Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for writ of mandate granted. Super. Ct. No. TA087996, John J. Cheroske, Judge.
Vincent James Oliver for Petitioner.
No appearance for Respondent.
Steve Cooley, District Attorney, Natasha S. Cooper and Roberta T. Schwartz, Deputy District Attorneys, for Real Party in Interest.
ARMSTRONG, J.
Defendant Albert Angel Amaya petitions for a writ of mandate directing respondent superior court to grant his motion to dismiss (Pen. Code, § 1382) because he was not brought to trial within 60 days of his arraignment. (§ 1049.5.) Defendant moved to dismiss the case after the court granted the People's motion for a trial continuance (§ 1050, subd. (g)) because the deputy district attorney assigned to try the case was engaged in trial. We hold that because the District Attorney did not demonstrate good cause for the continuance, respondent court erred when it granted the continuance motion and subsequently denied defendant's motion to dismiss. Accordingly, we grant the petition.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1050, subdivision (g), provides:
FACTS AND PROCEDURAL HISTORY
Defendant is charged with attempted murder in connection with an alleged street gang shooting. (§§ 664/187; 186.22, subd. (b)(1)(c)). It is further alleged that a principal personally and intentionally used and discharged a handgun causing the victim, Sergio Mora, great bodily injury. (§§ 12022.53, subds. (b), (c), (d) and (e).) Defendant was arraigned on April 11, 2007.
On June 7, 2007, the People filed a motion to continue the trial pursuant to section 1050, subdivision (g). The People did not provide defense counsel a copy of the written motion. However, counsel knew the ground for the motion was that the deputy district attorney assigned to try the case, Joseph Porras, was engaged in a murder trial. After a short hearing on June 8, 2007 (day 58 of 60), respondent court granted the People's continuance motion over defense objection and continued the case to June 19, 2007 (day 69 of 60) for trial.
Defense counsel requested and obtained a copy of the written motion from the District Attorney after we denied defendant's request for an immediate stay because he had not provided a sufficient record. (Cal. Rules of Court, rule 8.490(c)(2).) We discuss the continuance motion more fully below.
On June 12, 2007, petitioner filed a motion to dismiss pursuant to section 1382. Respondent court denied the motion on June 14, 2007. Defendant filed this petition on June 15, 2007.
DISCUSSION
The right to a speedy trial is a fundamental right guaranteed by the federal and state constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.) The Legislature enacted section 1382 to implement the accused's right to a speedy trial. (Rhinehart, supra, 35 Cal.3d at p. 776.) In felony cases, the court must set a date for trial that is within 60 days of the defendant's arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. If the court, after a hearing as prescribed in section 1050, finds that there is good cause to set the date for trial beyond the 60 days, it shall state on the record and enter in its minutes the facts proved that justify its finding. (§ 1049.5.) Section 1382, subdivision (a)(2), provides that a court shall order a felony proceeding to be dismissed if the defendant is not brought to trial within 60 days of the defendant's arraignment, unless good cause to the contrary is shown.
It is undisputed that defendant was not brought to trial within 60 days of his arraignment. The only issue is whether the People demonstrated good cause to continue the trial to a date nine days beyond the statutory time limit. We hold they did not.
The first page of the People's continuance motion, filed by Deputy District Attorney Joseph Porras, contained the following paragraph:
"I am the Deputy District Attorney specially assigned to the case. This case is presently set as last day (58/60) for trial on June 8, 2007. I am currently engaged in jury trial on People v. Dareon Harris and Anthony Lynch (Special Circumstance Double Murder) TA083007 in Department J. I expect the jury trial to end by Friday, June 15, 2007. The People are asking the court to continue this case 7 court days until June 19, 2007, as last day for jury trial. I have already contacted defense counsel regarding this issue."
Although the paragraph was phrased in the first person, it was in the body of the motion and was not in the form of a declaration. Mr. Porras further stated that the motion was "based on this notice of motion and motion, the files and pleadings in the above entitled matter, the attached points and authorities, attached declaration, the preliminary hearing transcript, and on such other and further evidence and argument as may be introduced at the hearing of this motion." Despite the reference to a declaration, there was no declaration attached to the motion. The "attached points and authorities" for the most part cited inapplicable cases involving continuances in cases of ill or missing witnesses. In support of their contention that unavailability of the prosecutor may constitute good cause for a continuance, the People cited Batey v. Superior Court (1977) 71 Cal.App.3d 952. Batey supports the proposition that under certain circumstances, the unavailability of the prosecutor might demonstrate good cause for a short trial delay. However, Batey does not aid the People here. In Batey, this court held that although the People had demonstrated good cause for two short continuances based on the prosecutor's being engaged in trial in another case, the People failed to show good cause for a third continuance because the prosecutor, knowing that the other case would not be completed by the defendant's trial date, and on notice that the defendant would object to any further delays, failed to make any showing as to why he had not made any effort to prepare another attorney to try the case.
The People suggest that despite a "technical violation of Penal Code section 1050, " specifically, their "inadvertent failure to include a separate declaration with the motion, " they nonetheless made an adequate showing of good cause because "[t]he trial court in this case was made specifically aware of which trial Mr. Porras was engaged in, where in the courthouse it was being tried, and when it was expected to be completed. This information was contained in the body of the motion and could have been easily verified or refused by any party or the court clerk. Mr. Porras, an officer of the court, adopted those representations in open court on June 8, 2007." Suffice it to say that it was obligation of the District Attorney, and not "any party or the court clerk, " to establish the facts on which the People based their motion. The People could have done so with a supporting declaration. Their failure to submit such a declaration amounts to a failure to make any factual showing whatsoever. In granting the continuance motion, respondent court did not make any factual findings on the issue of good cause, nor could it do so based on the People's showing.
The People suggest that because section 1050, subdivision (g)(2) is "not limited to" the crimes enumerated in that section, the section should be read to apply to attempted murder as well as murder cases, because they are almost as complex as murder cases; "[t]he only factor missing from an attempted murder prosecution which would factor in a murder trial is the cause of death, which must be proved in a murder trial."
The Legislative history of section 1050, subdivision (g), reveals that the proponents of the legislation (specifically, the Los Angeles County District Attorney's Office and the California District Attorneys Association) wanted to avoid situations in which prosecutors would spend months, perhaps years, preparing a complicated case, only to have to hand the case off at the last minute to another prosecutor unfamiliar with the case. Further, "[t]he crimes to which Subdivision (g) applies are crimes which require extensive trial preparation to successfully prosecute and in which it is important that the prosecutor have a good relationship with the witnesses and the family of the victim." The section provides for a maximum continuance of only 10 days to avert prejudice to the defendant. (Assem. Com. on Public Safety, Report on AB 1754, March 17, 1998.)
We need not resolve the issue of whether section 1050, subdivision (g), should apply to this case simply because it is an attempted murder case. As the District Attorney recognized when arguing the motion to dismiss below, the crucial factor is the complexity of the case. To establish that section 1050, subdivision (g)(2) applied to this case, the People would have to have made some type of factual showing that this was an especially complicated case involving extensive pretrial preparation, that Mr. Porras had been assigned to the case from its outset, or that he had developed a rapport with the victim, his family or witnesses. The People did not do so.
Finally, the People contend that, instead of filing a motion to dismiss after respondent court granted the continuance motion, defendant should have sought review of the order granting the continuance by seeking a writ of mandate pursuant to section 1511, which provides for expedited appellate review of such orders. The People suggest defendant wasted valuable time by filing the motion to dismiss, and then seeking a writ when respondent court denied the motion.
We note first of all that defendant acted diligently in filing the present petition. Respondent court granted the continuance motion on June 8, 2007. Defendant promptly filed a motion to dismiss, which was denied June 14, 2007. Defendant filed his mandate writ petition the following day. We issued an alternative writ of mandate and placed the matter on calendar July 9, 2007. We believe that, by any standard, this is expedited review.
Responding to the People's point, however, we are not aware of any instance in which a defendant has elected to forego a motion to dismiss in favor of the procedure set forth in section 1511. One obvious reason is that the only remedy available under section 1511 is a writ commanding the superior court to "proceed with the criminal case without further delay, other than that reasonably necessary for the parties to obtain the attendance of their witnesses." A dismissal, if warranted, is obviously preferable.
DISPOSITION
A peremptory writ of mandate shall issue directing respondent court to vacate is order of June 4, 2007, denying defendant's motion to dismiss pursuant to section 1382, and enter a new and different order granting the motion..
We concur: TURNER, P. J., KRIEGLER, J.
"(1) When deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers. Both the general convenience and prior commitments of each witness also shall be considered in selecting a continuance date if the motion is granted. The facts as to inconvenience or prior commitments may be offered by the witness or by a party to the case. "
(2) For purposes of this section, 'good cause' includes, but is not limited to, those cases involving murder, as defined in subdivision (a) of Section 187, allegations that stalking, as defined in Section 646.9, a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or Section 11165.6, or domestic violence as defined in Section 13700, or a case being handled in the Career Criminal Prosecution Program pursuant to Sections 999b through 999h, or a hate crime, as defined in Title 11.6 (commencing with Section 422.6) of Part 1, has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days."