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Bottger v. Superior Court (People)

California Court of Appeals, Third District, Sacramento
Apr 24, 2009
No. C058256 (Cal. Ct. App. Apr. 24, 2009)

Opinion


JEFFREY BOTTGER, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent THE PEOPLE, Real Party in Interest. C058256 California Court of Appeal, Third District, Sacramento April 24, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 07M07008

RAYE, Acting P.J.

Asserting a violation of his statutory right to a speedy trial, petitioner Jeffrey Bottger moved to dismiss the misdemeanor prosecution against him. The trial court denied the motion and the appellate division of the superior court denied his subsequent petition for writ of mandate challenging the trial court’s ruling. Petitioner now seeks a writ of mandate directing the trial court to grant his motion to dismiss. We stayed the proceedings and issued an alternative writ. We will grant the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was charged with two misdemeanor violations of Penal Code section 242, battery committed against two different victims. The matter was set for trial but then continued to January 10, 2008, the first day of the 10-day grace period provided under section 1382, the speedy trial statute. After trailing the case on January 10 and January 17 because there were no available courtrooms, the matter was assigned for trial on January 22, 2008, the last day of the grace period.

All further statutory references are to the Penal Code.

Section 1382 provides, in pertinent part: “In the absence of an express general time waiver from the defendant, the court shall set a trial date. Whenever a case is set for trial beyond the 30-day or 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.” (§ 1382, subd. (a)(3)(B).)

Petitioner appeared on January 22, 2008. The court conducted an in-chambers discussion with the parties; the prosecution filed a trial brief and ten motions in limine, eight of which were granted without argument. Defense counsel indicated a motion in limine for the defense would be filed later.

Defense counsel informed the court petitioner was concerned about his right to a speedy trial. The court stated petitioner could bring a motion. The court observed: “[T]his trial has substantially started. We’ve just done 10 motions in limine presented by the People. [¶] Mr. Lopas [defense counsel] wants to reserve his motion in limine to put it in writing, but essentially there’s nothing else we can do at... this time so the trial in my estimation is already started. [¶] And what we’re going to do is this. Put the matter over to tomorrow afternoon to begin picking a jury in this case. [¶] So I expect counsel to reconvene back here tomorrow, 1/23/08... [¶]... at 2:30.”

The following day, January 23, 2008, the parties appeared and the court put the matter over to January 24, 2008, stating: “[U]nfortunately I anticipated this argument would be finished but we had a problem in our jury trial this morning. [¶] One of our jurors basically had to replace a juror with an alternate because he wasn’t showing up, and so this argument is taking longer than I anticipated. I don’t think the argument is going to be done before tomorrow morning. [¶] So in that sense what we’re going to do, put this matter over until tomorrow afternoon at which time we’ll start selecting a jury. [¶] Okay. And... that’s kind of the deal. I apologize. But like I said, this trial is just taking [a] little bit longer than I anticipated.”

The next day, January 24, 2008, the court again put the matter over. The court noted arguments were still proceeding in the other felony case. The court stated: “But in any event, what I’m going to do is this. You know, as Counsel well knows, you know court congestion does not constitute good cause for delay unless it’s attributable to exceptional circumstances. [¶] In this particular case, it’s not necessarily court congestion. It is really exceptional circumstances and the Court is going to so find. [¶] And I’m basing that finding on the following[:] [¶] Right before counsel was set to argue the case we essentially lost one of our jurors. We actually could have used that time to argue this case but we... actually lost the juror who initially stated [he] couldn’t show up. Then he said he could show up. And then he indicated he couldn’t show up.”

The court stated the juror problem cost the court half a day, if not more. The court described the situation as unforeseeable, noting it probably would not happen in the future. In addition, the court described the situation as unique because the arguments spanned two-and-a-half days. Since arguments in the felony case would not finish until late that afternoon, the parties would have to return the following Monday. The court concluded: “I’m not going to make a finding of... court congestion because that doesn’t constitute good cause. [¶] But that good cause has risen to the level if the Court were inclined to find it does rise to the level where... the Court is inclined to say that that [sic] it’s attributable to exceptional circumstances. And I’ve already spelled those out.”

Defense counsel objected to any further continuance. The court reiterated that it found exceptional circumstances: “It’s unforeseeable, unique and not reoccurring. I don’t think the situation will ever occur again.” The court again noted the juror problem and discussed the lag time involved in having two in-custody inmates in the felony case.

The following Monday, January 28, 2008, defense counsel filed a motion to dismiss based on violation of petitioner’s right to a speedy trial. The prosecution argued the circumstances causing the delay were extraordinary and could not have been anticipated. Defense counsel argued that, at the time of the assignment, the court lacked the resources to hear petitioner’s case without unnecessary delay.

The court considered the circumstances leading to the delay. The case was assigned to the courtroom on the morning of January 22, 2008. When the court accepted the case, there was a need for courtrooms and the trial court believed only closing arguments remained in the felony case, since the jury instructions had been reviewed and agreed to by the parties. The court believed it could begin petitioner’s case either that afternoon or the following morning.

Juror problems intervened. A juror failed to arrive that morning and notified the court the juror could not arrive until after lunch. The court excused the juror and seated one of the alternates that afternoon. The court explained: “The Court had no knowledge that any of this was going to transpire. Just taken place that morning. And the juror, quite frankly, was hopeful that he would get there and we had to wait on him.”

After the new juror was sworn in, the case continued at a much slower pace than the trial court anticipated. Both the prosecution and the defense used a “visualizer,” which had to be repaired during argument. The prosecution decided to play “every single tape that was admitted in that case. And that took a long time, and no one had a way of knowing that.”

Both parties took longer than the trial court believed necessary, and the court admonished both parties to speed up. The court noted the delay in getting the defendants into the courtroom, but acknowledged the delay was normal and not justification for speedy trial delay.

The trial court also discussed defense counsel’s failure to file motions in limine until January 28, 2008. The trial court noted defense counsel indicated he would file motions in limine but had not yet written them down. The trial court asked defense counsel to make sure to file the motions in limine before trial started; defense counsel agreed. The court received the motions in limine the morning of January 28, 2008.

According to the trial court: “[A]s Counsel may or may not know, a delay is for the benefit of the defendant because... Counsel wants to file pretrial motions, that constitutes good cause.... [¶]... And quite frankly... I told you -- both of you this at the outset, and I make it clear at the beginning of every case, that we’re not going to be doing motion in limines [sic] as we pick a jury. Motions in limines [sic] are before we pick a jury. [¶] And I was satisfied... that you [defense counsel] would file the motion in limine before we started picking the jury. You didn’t do that until this morning.”

The court also stated one of the motions in limine would require some discussion by the parties. The court concluded: “[U]ntil I receive[d] those motions in limines [sic], this trial wasn’t going to start in any event.”

Petitioner filed a petition for alternative writ of mandate and request for a stay of proceedings. The trial court denied the petition. Petitioner filed a petition for writ of mandate with this court.

DISCUSSION

The state and federal Constitutions guarantee a criminal defendant the right to a speedy and public trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right to a speedy trial protects the defendant from having criminal charges pending against him or her for an undue length of time. In order to implement this fundamental right, the Legislature enacted section 1382, which requires that a criminal case be dismissed when a defendant is not brought to trial within the statutorily prescribed period following the filing of the information, unless good cause exists. (People v. Wilson (1963) 60 Cal.2d 139, 148; People v. Lewis (2001) 25 Cal.4th 610, 628-629.)

A defendant is brought to trial under section 1382 when the court has “committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.” (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780 (Rhinehart).) Both parties agree that these requirements were not satisfied, since the trial court failed to summon and swear in a jury panel within the 10-day grace period under section 1382.

Under section 1382, if a defendant is not brought to trial within the proscribed time, dismissal must be ordered unless good cause exists. What constitutes such good cause for delay is a matter that lies within the trial court’s discretion. (People v. Johnson (1980) 26 Cal.3d 557, 570 (Johnson).) Each case must be evaluated on its facts. (People v. Malone (1987) 192 Cal.App.3d 1096, 1103.) The People bear the burden of establishing good cause exists to excuse the delay. (Owens v. Superior Court (1980) 28 Cal.3d 238, 250.)

Although section 1382 does not provide a definition of good cause, courts have carved out some parameters as to what may constitute good cause. Delay caused by the defendant constitutes good cause, as does delay for defendant’s benefit. Delay arising from unforeseen circumstances such as the unexpected illness or unavailability of counsel or witnesses constitutes good cause to avoid dismissal. Delay attributable to the fault of the prosecution does not constitute good cause. (Johnson, supra, 26 Cal.3d at p. 570.)

Court congestion, except when attributable to exceptional circumstances, does not constitute good cause. (Rhinehart, supra, 35 Cal.3d at pp. 781-782.) Calendar conflict on the part of the trial court cannot routinely serve to justify denial of a motion to dismiss when trial is postponed beyond the statutory period. (Johnson, supra, 26 Cal.3d at pp. 570-571.) Only extraordinary, nonrecurring circumstances creating an inordinately heavy case load may constitute such good cause. (Id. at pp. 571-572.)

In discussing the meaning of exceptional circumstances, Rhinehart considered the American Bar Association’s Standards for Speedy Trial. (ABA Project on Standards for Crim. Justice, Stds. Relating to Speedy Trial (Approved Draft 1968).) The standards state that the simple failure of courts to provide adequate resources to handle the usual number of cases does not justify delay. However, delay based on “‘“certain unique, nonrecurring events”’” may justify delay. (Rhinehart, supra, 35 Cal.3d at p. 782, fn. 17, quoting Johnson, supra, 26 Cal.3d at p. 571.) “An example of the latter is the occurrence of a large-scale riot or other mass public disorder resulting in an inordinate number of cases which are simultaneously scheduled for trial.” (Rhinehart, at p. 782, fn. 17.)

Dismissal of the present case can be avoided only if the record establishes that the court swore in a jury panel “within 10 days” of the date set for trial or demonstrates good cause for delay. The record establishes neither. All that the record reflects about the events of January 22, the last date trial could commence, is that the case was assigned to a court, the court resolved some motions in limine, and the court put the matter over to the next day to begin selecting a jury. While the court may have believed the trial had “substantially started,” the critical act of swearing the jury did not occur. The court offered no explanation for the failure and did not reveal whether other courtrooms were open for trial and, if so, why the case was not transferred. Responding to defense counsel’s speedy trial concerns, the court simply stated petitioner could bring a motion.

The Attorney General insists the delay in this case was justified by “certain unique, nonrecurring events” and by the expressed desire of the defense to submit written in limine motions for the court’s consideration. We are not persuaded.

According to the Attorney General, the trial court accepted the assignment, fully expecting that it would be available to try the case even though the court had not yet completed an ongoing criminal trial. Its expectations were “thwarted by a stream of unexpected events” in the ongoing trial: a juror failed to return following an overnight recess, which necessitated the substitution of a new juror; a “visualizer” malfunctioned and required repair; considerable time was expended replaying tapes introduced at trial; and the closing arguments were longer than expected.

Even accepting the questionable premise that these were unique, nonrecurring events, they all relate to circumstances in department 22. However, good cause cannot be assessed solely in terms of events in department 22. No matter how chaotic and unexpected the turn of events in department 22 might have been, those events would not serve as good cause to delay a trial that could have been conveniently assigned to a different courtroom. After the trial court’s expectations were thwarted, the reasonable response would have been to refer the case to another courtroom, unless there was no other department available. Petitioner was not obliged to wait until department 22 became available if trial could have proceeded before a different judge. If events rendered the commencement of trial in department 22 impossible, the Attorney General was obliged to establish that no other department was available. However, the record is devoid of any information regarding the availability of other departments and the feasibility of assigning the case to another judge for trial. The Attorney General’s claim of good cause, based on unique, nonrecurring events that intervened to prevent a timely trial, thus fails for lack of an adequate foundation.

The claim also fails because all of the explanations for the delay concern matters that transpired after the delay had already exceeded the 10-day grace period. Perhaps recognizing this weakness in his argument, the Attorney General notes in the penultimate paragraph of his opposition brief that the trial court found good cause for the delay based on defense counsel’s statement that he wanted to present written in limine motions for the court’s consideration. Such motions were not filed until January 28, 2008. At oral argument the Attorney General expanded on its written position and insisted defense counsel’s request to submit his in limine motions in writing, a request granted by the trial court, constituted an implied waiver of defendant’s right to a speedy trial until the following day. The record belies such a claim.

After defense counsel expressed his desire to put his motion in limine in writing, the court wanted defense counsel “out of [an] abundance of caution” to stipulate “that we’ve done substantial work on the case such that we can start the trial.” The only possible reason for such a stipulation was to foreclose a speedy trial challenge. However, defense counsel did not assent to the stipulation but instead declared: “I do believe, your Honor, that regarding that issue, Mr. Bottiger [sic] has a problem with that as well as he wants to address the Court regarding speedy trial right in and of itself.”

Defendant’s effort to address the court directly was rejected, and following an additional exchange with counsel, the court concluded:

“All right. All right. Counsel, my -- my -- the point I’m trying to make here, Counsel, if you wish to bring the speedy trial motion, you’re always welcome to do that.

“All right. In any event, this trial has substantially started. We’ve just done 10 motions in limine presented by the People.

“Mr. Lopas wants to reserve his motion in limine to put it in writing, but essentially there’s nothing else we can do at -– at today’s -- at this time so the trial in my estimation is already started.

“And what we’re going to do is this. Put the matter over to tomorrow afternoon to begin picking a jury in this case.”

There is nothing in the comments by the court or defense counsel to indicate defendant, in seeking to file a written in limine motion, was waiving his right to a speedy trial. There is also no hint of recognition by the court that the trial had not begun and would not begin for purposes of section 1382 until a panel of prospective jurors was summoned and sworn. Instead, the trial court treated the disposition of the prosecution’s in limine motions as a “substantial start” of the trial. This was clearly error.

DISPOSITION

The petition for writ of mandate is granted. Let a peremptory writ issue directing the appellate division of the superior court to vacate its order of February 15, 2008, and to issue a new and different order directing the trial court to grant petitioner’s motion to dismiss. The stay previously issued by this court is vacated, and the alternative writ is discharged. Petitioner shall recover costs in this original proceeding.

We concur: BUTZ, J. DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Bottger v. Superior Court (People)

California Court of Appeals, Third District, Sacramento
Apr 24, 2009
No. C058256 (Cal. Ct. App. Apr. 24, 2009)
Case details for

Bottger v. Superior Court (People)

Case Details

Full title:JEFFREY BOTTGER, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 24, 2009

Citations

No. C058256 (Cal. Ct. App. Apr. 24, 2009)