The Facetious and Specious Guide to Counting Time

Under Penal Code section 859b, a preliminary hearing is supposed to be within 10 court days of the initial arraignment.

Court day is not defined in statute, but it has been interpreted to be the same as a judicial day. (People v. Pickens (1981) 124 Cal.App.3d 800, 803, fn. 1.) "A "judicial day" is any day except Sundays and holidays enumerated by Government Code section 6700. (Pickens, at p. 804, citing Code Civ. Proc., § 134.) Judicial holidays are defined in CCP135 as all of the holidays in GC6700, Saturdays, and the day after Thanksgiving. GC6700(a) defines every Sunday as a holiday. Days other than that are not judicial holidays. For example, holidays declared by the county are not judicial holidays. (Pickens, at p. 804.) Holidays that that only apply to certain people, even if declared by the President or Governor, don't count as judicial holidays, because "all courts and public offices of the State . . . shall be open and function in their normal and usual manner." (Gov. Code, § 6705.)

So I am mindly perturbed with recent events that there are apparently times when constitutional rights get suspended. So right now, I'm principally thinking about two deadlines: Arraignment and Preliminary Hearings. First, let's define court days and holidays. Court day is not defined in statute, but it has been interpreted to be the same as a judicial day. (People v. Pickens (1981) 124 Cal.App.3d 800, 803, fn. 1.) "A "judicial day" is any day except Sundays and holidays enumerated by Government Code section 6700. (Pickens, at p. 804, citing Code Civ. Proc., § 134.) Judicial holidays are defined in CCP135 as all of the holidays in GC6700, Saturdays, and the day after Thanksgiving. GC6700(a) defines every Sunday as a holiday. Days other than that are not judicial holidays. For example, holidays declared by the county are not judicial holidays. (Pickens, at p. 804.) Holidays that that only apply to certain people, even if declared by the President or Governor, don't count as judicial holidays, because "all courts and public offices of the State . . . shall be open and function in their normal and usual manner." (Gov. Code, § 6705.) Just because court is in session doesn't mean it's a judicial holiday or not. CCP134 explicitly allows the court to conduct business on judicial holidays.

So, as for arraignments. In-custody arraignments, for the most part, take place within 3 court days. Penal Code section 825 says, "the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event within 48 hours after his or her arrest, excluding Sundays and holidays." And then there is some complicated math about when court is in session and so forth, so it essentially equals three court days, though people arrested Wednesday night get to be arraigned by end of Friday. A GC68115 emergency order can effect the arraignment clock in two days. First, under GC68115(a)(5), additional days can be declared to be holidays for the purpose of arraignment. The statute is very clear that it's talking about PC825, and that it's "a holiday for purposes of computing time under those statutes." Furthermore, "This paragraph applies to the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council." Second, under GC68815(a)(8), the 48 hour-period can be extended to 7 days. That's 7 days, not court days. I don't know if that 7 days is excluding Sundays and holidays. I would assume it excludes holidays but I don't see why the argument that it's strictly 7 days can't be made. I would assume it does. So an in-custody get the double-whammy of a number of days as holidays, and then seven days after that, to be arraigned.

Check your court's implementation order for which of these, if any, are in play. Some courts only asked for one and not both, and every court asked for different days to be considered holidays. Preliminary hearings are where things get more interesting. PC859b says, "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 . . . ." Under GC68115(a)(9), the court can "Extend the time period provided in Section 859b of the Penal Code for the holding of a preliminary examination from 10 court days to not more than 15 court days." I would assume it can go beyond the 15th court day for good cause.

I don't know if COVID-19 or Shelter-in-Place will be considered good cause or not, and I'm not going to think about it now.

Court days for prelims should be the definition listed above, as in days that are not judicial holidays. And judicial holiday has a strict statutory definition. Just because the court was closed or open does not necessarily mean it's a judicial holiday. (See CCP 134.) And the holidays under GC68115 are strictly for purpose of PC825. If the Legislature meant to include PC859b, it clearly could have done so.

So for prelims, I think it's 15 court days, and days when the court was closed due to COVID-19 count as court days, but I think every judge is going to find good cause to go beyond 15 days.