Soth was not entitled to an automatic
dismissal of the complaint. Soth also failed to demonstrate that
he would suffer prejudice if the court had granted the People’s
request for a brief continuance of the preliminary hearing.
Accordingly, we reverse the order and remand for further
proceedings.

1 All statutory references are to the Penal Code unless
otherwise indicated.

2
 FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident
On January 24, 2018, Long Beach Police Officers Eileen
Maes and Emily Garcia responded to a traffic accident near the
intersection of Pasadena Avenue and 21st Street.2 When the
officers arrived they saw a white Cadillac on 21st Street, east of
Pasadena Avenue, “stopped along the north parking lane.” The
vehicle had significant front-end damage, and the driver’s side
airbag had deployed.
The officers saw Soth standing on the sidewalk near the
car. He had blood on his face and blood dripping from his nose.
Officer Maes3 asked Soth if he had been involved in a traffic
accident and if he had been driving the white Cadillac. Soth
responded, “No, I was just walking.” When asked additional
questions about the incident, Soth’s responses were incoherent.
The officers noticed Soth had poor balance and extremely slurred
speech. He smelled of alcohol, had red bloodshot eyes and a red
flushed face. They concluded Soth was intoxicated.
Officer Garcia interviewed Soth’s brother, Sopeautra Soth
(Sopeautra, so as not to be confused with Ry Soth), who was a
passenger in the white Cadillac at the time of the accident and

2 The facts describing the incident are taken from the
probation report and from the prosecutor’s declaration in support
of the motion to continue the preliminary hearing.
3 While the probation report does not specify which officer
spoke to Soth, according to the prosecutor’s declaration in
support of the motion to continue, Officer Maes interviewed Soth.

3
was at the scene when the officers arrived.4 Sopeautra stated
Soth was driving the vehicle at the time of the accident. He said
that before the accident Soth was driving about 15 miles an hour,
swerving all over the road and colliding with parked vehicles.
Soth stopped driving only after the front passenger tire fell off
the Cadillac. Soth got out of the car and started to walk away.
Sopeautra claimed he punched Soth seven to eight times in the
face to stop him from leaving the accident scene.
Because of his facial injuries and his apparent intoxication,
the officers did not conduct a field sobriety test on Soth. Soth
was transported to Saint Mary’s Medical Center.5

B. The Initial Filing and Dismissal
On October 17, 2018, the People filed a felony complaint
against Soth, alleging driving under the influence of alcohol
(DUI) and driving with elevated blood alcohol, with three prior
convictions for DUI offenses within 10 years. (Veh. Code,
§§ 23152, subds. (a) & (b), 23550, 23538, 23578.) The complaint
further alleged misdemeanor charges of hit-and-run driving and
driving on a suspended or revoked license due to driving under

4 As stated in the prosecutor’s declaration in support of the
motion to continue, the police report noted that Officer Garcia
interviewed Sopeautra. The police report was not included in the
appellate record, and nothing in the record before this court
discloses whether Officer Maes was also present during that
interview.
5 According to the prosecutor, Officer Maes later observed
Soth’s blood draw for the purpose of determining his blood alcohol
level.

4
the influence of alcohol (Veh. Code, §§ 20002, subd. (a), 14601.2,
subd. (a)).
On June 30, 2020, Soth pleaded not guilty to the charges.
He posted bail and was released from custody. Soth’s
preliminary hearing was continued several times until
December 9, 2020, when the court granted his motion to dismiss
the charges after the prosecution announced it could not
proceed.6

C. Second Filing and Current Proceedings
On May 7, 2021, under section 1387, the People refiled the
felony complaint alleging the same charges as the initial
complaint.7 On May 10, 2021, Soth appeared out of custody with
counsel for the arraignment. He posted $30,000 bail and pleaded
not guilty to the complaint. According to the minute order from
the May 10, 2021 arraignment,8 the court set the pre-hearing
conference for May 28, 2021, and set Soth’s preliminary hearing
for June 17, 2021, “as day 29 of 30.”9

6 The record does not reveal why the prosecution could not
proceed with the preliminary hearing in December 2020.
7 Section 1387 provides the criteria that permits the People
to refile charges that have been dismissed, but the section “may
be invoked only once in each action.” (§ 1387, subd. (a)(3).)
8 The appellate record does not contain a reporter’s
transcript from the May 10, 2021 arraignment.
9 On March 30, 2020, in response to the COVID-19
pandemic, the Chief Justice of the California Supreme Court
issued an order that, among other things, extended the time
period in which to hold a preliminary hearing (provided in
section 859b) from 10 court days to not more than 30 court days.

5
 At the May 28, 2021 pre-hearing conference, the following
discussion occurred:10

“The Court: So the prelim date is already June 17th.

“[Soth’s Counsel]: We would like to vacate that and
set it for June 18th, which would be the 30 of 30 on
that day.

“The Court: Okay. Then we will set it for June 18th.

“[Prosecutor]: Good? It would be 30 of 30.[11]

“[Prosecutor]: We normally have it so if there is a
witness problem we have an extra day. If we would
stipulate that that’s 29 of 30.

“The Court: Is your client going to give me a one-day

On April 2, 2020, the presiding judge of the Los Angeles County
Superior Court issued a general order that reiterated that time
extension: “The time period provided in section 859b of the Penal
Code for the holding of a preliminary examination and the
defendant’s right to release is extended from 10 court days to not
more than thirty (30) court days.” The general order was still
in effect in 2021. As a result, when counsel and the court
referred to day 30, it was the equivalent of day 10 in section 859b.
10 Judge Tomson T. Ong presided over the pre-hearing
conference. Judge Debra A. Cole presided over the June 2021
proceedings.
11 It is unclear how the court and counsel calculated 30 days
from Soth’s arraignment on May 10, 2021, to his preliminary
hearing. Because neither party challenges the accuracy of the
calculation, we do not address the dates further on appeal.

6
 time waiver to accommodate you? They want 29 of
30.

“[Prosecutor]: Otherwise, leave it as scheduled.

“The Court: Because I already set it, that will save
you from having to file a 1050.

“[Soth’s Counsel]: Yeah. No, that’s –

“The Court: Then you could pick a date.

“[Soth’s Counsel]: That’s fine, the 18th.

“The Court: Mr. Soth, will you give me a one-day
time waiver? You have a right to a preliminary
hearing within 10 court days and 60 calendar days.
Do you understand, waive those rights and enter a
general time waiver?

“[Soth]: Yes.
[¶¶]

“The Court: That will be 29 of 30 on June 18th, just
so that we have that flexibility.”

On June 18, 2021, the prosecutor filed a motion seeking to
continue the preliminary hearing to June 24 because Officers
Maes and Garcia were unavailable on June 18. The prosecutor
reported that his office issued subpoenas to Officers Maes and
Garcia on June 1, 2021, but on June 17, 2021, the Long Beach
Police Department informed him the officers were on vacation
with Officer Maes returning on June 23 and Officer Garcia
returning on June 24.

7
 The prosecutor’s declaration also stated that Officer Maes
interviewed Soth, observed objective signs of his intoxication and
watched Soth’s blood draw. The prosecutor asserted that Officer
Maes was a necessary witness for the preliminary hearing
because her testimony was material and not cumulative of Officer
Garcia’s testimony. The prosecutor also declared that Officer
Garcia interviewed Sopeautra about how Soth had been driving
before the accident and his conduct afterward. According to the
prosecutor’s declaration: “Officer Garcia’s testimony is not
cumulative and is material, as [s]he is needed to potentially
impeach [Sopeautra] should [Sopeautra] testify differently at the
preliminary hearing. The people therefore believe that [Officer
Garcia] too is a necessary witness.” The prosecutor asked the
court to continue the preliminary hearing until June 24, 2021,
under sections 1050, 1328 and Jensen v. Superior Court (2008)
160 Cal.App.4th 266 (Jensen). The court instead trailed the
preliminary hearing to June 21, 2021, as day 30 of 30.
On June 21, 2021, Officer Maes appeared at the hearing,
but Officer Garcia was not present. At the outset of the
proceedings, the court heard the People’s motion to continue
under section 1050. Soth opposed the motion, arguing it was not
timely under section 1050 because it was filed only one court day
before the hearing rather than two court days as required by
subdivision (b) of section 1050. Soth’s counsel pointed out that on
June 17 the prosecutor knew that the officers were unavailable
and should have filed the motion and provided notice that day.
Soth’s counsel also argued the prosecutor did not have good cause
to support a continuance.
The prosecutor said he did not file the motion on June 17
because he “needed to see where we were at on June 18, whether

8
[Sopeautra] showed up.” The prosecutor acknowledged that
although a subpoena was issued for Sopeautra to appear on
June 18, he could not confirm whether Sopeautra had been
served. The prosecutor suspected he had not been served because
Sopeautra did not appear on June 18. The prosecutor stated,
“Back on the 17th, I didn’t know if he would show on the 18th,
which was also when this case was last in court. And I thought
potentially through interviewing him, I wanted to see where I
was at in terms of proving up the charges.” The prosecutor also
noted that he had made further attempts to subpoena Sopeautra
for June 21 but acknowledged that he had not appeared.
The prosecutor stated that although Officer Maes was
present, he did not believe he could proceed with the preliminary
hearing because Officer Garcia was unavailable. Counsel and the
court discussed the application of Jensen and whether the
prosecutor had been diligent in securing the availability of the
officers. Soth’s counsel argued that the prosecution had not been
diligent, pointing out that this was the second time the case had
been filed and that allowing a continuance would give the
prosecution “a pass.” Initially the court disagreed and concluded
the prosecutor had timely issued subpoenas for the officers and
found the prosecution had been diligent under Jensen. Soth’s
counsel asked for a short break to read Jensen, which the court
granted. When the proceedings resumed, the following
discussion occurred:

“The Court: On the Ry Soth case, I have had a
chance to really read your motion, [Prosecutor].

“[Prosecutor]: Yes.

“The Court: And my understanding is you want the

9
 other officer [Garcia] here to 115[12] the passenger’s
testimony.

“[Prosecutor]: That’s correct.

“The Court: And why would that preserve it for trial?
It’s 115.

“[Prosecutor]: The purpose is not to preserve it for
trial.

“The Court: That’s what you’re saying right here. It
is not cumulative. It is material. It is needed to
potentially impeach . . . [Soth’s brother, Sopeautra]
should he testify differently at a preliminary hearing.
People, therefore, believe that he too is a necessary
witness.

“[Prosecutor]: Yes, well, at the moment we don’t even
have that brother, and I believe the brother’s initial
statement is necessary to prove that the defendant
was the driver.

12 The court’s comment regarding “115” refers to a method of
presenting certain hearsay evidence at a preliminary hearing as
authorized under Proposition 115. Specifically, under
Proposition 115, as implemented in section 872, subdivision (b),
of the Penal Code, criminal defendants can be held to answer on
felony charges based upon hearsay statements made to police
officers who have a specified level of experience or training. For
instance, out-of-court statements of an eyewitness or victim
concerning the identity of the perpetrator could be substituted for
the live testimony of the witness or victim at the preliminary
hearing.

10
 “The Court: But you’re not getting the brother’s
statement in other than by 115. That officer can
testify at trial to impeach him. So I am finding that
that’s not good cause to continue it. You can make
the case with the first officer. You have Officer Maes
here who interviewed the defendant, observed
objective signs of intoxication and observed the
defendant’s blood draw. That’s all you need. [Your]
request to continue under 1050(g) is denied.”

The prosecutor pointed out that he had to prove Soth was
the driver through Sopeautra’s testimony or Officer Garcia’s
testimony relaying Sopeautra’s statement and that neither of
those witnesses was present. The court reiterated that the
motion was denied. The court then asked whether the prosecutor
was ready to proceed with Officer Maes, and the prosecutor
responded by asking for a few minutes, which the court granted.
After the break, the following occurred:

“The Court: Status?

“[Prosecutor]: Your Honor, we’re unable to proceed.

“The Court: Motion?

“[Soth’s Counsel]: Dismiss.

“The Court: Case is dismissed 1382.”

The People filed a timely notice of appeal.

11
 DISCUSSION

The People argue the superior court erred in denying the
motion for a continuance of the preliminary hearing and
dismissing the case. Specifically, the People assert that the
court: improperly required the prosecutor to demonstrate good
cause to obtain a continuance of the preliminary hearing; abused
its discretion in determining the prosecution failed to show good
cause for the continuance; and lacked authority to grant Soth’s
motion to dismiss. We address these issues in turn.

A. The Court Did Not Err in Requiring the Prosecution
to Show Good Cause To Continue the Preliminary
Hearing

1. Standard of Review
We review questions of statutory construction de novo.
(People v. Jones (2001) 25 Cal.4th 98, 107-108.) Our primary task
in interpreting a statute is to determine the Legislature’s intent,
giving effect to the law’s purpose. (See People v. Valencia (2000)
82 Cal.App.4th 139, 144-145 [construing § 12022.53, subd. (d)].)
This court considers “‘“the statutory language, giving it a plain
and commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment.”’ [Citations.] ‘“‘If
the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’”’
[Citations.] ‘“[T]he court may consider the impact of an

12
interpretation on public policy, for ‘[w]here uncertainty exists
consideration should be given to the consequences that will flow
from a particular interpretation.’”’” (People v. Superior Court
(Arnold) (2021) 59 Cal.App.5th 923, 931 (Arnold.)

2. Section 859b and Time Waivers
Section 859b specifies the timing of scheduling preliminary
hearings in felony cases and the consequences for failing to meet
those time requirements. The statute is supplementary to (and a
construction of) the constitutional right to a speedy trial. Arnold,
supra, 59 Cal.App.5th at p. 932; People v. Figueroa (2017)
11 Cal.App.5th 665, 673-676.)
Section 859b describes two timeframes for conducting the
preliminary hearing. First, it confers the right to a preliminary
hearing at the earliest possible time on both parties to a criminal
action, providing that, ordinarily, the preliminary hearing shall
be held within 10 court days of the date the defendant is
arraigned. (Hereafter, the “10-day rule.”) The prosecution may
obtain a continuance beyond that period only upon a showing of
good cause or if the defendant agrees to waive time. (See § 859b,
2d par.;13 Arnold, supra, 59 Cal.App.5th at p. 932; see also People
v. Alvarez (1989) 208 Cal.App.3d 567, 573 (Alvarez) [language in

13 The second paragraph of section 859b provides: “Both the
defendant and the people have the right to a preliminary
examination at the earliest possible time, and unless both waive
that right or good cause for a continuance is found as provided for
in Section 1050, the preliminary examination shall be held within
10 court days of the date the defendant is arraigned or pleads,
whichever occurs later, or within 10 court days of the date
criminal proceedings are reinstated pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2.” (§ 859b.)

13
section 859b “‘within 10 court days’” operates as a definition of
the phrase “earliest possible time”].) Section 859b is unequivocal:
when a defendant is in custody and the preliminary hearing is set
or continued beyond 10 days after the arraignment, plea or
reinstatement of criminal proceedings, the court “shall dismiss
the complaint” unless the defendant personally waives the 10-day
rule, or the People show good cause for a continuance beyond that
period. (§ 859b, 3d par.; accord, Arnold, supra, 59 Cal.App.5th at
p. 932.)
Second, as an outside time limit, regardless of a defendant’s
custody status, “[t]he magistrate shall dismiss the complaint if
the preliminary examination is set or continued more than 60
days from the date of the arraignment, plea, or reinstatement of
criminal proceedings,” absent defendant’s personal waiver of the
60-day period. (§ 859b, 6th par.; Arnold, supra, 59 Cal.App.5th at
p. 932.) (Hereafter the “60-day rule.”)
Under section 859b’s framework, whether the prosecution
is required to show good cause to obtain a continuance of a
preliminary hearing depends on whether the date sought is
within the timeframes delineated in section 859b and whether
the defendant has provided a waiver of the 10-day rule in
section 859b. If the defendant has entered a waiver of the 10-day
rule, regardless of the defendant’s custodial status, the
prosecutor does not have to show good cause to continue beyond
10 court days so long as the hearing is held within 60 days after
the arraignment.14 (§ 859b, 2d & 3d pars.; Alvarez, supra,
208 Cal.App.3d at pp. 572, 575; accord, People v. Henderson

14 Neither party is required to show good cause if a
continuance is sought for a date that is fewer than 10 court days
from the arraignment on the complaint. (§ 1050, subd. (k).)

14
(2004) 115 Cal.App.4th 922, 931-932 (Henderson).) However, if
the defendant has not waived the 10-day rule, then good cause
must be shown to extend the hearing date beyond 10 days after
the defendant’s arraignment on the complaint. (See § 859b, 2d &
3d pars.; see also Henderson, at p. 931 [observing that only one
condition needs to be met to obtain a continuance of the 10-day
rule, either waiver or a showing of good cause].)
In addition, the issue of waiver is not an all-or-nothing
proposition. A defendant may enter a general and unqualified
waiver, or a conditional or limited waiver of the 10-day rule. (See
Arnold, supra, 59 Cal.App.5th at pp. 933-934 [recognizing that
section 859b permits a defendant to enter a specific and limited
waiver of the right to a preliminary hearing within the
timeframes expressly specified in section 859b]; see also Garcia v.
Superior Court (2020) 47 Cal.App.5th 631, 651-653 (Garcia)
[acknowledging that when a defendant “enter[s] a specific and
limited time waiver in which he agree[s] to continue the
preliminary hearing to a date on or before” a date certain, it
“d[oes] not constitute a general waiver of his statutory right to a
timely preliminary hearing,” and any continuance beyond the
conditional or limited waiver requires a showing of good cause by
the party seeking the continuance]; Irving v. Superior Court
(1979) 93 Cal.App.3d 596, 599 [in-custody defendant’s agreement
to a preliminary hearing date outside the 10-day period did not
waive his right to a timely preliminary hearing because
defendant conditioned his agreement to a later date on his stated
assumption that he was not waiving time, and as a result his
waiver “was based upon a condition which was not met and could
therefore not operate as a valid waiver”].)

15
 3. Analysis
The People maintain the court erred when it required the
prosecution to show good cause to continue the preliminary
hearing beyond June 21, 2021, because Soth entered a general
waiver of both the 10-day rule and the 60-day rule at the pre-
hearing conference on May 28, 2021. While Soth acknowledges
that he and the court used the word “general” to describe his time
waiver, he argues that he never agreed to an unqualified waiver
of his rights under section 859b. Instead, Soth asserts he entered
a limited and conditional waiver of the 10-day rule when he was
arraigned, agreeing that the preliminary hearing would occur no
later than June 17, 2021, as “day 29 of 30”; and then later, at the
May 28, 2021 pre-hearing conference, he only agreed to modify
his prior waiver for an additional day to permit the hearing to
occur on June 18 as “day 29 of 30.”
While the word “general” as used by counsel, the court and
Soth to repeatedly describe Soth’s time waiver is perplexing, the
appellate record supports Soth’s view that he agreed to a limited
and conditional waiver and not an unqualified waiver of his
rights under section 859b. Throughout the proceedings the
parties and the court acted as if Soth had entered a limited
waiver rather than a general waiver of his 10-day and 60-day
rights. The record does not show, nor do the People claim, that
Soth entered a general and unqualified waiver of his rights under
section 895b at his arraignment on May 10, 2021. We infer from
the court’s statement at the arraignment setting the preliminary
hearing for June 17 as “day 29 of 30,” that Soth entered a limited
waiver of his 10-court-day right, conditioned on the preliminary
hearing occurring on June 17, 2021. The record from the
subsequent hearings supports this interpretation. At the pre-

16
hearing conference on May 28, 2021, the court asked Soth to
agree to a “one-day waiver” to make June 18 rather than June 17,
day 29 of 30. The court immediately followed that request with a
reminder that Soth had “a right to a preliminary hearing within
10 court days [extended to 30 days under the general order due to
COVID-19] and 60 calendar days.” Although the court asked if
Soth would “waive those rights and enter a general time waiver,”
within moments the court characterized the modification of the
waiver more strictly: “That will be 29 of 30 on June 18th just so
that we have that flexibility.”
Given the totality of the circumstances, the court’s
reference to the waiver as “general” while describing Soth’s rights
under section 859b was a non sequitur. If, as the People posit,
Soth’s waiver was unqualified and general, at the May 28 pre-
hearing conference the court would not have needed to ask Soth
for a one-day waiver, nor would it have made sense for the court
to articulate the preliminary hearing date as day “29 of 30”
because that clarification would have been irrelevant. The fact
that the court asked Soth at the pre-hearing conference to
confirm his agreement with the additional brief waiver of time
supports Soth’s view that his “general” time waiver was not an
unconditional waiver of his rights under section 859b. It is also
consistent with how the parties acted at the June 21, 2021
preliminary hearing, when the court and parties behaved15 as if

15 The prosecution did not claim, either in its motion to
continue the preliminary hearing or at the June 21 hearing, that
it was relieved from showing good cause to continue the
preliminary hearing because Soth had entered a general and
unqualified waiver of his rights under section 859b. If, as the
People argue, Soth had entered a general waiver at the pre-

17
Soth had only agreed to a modification of his prior limited waiver
of the 10-day rule. As a result, the court did not err in requiring
the prosecutor to demonstrate good cause under section 1050 to
obtain a continuance of the preliminary hearing beyond the date
of Soth’s limited waiver. (See Garcia, supra, 47 Cal.App.5th at
pp. 652-653.)

B. The Court Did Not Abuse Its Discretion in Finding
the Prosecutor Did Not Show Good Cause for
Continuance
In general, continuances are disfavored in criminal
proceedings; they are granted only upon a showing of good cause.
(§ 1050, subds. (a) & (e).) The trial court has wide discretion to
grant or deny a defendant’s request for a continuance. (People v.
Clark (2016) 63 Cal.4th 522, 551.) “[I]n making its good-cause
determination, a trial court must consider all of the relevant
circumstances of the particular case, ‘applying principles of
common sense to the totality of [the] circumstances . . . .’”
(People v. Sutton (2010) 48 Cal.4th 533, 546.)
The unavailability of a witness constitutes good cause for a
continuance where: (1) the party seeking the continuance
exercised due diligence to secure the attendance of the witness;
(2) the witness’s testimony is material; (3) the testimony is not
cumulative; (4) the testimony can be obtained within a

hearing conference on May 28, the People would not have been
required to show good cause to continue. That the parties and
the court engaged in an in-depth discussion about whether the
prosecution demonstrated good cause to continue under
section 1050 reinforces the conclusion that Soth’s waiver on
May 28 was not general and unqualified.

18
reasonable time; and (5) the facts about which the witness would
testify cannot otherwise be proven. (Jensen, supra,
160 Cal.App.4th at pp. 270-271, 274; Baustert v. Superior Court
(2005) 129 Cal.App.4th 1269, 1277 (Baustert).) The party seeking
the continuance has the burden of proving that each of the above
elements of the Jensen test is met. (Baustert, at p. 1277.)
“Once a continuance has been denied, the burden is on
appellant to establish an abuse of discretion.” (People v. Strozier
(1993) 20 Cal.App.4th 55, 60.) “‘In deciding whether the denial of
a continuance was so arbitrary as to violate due process, the
reviewing court looks to the circumstances of each case,
“‘particularly in the reasons presented to the trial judge at the
time the request [was] denied.’”’” (People v. Froehlig (1991)
1 Cal.App.4th 260, 265.) “‘Discretion is abused only when the
court exceeds the bounds of reason, all circumstances being
considered.’” (Ibid.)
The record shows the court considered the factors in Jensen
when it evaluated whether Officer Garcia’s unavailability
constituted good cause to continue the preliminary hearing,
including whether the prosecutor had demonstrated diligence in
securing the attendance of Officer Garcia. Ultimately, the
superior court denied the People’s motion to continue, finding
that the prosecutor had not shown good cause to continue the
preliminary hearing based on the court’s belief that the testimony
of Officer Garcia was unnecessary for the prosecution to satisfy
the People’s burden at the preliminary hearing. The prosecutor
disagreed, arguing the only evidence to prove Soth had been
driving the car—a required element of the DUI offense—was
Sopeautra’s statements, and neither Sopeautra nor Officer
Garcia (who interviewed Sopeautra at the scene of the accident)

19
was present at the hearing on June 21, 2021. Yet, in the court’s
view, the prosecution could prove the case with evidence provided
by Officer Maes, who was present at the hearing and available to
testify. The court explained that Officer Maes was at the scene of
the incident and observed and interviewed Soth. The court gave
the prosecution the opportunity to present evidence from Officer
Maes at the hearing, but the prosecutor declined the offer.
Given the record before us, the People have not shown the
court abused its discretion in denying the motion to continue.
The People have not demonstrated that only Officer Garcia could
provide the evidence to prove that Soth was driving. As the court
recognized, Officer Maes responded to the accident and
interviewed Soth. Officer Maes saw the damaged Cadillac,
including the deployed airbags and missing front tire, and
observed Soth in an impaired and bloody condition near the car.
From the testimony of Officer Maes, the court could have inferred
Soth was driving and that he attempted to leave the scene of the
accident. (E.g., People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 7
[“‘From the combination of circumstances—defendant’s sitting in
a vehicle in the center of the street—behind the wheel—engine
running—lights on, it can be inferred that defendant must have
placed himself in such position, and that he accomplished this by
driving the car to the place at which he was found.’”]; People v.
Hanggi (1968) 265 Cal.App.2d Supp. 969, 971-972 [same].)
In light of the low standard of proof required at a
preliminary hearing, it was not beyond reason for the superior
court to conclude that the prosecution could sustain its burden of
proof based on Officer Maes’s testimony and the reasonable
inferences drawn from it. (See Williams v. Superior Court of Los
Angeles County (1969) 71 Cal.2d 1144, 1148 [“although there

20
must be some showing as to the existence of each element of the
charged crime [citation] such a showing may be made by means
of circumstantial evidence supportive of reasonable inferences on
the part of the magistrate”].) “The evidentiary showing required
for a preliminary hearing is not substantial. A defendant may be
held to answer ‘if there is some rational ground for assuming the
possibility that an offense has been committed and that the
accused is guilty of it. [Citation.] The information will be set
aside only where there is no evidence that a crime has been
committed or there is no evidence to connect the defendant with a
crime shown to have been committed. [Citation.] Every
legitimate inference that may be drawn from the evidence must
be drawn in favor of the information. [Citation.]’ ‘[O]ur function
is to determine whether a person of ordinary caution or prudence
would be led to believe and conscientiously entertain a strong
suspicion that the defendant committed the crime charged.’”
(People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123,
1127.)
Although the court made it clear that it anticipated
Officer’s Maes’s testimony would likely provide sufficient
evidence for the prosecution to meet its burden during the
preliminary hearing, the prosecution elected⎯as it was free to do
⎯not to present any testimony. Given the reasonable inferences
that could have been drawn from Officer Maes’s testimony and
the prosecutor’s refusal to elicit testimony from Officer Maes, we
cannot conclude the superior court abused its discretion when it
denied the motion for a continuance.

21
 C. The Court Erred in Dismissing the Case

1. Section 859b Does Not Authorize Automatic
Dismissal of Soth’s Complaint
Under certain delineated circumstances, section 859b
mandates dismissal of a complaint. The statute expressly
requires dismissal for failing to adhere to: (1) the 10-day rule for
in-custody defendants, absent a waiver of the rule or good cause
for a continuance; or (2) the 60-day rule for all defendants. (See
§ 859b, 2d & 6th pars.; see also, Garcia, supra, 47 Cal.App.5th at
p. 645.)
Section 859b is silent on the issue of dismissal where, as
here, the prosecution has not shown good cause to continue, and
the out-of-custody defendant has not waived the right to a
preliminary hearing beyond 10 days of the arraignment. If the
Legislature had intended dismissal to be automatic and equally
applicable to both in-custody and out-of-custody defendants (in
the absence of waiver or good cause), the Legislature would have
expressed that intention in section 859b. It did not do so.
Instead, the Legislature directed dismissal for in-custody
defendants only and left open how trial courts should handle out-
of-custody defendants. (See People v. Luu (1989) 209 Cal.App.3d
1399, 1405 (Luu) [concluding “section 859b does not mandate
dismissal as a remedy for its violation” when the defendant is out
of custody, the defendant has not waived time and the People
have failed to establish good cause for a continuance of the
preliminary hearing that is beyond 10 days, but within 60 days of
arraignment].)
Likewise, section 1050 specifically states that the failure to
demonstrate good cause to continue a criminal proceeding does

22
not require the trial court to dismiss the action. (§ 1050, subd. (l)
[“This section is directory only and does not mandate dismissal of
an action by its terms.”];16 see Henderson, supra, 115 Cal.App.4th
at pp. 934-935, 939-940, [interpreting section 1050 as containing
no authorization to dismiss where the moving party failed to
show good cause to continue a preliminary hearing within the 60-
day rule of section 859b and the out-of-custody defendant entered
an unqualified waiver of the presumptive 10-court-day rule];
contra, People v. Brown (2021) 69 Cal.App.5th 15, 24-26, review
granted December 22, 2021, S271877 [acknowledging that
although section 1050 does not mandate dismissal for the failure
to comply with the statute, the trial court nonetheless retains the
authority to dismiss the complaint for failure to comply with
section 1050 based on the court’s authority derived elsewhere in
the law, including section 1385].)
Soth was out of custody when the People sought to continue
his preliminary hearing to a date that was beyond 10 court days
but within 60 days of his arraignment. Even without good cause
for the continuance, and without Soth providing a waiver, the
superior court did not have authority to automatically dismiss
Soth’s complaint under sections 859b or 1050. Our conclusion
comports with the canon of statutory interpretation expressio
unius est exclusio alterius: when a statute expressly mentions one

16 Similarly, section 1050.5, which describes the sanctions for
failing to comply with the notice requirements in section 1050,
subdivision (b), for motions to continue, provides, “The authority
to impose sanctions provided for by this section shall be in
addition to any other authority or power available to the court,
except that the court or magistrate shall not dismiss the case.”
(§ 1050.5, subd. (b).)

23
or more things in a class, the omission of other things in the class
indicates the Legislature intended their exclusion. (See, e.g.,
Ogdon v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 192,
198, 201 [applying canon to Labor Code and stating, “the
[legislative] expression of one thing is the exclusion of another”].)
To conclude otherwise⎯that dismissal is automatic⎯would
provide Soth with a remedy that the Legislature did not
expressly intend.

2. Soth Failed to Demonstrate That He Was
Entitled to a Discretionary Dismissal
The statutory language of section 859b does not delineate
what consequences, if any, the trial court may impose when the
People seek to continue a preliminary hearing beyond 10 court
days but within 60 days of arraignment, without good cause and
without a waiver of rights from an out-of-custody defendant.
Because the Legislature has not prescribed the scope of the trial
court’s authority in these circumstances, and the legislative
history does not shed light on this issue, we turn to case law for
guidance.
The People argue the answer is dictated by the holding of
Henderson, supra, 115 Cal.App.4th 922. We disagree. Although
this case and Henderson both involve out-of-custody defendants,
the cases are factually distinct in a material way. In Henderson,
the defendant entered an unqualified waiver of the 10-day rule.
When the prosecutor sought to continue the preliminary hearing
within the 60-day period, but without good cause, the trial court
dismissed the case on its own motion. The appellate court
reversed. (Id. at pp. 927-928.)

24
 Unlike the defendant’s unqualified waiver in Henderson,
Soth’s waiver was limited and conditioned on the preliminary
hearing occurring by a specific date. This difference is critical
because section 859b requires the preliminary hearing to be held
within 10 court days of arraignment unless the parties waive the
10-day rule or good cause to continue is shown. (§ 859b, 2d par.)
When a defendant waives the 10-day rule, dismissal is
unwarranted irrespective of whether the prosecutor has good
cause to continue so long as the hearing is held within 60 days of
the arraignment—that is the central holding of Henderson.
(Henderson, supra, 115 Cal.App.4th at pp. 934-935, 939-940.)
Henderson does not directly address the question before us, which
is whether, if ever, dismissal of the complaint is appropriate
when the court fails to conduct the preliminary hearing within 10
days of the arraignment, the out-of-custody defendant has not
entered an unqualified waiver of the 10-day rule and no good
cause has been shown to continue the preliminary hearing within
the 60-day period.
In describing the 10-day rule, Henderson, in dicta, answers
the question before us, stating “[i]f the court fails to conduct the
preliminary examination within the 10-day period for an out-of-
custody defendant, the defendant may obtain dismissal only upon
a showing that actual prejudice resulted from the delay.”
(Henderson, supra, 115 Cal.App.4th at p. 931.) The Henderson
court cited Luu as support for this proposition. (Ibid., citing Luu,
supra, 209 Cal.App.3d at p. 1407.)
In Luu, the appellate court held that even when the
conditions (waiver or good cause to continue) to justify a
continuance beyond 10 court days but within 60 days were not
present, absent a showing of actual prejudice resulting from the

25
delay, an out-of-custody defendant was not entitled to dismissal.
(Luu, supra, 209 Cal.App.3d at p. 1407.) The court explained, “It
follows that where the Legislature has enacted a speedy trial
statute and has mandated dismissal as a remedy for its violation
as to defendants in custody, but not as to defendants out of
custody, the right of an out-of-custody defendant under the
statute is not a substantial right within the meaning of the rule
entitling a defendant to a dismissal for irregularities in the
preliminary examination procedures. To justify a dismissal for a
violation of such a right a defendant must demonstrate that
actual prejudice resulted to him from the delay.” (Ibid.) Luu also
cites to People v. Mesaris (1988) 201 Cal.App.3d 1377, 1384
(Mesaris) for the proposition that “‘[A]s regards the second
paragraph of Section 859b, if the court sets a preliminary hearing
for an out-of-custody defendant beyond 10 court days without his
consent, no penalty should be imposed unless the defendant
demonstrates that actual prejudice resulted to him from the
delay.’” (Id. at p. 1384 [analogizing to section 859b and requiring
a showing of prejudice to obtain a dismissal based on a failure to
comply with section 871.5].) 17

17 Without addressing the issue of prejudice, the court in
Alvarez also acknowledged that section 859b does not prohibit a
trial court from dismissing an action when the People violate the
10-day rule for an out-of-custody defendant, even when the
preliminary hearing would be held within 60 days. (Alvarez,
supra, 208 Cal.App.3d at p. 578 [observing section 859b does not
“preclude a dismissal pursuant to any authority or power
available to the court for failure to show good cause as required
by section 1050, even though the requested continuance is within
the 60-day limit provided by section 859b.”].)

26
 Luu’s holding regarding section 859b (which allows the
trial court to dismiss a complaint if an out-of-custody defendant
shows actual prejudice from a delay in the preliminary hearing
that is not supported by good cause) appears to be driven by the
legitimate concern that defendants should not be subjected to
lengthy delays before there has been a finding of probable cause.
(Arnold, supra, 59 Cal.App.5th at p. 939, quoting Stroud v.
Superior Court (2000) 23 Cal.4th 952, 964-965 [“the rule for
prompt commencement of the preliminary examination” is aimed
“at ensuring that one does not languish unnecessarily in custody,
or under the cloud of a criminal complaint, without a judicial
finding of probable cause”].)
There is also consistency between the prejudice standard
articulated in Luu and case law that analyzes other violations of
section 859b.18 For instance, in People v. Standish (2006)
38 Cal.4th 858, 864-865 (Standish), the People showed good
cause to continue the preliminary hearing to a date more than 10
days after the arraignment for an in-custody defendant. In
granting the continuance, the trial court failed to comply with
section 859b, paragraphs three and four, which requires the trial
court to release the in-custody defendant on the defendant’s own

18 This prejudice standard is also consistent with the
prejudice standard that the Supreme Court has applied to
claimed violations of section 825, which requires that a person
arrested has the right to be brought before a magistrate without
unnecessary delay, and, in any event, within two days after his or
her arrest. (See People v. Pettingill (1978) 21 Cal.3d 231, 244;
People v. Combes (1961) 56 Cal.2d 135, 142 [recognizing that no
remedy is provided for a violation of section 825, and thus
dismissal is not required unless the defendant demonstrates
prejudice from the delay].)

27
recognizance unless certain exceptions to release are shown.
(Ibid.) The Supreme Court considered whether the trial court’s
failure to comply with section 859b, paragraphs 3 and 4,
warranted dismissing the complaint. (Id. at p. 882.) The
Supreme Court concluded that automatic dismissal was not
mandated because the statute did not expressly require dismissal
and because the error did not involve a substantial right—the
denial of which would be inherently prejudicial.19 (See id. at
pp. 882-885.) Instead, Standish held the trial court could not set
aside the criminal complaint absent a showing of prejudice that
the “error reasonably might have affected the outcome of the
preliminary examination.” (Id. at p. 882.)
In terms of the section 859b analysis, Luu is factually
analogous to Soth’s case. However, whether the holding in Luu
should be applied to Soth’s case was unclear because the court in
Luu did not provide an in-depth discussion of its rationale for
holding that absent good cause for continuing a preliminary
hearing beyond 10 days, an out-of-custody defendant who did not
waive time must demonstrate actual prejudice before a trial court
may dismiss the case. In addition, Luu did not explain what type
of prejudice would justify a discretionary dismissal by the trial
court. For those reasons, and because neither the People nor
Soth cited Luu in their initial briefs, we requested the parties
provide supplemental briefing regarding Luu.

19 Although the 10-day rule for out-of-custody defendants
enshrined in section 859b promotes the prompt commencement of
the preliminary hearing, the violation of that right is not
inherently prejudicial under Standish. (Standish, supra,
38 Cal.4th at p. 883 [defining error as “inherently prejudicial”
when it implicates a core right at the preliminary hearing itself].)

28
 In its supplemental brief the People argue that it is
unnecessary for us to apply Luu because Soth entered a general
and unqualified time waiver and the People demonstrated good
cause for continuing the preliminary hearing. The People further
argue that even if we disagree on those two points, Soth cannot
prevail under Luu because Soth failed to show that he would be
prejudiced by a brief continuance of the preliminary hearing to a
date within the 60-day period.
In his supplemental brief, Soth rejects the holding in Luu.20
Soth therefore does not believe he had any obligation to show
prejudice before the superior court could dismiss his case nor
does he assert that he made any such showing.
While the People and Soth disagree regarding the
precedential value of Luu, they agree Soth did not assert that he

20 Soth argues the Luu court misinterpreted section 859b. He
asserts that because the trial court has discretion under
section 1050 in ruling on motions to continue and because the
second paragraph of section 859b references section 1050, the
court must also retain discretion to dismiss the complaint in his
case.
Soth’s argument misses the point. As previously discussed,
Luu did not hold that a trial court is precluded from dismissing a
complaint when an out-of-custody defendant has not waived the
right to a preliminary hearing within 10 days and when the
prosecution fails to show good cause to continue. Instead, the
appellate court in Luu considered what an out-of-custody
defendant, such as Soth, must demonstrate to obtain a dismissal
in those circumstances. Even assuming the superior court had
the discretion to entertain Soth’s request to dismiss the
complaint, it does not follow that Soth was automatically entitled
to a dismissal without making some showing that justice or
fairness warranted it.

29
would suffer any prejudice from having his preliminary hearing
continued by three days (but within 60 days of his arraignment),
which could have justified the court entering a discretionary
dismissal of his case. As noted above, during the June 21, 2021
preliminary hearing, this was the entire colloquy that occurred
regarding the motion to dismiss:

“The Court: Status?

“[Prosecutor]: Your Honor, we’re unable to proceed.

“The Court: Motion?

“[Soth’s Counsel]: Dismiss.

“The Court: Case is dismissed 1382.”21

21 The court’s citation to “[Penal Code section] 1382” as the
grounds for dismissal was misplaced. Section 1382 safeguards
the defendant’s speedy trial rights, not speedy preliminary
hearing rights. (See § 1382, subd. (a)(2) [“The court, unless good
cause to the contrary is shown, shall order the action to be
dismissed in the following cases: [¶] (2) In a felony case, when a
defendant is not brought to trial within 60 days of the defendant’s
arraignment on an indictment or information.”]; Henderson,
supra, 115 Cal.Appl.4th at pp. 936-937 [observing section 1382
provides that a case must be brought to trial within certain time
limits, depending on the nature of the crime and the defendant’s
custodial status].)
Even were we to assume the trial court misspoke, intending
to cite section 1385 as the legal basis for its dismissal rather than
1382, the record does not support the dismissal because it does
not affirmatively disclose the court’s rationale for its ruling.

30
 The court made no finding that it would have been unjust
or unfair for Soth to have the hearing continued for three days
while Soth remained out of custody. Nor did the court articulate
any basis for dismissing the complaint. Instead, the court
appeared to treat Soth as an in-custody defendant and dismissed
the complaint automatically without inquiry or argument.
Given that Soth failed to show he would be prejudiced by a
brief continuance of the preliminary hearing, and the superior
court similarly did not identify any prejudice to Soth, even if we
were to agree with the holding in Luu, we would reverse because
nothing in the record supports the court’s dismissal of Soth’s case
pursuant to section 859b. We reverse and “remand the case to
allow the magistrate to reinstate the complaint [against Soth]
and reschedule the preliminary hearing.” (Henderson, supra,
115 Cal.App.4th at p. 943.)

Section 1385 “anticipates, and facilitates, appellate review with
the requirement that ‘[t]he reasons for the dismissal must be set
forth in an order entered upon the minutes.’ (§ 1385(a).) ‘The
statement of reasons is not merely directory, and neither trial nor
appellate courts have authority to disregard the requirement. It
is not enough that on review the reporter’s transcript may show
the trial court’s motivation; the minutes must reflect the reason
“so that all may know why this great power was exercised.”’”
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531;
accord, People v. Bonnetta (2009) 46 Cal.4th 143, 151-152.)

31
 DISPOSITION

The order of dismissal is reversed. The matter is remanded
to the superior court to reinstate the complaint and reschedule
the preliminary hearing.

WISE, J.*

We concur:

SEGAL, Acting P. J.

FEUER, J.

* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

32