Opinion
G055519
06-28-2018
GIDEON VICTOR, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Jacqueline Goodman for Petitioner. Tony Rackauckas, District Attorney, and George Turner, Deputy District Attorney for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16HM07497 30-2017-00940830) OPINION Original proceedings; petition for a writ of prohibition to challenge an order of the Superior Court of Orange County, Richard E. Pacheco, Judge. Petition granted. Jacqueline Goodman for Petitioner. Tony Rackauckas, District Attorney, and George Turner, Deputy District Attorney for Real Party in Interest.
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Before O'Leary, P. J., Bedsworth, J., and Ikola, J.
Petitioner, Gideon Victor, is charged with two counts of driving under the influence. He contends the trial court abused its discretion when it denied his motion to dismiss because there was no good cause to continue his jury trial beyond the 10-day trailing period in Penal Code section 1382. We agree and the petition is granted.
All further statutory references are to the Penal Code. --------
On August 25, 2016, petitioner was arraigned out of custody on a misdemeanor complaint alleging two counts of driving under the influence. After several continuances, on May 1, 2017, trial was scheduled to begin Monday, July 3, 2017, day 0 of 10, with the last day to begin trial July 13. On July 3, petitioner announced ready for trial. According to the record, when the court called the case the "People answer[ed] not ready" and "Jury Trial trailed to 07/10/2107 . . . [¶] Day 7 of 10."
On Monday, July 10, 2017, the People filed a motion to continue the trial pursuant to section 1050. The People's declaration states, "On or about July 7, I became aware that Officer Stephen Miles will be on a pre-approved vacation until July 17, 2017, will be in mandatory training on July 20, 2017, and will be on pre-approved vacation from July 26, 2017 until July 31, 2017."
The People's declaration, prepared under penalty of perjury, explained further that "Officer Stephen Miles is a material witness for the jury trial in this matter, because she [sic] is a percipient witness of the alleged crime in this case; [¶] [ ] That the evidence to which Officer Stephen Miles would testify is necessary, material, not cumulative and cannot otherwise be proven[.]"
The declaration also described the People's due diligence in attempting to secure Officer Miles' testimony by explaining, "In the normal course of business, on or about June 4, 2017, a computer generated subpoena was prepared and delivered via electronic mail requesting his testimony in this action."
On the same day, petitioner filed opposition to the motion to continue the trial and complained the motion was untimely pursuant to subdivision (b) of section 1050 and explained that "expert witnesses [held] the dates for testimony open . . . witnesses [ ] made travel plans to be present to testify, and [ ] the defendant [ ] used his vacation time from work." Petitioner also complained the People's motion was based on inadmissible hearsay and continuing the trial past the 10-day trailing period would violate his right to a speedy trial.
Over petitioner's objection, the trial court found good cause to continue the trial to August 30, 2017. After this court noted in a suggestive Palma order that the record indicated there was no court reporter, no electronic recording of the hearing, and no findings made by the court at the hearing conducted on July 10, respondent court advised this court of the existence of an electronic recording and transmitted a copy of the reporter's transcript and recording of the hearing to this court.
At the hearing on July 10, 2017, petitioner argued there was no good cause to continue the trial, the People had not demonstrated due diligence to secure the officer's presence, email is not an effective method to serve a subpoena to compel the officer's presence, and the People failed to demonstrate the officer's testimony could be obtained within a reasonable time.
After the court clarified the People's declaration explains when the officer would be available to testify, the People addressed the issue of timeliness and said, "I didn't discover the issue with this witness's availability until Friday afternoon [July 7], so this morning [Monday July 10] was pretty much the first opportunity I had to file a motion with the court."
With respect to the method of electronic service the People said, "that is a method in which officers from [CHP] have agreed to receive subpoenas . . . ." The People explained further and said, "And so that in the People's position is effective service because it is something that is actually able to reach the officers as long as they are on duty and have a time to check their email, after it's been - after it's been sent."
In response to the People's explanation the court said, "If I'm understanding it correctly, the People have an agreement with this officer's agency that they will accept a subpoena with all of its binding legal authority by email[.]" When the People confirmed this is the case, the court said, "All right. Okay. So the Court is satisfied that that would serve as effective service in a case like this."
On the issue of notice the court said, "the case law is pretty clear that that does not require a dismissal if they haven't given the appropriate notice and the Court weighs all of the factors."
At the conclusion of the hearing the court granted the People's motion to continue the trial and said, "It appears - it is not quite clear from this declaration that the subpoena was sent out on June 4th 2017[,] and on July 7th, Counsel, you were advised that he has these vacation plans set out in the future and training in the future, and that those - at least existed as of July 7th; is that correct? [¶] [The People]: Yes, Your Honor. [¶] THE COURT: All right. [¶] So I am, based on the declaration and arguments here, going to find good cause and allow this trial date to continue."
On July 27, petitioner filed a motion to dismiss the complaint pursuant to section 1382 on the basis that he had been denied his right to a speedy trial when trial did not begin on July 13, day 10 of 10. The motion to dismiss explained the People's motion to continue the trial granted on July 10, 2017, was untimely, there was no competent evidence the People exercised due diligence to obtain the witness's testimony by proper service, the witness is not a material witness to the prosecution, and the officer's vacation schedule does not constitute good cause to overcome petitioner's right to a speedy trial.
On August 10, 2017, the court denied petitioner's motion to dismiss. According to petitioner, Judge Pacheco denied the motion in part because the matter had already been heard by Judge Robinson and the matter could only be reviewed by a higher court.
When the trial court denied the motion to dismiss, petitioner filed a petition for writ of prohibition/mandate in the appellate department of the superior court, again complaining the motion to continue was untimely, the People failed to establish due diligence in the attempt to secure the witness, the witness was not properly served, there was no good cause to continue the case for the benefit of a witness who was not material to the prosecution of the case, and the officer's vacation is insufficient to overcome petitioner's constitutional right to a speedy trial.
When the appellate department summarily denied the petition, petitioner filed a petition in this court alleging the same complaints below. This court ordered the District Attorney's Office to file an informal response to the petition and ordered petitioner to file the reporter's transcript of the hearing conducted on August 10, 2017.
On October 13, 2017, the People filed an informal response in which they contend the petition should be denied because petitioner failed to demonstrate the court abused its discretion when it granted the continuance, the People exercised due diligence to secure the witness's attendance, and the witness's testimony is material.
On February 6, 2018, this court filed a suggestive Palma order advising the parties that if the trial court does not vacate the order entered August 10, 2017, denying petitioner's motion to dismiss pursuant to section 1382, this court is considering issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1980) 36 Cal.3d 171.)
Before addressing the substance of the motion to continue the trial, there is the matter of the timeliness of the motion, which the informal response ignores, beginning with the People's failure to comply with subdivision (b) of section 1050 which states, "To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary . . . ."
Trial was scheduled to begin Monday, July 3, 2017. When the People announced they were not ready to proceed, trial was trailed to Monday, July 10, 2017, day 7 of 10, the same day they filed the motion to continue the trial. Subdivision (d) of section 1050, states that when a party fails to comply with the two-day notice requirement in subdivision (b), "the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted." (§ 1050, subd. (d).)
" '[W]here a party seeking a continuance fails to comply with the notice requirements, the trial court must make a two-step decision. It must first determine whether there was good cause for failure to comply with those requirements. If there was not good cause, the court must deny the motion. [Citation.] If the court finds there was good cause for failure to comply, it must then decide whether there is good cause for granting a continuance.' [Citation.]" (Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 833.)
Although this court previously reached the conclusion there was no hearing that addressed the People's failure to comply with the two-day notice requirement, the reporter's transcript of the proceedings conducted on July 10, 2017, indicates otherwise and confirms the court conducted the hearing required by subdivision (d) of section 1050. Consistent with our speculation in the suggestive Palma order, the People argued they were unaware of the officer's unavailability until Friday afternoon on July 7. And again, the explanation falls short because it fails to explain why the People "didn't discover the issue with this witness's availability until Friday afternoon" on July 7. Based on the record, trial was scheduled to start four days earlier on Monday July 3. On July 3, when the People announced they were not ready to start trial, they knew or should have known the officer was unavailable. The representation by the People that they were unaware of the "issue with [the] witness's availability until Friday afternoon," requires the court to accept without question the People made no inquiry leading up to the trial date on July 3, made no inquiry the day of trial, and made no inquiry until four days after trial was scheduled to start, about the availability of a "percipient witness," without whose testimony the offense "cannot otherwise be proven." The People's failure to explain, at least by July 6, three days after trial was scheduled to start, and four days before the new July 10 trial date, why they were unaware of the officer's unavailability does not support a finding of good cause for the People's noncompliance with the notice requirement in subdivision (b), and the motion to continue the trial should not have been granted.
On the substance of the motion, subdivision (e) of section 1050 states, "[c]ontinuances shall be granted only upon a showing of good cause." "[A]s a general matter, a trial court 'has broad discretion to determine whether good cause exists to grant a continuance of the trial' [Citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an 'abuse of discretion' standard. [Citations.]" (People v. Sutton (2010) 48 Cal.4th 533, 546.) The People contend the petition should be denied because the court's ruling does not represent "an arbitrary, capricious or patently absurd [ruling] that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.)
To establish good cause for a continuance to secure the presence of a witness a party has the burden of "showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171; People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
Citing Jensen v. Superior Court (2008) 160 Cal.App.4th 266 (Jensen), the People state, "In light of this case law, the most critical inquiry here is whether the People served Officer Stephen Miles with a subpoena." (Italics added.)
Jensen states whether the officer is served is "a critical inquiry." (Jensen, supra, at p. 272.) But even if we agree it is "the most critical inquiry," there was no evidence before the court that Officer Miles had been "served." Nor is there any explanation for the failure of the prosecutor to make this "most critical" inquiry until after the trial date. Assuming the court accepted the People's representations, at best the only conclusion the court could have reached was that a subpoena had been sent by electronic mail. There was no evidence before the court that the subpoena had been "served" on or received by Officer Miles, the agency that employed Officer Miles, or served on or received by Officer Miles' immediate superior or agent designated by his immediate superior to receive and serve the subpoena.
The People suggest Jensen supports their position because the reviewing court upheld a finding of good cause to continue the defendant's trial while an officer was on vacation. But the facts in this case are unlike the facts in Jensen where the evidence before the court included a stipulation between the parties that the People issued the subpoena, the subpoena "was received" by a representative of the law enforcement agency on the same date, and the People received confirmation that the subpoena had been received. (Jensen, supra, at p. 270.)
In this case the People explain, "[i]f this court agrees the trial court could have reasonably interpreted the trial prosecutor's declaration to mean that the People exercised the process provided for under Section 1328(c), then this Court should summarily deny the writ petition, and it is not a close call" because the trial court "plainly did not 'abuse its discretion' in finding that a continuance was justified. This is true because more than one Court of Appeal has approved virtually identical determinations made by other trial courts. [Citations]. Accordingly, there is no way that this Court can say that the trial court made a decision 'outside the bounds' of the applicable law and the relevant facts - when the applicable law indicates that a continuance under the circumstances of this case was perfectly justifiable."
We disagree. The trial court's ruling appears to be "'outside the bounds' of the applicable law and the relevant facts." Unlike Jensen, this case contains no evidence of compliance with subdivision (c) of section 1328, which states that "If any peace officer designated in Section 830 is required as a witness before any court . . . regarding an event or transaction which he or she has perceived or investigated in the course of his or her duties, a criminal subpoena issued pursuant to this chapter requiring his or her attendance may be served . . . in those counties where the local agencies have consented with the district attorney's office . . . where appropriate, to participate, by sending a copy by electronic means, including electronic mail . . . to him or her personally, or to his or her immediate superior or agent designated by the immediate superior to receive the service. If the service is made by electronic means, the peace officer named in the subpoena, or his or her immediate superior or agency designated by his or her immediate superior shall acknowledge receipt of the subpoena by telephone or electronic means to the sender of origin. If service is made upon the immediate superior or agent designated by the immediate superior, the immediate superior or the agent shall deliver a copy of the subpoena to the peace officer as soon as possible and in no event later than a time which will enable the peace officer to comply with the subpoena." (Italics added.)
In this case the People's showing of due diligence to secure the officer's appearance is based solely on their conclusory representation, "That the People exercised due diligence in attempting to secure Officer Stephen Miles' testimony as follows; [¶] a) In the normal course of business, on or about June 4, 2017, a computer generated subpoena was prepared and delivered via electronic mail requesting his testimony in this action. [¶] b) On or about July 7, I became aware that Officer Stephen Miles will be on a pre-approved vacation until July 17, 2017 . . . ."
Compliance with the electronic service provision in subdivision (c) in section 1328 required the officer, his immediate superior, or the agency designated by his immediate superior to "acknowledge receipt of the subpoena by telephone or electronic means to the sender of origin." Giving the People the benefit of the doubt that a subpoena had been sent, there was still no evidence before the court that it was sent to the correct agency, and no representation by the People that Officer Miles, his immediate superior or the agency designated by his immediate superior acknowledged receipt of the subpoena. With no facts before the court the subpoena had even been received, there was no way the court could have inferred Officer Miles had been "served," and no basis for the court to conclude the People complied with subdivision (c) of section 1328.
In addition to contesting the People's claim they exercised due diligence by emailing the subpoena, petitioner also challenges the People's claim the officer is a material witness. The full extent of the showing from which the court could determine whether Officer Miles is a material witness is the following two sentences: "That Officer Stephen Miles is a material witness for the jury trial in this matter, because she [sic] is a percipient witness of the alleged crime in this case; [¶] That the evidence to which Officer Stephen Miles would testify is necessary, material, not cumulative and cannot be otherwise proven."
Petitioner contends Officer Miles is not a percipient witness in this case and that he is actually a "PAS Coordinator." In response to this contested fact the People argue "The petition suggests that Officer Miles was not a necessary or percipient witness, claiming he was a 'PAS coordinator' and that 'this [was] a blood draw case.' But petitioner has not provided this Court with any way of knowing whether any of that was true. Instead, petitioner avers that there was no transcript of the argument on the motion and fails to provide this Court with any other source of reliable information which it could rely on in making that factual determination."
Assuming the People are correct that there is no information in the record from which the court can rely in making a factual determination the officer was not a percipient witness, it is also true there are no facts in the record on a motion in which the People have the burden that the officer is a material witness. There were no facts before the court that Officer Miles was the arresting officer, no facts that he conducted or administered field sobriety tests, no facts that he was involved in the blood draw, no facts that his testimony could not be proven by some other witness, and no facts that his testimony was not cumulative. The only information before the court at the contested motion was the People's conclusory statement that Officer Miles "is a material witness . . . because she [sic] is a percipient witness of the alleged crime . . . ."
"When . . . a claim of good cause is based on the need for additional time to secure the attendance of prosecution witnesses, a particularized showing is required." (Owens v. Superior Court (1980) 28 Cal.3d 238, 250.)
At the conclusion of the hearing conducted on July 10, the only fact from which the court could determine whether there was good cause to continue the trial beyond the 10-day trailing period was the People's representation that a subpoena had been sent. If as the People assert, the "the most critical inquiry here is whether the People served Officer Stephen Miles with a subpoena," the response to the inquiry in this case would have to be there was no evidence before the court, or facts from which the court could infer, that Officer Miles had been "served" either personally or through his immediate superior or agent designated by his immediate superior for the court to find good cause to continue petitioner's trial beyond the 10-day trailing period. Without a finding of good cause to continue the trial, petitioner's motion to dismiss pursuant to section 1382 should have been granted when his trial failed to begin by July 13, 2017. (§1382, subd. (a)(3)(B).)
Accordingly the petition for writ of prohibition is granted. Respondent court is ordered to vacate the order entered on August 10, 2017, denying petitioner's motion to dismiss and enter an order granting the motion.