Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR149844.
Haerle, Acting P.J.
I. INTRODUCTION
After entering a no contest plea to a two-count amended complaint, pursuant to a plea agreement appellant was sentenced to a term of two years and eight months for the charged offenses (embezzlement and forgery). Pursuant to People v. Wende (1979) 25Cal.3d 436 (Wende), he appeals and asks this court to examine the record from the trial court and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment entered in the trial court.
II. FACTUAL AND PROCEDURAL BACKGROUND
An investigation by the Napa Police Department of possible embezzlement and forgery offenses committed by appellant, and regarding the estate of his now-deceased mother, commenced in the fall of 2009. A Napa detective contacted an attorney for defendant’s sister, Judith Reasons, had a lengthy interview with them, and also received a significant number of documents from them, all involving assets formerly owned by appellant’s and Reasons’ mother, Elizabeth Berg, who died in 2006. These assets specifically included the mother’s home and bank accounts.
As a result of the information gleaned from the attorney and Reasons, and also subsequent investigations by the Napa police, the matter was turned over to the Napa County District Attorney in late 2009 or early 2010. On January 7, 2010, that office filed a complaint against appellant charging him with one count of grand theft by embezzlement (Pen. Code, §§ 487/506), together with allegations regarding the amount of the loss to the decedent’s estate (allegedly over $200,000). (§§ 1203.045, subd. (a); 12022.6, subd. (a).)
All further dates noted are in 2010.
All further statutory references are to the Penal Code.
Appellant was arraigned on these charges on February 9, pled not guilty to the charge and special allegations, and did not waive time for his preliminary hearing.
However, on February 25, appellant entered a plea of no contest to the charge in the complaint, admitted its allegations, and waived a preliminary hearing. According to the plea agreement giving rise to this plea, appellant would not receive a sentence longer than one year in county jail, with credit for time already served, and restitution. After objections in court to that agreement made by appellant’s sister and brother on March 24, the court declined to approve the plea agreement, appellant withdrew his plea of no contest, and a plea of not guilty was entered.
On April 1, the People amended their complaint to add a count of forgery (§ 470, subd. (a).) On April 12, appellant filed a motion to dismiss the complaint pursuant to section 859b based on the allegation that no preliminary hearing had been held within 60 days of appellant’s February 9 arraignment.
A hearing on this motion was held on April 22 when, after argument, the court denied the motion.
On April 23, appellant entered a plea of no contest to both counts and again admitted the accompanying allegations. His counsel stipulated that a factual basis for the no contest plea and the admission of the special allegations was provided in the police reports.
In accordance with a second plea agreement, on June 8 the court sentenced him to prison for a term of two years and eight months, with credit for time served, i.e., time served since February 2. The court stayed any sentence on the special allegations, awarded appellant 252 days of custody credits, imposed various fines and fees, and ordered appellant to make restitution to his brother and sister in the total amount of $297,000.
On June 9, appellant filed a notice of appeal accompanied by a request for a certificate of probable cause. The trial court granted the request for a certificate of probable cause on June 18.
III. DISCUSSION
As noted, pursuant to Wende appellant’s counsel requests that we examine the record and determine if there are any issues regarding which further briefing is appropriate. That counsel also suggests that, pursuant to Anders v. California (1967) 386 U.S. 738, we should examine the issue of whether the trial court erred “in denying appellant’s motion to dismiss the information pursuant to... section 859b?” He cites, in that regard, a case cited in appellant’s motion to dismiss, the motion denied by the trial court at the April 22 hearing, Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727 (Ramos).
This issue is, clearly, the reason the trial court granted appellant’s request for a certificate of probable cause.
Section 859b, the statute cited to the trial court by appellant, and by appellant’s Wende counsel to us now, provides, in its final paragraph, that: “The 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... unless the defendant personally waives his or her right to a preliminary examination within the 60 days.”
In Ramos, the court held that this provision in section 859b is “mandatory” and “absolute absent a defendant’s personal waiver” and requires dismissal of a complaint unless the 60-day time limit provided in that section is either complied with or waived by the defendant. (Ramos, supra, 146 Cal.App.4th at pp. 727-729.)
However, we are clear—as was the trial court here—that this provision is simply not applicable here. This is so because, less than 60 days from his arraignment on February 9, i.e., on February 25, appellant had entered a plea of no contest to the single charge then made against him, admitted the special allegations charged, and waived a preliminary hearing.
As noted, however, at the March 24 hearing, the plea agreement underlying appellant’s February 25 plea was disapproved by the court and, as a specific consequence of that court action, the no contest plea was withdrawn by appellant and a new plea of “not guilty” entered. Immediately thereafter, and as contemplated by section 859b, appellant was specifically asked if he waived the 10-day period for the holding of a preliminary hearing, and he answered in the affirmative. A preliminary hearing was then set for April 23. Of course, as noted, such a hearing did not occur because of the plea agreement entered into the following day, and this time approved by the trial court.
As the trial court noted, section 859b does not, indeed cannot, mean that a preliminary hearing has to be held within 60 days of the filing of the original complaint when a timetable such as that involved here obtains: (1) after that complaint was filed and appellant arraigned, within 60 days a waiver of a preliminary hearing was secured as part and parcel of a no contest plea and plea agreement; (2) that plea agreement was later disapproved by the trial court; (3) the same day it was disapproved, appellant’s no contest plea was withdrawn, a new plea of not guilty entered, and a further time waiver of a preliminary hearing secured; (4) an amended complaint filed thereafter; and (5) a plea of no contest to it, plus another waiver of a preliminary hearing, secured a few weeks later.
Appellant’s argument to the trial court relied exclusively on the 60-day time limit imposed by section 859b, and not on any 10-day time limit set out in the same section.
We have examined the record, including that pertaining to the sentence imposed by the trial court, and find no issues deserving of further briefing.
IV. DISPOSITION
The judgment appealed from is affirmed.
We concur: Lambden, J., Richman, J.